BILL ANALYSIS SB 399 Page 1 Date of Hearing: January 12, 2010 Counsel: Kimberly A. Horiuchi ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 399 (Yee) - As Amended: June 25, 2009 FOR VOTE ONLY SUMMARY : Authorizes a prisoner who was under 18 years of age at the time of committing an offense for which the prisoner was sentenced to life without the possibility of parole (LWOP) to submit a petition for recall and re-sentencing to the sentencing court, as specified. Specifically, this bill : 1)Provides that when a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for LWOP has served at least 10 years of that sentence, the defendant may submit to the sentencing court a petition for recall and re-sentencing, provided that defendants who have served 10 or more years as of January 1, 2010, shall not be permitted to submit a petition for recall and re-sentencing pursuant to this subdivision until they have served 15 years. 2)Requires that defendants who have served 15 or more years but less than 25 years as of January 1, 2010 be permitted to submit a petition for recall and re-sentencing as follows: a) Those defendants who entered custody prior to July 1, 1993 may submit a petition in 2010. b) Those defendants who entered custody on or after July 1, 1993 but prior to January 1, 1994, may submit a petition in 2011. SB 399 Page 2 c) Those defendants who entered custody on or after January 1, 1994, but prior to July 1, 1994, may submit a petition in 2012. d) Those defendants who entered custody on or after July 1, 1994, but prior to January 1, 1995, may submit a petition in 2013. 3)Mandates the petition for hearing shall include the person's statement that he or she was under the age of 18 years old at the time of the crime and was sentenced to LWOP, and the one of the following is true: 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; or, d) The defendant has had no disciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor. 4)Requires that the defendant serve the original petition with the sentencing court and a copy of the petition shall be served on the agency that prosecuted the case. 5)Provides that if any of the information required to petition the court for a hearing is missing from the petition, or if proof of service on the prosecuting agency is not provided, the court shall return the petition to the person and advise SB 399 Page 3 him or her that the matter cannot be considered without the missing information. 6)States a reply to the petition, if any, shall be filed with the court within 60 days of the date on which the prosecuting agency is served with the motion, unless a continuance is granted for good cause. 7)Provides that if the court finds by a preponderance of the evidence that the statements in the petition are true, or if no reply to the petition is filed, the court shall hold a hearing to consider whether to recall the sentence and commitment previously ordered and to re-sentence the defendant in the same manner as if the defendant had not been previously sentenced, provided that the new sentence, if any, is not greater than the initial sentence. Victims, or victim family members if the victim is deceased, shall retain the rights to participate in the hearing. 8)Provides factors the court may consider when determining whether to recall and re-sentence include, but are not limited to, the following: a) The defendant was convicted pursuant to felony murder or aiding and abetting murder, as specified. 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) 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. d) The defendant suffers from cognitive limitations due to SB 399 Page 4 mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendant's involvement in the offense. e) 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 self-improvement, or taking action that demonstrates the presence of remorse. f) 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. g) The defendant has had no disciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor. 9)States the court shall have the discretion to recall the sentence and commitment previously ordered and to re-sentence 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. 10)Mandates the court, in exercising its discretion, must consider the criteria listed above. Victims, or victim family members if the victim is deceased, shall be notified of the re-sentencing hearing and shall retain their rights to participate in the hearing. 11)States that if the sentence is not recalled, the defendant may submit another petition for recall and re-sentencing to the sentencing court when the defendant has been committed to the custody of the department for at least 15 years; or if not granted, after 20 years; or if not granted, after 24 years; SB 399 Page 5 and a final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendant's sentence. 12)Provides that in addition to the criteria specified 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. 13)States that the provisions of this bill shall apply retroactively. EXISTING LAW : 1)States the Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion. [Penal Code Section 1170(a)(1).] 2)Provides that in any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to existing law, or because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to SB 399 Page 6 impose as an additional term. Nothing 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. In any case in which the amount of pre-imprisonment credit under existing law or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. [Penal Code Section 1170(a)(2).] 3)Requires that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts. In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended. [Penal Code Section 1170(b).] 4)Requires the court to state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in provisions of law related to parole. [Penal Code Section 1170(c).] 5)Provides that when a defendant subject to existing law related to sentencing a defendant has been sentenced to be imprisoned SB 399 Page 7 in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and re-sentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The re-sentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served. [Penal Code Section 1170(d)] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "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: 45% of the youth sentenced to life in prison did not perform the murder they were convicted of. 59% of youth sentenced to LWOP are first-time offenders. "Many youth sentenced to 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. This reveals many of the weakness in our legal system, in which a youth will plead innocent to the murder charge (because he or she did not in fact kill anyone) - and then be convicted of the murder under the 'felony-murder' or 'aiding and abetting' laws, while the adult codefendant who performed the murder and plea bargained gets off with a lesser sentence. 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. "Youth are different from adults and should be evaluated differently than adults, but the legal process often does not take this into account. Recent developments in brain science have proven that youth are far more influenced by group behavior than the same individuals will be as adults. It is now widely established that the adolescent brain has not yet SB 399 Page 8 fully developed the ability to comprehend consequences and control impulses. Teens tend to act in concert with and be influenced by others, and do things in the presence of peers they would never do alone. Unsurprisingly, over 75% of the youth sentenced to LWOP acted within a group at the time of their crime. "The sentence has no deterrent effect on crime and 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. The U.S. is the only country in the world that sentences kids to LWOP. Many U.S. states have already banned the use of the life without parole sentence for youth. "SB 399 allows people who were sentenced as juveniles to LWOP, after they have served at least 10 years of their sentence, to submit a petition to the courts to request a sentence review hearing. To be accepted by the court, the petition would have to demonstrate that the defendant has met specified criteria relating to the circumstances of the crime and the rehabilitation that may have occurred as the youth grew into an adult in prison. If the prisoner's record meets a high threshold, the court could grant a re-sentencing hearing, at which the person could make their case to be re-sentenced to 25-years-to-life. "There are about 250 people serving LWOP who were sentenced as youth in California. This bill will affect people such as Anthony C., who was 16 and had never before been in trouble with the law. Anthony belonged to a 'tagging crew; that paints graffiti. One day, Anthony and his friend James went down to a wash (a cement-sided stream bed) to graffiti. James revealed to Anthony that he had a gun in his backpack and when another group of kids came down to the wash, James decided to rob them. James pulled out the gun, and the victim told him, 'If you don't kill me, I'll kill you.' At that point, Anthony thought the bluff had been called, and turned to pick up his bike. James shot the other kid. "The police told Anthony's parents that he did not need a lawyer. He was interviewed by the police and released, but later re-arrested on robbery and murder charges. Anthony was offered a 16-years-to-life sentence before trial if he pled, but he refused, believing he was innocent. Anthony was found SB 399 Page 9 guilty of first-degree murder and sentenced to LWOP. Charged with aiding and abetting, he was held responsible for the actions of James. "Recognizing that teenagers are not fully matured at the time of their sentencing, and recognizing that our legal process can result in unjust sentences, this Act creates specific criteria and a court review process that would result in the possibility of a lesser sentence for those offenders whose crimes were less and who have proven themselves to have changed as adults." 2)Existing Law Related to Sentencing Juvenile Offenders : The passage of Proposition 21 on March 7, 2000 expanded the types 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. The movement to prosecute a broader range of juvenile offenses in criminal court has been a national trend. 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 United States 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 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." [Symposium: Children, Crime, and Consequences: Juvenile Justice In America: Punishment, Proportionality, and Jurisdictional Transfer of Adolescent SB 399 Page 10 Offenders: A Test of the Leniency Gap Hypothesis, (2003) 14 Stan. L. & Policy Rev 57.] Courts have interpreted statute to conclude when sentencing a juvenile defendant 14 or 15 years of age tried as an adult for murder, the maximum penalty is 25-years-to-life. Only where the juvenile defendant is 16 or 17 years of age and convicted of first-degree murder where one of the enumerated special circumstances are found to be true, may the court choose between 25-years-to-life or LWOP. [See Penal Code Section 190.2(a); Penal Code Section 190.5(a-b); WIC Section 602(a), and; People vs. Demirdjian (2006) 144 Cal.App.4th 10, 17] 3)Legal Culpability : The creation of the modern juvenile court over 100 years ago, was rooted in the idea that adolescents, who are not fully developed or mature, are less culpable than adults. As explained below, this viewpoint is not completely compatible with the "adult crime for adult time" philosophy that emerged in the 1990s. "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 SB 399 Page 11 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 incapacity." [Ward, Deterrence's Difficulty Magnified: The Importance of Adolescent Development in Assessing the Deterrence Value of Transferring Juveniles to Adult Court (hereinafter Ward), (2003) 7 UC Davis Juvenile. Law & Policy 253, 257.] Researchers in the science of human development, however, generally agree that from a developmental standpoint an adolescent is not an adult. "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." [Adolescent Brain Development and Legal Culpability, American Bar Assn. Criminal Justice Section, Juvenile Justice Center (Winter 2003).] 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." [Ward at 267.] SB 399 Page 12 4)Murder with Special Circumstances : As explained above, only a juvenile convicted of first-degree murder with special circumstances, as specified, may be sentenced to a term of LWOP. First-degree murder is defined as all murder perpetrated by means of a destructive device or explosive; a weapon of mass destruction; knowing use of ammunition designed primarily to penetrate metal or armor; poison; lying in wait; torture; or by any other kind of willful, deliberate, and premeditated killing; or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking; or any act punishable as a violent sex offense, as specified; or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death. (Penal Code Section 189.) One of the enumerated special circumstances must be shown in addition to the elements of first-degree murder in order to sentence a defendant to a term of LWOP. Special circumstances include intentional murder carried out for financial gain; the defendant has a previous conviction for murder; multiple charges of murder in the same case; murder committed by means of a destructive device; murder committed for the purpose of avoiding arrest or to perpetrate an escape from custody; murder of a peace officer, firefighter or federal law enforcement officer, as specified; murder for the purposes of silencing or retaliating against a witness; murder of a prosecutor, judge or juror in an attempt to prevent the performance of official duties; the murder is especially heinous, as specified; the defendant committed the murder while lying in wait; the victim was killed because of his or her race, color, religion, nationality, or county of origin; the murder was committed while the defendant was engaged in a felony, as specified; the murder involved torture; the victim was murdered by poison; the defendant committed the murder by discharging a firearm from vehicle, and; the defendant committed murder as an active participant in a criminal street gang and the murder was carried out for the benefit of the gang. [Penal Code Section 190.2(a)(1) to (22).] In 2005, the United States Supreme Court ruled persons who were under the age of 18 at the time of the offense are ineligible for the death penalty. [Roper vs. Simmons (2005) 543 U.S. SB 399 Page 13 551.] Penal Code Section 190.5 codified the holding of Roper and stated the penalty for a person 16 to 18 years of age convicted of first-degree murder with special circumstances is either LWOP or 25-years-to-life. [Penal Code Section 190.5(b).] 5)Legal Process and Counsel : This bill requires the petitioner to allege one of four factors in his or her effort to receive a hearing in which the court will determine whether the alternative sentence of 25-years-to-life is appropriate. Those factors include: (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 reconsidered; (c) the defendant committed the offense with at least one adult codefendant; or (d) 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 this or her classification level and facility using self-study, self-improvement or showing evidence of remorse. This bill does not provide for counsel to review documentation regarding the petitioner's file or provide guidance on the best way to proceed. Committee Counsel has recommended several clarifying amendments in order to provide more guidance to the petitioner and the court. First, (a) should be more specific: "The defendant was convicted of first degree murder where the felony murder special circumstance was found to be true pursuant to Penal Code Section 190.2(a)(17) and convicted as a principle under a theory of aiding and abetting as defined in Penal Code Section 31." As the section is currently written, it is unlikely the petitioner will know whether he or she was convicted as an aider and abettor, only that he or she was found guilty of the substantive offense. The only way to know whether the defendant was convicted as an aider or abettor is to examine the court transcript to determine if the aiding and abetting jury instruction was given or check the attorneys' files. It seems unlikely the defendant will be able to assess this from personal knowledge; only that he or she is not the actual killer. SB 399 Page 14 Second, (b) should also be more specific: "The defendant does not have juvenile felony adjudications for assault with a deadly weapon or force likely to produce great bodily harm, as defined in Penal Code Section 245(a)(1), 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." The current language states only that the petitioner has no felony assault convictions, but the general assault statute is a six-month misdemeanor. Also, the statute makes no reference to felony battery with serious bodily injury pursuant to Penal Code Section 243(d), which is often more serious conduct. Presumably, that code section is intentionally omitted. This provision may also be difficult for an unrepresented petitioner to determine. Often times, defendants are not familiar with the actual charge they are convicted of. Does it make more sense to simply state the defendant has no convictions involving violence? Also, "other crimes with significant potential for personal harm to victims" will be very difficult for a petitioner to quantify. Does it make more sense to simply assign counsel to eligible petitioners and allow those attorneys to review necessary documents and file appropriate petitions? Third, (c) seems to be designed to take into consideration petitioners who were unduly influenced by an older co-defendant. However, as currently written, the petitioner would be eligible for a hearing if he or she was 17 years of age at the time of the crime and the codefendant was 18 years of age. Does it make more sense to require an additional element of undue influence? 6)Arguments in Support : a) According to the Human Rights Watch , "As one of the world's leading independent organizations dedicated to protecting human rights Human Rights Watch seeks to protect the human right of all people. We stand with victims and activists to prevent discrimination, uphold political freedom, protect people from inhumane conduct, and bring offenders t justice. We oppose LWOP for youth in California because they are disproportionate (particularly so given recent scientific research), racially discriminatory, and a violation of international law. SB 399 Page 15 "If passed, S.B. 399 would provide review of life sentences imposed n people under age 18, after they have served between 10 and 25 years in prison. It would ensure that those who can prove they have reformed are given an opportunity to re-enter society as contributing citizens. "It is, however, a modest and narrowly focused piece of legislation. It would protect public safety , in that only those who merit resentencing will be resentenced. District attorneys will have input at every step of the process: they will still be able to argue at the time of sentencing for a youth to be sentenced to LWOP. They also will be able to respond when an offender files a petition for a new hearing. Finally, district attorneys will always be in court at a resentencing hearing and there, again, have the opportunity to argue that the LWOP sentence remains intact if they believe it appropriate. Victims and family members will also be present at the hearing. "If a judge finds an offender merits a lower sentence, that sentence will be 25-years-to-life. To be released, he or she will have to first serve a minimum of 25 years, and then also convince the Parole Board before ever being released. "Since 2004, Human Rights Watch has been analyzing the issue of LWOP sentences for youth. In the past four years, our research has culminated in several publications, including: When I Die, They'll Send Me Home (a 2008 report on LWOP for youth in California); Thrown Away (a 2005 report on LWOP for youth in Colorado); and The Rest of Their Lives (a 2005 report on LWOP for youth throughout the United States). Based on this research, we support SB 399 for three main reasons. "First, the sentence of LWOP was created for the worst criminal offenders, who are deemed to have no possibility of rehabilitation. In Roper v. Simmons, 543 U.S. 551, 561 (2005), the US Supreme Court found that the differences between youth and adults render suspect any conclusion that a youth falls among the worst offenders. Neuroscience reveals that the process of cognitive brain development, including the formation of impulse control and decision-making skills, continues into early adulthood - well beyond age 18. The fact that juveniles are still SB 399 Page 16 developing their identities and abilities to think and plan ahead, the Court found, means that even a heinous crime committed by a juvenile I not 'evidence of an irretrievably depraved character.' "Moreover in California, LWOP 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 LWOP for involvement in a murder did not actually kill the victim. Many were convicted of felony murder, or for aiding and abetting, because the acted as lookouts or participated in another felony during which the murder took place. 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 I which the youth acted with others, at least one codefendant was adult. Our survey responses revealed that in 56 percent of these cases, the adult received a more lenient sentence than the juvenile. "Second, we are deeply concerned that racial discrimination enters into the determination of which youth serve LWOP sentences, and which youth enjoy the possibility of release. California's sentencing of black youth to life without parole reveals the worst racial disparities of the nation. Black youth in California are serving LWOP sentences at a per capita rate that is 18 times that of white youth. Black youth arrested for murder in California are sentenced to LWOP at a rate that is 5.8 times that of white youth arrested for murder. "Third, international law requires youth under age 18 to be treated differently than adults when accused of a crime. Criminal systems must take in to account a child or youth's age, and promote the child's reintegration and constructive role in society. Life sentences are the antitheses of this mandate. In addition, international law prohibits LWOP sentences for those who commit crimes before age 18, a prohibition that is universally applied outside the United States. The United States is the only county in the world to sentence youth to LWOP, and there are no youth offenders serving LWOP 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 SB 399 Page 17 Political Rights and the Convention on the Elimination of all Forms of Racial Discrimination, have found the practice of sentencing youth to LWOP to be a clear violation of the United States' treaty obligations. "The sentencing of youth to life in prison California sends them an unequivocal message that they are beyond redemption. It also ignores the differences between youth and adults, differences we accept as a matter of common sense and which science fully recognizes. "Passage of this bill would help bring California into compliance with international law and standards of justice. The bill recognizes the youth are different from adults and requires opportunities for rehabilitation that reflect their unique ability to change." b) According to the American Academy of Child & Adolescent Psychiatry , "For the following reasons, special consideration for crimes committed prior to the age of 18 should be made. Adolescents are cognitively and emotionally less mature than adults. They are less able than adults to consider the consequences of their behavior, they are easily swayed by peers, and they may show poor judgment. We also know that teens that have been victims of abuse or have witnessed violence may show increased levels of emotional arousal and a tendency to overreact to perceived threats. Victims of child abuse and neglect are overrepresented among incarcerated juveniles. Studies of this population consistently demonstrate a high incidence of mental disorder, serious brain injuries, substance abuse, and learning disabilities, which may predispose to aggressive or violent behaviors. In many instances, these juveniles have not received adequate diagnostic assessments or interventions. National statistics also indicate that African-American and Hispanic youth are disproportionately diverted into juvenile correctional facilities and waited to the adult criminal court system. In California, youth as young as 14 years old are sentenced to LWOP. It is, in essence, a sentence to die in prison. SB 399 provides review of these cases after a youth offender (someone below the age of 18 at the time of the offense) has served a substantial amount of time in prison. It is an important piece of legislation because it protects public safety while at the same time recognizing that youth are different SB 399 Page 18 from adults. SB 399 holds youth accountable but also provides a chance for young offenders to prove they have changed. "SB 399 is fiscally-wise legislation. Every youth LWOP case costs the state around $40,000 per year of incarceration. For someone sentenced to life in prison at age 14-17 years old, that means decades of increasing incarceration costs for our state. Almost everyone agrees that not all of the youth offenders sentenced to LWOP in California should remain in prison. These are cases in which the youth was not the primary offender, was acting in a situation of severe duress, or committed the crime under the direction of an abusive adult. SB 399 would require careful examination of these cases. By focusing our resources on the cases that are a threat to public safety, SB 399 would save millions of dollars for California. "Sentencing adolescents to LWOP is out of step with the rest of the world and applied unfairly here in California. The philosophy of the juvenile court has always been rehabilitation. This goal is now made more attainable that ever by improved assessment tools, new effective community intervention programs, and treatment for underlying psychiatric disorders. However, such efforts are often undermined by the diversion of scarce dollars into incarceration, long sentences, and the death penalty rather than into earlier intervention efforts and strengthening the juvenile justice system so that it can effectively respond to dangerous and/or repeat youth offenders to ensure public safety. c) According to the California Catholic Conference , "Approximately 250 juveniles in California are serving this sentence. These children have been sentenced to LWOP for crimes committed at an age when they are not considered responsible to live away from their parents, drive, make decisions related to their education or medical treatment, vote, leave school or sign a contract. LWOP means absolutely no release, it also means minors are often left without access to program and rehabilitative services while in prison. While crimes that are committed by children under the age of 18 may be the same as those adults, these offenders are not adults and should not be automatically sentenced as adults. Young offenders will change SB 399 Page 19 significantly as they grow into adulthood. A child who is 14 years old today will be quite a different person when he or she is 40. It is right and appropriate for us to reassess that individual at that time and determine if he or she poses any risk to public safety. "The parable of the Prodigal Son (Luke 15) shows God's love for us and models how we should love one another. In spite of this younger son's reckless life and squandering of his inheritance, the father celebrates his return home, recognizing that his son has shown contrition and has changed his life. 'The lost that have been found are to be welcomed and celebrated, not resented and rejected.' " (Responsibility, Rehabilitation and Restoration: A Catholic Perspective on Crime and Criminal Justice, U.S. Catholic Bishops 2000.) 7)Arguments in Opposition : a) According to the California District Attorneys Association , "It should be made clear that the universe of inmates to which this bill would apply is comprised, almost exclusively, of persons who were convicted of first degree murder with one or more special circumstances and were 16 or 17 years old at the time of the offense. 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 the 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. "In addition to our general concern with the intent of this bill and its predecessors, we take issue with the specific process of this bill. SB 399 lists a number of criteria which must be satisfied by an inmate in order for him or her to enjoy the benefit of a potentially decreased sentence. 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 him or herself of education or SB 399 Page 20 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 criteria that could prove more pertinent, 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." b) According to Crime Victims United of California (CVUC) , "CVUC is highly concerned about the effect this proposal would have on victims' families. The retroactivity provisions of SB 399 alone are cause for opposition. Under SB 399, victims would not only endure the pain associated with their loss, but they would have to relive the pain over and over each time their offender would be eligible to have his sentence recalled and lowered to 25 years to life (at 10, 15, 20 and 24 years). This retroactivity is not at all fair to victims who sought justice and believed such was delivered when the LWOP sentence was provided. "Furthermore, judges currently have discretion regarding the sentencing decisions in these cases. If a judge determines that a sentence of LWOP is not justified for a defendant given his background or illness, the judge currently has the discretion to provide a lesser sentence of 25 years to life at the outset and reserve LWOP for cases that warrant such a sentence. In addition to the current judicial discretion, CVUC also notes that in order for a juvenile to obtain a sentence of LWOP, he or she must have committed a heinous, violent offense with special circumstances. The qualifying circumstances include intentional murder carried out for financial gain; multiple first or second degree murder convictions; murder to avoid arrest or make an escape; and many more heinous circumstances." c) According to the National Organization of Parents of Murdered Children (POMC), "POMC is extremely concerned about the effect this proposal would have on victims' families. The retroactivity provisions of SB 399 are a slap in the face to the deceased victims, surviving family members, and our Criminal Justice System. Under SB 399, victims would not only endure the pain associated with their loss, but they would have to relive that pain over SB 399 Page 21 and over each time their offender would be eligible to have his sentence recalled and lowered to 25 years to life (at 10, 15, 20 and 24 years). This retroactivity is not at all fair to victims who sought justice and believed such was delivered when the LWOP sentence was given after all the fact of the case were heard. "Furthermore, judges currently have discretion regarding the sentencing decisions in these cases. If a judge determines that a sentence of LWOP is not justified for a defendant given his background or illness, the judge currently has the discretion to provide a lesser sentence of 25 years to life at the outset and reserve LWOP for cases that warrant such a sentence. In addition to the currently have discretion, POMC also notes that in order for a juvenile to obtain a sentence of LWOP, he or she must have committed a heinous, violent offense with special circumstances. The qualifying special circumstances listed under the Penal Code are numerous-22 separate categories to be exact. The special circumstances include intentional murder carried out for financial gain; multiple first or second degree murder convictions; murder to avoid arrest or make an escape, and; many more heinous circumstances." 8)Prior Legislation : a) SB 999 (Yee), of the 2007-08 Legislative Session, would have provided that the penalty for first-degree murder by a defendant under the age of 18 shall be 25-years-to-life rather than LWOP. SB 999 failed passage on the Senate Floor. b) SB 1223 (Kuehl), of the 2004-05 Legislative Session, would have authorized a court to review the sentence of a person convicted as a minor in adult criminal court and sentenced to state prison after the person has either served 10 years or attained the age of 25. SB 1223 was held on the Assembly Committee on Appropriations' Suspense File. REGISTERED SUPPORT / OPPOSITION : Support Advancement Project SB 399 Page 22 American Academy of Child & Adolescent Psychiatry American Civil Liberties Union American Federation of State, County and Municipal Employees American Psychiatric Association Bar Association of San Francisco Books not Bars California Academy of Child & Adolescent Psychiatry California Attorneys for Criminal Justice California Catholic Conference California Church IMPACT California Correctional Peace Officers Association California Mental Health Directors Association California Psychiatric Association California Public Defenders Association California-Nevada Annual Conference of the United Methodist Church Center on Juvenile and Criminal Justice Chance Films Child Welfare League of America Children's Advocacy Institute Children's Defense Fund City of La Puente Council of Churches, Santa Clara County Diocese of Sacramento, Catholic Social Justice Office Diocese of San Bernardino, Office of Social Concerns Disability Rights California Disability Rights Legal Center Equal Justice Society Everychild Foundation Faith Communities for Families and Children Free Battered Women Friends Committee on Legislation Homeboy Industries Human Rights Watch John Burton Foundation for Children without Homes Juvenile Law Center Law Offices of the Alternate Public Defender for Los Angeles County League of Women Voters of California Legal Services for Children Legal Services for Prisoners with Children Loyola Law School Center for Juvenile Law and Policy Lutheran Office of Public Policy-California Mission Hospital NAACP Legal Defense and Education Fund SB 399 Page 23 National Alliance on Mental Illness National Center of Youth Law National Council on Crime and Delinquency Office of Restorative Justice-Archdiocese of Los Angeles Pacific Juvenile Defender Center Public Council Sisters of St. Louis, California Region Taxpayers for Improving Public Safety University of San Francisco University of Southern California Post Conviction Justice Project Youth Justice Coalition Youth Law Center 1,077 private citizens Opposition California District Attorneys Association California Peace Officers' Association California Police Chiefs Association California State Sheriffs' Association Crime Victims Alliance Crime Victims United National Organization of Parents of Murdered Children National Organization of Victims of 'Juvenile Lifers' Riverside County District Attorney's Office 6 private citizens Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744