BILL ANALYSIS Ó
SB 9
Page 1
Date of Hearing: July 5, 2011
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 9 (Yee) - As Amended: May 27, 2011
REVISED
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 resentencing to the sentencing
court, as specified. Specifically, this bill :
1)Provides 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. The court shall set forth on the record the facts and
reasons for imposing the upper or lower term.
2)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 to LWOP has served at
least 15 years of that sentence, the defendant may submit to
the sentencing court a petition for recall and re-sentencing,
provided that defendants who entered custody on or after
January 1, 1992, but prior to July 1, 2002, shall be permitted
to submit a petition for recall and resentencing only as
follows:
a) Those defendants who entered custody prior to January 1,
1994 may submit a petition in the 2011-12 fiscal year;
b) Those defendants who entered custody on or after January
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1, 1994, but prior to January 1, 1995, may submit a
petition in the 2012-13 fiscal year;
c) Those defendants who entered custody on or after January
1, 1995, but prior to January 1, 1996. And those who
entered custody on or after January 1, 2000, but prior to
January 1, 2001, may submit a petition in the 2013-14
fiscal year;
d) Those defendants who entered custody on or after January
1, 1996, but prior to July 1, 1996, and those who entered
custody on or after January 1, 2001, but prior to May 1,
2001, may submit a petition in the 2014-15 fiscal year;
e) Those defendants who entered custody on or after July 1,
1996, but prior to January 1, 1997, and those who entered
custody on or after May 1, 2001, but prior to January 1,
2002, may submit a petition in the 2015-16 fiscal year;
f) Those defendants who entered custody on or after January
1, 1997, but prior to July 1, 1997, and those who entered
custody on or after January 1, 2002, but prior to July 1,
2002, may submit a petition in the 2016-17 fiscal year;
g) Those defendants who entered custody on or after July 1,
1997, but prior to January 1, 1998, may submit a petition
in the 2017-18 fiscal year;
h) Those defendants who entered custody on or after January
1, 1998, but prior to July 1, 1998, may submit a petition
in the 2018-19 fiscal year;
i) Those defendants who entered custody on or after July 1,
1998, but prior to January 1, 1999, may submit a petition
in the 2019-20 fiscal year;
j) Those defendants who entered custody on or after January
1, 1999, but prior to July 1, 1999, may submit a petition
in the 2020-21 fiscal year; and,
aa)Those defendants who entered custody on or after July 1,
1999, but prior to January 1, 2000, may submit a petition
in the 2021-22 fiscal year.
3)Provides that if recall and resentencing is not granted under
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a petition filed by a defendant who entered custody on or
after January 1, 1992, but prior to January 1, 2000, the
defendant may submit a second and final petition after having
served 24 years. The final petition may be submitted, and the
response to that petition shall be determined, during the 25th
year of the defendant's sentence.
4)Provides that if recall and resentencing is not granted under
a petition filed by a defendant who entered custody on or
after January 1, 2000, but prior to July 1, 2002, the
defendant may submit another petition to the sentencing court
when the defendant has been committed to the custody of the
Department of Corrections and Rehabilitation for at least 20
years. If recall and resentencing is not granted under that
petition, the defendant may file another petition after having
served 24 years. The final petition may be submitted and the
response to that petition shall be determined during the 25th
year of the defendant's sentence.
5)Requires the petition to include a statement from the
defendant that he or she was under the age of 18 at the time
of the crime and was sentenced to LWOP, describe his or her
remorse and work towards rehabilitation, and that one of the
following is true:
a) The defendant was convicted of 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 performed acts that tend to indicate
rehabilitation or the potential for rehabilitation,
including, but not limited to, availing himself or herself
or 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 showing evidence of remorse.
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6)Requires the original petition to be filed with the sentencing
court and a copy of the petition to be served on the agency
that prosecuted the case.
7)Provides that if any of the information required to be
included in the petition or if proof of service on the
prosecuting agency is not provided, the court shall return the
petition to the defendant and advise the defendant that the
matter cannot be considered without the missing information.
8)States that a reply to the petition, if any, shall be filed
with the court within 60 days of the date on which the
prosecuting agency was served with the petition, unless a
continuance is granted for good cause.
9)Provides that if the court finds by a preponderance of the
evidence that the statements in the petition are true, the
court shall hold a hearing to consider whether to recall the
sentence and commitment previously ordered and to resentence
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.
10)Provides factors the court may consider when determining
whether to recall and resentence include, but are not limited
to, the following:
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.
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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
self-improvement, or showing evidence 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 involved with crime.
h) 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.
11)States that the court shall have 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.
12)Mandates the court, in exercising its discretion, must
consider the criteria listed above. Victim, 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.
13)States that if the sentence is not recalled, the defendant
may submit another petition for recall and resentencing to the
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sentencing court when the defendant has been committed to the
custody of the department for at least 20 years; and if not
granted after 20 years, the defendant may file another
petition after having served 24 years. The final petition may
be submitted, and the response to that petition shall be
determined, during the 25th year of the defendant's sentence.
14)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.
15)States that this bill shall have retroactive application.
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. ÝPenal Code Section
1170(a)(1).]
2)States 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
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
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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 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. The court shall advise the defendant that he or
she shall serve a period of parole and order the defendant to
report to the parole office closest to the defendant's last
legal residence, unless the in-custody credits equal the total
sentence, including both confinement time and the period of
parole. The sentence shall be deemed a separate prior prison
term under laws related to prior prison terms, and a copy of
the judgment and other necessary documentation shall be
forwarded to the secretary. ÝPenal Code Section 1170(a)(3).]
3)States that when a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the choice of
the appropriate term shall rest within the sound discretion of
the court. 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. In determining the
appropriate term, the court may consider the record in the
case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03 of the Penal
Code, 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 select the term which, in the court's discretion, best
serves the interests of justice. The court shall set forth on
the record the reasons for imposing the term selected and 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. ÝPenal 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
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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.
ÝPenal Code Section 1170(c).]
5)States that when a defendant subject to existing law related
to sentencing has been sentenced to be imprisoned 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 resentence 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 resentence 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. ÝPenal Code Section 1170(d).]
6)States that 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 existing law 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
confinement in the state prison for life without the
possibility of parole or, at the discretion of the court, 25
years to life. ÝPenal Code Section 190.5(b).]
7)States that any person who is alleged, when he or she was 14
years of age or older, to have committed murder or one of the
specified sex offenses, shall be prosecuted under the general
law in a court of criminal jurisdiction. ÝWelfare &
Institution Code (WIC) Section 602(b).]
8)States that with regard to a minor alleged to be a person
described provisions of law related to juvenile delinquency by
reason of the violation, when he or she was 14 years of age or
older, of any of the offenses listed existing law, upon motion
of the petitioner made prior to the attachment of jeopardy the
court shall cause the probation officer to investigate and
submit a report on the behavioral patterns and social history
of the minor being considered for a determination of
unfitness. Following submission and consideration of the
report, and of any other relevant evidence that the petitioner
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or the minor may wish to submit, the minor shall be presumed
to be not a fit and proper subject to be dealt with under the
juvenile court law unless the juvenile court concludes, based
upon evidence, which evidence may be of extenuating or
mitigating circumstances, that the minor would be amenable to
the care, treatment, and training program available through
the facilities of the juvenile court based upon an evaluation
of each of the following criteria:
a) The degree of criminal sophistication exhibited by the
minor.
b) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction.
c) The minor's previous delinquent history.
d) Success of previous attempts by the juvenile court to
rehabilitate the minor.
e) The circumstances and gravity of the offenses alleged in
the petition to have been committed by the minor. ÝWIC
Section 707(c).]
9)Provides that a minor within the jurisdiction of the juvenile
delinquency court may be sentenced to the Department of
Juvenile Facilities or tried as an adult, as specified, if he
or she has been charged with one of the following: murder;
arson, as specified; robbery; rape with force, violence, or
threat of great bodily harm; sodomy by force, violence,
duress, menace, or threat of great bodily harm; a lewd or
lascivious act on a person under the age of 14; oral
copulation by force, violence, duress, menace, or threat of
great bodily harm; forcible sexual penetration, as specified;
kidnapping for ransom; kidnapping for purposes of robbery;
kidnapping with bodily harm; attempted murder; assault with a
firearm or destructive device; assault by any means of force
likely to produce great bodily injury; discharge of a firearm
into an inhabited or occupied building; a specified violent
crime against a person over the age of 60; use of a firearm in
a crime, as specified; a felony offense in which the minor
personally used a weapon specified in existing law; a felony
offense of intimidating or dissuading a witness;
manufacturing, compounding, or selling one-half ounce or more
of a salt or solution of a depressant listed as a controlled
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substance; a violent felony or gang crime, as specified;
escape, by the use of force or violence, from a county
juvenile hall, home, ranch, camp, or forestry camp, as
specified, if great bodily injury is intentionally inflicted
upon an employee of the juvenile facility during the
commission of the escape; torture; aggravated mayhem;
carjacking, while armed with a dangerous or deadly weapon;
kidnapping for purposes of sexual assault; kidnapping during
the commission of a carjacking; discharging a firearm into a
vehicle, as specified, or; voluntary manslaughter. ÝWIC
Section 707(b)(1) to (28).]
10)Allows a prosecuting agency to file an accusatory pleading in
a court of criminal jurisdiction, without a motion or hearing,
against a minor, who was 16 years of age or older at the time
of committing one of the enumerated offenses listed above, if
the minor has previously been found to be a ward of juvenile
court for a violation of a felony offense when he or she was
14 years of age or older. ÝWIC Section 707(d)(3).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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)Background : According to the background provided by the
author, "Sentencing juveniles to life in prison without parole
ignores the fact that young people's brains and identities are
still developing. The sentence of life without parole is a
sentence intended for the worst of the worst criminals and
crimes. As such, it is inappropriate for juveniles. People
under the age of 18 have a unique capacity to change and
rehabilitate. The United States Supreme Court recognized that
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youth are different from adults when it noted that three
general differences between juveniles under 18 and adults
demonstrate that juvenile offenders cannot be reliably
classified among the worst offenders: 1) juveniles'
susceptibility to immature and irresponsible behavior means
their irresponsible conduct is not as morally reprehensible as
that of an adult; 2) juvenile's own vulnerability and
comparative lack of control over their immediate surroundings
mean juveniles have a greater claim than adults to be forgiven
for failing to escape negative influences in their whole
environment; and 3) the reality that juveniles still struggle
to define their identity means it is less supportable to
conclude that even a heinous crime committed by a juvenile is
evidence of irretrievably depraved character.
"The sentence of life without parole is imposed in an unjust
manner in California. California has one of the worst records
in the nation for racial disparity in the imposition of life
without parole for juveniles. African American youth are
sentenced to life without parole at over 18 times the rate of
white youth. Hispanic youth are sentenced to life without
parole five times more often than white youth.
"In a research relying on multiple sources, Human Rights Watch
examined California juvenile life without parole cases. It
estimates that 45 percent of youth offenders serving life
without parole were convicted of murder but were not the ones
to actually commit the murder. This is possible under
California's "felony murder" statute, a law which holds
participants in a felony responsible for a murder that
happens, even if they did not plan or expect a murder to
occur.
"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. 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.
The power of peer influence decreases with age, and what a
youth does in a group is often quite different than the
choices he or she will make when older. Unsurprisingly, over
75% of the youth sentenced to life without parole acted within
a group at the time of their crime.
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"In addition, many California youth sentenced to life without
parole were acting under the influence of an adult. In nearly
70 percent of cases reported to Human Rights Watch in which
the youth was not acting alone, at least one codefendant was
an adult. Survey responses reveal that in 56 percent of those
cases the adult received a lower sentence than the juvenile.
"In addition, in a national study an estimated 59% of youth
sentenced to life without parole are first-time offenders with
no criminal history.
"There is no evidence that the use of life without parole
sentences deter crime. The US Supreme Court Supreme Court
stated, 'As for deterrence, it is unclear whether the death
penalty has a significant or even measurable deterrent effect
on juveniles?' If the death penalty has no deterrent value,
it is difficult to imagine that a lesser penalty of life
without parole would have more of a deterrent value. With
regard to juvenile life without parole, the evidence indicates
that life without parole sentences provide no deterrent
effect. Additionally, it is now recognized that the
adolescent brain is still developing an ability to comprehend
consequences and control impulses. This makes it all the less
likely that the specter of a harsh sentence will affect
juvenile's behavior.
"SB 9 will add guidelines to the existing Penal Code that
currently permits resentencing. Senate Bill 9 would allow a
person who was under 18 years of age at the time of committing
an offense for which the person was sentenced to life without
the possibility of parole to, after serving between 15 and 25
years in prison, petition the court for re-sentencing. If a
re-sentencing hearing is granted, the court would have the
discretion whether to re-sentence the petitioner to a lower
sentence or let the juvenile life without parole sentence
remain. If granted a lower sentence, the petitioner must
still serve the minimum sentence and obtain approval of the
parole board and the Governor prior to parole. Even if the
youth receives a resentencing hearing, there is no guarantee
he or she would receive a new sentence, or achieve parole if
resentenced.
"Recognizing that teenagers are still maturing at the time of
their original sentencing, and recognizing that our legal
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process sometimes results in unfair sentences, this 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."
3)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." ÝSymposium: Children, Crime, and
Consequences: Juvenile Justice In America: Punishment,
Proportionality, and Jurisdictional Transfer of Adolescent
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
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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. ÝSee 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]
4)Murder with Special Circumstances : Only a juvenile convicted
of first-degree murder with special circumstances, as
specified, may be sentenced to a term of LWOP or, in the
alternative, a term of years sentence of 25-years-to-life.
ÝSee Penal Code Section 190.5(b), Graham v. Florida (2010) 130
S.Ct. 2011.] 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
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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. ÝPenal Code Section 190.2(a)(1) to (22).]
5)LWOP: Review of Existing Case Law : In 2005, the United
States Supreme Court ruled that persons who were under the age
of 18 at the time of the offense are ineligible for the death
penalty. ÝRoper 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. ÝPenal Code Section 190.5(b).]
In 2010, the United States Supreme Court ruled that it is
unconstitutional to sentence a youth who did not commit
homicide to LWOP. ÝSee Graham, supra, 130 S.Ct. 2011.] The
Court discussed the fundamental differences between a juvenile
and adult offender and reasserted its findings from the Roper
case, supra, that juveniles have lessened culpability than
adults due to those differences. The Court stated that "life
without parole is an especially harsh punishment for a
juvenile," noting that a juvenile offender "will on average
serve more years and a greater percentage of his life in
prison than an adult offender." ÝGraham, supra, 130 S.Ct. at
2016.] However, the Court stressed that "while the Eighth
Amendment forbids a State from imposing a life without parole
sentence on a juvenile nonhomicide offender, it does not
require the State to release that offender during his natural
life. Those who commit truly horrifying crimes as juveniles
may turn out to be irredeemable, and thus deserving of
incarceration for the duration of their lives. The Eighth
Amendment does not foreclose the possibility that persons
convicted of nonhomicide crimes committed before adulthood
will remain behind bars for life. It does forbid States from
making the judgment at the outset that those offenders never
will be fit to reenter society." (Id. at pg. 2031.)
In a recent case, the California Fourth District Court of Appeal
ruled that a juvenile's term of years sentence for a
nonhomicide offense is cruel and unusual punishment where the
sentence amounts to life in prison without parole. (People v.
J.I.A. (June 8, 2011) __ Cal.App.4th __ Ý11 D.A.R. 8327].)
Citing the Graham case, supra, the Court stated that in
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sentencing a juvenile under the age of 16 for a nonhomicide
offense, the State must give the juvenile "some meaningful
opportunity to obtain release based on demonstrated maturity
and rehabilitation." (Id. at pg. 12.) The Court found that
while the juvenile did not receive a sentence of LWOP, "it is
a de facto LWOP sentence because he is not eligible for parole
until about the time he is expected to die. The trial court's
sentence effectively deprives J.A. of any meaningful
opportunity to obtain release regardless of his rehabilitative
efforts while incarcerated." (Id. at pg. 17.)
6)Arguments in Support :
a) According to the University of San Francisco School of
Law's Center for Global Law & Justice , "Youth who commit
crimes should be held accountable. However, when
California condemns a young person to a life behind bars,
it utterly disregards the human capacity for rehabilitation
and ignores the very real physical and psychological
differences between children and adults recognized by the
world over. Punishment should reflect the capacity of
young people to change and mature. SB 9 would ensure that
youth offenders would face severe punishment for their
crimes, but they would have the chance to work toward
parole if they can show they have rehabilitated."
b) According to the Pacific Juvenile Defender Center , "By
creating a court review process to review life without
parole for crimes committed by minor children, SB 9
represents a more humane, sensible, and proportionate
sentencing approach. Child offenders would still face
severe punishment and lengthy prison terms for committing
horrible crimes. However, SB 9 would offer an opportunity
for redemption. The bill will motivate child offenders to
seek rehabilitation since they would be given an
opportunity to ask for 25 years to life after serving at
least 10 years of their commitment."
c) According to Books Not Bars , "The United States is the
only country in the world that imposes life without parole
on youth under the age of 18 years old. This extreme
punishment is a violation of international law and
fundamental human rights. In California, racial
disparities in the use of this sentence are among the worst
in the county: black youth are sentenced to life without
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parole at a per capita rate that is 18 times that for white
youth. Finally, adult codefendants charged in the same
cases are getting lower sentences, and the opportunity for
parole. In 56% of the cases in which a youth sentenced to
life without parole had an adult codefendant, the adult
received a lesser sentence than the youth. Sentencing
adolescents to life without parole is outdated, out of step
with the rest of the world, and unfair in its application.
California should lead the nation in addressing these
inequities. We therefore urge your support for this
important legislation."
7)Arguments in Opposition :
a) According to the California Narcotics Officers'
Association and the California Police Chiefs Association ,
"Under current law, both the prosecutor and the court have
the ability to make an independent determination as to
whether to try the defendant as an adult in the first place
and whether to seek special circumstance finding, at all.
The seeking of a special circumstance finding must be
proven in an adversarial process with the ultimate decision
being made by a jury. Even after that determination is
made, the court has ultimate authority to impose a sentence
of life with the possibility of parole if the court
believes that to be the appropriate sentence. And finally,
the Governor retains his/her power of commutation. In
other words, those who are sentenced to life without the
possibility of parole are those who have committed the most
heinous crimes with a spirit of total remorselessness. To
add yet another cycle of procedures where families of crime
victims must continuously revisit the murders of their lost
ones is to pile cruelty on top of anguish."
b) According to the California District Attorneys
Association , "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
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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."
8)Prior Legislation :
a) SB 399 (Yee), of the 2009-10 Legislative Session, was
substantially similar to this bill. SB 399 failed passage
on Assembly Floor.
b) SB 999 (Yee), of the 2007-08 Legislative Session,
eliminates the LWOP sentence thus making the sentence for
first-degree murder with special circumstances by a
defendant under 18 years of age 25-years-to-life. SB 999
failed passage on Senate Floor.
c) SB 1223 (Kuehl), of the 2003-04 Legislative Session,
authorizes 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 failed passage in
Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Human Rights Watch, Children's Rights Division (Sponsor)
Advancement Project
Alliance for a Better District 6
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 (An Ella Baker Center for Human Rights Campaign)
Buddhist Peace Fellowship
California Attorneys for Criminal Justice
California Catholic Conference, Inc.
California Church Impact
California Coalition for Women Prisoners
California Committees United Institute
California Mental Health Directors Association
California National Organization for Women
California Psychiatric Association
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California Public Defenders Association
California-Nevada Annual Conference of the United Methodist
Church
Californians United for a Responsible Budget
Campaign for the Fair Sentencing of Youth
Center for Global Law & Justice at University of San Francisco
School of Law
Center for Juvenile Law and Policy at Loyola Law School
Child Welfare League of America
Children's Advocacy Institute
Children's Defense Fund
Commonweal
Disability Rights California
Disability Rights Legal Center
District Attorney, City and County of San Francisco
Equal Justice Initiative
Everychild Foundation
Feminist Majority & National Center for Women and Policing
Friends Committee on Legislation of California
Healing Justice Coalition
Human Rights Advocates
International Community Corrections Association
John Burton Foundation for Children Without Homes
Just Detention International
Justice Now
Justice Policy Institute
Juvenile Law Center
Law Offices of the Los Angeles County Alternate Public Defender
Legal Services for Children
Legal Services for Prisoners with Children
Life Support Alliance
Los Angeles County Democratic Party
Lutheran Office of Public Policy - California
NAACP Legal Defense and Education Fund, Inc.
National African American Drug Policy Coalition, Inc.
National Alliance on Mental Illness California
National Center for Lesbian Rights
National Center for Youth Law
Office of Restorative Justice of the Archdiocese of Los Angeles
Pacific Juvenile Defender Center
Post-Conviction Law Justice Project at University of Southern
California Gould School of Law
Prison Fellowship
Prison Law Office
Progressive Christians Uniting
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Public Counsel Law Center
Sacramento Lorenzo Patiflo League of United Latin American
Citizens Council
Sisters of St. Joseph of Orange
Southern Poverty Law Center
St. Mark Presbyterian Church, Peace and Justice Commission
The Sentencing Project
United Church of Christ
W. Haywood Burns Institute
Youth Justice Coalition
Youth Law Center
1,879 private individuals
Opposition
California Association of Highway Patrolmen
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California State Sheriffs Association
Crime Victims Action Alliance
Crime Victims United of California
Los Angeles County District Attorney's Office
Los Angeles Police Protective League
Peace Officers Research Association of California
Sacramento County District Attorney's Office
One private individual
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744