BILL ANALYSIS
SB 399
Page 1
Date of Hearing: January 12, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 399 (Yee) - As Amended: June 25, 2009
FOR VOTE ONLY
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 re-sentencing to the sentencing
court, 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 for which the
defendant was sentenced to imprisonment for LWOP has served at
least 10 years of that sentence, the defendant may submit to
the sentencing court a petition for recall and re-sentencing,
provided that defendants who have served 10 or more years as
of January 1, 2010, shall not be permitted to submit a
petition for recall and re-sentencing pursuant to this
subdivision until they have served 15 years.
2)Requires that defendants who have served 15 or more years but
less than 25 years as of January 1, 2010 be permitted to
submit a petition for recall and re-sentencing as follows:
a) Those defendants who entered custody prior to July 1,
1993 may submit a petition in 2010.
b) Those defendants who entered custody on or after July 1,
1993 but prior to January 1, 1994, may submit a petition in
2011.
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c) Those defendants who entered custody on or after January
1, 1994, but prior to July 1, 1994, may submit a petition
in 2012.
d) Those defendants who entered custody on or after July 1,
1994, but prior to January 1, 1995, may submit a petition
in 2013.
3)Mandates the petition for hearing shall include the person's
statement that he or she was under the age of 18 years old at
the time of the crime and was sentenced to LWOP, and the one
of the following is true:
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; or,
d) 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.
4)Requires that the defendant serve the original petition with
the sentencing court and a copy of the petition shall be
served on the agency that prosecuted the case.
5)Provides that if any of the information required to petition
the court for a hearing is missing from the petition, or if
proof of service on the prosecuting agency is not provided,
the court shall return the petition to the person and advise
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him or her that the matter cannot be considered without the
missing information.
6)States a reply to the petition, if any, shall be filed with
the court within 60 days of the date on which the prosecuting
agency is served with the motion, unless a continuance is
granted for good cause.
7)Provides that if the court finds by a preponderance of the
evidence that the statements in the petition are true, or if
no reply to the petition is filed, the court shall hold a
hearing to consider whether to recall the sentence and
commitment previously ordered and to re-sentence the defendant
in the same manner as if the defendant had not been previously
sentenced, provided that the new sentence, if any, is not
greater than the initial sentence. Victims, or victim family
members if the victim is deceased, shall retain the rights to
participate in the hearing.
8)Provides factors the court may consider when determining
whether to recall and re-sentence include, but are not limited
to, the following:
a) The defendant was convicted pursuant to felony murder or
aiding and abetting murder, as specified.
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) 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.
d) The defendant suffers from cognitive limitations due to
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mental illness, developmental disabilities, or other
factors that did not constitute a defense, but influenced
the defendant's involvement in the offense.
e) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation,
including, but not limited to, availing himself or herself
of rehabilitative, educational, or vocational programs, if
those programs have been available at his or her
classification level and facility, using self-study for
self-improvement, or taking action that demonstrates the
presence of remorse.
f) The defendant has maintained family ties or connections
with others through letter writing, calls, or visits, or
has eliminated contact with individuals outside of prison
who are currently involved with crime.
g) 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.
9)States the court shall have the discretion to recall the
sentence and commitment previously ordered and to re-sentence
the defendant in the same manner as if the defendant had not
previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.
10)Mandates the court, in exercising its discretion, must
consider the criteria listed above. Victims, or victim family
members if the victim is deceased, shall be notified of the
re-sentencing hearing and shall retain their rights to
participate in the hearing.
11)States that if the sentence is not recalled, the defendant
may submit another petition for recall and re-sentencing to
the sentencing court when the defendant has been committed to
the custody of the department for at least 15 years; or if not
granted, after 20 years; or if not granted, after 24 years;
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and a final petition may be submitted, and the response to
that petition shall be determined, during the 25th year of the
defendant's sentence.
12)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.
13)States that the provisions of this bill shall apply
retroactively.
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. [Penal Code Section
1170(a)(1).]
2)Provides that 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
to 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 law or any other 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. [Penal Code Section
1170(a)(2).]
3)Requires 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. In determining whether there are circumstances that
justify imposition of the upper or lower term, the court may
consider the record in the case, the probation officer's
report, 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 set forth on the record the facts and reasons for
imposing the upper or lower term. 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. [Penal 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
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.
[Penal Code Section 1170(c).]
5)Provides that when a defendant subject to existing law related
to sentencing a defendant has been sentenced to be imprisoned
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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 re-sentence 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 re-sentence 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. [Penal
Code Section 1170(d)]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The
life-without-parole sentence for youth is not applied fairly:
the sentence is reserved for the worst, most heinous
criminals, but is often given to kids who didn't even kill
anyone. Statistics: 45% of the youth sentenced to life in
prison did not perform the murder they were convicted of. 59%
of youth sentenced to LWOP are first-time offenders.
"Many youth sentenced to LWOP acted with adults at the time of
their crimes, however, in many cases the youth was sentenced
to a worse penalty than the adult codefendant/s. This reveals
many of the weakness in our legal system, in which a youth
will plead innocent to the murder charge (because he or she
did not in fact kill anyone) - and then be convicted of the
murder under the 'felony-murder' or 'aiding and abetting'
laws, while the adult codefendant who performed the murder and
plea bargained gets off with a lesser sentence. Statistics:
70% of the youth acted under the influence of adults. In 56%
of these cases, the youth received a higher sentence than the
adult/s.
"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
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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.
"The sentence has no deterrent effect on crime and is not
applied fairly between ethnic groups: Latinos and blacks are
given the sentence at a much higher rate than whites, even
after differing crime rates between the groups are factored
in. The U.S. is the only country in the world that sentences
kids to LWOP. Many U.S. states have already banned the use of
the life without parole sentence for youth.
"SB 399 allows people who were sentenced as juveniles to LWOP,
after they have served at least 10 years of their sentence, to
submit a petition to the courts to request a sentence review
hearing. To be accepted by the court, the petition would have
to demonstrate that the defendant has met specified criteria
relating to the circumstances of the crime and the
rehabilitation that may have occurred as the youth grew into
an adult in prison. If the prisoner's record meets a high
threshold, the court could grant a re-sentencing hearing, at
which the person could make their case to be re-sentenced to
25-years-to-life.
"There are about 250 people serving LWOP who were sentenced as
youth in California. This bill will affect people such as
Anthony C., who was 16 and had never before been in trouble
with the law. Anthony belonged to a 'tagging crew; that
paints graffiti. One day, Anthony and his friend James went
down to a wash (a cement-sided stream bed) to graffiti. James
revealed to Anthony that he had a gun in his backpack and when
another group of kids came down to the wash, James decided to
rob them. James pulled out the gun, and the victim told him,
'If you don't kill me, I'll kill you.' At that point, Anthony
thought the bluff had been called, and turned to pick up his
bike. James shot the other kid.
"The police told Anthony's parents that he did not need a
lawyer. He was interviewed by the police and released, but
later re-arrested on robbery and murder charges. Anthony was
offered a 16-years-to-life sentence before trial if he pled,
but he refused, believing he was innocent. Anthony was found
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guilty of first-degree murder and sentenced to LWOP. Charged
with aiding and abetting, he was held responsible for the
actions of James.
"Recognizing that teenagers are not fully matured at the time of
their sentencing, and recognizing that our legal process can
result in unjust sentences, this Act creates specific criteria
and a court review process that would result in the
possibility of a lesser sentence for those offenders whose
crimes were less and who have proven themselves to have
changed as adults."
2)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." [Symposium: Children, Crime, and
Consequences: Juvenile Justice In America: Punishment,
Proportionality, and Jurisdictional Transfer of Adolescent
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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
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. [See 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]
3)Legal Culpability : 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. As explained below, this viewpoint is not completely
compatible with the "adult crime for adult time" philosophy
that emerged in the 1990s.
"The common law assumed that adolescents are less culpable than
adults, and the juvenile court institutionalized this notion
both jurisprudentially and statutorily. That is, the juvenile
court offered a punishment discount for adolescents punished
as juveniles, relative to the punishment given to adults.
This discount is rooted in the belief that serious crimes
committed by young offenders may reflect developmental
deficiencies in autonomy and social judgment, suggesting a
reduction in their culpability and, in turn, their punishment
liability . . . .
"Recent developments in transfer law often express the
preference of penal proportionality over the common law
assumptions of reduced culpability of adolescent offenders.
In this view, the traditional preoccupation with
rehabilitation in the juvenile court, with its limitations on
punishment opportunities, deprecates the moral seriousness of
crimes and offers inadequate retribution. Proponents of
harsher punishments for adolescents argue that punishments
that are disproportionately lenient compared to the severity
of the adjudicated offense also undermine both the specific
and general deterrent effects of legal sanctions.
"These developments reflect the presumption in modern juvenile
justice law that those who commit crimes and are remanded to
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the criminal court, or even those who are charged with such
crimes, are fully culpable for their acts. This legal
threshold clashes with emerging empirical evidence on the
immaturity of adolescents with respect to both their ability
to make informed and nuanced judgments about their behavior,
as well as their moral development. By ignoring these indicia
of reduced culpability, the new transfer or waiver policies
offend the common law doctrine of incapacity." [Ward,
Deterrence's Difficulty Magnified: The Importance of
Adolescent Development in Assessing the Deterrence Value of
Transferring Juveniles to Adult Court (hereinafter Ward),
(2003) 7 UC Davis Juvenile. Law & Policy 253, 257.]
Researchers in the science of human development, however,
generally agree that from a developmental standpoint an
adolescent is not an adult.
"The evidence now is strong that the brain does not cease to
mature until the early 20s in those relevant parts that govern
impulsivity, judgment, planning for the future, foresight of
consequences, and other characteristics that make people
morally culpable . . . Indeed, age 21 or 22 would be closer
to the 'biological' age of maturity." [Adolescent Brain
Development and Legal Culpability, American Bar Assn. Criminal
Justice Section, Juvenile Justice Center (Winter 2003).]
Some scholars argue that the unique nature of adolescent
development affect considerations of both culpability and
deterrence when measuring the value and suitability of
imposing adult criminal sanctions on juveniles.
"The culpability analysis of juvenile impulsiveness and
risk-taking implicitly embraces the developmental notion that
some forms of adolescent behavior are the result of a not yet
fully formed ability to control impulses. In effect, young
people do not have the same capacity for self-control as
adults and this should be considered a mitigating factor when
assessing culpability. Similarly, the proclivity of
adolescents to take risks and act on a whim skews the
traditional deterrence calculus for the adolescent actor.
Adolescents are not likely to recognize all possible options
and therefore, their preference prioritization may be
completely tilted toward outcomes that they expect will
provide immediate gratification but that do not actually
maximize their utility." [Ward at 267.]
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4)Murder with Special Circumstances : As explained above, only a
juvenile convicted of first-degree murder with special
circumstances, as specified, may be sentenced to a term of
LWOP. First-degree murder is defined as all murder
perpetrated by means of a destructive device or explosive; a
weapon of mass destruction; knowing use of ammunition designed
primarily to penetrate metal or armor; poison; lying in wait;
torture; or by any other kind of willful, deliberate, and
premeditated killing; or which is committed in the
perpetration of, or attempt to perpetrate, arson, rape,
carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking; or any act punishable as a violent sex offense, as
specified; or any murder which is perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person outside of the vehicle with the intent to
inflict death. (Penal Code 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
was murdered by poison; the defendant committed the murder by
discharging a firearm from vehicle, and; the defendant
committed murder as an active participant in a criminal street
gang and the murder was carried out for the benefit of the
gang. [Penal Code Section 190.2(a)(1) to (22).]
In 2005, the United States Supreme Court ruled persons who were
under the age of 18 at the time of the offense are ineligible
for the death penalty. [Roper vs. Simmons (2005) 543 U.S.
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551.] Penal Code Section 190.5 codified the holding of Roper
and stated the penalty for a person 16 to 18 years of age
convicted of first-degree murder with special circumstances is
either LWOP or 25-years-to-life. [Penal Code Section
190.5(b).]
5)Legal Process and Counsel : This bill requires the petitioner
to allege one of four factors in his or her effort to receive
a hearing in which the court will determine whether the
alternative sentence of 25-years-to-life is appropriate.
Those factors include: (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 reconsidered; (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 of rehabilitative, educational, or
vocational programs, if those programs have been available at
this or her classification level and facility using
self-study, self-improvement or showing evidence of remorse.
This bill does not provide for counsel to review documentation
regarding the petitioner's file or provide guidance on the
best way to proceed. Committee Counsel has recommended
several clarifying amendments in order to provide more
guidance to the petitioner and the court.
First, (a) should be more specific: "The defendant was
convicted of first degree murder where the felony murder
special circumstance was found to be true pursuant to Penal
Code Section 190.2(a)(17) and convicted as a principle under a
theory of aiding and abetting as defined in Penal Code Section
31." As the section is currently written, it is unlikely the
petitioner will know whether he or she was convicted as an
aider and abettor, only that he or she was found guilty of the
substantive offense. The only way to know whether the
defendant was convicted as an aider or abettor is to examine
the court transcript to determine if the aiding and abetting
jury instruction was given or check the attorneys' files. It
seems unlikely the defendant will be able to assess this from
personal knowledge; only that he or she is not the actual
killer.
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Second, (b) should also be more specific: "The defendant does
not have juvenile felony adjudications for assault with a
deadly weapon or force likely to produce great bodily harm, as
defined in Penal Code Section 245(a)(1), or other felony
crimes with a significant potential for personal harm to
victims prior to the offense for which the sentence is being
considered for recall." The current language states only that
the petitioner has no felony assault convictions, but the
general assault statute is a six-month misdemeanor. Also, the
statute makes no reference to felony battery with serious
bodily injury pursuant to Penal Code Section 243(d), which is
often more serious conduct. Presumably, that code section is
intentionally omitted. This provision may also be difficult
for an unrepresented petitioner to determine. Often times,
defendants are not familiar with the actual charge they are
convicted of. Does it make more sense to simply state the
defendant has no convictions involving violence? Also, "other
crimes with significant potential for personal harm to
victims" will be very difficult for a petitioner to quantify.
Does it make more sense to simply assign counsel to eligible
petitioners and allow those attorneys to review necessary
documents and file appropriate petitions?
Third, (c) seems to be designed to take into consideration
petitioners who were unduly influenced by an older
co-defendant. However, as currently written, the petitioner
would be eligible for a hearing if he or she was 17 years of
age at the time of the crime and the codefendant was 18 years
of age. Does it make more sense to require an additional
element of undue influence?
6)Arguments in Support :
a) According to the 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 t 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.
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"If passed, S.B. 399 would provide review of life sentences
imposed n people under age 18, after they have served
between 10 and 25 years in prison. It would ensure that
those who can prove they have reformed are given an
opportunity to re-enter society as contributing citizens.
"It is, however, a modest and narrowly focused piece of
legislation. It would 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 to be sentenced to LWOP. They also will be
able to respond when an offender files a petition for a new
hearing. Finally, district attorneys will always be in
court at a resentencing hearing and there, again, have the
opportunity to argue that the LWOP sentence remains intact
if they believe it appropriate. Victims and family members
will also be present at the hearing.
"If a judge finds an offender merits a lower sentence, that
sentence will be 25-years-to-life. To be released, he or
she will have to first serve a minimum of 25 years, and
then also convince the Parole Board before ever being
released.
"Since 2004, Human Rights Watch has been analyzing the issue
of LWOP sentences for youth. In the past four years, our
research has culminated in several publications, including:
When I Die, They'll Send Me Home (a 2008 report on LWOP
for youth in California); Thrown Away (a 2005 report on
LWOP for youth in Colorado); and The Rest of Their Lives (a
2005 report on LWOP for youth throughout the United
States). Based on this research, we support SB 399 for
three main reasons.
"First, the sentence of LWOP was created for the worst
criminal offenders, who are deemed to have no possibility
of rehabilitation. In Roper v. Simmons, 543 U.S. 551, 561
(2005), the US Supreme Court found that the differences
between youth and adults render suspect any conclusion that
a youth falls among the worst offenders. Neuroscience
reveals that the process of cognitive brain development,
including the formation of impulse control and
decision-making skills, continues into early adulthood -
well beyond age 18. The fact that juveniles are still
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developing their identities and abilities to think and plan
ahead, the Court found, means that even a heinous crime
committed by a juvenile I not 'evidence of an
irretrievably depraved character.'
"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 the acted as
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 I 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.
"Second, we are deeply concerned that racial discrimination
enters into the determination of which youth serve LWOP
sentences, and which youth enjoy the possibility of
release. California's sentencing of black youth to life
without parole reveals the worst racial disparities of the
nation. Black youth in California are serving LWOP
sentences at a per capita rate that is 18 times that of
white youth. Black youth arrested for murder in California
are sentenced to LWOP at a rate that is 5.8 times that of
white youth arrested for murder.
"Third, international law requires youth under age 18 to be
treated differently than adults when accused of a crime.
Criminal systems must take in to account a child or youth's
age, and promote the child's reintegration and constructive
role in society. Life sentences are the antitheses of this
mandate. In addition, international law prohibits LWOP
sentences for those who commit crimes before age 18, a
prohibition that is universally applied outside the United
States. The United States is the only county in the world
to sentence youth to LWOP, and there are no youth offenders
serving LWOP sentences anywhere in the rest of the world.
Due to the overwhelming global rejection of the sentence,
oversight and enforcement bodies for two treaties to which
the United States is a party, the Covenant on Civil and
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Political Rights and the Convention on the Elimination of
all Forms of Racial Discrimination, have found the practice
of sentencing youth to LWOP to be a clear violation of the
United States' treaty obligations.
"The sentencing of youth to life in prison California sends
them an unequivocal message that they are beyond
redemption. It also ignores the differences between youth
and adults, differences we accept as a matter of common
sense and which science fully recognizes.
"Passage of this bill would help bring California into
compliance with international law and standards of justice.
The bill recognizes the youth are different from adults
and requires opportunities for rehabilitation that reflect
their unique ability to change."
b) According to the American Academy of Child & Adolescent
Psychiatry , "For the following reasons, special
consideration for crimes committed prior to the age of 18
should be made. Adolescents are cognitively and
emotionally less mature than adults. They are less able
than adults to consider the consequences of their behavior,
they are easily swayed by peers, and they may show poor
judgment. We also know that teens that have been victims
of abuse or have witnessed violence may show increased
levels of emotional arousal and a tendency to overreact to
perceived threats. Victims of child abuse and neglect are
overrepresented among incarcerated juveniles. 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. In many instances, these
juveniles have not received adequate diagnostic assessments
or interventions. National statistics also indicate that
African-American and Hispanic youth are disproportionately
diverted into juvenile correctional facilities and waited
to the adult criminal court system. In California, youth
as young as 14 years old are sentenced to LWOP. It is, in
essence, a sentence to die in prison. SB 399 provides
review of these cases after a youth offender (someone below
the age of 18 at the time of the offense) has served a
substantial amount of time in prison. It is an important
piece of legislation because it protects public safety
while at the same time recognizing that youth are different
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from adults. SB 399 holds youth accountable but also
provides a chance for young offenders to prove they have
changed.
"SB 399 is fiscally-wise legislation. Every youth LWOP case
costs the state around $40,000 per year of incarceration.
For someone sentenced to life in prison at age 14-17 years
old, that means decades of increasing incarceration costs
for our state. Almost everyone agrees that not all of the
youth offenders sentenced to LWOP in California should
remain in prison. These are cases in which the youth was
not the primary offender, was acting in a situation of
severe duress, or committed the crime under the direction
of an abusive adult. SB 399 would require careful
examination of these cases. By focusing our resources on
the cases that are a threat to public safety, SB 399 would
save millions of dollars for California.
"Sentencing adolescents to LWOP is out of step with the rest
of the world and applied unfairly here in California. The
philosophy of the juvenile court has always been
rehabilitation. This goal is now made more attainable that
ever by improved assessment tools, new effective community
intervention programs, and treatment for underlying
psychiatric disorders. However, such efforts are often
undermined by the diversion of scarce dollars into
incarceration, long sentences, and the death penalty rather
than into earlier intervention efforts and strengthening
the juvenile justice system so that it can effectively
respond to dangerous and/or repeat youth offenders to
ensure public safety.
c) According to the California Catholic Conference ,
"Approximately 250 juveniles in California are serving this
sentence. These children have been sentenced to LWOP for
crimes committed at an age when they are not considered
responsible to live away from their parents, drive, make
decisions related to their education or medical treatment,
vote, leave school or sign a contract. LWOP means
absolutely no release, it also means minors are often left
without access to program and rehabilitative services while
in prison. While crimes that are committed by children
under the age of 18 may be the same as those adults, these
offenders are not adults and should not be automatically
sentenced as adults. Young offenders will change
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significantly as they grow into adulthood. A child who is
14 years old today will be quite a different person when he
or she is 40. It is right and appropriate for us to
reassess that individual at that time and determine if he
or she poses any risk to public safety.
"The parable of the Prodigal Son (Luke 15) shows God's love
for us and models how we should love one another. In spite
of this younger son's reckless life and squandering of his
inheritance, the father celebrates his return home,
recognizing that his son has shown contrition and has
changed his life. 'The lost that have been found are to be
welcomed and celebrated, not resented and rejected.' "
(Responsibility, Rehabilitation and Restoration: A
Catholic Perspective on Crime and Criminal Justice, U.S.
Catholic Bishops 2000.)
7)Arguments in Opposition :
a) According to the California District Attorneys
Association , "It should be made clear that the universe of
inmates to which this bill would apply is comprised, almost
exclusively, of persons who were convicted of first degree
murder with one or more special circumstances and were 16
or 17 years old at the time of the offense. Existing law
properly recognizes the fact that there are juveniles who
commit special circumstances murder and that LWOP is an
appropriate sentence in many, if not most, of 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.
"In addition to our general concern with the intent of this
bill and its predecessors, we take issue with the specific
process of this bill. SB 399 lists a number of criteria
which must be satisfied by an inmate in order for him or
her to enjoy the benefit of a potentially decreased
sentence. These criteria set the bar so low that an inmate
who: (1) prior to the crime, had insufficient adult
support or supervision and had suffered from significant
stress, (2) availed him or herself of education or
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vocational programs while incarcerated, and (3) maintained
family connections through phone calls or visits, would be
entitled to a mandatory court hearing in which the
sentencing court would consider reducing the inmate's
sentence. While the bill includes other criteria that
could prove more pertinent, such as the nature of the crime
and the criminal history of the offender, there is no
requirement that those criteria actually be satisfied in
order to trigger the hearing."
b) According to Crime Victims United of California (CVUC) ,
"CVUC is highly concerned about the effect this proposal
would have on victims' families. The retroactivity
provisions of SB 399 alone are cause for opposition. Under
SB 399, victims would not only endure the pain associated
with their loss, but they would have to relive the pain
over and over each time their offender would be eligible to
have his sentence recalled and lowered to 25 years to life
(at 10, 15, 20 and 24 years). This retroactivity is not at
all fair to victims who sought justice and believed such
was delivered when the LWOP sentence was provided.
"Furthermore, judges currently have discretion regarding the
sentencing decisions in these cases. If a judge determines
that a sentence of LWOP is not justified for a defendant
given his background or illness, the judge currently has
the discretion to provide a lesser sentence of 25 years to
life at the outset and reserve LWOP for cases that warrant
such a sentence. In addition to the current judicial
discretion, CVUC also notes that in order for a juvenile to
obtain a sentence of LWOP, he or she must have committed a
heinous, violent offense with special circumstances. The
qualifying circumstances include intentional murder carried
out for financial gain; multiple first or second degree
murder convictions; murder to avoid arrest or make an
escape; and many more heinous circumstances."
c) According to the National Organization of Parents of
Murdered Children (POMC), "POMC is extremely concerned
about the effect this proposal would have on victims'
families. The retroactivity provisions of SB 399 are a
slap in the face to the deceased victims, surviving family
members, and our Criminal Justice System. Under SB 399,
victims would not only endure the pain associated with
their loss, but they would have to relive that pain over
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and over each time their offender would be eligible to have
his sentence recalled and lowered to 25 years to life (at
10, 15, 20 and 24 years). This retroactivity is not at all
fair to victims who sought justice and believed such was
delivered when the LWOP sentence was given after all the
fact of the case were heard.
"Furthermore, judges currently have discretion regarding the
sentencing decisions in these cases. If a judge determines
that a sentence of LWOP is not justified for a defendant
given his background or illness, the judge currently has
the discretion to provide a lesser sentence of 25 years to
life at the outset and reserve LWOP for cases that warrant
such a sentence. In addition to the currently have
discretion, POMC also notes that in order for a juvenile to
obtain a sentence of LWOP, he or she must have committed a
heinous, violent offense with special circumstances. The
qualifying special circumstances listed under the Penal
Code are numerous-22 separate categories to be exact. The
special circumstances include intentional murder carried
out for financial gain; multiple first or second degree
murder convictions; murder to avoid arrest or make an
escape, and; many more heinous circumstances."
8)Prior Legislation :
a) SB 999 (Yee), of the 2007-08 Legislative Session, would
have provided that the penalty for first-degree murder by a
defendant under the age of 18 shall be 25-years-to-life
rather than LWOP. SB 999 failed passage on the Senate
Floor.
b) SB 1223 (Kuehl), of the 2004-05 Legislative Session,
would have 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 has either
served 10 years or attained the age of 25. SB 1223 was
held on the Assembly Committee on Appropriations' Suspense
File.
REGISTERED SUPPORT / OPPOSITION :
Support
Advancement Project
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American Academy of Child & Adolescent Psychiatry
American Civil Liberties Union
American Federation of State, County and Municipal Employees
American Psychiatric Association
Bar Association of San Francisco
Books not Bars
California Academy of Child & Adolescent Psychiatry
California Attorneys for Criminal Justice
California Catholic Conference
California Church IMPACT
California Correctional Peace Officers Association
California Mental Health Directors Association
California Psychiatric Association
California Public Defenders Association
California-Nevada Annual Conference of the United Methodist
Church
Center on Juvenile and Criminal Justice
Chance Films
Child Welfare League of America
Children's Advocacy Institute
Children's Defense Fund
City of La Puente
Council of Churches, Santa Clara County
Diocese of Sacramento, Catholic Social Justice Office
Diocese of San Bernardino, Office of Social Concerns
Disability Rights California
Disability Rights Legal Center
Equal Justice Society
Everychild Foundation
Faith Communities for Families and Children
Free Battered Women
Friends Committee on Legislation
Homeboy Industries
Human Rights Watch
John Burton Foundation for Children without Homes
Juvenile Law Center
Law Offices of the Alternate Public Defender for Los Angeles
County
League of Women Voters of California
Legal Services for Children
Legal Services for Prisoners with Children
Loyola Law School Center for Juvenile Law and Policy
Lutheran Office of Public Policy-California
Mission Hospital
NAACP Legal Defense and Education Fund
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National Alliance on Mental Illness
National Center of Youth Law
National Council on Crime and Delinquency
Office of Restorative Justice-Archdiocese of Los Angeles
Pacific Juvenile Defender Center
Public Council
Sisters of St. Louis, California Region
Taxpayers for Improving Public Safety
University of San Francisco
University of Southern California Post Conviction Justice
Project
Youth Justice Coalition
Youth Law Center
1,077 private citizens
Opposition
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims Alliance
Crime Victims United
National Organization of Parents of Murdered Children
National Organization of Victims of 'Juvenile Lifers'
Riverside County District Attorney's Office
6 private citizens
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744