At mid-morning today the Cal Supreme handed down the much awaited decision regarding In RE: Hardin. And frankly, it was not good news. Short recap: Hardin, sentenced to LWOP for a crime committed when he was 25, challenged the exclusion of those over 18 who received an LWOP sentence from the provisions of youth offender consideration. The judicial Supremes, in a 5-2 decision reversed a lower court decision upholding that premise. This means that unless an individual receives an LWOP sentence for a crime committed before the reached the age of 18 (and there are more of those than you might think), he or she will not be included in the provisions of the juvenile LWOP bill passed several years ago that brings youthful LWOP lifers to a board hearing after 25 years of incarceration.
As a reminder, YOPH laws require special consideration to be given to the youthful status of those who received a life sentence for a crime committed before they had reached the age of 26--the age at which science says mature thinking and processing most often has been completed. However, LWOP laws only provide that consideration to those whose crime was committed before they reached the age of 18. And as any parent of a teen or young adult can testify, most aren't suddenly more mature when they reach 18 years and 1 day of age than they were at 17 years and 364 days old.
And while we could, and will in an upcoming edition of California Lifer Newsletter, get into the nitty gritty of this disappointing decision, basically the court kicked this hot football back into the lap of the legislature. Leaning on what is termed the "rational basis review," which we frankly find pretty irrational, the court opined, "“[i]t is both the prerogative and the duty of the Legislature to define degrees of culpability and punishment, and to distinguish between crimes in this regard.” (People v. Turnage (2012) 55 Cal.4th 62, 74.) Respect for the Legislature’s proper role — and ours — means that we may not strike down its enactment under a rational basis standard unless the challengers demonstrate that “there is no ‘rational relationship between the disparity of treatment and some legitimate governmental purpose.’ ”
Translation--it's up to the legislature to decide what they want to do, state it plainly in the law and pass said law. Good luck with that. Not that we won't keep trying, but to say the present political climate is a pretty fraught circus right now is a bit of an understatement. one bright spot in todays' decision was the pretty biting dissenting opinion of Justice Goodwin Liu, who, showing that at least someone on the high court 'gets it,' noted that those still omitted from juvenile LWOP, "whose crimes — no less than the crimes of other youth offenders — reflect the “transient rashness, proclivity for risk, and inability to assess consequences” that are characteristic of young minds still undergoing neurological development...continue to be denied any chance to demonstrate — as no doubt many could — that as mature adults they are more than the worst thing they ever did in their youth."
So this fight goes on, and while this is a step back, it is not the end. Last legislative session we worked with a Senator to carry a bill to bridge that gap in the juvenile LWOP law that would have brought that process into alignment with YOPH laws in general, but at the last moment that Senator (who shall be nameless unless you ask) backed out. So we'll keep trying. And if this, if indeed justice means anything to you, write your state legislators (this is a state, not federal issue), urge them to take up this cause and a bill to support this change. Send them our way, we can fill their ears and minds with reasons why they should support, and yes, carry such a bill.
In coming days, we'll have ready a white paper that outlines the issues, the solutions and reasons everyone should support a change in juvenile LWOP. When it's ready we'll let everyone know, so you'll have talking points to harangue your legislators with. Don't be shy!
Yes, we're disappointed, but more than that, we're angry. And around here, anger=action.