Clinic and center leaders spearhead the push for seven newly signed bills that will help vulnerable Californians in myriad ways.
By Sarah Weld
Berkeley Law has made a policy splash in California before. Last fall, however, it created major waves when Gov. Gavin Newsom signed into law a whopping seven bills led by school clinics and centers that focus on protecting residents’ civil, financial, and environmental rights.
A consistently strong presence in pushing for legislative reform in California, Berkeley Law recently marshaled a power-ful confluence of fervent efforts by faculty and students.
Part of the law school’s faculty since 1998, Clinical Program Director Laurel E. Fletcher says the clinics have “always worked to advance justice and regularly advocated on behalf of clients for statewide policy change.” But more than ever, she adds, “the clinics are rising to meet the moment.”
Fletcher calls this increased focus on legislative action “a key opportunity to leverage our intellectual assets to achieve real progress toward social justice in our state,” noting that the Berkeley Clinical Program “is a model for law schools around the country.”
The new bills aim to significantly reduce racial discrimination in jury selection, require companies to list toxic chemicals in beauty products, eliminate punitive adult and juvenile criminal legal system fees, keep youth out of the juvenile justice system, stop people from losing their homes over unsecured debts, and protect consumers from predatory finance companies.
“Our clinics are continually working with clients and partners to translate the everyday racial, economic, and environ-mental injustices experienced by millions of Californians into demands for meaningful change. I’ve never seen this breadth and depth of policy engagement at the law school, much less the staggering success during a very challenging legislative session,” says Jeffrey Selbin, director of the Policy Advocacy Clinic, which regularly represents community groups in Sacramento and around the country.
Several clinics and centers have already introduced or are exploring new state legislation for 2021. Senate Bill 586 would stop collecting over 60 administrative fees for things like record sealing and drug testing, following a 2020 bill that eliminated 23 adult criminal system fees. Senate Bill 476 would crack down on home contractors taking advantage of low-income house-holds through predatory financing for solar panels and other energy-efficient changes. Other efforts include advancing a clean energy bill, economic justice policies, and a new slate of criminal justice reform bills.
Also last fall, Death Penalty Clinic Director Elisabeth Semel and clinic students Catherine Harris ’21 and Marissa Lilly ’21 joined forces to help Newsom and his legal office write an amicus brief to the California Supreme Court focused on racial bias in jury deliberation and sentencing in capital cases.
Here’s a look at the seven Berkeley Law–driven bills recently passed and their expected impact:
Diversifying the jury box
Assembly Bill 3070 will dramatically alter the selection of California criminal trial juries. In doing so, advocates foresee Black and Latinx defendants having their cases tried by juries that look more like them and more accurately reflect California’s demographics.
Drafted by a team that included Death Penalty Clinic faculty and students, the bill was supported by an influential clinic report titled Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors. The exhaustive study, which generated widespread media coverage, investigates the history, legacy, and ongoing practice of excluding people of color — especially Black Americans — from state juries through prosecutors’ peremptory challenges.
Among its obligations, the bill eliminates requiring that the objecting party prove intentional discrimination, includes a list of presumptively invalid reasons for peremptory challenges, and requires courts to consider implicit bias.
“AB 3070 upends the process by which our courts have been deciding for over 40 years whether a party discriminated in the exercise of a peremptory challenge,” Semel says. “The current standard has been a failure: California courts did not apply it rigorously and the procedure itself tolerates discrimination. The statute requires lawyers — particularly prosecutors who disproportionately strike Black and Latinx jurors — to stop relying on stereotypes and racial proxies when they exercise a peremptory challenge.”
Detoxifying cosmetics
California consumers will soon be able to consult a state database to determine if toxic chemicals were used to add fragrance or flavor to products like shampoo, moisturizer, lipstick, and sunscreen.
The Environmental Law Clinic worked with client Breast Cancer Prevention Partners to conceive and draft Senate Bill 312, which forces cosmetic and personal care manufacturers to spell out the fragrances and flavor ingredients that appear on various lists of known-toxic or known-allergenic chemicals. The bill targets ingredients such as synthetic musks, which can disrupt hormone systems; styrene, a carcinogen; and phthalates, which have been linked to asthma and early puberty.
Fragrance is included in numerous kinds of personal care products, including 96% of shampoos and 97% of hair styling products. It’s also found in 91% of antiperspirants, 95% of shaving products, and 83% of moisturizers, according to U.S. studies cited in the bill.
“This bill will help consumers protect themselves from unwanted exposures to toxic chemicals and allergens in their everyday products. And it will pressure manufacturers to remove those ingredients from the marketplace,” says clinic Director Claudia Polsky ’96. She adds that the bill “takes California well beyond federal disclosure requirements and will ultimately help spur tighter federal regulation.”
Outlawing collection of juvenile fees
Tens of thousands of California families no longer have to pay outstanding fees for their children’s involvement in the juvenile justice system. The Policy Advocacy Clinic’s extensive research on how such fees destabilize families and perpetuate racial inequity provided vital support for Senate Bill 1290, which dis-charges all remaining juvenile fees.
The legislation is a bipartisan juvenile justice reform effort that requires counties to end the collection of fees that disproportionately extract wealth from low-income, Black, and Latinx families. Supported by more than 60 groups across the state, the bill furthers the progress made by Senate Bill 190, which abolished the assessment of new juvenile fees in 2018.
The clinic’s research across the country shows how these fees — for everything from electronic monitoring to drug testing — especially harm poor families and families of color, and that collecting them is not cost-effective.
“SB 1290 finally ends decades of racialized wealth extraction from some of California’s most vulnerable families,” says Supervising Attorney Stephanie Campos-Bui ’14, who has led the clinic’s California effort since 2015. “Including the fees discharged under the new law and voluntary actions taken by counties prior to its passage, families will be relieved of more than $360 million of these regressive taxes. It couldn’t come at a better time as many of these families are struggling because of COVID-19.”
Repealing unjust criminal fees
In the first reform of its kind nationwide, the Policy Advocacy Clinic represented the Debt Free Justice California coalition, which persuaded the Legislature to pass Assembly Bill 1869. A budget bill that eliminates 23 draconian, racially discriminatory fees within the adult criminal system going forward, AB 1869 also requires counties to write off an estimated $15.9 billion in outstanding fees.
This historic reform will reduce the harm caused by court-imposed debt and strengthen the economic security of low-income communities of color. The bill culminates more than two years of research, organizing, and advocacy by the clinic, Berkeley Law’s East Bay Community Law Center (EBCLC), and other members of Debt Free Justice California.
“The fees being eliminated, including county probation fees and public defender fees, represent some of the most costly and impactful criminal legal fees in California,” says Asher Waite-Jones ’16, supervising attorney of EBCLC’s Clean Slate Clinic. “Their abolition will result in billions of dollars of financial freedom for our communities, but our fight is far from over. We will not stop until we have achieved a total divestment from criminal legal fees, and a total investment in Black and Brown individuals, families, and communities.”
Campos-Bui, a key driver of the bill, says, “We hope that the work in California can be a source of hope for organizers and advocates in other states who may feel as if fee abolition is out of reach. It is indeed possible and we’re just getting started.”
Protecting consumers from financial predators
Californians will be better protected from predatory consumer finance companies thanks to Assembly Bill 1864. The bill significantly revamps the state’s Department of Business Oversight, giving it more power to oversee payday lenders, debt collectors, financial technology companies, and other service providers not currently regulated by the agency.
Modeled after the federal Consumer Financial Protection Bureau, the state’s Department of Financial Protection and Innovation will have increased authority and resources to go after businesses engaged in unfair, deceptive, or abusive business practices. Newsom recently appointed Berkeley Law lecturer and alumna Suzanne Martindale ’10 to lead the department’s new Division of Consumer Financial Protection established by the bill.
The proposal for a reconstructed state agency was put forward three years ago by Martindale, California Policy Lab Executive Director Evan White ’12, and Ted Mermin ’96, executive director of the law school’s Berkeley Center for Consumer Law & Economic Justice.
“This bill adds much needed oversight to the financial services marketplace at a critical time,” Mermin says. “So many families are near the edge of a financial cliff. With enhanced resources and personnel, the department can prevent harm from unscrupulous lenders and purveyors of ‘debt relief,’ and restore money to those who have been defrauded. And going forward, the new department will be able to respond more nimbly to financial innovations and to serve vulnerable populations like older Americans, students, veterans, and immigrants.”
Keeping people in their homes
Assembly Bill 2463, which prevents foreclosures for consumer debts unrelated to the home, will ensure that people are no longer at risk of losing their homes because of small debts. Based on findings from EBCLC’s report Unsecured Debts: Insecure Communities, the bill bars debt collectors from abusing existing law to seize a family’s home to satisfy an unpaid medical or phone bill, grandchild’s student loan, or other non-mortgage consumer debt. Many homeowners targeted by this practice are people of color, seniors, and low-income residents.
“Millions of Californians are running up debts as a result of the financial crisis and they need to be able to stay in their homes,” says Mermin, director of the California Low-Income Consumer Coalition, which includes EBCLC.
After seeing many clients in danger of losing their homes because of the previous law, EBCLC Consumer Justice Clinic Supervisor Miguel Soto set out to change it, working with students to produce the report and help write the bill.
“We have fielded too many desperate calls from low-income Californians fearful that they will be out on the streets after a debt buyer tries to force the sale of their home,” Soto says. “Unscrupulous debt buyers have been going after homeowners of color, forcing them to live under the constant threat of homelessness due to small unpaid consumer debts. We are restoring our clients’ housing security, safeguarding their savings, and defending their health.”
Valuing community programs over probation
Assembly Bill 901 ensures that California youth having trouble at school or at home are sent to community-based programs instead of probation and the juvenile justice system. EBCLC lawyers and other advocates contend that young people who have not been accused of a crime should not have to sign away their privacy rights or be subject to surprise searches, unannounced home visits, restrictions on who they can speak to, and interrogations.
According to a recent lawsuit filed by the American Civil Liberties Union and the National Center for Youth Law, more than 3,000 young people in Riverside County alone were placed on probation between 2005 and 2016 for behavior like having poor school attendance, arriving late to class, and being “easily persuaded by peers.” Black and Latinx students were disproportionately referred to probation for such common adolescent behavior.
Oscar Lopez, interim director of EBCLC’s Education Advocacy Clinic, and Whitney Rubenstein ’14, supervising attorney for the center’s Education Defense & Justice for Youth program, worked with partners to get the bill written and signed.
“This bill is another important step towards changing the punitive nature in which many students of color and students with disabilities are treated in schools,” Lopez says. “We’re extremely thankful for the young people who shared their experiences and the organizers and advocates who made this victory possible.”
