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Russell Austin and Michael Mosby are challenging the Riverside County District Attorney’s decision to pursue the death penalty in their cases under the new California Racial Justice Act. Mr. Austin and Mr. Mosby have not yet had a trial — they are bringing a pre-trial challenge to the Riverside DA’s decision to pursue death.

Mr. Austin and Mr. Mosby, who are both Black, argue that the Riverside DA’s decision to pursue death comes in the context of decades of implicit and institutional racism, and is illegal under the CRJA. Over the course of Riverside County’s history, Black people have been overrepresented in murder charges and capital sentences, compared to white people with similar facts and circumstances.

Mr. Austin and Mr. Mosby are bringing one of the first challenges to a decision to seek the death penalty under the CRJA.

To succeed under the CRJA, Mr. Austin and Mr. Mosby do not need to demonstrate that any member of the Riverside DA is overtly or consciously racist. Rather, they argue the statistical racial disparities in Riverside’s death penalty system — situated within a multi-generational history of anti-Black discrimination and violence in the county — meet the initial burden of showing a violation under the CRJA, and should entitle these them to an evidentiary hearing and potentially relief under the law.

Even as the death penalty is in nationally, Riverside County has been one of the death-sentencing counties in the nation. From 2015 to 2019, Riverside County accounted for over a third of California’s death sentences — while only accounting for six percent of the state’s population. Eighty-eight people presently on California’s death row were sentenced in Riverside County, and three quarters of them are people of color.

Mr. Mosby and Mr. Austin are represented by David Macher, Brian Cosgrove, Allison Lowe, and Linda Gail Moore of the Riverside County Public Defender’s Office. The ACLU’s Capital Punishment Project and the ACLU Foundation of Southern California are co-counsel.