BILL ANALYSIS Ó
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