BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
9
SB 9 (Yee)
As Introduced December 6, 2010
Hearing date: April 5, 2011
Penal Code
MK:mc
SENTENCING
HISTORY
Source: Human Rights Watch; National Center for Youth Law
Prior Legislation: SB 399 (Yee) - failed; Assembly Floor 2010
SB 999 (Yee) - 2008; died on the Senate floor
SB 1223 (Kuehl) - 2004; died on Assembly Suspense
Support: Advancement Project; American Civil Liberties Union;
American Federation of State, County and Municipal
Employees; American Probation and Parole Association;
American Psychiatric Association; Bar Association of
San Francisco; Books Not Bars, Ella Baker Center for
Human Rights; Buddhist Peace Fellowship; California
Attorneys for Criminal Justice; California Catholic
Conference; California Church IMPACT; California
Coalition for Women Prisoners; California Communities
United Institute; California National Organization for
Women; California Public Defenders Association;
California Psychiatric Association; Californians
United for Responsible Budget; Campaign for the Fair
Sentencing of Youth; Center for Juvenile Law and
Policy, Loyola Law School; Center on Juvenile &
Criminal Justice; Christy L. Fraser, A Law Corporation
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- Minor Differences, a film; Child Welfare League of
America; Children's Advocacy Institute; Children's
Defense Fund; Commonweal; Disability Rights Legal
Center; Everychild Foundation (Los Angeles); Equal
Justice Initiative; Feminist Majority and National
Center for Women and Policing; Friends Committee on
Legislation of California; Hayward Burns Institute;
Healing Justice Coalition; Human Rights Advocates;
John Burton Foundation for Children Without Homes;
Just Detention Institute; Justice Now; Justice Policy
Institute; Juvenile Law Center; Law Office of the
Alternate Public Defender for Los Angeles County;
Legal Defense Fund; Legal Services for Children; Legal
Services for Prisoners with Children; Life Support
Alliance,
Rancho Cordova; Lutheran Office of Public Policy -
California; NAACP Legal Defense and Educational Fund;
National African American Drug Policy Coalition;
National Juvenile Justice Network; National Offices of
the United Church of Christ; Office of Restorative
Justice of the Archdiocese of Los Angeles; Pacific
Juvenile Defender Center; Prison Law Office;
Progressive Christians Uniting; Public Counsel Law
Center; Sacred Heart Church, Rancho Cucamonga;
Sentencing Project; Sisters of St. Joseph of Orange;
St. Mark Presbyterian Church, Newport Beach, Peace and
Justice Commission; United Church of Christ National
Justice and Witness Ministries; United Methodist
Church, California-Nevada Conference; University of
San Francisco School of Law, Center for Law and Global
Justice; University of Southern California, Gould
School of Law, The Post-Conviction Justice Project;
Youth Justice Coalition; Youth Law Center; Dolores
Mission Catholic Church, Los Angeles - 7 individuals;
Professors from law schools and universities
throughout California and the United States - 150
individuals; thousands of other individuals
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Opposition:Association for Los Angeles Deputy Sheriffs;
California District Attorneys Association; Crime
Victims United of California; Crime Victims Action
Alliance; Los Angeles Police Protective League;
National Organization of Victims of Juvenile Lifers;
Office of the District Attorney of Sacramento County,
Jan Scully; Peace Officers Research Association of
California
KEY ISSUE
SHOULD 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 BE PERMITTED TO SUBMIT A PETITION
FOR RECALL AND RE-SENTENCING TO THE SENTENCING COURT?
PURPOSE
The purpose of this bill is to authorize 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.
Under current law , minors age 14 and older can be subject to
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
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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).
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
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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 (LWOP) 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 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, 2012, shall not be permitted to submit a petition for
recall and re-sentencing pursuant to this subdivision until they
have served 15 years.
This bill provides 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:
Those defendants who entered custody prior to July 1,
1993, may submit a petition in 2012.
Those defendants who entered custody on or after July 1,
1993, but prior to January 1, 1994, may submit a petition
in 2013.
Those defendants who entered custody on or after January
1, 1994, but prior to July 1, 1994, may submit a petition
in 2014.
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Those defendants who entered custody on or after July 1,
1994, but prior to January 1, 1995, may submit a petition
in 2015.
This bill provides 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.
This bill provides that the petition shall include the
defendant's statement that he or she was under 18 years of age
at the time of the crime, was sentenced to LWOP, and that one of
the following was true:
The defendant was convicted pursuant to felony murder or
aiding and abetting murder.
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.
The defendant committed the offense with at least one
adult codefendant.
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.
This bill 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 him or her that the matter cannot be considered without
the missing information.
This bill states a reply to the petition, if any, shall be filed
with the court within 60 days of the date on which the
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prosecuting agency is served with the motion, unless a
continuance is granted for good cause.
This bill 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.
This bill states that the factors that the court may consider
when determining whether to recall and resentence include, but
are not limited to:
The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
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.
The defendant committed the offense with at least one
adult codefendant.
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.
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.
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
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her classification level and facility, using self-study
for self-improvement, or showing evidence of remorse.
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.
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.
This bill 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.
This bill 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.
This bill 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, 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.
This bill 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.
This bill states that the provisions of this bill shall apply
retroactively.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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According to the author:
Under existing California law, youth under the age of 18
years old are sentenced to life in prison without the
possibility of parole. There is no system of review for
these cases. The use of this sentence for juveniles 1)
ignores neuroscience and well-accepted understandings of
adolescent development; 2) is a practice that is in
violation of international law and out of step with
international norms; and 3) in California, it is a
policy that is applied unjustly. Youth are different
from adults. While they should be held accountable for
their actions, even those who commit serious crimes
should have the opportunity to prove they have matured
and changed.
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
Division of Juvenile Justice (DJJ), 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%.<1> 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.<2>
3. Trying Juveniles in Adult Court
---------------------------
<1> See online Statistical Briefing Book, Juveniles in Court
(http://ojjdp.ncjrs.org/ojstatbb/njcda/pdf/jcs2005.pdf.)
<2> See online Juvenile Justice in California 2007
(http://ag.ca.gov/cjsc/publications/misc/jj07/preface.pdf.)
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Throughout the 1990s, California's juvenile law was altered to
expand the scope of juvenile offenders who would be eligible for
prosecution in adult criminal court.<3> 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.<4>
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
----------------------
<3> 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).
<4> 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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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.<5>
4. 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.<6> 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
----------------------
<5> 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).)
<6> 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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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
incapacity.<7>
Researchers in the science of human development, however,
---------------------------
<7> Id.
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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.<8>
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.<9>
5. Murder with Special Circumstances
---------------------------
<8> 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.
<9> Ward, supra, note 6, at 267 (footnotes omitted).
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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 § 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 country 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 § 190.2(a)(1) to
(22).)
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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. 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 §190.5(b).)
6. Process to Recall Sentence
This bill sets up a process for a person who was sentenced as a
juvenile to LWOP to petition the sentencing court to recall the
sentence. The person must allege specified facts in the
petition and serve the petition on the agency that prosecuted
the case. If the court finds the facts to be true by
preponderance, the court shall order a hearing to consider the
recall of the sentence. Victim's family members retain the
right to be heard in the hearing. The bill specifies what the
court shall consider when determining whether to recall the
sentence. The court has the discretion to recall and
re-sentence the defendant in the same manner as the original
sentencing court. If the petition is denied, the person can
re-petition once every five years until their 25th year of
custody.
7. Support
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Human Rights Watch supports this "modest and narrowly focused
piece of legislation" stating:
First, the sentence of life without parole 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 developing their identities and
abilities to think and plan ahead, the Court found,
means that even a heinous crime committed by a juvenile
is not "evidence of an irretrievably depraved
character."
Moreover in California, life without parole is not
reserved for youth who commit the worst crimes or who
show signs of being irredeemable criminals. An
estimated 45 percent of California youth sentenced to
life without parole for involvement in murder did not
actually kill the victim. Many were convicted of felony
murder or for aiding and abetting because they acted as
lookouts or participated in another felony during which
the murder unexpected occurred. In addition, in many
cases California has treated the youth worse than
similarly-situated adult offenders.
****
Second, we are deeply concerned that racial
discrimination enters into the determination of which
youth serve life without parole 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 any state in the nation.
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****
Third, international law requires youth under age 18 to
be treated differently than adults when accused of a
crime. Criminal systems must take into account a child
or youth's age, and promote the child's reintegration
and constructive role in society. Life sentences are the
antithesis of this mandate.
****
Passage of this bill would help bring California into
compliance with international law and standards of
justice. The bill recognizes that youth are different
from adults and requires opportunities for
rehabilitation that reflect their unique ability to
change.
8. Opposition
The California District Attorneys Association opposes this bill
stating:
To be clear, 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 who 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 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.
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In addition to our general concern with the intent of
this bill, we take issue with the specific sentence
recall process contained therein. Under one scenario
contemplated by the measure, a petitioner found by the
court to have been under the age of 18 at the time of
the offense that resulted in his or her LWOP sentence
could qualify for a resentencing hearing solely on the
basis that the petitioner has performed acts that tend
to indicate rehabilitation, or the potential for
rehabilitation, or has shown evidence of remorse.
Creating the potential for an LWOP sentence to be
reduced by setting such a low standard for eligibility
is an affront to justice and disrespectful of the
victims of these crimes.
Proponents are already pointing to Governor
Schwarzenegger's recent commutation of Sara Kruzan's
LWOP sentence for first degree murder during a robbery
to 25 years to life as evidence that SB 9 should be
enacted. We would argue however, that this grant of
clemency only hurts the supporters' case. The current
process, which generally affords criminal defendants the
right to appeal, file a writ of habeas corpus, and
ultimately seek executive clemency, and the Governor's
action relative to the latter rebut the proponents'
assertion that the system requires alteration.
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