BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 9
                                                                  Page  1

          Date of Hearing:   August 17, 2011

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                      SB 9 (Yee) - As Amended:  August 15, 2011 

          Policy Committee:                             Public 
          SafetyVote:5-2

          Urgency:     No                   State Mandated Local Program: 
          No     Reimbursable:               

           SUMMARY  

          This bill authorizes 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 (LWOP) to 
          petition the court for re-sentencing, 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 (only 
            first-degree murder with special circumstances carries a LWOP 
            sentence for juveniles in California ) for which the defendant 
            was sentenced to LWOP, has served at least 15 years, the 
            defendant may submit to the sentencing court a petition for 
            recall and re-sentencing. 


          2)Requires the petition for hearing to include the defendant's 
            statement that one of the following is true: 


             a)   The defendant was convicted pursuant to felony murder or 
               aiding and abetting murder provisions.


             b)   The defendant has no juvenile felony adjudications for 
               assault or other felonies with a significant potential for 
               personal harm to victims prior to the murder conviction.


             c)   The defendant committed the offense with at least one 
               adult co-defendant.








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             d)   The defendant has performed acts that indicate potential 
               for rehabilitation, including participating in educational, 
               or vocational programs and showing evidence of remorse.


          3)Provides 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 
            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 is not greater than 
            the original sentence. (This means that  if  the court opts to 
            re-sentence, the maximum sentence would be 25-years-to-life, 
            with a 25-year minimum, though priors and circumstances could 
            increase the 25-year minimum, and the offender would still 
            require approval of the parole board before release.) 


          4)Specifies that victims, or family members if the victim is 
            deceased, retain the right to participate in the hearing. 


          5)Specifies the factors the court may consider when determining 
            whether to recall and re-sentence include, but are not limited 
            to:  


             a)   The defendant was convicted pursuant to felony murder or 
               aiding and abetting murder.


             b)   The defendant committed the murder with at least one 
               adult co-defendant.


             c)   The defendant has no juvenile felony adjudications for 
               assault or other felonies with a significant potential for 
               personal harm to victims prior to the murder conviction. 


             d)   Prior to the murder conviction, the defendant had 
               insufficient adult support or supervision and suffered from 
               psychological or physical trauma. 








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             e)   The defendant suffers from cognitive limitations due to 
               mental illness, developmental disabilities, or other 
               factors.  


             f)   The defendant has performed acts that indicate the 
               potential for rehabilitation, including participating in 
               rehabilitative, educational, or vocational programs. 


             g)   The defendant has had no disciplinary actions for 
               violent activities in the last five years.  


          6)States that if the sentence is not recalled, the defendant may 
            submit another petition for re-sentencing to the court when 
            the defendant has been committed to the custody of the 
            department for at least 20 years. If not granted at this 
            second hearing, the defendant may submit a final petition 
            after 24 years.  


          7)Applies retroactively. 


           FISCAL EFFECT  

          1)Minor absorbable annual GF costs to the state trial courts, 
            likely less than $20,000 per year, to review and respond to 
            re-sentencing petitions, and to hold re-sentencing hearings 
            for petitions deemed eligible. This assumes an average of 
            about 20 petitions per year, and an average of about five 
            hearings, at a cost of about $2,000 per hearing.  

            These costs should be offset to a degree by an accompanying 
            reduction in writs of Habeas Corpus, by which inmates 
            challenge their convictions and /or sentences.  

          2)Potentially moderate annual out-year GF savings to the extent 
            inmates are re-sentenced from LWOP to life with the 
            possibility of parole. For example, if two inmates per year 
            are re-sentenced annually and end up serving 30 years rather 
            than life, with the first re-sentenced inmates leaving prison 








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            in 2027, the annual savings of about $190,000 per ward, will 
            increase annually, reaching about $7 million in 2047.  

           COMMENTS  

           1)Rationale  . The authors and supporters contend sentencing 
            minors to die in prison is barbaric, counter to principles of 
            cognitive and emotional development in minors, and all but 
            unprecedented in rest of the world. This bill, rather than 
            prohibiting LWOP for minors, simply authorizes a judicial 
            process for reviewing and re-sentencing. Re-sentencing, should 
            it occur, would result in a life sentence, but one with the 
            possibility of parole, based on the evaluation of the Board of 
            Parole Hearings. Offenders would still serve decades in 
            prison.  
            The author states the U.S. is the only country in the world 
            that sentences minors to LWOP. The author further contends 
            LWOP for minors provides no deterrent effect on crime and is 
            applied disproportionately to persons of color.  

            According to the author, while LWOP for minors should be 
            reserved for the most heinous criminals, according to Human 
            Rights Watch analyses, 45% of the minors sentenced to LWOP did 
            not personally commit murder, but were convicted of felony 
            murder - as accomplices in a felony during which a murder was 
            committed. 


            The author states, "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 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."


           2)Minors serving LWOP in California.  The only offense that can 
            result in LWOP for minors in California is first degree murder 
            with special circumstances, and it is limited to 16 and 








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            17-year-olds. (In 2005, the U.S. Supreme Court ruled that 
            persons under the age of 18 at the time of the crime may not 
            be executed.) As of June 2011, according to Department of 
            Corrections and Rehabilitation (CDCR) data, 295 persons were 
            serving LWOP who were convicted of a murder committed before 
            the age of 18. Of this total, 172 were 17, 121 were 16, and 
            two were 15. (It is not clear how these 15-year-olds received 
            LWOP.) In terms of ethnicity, 43% are Latino, 31% are Black, 
            13% are White, 1% are Asian/Pacific Islander and the balance 
            are listed as "other." Six are female.


           3)Last year the U.S. Supreme Court banned LWOP for minors for 
            crimes not involving murder.  In Graham v Florida, the court 
            ruled that the Eight Amendment's ban on cruel and unusual 
            punishment does not permit a juvenile offender to be sentenced 
            to LWOP for a non-homicidal crime. In California this decision 
            applies to kidnapping for ranson, for which three persons are 
            currently serving LWOP. 

           4)Cognitive and emotional developmental of minors differs from 
            adults.  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. This 
            viewpoint, however, is increasingly incompatible with the 
            tough on crime philosophy that emerged in the 1990s. 

            According to Deterrence's Difficulty Magnified: The Importance 
            of Adolescent Development in Assessing the Deterrence Value of 
            Transferring Juveniles to Adult Court, UC Davis Journal of 
            Juvenile Law & Policy, Vol. 7, 2003:  "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 . . . . 

            "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 








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            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." 


           5)LWOP for minors violates international law  , according to a 
            2007 report "Sentencing Our Children to Die in Prison," by the 
            Center for Law and Global Justice and The Frank C. Newman 
            International Human Rights Law Clinic at the University of San 
            Francisco School of Law, "LWOP for minors violates customary 
            international law, binding all nations and is expressly 
            prohibited under any circumstance by Article 37 of the U.N. 
            Convention on the Rights of the Child, ratified by all 
            countries of the world except the U.S. and Somalia. Trying 
            children as adults and imposing a life without parole sentence 
            is also a violation of Article 24 of the International 
            Covenant on Civil and Political Rights and could be considered 
            cruel, unusual or degrading treatment under the Convention 
            Against Torture."

           6)Support  includes a long list of human rights, social justice, 
            civil liberties and religious organizations, as well as the 
            defense bar and several psychiatric associations.

              a)   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 to 
               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?


                  "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 they acted as 








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               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 in 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."

              b)   The American and California Psychiatric Associations,  
               and the Academy of Child & Adolescent Psychiatry  state that 
               adolescents are cognitively and emotionally less mature 
               than adults,  less able than adults to consider the 
               consequences of their behavior,  and therefore more easily 
               swayed by peers. 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.  

               According to the Academy, "The U.S. is the only country in 
               the world that sentences kids to LWOP. Every country in the 
               world - except for the U.S. - has condemned the use of LWOP 
               sentences for youth.  Because tier brains are still 
               developing into their early 20's, youth have a much greater 
               capacity for rehabilitation than adults. SB 9 would allow 
               people who were sentenced as minors to prove themselves 
               changed as adults and to submit a petition to the 
               sentencing court to reconsider their sentence."
                
           7)Opposition  includes a number of law enforcement and victim 
            organizations.  

              a)   CA District Attorneys Association  : "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." 
                
              b)   California Narcotics Officers' Association  and 








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                California Police Chiefs Association  : "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."

              8)   Amendments  . The bill includes a rather convoluted 
               phase-in of petition eligibility timing that is 
               unnecessary; the author will propose amendments to simplify 
               and clarify. 

            Also, current  chaptering amendments, which cover AB 109 
            (criminal justice realignment), should also reference AB 520 
            and/or SB 576 regarding the ongoing Cunningham fix to the 
            determinate sentencing triads.

           9)Prior Legislation  :  

             a)   SB 399 (Yee), 2010, was almost identical to SB 9, and 
               failed passage on the Assembly Floor.  

             b)   SB 999 (Yee),  2007, eliminated LWOP for a defendant 
               under the age of 18 years of age and was not heard on the 
               Senate Floor.

             c)   SB 1223 (Kuehl), 2004, 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 served 
               10 years or reached age 25.  SB 1223 was held on this 
               committee's Suspense File. 


           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081