BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 260 (Hancock)
As Amended April 4 2013
Hearing date: April 9, 2013
Penal Code
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SENTENCING
HISTORY
Source:Human Rights Watch
Youth Law Center
The Friends Committee
USC School of Law Post Conviction Clinic
Prior Legislation:SB 9 (Yee) - Ch. 828, Stats. 2012
SB 399 (Yee) - 2010, failed on Assembly floor
SB 999 (Yee) - 2008, died on Senate floor
SB 1223 (Kuehl) - 2004, died on Assembly
Suspense
Support: A Place Called Home; American Civil Liberties Union
(ACLU); American Friends Service Committee; American
Probation and Parole Association; Amnesty International;
Advancement Project; Bar Association of San Francisco;
Berkeley Organizing Congregations for Action; Black
Organizing Project; Boys and Girls Club of San Gabriel
Valley; California Catholic Conference; California Church
IMPACT; California Coalition for Women Prisoners;
California Public Defenders Association (CPDA);
Californians United for a Responsible Budget (CURB);
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Campaign for the Fair Sentencing of Youth; Campaign for
Youth Justice; Center on Juvenile and Criminal Justice;
Children's Defense Fund; Day One; Disability Rights
Education & Defense Fund; Dolores Mission Catholic
Church; Everychild Foundation; Equal Justice Society;
Healing Justice Coalition; Human Rights Advocates;
Jesuits of the California Province; Just Detention
International; Justice Not Jails; Justice Now; Juvenile
Law Center; Law Office of Donald R. Hammond; Legal
Services for Children; Legal Service for Prisoners with
Children; Los Angeles Community Action Network; Loyola
Law School Center for Juvenile Law and Policy; Mexican
American Legal Defense and Education Fund (MALDEF);
National Center for Lesbian Rights; National Center for
Youth Law; National Juvenile Justice Network; National
Partnership for Juvenile Services; Office of Restorative
Justice of the Archdiocese of Los Angeles; Pacific
Juvenile Defender Center; Public Council - Children's
Right's Project; Prison Law Office; Religious Sisters of
Charity; Santa Clara University; Service Employees
International Union (SEIU) Local 1000; Sisters of Mercy
US Province; Sisters of the Company of Mary; St. Mark's
United Methodist Church; Taxpayers for Improving Public
Safety; The W. Haywood Burns Institute; University of San
Francisco Center for Law and Global Justice; University
of Southern California Post-Conviction Justice Project;
University Synagogue; Violence Prevention Coalition of
Greater LA; The Women's Foundation of California; Yolo
County Office of Education; Yolo County Public Defender's
Office; Youth Justice Coalition; 500 individuals
Opposition:California District Attorneys Association
KEY ISSUE
SHOULD THERE BE A PROCESS FOR A PERSON WHO IS SERVING A SENTENCE FOR
A CRIME HE OR SHE COMMITTED BEFORE HE OR SHE WAS 18 YEARS OF AGE TO
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PETITION FOR A RESENTENCING AFTER SERVING 10 YEARS OF THE SENTENCE
IF CERTAIN CRITERIA ARE MET?
PURPOSE
The purpose of this bill is to allow a person sentenced for a
crime that was committed before he or she was 18 to petition for
a resentencing if certain criteria are met.
Existing law provides that 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
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).)
Existing law provides that 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
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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.)
Existing law provides that, 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, with some exceptions, 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 life without the possibility of parole has
served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing and sets forth the requirements for filing and
granting such a petition. (Penal Code § 1170 (d) (2).)
This bill provides notwithstanding any law, upon motion and
after 60 days' notice to the prosecution, the sentencing court
shall hold a hearing to review the sentence of a person who was
under 18 years of age at the time of the offense and was
prosecuted as an adult, after the person has served 10 years in
prison.
This bill provides that after reviewing the sentence, if the
person meets the eligibility criteria, the judge can do any of
the following:
Suspend or stay all or a portion of the sentence.
Reduce the sentence to any sentence that could lawfully
have been ordered at the time of the original judgment
Both reduce and suspend all or a portion of the
sentence.
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This bill provides that in reviewing the sentence the court may
consider, in conjunction with any other evidence the court deems
relevant:
The person's record of serious disciplinary offenses;
Whether the person has performed acts that tend to
indicate rehabilitation or the potential capacity for
rehabilitation;
The defendant's use of self-study for self-improvement;
The defendant's statement describing his or her remorse
and work towards rehabilitation;
The person's youth at the time of the crime, including
his or her immaturity, impulsiveness;
Failure to appreciate risks and consequence;
Family and home environment;
Intellectual functioning, mental disorder or
disabilities;
The circumstances of the offense, including the extent
of participation in the offense and the way familial and
peer pressures may have affected him or her;
Whether the person might have been charged and convicted
of a lesser offense if not for the lesser abilities of
youth, including an inability to effectively deal with
police officers or prosecutors or a limited capacity to
fully understand proceeding to assist his or her attorney.
This bill provides that the court shall identify on the record
the criteria relied on and shall provide a statement of reasons
for adopting those criteria. The court shall state why the
defendant does or does not satisfy the criteria.
This bill provides that victims, 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.
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This bill provides that each person granted review pursuant to
this section shall only be entitled to an additional review in
the event of a change in circumstances that is proven by a
preponderance of the evidence in a petition filed with the
sentencing court.
This bill provides that it does not apply to a person who was
sentenced for: first degree murder with special circumstances;
under three strikes; under provisions increasing the penalty for
priors or multiple convictions; or, has a sentence of life
imprisonment without the possibility of parole.
This bill provides that it is the intent of the Legislature to
provide a judicial mechanism for reconsidering the sentences of
adults who served a significant amount of time in state prison
for the conviction of crimes they committed as children.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
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reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard
and difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
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whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Piecemeal changes to California law since the 1990s
have removed many safeguards and points for review that
once existed for youth charged with crimes. Currently,
over 6,500 young people in California prisons were
under the age of 18 at the time of their crime and
prosecuted as adults - many are transferred to the
adult criminal justice system without careful
consideration of their amenability to rehabilitate and
demonstrate remorse. The current system provides no
viable mechanism for reviewing a case after a young
person has served a substantial period of incarceration
and can show maturity and improvement.
Existing sentencing laws do not distinguish youth from
adults, however, recent court decisions are moving in
this direction. The US Supreme Court recently held
unconstitutional mandatory life without parole
sentences for people under the age of 18, and required
courts to consider the youthfulness of defendants
facing that sentence (Miller v. Alabama (2012)). The
California Supreme Court recently ruled in People v.
Caballero (2012) that a sentence exceeding the life
expectancy of a juvenile is the equivalent of life
without parole, and unconstitutional in non-homicide
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cases. Specifically, the California Supreme Court
called for legislative action to establish a review
process for cases with lengthy sentences.
Recent scientific evidence on adolescent development
and neuroscience show that certain areas of the brain,
particularly those that affect judgment and
decision-making, do not fully develop until the early
20's. The US Supreme Court stated in its 2005 Roper v.
Simmons decision, "[t]he 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." Moreover, the fact that young
adults are still developing means that they are
uniquely situated for personal growth and
rehabilitation.
In the wake of the US and the California Supreme
Courts' decisions and consistent with neuroscientific
research, SB 260 establishes a comprehensive judicial
review process to evaluate cases involving extreme
sentences for juveniles. SB 260 holds young people
responsible for the crimes they committed and creates a
system in which they must demonstrate remorse and
rehabilitation to merit any possible sentence reduction
as determined by the court.
2. Review of Sentence for Crime Committed While a Minor
Last year SB 9 (Yee) was signed into law. That bill provides
that a person who was sentenced to life without parole who
committed the offense when he or she was under the age of 18 can
under specified circumstances seek a review of the sentence
after he or she served 15 years in prison.
This bill provides a resentencing for adults who were sentenced
as juveniles and received long sentences that were not life
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without parole and so do not fall within SB 9. Under this bill,
a person who committed their offense before he or she was 18 can
seek a review of his or her sentence in the sentencing court
after serving 10 years. The bill specifies that the court may
consider a number of things relating to the rehabilitation or
prospect for rehabilitation of the defendant, the circumstances
at the time of the incident including the defendant's
participation in the crime and mental abilities at that time and
other factors relating to the defendant's maturity level at the
time and their ability to rehabilitate. If the court determines
that it is appropriate the court may reduce, suspend or stay all
or a portion of the sentence. When making a change in the
sentence the court shall state on the record what criteria the
court relied on and why and provide a statement why the
defendant does or does not meet the criteria. If relief is not
granted, a defendant cannot seek another review until a change
in circumstances is proven by a preponderance of the evidence in
a petition filed with the sentencing court.
The bill specifically states that the victim, or his or her
family, shall be notified of the hearing and have a right to
participate.
This bill explicitly excludes people sentenced to life without
parole; people sentenced under three strikes; or those sentenced
under Penal Code 1170.12 because of priors or multiple offenses.
3. Life or Effectively Life Sentences for Juveniles
In Graham v. Florida (2010) 130 S.Ct. 2011, 176 L.Ed.2d 825 the
Supreme Court held that it is cruel and unusual punishment to
sentence a juvenile to life without the possibility of parole
for a non-homicide case. The Court found that the rareness of
such a sentence showed:
A national consensus has developed against a life
without parole sentence for one who was a juvenile when
the non-homicide crime was committed. Although the
sentence is permitted in many states, it is currently
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being served by only 123 persons, and the majority of
those persons are in Florida. These numbers demonstrate
that the sentence is rare enough to be considered cruel
and unusual. (130 S.Ct. 2026, 176 L.Ed.2d 841.)
Although international practice is in no way
controlling, it is worth noting that the United States
is the only country that imposes life without parole
sentences on juvenile non-homicide offenders. (130
S.Ct. 2033, 176 L.Ed.2d 849.)
The consensus alone is not determinative. The
culpability of the offender is also an important
consideration. As Roper v. Simmons (2005) 543 U.S. 551,
125 S.Ct. 1183, 161 L.Ed.2d 1, supra, §500, recognized,
juveniles are less deserving of the most severe
punishment. Compared to adults, juveniles have a lack
of maturity and an underdeveloped sense of
responsibility; they are more vulnerable to negative
influences and outside pressures, and their characters
are not as well formed. Yet a juvenile, punished at a
young age, will generally serve more years in prison
than an adult who receives a life term. (130 S.Ct.
2028, 176 L.Ed.2d 843.) The goals of retribution,
deterrence, and rehabilitation are not advanced or
sufficiently justified by so harsh a sentence. (130
S.Ct. 2028, 2029, 176 L.Ed.2d 843, 844.)
? Nevertheless, the state is not required to guarantee
eventual freedom for a juvenile convicted of a
non-homicide crime. What it must do is give such
defendants "some meaningful opportunity to obtain
release based on demonstrated maturity and
rehabilitation." (130 S.Ct. 2030, L.Ed.2d 846.)
Defendant's sentence, as it stands, would guarantee
that he will die in prison without such an opportunity,
no matter what he might do to demonstrate that he is
fit to rejoin society. (130 S.Ct. 2032, 176 L.Ed.2d
848.) (See People v. Mendez (2010) 188 C.A.4th 47, 62,
114 C.R.3d 870 [under rationale of Graham, juvenile's
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sentence in non-homicide case to term of years that,
after allowance for conduct reductions, would exceed
his life expectancy, is de facto life without parole
sentence and unconstitutional]; 124 Harv. L. Rev. 209
[Graham].) (3 Witkin Cal. Crim. Law Punishment § 511)
The Supreme Court again looked at the issue of juveniles
sentenced to life without parole in Miller v. Alabama (2012)132
S. Ct. 2455 and found that a mandatory life without parole
sentence for a juvenile in a homicide was also cruel and unusual
punishment.
Graham also likened life-without-parole sentences for
juveniles to the death penalty. That decision
recognized that life-without-parole sentences "share
some characteristics with death sentences that are
shared by no other sentences." 560 U.S., at ___, 130 S.
Ct. 2011, 176 L. Ed. 2d 825. And it treated life
without parole for juveniles like this Court's cases
treat the death penalty, imposing a categorical bar on
its imposition for non-homicide offenses. By likening
life-without-parole sentences for juveniles to the
death penalty, Graham makes relevant this Court's cases
demanding individualized sentencing in capital cases.
In particular, those cases have emphasized that
sentencers must be able to consider the mitigating
qualities of youth. In light of Graham's reasoning,
these decisions also show the flaws of imposing
mandatory life-without-parole sentences on juvenile
homicide offenders. Pp. ___ - ___, 183 L. Ed. 2d, at
417-424. (Miller v. Alabama, 132 S. Ct. 2455, 2459
(U.S. 2012))
Relying on Miller, the California Supreme Court in People v.
Caballero found that in a non-homicide case a sentence of 110
years imposed on a juvenile is the legal equivalent of life
without parole. (People v. Caballero (2012) 55 Cal 4th 262)
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Consistent with the high court's holding in Graham,
supra, 560 U.S. ___ [130 S. Ct. 2011], we conclude that
sentencing a juvenile offender for a non-homicide
offense to a term of years with a parole eligibility
date that falls outside the juvenile offender's natural
life expectancy constitutes cruel and unusual
punishment in violation of the Eighth Amendment.
Although proper authorities may later determine that
youths should remain incarcerated for their natural
lives, the state may not deprive them at sentencing of
a meaningful opportunity to demonstrate their
rehabilitation and fitness to reenter society in the
future. Under Graham's non-homicide ruling, the
sentencing court must consider all mitigating
circumstances attendant in the juvenile's crime and
life, including but not limited to his or her
chronological age at the time of the crime, whether the
juvenile offender was a direct perpetrator or an aider
and abettor, and his or her physical and mental
development, so that it can impose a time when the
juvenile offender will be able to seek parole from the
parole board. The Board of Parole Hearings will then
determine whether the juvenile offender must be
released from prison "based on demonstrated maturity
and rehabilitation." (560 U.S. at p. ___ [130 S. Ct. at
p. 2030].) Defendants who were sentenced for crimes
they committed as juveniles who seek to modify life
without parole or equivalent de facto sentences already
imposed may file petitions for writs of habeas corpus
in the trial court in order to allow the court to weigh
the mitigating evidence in determining the extent of
incarceration required before parole hearings. Because
every case will be different, we will not provide trial
courts with a precise timeframe for setting these
future parole hearings in a non-homicide case. However,
the sentence must not violate the defendant's Eighth
Amendment rights and must provide him or her a
"meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation" under
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Graham's mandate. (People v. Caballero, 55 Cal. 4th
262, 268-269 (Cal. 2012).)
The California 4th District Court of Appeal applied the
reasoning from Miller and Caballero to a homicide case where the
defendant was sentenced to 196 years:
Satterwhite claims his sentence of 196 years to life
should be reversed, and the matter should be remanded
for further proceedings, in light of the United States
Supreme Court's recent decision in Miller, supra, 567
U.S. ___ [132 S.Ct. 2455], which held that, in
homicide cases, the prohibition of cruel and unusual
punishment set forth in the Eighth Amendment to the
federal Constitution prohibits the imposition of a
mandatory sentence of life without the possibility of
parole on a juvenile offender. (Miller, 567 U.S. at p.
___ [132 S.Ct. at p. 2469]; see People v. Caballero
(2012) 55 Cal.4th 262, 268, fn. 4 [145 Cal. Rptr. 3d
286, 282 P.3d 291 v. Caballero (2012) 55 Cal.4th 262,
268, fn. 4 [145 Cal. Rptr. 3d 286, 282 P.3d 291]
(Caballero).) We agree. (People v. Thomas, 211 Cal.
App. 4th 987, 1013-1014 (Cal. App. 4th Dist. 2012).)
After Caballero, it is clear that more prisoners with long
sentenced they received for a crime committed before they were
18 will bring writs of habeas corpus on the basis of cruel and
unusual punishment. This will lead courts to look at them on a
case by case basis. This bill instead would set up a standard
process for the courts to look to in dealing with these cases.
4. Support
The supporters agree that juveniles who commit crimes should be
punished, but they also argue, that as science has shown and the
courts are recognizing, their minds and judgment is not the same
as adults and that should be considered. They also point to
the fact that young people have a great capacity for
rehabilitation. For example the Center for Juvenile Law and
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Policy at Loyola Law School states:
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Youth who commit crimes should be held accountable.
However, when California sentences someone under the
age of 18 to an adult prions sentence, it disregards
the human capacity for rehabilitation and ignores the
very real physical and psychological differences
between youth and adults. Punishment should reflect the
capacity of young people to change and mature.
Human Rights Watch notes that this is a modest and narrowly
focused piece of legislation that if passed:
[W]ill protect public safety, in that only those who
merit resentencing will be resentenced District
Attorneys will have input at every step of the process:
they will still be able to argue at the time of
sentencing for a youth offender to be sentenced to an
adult sentence as permitted by current law. District
Attorneys will also be in court at a resentencing
hearing and have the opportunity to argue that the
original sentence remain intact if they believe that is
appropriate. Victims'' family members will also be
able to be present at the hearing.
5. Opposition
The California District Attorneys Association opposes this bill
stating:
We have many concerns with this bill, and paramount
among them is the fact that this bill will potentially
result in the early release of many serious offenders.
SB 260 gives courts near limitless authority to suspend
or reduce sentences based on criteria that may have
already been considered or that are irrelevant to a
sentencing decision. Offenders who are deserving of
the very long custodial sentences they have received
can petition under this bill after only serving 10
years. This represents a severe risk to public safety
and is insulting to victims who were promised justice
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through meaningful incarceration.
While the bill describes criteria that can be used by
the court to make a determination under this bill, the
only requirement is that whatever criteria are used is
noted on the record. This is hardly a safeguard
against courts that exhibit contempt for sentences that
may be required by law. Additionally, there is no
effective limit on the number of petitions for
resentencing that an offender may file.
6. Similar Legislation
AB 1276 (Bloom) is in Assembly Public Safety Committee. It
requires a person who was convicted of a non-homicide offense
that was committed before the person had attained 18 years of
age to be given a meaningful opportunity for parole or other
form of supervised release after having served 25 years in state
prison.
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