Existing law requires the Board of Parole Hearings to conduct a youth offender parole hearing for offenders sentenced to state prison who committed specified crimes when they were under 23 years of age. Existing law, as added by initiative statute, imposes a term of confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, on a defendant who was 16 years of age or older and under 18 years of age at the time of the commission of the crime for which he or she was found guilty of murder in the first degree, if specified special circumstances have been found true. Existing case law prohibits a juvenile convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the juveniles special circumstances in light of the principles and purposes of juvenile sentencing.

This bill would make a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing. The bill would require the board to complete, by July 1, 2020, all hearings for individuals who are or will be entitled to have their parole suitability considered at a youth offender parole hearing by these provisions before July 1, 2020. The bill would make other technical, nonsubstantive changes.

This bill would incorporate additional changes to Sections 3051 and 4801 of the Penal Code proposed by AB 1308 to be operative only if this bill and AB 1308 are enacted and this bill is enacted last.

Existing law requires the Board of Parole Hearings to conduct a youth offender parole hearing for offenders sentenced to state prison who committed specified crimes when they were under 23 years of age. Existing law, as added by initiative statute, imposes a term of confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, on a defendant who was 16 years of age or older and under 18 years of age at the time of the commission of the crime for which he or she was found guilty of murder in the first degree, if specified special circumstances have been found true. Existing case law prohibits a juvenile convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the juveniles special circumstances in light of the principles and purposes of juvenile sentencing.

This bill would make a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing. The bill would require the board to complete, by July 1, 2020, all hearings for individuals who are or will be entitled to have their parole suitability considered at a youth offender parole hearing by these provisions before July 1, 2020. The bill would make other technical, nonsubstantive changes.

This bill would incorporate additional changes to Sections 3051 and 4801 of the Penal Code proposed by AB 1308 to be operative only if this bill and AB 1308 are enacted and this bill is enacted last.

Existing law requires the Board of Parole Hearings to conduct a youth offender parole hearing for offenders sentenced to state prison who committed specified crimes when they were under 23 years of age. Existing law, as added by initiative statute, imposes a term of confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, on a defendant who was 16 years of age or older and under 18 years of age at the time of the commission of the crime for which he or she was found guilty of murder in the first degree, if specified special circumstances have been found true. Existing case law prohibits a juvenile convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the juveniles special circumstances in light of the principles and purposes of juvenile sentencing.

This bill would make a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing. The bill would require the board to complete, by July 1, 2020, all hearings for individuals who are or will be entitled to have their parole suitability considered at a youth offender parole hearing by these provisions before July 1, 2020. The bill would make other technical, nonsubstantive changes.

This bill would incorporate additional changes to Sections 3051 and 4801 of the Penal Code proposed by AB 1308 to be operative only if this bill and AB 1308 are enacted and this bill is enacted last.

Existing law requires the Board of Parole Hearings to conduct a youth offender parole hearing for offenders sentenced to state prison who committed specified crimes when they were under 23 years of age. Existing law, as added by initiative statute, imposes a term of confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, on a defendant who was 16 years of age or older and under the age of 18 years of age at the time of the commission of the crime for which he or she was found guilty of murder in the first degree, if specified special circumstances have been found true. Existing case law prohibits a juvenile convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the juveniles special circumstances in light of the principles and purposes of juvenile sentencing.

This bill would make a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing. The bill would require the board to complete, by July 1, 2020, all hearings for individuals who are or will be entitled to have their parole suitability considered at a youth offender parole hearing by this bill these provisions before July 1, 2020. The bill would make other technical, nonsubstantive changes.

Existing law requires the Board of Parole Hearings to conduct a youth offender parole hearing for offenders sentenced to state prison who committed specified crimes when they were under 23 years of age. Existing law, as added by initiative statute, imposes a term of confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, on a defendant who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime for which he or she was found guilty of murder in the first degree, if specified special circumstances have been found true. Existing case law prohibits a juvenile convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the juveniles special circumstances in light of the principles and purposes of juvenile sentencing.

This bill would make a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing. The bill would require the board to complete, by July 1, 2020, all hearings for individuals who are or will be entitled to have their parole suitability considered at a youth offender parole hearing by this bill before July 1, 2020. The bill would make other technical, nonsubstantive changes.

Existing law requires the Board of Parole Hearings to conduct a youth offender parole hearing for offenders sentenced to state prison who committed specified crimes when they were under 23 years of age. Existing law, as added by initiative statute, imposes a term of confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, on a defendant who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime for which he or she was found guilty of murder in the first degree, if specified special circumstances have been found true. Existing case law prohibits a juvenile convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the juveniles special circumstances in light of the principles and purposes of juvenile sentencing.

This bill would make a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing. The bill would require the board to complete complete, by July 1, 2020, all hearings for individuals who become eligible are or will be entitled to have their parole suitability considered at a youth offender parole hearing by this bill by July 1, 2020. before July 1, 2020. The bill would make other technical, nonsubstantive changes.

Existing law requires the Board of Parole Hearings to conduct a youth offender parole hearing for offenders sentenced to state prison who committed specified crimes when they were under 23 years of age. Existing law, as added by initiative statute, imposes a term of confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, on a defendant who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime for which he or she was found guilty of murder in the first degree, if specified special circumstances have been found true. Existing case law prohibits a juvenile convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the juveniles special circumstances in light of the principles and purposes of juvenile sentencing.

This bill would make a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing. The bill would require the board to complete all hearings for individuals who become eligible to have their parole suitability considered at a youth offender parole hearing by this bill by July 1, 2020. The bill would make other technical, nonsubstantive changes.

 UNFINISHED BUSINESS  

Bill No: SB 394

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 3/21/17

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SENATE FLOOR: 28-12, 5/31/17

AYES: Allen, Atkins, Beall, Bradford, Cannella, De León, Dodd, Galgiani, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mendoza, Mitchell, Monning, Newman, Pan, Portantino, Roth, Skinner, Stern, Wieckowski, Wiener, Wilk

NOES: Anderson, Bates, Berryhill, Fuller, Gaines, Glazer, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak

ASSEMBLY FLOOR: 43-22, 9/15/17

(ROLL CALL NOT AVAILABLE)

SUBJECT:

SOURCE: Anti-Recidivism Coalition

Fair Chance Project

Human Rights Watch

National Center for Youth Law

Pacific Juvenile Defender Center

Youth Justice Coalition

#cut50

DIGEST:

This bill makes a person convicted of offense before he or she was 18 years of age for which a life sentence without the possibility of parole was imposed eligible for parole under a youth parole hearing after his or her 25th year of incarceration.

Assembly Amendments

add double-jointing amendments to address potential chaptering issues.

ANALYSIS:

Existing law:

1. 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).)
2. Creates the youth offender parole hearing which is a hearing by the Board of Parole Hearings (BPH) for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense. (Penal Code § 3051)
3. Provides that the timing for the youth offender parole hearing depends on the sentence: if the controlling offense was a determinate sentence the offender shall be eligible for release after 15 years; if the controlling offense was a life term less than 25 years then the person is eligible for release after 20 years; and, if the controlling offense was 25 years or more then the person is eligible for release after 25 years. (Penal Code § 3051 (b).)
4. Provides that if the youth offender is found suitable for parole at the youthful offender parole hearing then the youth offender shall be released on parole. (Penal Code § 3051 (e).)
5. Provides that in reviewing a prisoner’s suitability for parole in a youthful offender parole hearing, the BPH shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. (Penal Code § 4801 (c).)

This bill:

1. Provides that a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.
2. Clarifies that it does not apply to those with a life without parole sentence who were older than 18 at the time of his or her controlling offense.
3. Gives the BPH until July 1, 2020, to give a hearing to those sentenced to life without parole as juveniles and who are or will be entitled to a hearing on or before July 1, 2020.

Comments

According to the author:

California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole (LWOP). The US is the only country in the world to use this sentence for children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment’s prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. The Court held that sentencing courts are required to consider the constitutional differences between children and adults at sentencing.

This year in Montgomery v. Louisiana (2016), the U.S. Supreme Court ruled that Miller’s prohibition on juvenile LWOP sentences applies retroactively and that every person serving such a sentence is entitled to a new sentencing hearing or an opportunity for release on parole.

The U.S. Supreme Court offered two options for states to come into compliance with the ruling. The first, a resentencing hearing, which is time-consuming, expensive, and subject to extended appeals. The second option is to provide effected individuals the possibility of parole, citing Wyoming’s law as an example. In Wyoming, juveniles sentenced to LWOP get a parole hearing after 22 years of incarceration. Other states, too, have chosen mandatory minimums or outright eliminated the juvenile LWOP sentence. In total, now 22 states have limited the use of LWOP for juveniles. More states are exploring changes to their laws in light of the recent Montgomery decision.

Existing law in California reflects both state and federal court opinions requiring resentencing hearings, and legislation passed in several years ago (SB 9, 2012) provided multiple chances for resentencing at 15, 20, and 24 years of incarceration. Each of these hearings can potentially result in appeals. Important note, courts have ruled the SB 9 process does not bring California into compliance with the Montgomery decision. SB 394 seeks to remedy the now unconstitutional juvenile sentences of life without the possibility of parole.

This bill would provide the roughly 300 individuals who are impacted by the court ruling are eligible for a Youth Offender Parole hearing and will bring California into compliance with federal law and eliminate the need for potentially multiple resentencing hearings and litigation.

Important to note, the possibility of parole does not mean release. The Supreme Court noted in Montgomery, “A State may remedy [this] violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them…Those prisoners who have shown an inability to reform will continue to serve life sentences.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee, minimal fiscal impact to BPH. Between January 1, 2018, and July 1, 2020, BHP estimates up to 40 additional hearings for comparison, in 2016 BHP scheduled more than 4,700 hearings. The Division of Parole will have minimal fiscal impact if any of the 40 hearings result in release on Parole. However, any additional parole costs will be more than offset by corresponding cost savings due to a reduction in inmate population. The projected annual per capita savings for this population is approximately $75,000.

SUPPORT: (Verified 9/14/17)

Anti-Recidivism Coalition (co-source)

Fair Chance Project (co-source)

Human Rights Watch (co-source)

National Center for Youth Law (co-source)

Pacific Juvenile Defender Center (co-source)

Youth Justice Coalition (co-source)

#cut50 (co-source)

Alliance for Boys and Men of Color

American Civil Liberties Union

Asian Law Alliance

California Attorneys for Criminal Justice

California Catholic Conference

California Public Defenders Association

Campaign for the Fair Sentencing of Youth

Center on Juvenile and Criminal Justice

Children’s Defense Fund-California

Community Coalition

Courage Campaign

Felony Murder Elimination Project

Friends Committee on Legislation of California

John Burton Advocates for Youth

Juvenile Law Center

Legal Services for Prisoners with Children

Prison Law Office

Silicon Valley De-Bug

USC Gould School of Law, Post-Conviction Project

The Sentencing Project

The W. Haywood Burns Institute

Numerous individuals

OPPOSITION: (Verified 9/14/17)

California District Attorneys Association

San Diego County District Attorney

ARGUMENTS IN SUPPORT: In support, the National Center for Youth Law states:

The United States is the only country in the world that imposes life without parole on youth under the age of 18. We support SB 394 because we believe the US should comply with international human rights laws and norms. In the United States, there are more than 2,500 youth who have been sentenced to life without parole; here in California there are at least 300. In the rest of the world combined, there are none. This extreme punishment is a violation of international law and fundamental human rights.

Punishment should be proportionate to culpability –it must reflect the capacity of young people to change and mature, and it should promote rehabilitation. Youth who commit crimes should be held accountable. However, when California condemns a young person to a life behind bars, it disregards the human capacity for rehabilitation, the enhanced ability of young people to grow and change, and the very real physical and psychological differences between children and adults. Senate Bill 394 ensures that youth offenders will face severe punishment for their crimes, but it also gives them hope and the chance to work toward the possibility of parole.

California’s use of life without parole sentences for youth is particularly unjust. Racial disparities in the imposition of this sentence are among the worst in the country. In California, African American youth are sentenced to life without parole at a rate that is 18 times that of white youth. In this state, in 56% of the cases in which a youth is sentenced to life without parole had an adult codefendant, the adult got a lesser sentence than the youth Finally, in 45% of California cases surveyed, youth sentenced to life without parole did not physically commit a murder, but instead were convicted of their role under the felony murder rule or aiding and abetting law.

ARGUMENTS IN OPPOSITION: According to the California District Attorneys Association:

It is important to note that the Miller court did not bar LWOP sentences for juveniles, but said that given the diminished culpability and heightened capacity for change of juveniles, “we think the appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” (Miller, 132 S.C. at 2469). And, “[a]lthough we do not foreclose a sentencer’s ability to make that judgment [LWOP] in homicide cases, we require it to take into account how children are different, and how differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id.)

It seems neither right, nor proportional, to make juveniles sentenced to LWOP eligible for parole in the 25^th year of incarceration, when juveniles and youth sentenced to the lesser term of 25 years to life, are eligible for parole at the same time –in the 25^th year.

SB 394 also fails to take into account that juvenile sentenced to LWOP in the last few years may have already had a Miller/Montgomery compliant hearing. If

they have, and the court still chose LWOP after considering the appropriate factors, we do not believe the defendant should be eligible for parole.

Prepared by: Mary Kennedy / PUB. S. /

9/15/17 18:07:07

**** END ****

SENATE THIRD READING

STR Bill Id:SB 394

Author:(Lara and Mitchell)

As Amended Ver:August 31, 2017

Majority vote

SENATE VOTE: 28-12

SUMMARY: Makes a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole (LWOP) has been imposed eligible for a youth offender parole hearing during his or her 25th year of incarceration. Specifically, this bill:

1. Provides that a defendant who was convicted of a controlling offense that was committed before he or she had attained 18 years of age and for which the sentence is LWOP shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.
2. Clarifies that youth offender parole does not apply to those sentenced to LWOP for a controlling offense that was committed after the person had attained 18 years of age.
3. Sets a deadline of July 1, 2020, for the Board of Parole Hearings (BPH) to complete all youth offender parole hearings for individuals who were sentenced to LWOP and who are or will be entitled to have their parole suitability considered at a youth offender parole hearing before July 1, 2020.

EXISTING LAW:

1. 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 LWOP 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.
2. Provides for a youth offender parole hearing which is a hearing by the board for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense.
3. Defines "controlling offense" as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.
4. Provides the following parole mechanism for a person who was convicted of a controlling offense that was committed before the person had attained 23 years of age:
   1. If the controlling offense was a determinate sentence the offender is eligible for release during his or 15th year of incarceration;
   2. If the controlling offense was a life term less than 25 years to life then the person is eligible for release during his or her 20th year of incarceration; and,
   3. If the controlling offense was a life term of 25 years to life then the person is eligible for release during his or her 25th year of incarceration.
5. Provides that if the youth offender is found suitable for parole at the youthful offender parole hearing then the youth offender shall be released on parole.
6. Provides that in reviewing a prisoner's suitability for parole in a youth offender parole hearing, the board shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.
7. Excludes from the youthful offender parole provisions an individual to whom this section would otherwise apply, but who, subsequent to attaining 23 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison. (Penal Code Section 3051(h).) The youth offender parole provisions also do not apply to inmates who were sentenced under the three strikes law or the one strike sex crimes law, or who were sentenced to LWOP. (Ibid.)
8. Sets a deadline of July 1, 2015, for BPH to complete all youth offender parole hearings for individuals who become entitled to have their parole suitability considered at a youth offender parole hearing prior to the effective date of the statute that established youth offender parole hearings.
9. Provides that those with indeterminate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years or age shall have their hearing by July 1, 2017.
10. Provides that those with determinate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years of age shall have their hearing by July 1, 2021, and shall have their consultation, as specified, with BPH before July 1, 2017.

FISCAL EFFECT: According to the Assembly Appropriations Committee, minimal fiscal impact to BPH. Between January 1, 2018, and July 1, 2020, BHP estimates up to 40 additional hearings for comparison, in 2016 BHP scheduled more than 4,700 hearings.

The Division of Parole will have minimal fiscal impact if any of the 40 hearings result in release on Parole. However, any additional parole costs will be more than offset by corresponding cost savings due to a reduction in inmate population. The projected annual per capita savings for this population is approximately $75,000.

COMMENTS: According to the author, "California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole. The U.S. [United States] is the only country in the world to impose this sentence on children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment's prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. Last year in Montgomery v. Louisiana (2016), the U.S. Supreme Court held that the Miller ruling applies retroactively.

"SB 394 will remedy the now unconstitutional juvenile sentences of life without the possibility of parole. The bill would allow the approximate 300 juveniles with LWOP cases to be eligible for an initial parole hearing after 25 years of incarceration. There would be no guarantee of parole, only an opportunity for the person to work hard and try to earn the chance for parole."

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001514

SENATE THIRD READING

STR Bill Id:SB 394

Author:(Lara and Mitchell)

As Amended Ver:August 24, 2017

Majority vote

SENATE VOTE: 28-12

SUMMARY: Makes a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole (LWOP) has been imposed eligible for a youth offender parole hearing during his or her 25th year of incarceration. Specifically, this bill:

1. Provides that a defendant who was convicted of a controlling offense that was committed before he or she had attained 18 years of age and for which the sentence is LWOP shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.
2. Clarifies that youth offender parole does not apply to those sentenced to LWOP for a controlling offense that was committed after the person had attained 18 years of age.
3. Sets a deadline of July 1, 2020, for the Board of Parole Hearings (BPH) to complete all youth offender parole hearings for individuals who were sentenced to LWOP and who are or will be entitled to have their parole suitability considered at a youth offender parole hearing before July 1, 2020.

EXISTING LAW:

1. 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 LWOP 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.
2. Provides for a youth offender parole hearing which is a hearing by the board for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense.
3. Defines "controlling offense" as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.
4. Provides the following parole mechanism for a person who was convicted of a controlling offense that was committed before the person had attained 23 years of age:
   1. If the controlling offense was a determinate sentence the offender is eligible for release during his or 15th year of incarceration;
   2. If the controlling offense was a life term less than 25 years to life then the person is eligible for release during his or her 20th year of incarceration; and,
   3. If the controlling offense was a life term of 25 years to life then the person is eligible for release during his or her 25th year of incarceration.
5. Provides that if the youth offender is found suitable for parole at the youthful offender parole hearing then the youth offender shall be released on parole.
6. Provides that in reviewing a prisoner's suitability for parole in a youth offender parole hearing, the board shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.
7. Excludes from the youthful offender parole provisions an individual to whom this section would otherwise apply, but who, subsequent to attaining 23 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison. (Penal Code Section 3051) The youth offender parole provisions also do not apply to inmates who were sentenced under the three strikes law or the one strike sex crimes law, or who were sentenced to LWOP. (Ibid.)
8. Sets a deadline of July 1, 2015, for BPH to complete all youth offender parole hearings for individuals who become entitled to have their parole suitability considered at a youth offender parole hearing prior to the effective date of the statute that established youth offender parole hearings.
9. Provides that those with indeterminate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years or age shall have their hearing by July 1, 2017.
10. Provides that those with determinate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years or age shall have their hearing by July 1, 2021, and shall have their consultation, as specified, with BPH before July 1, 2017.

FISCAL EFFECT: According to the Assembly Appropriations Committee, minimal fiscal impact to BPH. Between January 1, 2018, and July 1, 2020, BHP estimates up to 40 additional hearings for comparison, in 2016 BHP scheduled more than 4,700 hearings.

The Division of Parole will have minimal fiscal impact if any of the 40 hearings result in release on Parole. However, any additional parole costs will be more than offset by corresponding cost savings due to a reduction in inmate population. The projected annual per capita savings for this population is approximately $75,000.

COMMENTS: According to the author, "California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole. The U.S. is the only country in the world to impose this sentence on children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment's prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. Last year in Montgomery v. Louisiana (2016), the U.S. Supreme Court held that the Miller ruling applies retroactively.

"SB 394 will remedy the now unconstitutional juvenile sentences of life without the possibility of parole. The bill would allow the approximate 300 juveniles with LWOP cases to be eligible for an initial parole hearing after 25 years of incarceration. There would be no guarantee of parole, only an opportunity for the person to work hard and try to earn the chance for parole."

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001349

SENATE THIRD READING

STR Bill Id:SB 394

Author:(Lara and Mitchell)

As Amended Ver:May 26, 2017

Majority vote

SENATE VOTE: 28-12

SUMMARY: Makes a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole (LWOP) has been imposed eligible for a youth offender parole hearing during his or her 25th year of incarceration. Specifically, this bill:

1. Provides that a defendant who was convicted of a controlling offense that was committed before he or she had attained 18 years of age and for which the sentence is LWOP shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.
2. Clarifies that youth offender parole does not apply to those sentenced to LWOP for a controlling offense that was committed after the person had attained 18 years of age.
3. Sets a deadline of July 1, 2020, for the Board of Parole Hearings (BPH) to complete all youth offender parole hearings for individuals who were sentenced to LWOP and who are or will be entitled to have their parole suitability considered at a youth offender parole hearing before July 1, 2020.

EXISTING LAW:

1. 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 LWOP 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.
2. Provides for a youth offender parole hearing which is a hearing by the board for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense.
3. Defines "controlling offense" as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.
4. Provides the following parole mechanism for a person who was convicted of a controlling offense that was committed before the person had attained 23 years of age:
   1. If the controlling offense was a determinate sentence the offender is eligible for release during his or 15th year of incarceration;
   2. If the controlling offense was a life term less than 25 years to life then the person is eligible for release during his or her 20th year of incarceration; and,
   3. If the controlling offense was a life term of 25 years to life then the person is eligible for release during his or her 25th year of incarceration.
5. Provides that if the youth offender is found suitable for parole at the youthful offender parole hearing then the youth offender shall be released on parole.
6. Provides that in reviewing a prisoner's suitability for parole in a youth offender parole hearing, the board shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.
7. Excludes from the youthful offender parole provisions an individual to whom this section would otherwise apply, but who, subsequent to attaining 23 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison. (Penal Code Section 3051(h).) The youth offender parole provisions also do not apply to inmates who were sentenced under the three strikes law or the one strike sex crimes law, or who were sentenced to LWOP. (Ibid.)
8. Sets a deadline of July 1, 2015, for BPH to complete all youth offender parole hearings for individuals who become entitled to have their parole suitability considered at a youth offender parole hearing prior to the effective date of the statute that established youth offender parole hearings.
9. Provides that those with indeterminate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years or age shall have their hearing by July 1, 2017.
10. Provides that those with determinate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years or age shall have their hearing by July 1, 2021, and shall have their consultation, as specified, with BPH before July 1, 2017.

FISCAL EFFECT: According to the Assembly Appropriations Committee, minimal fiscal impact to BPH. Between January 1, 2018, and July 1, 2020, BHP estimates up to 40 additional hearings for comparison, in 2016 BHP scheduled more than 4,700 hearings.

The Division of Parole will have minimal fiscal impact if any of the 40 hearings result in release on Parole. However, any additional parole costs will be more than offset by corresponding cost savings due to a reduction in inmate population. The projected annual per capita savings for this population is approximately $75,000.

COMMENTS: According to the author, "California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole. The U.S. [United States] is the only country in the world to impose this sentence on children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment's prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. Last year in Montgomery v. Louisiana (2016), the U.S. Supreme Court held that the Miller ruling applies retroactively.

"SB 394 will remedy the now unconstitutional juvenile sentences of life without the possibility of parole. The bill would allow the approximate 300 juveniles with LWOP cases to be eligible for an initial parole hearing after 25 years of incarceration. There would be no guarantee of parole, only an opportunity for the person to work hard and try to earn the chance for parole."

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001236

Date of Hearing: July 19, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 394

Author:(Lara) – As Amended Ver:May 26, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill makes a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age, and for which a life sentence without the possibility of parole (LWOP) has been imposed, eligible for a youth offender parole hearing during his or her 25^th year of incarceration.

In addition, this bill sets the deadline of July 1, 2020, for the Board of Parole Hearings (BPH) to complete all youth offender parole hearings for individuals who were sentenced to LWOP and who are or will be entitled to have their parole suitability considered at a youth offender parole hearing before July 1, 2020.

FISCAL EFFECT:

Minimal fiscal impact to BPH. Between Januay1, 2018, and July 1, 2020, BHP estimates up to 40 additional hearings for comparison, in 2016 BHP scheduled more than 4,700 hearings.

The Division of Parole will have minimal fiscal impact if any of the 40 hearings result in release on Parole. However, any additional parole costs will be more than offset by corresponding cost savings due to a reduction in inmate population. The projected annual per capita savings for this population is approximately $75,000.

COMMENTS:

1. Background. Current law provides the following parole mechanism for a person who was convicted of a controlling offense that was committed before the person had attained 23 years of age:
   1. If the controlling offense was a determinate sentence the offender is eligible for release during his or her 15th year of incarceration;
   2. If the controlling offense was a life term less than 25 years to life then the person is eligible for release during his or her 20th year of incarceration; and,
   3. If the controlling offense was a life term of 25 years to life then the person is eligible for release during his or her 25th year of incarceration.
2. Purpose. The youth offender parole provisions expressly exclude a defendant who has been sentenced to LWOP. According to the author, “California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole. The U.S. is the only country in the world to impose this sentence on children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment’s prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. Last year in Montgomery v. Louisiana (2016), the U.S. Supreme Court held that the Miller ruling applies retroactively.

This bill will address the now unconstitutional juvenile LWOP sentences. SB 394 will allow the approximate 270 juveniles with LWOP cases to be eligible for an initial parole hearing after 25 years of incarceration. The author notes, “There would be no guarantee of parole, only an opportunity for the person to work hard and try to earn the chance for parole.”

1. Support. In support, Anti-Recidivism Coalition writes, “California condemns a young person to a life behind bars, it disregards the human capacity for rehabilitation, the enhanced ability of young people to grow and change, and the very real physical and psychological differences between children and adults. "And the Pacific Juvenile Defender Center, a Co-sponsor, notes: “SB 394 is not a ‘get out of jail free’ card. It requires that the person serve 25 years in prison before even becoming eligible for parole. In other words, a 17 year-old would be 42 years old before becoming qualified for a hearing."
2. Opposition. According to the California District Attorneys Association, “It seems neither right, nor proportional, to make juveniles sentenced to LWOP eligible for parole in the 25^th year of incarceration, when juveniles and youth sentenced to the lesser term of 25 years to life, are eligible for parole at the same time – in the 25^th year.”

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: June 27, 2017

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 394

Author:(Lara) – As Amended Ver:May 26, 2017

SUMMARY: Makes a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole (LWOP) has been imposed eligible for a youth offender parole hearing during his or her 25^th year of incarceration. Specifically, this bill:

1. Provides that a defendant who was convicted of a controlling offense that was committed before he or she had attained 18 years of age and for which the sentence is LWOP shall be eligible for release on parole by the board during his or her 25^th year of incarceration at a youth offender parole hearing unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.
   
2. Clarifies that youth offender parole does not apply to those sentenced to LWOP for a controlling offense that was committed after the person had attained 18 years of age.
   
3. Sets a deadline of July 1, 2020, for the Board of Parole Hearings (BPH) to complete all youth offender parole hearings for individuals who were sentenced to LWOP and who are or will be entitled to have their parole suitability considered at a youth offender parole hearing before July 1, 2020.

EXISTING LAW:

1. 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 LWOP 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. (Pen. Code, § 1170, subd. (d)(2).)
   
2. Provides for a youth offender parole hearing which is a hearing by the board for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense. (Pen. Code, § 3051.)
   
3. Defines “controlling offense” as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment. (Pen. Code, § 3051, subd. (a)(2)(B).)
4. Provides the following parole mechanism for a person who was convicted of a controlling offense that was committed before the person had attained 23 years of age:
   1. If the controlling offense was a determinate sentence the offender is eligible for release during his or 15th year of incarceration;
   2. If the controlling offense was a life term less than 25 years to life then the person is eligible for release during his or her 20th year of incarceration; and,
   3. If the controlling offense was a life term of 25 years to life then the person is eligible for release during his or her 25th year of incarceration. (Pen. Code, § 3051, subd. (b).)
5. Provides that if the youth offender is found suitable for parole at the youthful offender parole hearing then the youth offender shall be released on parole. (Pen. Code, § 3051, subd. (d).)
6. Provides that in reviewing a prisoner’s suitability for parole in a youth offender parole hearing, the board shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. (Pen. Code, §§ 3051, subd. (d) & 4801, subd. (c).)
7. Excludes from the youthful offender parole provisions an individual to whom this section would otherwise apply, but who, subsequent to attaining 23 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison. (Pen. Code § 3051, subd. (h).) The youth offender parole provisions also do not apply to inmates who were sentenced under the three strikes law or the one strike sex crimes law, or who were sentenced to LWOP. (Ibid.)
8. Sets a deadline of July 1, 2015, for BPH to complete all youth offender parole hearings for individuals who become entitled to have their parole suitability considered at a youth offender parole hearing prior to the effective date of the statute that established youth offender parole hearings. (Pen. Code, § 3051, subd. (i)(1).)
9. Provides that those with indeterminate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years or age shall have their hearing by July 1, 2017. (Pen. Code § 3051, subd. (i)(2).)
10. Provides that those with determinate sentences who are eligible for a youth offender parole hearing on the effective date of the statute that raised the eligibility cut off from 18 to 23 years or age shall have their hearing by July 1, 2021, and shall have their consultation, as specified, with BPH before July 1, 2017. (Pen. Code § 3051, subd. (i)(3).)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, “California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole. The U.S. is the only country in the world to impose this sentence on children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment’s prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. Last year in Montgomery v. Louisiana (2016), the U.S. Supreme Court held that the Miller ruling applies retroactively.

“SB 394 will remedy the now unconstitutional juvenile sentences of life without the possibility of parole. The bill would allow the approximate 300 juveniles with LWOP cases to be eligible for an initial parole hearing after 25 years of incarceration. There would be no guarantee of parole, only an opportunity for the person to work hard and try to earn the chance for parole.”

1. Evolution of the Law Regarding Lengthy Sentences for Juveniles -- United States and California Supreme Court Decisions: In 2010, the United States Supreme Court ruled that it is unconstitutional to sentence a youth who did not commit homicide to LWOP. (Graham v. Florida (2010) 540 U.S. 48 [130 S.Ct. 2011] (Graham).) The Court discussed the fundamental differences between a juvenile and adult offender and reasserted its earlier findings from Roper v. Simmons (2005) 543 U.S. 551, that juveniles have lessened culpability than adults due to those differences. The Court stated that “life without parole is an especially harsh punishment for a juvenile,” noting that a juvenile offender “will on average serve more years and a greater percentage of his life in prison than an adult offender.” (Graham v. Florida, supra, 540 U.S. at pp. 48-51.)

In Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller), the United States Supreme Court further held the Eighth Amendment forbids a state from mandating the imposition of an LWOP sentence on a juvenile homicide offender. (Id. at p. ___ [132 S.Ct. at p. 2469].) The court concluded: “Although we do not foreclose a sentencer’s ability to [impose an LWOP sentence on a juvenile] in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id. at p. ___ [132 S.Ct. at p. 2469].)

Consistent with these decisions, in People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme Court ruled 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 – i.e., the functional equivalent of an LWOP sentence – constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Id. at p. 268.) A juvenile offender must be provided a “meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.” (Ibid.)

The Court in Caballero advised that “[d]efendants 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.” (People v. Caballero, supra, 55 Cal.4th at p. 269.) The Court did not provide a precise timeframe for setting these future parole hearings, but stressed that “the sentence must not violate the defendant’s Eighth Amendment rights and must provide [the defendant with] a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ under Graham's mandate.” (Ibid.)

While the court in Caballero pointed out that these inmates may file petitions for writs of habeas corpus in the trial court, the court also urged the Legislature to establish a parole eligibility mechanism for an individual sentenced to a de facto life term for crimes committed as a juvenile. (People v. Caballero, supra, 55 Cal.4th at p. 269, fn. 5.)

1. Youth Offender Parole Provisions in Accordance with United States and California Supreme Court Decisions: In accordance with the decisions of the United States Supreme Court in Graham v. Florida, supra, 560 U.S. 48, and Miller v. Alabama, supra, __ U.S. __ [132 S.Ct. 2455], and the California Supreme Court’s urging in People v. Caballero, supra, 55 Cal.4^th 262, SB 260 (Hancock), Chapter 312, Statutes of 2013, established a parole eligibility mechanism for individuals sentenced to lengthy determinate or life terms for crimes committed when they were juveniles. (Pen. Code, § 3051.) Under the youth offender parole process created by SB 260, the person has an opportunity for a parole hearing after having served 15, 20, or 25 years of incarceration depending on their controlling offense. (Pen. Code, § 3051.) SB 261 (Hancock), Chapter 471, Statutes of 2015, expanded those eligible for a youth offender parole hearing to those whose controlling offense occurred before they reached the age of 23. (Pen. Code, § 3051.)

In People v. Franklin (2016) 63 Cal.4th 261, the California Supreme Court held the enactment of Penal Code section 3051 satisfies the requirement of Miller-Caballero that a defendant who was a minor at the time of an offense have a reasonable opportunity to gain release during his or her natural lifetime because it requires that the defendant receive a parole hearing during his 25th year of incarceration. (See also In re Kirchner (2017) 2 Cal.5^th 1040, 1049, fn. 4.)

As relevant here, the youth offender parole provisions expressly exclude a defendant who has been sentenced to LWOP. (In re Kirchner, supra, 2 Cal.5^th at p. 1049, fn. 4.)

1. Recall and Resentencing Provisions for Juveniles Sentenced to LWOP: SB 9 (Yee) Chapter 828, Statutes of 2012, created a recall and resentencing process for juveniles sentenced to LWOP. It provides that a defendant who was under 18 years of age at the time of the offense, and who was sentenced to LWOP, may submit a petition for recall and resentencing after having served at least 15 years of the sentence, except as specified.^[1] A court must find by a preponderance of the evidence that statements in the petition are true and can then hold a resentencing hearing. (Pen. Code, § 1170, subd. (d)(2).) If the petition is denied, the person is given additional chances for resentencing after 20 and then 24 years of incarceration. (Pen. Code, § 1170, subd. (d)(2)(H).) The recall and resentencing provision is retroactive. (Pen. Code, § 1170, subd. (d)(2)(J).)
   

The recall and resentencing provision of SB 9 as codified in Penal Code section 1170, subdivision (d)(2), has been found to be an inadequate remedy for a Miller violation. (In re Kirchner, supra, 2 Cal.5^th at pp. 1049-1052 [Section 1170, subd. (d)(2), which provides an avenue for juvenile offenders serving LWOP terms to seek resentencing, does not provide an adequate remedy at law for Miller error; the inquiry under § 1170, subd. (d)(2), is not designed to address Miller error, and will not necessarily provide a defendant with the lawful sentence that Miller requires.].)

1. Need for this Bill: In Montgomery v. Louisiana (2016) __ U.S. __ [136 S.Ct. 718] (Montgomery), the United States Supreme Court held that Miller announced a substantive rule of constitutional law that applies retroactively. (Id. at p. 736.) The decision noted that giving Miller retroactive effect would not be too burdensome because states could simply give affected prisoners parole hearings, explaining, “Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” (Montgomery v. Louisiana, supra, __ U.S. at p. __ [136 S.Ct. at p. 736].)
   

SB 394 applies the youth offender parole process to juveniles sentenced to LWOP who were under 18 years of age at the time of the controlling offense. This bill provides that they become eligible for a parole hearing after having served 25 years of incarceration. This is in line with the United States Supreme Court’s suggestion of parole consideration as a remedy for a Miller violation. (Montgomery v. Louisiana, supra, __ U.S. at p. __ [136 S.Ct. at p. 736].)

1. Arguments in Support:
   
   1. According to the Anti-Recidivism Coalition, this bill, “The United States is the only country in the world that imposes life without parole on youth under the age of 18. We support SB 394 because we believe the US should comply with international human rights laws and norms. In the United States, there are more than 2,500 youth who have been sentenced to life without parole; here in California there are at least 300. In the rest of the world combined, there are none. This extreme punishment is a violation of international law and fundamental human rights.
      
      “Punishment should be proportionate to culpability –it must reflect the capacity of young people to change and mature, and it should promote rehabilitation. Youth who commit crimes should be held accountable. However, when California condemns a young person to a life behind bars, it disregards the human capacity for rehabilitation, the enhanced ability of young people to grow and change, and the very real physical and psychological differences between children and adults. Senate Bill 394 ensures that youth offenders will face severe punishment for their crimes, but it also gives them hope and the chance to work toward the possibility of parole.
      
      “California’s use of life without parole sentences for youth is particularly unjust. Racial disparities in the imposition of this sentence are among the worst in the country. In California, African American youth are sentenced to life without parole at a rate that is 18 times that of white youth. In this state, in 56% of the cases in which a youth is sentenced to life without parole had an adult codefendant, the adult got a lesser sentence than the youth Finally, in 45% of California cases surveyed, youth sentenced to life without parole did not physically commit a murder, but instead were convicted of their role under the felony murder rule or aiding and abetting law.”
      
   2. The Pacific Juvenile Defender Center, a Co-sponsor of this bill, notes: “SB 394 is not a ‘get out of jail free’ card. It requires that the person serve 25 years in prison before even becoming eligible for parole. In other words, a 17 year-old would be 42 years old before becoming qualified for a hearing. Even then, the Parole Board might well decide that they still pose a danger to the public and should not be released. This will remain an astoundingly long sentence for a teenager, but having the SB 394 provision for eventual parole hearings will give young people some hope and incentive to work toward release. As the Supreme Court observed, “The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. (Graham v. Florida (2010) 560 US 48, 79) SB 394 would provide that opportunity.”
2. Argument in Opposition: According to the California District Attorneys Association, “It seems neither right, nor proportional, to make juveniles sentenced to LWOP eligible for parole in the 25^th year of incarceration, when juveniles and youth sentenced to the lesser term of 25 years to life, are eligible for parole at the same time – in the 25^th year.”
   

“SB 394 also fails to take into account that a juvenile sentenced to LWOP in the last few years may have already had a Miller/Montgomery compliant hearing. If they have, and the court still chose LWOP after considering the appropriate factors, we do not believe the defendant should be eligible for parole.”

1. Related Legislation: AB 1308 (Stone) would expand the youth offender parole process, a parole process for persons sentenced to lengthy prison terms for crimes committed before attaining 23 years of age, to include those who committed their crimes when they were 25 years of age or younger. AB 1308 has been referred to the Senate Committee on Public Safety.
   
2. Prior Legislation:
   
   1. SB 261 (Hancock), Chapter 471, Statutes of 2015, expanded the youth offender parole process, a parole process for persons sentenced to lengthy prison terms for crimes committed before attaining 18 years of age, to include those who have committed their crimes before attaining the age of 23
      
   2. SB 260 (Hancock), Chapter 312, Statutes of 2013, established a youth offender parole hearing which is a hearing by BPH for the purpose of reviewing the parole suitability of a prisoner who was under 18 years of age at the time of his/her controlling offense.
      
   3. SB 9 (Yee), Chapter 828, Statutes of 2012, authorized a prisoner who was under 18 years of age at the time of committing an offense for which the prisoner was sentenced to LWOP to submit a petition for recall and resentencing to the sentencing court, and to the prosecuting agency, as specified.
      
   4. SB 399 (Yee), of the 2009-2010 Legislative Session, would have authorized a prisoner who was under 18 years of age at the time of committing an offense for which the prisoner was sentenced to LWOP to submit a petition for recall and resentencing to the sentencing court, and to the prosecuting agency, as specified. SB 399 failed passage in the Assembly.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Anti-Recidivism Coalition (Co-sponsor)

#cut50 (Co-sponsor)

Human Rights Watch (Co-sponsor)

National Center for Youth Law (Co-sponsor)

Pacific Juvenile Defender Center (Co-sponsor)

Youth Justice Coalition (Co-sponsor)

All Saints Church Foster Care Project

American Civil Liberties Union

American Friends Service Committee

Asian Law Alliance

California Attorneys for Criminal Justice

California Catholic Conference

California Coalition for Youth

California Public Defenders Association

Campaign for the Fair Sentencing of Youth

Center on Juvenile and Criminal Justice

Children’s Defense Fund-California

Courage Campaign

Equal Justice Society

Fair Chance Project

Felony Murder Elimination Project

Friends Committee on Legislation

Healing Dialogue and Action

National Association of Social Workers

Silicon Valley De-Bug

USC Gould School of Law

W. Haywood Burns Institute

Young Women’s Freedom Center

2 Private Individuals

Opposition

California District Attorneys Association

San Diego County District Attorney

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744

1. A person is not eligible for recall and resentencing if it was pled and proved that he or she tortured the victim or the victim was a public safety official, another law enforcement, or a firefighter. (Pen. Code, § 1170, subd. (d)(2)(ii); In re Kirchner, supra, 2 Cal.5th at p. 1049.) ↑

 THIRD READING  

Bill No: SB 394

Author:

Amended: 5/26/17

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 3/21/17

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT:

SOURCE: Anti-Recidivism Coalition

Fair Chance Project

Human Rights Watch

National Center for Youth Law

Pacific Juvenile Defender Center

Youth Justice Coalition

#cut50

DIGEST:

This bill makes a person convicted of offense before he or she was 18 years of age for which a life sentence without the possibility of parole was imposed eligible for parole under a youth parole hearing after his or her 25th year of incarceration.

ANALYSIS:

Existing law:

1. 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).)
2. Creates the youth offender parole hearing which is a hearing by the Board of Parole Hearings (BPH) for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense. (Penal Code § 3051)
3. Provides that the timing for the youth offender parole hearing depends on the sentence: if the controlling offense was a determinate sentence the offender shall be eligible for release after 15 years; if the controlling offense was a life term less than 25 years then the person is eligible for release after 20 years; and, if the controlling offense was 25 years or more then the person is eligible for release after 25 years. (Penal Code § 3051 (b).)
4. Provides that if the youth offender is found suitable for parole at the youthful offender parole hearing then the youth offender shall be released on parole. (Penal Code § 3051 (e).)
5. Provides that in reviewing a prisoner’s suitability for parole in a youthful offender parole hearing, the BPH shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. (Penal Code § 4801 (c).)

This bill:

1. Provides that a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.
2. Clarifies that it does not apply to those with a life without parole sentence who were older than 18 at the time of his or her controlling offense.
3. Gives the BPH until July 1, 2020, to give a hearing to those sentenced to life without parole as juveniles and who are or will be entitled to a hearing on or before July 1, 2020.

Comments

According to the author:

California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole (LWOP). The US is the only country in the world to use this sentence for children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment’s prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. The Court held that sentencing courts are required to consider the constitutional differences between children and adults at sentencing.

This year in Montgomery v. Louisiana (2016), the U.S. Supreme Court ruled that Miller’s prohibition on juvenile LWOP sentences applies retroactively and that every person serving such a sentence is entitled to a new sentencing hearing or an opportunity for release on parole.

The U.S. Supreme Court offered two options for states to come into compliance with the ruling. The first, a resentencing hearing, which is time-consuming, expensive, and subject to extended appeals. The second option is to provide effected individuals the possibility of parole, citing Wyoming’s law as an example. In Wyoming, juveniles sentenced to LWOP get a parole hearing after 22 years of incarceration. Other states, too, have chosen mandatory minimums or outright eliminated the juvenile LWOP sentence. In total, now 22 states have limited the use of LWOP for juveniles. More states are exploring changes to their laws in light of the recent Montgomery decision.

Existing law in California reflects both state and federal court opinions requiring resentencing hearings, and legislation passed in several years ago (SB 9, 2012) provided multiple chances for resentencing at 15, 20, and 24 years of incarceration. Each of these hearings can potentially result in appeals. Important note, courts have ruled the SB 9 process does not bring California into compliance with the Montgomery decision. SB 394 seeks to remedy the now unconstitutional juvenile sentences of life without the possibility of parole.

This bill would provide the roughly 300 individuals who are impacted by the court ruling are eligible for a Youth Offender Parole hearing and will bring California into compliance with federal law and eliminate the need for potentially multiple resentencing hearings and litigation.

Important to note, the possibility of parole does not mean release. The Supreme Court noted in Montgomery, “A State may remedy [this] violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them…Those prisoners who have shown an inability to reform will continue to serve life sentences.”

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee analysis:

• Immediately-eligible caseload: One-time costs to the BPH (General Fund) to complete risk assessments and conduct parole hearings by July 1, 2020, for inmates eligible upon the effective date of the bill.
• Future caseload: Unknown future annual costs, likely minor (General Fund), to conduct hearings for inmates as they become eligible. The magnitude of costs would be dependent upon the number of new inmates sentenced to prison who meet the criteria for a youth parole hearing under this bill coupled with inmates currently in state prison who would be eligible for a hearing but have not yet served 25 years of incarceration. This population likely is to be small relative to the number of parole eligibility hearings that BPH conducts annually. Additional, one-time costs minor costs (General Fund) for BPH to update its tracking system.
• Courts: Potential unknown costs to state trial courts to adjudicate any new filing of habeas corpus writ petitions for denial of parole made possible by this bill. These possible costs could be offset to an unknown degree as a result of an accompanying reduction in habeas petitions by inmates who become eligible for parole as a result of SB 394 who otherwise would challenge their convictions and/or sentences.
• Future incarceration savings: Potential cost savings in the hundreds of thousands of dollars annually (General Fund) to the Department of Corrections and Rehabilitation for inmates released. Savings would grow as the years they otherwise would have served compound. Over 10 years, the savings could increase to in the millions of dollars presuming that the inmates would have served 10 additional years. Minor offsetting increase in parole costs.

SUPPORT: (Verified 5/25/17)

Anti-Recidivism Coalition (co-source)

Fair Chance Project (co-source)

Human Rights Watch (co-source)

National Center for Youth Law (co-source)

Pacific Juvenile Defender Center (co-source)

Youth Justice Coalition (co-source)

#cut50 (co-source)

Alliance for Boys and Men of Color

American Civil Liberties Union

Asian Law Alliance

California Attorneys for Criminal Justice

California Catholic Conference

California Public Defenders Association

Campaign for the Fair Sentencing of Youth

Center on Juvenile and Criminal Justice

Children’s Defense Fund-California

Community Coalition

Courage Campaign

Felony Murder Elimination Project

Friends Committee on Legislation of California

John Burton Advocates for Youth

Juvenile Law Center

Legal Services for Prisoners with Children

Prison Law Office

Silicon Valley De-Bug

USC Gould School of Law, Post-Conviction Project

The Sentencing Project

The W. Haywood Burns Institute

Numerous individuals

OPPOSITION: (Verified 5/25/17)

California District Attorneys Association

San Diego County District Attorney

ARGUMENTS IN SUPPORT: In support, the National Center for Youth Law states:

The United States is the only country in the world that imposes life without parole on youth under the age of 18. We support SB 394 because we believe the US should comply with international human rights laws and norms. In the United States, there are more than 2,500 youth who have been sentenced to life without parole; here in California there are at least 300. In the rest of the world combined, there are none. This extreme punishment is a violation of international law and fundamental human rights.

Punishment should be proportionate to culpability –it must reflect the capacity of young people to change and mature, and it should promote rehabilitation. Youth who commit crimes should be held accountable. However, when California condemns a young person to a life behind bars, it disregards the human capacity for rehabilitation, the enhanced ability of young people to grow and change, and the very real physical and psychological differences between children and adults. Senate Bill 394 ensures that youth offenders will face severe punishment for their crimes, but it also gives them hope and the chance to work toward the possibility of parole.

California’s use of life without parole sentences for youth is particularly unjust. Racial disparities in the imposition of this sentence are among the worst in the country. In California, African American youth are sentenced to life without parole at a rate that is 18 times that of white youth. In this state, in 56% of the cases in which a youth is sentenced to life without parole had an adult codefendant, the adult got a lesser sentence than the youth Finally, in 45% of California cases surveyed, youth sentenced to life without parole did not physically commit a murder, but instead were convicted of their role under the felony murder rule or aiding and abetting law.

ARGUMENTS IN OPPOSITION: According to the California District Attorneys Association:

It is important to note that the Miller court did not bar LWOP sentences for juveniles, but said that given the diminished culpability and heightened capacity for change of juveniles, “we think the appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” (Miller, 132 S.C. at 2469). And, “[a]lthough we do not foreclose a sentencer’s ability to make that judgment [LWOP] in homicide cases, we require it to take into account how children are different, and how differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id.)

It seems neither right, nor proportional, to make juveniles sentenced to LWOP eligible for parole in the 25^th year of incarceration, when juveniles and youth sentenced to the lesser term of 25 years to life, are eligible for parole at the same time –in the 25^th year.

SB 394 also fails to take into account that juvenile sentenced to LWOP in the last few years may have already had a Miller/Montgomery compliant hearing. If they have, and the court still chose LWOP after considering the appropriate factors, we do not believe the defendant should be eligible for parole.

Prepared by:

5/27/17 17:21:30

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SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 394 (Lara) - Parole: youth offender parole hearings

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 25, 2017

Bill Summary:

SB 394 would make a person sentenced to prison for life without the possibility of parole for an offense he or she committed before the person was 18 years of age eligible for parole after his or her 25th year of incarceration.

Fiscal Impact:

• Immediately-eligible caseload: One-time costs to the Board of Parole Hearings (BPH) (General Fund) to complete risk assessments and conduct parole hearings by July 1, 2020, for inmates eligible upon the effective date of the bill.
• Future caseload: Unknown future annual costs, likely minor (General Fund), to conduct hearings for inmates as they become eligible. The magnitude of costs would be dependent upon the number of new inmates sentenced to prison who meet the criteria for a youth parole hearing under this bill coupled with inmates currently in state prison who would be eligible for a hearing but have not yet served 25 years of incarceration. This population likely is to be small relative to the number of parole eligibility hearings that BPH conducts annually. Additional, one-time costs minor costs (General Fund) for BPH to update its tracking system.
• Courts: Potential unknown costs to state trial courts to adjudicate any new filing of habeas corpus writ petitions for denial of parole made possible by this bill. These possible costs could be offset to an unknown degree as a result of an accompanying reduction in habeas petitions by inmates who become eligible for parole as a result of SB 394 who otherwise would challenge their convictions and/or sentences.
• Future incarceration savings: Potential cost savings in the hundreds of thousands of dollars annually (General Fund) to the Department of Corrections and Rehabilitation (CDCR) for inmates released. Savings would grow as the years they otherwise would have served compound. Over ten years, the savings could increase to in the millions of dollars presuming that the inmates would have served ten additional years. Minor offsetting increase in parole costs.

Author Amendments:

Add coauthors and make clarifying changes.

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SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 394 (Lara) - Parole: youth offender parole hearings

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 394 would make a person sentenced to prison for life without the possibility of parole for an offense he or she committed before the person was 18 years of age eligible for parole after his or her 25th year of incarceration.

Fiscal Impact:

• Immediately-eligible caseload: One-time costs to the Board of Parole Hearings (BPH) (General Fund) to complete risk assessments and conduct parole hearings by July 1, 2020, for inmates eligible upon the effective date of the bill.
• Future caseload: Unknown future annual costs, likely minor (General Fund), to conduct hearings for inmates as they become eligible. The magnitude of costs would be dependent upon the number of new inmates sentenced to prison who meet the criteria for a youth parole hearing under this bill coupled with inmates currently in state prison who would be eligible for a hearing but have not yet served 25 years of incarceration. This population likely is to be small relative to the number of parole eligibility hearings that BPH conducts annually. Additional, one-time costs minor costs (General Fund) for BPH to update its tracking system.
• Courts: Potential unknown costs to state trial courts to adjudicate any new filing of habeas corpus writ petitions for denial of parole made possible by this bill. These possible costs could be offset to an unknown degree as a result of an accompanying reduction in habeas petitions by inmates who become eligible for parole as a result of SB 394 who otherwise would challenge their convictions and/or sentences.
• Future incarceration savings: Potential cost savings in the hundreds of thousands of dollars annually (General Fund) to the Department of Corrections and Rehabilitation (CDCR) for inmates released. Savings would grow as the years they otherwise would have served compound. Over ten years, the savings could increase to in the millions of dollars presuming that the inmates would have served ten additional years. Minor offsetting increase in parole costs.

Background:

Existing law requires BPH to conduct a youth offender parole hearing for offenders sentenced to state prison who committed certain crimes when they were under 23 years of age. Additionally, current law imposes a sentence of state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life, for a defendant found guilty of first-degree murder (with certain special circumstances found true) who was 16 or 17 years of age at the time of the crime. The U.S. Supreme Court, however, has prohibited a minor convicted of a homicide offense from being sentenced to life in prison without parole absent consideration of the minor’s special circumstances in light of the principles and purposes of juvenile sentencing.

If BPH finds a youth offender suitable for parole during his or her youth offender parole hearing, then that person shall be released on parole. In reviewing a person’s suitability for parole in a youth offender parole hearing, BPH is required to give great weight to the diminished culpability of minors as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the inmate in accordance with relevant case law.

Proposed Law:

This bill would make a person who was convicted of a controlling offense that was committed before the person was 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by BPH during his or her 25th year of incarceration at a youth offender parole hearing. SB 394 also would require BPH to complete all hearings for individuals who become eligible to have their parole suitability considered at a youth offender parole hearing by this bill by July 1, 2020.

Prior Legislation:

SB 261 (Hancock, Ch. 471, Stats. 2015) expand the youth offender parole process to include persons who committed their crimes before attaining the age of 23, as specified.

SB 260 (Hancock, Ch. 312, Stats. 2013) established a parole process for persons sentenced to prison for certain crimes committed before attaining 18 years of age.

Staff Comments:

There are approximately 268 inmates currently sentenced to CDCR with a sentence of life without the possibility of parole for crimes they committed before the age of 18. About 13 of those inmates will have served 25 or more years of incarceration by the end of 2017. An additional 23 could become eligible on or before July 1, 2020. Consequently, between January 1, 2018 and July 1, 2020, BPH could be required to conduct approximately 36 additional youth offender parole hearings if SB 394 was enacted into law. The expansion of hearings authorized by this bill would result in additional workload to conduct youth offender analyses, additional pre-board audits, and release processing. This would be a comparatively small percentage of increased workload given the volume of parole eligibility hearings, and the accompanying resources that the hearings entail, that the board conducts annually. The Department of Corrections and Rehabilitation anticipates these to be minor costs. The board additionally would incur minor one-time costs to update its tracking system so that BPH can electronically screen inmates to determine eligibility and the date upon which eligible inmates will have served 25 years of incarceration. The assumptions provided here anticipate the inclusion of enhancements in the definition of controlling offense.

Additionally, there is the potential for significant future costs savings to CDCR to the extent a number of offenders are granted parole and released as a result of this measure, resulting in reduced incarceration costs that otherwise would have been incurred under existing law. These savings, in turn, would be offset in part, by costs incurred by the Division of Adult Parole Operations for any increased workload of assessing parole plans and supervising people upon release.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 394 Hearing Date: March 21, 2017

Subject: Parole: Youth Offender Parole Hearings

HISTORY

Source: Human Rights Watch

Anti-Recidivism Coalition

Fair Chance Project

National Center for Youth Law

Pacific Juvenile Defender Center

Youth Justice Coalition

Prior Legislation: SB 261 (Hancock) Chapter 471, Stats. 2015

SB 260 (Hancock) Chapter 312, Stats. 2013

SB 9 (Yee) Chapter 828, Stats. 2012

Support: Alliance for Boys and Men of Color; Asian Law Alliance; California Attorneys for Criminal Justice; California Catholic Conference; California Public Defenders Association; Campaign for the Fair Sentencing of Youth; Center on Juvenile and Criminal Justice; Children’s Defense Fund-California; Community Coalition; Felony Murder Elimination Project; John Burton Advocates for Youth; Juvenile Law Center; Legal Services for Prisoners with Children; Prison Law Office; Silicon Valley De-Bug; USC Gould School of Law, Post-Conviction Project; The Sentencing Project; The W. Haywood Burns Institute; #cut50; a number of individuals

Opposition: California District Attorneys Association

PURPOSE

This bill would make a person convicted of offense before he or she was 18 years of age for which a life sentence without the possibility of parole was imposed shall be eligible for parole under a youth parole hearing after his or her 25^th year of incarceration.

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).)

Existing law creates the youth offender parole hearing which is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense. (Penal Code § 3051)

Existing law provides that the timing for the youth offender parole hearing depends on the sentence: if the controlling offense was a determinate sentence the offender shall be eligible for release after 15 years; if the controlling offense was a life term less than 25 years then the person is eligible for release after 20 years; and, if the controlling offense was 25 years or more then the person is eligible for release after 25 years. (Penal Code § 3051 (b).)

Existing law provides that if the youth offender is found suitable for parole at the youthful offender parole hearing then the youth offender shall be released on parole. (Penal Code § 3051 (e).)

Existing law provides that in reviewing a prisoner’s suitability for parole in a youthful offender parole hearing, the Board of Parole Hearings shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. (Penal Code § 4801 (c).)

This bill provides that person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25^th year of incarceration at a youth offender parole hearing unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.

This bill clarifies that it does not apply to those with a life without parole sentence who were older than 18 at the time of his or her controlling offense.

This bill gives the Board of Parole until July 1, 2020 to give a hearing to those sentenced to life without parole as juveniles who become entitled to a hearing on January 1, 2018.

COMMENTS

1. Need for This Bill

According to the author:

California law permits youth under the age of 18 to be sentenced to life in prison without the possibility of parole (LWOP). The US is the only country in the world to use this sentence for children. In Miller v. Alabama (2012), the U.S. Supreme Court ruled that the Eighth Amendment’s prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile offenders. The Court held that sentencing courts are required to consider the constitutional differences between children and adults at sentencing.

This year in Montgomery v. Louisiana (2016), the U.S. Supreme Court ruled that Miller’s prohibition on juvenile LWOP sentences applies retroactively and that every person serving such a sentence is entitled to a new sentencing hearing or an opportunity for release on parole.

The U.S. Supreme Court offered two options for states to come into compliance with the ruling. The first, a resentencing hearing, which is time-consuming, expensive, and subject to extended appeals. The second option is to provide effected individuals the possibility of parole, citing Wyoming’s law as an example. In Wyoming, juveniles sentenced to LWOP get a parole hearing after 22 years of incarceration. Other states, too, have chosen mandatory minimums or outright eliminated the juvenile LWOP sentence. In total, now 22 states have limited the use of LWOP for juveniles. More states are exploring changes to their laws in light of the recent Montgomery decision.

Existing law in California reflects both state and federal court opinions requiring resentencing hearings, and legislation passed in several years ago (SB 9, 2012) provided multiple chances for resentencing at 15, 20, and 24 years of incarceration. Each of these hearings can potentially result in appeals. Important note, courts have ruled the SB 9 process does not bring California into compliance with the Montgomery decision. SB 394 seeks to remedy the now unconstitutional juvenile sentences of life without the possibility of parole.

This bill would provide the roughly 300 individuals who are impacted by the court ruling are eligible for a Youth Offender Parole hearing and will bring California into compliance with federal law and eliminate the need for potentially multiple resentencing hearings and litigation.

Important to note, the possibility of parole does not mean release. The Supreme Court noted in Montgomery, “A State may remedy [this] violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them…Those prisoners who have shown an inability to reform will continue to serve life sentences.”

2. Juveniles cannot be sentenced to life without parole.

The U.S. Supreme Court in Miller v. Alabama, 567 U.S. __ (2012) held that “a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing.” (Montgomery v. Louisiana 577 U.S. ___(2016)) The Court further found in Montgomery v. Louisiana that Miller stated a substantive rule and thus is retroactive. The Court understood that this could mean that a great number of people who were sentenced as juveniles may be being held unconstitutionally stating:

Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received a mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole rather than by resentencing them. See, e.g., Wyo. Stat. Ann §6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crime reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. (Montgomery v. Louisiana 577 U.S. ___(2016))

3. Current System of Submitting a Petition to Resentence

SB 9 (Yee) Chapter 828, Statutes 2012 created a process for a person sentenced as a juvenile to life without parole (LWOP) to submit a petition to the sentencing court for recall or resentencing. A court must find by preponderance that statements in the petition are true and then can grant a hearing. The court then at the hearing has the discretion whether or not to grant the resentencing to 25 to life. (Penal Code Section 1170 (d)(2))

Because of the multi-step requirements, the process in created in SB 9 (Yee) does not actually guarantee a person sentenced as a juvenile to a parole hearing and it is not likely it would meet with the requirements in Miller and Montgomery.

4. Applying Youth Offender Parole Provisions to LWOP

California already has a parole process that can be applied to juvenile LWOP as suggested by the Court in Montgomery. In the youth offender parole process created by SB 260 (Hancock) Chapter 312, Statutes 2013 a person who was sentenced to an offense before the age of 23 has an opportunity for parole after 15, 20 or 25 years of incarceration depending on their controlling offense. At the parole hearing, the board shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth and subsequent growth and increased maturity of the prisoner in accordance with relevant case law. (Penal Code Secion 4801 (c))

This bill would apply the youth offender parole process to juveniles sentenced to LWOP. It would provide that they become eligible for a hearing after serving 25 years of incarceration. This would bring California into compliance with the constitutional requirements of Miller and Montgomery.

The bill makes clear that unlike other youth offender parole provisions which apply to a person sentenced before the age of 23, the provisions applying to juvenile LWOP apply only to those sentenced before the age of 18.

5. Support

In Support the National Center for Youth Law States:

The United States is the only country in the world that imposes life without parole on youth under the age of 18. We support SB 394 because we believe the US should comply with international human rights laws and norms. In the United States, there are more than 2,500 youth who have been sentenced to life without parole; here in California there are at least 300. In the rest of the world combined, there are none. This extreme punishment is a violation of international law and fundamental human rights.

Punishment should be proportionate to culpability –it must reflect the capacity of young people to change and mature, and it should promote rehabilitation. Youth who commit crimes should be held accountable. However, when California condemns a young person to a life behind bars, it disregards the human capacity for rehabilitation, the enhanced ability of young people to grow and change, and the very real physical and psychological differences between children and adults. Senate Bill 394 ensures that youth offenders will face severe punishment for their crimes, but it also gives them hope and the chance to work toward the possibility of parole.

California’s use of life without parole sentences for youth is particularly unjust. Racial disparities in the imposition of this sentence are among the worst in the country. In California, African American youth are sentenced to life without parole at a rate that is 18 times that of white youth. In this state, in 56% of the cases in which a youth is sentenced to life without parole had an adult codefendant, the adult got a lesser sentence than the youth Finally, in 45% of California cases surveyed, youth sentenced to life without parole did not physically commit a murder, but instead were convicted of their role under the felony murder rule or aiding and abetting law.

The Pacific Juvenile Defender Center notes:

SB 394 is not a “get out of jail free” card. It requires that the person serve 25 years in prison before even becoming eligible for parole. In other words, a 17 year-old would be 42 years old before becoming qualified for a hearing. Even then, the Parole Board might well decide that they still pose a danger to the public and should not be released. This will remain an astoundingly long sentence for a teenager, but having the SB 394 provision for eventual parole hearings will give young people some home and incentive to work toward release. As the Supreme Court observed, “The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. (Graham v. Florida (2010) 560 US 48, 79) SB 394 would provide that opportunity.

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