BILL ANALYSIS
SB 399
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Date of Hearing: June 30, 2010
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 399 (Yee) - As Amended: June 22, 2010
Policy Committee: Public
SafetyVote:4-2
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 (murder) for
which the defendant was sentenced to LWOP, has served at least
10 years, the defendant may submit to the sentencing court a
petition for recall and re-sentencing. (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 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
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adult co-defendant.
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. (This means 25-years-to-life, with a 25-year
minimum, though priors and circumstances could significantly
increase the 25-year minimum.)
4)Specifies that victims, or family members if the victim is
deceased, retain the right to participate in the hearing.
5)Specifies that 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 15 years; or if not granted, after 20
years; or if not granted, after 24 years. A final petition may
be submitted during the 25th year of the defendant's sentence.
7)Applies retroactively.
FISCAL EFFECT
1)Minor absorbable annual GF costs to the state trial courts,
likely less than $25,000 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 15 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 three inmates per year
are re-sentenced and end up serving 30 years rather than 50
years, with the first re-sentenced inmates leaving prison in
2026, the annual savings of about $135,000 (per capita costs)
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will increase annually, reaching about $2.7 million in 2046.
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
17-year-olds. As of January 2010, according to Department of
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Corrections and Rehabilitation (CDCR) data, 271 persons were
serving LWOP who were convicted of a murder committed before
the age of 18. Of is total, 155 were 17, 116 were 16, and two
were 15. (It is not clear how these 15-year-olds could receive
LWOP.) In terms of ethnicity, 42% are Latino, 32% are Black,
and 14% are White.
(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.)
In only three of these cases was the offense committed before
1990, which appears to
reflect a societal change in thinking regarding punishing
youthful offenders.
3)Last month 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. As noted by the Assembly Public Safety Committee
analysis of SB 399, 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.
"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 . . . .
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"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
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." (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.)
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 .
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?
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"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 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 Academy of Child & Adolescent Psychiatry :
"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."
7)Opposition .
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
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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 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) 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."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081