Racially Discriminatory Language Under California’s Racial Justice Act: Bankston and Barrera (2026)

forensic toxicology working group members September 21, 2026 Law Updates, Racial Justice Act

Current-law note: This article addresses California Penal Code § 745 and California Supreme Court decisions issued June 1, 2026. It is general legal information, not case-specific legal advice.

Direct answer: California’s Racial Justice Act can reach courtroom language that explicitly or implicitly appeals to racial bias. Proof of purposeful racism is not always required. In People v. Bankston, the California Supreme Court concluded that the prosecutor’s Bengal-tiger comparison violated the RJA and reversed the death judgment because the error was not harmless beyond a reasonable doubt. In People v. Barrera, the Court emphasized statutory limits and context, including that Penal Code § 745(a)(2) refers to a “juror,” not a prospective juror who is removed and never serves.

What does Penal Code § 745 prohibit?

The California Racial Justice Act prohibits the state from seeking or obtaining a criminal conviction, or seeking, obtaining, or imposing a sentence, on the basis of race, ethnicity, or national origin. One statutory pathway is Penal Code § 745(a)(2), which addresses racially discriminatory language or other qualifying bias or animus by specified courtroom participants.

Section 745 defines “racially discriminatory language” broadly enough to include language that, to an objective observer, explicitly or implicitly appeals to racial bias. The statutory definition identifies racially charged or coded language, certain animal comparisons, and references to physical appearance, culture, ethnicity, or national origin as examples requiring scrutiny. The inquiry is objective and contextual rather than limited to proof that the speaker consciously intended discrimination.

For the statute and broader procedural framework, see our California Racial Justice Act (Penal Code § 745) guide.

People v. Bankston: the Bengal-tiger analogy

In People v. Bankston, S044739 (Cal. June 1, 2026), the prosecutor used a Bengal-tiger story during penalty-phase argument to contrast the defendant’s courtroom demeanor with the person the prosecution wanted the jury to see outside the courtroom. The California Supreme Court concluded that the argument violated the RJA. The Court also addressed the prosecutor’s use of the word “thug” in the RJA analysis.

The significance of Bankston is not that every animal reference automatically violates § 745. Rather, the case demonstrates that language must be evaluated in its historical, racial, and argumentative context. The RJA directs courts to examine whether an objective observer would understand the language as explicitly or implicitly appealing to racial bias.

The Court reversed the death judgment because the RJA violation was not harmless beyond a reasonable doubt under the prejudice framework applicable to that pre-2021 judgment. The official opinion is available from the Judicial Branch of California: People v. Bankston.

Bankston does not make every metaphor or animal reference an automatic RJA violation

One of the most important practice points is to avoid turning Bankston into a mechanical word-search rule. The statutory question is whether the challenged language, to an objective observer and in context, explicitly or implicitly appeals to racial bias. The surrounding argument, the imagery used, the defendant’s race or ethnicity, historical associations, repeated terminology, and evidence showing disproportionate use of particular words or images can all matter.

That means lawyers evaluating a potential RJA claim should preserve more than a single isolated phrase. The full transcript, surrounding argument, exhibits, demonstratives, video, voir dire record, and any repeated descriptors may materially change the analysis.

People v. Barrera: context and who counts as a “juror”

In People v. Barrera, S103358 (Cal. June 1, 2026), the Supreme Court addressed several RJA issues arising from a capital trial. One issue concerned statements made by prospective jurors during jury selection. The Court concluded that § 745(a)(2), by its terms, identifies a “juror” but does not include a prospective juror who is removed and does not serve on the jury.

The distinction matters. A biased statement made in open court can be alarming and may implicate other constitutional or procedural concerns, but an RJA claim still must fit the statutory language governing the particular theory asserted. Counsel should therefore identify the speaker precisely: judge, attorney, law-enforcement officer, expert witness, seated juror, prospective juror, witness, or another person.

Barrera also reinforces that challenged language is evaluated in context rather than by label alone. The official opinion is available from the Judicial Branch of California: People v. Barrera.

Purposeful racism is not the only question

The RJA’s language provisions are important because they do not reduce the inquiry to whether a prosecutor, expert, judge, officer, or juror admits a discriminatory purpose. Section 745(a)(2) expressly addresses qualifying conduct “whether or not purposeful.” This makes the objective-observer framework central to claims involving coded language, implicit appeals, dehumanizing imagery, and other terminology whose racial meaning may depend on history and context.

For defense counsel, that means a useful record may include scholarship or historical evidence explaining why a phrase, image, trope, or descriptor carries a racial association even where the speaker characterizes it as race-neutral.

Expert witnesses are expressly covered by the statute

Penal Code § 745(a)(2) expressly includes expert witnesses among the actors whose conduct can support an RJA violation. That matters in cases involving forensic science, medicine, gangs, mental health, toxicology, pathology, or other technical testimony.

Counsel reviewing expert testimony should preserve the exact terminology used to describe a defendant, community, culture, behavior, or alleged criminal conduct. An expert’s credentials do not insulate language from RJA review. Conversely, a scientifically necessary, racially neutral description should not be distorted into an RJA claim simply because it references a fact relevant to the case. The statutory and contextual analysis remains essential.

What evidence should counsel preserve?

Potential language-based RJA claims are highly record dependent. Counsel should consider preserving and obtaining:

complete reporter’s transcripts, not isolated excerpts;
audio or video if the tone, gesture, or presentation matters;
PowerPoint slides, photographs, demonstratives, and exhibits shown to the jury;
voir dire transcripts identifying whether a speaker became a seated juror;
expert reports and prior testimony using the same terminology;
prosecutorial training materials or templates where discoverable and relevant;
prior cases showing repeated or disproportionate use of a challenged phrase or image;
historical or social-science material bearing on coded language or racial stereotypes; and
the procedural posture necessary to analyze the applicable remedy and prejudice standard.

Where additional state-held evidence is necessary to investigate a potential claim, see California Racial Justice Act Discovery in 2026.

Why the remedy analysis must be kept separate from the violation analysis

Finding a violation and determining the remedy are related but distinct steps. Bankston is particularly important because the Court found an RJA violation and then addressed whether the error required reversal under the prejudice standard applicable to the case. Other cases may involve prejudgment relief, postjudgment vacatur, resentencing, charge reduction, or other statutory consequences depending on procedural posture.

For the current remedial structure, see California Racial Justice Act Remedies in 2026.

Practice framework for analyzing challenged language

A useful RJA analysis separates the inquiry into five questions:

Who spoke? Identify whether the speaker falls within the statutory category relevant to the claim.
What exactly was said or shown? Preserve the precise words, imagery, and surrounding presentation.
What was the context? Review the entire argument, testimony, voir dire, or proceeding rather than an isolated phrase.
Would an objective observer understand an explicit or implicit appeal to racial bias? Consider historical associations, coded language, disproportionate usage, and case-specific circumstances.
What procedure and remedy apply? Discovery, prima facie review, evidentiary hearing, direct appeal, habeas, § 1473.7, and the applicable prejudice framework are not interchangeable.

Frequently asked questions

Does the Racial Justice Act require proof that the speaker intended to be racist?

No. Penal Code § 745(a)(2) reaches qualifying racially discriminatory language or bias whether or not purposeful. Intent may be relevant evidence in some cases, but lack of admitted discriminatory intent does not end the statutory inquiry.

Are all animal comparisons prohibited by the RJA?

No automatic rule should be assumed. Bankston requires serious scrutiny of animal imagery, particularly where the language carries historical racial associations, but the statutory inquiry remains whether an objective observer would understand the language, in context, as explicitly or implicitly appealing to racial bias.

Can comments by a prospective juror violate § 745(a)(2)?

Barrera held that the statutory reference to a “juror” does not encompass a prospective juror who never serves. Counsel should still preserve the statement and analyze other potentially applicable constitutional or procedural doctrines.

Can expert-witness language support an RJA claim?

Yes. Expert witnesses are expressly listed in § 745(a)(2). The issue remains whether the challenged language meets the statutory standard in context.

Does a proven RJA violation always produce the same remedy?

No. The remedy depends on procedural posture, timing, the type of violation, and the statutory provisions governing the particular case.

Primary authorities

This article provides general information about California law and does not constitute legal advice. RJA claims are fact-specific and procedure-specific.

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