DA Becton capitulated with bogus racial-bias court ruling

Thanks to the Contra Costa district attorney's puzzling refusal to adequately defend her office against bogus allegations of racially discriminatory charging practices, the county's most dangerous gang-banging killers will avoid the punishment they deserve.

Diana Becton's anemic response to both the charge of bias and a subsequent court ruling sustaining it will leave informed observers with the nagging suspicion that she's happy with the result. She could use the ruling as a convenient excuse for never again seeking appropriate charges against hardcore gang members and for dropping charges against some who already have been convicted.

Under California law, a ganginspired murderer can see his sentence “enhanced” by 10 additional years, and in the case of an especially egregious murder, the gang connection could support a “special circumstance” subjecting him to a noparole life sentence or even the death penalty. In either instance, the connection must be charged and proved.

From 2015 to 2022, Becton and her predecessor charged 91 people with gang-related murders. Four defendants currently facing those charges recently claimed that the gang-related special circumstance is applied in a racially discriminatory manner. Last month a trial judge agreed and struck the special circumstance allegation charged against the four.

The evidence offered to support the defendants' claim, however, doesn't remotely sustain it. That the district attorney failed to point out as much to the court is beyond baffling. That she later hailed the court's devastating ruling for “offsetting systemic racial disparities within the criminal justice system” and vowed to “review similarly charged cases to promote fair and equitable prosecution” is downright alarming.

Here's what the evidence actually showed: Among the 91 defendants charged from 201522 with gang-related murders, 48 are Black. Of those, 30 (62.5%) faced the gang-related murder special circumstance; the other 18 faced only the 10-year enhancement. Of the 43 non-Black defendants, 24 (55.8%) were charged with the special circumstance; the other 19 faced only the extra 10 years.

As someone whose 35-year career as a prosecutor included considerable experience litigating complex racial discrimination issues, I recognize that this “disparity” — the difference between 62.5% and 55.8% — is legally trivial. Indeed, if, over the same seven-year period, merely two more non-Black defendants had been charged with the gang special circumstance and two fewer Black defendants had not been so charged, the “disparity” wouldn't just disappear, it would be reversed. Simply put, a case or two here and there proves nothing — and certainly not that “systemic racism” is at work.

The numbers alone can't sustain the four defendants' claim for a related reason: The law required those defendants to prove:

• The conduct alleged against them was similar to that of the 19 non-Black defendants who faced only the 10year enhancement.

• Over time and to a significant degree, Black gang-related murderers were charged with the gang-related special circumstance more frequently than “similarly situated” nonBlack defendants. The defendants didn't do so. They didn't even come close.

The mere fact that different murderers killed for gang-related reasons doesn't establish “similarity” for these purposes. Instead, determining similarity requires an individualized comparison between different defendants and their conduct that properly takes into account other variables, such as their criminal histories, the viciousness and consequences of their murders, and the quality of available evidence. Only then can anyone draw reliably fact-based conclusions about whether race improperly influenced prosecutors' charging discretion.

The court should have rejected the four defendants' claim based on failure of proof. But that failure cannot explain the district attorney's own failure to put the matter to rest with evidence of her own.

Although three deputy prosecutors testified that their charging is race-neutral — that is, based solely on proper considerations such as strength of evidence, the defendants' criminal records, and the severity of the murders themselves — they inexplicably failed to substantiate those critical assertions. As the trial judge observed, “there was no case-by-case evidentiary presentation about the underlying facts that prosecutors considered when deciding whether to charge or not charge the specific defendants in our historical data pool.”

If the ruling is permitted to stand — and it's clear from Becton's unwarranted praise for it that she will not ask a higher court to correct it — the county will face an increased threat of more frequent and more severe homicidal gang conduct.