BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 399 (Yee)                                                
          As Introduced February 26, 2009 
          Hearing date:  April 14, 2009
          Penal Code
          AA:br

                                   JUVENILE JUSTICE  :  

             RESENTENCING JUVENILE OFFENDERS WHO HAVE BEEN SENTENCED TO

                       LIFE WITHOUT THE POSSIBILITY OF PAROLE  

                                       HISTORY

          Source:  Human Rights Watch; National Center of Youth Law

          Prior Legislation: SB 999 (Yee) - 2008; died on the Senate floor
                       SB 1223 (Kuehl) - 2004; died on Assembly Suspense

          Support: AFSCME, AFL-CIO; California Correctional Peace Officers  
                   Association; California Public Defenders Association;  
                   Center on Juvenile and Criminal Justice; Children's Law  
                   Center of Los Angeles; ACLU; Public Counsel Law Center;  
                   American Psychiatric Association; Law Offices of the  
                   Alternate Public Defender for Los Angeles County; Legal  
                   Services for Children; The Everychild Foundation;  
                   California Catholic Conference; John Burton Foundation  
                   for Children Without Homes; American Academy of Child  
                   and Adolescent Psychiatry; Taxpayers for Improving  
                   Public Safety; Bishop of the California-Nevada Annual  
                   Conference of the United Methodist Church; Loyola Law  
                   School Center for Juvenile Law and Policy; Youth Law  
                   Center; Homeboy Industries; Children's Defense Fund;  




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                   Office of Restorative Justice of the Archdioceses of  
                   Los Angeles; Faith Communities for Families and  
                   Children; California Church IMPACT; Post-Conviction  
                   Justice Project at the USC Gould School of Law; Child  
                   Welfare League of America; Books Not Bars; Pacific  
                   Juvenile Defender Center; NAACP Legal Defense and  
                   Educational Fund, Inc.; Youth Justice Coalition;  
                   Children's Advocacy Institute; Legal Services for  
                   Children; United Friends of the Children; Juvenile Law  
                   Center; Pacific Juvenile Defender Center; Lutheran  
                   Office of Public Policy - California; California  
                   Psychiatric Association; California Attorneys for  
                   Criminal Justice; Friends Committee on Legislation;  
                   numerous individuals

          Opposition:California District Attorney's Association;  
                   California Peace Officers' Association; California  
                   Police Chiefs Association; Crime Victims United of  
                   California; Crime Victims Action Alliance


                                         KEY ISSUE
           
          SHOULD A procedural mechanism BE CREATED for reviewing the sentence  
          of a person who was convicted and sentenced to life without the  
          possibility of parole for a crime committed when the person was  
          under the age of 18, and for authorizing courts to recall that  
          sentence, and impose a new sentence, based on specified criteria.


                                       PURPOSE
                                          
          The purpose of this bill is to provide a procedural mechanism  
          for reviewing the sentence of a person who was convicted and  
          sentenced to life without the possibility of parole for a crime  
          committed when the person was under the age of 18, and for  
          authorizing courts to recall that sentence, and impose a new  
          sentence, based on specified criteria.

           Under current law  , minors age 14 and older can be subject to  




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          prosecution in adult criminal court depending upon their alleged  
          offense and their criminal offense history.  (Welfare and  
          Institutions Code ("WIC")  602(b); 707)   Current law  contains  
          three discrete mechanisms for remanding minors to adult criminal  
          court for prosecution:

            Statutory or legislative waiver  requires that minors 14 years  
            of age or older who are alleged to have committed specified  
            murder and sex offenses be prosecuted in adult criminal court  
            (i.e., the juvenile court has no jurisdiction over these  
            cases) (WIC  602 (a));
            Prosecutorial waiver  gives prosecutors the discretion to file  
            cases against minors 14 and older, depending upon their age,  
            alleged offense and offense history, in juvenile or adult  
            criminal court (WIC  707 (d)); and
            Judicial waiver  gives courts the discretion to evaluate  
            whether a minor is unfit for juvenile court based on specified  
            criteria and applicable rebuttable presumptions.  (WIC  707  
            (a), (b) and (c).)

           Under current law  , if a prosecution is commenced against a  
          minor as a criminal case as a "direct file" case - that is,  
          through either statutory waiver or prosecutorial waiver - and  
          the minor is convicted of a "direct file" offense, the minor  
          is required to be sentenced as an adult.  (Penal Code   
          1170.17 (a).)  Minors who have been convicted in criminal  
          court of lesser offenses for which they still would have been  
          eligible for transfer to adult court may be able to seek a  
          juvenile disposition instead of a criminal sentence through a  
          post-conviction fitness proceeding.  (Penal Code  1170.17 (b)  
          and (c).)  Minors who are convicted in adult criminal court of  
          offenses for which they would not have been eligible for adult  
          court prosecution had a petition first been filed in juvenile  
          court are subject to a juvenile disposition.  (Penal Code   
          1170.17 (d); 1170.19.)

           Under current law  , these post-conviction proceedings are not  
          available to minors who are convicted after they have been  
          remanded to criminal court from the juvenile court pursuant to  
          Welfare and Institutions Code Section 707 (a) or (c).




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           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).)

           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).)

           Existing law  provides for sentencing which includes a term of  
          imprisonment in the state prison, as specified.  Existing law  
          provides that "(n)othing in this article shall affect any  
          provision of law that imposes the death penalty, that authorizes  
          or restricts the granting of probation or suspending the  
          execution or imposition of sentence, or expressly provides for  
          imprisonment in the state prison for life."  (Penal Code   
          1170.)

           This bill  would enact an exception to this provision for persons  
          who were under 18 years of age at the time of the commission of  
          an offense for which the defendant was sentenced to imprisonment  
          for life without the possibility of parole and committed to the  
          custody of the Department of Corrections and Rehabilitation  
          ("CDCR"), with the following provisions:

           10-Year Review
           
           This bill  would require the secretary of CDCR or the Board of  
          Parole Hearings ("Board") to "review the case no later than 90  
          days before the time that the defendant has served 10 years to  
          determine if the defendant satisfies three or more of criteria  
          specified below."





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           This bill  would require the secretary or the Board to "consider  
          any documentation relevant to that determination, including  
          documentation presented by the defendant, and shall issue  
          written findings not later than 90 days after the date of  
          review."




           Criteria
           
           This bill  would provide that, if the secretary or the Board  
          finds, based on a preponderance of the evidence, that the  
          defendant satisfies three or more of the following criteria,  
          that finding shall be forwarded to the sentencing court, which  
          shall conduct a hearing:

              A.    The defendant was convicted pursuant to felony murder  
                or aiding and abetting murder provisions of law.
              B.    The defendant does not have juvenile felony  
                adjudications for assault or other felony crimes with a  
                significant potential for personal harm to victims prior  
                to the offense for which the sentence is being considered  
                for recall.
              C.    The defendant committed the offense with at least one  
                adult codefendant.
              D.    Prior to the offense for which the sentence is being  
                considered for recall, the defendant had insufficient  
                adult support or supervision and had suffered from  
                psychological or physical trauma, or significant stress.
              E.    The defendant suffers from cognitive limitations due  
                to mental illness, developmental disabilities, or other  
                factors that did not constitute a defense, but influenced  
                the defendant's involvement in the offense.
              F.    The defendant has performed acts that tend to indicate  
                rehabilitation or the potential for rehabilitation,  
                including, but not limited to, availing himself or herself  
                of rehabilitative, educational, or vocational programs, if  
                those programs have been available at his or her  
                classification level and facility, using self-study for  




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                self-improvement, or taking action that demonstrates the  
                presence of remorse.
              G.    The defendant has maintained family ties or  
                connections with others through letter writing, calls, or  
                visits, or has eliminated contact with individuals outside  
                of prison who are currently involved with crime.
              H.    The defendant has had no violent disciplinary  
                violations in the last five years in which the defendant  
                was determined to be the aggressor.

           Court Discretion to Recall Sentence

          This bill  would authorize the court to "have the discretion to  
          recall the sentence and commitment previously ordered and to  
          resentence the defendant in the same manner as if the defendant  
          had not previously been sentenced, provided that the new  
          sentence, if any, is not greater than the initial sentence."

           This bill  would require that the "discretion of the court shall  
          be exercised in consideration of the criteria" set forth above.

           This bill  would require that victims, or victim family members  
          if the victim is deceased, shall be notified of the resentencing  
          hearing and shall retain their rights to participate in the  
          hearing.

           This bill  would provide that if the sentence is not recalled,  
          the Board shall conduct the review described above, as  
          specified, again when the defendant has been committed to the  
          custody of the department for 15 years, 20 years, and 24 years.

          This bill  would provide that the final review shall be during  
          the 24th year of the defendant's sentence.

           This bill  would provide that in addition to the criteria  
          described above, "the court may consider any other criteria that  
          the court deems relevant to its decision, so long as the court  
          identifies them on the record, provides a statement of reasons  
          for adopting them, and states why the defendant does or does not  
          satisfy the criteria."




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           Retroactivity
           
           This bill  would provide that its provisions shall have  
          retroactive application.
           
               RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  
          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  





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               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill does not appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states in part:

               The "life without parole" sentence for youth is not  
               applied fairly:  The sentence is reserved for the  
               worst, most heinous criminals, but is often given to  
               kids who didn't even kill anyone.  Statistics:  59% of  
               youth sentenced to LWOP are first-time offenders: they  
               have no criminal history.  45% of the youth sentenced  
               to life in prison did not perform the murder they were  
               convicted of.

               Many youth sentenced to life-without-parole (LWOP)  
               acted with adults at the time of their crimes;  
               however, in many cases the youth was sentenced to a  
               worse penalty than the adult codefendant/s, even when  
               the youth's crimes were the same or lesser than the  
               adult's. . . .  Statistics:  70% of the youth acted  
               under the influence of adults.  In 56% of these cases,  
               the youth received a higher sentence than the adult/s,  
               even when the youth's crimes were equal or less.

               ----------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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               . . .   Unsurprisingly, over 75% of the youth  
               sentenced to life-without-parole acted within a group  
               at the time of their crime.

               When life-without-parole was adopted as a possible  
               sentence for minors in 1990, much less was known about  
               brain science than we now know.  It is now widely  
               established that the adolescent brain has not yet  
               fully developed the ability to comprehend consequences  
               and control impulses. . . .

               The life-without-parole sentence is not applied fairly  
               between ethnic groups:  Latinos and blacks are given  
               the sentence at a much higher rate than whites, even  
               after differing crime rates between the groups are  
               factored in, again revealing weaknesses in our  
               existing sentencing system.
                . . .

                           The U.S. is the only country in the  
                    world that sentences kids to  
                    life-without-parole.
                           Many U.S. states have already banned  
                    the use of the life-without-parole sentence for  
                    youth.
                           The sentence has no deterrent effect on  
                    crime.
               . . .

               . . . (T)his Act creates specific criteria and an  
               intense, three-part review process that would result  
               in the possibility of a lesser sentence for those  
               offenders whose crimes were less than their sentence  
               might have warranted and who have proven themselves to  
               have changed as adults.
           
           2.  Convicted Juveniles in State Institutions
           
          The number of adult inmates currently in prison who were  
          convicted as minors is not known.  According to data from the  




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          Division of Juvenile Justice, as of December 31, 2008, there  
          were 152 minors convicted in adult court housed in facilities  
          operated by DJJ.

          According to the federal Office of Juvenile Justice and  
          Delinquency Prevention, nationwide data indicates the number of  
          delinquency cases judicially waived to criminal court grew 70%  
          between 1985 and 1994 and then declined 54% through 2000.   
          Between 2001 and 2005, the number of judicially waived  
          delinquency cases increased 7%.<3>  In 2007, 583 minors were  
          reported to the Department of Justice as having been convicted  
          in adult criminal court; of those, 302 were sentenced to prison  
          or the Division of Juvenile Facilities.<4>

          3.  What This Bill Would Do

           As explained in detail above, this bill would provide a court  
          procedure to review a life without parole sentence of persons  
          who were minors at the time of their offense, with the following  
          key features:

          Review Periods
          
                 First review no later than 90 days before the time that  
               the defendant has served 10 years;

                 If the sentence is not recalled, another review is  
               required again when the defendant has been committed to the  
               custody of the department for 15 years, 20 years, and 24  
               years (the final review).

          Criteria; court hearing
          
                 The bill sets forth nine specified criteria, three of  
               which must be satisfied based on a preponderance of the  
               evidence.
             --------------------------
          <3>  See online Statistical Briefing Book, Juveniles in Court  
          (http://ojjdp.ncjrs.org/ojstatbb/njcda/pdf/jcs2005.pdf.)
          <4>  See online Juvenile Justice in California 2007  
          (http://ag.ca.gov/cjsc/publications/misc/jj07/preface.pdf.)



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                 If this standard is met, that standard is required to be  
               forwarded to a sentencing court, and the court is required  
               to conduct a hearing.

          Court Discretion to Recall Sentence
           
                  Courts would be authorized but not required to recall a  
               sentence and commitment previously ordered and to  
               resentence the defendant in the same manner as if the  
               defendant had not previously been sentenced, provided that  
               the new sentence, if any, is not greater than the initial  
               sentence.

                 Courts would exercise its discretion using the same  
               criteria used by CDCR.

                 Victim notification of resentencing hearing would be  
               required, and their right to participate in the hearing  
               specified.




          Retroactivity
          
                 The bill's provisions would be expressly retroactive.
           
           4.  Trying Juveniles in Adult Court
           
          Throughout the 1990s, California's juvenile law was altered to  
          expand the scope of juvenile offenders who would be eligible for  












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          prosecution in adult criminal court.<5>  These changes  
          culminated with the passage of Proposition 21 on March 7, 2000,  
          which expanded the kinds of juvenile cases outside the scope of  
          the juvenile court (thus requiring prosecution in criminal  
          court), and made it procedurally easier for prosecutors to  
          pursue criminal charges against minors 14 years of age and older  
          in criminal court.<6>

          The movement to prosecute a broader range of juvenile offenses  
          in criminal court has been a national phenomenon.  As explained  
          in one legal commentary:

                 For over two decades, legislatures across the  
                 nation have enacted a variety of laws and policies  
                 to criminalize delinquency by relocating  
                 adolescent offenders from the juvenile to the  
                 adult court.  More recently, the U.S. Senate  
                 passed legislation to "get tough" on juvenile  
                 crime by promoting the transfer of adolescents to  
                 criminal court, and providing funds to facilitate  
                 state efforts to do the same.  This legislation  
                 threatens to accelerate a trend that began with  
                 the passage of New York State's Juvenile Offender  
                 Law in 1978 and continues today even as juvenile  
                 crime rates have fallen dramatically.  Since 1990,  
                 nearly every state and the federal system have  
                 expanded the use of adult adjudication and  
                 punishment for adolescent offenders.  Some states  
                 have expanded the number of cases eligible for  
                 judicial waiver, and still others have reassigned  
                 --------------------
          <5>  See, e.g., AB 560 (Peace) (Ch. 453, Stats. 1994) (lowered  
          the minimum age at which minors would be eligible for  
          prosecution in adult court from age 16 to 14); SB 334 (Alpert)  
          (Ch. 996, Stats. 1999) (removed juvenile court discretion for  
          special circumstance murder or sex crimes alleged to be  
          committed by a minor 16 or older who has felony priors, as  
          specified).
          <6>  These mechanisms are described above, in the Purpose  
          section of this analysis, and are set forth in Welfare and  
          Institutions Code  602 (b) and 707.



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                 the burden of proof for waiver hearings from the  
                 prosecutor (seeking to waive a case to criminal  
                 court) to the defense counsel (seeking to deny  
                 waiver).  Some state legislatures have excluded  
                 specific offenses from juvenile court  
                 jurisdiction.  Other states permit prosecutorial  
                 choice of forum between concurrent  
                 jurisdictions.<7>


          5.  Adolescent Development and Legal Culpability
           
          The creation of the modern juvenile court, now over 100 years  
          ago, was rooted in the idea that adolescents, who are not fully  
          developed or mature, are less culpable than adults.<8>  As  
          explained below, this viewpoint is not completely compatible  
          with the "adult crime for adult time" philosophy that emerged in  
          the 1990s.

          ---------------------------
          <7>  Symposium: Children, Crime, and Consequences: Juvenile  
          Justice in America: Punishment, Proportionality, and  
          Jurisdictional Transfer of Adolescent Offenders: A Test of the  
          Leniency Gap Hypothesis (Aaron Kupchik, Jeffrey Fagan, and Akiva  
          Liberman) (14 Stan. L. & Pol'y Rev 57 (2003) (footnotes  
          omitted).)
          <8>  See Jill M. Ward, Deterrence's Difficulty Magnified: The  
          Importance of Adolescent Development in Assessing the Deterrence  
          Value of Transferring Juveniles to Adult Court, 7 UC Davis Juv.  
          L. & Pol'y 253, 257 (Summer 2003) ("Embracing the recognition  
          that children are different from adults, the first separate  
          court for juveniles was established in the United States in  
          1899.  The court's key principles espoused the following four  
          ideas:  (1) children have different needs than adults and need  
          adult protection and guidance; (2) children have constitutional  
          human rights and need adult involvement to ensure those rights;  
          (3) almost all children can be rehabilitated; and (4) children  
          are everyone's responsibility.  This rehabilitative approach to  
          the juvenile court grew rapidly, and by 1925, forty-six states,  
          three territories and the District of Columbia had created  
          separate juvenile courts."  (footnotes omitted))



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                 The common law assumed that adolescents are less  
                 culpable than adults, and the juvenile court  
                 institutionalized this notion both  
                 jurisprudentially and statutorily.  That is, the  
                 juvenile court offered a punishment discount for  
                 adolescents punished as juveniles, relative to the  
                 punishment given to adults.  This discount is  
                 rooted in the belief that serious crimes committed  
                 by young offenders may reflect developmental  
                 deficiencies in autonomy and social judgment,  
                 suggesting a reduction in their culpability and,  
                 in turn, their punishment liability. . . .

                 Recent developments in transfer law often express  
                 the preference of penal proportionality over the  
                 common law assumptions of reduced culpability of  
                 adolescent offenders.  In this view, the  
                 traditional preoccupation with rehabilitation in  
                 the juvenile court, with its limitations on  
                 punishment opportunities, deprecates the moral  
                 seriousness of crimes and offers inadequate  
                 retribution.  Proponents of harsher punishments  
                 for adolescents argue that punishments that are  
                 disproportionately lenient compared to the  
                 severity of the adjudicated offense also undermine  
                 both the specific and general deterrent effects of  
                 legal sanctions.

                 These developments reflect the presumption in  
                 modern juvenile justice law that those who commit  
                 crimes and are remanded to the criminal court, or  
                 even those who are charged with such crimes, are  
                 fully culpable for their acts.  This legal  
                 threshold clashes with emerging empirical evidence  
                 on the immaturity of adolescents with respect to  
                 both their ability to make informed and nuanced  
                 judgments about their behavior, as well as their  
                 moral development.  By ignoring these indicia of  
                 reduced culpability, the new transfer or waiver  
                 policies offend the common law doctrine of  




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                 incapacity.<9>


          Researchers in the science of human development, however,  
          generally agree that from a developmental standpoint, an  
          adolescent is not an adult.





































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          ---------------------------
          <9>  Id.









                 The evidence now is strong that the brain does not  
                 cease to mature until the early 20s in those  
                 relevant parts that govern impulsivity, judgment,  
                 planning for the future, foresight of  
                 consequences, and other characteristics that make  
                 people morally culpable . . .  Indeed, age 21 or  
                 22 would be closer to the "biological" age of  
                 maturity.<10>

          Some scholars argue that the unique nature of adolescent  
          development affect considerations of both culpability and  
          deterrence when measuring the value and suitability of imposing  
          adult criminal sanctions on juveniles.

                 The culpability analysis of juvenile impulsiveness  
                 and risk-taking implicitly embraces the  
                 developmental notion that some forms of adolescent  
                 behavior are the result of a not yet fully formed  
                 ability to control impulses.  In effect, young  
                 people do not have the same capacity for  
                 self-control as adults and this should be  
                 considered a mitigating factor when assessing  
                 culpability.  Similarly, the proclivity of  
                 adolescents to take risks and act on a whim skews  
                 the traditional deterrence calculus for the  
                 adolescent actor.  Adolescents are not likely to  
                 recognize all possible options and therefore,  
                 their preference prioritization may be completely  
                 tilted toward outcomes that they expect will  
                 provide immediate gratification but that do not  
                 actually maximize their utility.<11>

          IS THE SENTENCE REVIEW MECHANISM THIS BILL PROPOSES CONSISTENT  
          ---------------------------
          <10>  Adolescent Brain Development and Legal Culpability,  
          American Bar Assn. Criminal Justice Section, Juvenile Justice  
          Center (Winter 2003), quoting Dr. Ruben C. Gur,  
          neuropsychologist and Professor at the University of  
          Pennsylvania.
          <11>  Ward, supra, note 6, at 267 (footnotes omitted).



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                                                               SB 399 (Yee)
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          WITH RECENT RESEARCH CONCERNING ADOLESCENT BRAIN AND BEHAVIORAL  
          DEVELOPMENT?

          IF ADOLESCENTS HAVE A DIMINISHED CAPACITY FOR CULPABILITY  
          BECAUSE THEY ARE NOT YET SOCIALLY AND BIOLOGICALLY DEVELOPED,  
          AND IF AS A RESULT OF THESE LIMITATIONS THERE IS LITTLE  
          DETERRENCE VALUE IN IMPOSING UNMITIGATED ADULT SENTENCES ON  
          ADOLESCENTS WHO HAVE BEEN CONVICTED IN CRIMINAL COURT, SHOULD  
          YOUTHFUL OFFENDERS WHO ALREADY HAVE SERVED LENGTHY PRISON  
          SENTENCES HAVE AN OPPORTUNITY TO HAVE THEIR SENTENCES REVIEWED  
          BY COURT?


          6.  Opposition

           Opponents argue that existing law concerning sentencing minors  
          who have been convicted of extremely serious offenses is  
          adequate, and that the provisions of this bill are flawed.  The  
          California District Attorneys Association submits:

               Existing law properly recognizes the fact that there  
               are juveniles who commit special circumstances murder  
               and that LWOP is an appropriate sentence in many, if  
               not most, of those cases.  At the same time, the  
               statute acknowledges the possibility of a rare  
               exception and grants judicial discretion to impose a  
               lesser sentence of 25 years to life.  We agree with  
               the propriety of existing law in this regard and  
               therefore oppose any effort, whether overt or veiled,  
               to substantially weaken the statutory response to  
               special circumstances murder committed by specified  
               juveniles.

               . . . (T)he bill lists a number of criteria, three or  
               more of which must be satisfied by an inmate in order  
               for him or her to enjoy the benefit of a potentially  
               decreased sentences.  These criteria set the bar so  
               low that an inmate who (1) prior to the crime, had  
               insufficient adult support or supervision and had  
               suffered from significant stress, (2) availed himself  












                                                               SB 399 (Yee)
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               or herself of education or vocational programs while  
               incarcerated, and (3) maintained family connections  
               through phone calls or visits, would be entitled to a  
               mandatory court hearing in which the sentencing court  
               would consider reducing the inmate's sentence.  While  
               the bill includes other more pertinent criteria such  
               as the nature of the crime and the criminal history of  
               the offender, there is no requirement that those  
               criteria actually be satisfied in order to trigger the  
               hearing.

               . . .  The plain language would seem to allow (the  
               initial review) at any point in the inmate's sentence  
               until he or she has served nine years and nine months.  
               . . .

               IS EXISTING LAW, WHICH PROVIDES JUDICIAL DISCRETION TO  
               IMPOSE A LESSER SENTENCE THAN LWOP, ADEQUATE?

               SHOULD THE CRITERIA AND THEIR APPLICATION PROPOSED BY  
               THIS BILL BE TIGHTENED?

               SHOULD THE BILL'S LANGUAGE CONCERNING WHEN THE FIRST  
               REVIEW OCCURS BE TIGHTENED?



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