AB 256 – Everything You Need To Know About It

In the last few years, numerous studies have shown that racial biases and discrimination have been widespread across California’s criminal justice system. It is undisputed that, in the last few decades, California’s tough on crime policies have disproportionately affected marginalized communities and people of color. For example, in its 2020 report, the Committee on the Revision of the Penal Code found that gang enhancements have been applied inconsistently and have disproportionately affected communities of color. Moreover, the report specifically states that in Los Angeles, 98 percent of people who received gang enhancements were people of color.

In 1987, in McClesky v. Kemp, the U.S. Supreme Court limited courts’ ability to address systemic discrimination by requiring defendants to prove purposeful discrimination by more than statistical disparities. Unfortunately, the Court failed to recognize the reality that most systemic biases are unintentional and throughout the years have been more damaging than occurrences of outright racism. As a result, the decision by the Court left thousands of defendants without recourse.

Fortunately, as part of the ongoing effort to rectify the troubling and devastating effects that California’s laws and policies have had on minority communities and to redress the McClesky decision, in 2020, the State legislature passed AB 2542, which prohibited the state from seeking a conviction or a sentence on the basis of race, ethnicity, or national origin. Recognizing that AB 2542 did not go far enough, in 2022, the California legislature passed AB 256 or the Racial Justice Act for All. The new bill provided a staggered timeline for defendants with cases in which final judgment was entered before January 1, 2021, to seek relief. Moreover, AB 256 expands the type of evidence that defendants can present and requires courts to consider the totality of the evidence and not only statistical evidence.

According to the timeline provided in AB 256, starting on January 1, 2024, any person who is currently serving a sentence in state prison or county jail can file a habeas corpus petition based on a claim under AB 256, which was codified under Penal Code section 745. Moreover, AB 256 amended Penal Code section 1473, not only to allow for habeas corpus petitions based on racial discrimination claims, but to also allow defendants with pending petitions to amend their existing petitions with a claim that their conviction or sentence was the result of a violation of the new Penal Code section 745(a).

The process of challenging a conviction or a sentence under AB 256 is going to be a complex one. Starting on January 1, 2024, defendants who are currently in custody will be able to file a petition for writ of habeas corpus. In order to obtain a hearing, a defendant is required to make a prima facie showing that there was a violation of PC 745(a). This means that the petition has to put forward facts that, if true, would establish a substantial likelihood that a PC 745(a) violation had occurred.

At the evidentiary hearing, the burden of proof will be on the defendant to show by a preponderance of the evidence that a violation had occurred. However, the defendant will not be required to prove intentional discrimination. Furthermore, if the defendant shares an ethnicity, race, or national origin with more than one group, then he or she can produce aggregate evidence to prove that there was a violation. If the court finds that a violation had indeed occurred, the court is mandated to impose a remedy. While the exact remedy is going to be within the discretion of the court, the possible post-judgment remedies include vacating the conviction or sentence and ordering new proceedings; modifying the judgment to a lesser offense; or vacating the sentence and imposing a new one, which cannot be greater than the one previously imposed.

AB 256 provides an additional avenue for defendants to seek post-conviction relief. The experienced and compassionate post-conviction attorneys at the Justice Firm are ready to answer your questions and evaluate your case to determine if you qualify for post-conviction relief under this or any other law. If you or a loved one wants to know more about this law, or if you think that AB 256 impacts your case, contact our California appeals attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.