BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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SB 1199 (Yee, Cedillo, Romero, Scott and Steinberg) 9
As Introduced February 13, 2008
Hearing date: April 8, 2008
Penal Code
MK:mc
CRIME
HISTORY
Source: Human Rights Watch; National Center for Youth Law
Prior Legislation: SB 999 (Yee) - died on Senate 3d Reading 2007
Support: ACLU-California; Amnesty International USA, California;
Books Not Bars; California Attorneys for Criminal
Justice; California Catholic Conference; California
Coalition for Women Prisoners; California Psychiatric
Association; California Public Defenders Association;
Center for Juvenile Law and Policy, Loyola; Center for
Law and Global Justice, University of San Francisco
School of Law; Center on Juvenile and Criminal Justice;
Child Welfare League of America; Children's Defense
Fund; Equal Justice Society; Faith Communities for
Families and Children; Families to Amend 3 Strikes; Free
Battered Women; Fresno Center for Nonviolence; Friends
Committee on Legislation; Homeboy Industries; Human
Rights Advocates; Human Rights Institute, Bringing Human
Rights Home Initiative; Columbia Law School; Human
Rights Watch; Interfaith Communities United for Justice
and Peace; Justice Policy Institute; Juvenile Law
Center; Korean Presbyterian Church of Monterey; Law
Professors: A letter signed by approximately 70 law
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professors in California; Legal Services for
Children-SF, CA; Legal Services for Prisoners with
Children; Lutheran Office of Public Policy - California;
NAACP Legal Defense Fund; NAACP Legal Defense &
Education Fund, Inc.; National Center for Women and
Policing; National Center for Youth Law; National
Council on Crime and Delinquency; Office of Restorative
Justice - Archdiocese of Los Angeles; Our Lady of the
Holy Rosary Parish; Pacific Juvenile Defender Center;
Penal Reform International; Progressive Christians
Uniting; Progressive Jewish Alliance; The Center for
Juvenile Law and Policy; The Sentencing Project; Youth
Justice Coalition; Youth Law Center; a number of
individuals
Opposition:Crime Victims United; California District Attorneys
Association
KEY ISSUE
SHOULD THE PENALTY FOR FIRST DEGREE MURDER WITH SPECIAL
CIRCUMSTANCES BY A DEFENDANT UNDER THE AGE OF 18 BE 25 TO LIFE?
PURPOSE
The purpose of this bill is to eliminate the life without parole
sentence thus making the sentence for first-degree murder with
special circumstances by a defendant under 18 years of age 25 to
life.
Existing law provides that murder is the unlawful killing of a
human being, or a fetus, with malice aforethought. (Penal Code
187.)
Existing law provides that malice aforethought may be express or
implied. Malice aforethought is expressed when the perpetrator
manifests a deliberate intention to take the life of another
human. Malice aforethought is implied when there was "no
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considerable provocation" for the killing, or when the
circumstances surrounding the killing show "an abandoned and
malignant heart." (Penal Code 188.)
Existing law classifies murder according to degrees, either
first degree or second degree. (Penal Code 189.)
Existing law provides that first-degree murder includes murders
perpetrated by destructive device or explosive; knowing use of
ammunition designed primarily to penetrate metal or armor;
poison; lying in wait; torture; any kind of willful, deliberate,
and premeditated killing; discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle
with the intent to inflict death; and any murder committed in
the perpetration of, or attempt to perpetrate:
arson;
rape;
carjacking;
robbery;
burglary;
mayhem;
kidnapping;
train wrecking;
sodomy;
lewd or lascivious acts on a child under the age of 14;
oral copulation; and
penetration of genital or anal openings with a foreign
object. (Penal Code 189.)
Existing law provides that second-degree murders include all
murders not enumerated as first degree. (Penal Code 189.)
Existing law specifies that first-degree murder without "special
circumstances" is punishable in the state prison for a term of
25-years-to-life. (Penal Code 190.)
Existing law specifies that first-degree murder with "special
circumstances" is punishable by death, or in the state prison
for life without parole (LWOP). (Penal Code 190.)
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Existing law limits imposition of the death penalty to those
first-degree murder cases where the trial jury finds true at
least one "special circumstance." Currently, the Penal Code
lists twenty-two separate categories of "special circumstances":
The murder was intentional and carried out for financial
gain;
The defendant was convicted previously of first- or
second-degree murder;
The defendant, in the present proceeding, has been
convicted of more than one offense of first- or
second-degree murder;
The murder was committed by means of a destructive
device planted, hidden or concealed in any place, area,
dwelling, building or structure;
The murder was committed to avoid arrest or make an
escape;
The murder was committed by means of a destructive
device that the defendant mailed or delivered, or attempted
to mail or deliver;
The victim was a peace officer who was intentionally
killed while performing his/her duties and the defendant
knew or should have known that; or the peace officer/former
peace officer was intentionally killed in retaliation for
performing his/her duties;
The victim was a federal law enforcement officer who was
intentionally killed;
The victim was a firefighter who was intentionally
killed while performing his/her duties;
The victim was a witness to a crime and was
intentionally killed to prevent his/her testimony, or
killed in retaliation for testifying;
The victim was a local, state or federal prosecutor
murdered in retaliation for, or to prevent the performance
of, official duties;
The victim was a local, state, or federal judge murdered
in retaliation for, or to prevent the performance of,
official duties;
The victim was an elected or appointed official of
local, state or federal government murdered in retaliation
for, or to prevent the performance of, official duties;
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The murder was especially heinous, atrocious, or cruel,
"manifesting exceptional depravity." "Manifesting
exceptional depravity" is defined as "a conscienceless or
pitiless crime that is unnecessarily torturous";
The defendant intentionally killed the victim while
lying in wait;
The victim was intentionally killed because of his or
her race, color, religion, nationality, or country of
origin;
The murder was committed while the defendant was engaged
in, or was an accomplice to, the commission of, attempted
commission of, or immediate flight after, committing or
attempting to commit the following crimes: robbery;
kidnapping; rape; sodomy; lewd or lascivious act on a child
under the age of 14; oral copulation; burglary; arson;
train wrecking; mayhem; rape by instrument; carjacking;
torture; poison; the victim was a local, state or federal
juror murdered in retaliation for, or to prevent the
performance of his/her official duties; and, the murder was
perpetrated by discharging a firearm from a vehicle;
The murder was intentional and involved the infliction
of torture;
The defendant intentionally killed the victim by the
administration of poison;
The victim was a juror and the murder was intentionally
carried out in retaliation for, or to prevent the
performance of, the victim's duties as a juror;
The murder was intentional and committed by discharging
a firearm from a motor vehicle; and
The defendant intentionally killed the victim while
actively participating in a criminal street gang and the
murder was carried out to further the activities of the
gang. (Penal Code 190.2.)
Existing law provides that notwithstanding any other law the
death penalty shall not be imposed upon any person who is under
the age of 18 at the time of the commission of the crime. The
burden of proof as to the age of such person shall be upon the
defendant. (Penal Code 190.5(a).)
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Existing law provides the penalty for a defendant found guilty
of murder in the first degree, in any case in which one or more
special circumstances enumerated in Section 190.2 or 190.25 has
been found to be true who was 16 years of age or older and under
the age of 18 years at the time of the commission of the crime,
shall be in confinement in the state prison for life without the
possibility of parole or, at the discretion of the court, 25
years to life. (Penal Code 190.5 (b).)
This bill provides instead that the penalty for first-degree
murder by a defendant under the age of 18 shall be 25 to life.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
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disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
-----------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1.Need for This Bill
According to the author:
Youth (persons below the age of 18) can and do commit
terrible crimes, causing enormous suffering to victims
and their families. When youth commit such crimes, they
must be held accountable. But their punishment should
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also reflect their age and immaturity and their special
capacity for rehabilitation. Instead, in California,
teens who are too young to buy cigarettes or serve on
the juries they appear before, are tried as adults and,
if convicted, are sentenced to life without parole.
Life without parole means that a young person is
sentenced to die in prison. The sentence is overly
harsh and disproportionate and it also is applied in
California in a racially discriminatory manner.
Despite popular belief to the contrary, life without
parole in California is not reserved for youth who
commit the worst crimes or who show signs of being
irredeemable criminals. Forty-five percent of
California youth sentenced to life without parole for
involvement in a murder did not actually kill the
victim. Many were convicted of felony murder, or for
aiding and abetting, because they acted as lookouts or
participated in another felony during which the murder
took place. While their crimes are violent and cause
undeniable suffering, these youth offenders are not the
worst of the worst. See When I Die, They'll Send Me
Home: Youth Sentenced to Life without Parole in
California, Human Rights Watch, January 14, 2008,
http://hrw.org/reports/2008/us0108/ (hereinafter "When I
Die").
In addition, in many cases, California has actually
treated its youth worse than similarly-situated adult
offenders. In nearly 70 percent of cases reported to
Human Rights Watch in which the youth acted with others,
at least one codefendant was an adult. Survey responses
revealed that in 56 percent of these cases, the adult
received a more lenient sentence than the juvenile. See
"When I Die."
The fact that youth in California are sentenced to life
without parole and in many cases are punished more
harshly than adults is unfair and disregards the
differences between adults and youth. Juveniles
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continue to develop their identity and the direction of
their lives into their early twenties. Recent findings
in neuroscience show that brain maturation is a process
that continues through adolescence and into early
adulthood, and that impulse control, planning, and
thinking ahead are skills still in development well
beyond age 18. The fact that juveniles are still
developing their identity means that even a heinous
crime committed by a juvenile is not "evidence of an
irretrievably depraved character." See Roper v.
Simmons, 543 U.S. 551 (2005). Youth offenders should
therefore have access to parole, in order to assess
their rehabilitation.
California's sentencing of black youth to life without
parole reveals the worst racial disparities of any state
in the nation. Black youth in California are serving
life without parole sentences at a per capita rate that
is 18 times that of white youth. Even taking into
account criminal participation, California's rates of
sentencing black youth are the worst in the country.
Black youth arrested for murder in California are
sentenced to life without parole at a rate that is 5.8
times that of white youth arrested for murder. See
"When I Die."
As of 2008, twelve jurisdictions in the United States do
not sentence youth to life without parole in law or in
practice. These are: Alaska, Colorado, Kansas, Maine,
New Jersey, New Mexico, New York, Ohio, Oregon, Vermont,
West Virginia, and the District of Columbia. Other
states are considering reforms or have efforts underway
to eliminate the sentence, including Florida, Illinois,
Louisiana, Michigan, Mississippi, and Nebraska. A bill
has also been introduced in the United States Congress
(H.R. 4300) to require states to give all youth serving
life sentences in the United States a meaningful
opportunity for parole, with fiscal consequences for
non-complying states.
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Also in 2008, the United States became the only country
in the world that sentences youth to life without
parole. There are no youth offenders serving life
without parole sentences anywhere in the rest of the
world. Due to the overwhelming global rejection of the
sentence, oversight and enforcement bodies for two
treaties to which the United States is a party (the
Covenant on Civil and Political Rights and the
Convention on the Elimination of all Forms of Racial
Discrimination) have found the practice of sentencing
youth to life without parole to be a clear violation of
the United States' treaty obligations.
California's use of the life without parole sentence for
youth is disproportionate and unnecessary. It sends an
unequivocal message to California's youth that they are
beyond redemption. It erroneously presumes that
allowing youth offenders a parole hearing (which is not
a guarantee of release) would fail to protect public
safety. It also ignores the differences between youth
and adults-differences we accept as a matter of common
sense, and which science fully recognizes.
California's laws should be more just. Juveniles who
commit terrible crimes may need to be sentenced to life
in prison, but we should preserve the opportunity to
review whether a youth sentenced to life in prison has
been rehabilitated. The public agrees: A poll of
Americans living on the West Coast found that 86%
disagree with the idea that youth who commit crimes are
beyond redemption.
2. 25 to Life for First Degree Murder Defendant Under 18
Under existing law, if an adult is found guilty of first
degree-murder, the penalty is 25 year to life. If special
circumstances are charged and found to be true, then the penalty
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for first-degree murder is either the death penalty or life
without parole. If the defendant is between the ages of 16 and
18 and special circumstances are proven, then the penalty for
first-degree murder is either life without parole or, in the
discretion of the judge, 25 to life.
According to a recent report on by Human Rights Watch:
In the United States at least 2,380 people are serving
live without parole from crimes they committed when they
were under the age of 18. In the rest of the world,
just seven people are known to be serving this sentence
for crimes committed when they were juveniles. Although
ten other countries have laws permitting life without
parole, in practice most do not use the sentence for
those under 18. International law prohibits the use of
life without parole for those who are not yet 18 years
old. The United States is in violation of those laws and
out of step with the rest of the world. When I Die,
They'll Send Me Home: Youth Sentenced to Life without
Parole in California, Human Rights Watch, January 14,
2008 p. 2, http://hrw.org/reports/2008/us0108/
Many of those serving life sentences in California for crimes
committed when they were under 18 years of age were not the
actual "shooter" and/or had accomplices that were adults.
Others were the victims of crime and abuse themselves. For
example, one of the people profiled in the Human Rights Watch
report is Sara K. who was convicted of murdering her pimp, who
was 31 years old when he met Sara, who was at the time 11. By
the time she met her victim, Sara had already had a history of
depression and attempted suicide but despite that was a good
student. That man befriended her and acted as a father figure.
By the time she was 13, he had started molesting her and
grooming her to become a prostitute. At 16, after three years
of sexual abuse and prostitution, Sara murdered him with the
help of a much older boyfriend who was never charged. So while
Sara herself was a victim of a terrible crime at a young age,
she is facing a life without parole sentence for killing her
abuser. (Id. at p. 13.)
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This bill removes the option of the life without parole penalty
thus providing that if a defendant who is under the age of 18 is
convicted of a first-degree murder with special circumstances,
the penalty will be 25 to life.
3. Children are Not Adults
The supporters of this bill note that children's brains are
different than adult brains and thus their judgment is not the
same. A number of supporters echo the Office of Justice and
Peace of the Archdiocese of Los Angeles which noted in support
of SB 999:
The imposition of life without parole sentences on minor
children is especially cruel in light of recent
scientific developments showing that adolescent brain is
not fully formed until well into early adulthood, and
that children do not have adult levels of judgment,
impulse control, or ability to assess risks. In
addition this extreme punishment is widely considered a
violation of international law and fundamental human
rights.
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By eliminating the unforgiving sentence of life without
parole for crimes committed by minor children, SB 999
represents a more humane, sensible, and proportionate
sentencing approach. Child offenders would still face
severe punishment (a sentence of 25 years to life) for
committing horrible crimes, but SB 999 would offer
greater motivation for their rehabilitation since they
would be given the opportunity to ask for (and prove
worthy of) release on parole after serving 25 years.
In a letter in support of SB 999, the Youth Law Center further
stated:
California and the states still allowing LWOP for
juveniles, stand almost alone in the world. The United
States has fully 99.5% of the known juvenile LWOP
sentences. The national and international trend is
decidedly in the opposite direction. As of 2007, nine
jurisdictions in the United States prohibit the
sentencing of youth offenders to LWOP, and six more are
currently considering reform.
These numbers are likely to increase because the
reasoning that caused the United States Supreme Court to
strike down capital punishment for juveniles is equally
applicable to LWOP sentences. In Roper v. Simmons
(2004) 543 U.S. 551, the High Court found that a lack of
maturity and undeveloped sense of responsibility often
result in impetuous and ill-considered actions and
decisions. (Id. at 569.) The Court also found that
juveniles are more vulnerable or susceptible to negative
influences and outside pressures, and that juveniles
often lack the freedom to extricate themselves from a
criminogenic setting. (Id.)
Most importantly, the Roper v. Simmons decision found
that the character of a juvenile is not as well formed
as that of an adult. The personality traits of
juveniles are more transitory, less fixed. The Court
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noted that their vulnerability and comparative lack of
control over their immediate surroundings mean juveniles
have a greater claim than adults to be forgiven for
failing to escape the negative influences of their whole
environment. (Id. at 570.) A greater possibility
exists that a minor's character deficiencies will be
reformed. The impetuousness and recklessness that may
dominate in younger years can subside. The court relied
on research finding that, for most teens, risky or
antisocial behaviors are fleeting; they cease with
maturity as individual identity becomes settled. Only a
relatively small proportion of adolescents who
experiment in risky or illegal activities develop
entrenched patterns of problem behavior that persist
into adulthood. (Id.) The court also rejected the
notion of deterrence as a justification for imposing the
death penalty on juveniles, finding that the same
characteristics that render juveniles less culpable than
adults also suggest that juveniles will be less
susceptible to deterrence. (Id. at p. 571.)
SHOULD THE PENALTY FOR A FIRST-DEGREE MURDER WITH SPECIAL
CIRCUMSTANCES BY A DEFENDANT UNDER THE AGE OF 18 BE 25 TO LIFE
THUS ELIMINATING LIFE WITHOUT PAROLE AS AN OPTION?
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