BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 3 9 9 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; (More) SB 399 (Yee) PageB 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 (More) SB 399 (Yee) PageC 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). (More) SB 399 (Yee) PageD 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." (More) SB 399 (Yee) PageE 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 (More) SB 399 (Yee) PageF 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." (More) SB 399 (Yee) PageG 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).) (More) SB 399 (Yee) PageH 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 (More) SB 399 (Yee) PageI 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). (More) SB 399 (Yee) PageJ . . . 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 (More) SB 399 (Yee) PageK 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.) (More) SB 399 (Yee) PageL 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 (More) SB 399 (Yee) PageM 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. (More) SB 399 (Yee) PageN 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)) (More) SB 399 (Yee) PageO 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 (More) SB 399 (Yee) PageP incapacity.<9> Researchers in the science of human development, however, generally agree that from a developmental standpoint, an adolescent is not an adult. (More) --------------------------- <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). (More) SB 399 (Yee) PageR 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) PageS 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? ***************