Policy Brief on California Senate Bill 9: California Fair Sentencing for Youth Act

Policy Brief on California Senate Bill 9 California Fair Sentencing for Youth Act Alea Bell and Laura S. Abrams, PhD UCLA Juvenile Jus ce and Reentry Project February 2012

We believe that SB 9 cons tutes a modest proposal that upholds public accountability, while also providing a chance for those who commi ed crimes when they were young to show personal growth and change, and for the State of California to assert itself as a responsible steward of its future.

Introduc on In December 2010, State Senator Leland Yee authored California Senate Bill 9 (SB 9), along with Principal Co‐authors Senators Darrell Steinberg and Juan Vargas, and Co‐authors Assembly Members Felipe Fuentes and Bonnie Lowenthal. SB 9 is a modest bill that gives juvenile offenders in California who are sentenced to life without the possibility of parole (LWOP) the opportunity to request a new sentencing hearing. The bill failed to pass the California Assembly in summer 2011 by one vote. This month (February 2012) SB9 is under considera on once again and is expected to get one final chance to pass. This policy brief will provide an overview of the recent history related to Juvenile Life without Parole (JLWOP) sentences in the United States that precede this bill, and then outline the most salient arguments for and against SB 9. Finally, we will present our posi on in support of the passage of California Senate Bill 9.

History of Life Without Parole Sentences All U.S. states currently have provisions to transfer or waive legally classified minors (i.e., those under the age of 18) to adult criminal court. Many of these provisions were established in the wake of a violent crime spike in the 1980s, when public a tudes toward young offenders shi ed from a rehabilita ve focus to a more fear‐based, puni ve one. The transfer of minors to adult criminal courts translated into eligibility for a range of adult sentences, including the death penalty and life without the possibility of parole. In California for example, JLWOP sentences were sanc oned into law in 1990. In 2005, the Supreme Court of the United States banned the use of the death penalty for those convicted of a crime they commi ed before they turned 18. In the majority opinion on Roper v. Simmons, the jus ces acknowledged that juveniles couldn’t be classified with adult offenders because of their lack of psychological development and vulnerability to outside influences.

Once sentencing a juvenile to death was considered a viola on of the Eighth Amendment’s ban on “cruel and unusual punishment,” death row inmates who were convicted for crimes commi ed as juveniles had their sentences reduced to LWOP (Ogilvie, 2008).

In the wake of Roper v. Simmons, some states began to compensate for this restric on on the death penalty with the imposi on of JLWOP sentences. The somewhat broader use of JLWOP has resulted in stark racial dispari es among those serving this sentence. For example, today in California, 85% of those sentenced to JLWOP are people of color. African Americans are serving the sentence at a rate 18 mes higher than for White youth; the rate for La no youth is five mes higher than for White youth (HRW, 2008, p. 24‐28).

Eventually, as JLWOP sentences became more prevalent, such provisions were challenged in the courts. In 2010, the Supreme Court weighed in again, this me concluding in Graham vs. Florida that it is cruel and unusual punishment to send a young person to prison for LWOP for a crime that does not involve a murder (Graham v. Florida, 2010). The court further ruled it imprudent to equate juvenile criminal behavior with that of adults. For crimes other than murder, sentences that incarcerate young people without possibility for rehabilita on were ruled grossly inappropriate.

In California, there are currently 227 inmates serving JLWOP sentences. Forty‐one percent of these individuals were 16 years old at the me of their crime, 55 percent were 17, and the remaining 4 percent were 14 or 15 years old (HRW, 2008, p. 15). In February 2009, legisla on was introduced in the California State Senate to address the JWLOP issue. The California Fair Sentences for Youth Act or Senate Bill 399, which would have allowed California youth sentenced to life in prison to pe on the court for a resentencing hearing, failed its final vote in the California State Assembly in August 2010. In December 2010, a revamped version of this bill (SB 9) was introduced. The proposed SB 9 would allow individuals serving JLWOP sentences to apply for a resentencing hearing a er serving 15 years (California State Senate, 2011). A hearing could be requested up to three mes. If a resentencing hearing is granted, the review court could reduce the sentence to 25 years to life—a prison term that does include the possibility for parole.

Arguments in Favor of SB 9 Since its introduc on, SB 9 has garnered support from advocacy groups across California and the na on.

Official proponents of the bill include organiza ons such Human Rights Watch, American Civil Liber es Union, American Psychiatric Associa on, Bar Associa on of San Francisco, California A orneys for Criminal Jus ce, Children’s Defense Fund, Los Angeles County Democra c Party, The Sentencing Project, and 1,879 private individuals (Duda, 2011). Supporters argue the following main points:

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JLWOP ignores the characteris cs that make juvenile offenders different. To proponents of SB 9, science and morality converge to demonstrate that LWOP is not a fair sentence for a young person, whose character is s ll in progress and whose judgment is not as mature as that of an adult. In their view, a burgeoning body of neuroscience and behavioral research has provided ample evidence that young people’s brains are not fully developed in the areas of cogni ve and moral reasoning, thus affec ng impulse control, recklessness, and the ability to understand or an cipate consequences (Steinberg and Sco , 2010, p. 2). Juveniles are physiologically less capable of mature judgment, thereby rendering them less culpable. Proponents argue that the Supreme court itself has used this reasoning in banning the juvenile death penalty, as well as in preven ng youth under 18 years old from marrying without parental consent, vo ng, or serving on a jury.

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JLWOP sentences fail to recognize young people’s unique capacity for change. Proponents of SB 9 argue that youth may be par cularly amenable to rehabilita on, as their brains undergo significant growth and change as they mature into adulthood. The frontal lobe, which regulates cri cal thinking and reasoning skills, develops during this transi on and has the poten al to change an individual’s behavior. As behavior is by no means “fixed,” it is not possible to predict whether a young offender will become a career criminal or perhaps be amenable to rehabilita on efforts.

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JLWOP sentences discourage rehabilita on. Supporters of SB 9 cri cize that, instead of using possible parole as an incen ve for personal development and change and despite the lack of evidence demonstra ng that these youth are incapable of rehabilita on and growth, many youth serving LWOP sentences are precluded from par cipa ng in educa onal and rehabilita ve services that could be beneficial for them.

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The United States stands alone in the world in implemen ng JLWOP sentences.

Supporters of SB 9 argue that JLWOP sentences violate interna onal law, which strictly prohibits LWOP sentences for youth. In the United States, there are approximately 2,400 people serving LWOP sentences. In the rest of the world, there are just 7 people serving JLWOP sentences.

Many proponents of passing SB 9 believe that JLWOP is a serious human rights issue that puts the United States far behind its interna onal peers (HRW, 2005).

Addi onal arguments for SB 9 Human Rights Watch www.hrw.org Fair Sentencing Project for Youth www.fairsentencingforyouth.org The Sentencing Project www.sentencingproject.org American Civil Liber es Union www.aclu.org/racial‐jus ce/juvenile‐jus ce Juvenile Life Without Parole blog www.jlwop.com

Arguments in Opposi on of SB 9 Opponents of the passage of SB 9 include the California District A orneys Associa on, California Police Chiefs Associa on, Crime Vic ms United of California, Los Angeles County District’s A orney’s Office, and others (Duda, 2011). These opponents rely on the following main arguments:

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Brains don’t commit the crimes, people do. Opponents say arguments based on the neurobiological development of juveniles do not trump the need for youth to be held accountable for their ac ons (Morse, 2006, p. 397‐412). They argue that punishment is as legi mate a goal of our criminal jus ce system as rehabilita on. In addi on, some have ques oned the real difference between 17 and a half year olds and 18 year old “adults” (S mson and Grossman, 2009).

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SB 9 causes re‐vic miza on. Opponents of the bill argue that SB 9, by allowing offenders to pe on for resentencing up to three mes, would reopen the wounds of vic m’s families on poten ally three separate occasions. Resentencing hearings would be open to par cipa on by vic m’s families and, according to opponents, might cause families to re‐experience trauma when faced with the possibility of an offender’s release. Vic ms’ rights groups consider this measure a viola on of such rights.

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SB 9 is uncons tu onal. Many opponents believe that retroac vely introducing parole reviews for resentencing and possible release into a LWOP sentence for murder is uncons tu onal. In California, these opponents believe SB9 would breach Marsy’s Law, a defined bill of rights for crime vic ms, by viola ng the right to a final conclusion of the case, to be informed of parole, and to have the safety of the vic m and vic m’s family considered in whether to hold a hearing (Na onal Organiza on of Vic ms of Juvenile Killers).

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JLWOP are reserved for the worst of the worst. Legislators and vocal opponents of this bill have argued that because JLWOP sentences are reserved for murder sentences, they apply to those who have commi ed the most heinous crimes and who show li le to no signs of rehabilita on, thus nega ng the rehabilita on argument espoused by youth advocates. 

Addi onal arguments against SB 9 Na onal Organiza on of Vic ms of Juvenile Lifers www.teenkillers.org www.jlwopvic ms.org

Marsy’s Law for All www.marsyslawforall.org

Crime Vic ms United of California www.crimevic msunited.com

The Heritage Founda on www.blog.heritage.org/tag/california

SB 9 is an unnecessary and expensive measure. Opponents note the increased costs to the state for appeal hearing costs, such as a orneys, inves gators, and psychiatrists.

Some groups es mate $127,000 cost per pe on for resentencing, $381,000 for all three, and $20,000 per offender for parole supervision (Horowitz, 2011).

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SB 9 threatens public safety. Many opponents argue that SB 9 would allow dangerous offenders to pe on the court under the right condi ons and qualify for a resentencing hearing solely on the basis of performing acts that indicate the poten al for rehabilita on. Opponents believe that SB9 establishes weak criteria upon which many inmates would be en tled to a court hearing, such as expressing remorse or par cipa ng in prison educa onal programs. They fear that a prisoner mee ng these guidelines may not be exhibi ng true rehabilita on and that such a low standard is disrespec ul to the vic ms of the crime (Louge, 2011).

Our Posi on In California, hundreds of individuals who commi ed crimes before they became legal adults have been sentenced to die. They are not sentenced to the electric chair or a lethal injec on; instead, they are sentenced to prison for the rest of their lives with no chance for parole. We believe that passage of SB 9 is a step towards a fairer jus ce system for these individuals. SB 9 will help to ensure that rehabilita on remains at least one of the anchoring goals the juvenile and criminal jus ce system and despite the troubling nature of these crimes, that young people are not lost to a life in prison. The passage of SB 9 demonstrates an investment in the poten al rehabilita on of all young people without compromising public safety.

SB 9 would also serve as an important safety valve against sentencing injus ces. Opponents of SB 9 assert that JLWOP sentences are appropriate for the egregious, violent repeat offenders who receive them; however, 59% of young people sentenced to JLWOP across the country are first me offenders. This means that the majority of juveniles in prison for life had no prior criminal record (HRW, 2008, p. 16). In addi on, about 45% of juveniles sentenced to LWOP for murder did not personally commit the murder. Many are serving their life sentences under the Felony Murder Law, where a par cipant in a felony is held responsible for a codefendant’s act of murder that occurred during the course of the felony (HRW, 2008, p. 19‐22). Youth without access to private counsel are also more likely to be convicted of a felony and are thus remain in adult court with adult sanc ons (HRW, 2008, p, 24‐28). The passage of SB 9 would provide an important op‐ portunity to redress these imbalances in the criminal court process and begin to address these dispari es.

Finally, despite opponents’ fears, we believe SB 9 is nothing close to a guarantee of parole or a fast track to freedom for juvenile offenders. We believe that this bill cons tutes a modest proposal that upholds accountability, while also providing a chance for those who commi ed crimes when they were young to show personal growth and change—and for the state of California to assert itself as a responsible steward of its future.

Cita ons

California State Senate. Senate Bill 9, As Amended 5/27/11, California Penal Code 1170. Retrieved on October 25, 2011 from h p://www.leginfo.ca.gov/ cgi‐bin/postquery?bill_number=sb_9&sess=CUR&house=B&author=yee.

Duda, C. (July 11, 2011). California’s ‘second chance’ bill offers hope for LWOP sentences youth.” Juvenile Jus ce Informa on Exchange. Retrieved on February 1, 2012 from h p://jjie.org/californias‐second‐chance‐bill‐offers‐hope‐for‐lwop‐sentenced‐youth/17979.

Graham v. Florida. No. 08‐7412, Supreme Court of the US (17 May 2010).

Horowitz, D. (August 8, 2011). The pricetag for SB 9 to California taxpayers. Na onal Organiza on of Vic ms of Juvenile Lifers. Retrieved on February 10, 2012 from h p://www.teenkillers.org/index.php/legisla on/california‐2/pricetag‐sb‐9‐california‐taxpayers.

Human Rights Watch. (January 13, 2008). When I die, they’ll send me home: Youth sentenced to life without parole in California. Retrieved on October 28, 2011 from h p://www.hrw.org/en/reports/2008/01/13/when‐i‐die‐they‐ll‐send‐me‐home.

Human Rights Watch. (October 11, 2005). The rest of their lives: Life without parole for child offenders in the United States. Retrieved on October 28, 2011 from h p://www.hrw.org/node/11578/sec on/1, 1, 5.

Logue, D. (August 31, 2011). Sacramento liberals releasing cold blooded killers back in your neighborhood. Retrieved on February 3, 2012 from h p:// arc.asm.ca.gov/member/3/?p=ar cle&sid=209&id=249346.

Morse, S. (2006). Brain overclaim syndrome and criminal responsibility: A diagnos c note. Ohio State Journal of Criminal Law, Vol. 3:397.

Na onal Organiza on of Vic ms of Juvenile Lifers. (unknown). SB 9 is Uncons tu onal. Retrieved on February 10, 2012 from h p:// www.teenkillers.org/index.php/legisla on/california‐2/sb‐9‐uncons tu onal.

Ogilvie, B. (Winter 2008). Is life unfair? What’s next for juveniles a er Roper v. Simmons. Baylor Law Review, Vol. 60.

Steinberg, L. and Sco , E. (November 2, 2010). Should juvenile offenders ever be sentenced to life without the possibility of parole?. Human Develop‐ ment, Vol. 53, (2).

S mson, C.D. and Grossman, A.M. (August 2009). Adult me for adult crimes: Life without parole for juvenile killers and violent teens. Washington, DC: The Heritage Founda on. Retrieved on February 10, 2012 from h p://www.heritage.org/research/reports/2009/08/adult‐ me‐for‐adult‐crimes‐life‐ without‐parole‐for‐juvenile‐killers‐and‐violent‐teens .

The UCLA Juvenile Jus ce and Reentry Project (JJRP) seeks to apply a social welfare approach to youth and young adult reentry by focusing on the whole system surrounding the young person — his or her peers, family, neighborhood, and larger forces such as the economy and the availability of jobs. In this way, JJRP will become a leading informa on center of best treatment and interven on prac ces that promote the successful community reintegra on of youth offenders, as well as a resource and model for juvenile jus ce and reentry ini a ves in other areas of the country.

The UCLA Department of Social Welfare’s research and teaching guide policy makers, shape prac ce and programs in such areas as welfare, aging, health care, mental health, children and families, and long‐term support. UCLA Social Welfare faculty members are commi ed to placing their knowledge at the service of communi es and empowering the disadvantaged and the vulnerable.

Consistently rated as one of the top programs in the na on, the UCLA Meyer and Renee Luskin School of Public Affairs incorporates best prac ces in scholarship, research and teaching in the fields of social welfare, urban planning, and public policy. Faculty, students, and alumni are ac vely engaged in developing and applying innova ve solu ons to some of society’s greatest challenges.

For more informa on: UCLA Juvenile Jus ce and Reentry Project Luskin School of Public Affairs 3250 School of Public Affairs Building Box 951656 Los Angeles, CA 90095 reentryproject@spa.ucla.edu (310) 206‐0693 The views expressed are those of the authors and not of the Luskin School of Public Affairs or the UCLA Department of Social Welfare.

Alea Bell is currently a graduate student at UCLA’s Department of Social Welfare and a volunteer with the Juvenile Jus ce Reentry Project. Alea will graduate from UCLA in 2013.

Laura S. Abrams is an Associate Professor in the Department of Social Welfare at the Luskin School of Public Affairs and the Principal Inves gator and Research Director of the UCLA Juvenile Jus ce and Reentry Project.