S277487
IN THE SUPREME COURT OF CALIFORNIA
March 4, 2024
Second Appellate District, Division Seven, B315434; Los Angeles County Superior Court, A893110
Justice Kruger authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Groban, and Jenkins concurred.
Justice Liu filed a dissenting opinion.
Justice Evans filed a dissenting opinion.
PEOPLE v. HARDIN
S277487
Opinion of the Court by Kruger, J.
California‘s youth offender parole statute offers opportunities for early release to certain persons who are incarcerated for crimes they committed at a young age. (
Appellant Tony Hardin is currently serving a life without parole sentence for a special circumstance murder he committed at age 25. He contends that the youth offender parole statute violates the Fourteenth Amendment‘s equal protection guarantee by irrationally discriminating against young adult offenders sentenced to life without parole — including, in particular, those sentenced to life without parole for special circumstance murder. Agreeing with Hardin and disagreeing with other appellate decisions to address the issue, the Court of Appeal held the life without parole exclusion invalid for lack of a rational basis.
We now reverse. The standard we apply here, rational basis review, is necessarily deferential. The law recognizes that “[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.‘” (Ibid.)
Without foreclosing the possibility of other as-applied challenges to the statute, we conclude that Hardin has not demonstrated that
This conclusion does not turn on this court‘s judgments about what constitutes sound sentencing policy. It turns on the deference we owe to the policy choices made through the democratic process by the people of
I.
In 1989, Hardin robbed and killed an elderly neighbor. Hardin was then 25 years old. A jury convicted Hardin of first degree murder, among other offenses. The jury also found true a special circumstance allegation that Hardin murdered the victim during the commission of a robbery. Hardin‘s conviction for first degree murder with special circumstances carried a mandatory sentence of either death or life in prison without the possibility of parole. (
On appeal, Hardin raised two equal protection arguments. He first argued that section 3051 violates equal protection by excluding young adult offenders sentenced to life without parole while including juvenile offenders (that is, offenders younger than 18 at the time of the offense) sentenced to life without parole. The Court of Appeal rejected this argument. It explained that the
Hardin next argued that section 3051 violates equal protection by treating young adult offenders sentenced to life without parole for special circumstance murder differently from other young adult offenders serving parole-eligible life sentences for other crimes. On this point, the Court of Appeal agreed with Hardin. (Hardin, supra, 84 Cal.App.5th at p. 291.)
Employing the two-step equal protection analysis prescribed by our cases (see, e.g., Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1102 (Eric B.)), the Court of Appeal began by considering whether, in light of the purposes of the challenged law, young adult offenders convicted of special circumstance murder and sentenced to life without parole are similarly situated to all other young offenders. The court answered yes. It explained that thе Legislature‘s stated purpose in enacting section 3051 was to permit “a determination whether a person who committed a serious or violent crime between the age of 18 and 25 has sufficiently matured and outgrown the youthful impulses that led to the commission of the offense.” (Hardin, supra, 84 Cal.App.5th at p. 287.) The court concluded that all young offenders are similarly situated from this standpoint, since a person‘s potential for increased maturity and growth is not crime-specific. (Ibid.)
Turning to the next step of the analysis, the basis for the disparate treatment of similarly situated groups, the court concluded there was no rational basis for section 3051 to distinguish between young adult offenders convicted of special circumstance murder and sentenced to life without parole and other young adult offenders. The court again adverted to the stated purpose of section 3051: “[I]f, as the Legislature stated, the goal of section 3051 was ... to permit youth offenders a meaningful opportunity for parole if they demonstrate increased maturity and impulse control, then for that purpose there is no plausible basis for distinguishing between same-age offenders based solely on the crime they committed.” (Hardin, supra, 84 Cal.App.5th at p. 288; see id. at pp. 278-279.)
The Court of Appeal acknowledged other appellate cases had reached a different conclusion. In those cases, the courts reasoned that the Legislature, in determining which young adult offenders should be afforded opportunities for early release, permissibly decided to take into account the seriousness of
We granted review to resolve the conflict between the Court of Appeal‘s decision in this case and the decisions of the other appellate courts to address the issue.1
II.
A.
Section 3051 provides that, at a time designated in the statute, the Board of Parole Hearings must hold a parole hearing “for the purpose of reviewing the
Certain persons are, however, categorically ineligible for youth offender parole hearings, including offenders sentenced for multiple violent or serious felonies under the “Three Strikes” law (
B.
The Legislature first created this system of youth offender parole hearings in 2013, following a series of court decisions identifying Eighth Amendment limits on the sentencing of juvenile offenders. (Stats. 2013, ch. 312, § 1; see generally Franklin, supra, 63 Cal.4th at p. 277.) In Roper v. Simmons (2005) 543 U.S. 551 (Roper), the high court held that the Eighth Amendment forbids imposing the death penalty for crimes committed before age 18, given the diminished culpability of juveniles relative to adult offenders. (Roper, at p. 575.) Five years later, the high court held in Graham v. Florida (2010) 560 U.S. 48 (Graham) that the Eighth Amendment also forbids life without parole sentences for nonhomicide crimes committed before age 18. (Graham, at p. 82.) Finally, in Miller, supra, 567 U.S. 460, the high court held that the Eighth Amendment forbids mandatory life without parole sentences for homicides committed before the age of 18. (Miller, at pp. 479-480; see id. at pp. 477-478, 489.)
In Graham and Roper, the court held that these features of youth categorically preclude a death sentence, or a sentence of life without parole for a nonhomicide offense. But in ruling out life without parole sentences for nonhomicide offenses committed by juveniles, the court in Graham “took care” to distinguish homicide offenses, which raise different considerations as a matter of “both moral culpability and consequential harm.” (Miller, supra, 567 U.S. at p. 473.) When confronted with the issue in Miller, the court did not categorically rule out life without parole sentences for juvenile offenders, instead concluding that before a court may impose such a sentence, “a judge or jury must have the opportunity to consider mitigating circumstances,” including the hallmark features of youth and their relation to the offense. (Id. at p. 489.) The court further observed that, in light of “children‘s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to th[e] harshest possible penalty [of life without parole] will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ ” (Id. at pp. 479-480, quoting Graham, supra, 560 U.S. at p. 68.)
Not long after the high court issued its decision in Miller, this court clarified in People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) that Graham‘s prohibition on life without parole sentences for juvenile nonhomicide offenders applies to a term-of-years sentence that is “the functional equivalent of a life without parole sentence” — there, a sentence of 110 years. (Ibid.) Without dictating “a precise timeframe” for holding parole hearings for juvenile offenders who had
The Legislature enacted section 3051 to bring California juvenile sentencing law into line with Graham, Miller, and Caballero. (Stats. 2013, ch. 312, § 1; see Franklin, supra, 63 Cal.4th at p. 268; id. at pp. 278-280 [holding that the youth offender parole statute remedied any Eighth Amendment defects in the sentences of juvenile offenders].) In language echoing the holdings of these cases, section 3051 provided for youth offender parole hearings at which the Board of Parole Hearings must provide “a meaningful opportunity” for release (
As initially enacted, section 3051 provided youth offender parole hearings only for juvenile offenders incarcerated for crimes committed before the age of 18. (Former § 3051, subd. (a)(1), added by Stats. 2013, ch. 312, § 4.) But it did not include all juvenile offenders; the statute excluded several categories of individuals, including juvenile offenders sentenced to life without possibility of parole. (Former § 3051, subd. (h), added by Stats. 2013, ch. 312, § 4.) A different statute, enacted not long before section 3051, had created an alternative mechanism for relief that, with some exceptions, permitted juvenile offenders sentenced to life without parole to petition for recall of sentence and resentencing to a term that included an opportunity for parole. (Stats. 2012, ch. 828, adding
Since the youth offender parole statute was first enacted, the Legislature has expanded it in two primary respects. The first area of change concerns juvenile offenders sentenced to life without possibility of parole. In 2017, this court concluded the recall and resentencing scheme did not provide an adequate remedy for juvenile offenders who had been sentenced to life without parole terms without adequate consideration of the youth-related factors set out in Miller. (In re Kirchner (2017) 2 Cal.5th 1040, 1043 (Kirchner).) That same year, the Legislature expanded section 3051 to include juvenile offenders sentenced to life without parole, making them eligible for youth offender parole hearings after their 25th year of incarceration. (Stats. 2017, ch. 684, § 1.5, adding
The second area of change concerns the statute‘s application to older offenders. In 2015, the Legislature raised the age of eligibility for youth
The expansion to young adults did not, however, include all persons who committed crimes between the age of 18 and 25: The Legislature carried forward preexisting exclusions, including the exclusion for those sentenced to life in prison without the possibility of parole. (See Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308, supra, as amended Mar. 30, 2017, p. 2.) Similarly, when it expanded the youth offender parole system to include juvenile offenders sentenced to life without parole, the Legislature preserved the life without parole exclusion for youthful offenders who committed their controlling offense after the age of 18. (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 394, supra, as amended May 26, 2017, p. 1.)
Hardin challenges the statute‘s exclusion of young adult offenders sentenced to life without parole as violative of equal protection. As noted, in the trial court, Hardin challenged the statute‘s disparate treatment of juvenile and young adult offenders sentenced to life without possibility of parole. But the Court of Appeal in this case held, and he does not dispute, that the Legislature acted reasonably in distinguishing between offenses committed before and after the age of 18 because the Eighth Amendment (and the law more generally) makes the same distinction. (Hardin, supra, 84 Cal.App.5th at pp. 285-286 [noting that age 18 generally marks the difference between childhood and adulthood].)
As the case comes to us, the parties agree that the Legislature was not constitutionally obligated to expand youth offender parole opportunities to young adults over the age of 18. Hardin argues, however, that once the Legislature decided to expand such opportunities to young adults, it could not rationally treat those sentenced to life without parole differently from those convicted of other serious crimes and serving lengthy parole-eligible sentences. Once the Legislature decided to include one class of young adult offenders, it was obligated to include both.
III.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.”2 (
The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. Courts apply heightened scrutiny when a challenged statute or other regulation involves a suspect classification such as race, or a fundamental right such as the right to vote, and accordingly will demand greater justification for the differential treatment. (E.g., Chatman, supra, 4 Cal.5th at p. 288; Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307, 312.) But when a statute involves neither a suspect classification nor a fundamental right, the “general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” (Cleburne, supra, 473 U.S. at p. 440; see Chatman, at pp. 288-289.) A court applying this standard finds “a denial of equal protection only if there is no rational relationship between
a disparity in treatment and some legitimate government purpose.” (Chatman, at pp. 288-289.)
Here, both sides agree that rational basis review applies; Hardin makes no argument that this case involves a suspect classification or a fundamental right. (See Chatman, supra, 4 Cal.5th at pp. 282, 287 [rational basis review applied to evaluate constitutionality of law prescribing different collateral consequences for different types of criminal convictions]; People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson) [A defendant ” ‘does not have a fundamental interest in a specific term of imprisonment’ “].)
In the past, our cases have set out a two-part inquiry to evaluate equal protection claims. “We first ask whether the state adopted a classification affecting two or more groups that are similarly situated in an unequal manner. [Citation.] If we deem the groups at issue similarly situated in all material respects, we consider whether the challenged classification” is adequately justified. (Chatman, supra, 4 Cal.5th at p. 289.) In a case, like this one, subject to rational basis review, the question is “whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose.” (Ibid.)
The Courts of Appeal that have addressed the issue presented here concerning the life without parole exclusion have fractured over the proper analysis of the threshold “similarly situated” inquiry. At this first step of the two-part equal protection inquiry, the reviewing court asks “not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438.) If the challenging party fails to satisfy this threshold ” ‘similarly situated’ ” inquiry, the equal protection analysis is at an end. (Cooley, at p. 254.)
The Court of Appeal in this case held that offenders serving life without parole sentences are, for purposes of the youth offender parole statute, similarly situated to offenders serving parole-eligible life terms for offenses committed at the same age. It then went on to hold that the statute‘s disparate treatment of the two groups is not adequately justified. (Hardin, supra, 84 Cal.App.5th at pp. 287-288, 290.) Several other courts have likewise concluded that the groups are similarly situated for purposes of the challenged law, but that the difference in treatment is justified. A still larger group of courts have concluded that the groups are not similarly situated for purposes of the law, while citing essentially the same reasons other courts have cited at the justification step of the inquiry. And the largest group of courts have avoided the question by assuming without deciding that the two groups are similarly situated and proceeding to hold that the difference in treatment is justified under rational basis review.
Despite this state of uncertainty, the Attorney General asks us to join the group of courts that have avoided the issue by assuming without deciding that a young adult offender serving a parole eligible life sentence is similarly situated to an individual serving a sentence of life without parole for an
We have taken this assume-without-deciding approach to the “similarly situated” inquiry in other recent equal protection cases and could do the same here. (Chatman, supra, 4 Cal.5th at p. 290 [moving to the second step of the equal protection analysis without deciding the first, “similarly situated” step]; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882 (Johnson).) But to do so would simply perpetuate the uncertainty that has led courts to so many different conclusions about how the “similarly situated” test ought to apply, and that has so often led both this court and the Courts of Appeal to avoid the test altogether.
There is a reason for this uncertainty. As we recognized decades ago, in cases involving challenges to statutes like seсtion 3051, subdivision (h) that facially distinguish between identifiable groups or classes of individuals, “[t]o ask whether two groups are similarly situated in this context,” given the interests underlying the law challenged, is essentially “the same as asking whether the distinction between them can be justified under the appropriate test of equal protection.” (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 798, fn. 19 (plur. opn.).) This is because one can only reach the conclusion that two groups are similarly situated with respect to the purposes of a particular law after considering the law‘s aims and how the differential treatment relates to those aims. But the first, “similarly situated” step of the analysis provides substantially less guidance about how this inquiry is to proceed: “How similarly situated, precisely, relative to which aims? These are questions courts already explore at the justification step, using the tiers of scrutiny to guide their answers.” (Eric B., supra, 12 Cal.5th at p. 1115 (conc. opn. of Kruger, J.).) In the context of challenges like this one, the similarly situated test serves no real purpose. At best it duplicates the justification inquiry prescribed at the second step of the analysis; at worst it creates an unnecessary threshold obstacle to the adjudication of potentially meritorious constitutional challenges; and in all events it injects unnecessary uncertainty into the analysis, particularly in the situations in which the challenged law reflects multiple, sometimes competing aims.
Our cases purported to derive the threshold “similarly situated” test from United States Supreme Court guidance, but the high court itself has not employed any similar threshold test in equal protection cases involving challenges to facial legal classifications. (See, e.g., Cleburne, supra, 473 U.S. at pp. 439-450.) Even when this court first began to speak in terms of a “similarly situated” test, it did not initially understand this to mean that courts
After directing the parties and inviting amici curiae to address this issue, none has identified any substantive reason why we should continue to prescribe a two-step analysis in cases like this one, in which the only real question is whether a facial difference in treatment is adequately justified by the purposes the law was meant to serve. The primary concern raised by the Attorney General relates to stare decisis — the idea that once an issue is decided, it should ordinarily remain decided.
Stare decisis plays a vitally important role in our work as a common law court; the policy of adherence to precedent ensures the certainty, stability, and predictability on which the rule of law depends. But stare decisis concerns have no real place here. The doctrine “does not ‘shield court-created error from correction‘” but “permits us to reconsider, and ultimately to depart from, our own prior precedent in an appropriate case.” (People v. Mendoza (2000) 23 Cal.4th 896, 924.) Here, none of the factors we have identified as relevant to the question of adherence to precedent — including “the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law” (Trope v. Katz (1995) 11 Cal.4th 274, 288) — suggests we are bound to preserve an аnalytical framework that has generated uncertainty and confusion, with no discernible effect on the actual outcomes of cases.
For these reasons, we now hold that, when plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question. The only pertinent inquiry is
To be clear, we cast no doubt on the utility of “similarly situated” inquiries in other contexts. In cases that do not involve challenges to classifications appearing on the face of the law, to ask whether a person has been treated differently from another person similarly situated is typically how we determine whether a person has been treated differently on the basis of group membership or another actionable basis. We do not call into question the established role the similarly situated inquiry plays in, for instance, cases involving claims of group-based discrimination against individuals, in which plaintiffs bear the burden of showing disparate treatment along class lines, or so-called “class of one” cases that do not allege differential treatment on the basis of class membership. (See, e.g., United States v. Armstrong (1996) 517 U.S. 456, 465-467; Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564.)
Nor, in dispensing with the threshold “similarly situated” test in equal protection challenges like this one, do we call into question any of this court‘s precedent that purported to dispose of an equal protection challenge upon deciding that the challenged disparate treatment did not involve groups that were similarly situated for purposes of the law in question. As we have explained, the conclusion in each of those cases could just as well have been cast as a conclusion about whether the difference in treatment was adequately justified under the applicable standard of review. (See, e.g., People v. Salazar (2016) 63 Cal.4th 214, 227 [noting individuals who commit a capital crime after being convicted of a juvenile murder in superior court are not similarly situated to those whose prior murder was adjudicated in juvenile court, because the Legislature may fairly distinguish these groups based on culpability]; People v. Johnson (1992) 3 Cal.4th 1183, 1242-1243 [noting capital defendants are not similarly situated to those subject to ordinary sentencing enhancements because of the aggravating circumstances surrounding the capital offense].)
Having thus clarified the governing analytical framework, we turn to the central inquiry in this case: whether there is a rational basis justifying section 3051‘s disparate treatment of individuals who, like Hardin, are serving sentences of life without parole for special circumstance murder.
A.
Rational basis review “sets a high bar” for litigants challenging legislative enactments. (Chatman, supra, 4 Cal.5th at p. 289.) The reasons for this lie at the heart of our democratic system of governance. “Coupled with a rebuttable presumption that legislation is constitutional, [rational basis review] helps ensure that democratically enacted laws are not invalidated merely based on a court‘s cursory conclusion that a statute‘s tradeoffs seem unwise or unfair.” (Ibid.)
Under this deferential standard, we presume that a given statutory classification is valid “until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.” (Chatman, supra, 4 Cal.5th at p. 289.) The underlying rationale for a statutory classification need not have been “ever actually articulated” by lawmakers, nor “be empirically substantiated.” (People v. Turnage (2012) 55 Cal.4th 62, 74, 75 (Turnage).) Evaluating potential justifications for disparate treatment, a court reviewing a statute under this standard must “treat the statute‘s potential logic and assumptions far more permissively than with other standards of constitutional or regulatory review.” (Chatman, at p. 294.) “If a plausible basis exists for the disparity, courts may not second-guess its ‘wisdom, fairness, or logic.‘” (Johnson, supra, 60 Cal.4th at p. 881.) “[T]he logic behind a potential justification need [not] be persuasive or sensible — rather than simply rational.” (Chatman, at p. 289.)3
B.
Hardin‘s central argument is that
Hardin acknowledges the core of the counterargument. “It 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.” (Turnage, supra, 55 Cal.4th at p. 74.) Life without parole is the most severe sentence of imprisonment in California law, applicable only in cases of special circumstance murder and a small number of other offenses the law regards as particularly serious.4 By excluding persons sentenced to life without parole from youth offender parole proceedings, the Legislature exercised its prerogative to define degrees of culpability and punishment by leaving in place longstanding judgments about the seriousness of these crimes and, relatedly, the punishment for them.
Hardin asserts, however, that the seriousness of the offenses “provides no basis for their exclusion because the purpose of the statute was ameliorative, not punitive.” The Court of Appeal made a similar point: “[I]f, as the Legislature stated, the goal of section 3051 was to apply the Miller youth-related mitigating factors to young adults up to the age of 26 in light of neuroscience research that demonstrated the human brain continues to develop into a person‘s mid-20‘s, and thus to permit youth offenders a meaningful opportunity for parole if they demonstrate increased maturity and impulse control, then for that purpose there is no plausible basis for distinguishing between same-age offenders based solely on the crime they committed.” (Hardin, supra, 84 Cal.App.5th at p. 288.)
This argument rests on the premise that “there was only a single purpose underlying”
This balancing has been evident throughout the history of the youth offender parole statute. Even as initially drafted, the statute did not categorically extend youth offender parole hearings to all persons below the age of 18, but instead distinguished between offenders based on the crimes they committed. (Stats. 2013, ch. 312, § 1; former § 3051, added by Stats. 2013, ch. 312, § 4; cf. Sen. Com. on Appropriations, Analysis of Sen. Bill No. 394 (2017-2018 Reg. Sess.) Apr. 17, 2017, p. 2 [“[The bill that created section 3051] established a parole process for persons sentenced to prison for certain crimes committed before attaining 18 years of age” (italics added)].) Through multiple rounds of statutory amendments gradually expanding the statute, the Legislature retained crime-based distinctions, and the legislative history accompanying the amendments confirms that these were deliberate choices. (See, e.g., Assem. Com. on Appropriations, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2 [“Some offenders are not eligible [for parole hearings] based on the crime that was committed, or actions taken by the inmate after the age of 23” (italics added)]; Sen. Com. on Public Safety, Rep. on Sen. Bill No. 394 (2017-2018 Reg. Sess.) Mar. 21, 2017, p. 4 [“This bill would apply the youth offender parole process to juveniles sentenced to [life without parole].... [¶] The bill makes clear that ... the provisions applying to juvenile [life without parole] apply only to those sentenced before the age of
The end result is that under the youth offender parole statute as enacted and since amended, the nature of the sentence received for a particular crime — what the statute terms the “controlling offense” — sometimes determines whether an individual is eligible for a youth offender parole hearing in the first instance. And for those who are eligible, the nature of the sentence determines when they will receive such a hearing: whether after 15, 20, or 25 years. In other words, in designing
It may be true, as Hardin argues, that these crime-based categories are not rationally related to the Legislature‘s purpose of expanding opportunities for early release based on the attributes of youth since, as Miller explained, the attributes of youth are not “crime-specific.” (Miller, supra, 567 U.S. at p. 473.) No doubt the Legislature — which consciously enacted
The statutory framework indicates that the Legislature aimed to increase opportunities for meaningful release for young adult offenders, while taking into account the appropriate punishment for the underlying crimes, depending on their severity. Thesе are essentially the same considerations involved whenever the Legislature exercises its responsibility “for determining which class of crimes deserves certain punishments and which crimes should be distinguished from others.” (Wilkinson, supra, 33 Cal.4th at p. 840.) They are also not dissimilar from the considerations that prompted the high court to distinguish, for
Hardin argues that the Legislature‘s decision to adopt a parole process indicates it was unconcerned with culpability and instead had only rehabilitation in mind. If the Legislature had been concerned with calibrating the appropriate sentence for particular crimes, Hardin reasons, the Legislature could have instead enacted a statute providing for the recall of sentence and resentencing, as it had done in
What Hardin says is true of the task of the Parole Board at a parole hearing. (
Hardin also argues that
To be sure, the statute‘s “controlling offense” framework does rely on a certain amount of generalization about the relationship between the lengthiest individual sentence the offender has received and the culpability of the underlying criminal conduct. But “‘[w]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.‘” (Turnage, supra, 55 Cal.4th at p. 77.) Hardin‘s argument presumes there is only one way to evaluate culpability for these purposes — by focusing on the offender‘s entire criminal history rather than examining an individual offense, or by focusing on substantive crimes and ignoring the role of sentence enhancements. But these are not the only possible ways to evaluate culpability. That the Legislature may have prescribed a measurement of culpability different from Hardin‘s does not mean the Legislature was not attempting to measure culpability at all. While
Hardin also suggests that, by enacting a system of single-offense-based staggered eligibility terms and exclusions, the Legislature was attempting to capture the moment when, based on the sentence received for a single offense or enhancement, “a person might be first expected to demonstrate meaningful rehabilitation.” Hardin provides no logical or evidentiary support for this view. It is unclear how the Legislature could have determined that 15 years marks the relevant line of maturation for an offender who received a determinate sentence for a controlling offense; 20 years marks the maturation line for an offender sentenced to a life term of less than 25 years to life; and so on. But more fundamentally, this is not an either/or matter. Parole eligibility dates are an important component of the sentences prescribed for crimes. As such, they presumptively reflect the full range of usual penological considerations, including rehabilitative and retributive purposes. Even assuming the staggered parole eligibility terms reflect some set of legislative judgments about when an offender is most likely to be rehabilitated, the
Finally, Hardin argues that the other exclusions from youth offender parole eligibility set forth in
C.
Hardin argues that even if the life without parole exclusion reflects culpability-related concerns, it nonetheless fails rational basis review because there is no reasonable basis to conclude that young adult offenders sentenced to life without parole are more culpable or less deserving of the opportunity for release than other young adult offenders. Hardin‘s arguments focus specifically on individuals who, like him, received life without parole sentences following convictions for special circumstance murder. The Legislature, he argues, “would have had no rational basis to distinguish between youthful offenders sentenced to life without parole for special circumstance murder and youthful offenders sentenced either to the functional equivalent of life without parole or to indeterminate life terms for first degree murder. That is because, from a culpability standpoint, these groups cannot rationally be distinguished.” Hardin, however, fails to demonstrate that the life without parole exclusion is irrational, and therefore unconstitutional, as applied to individuals sentenced for special circumstance murder.
To understand the function of special circumstances in California‘s capital sentencing law is to understand why Hardin faces a particularly difficult task in establishing that the Legislature‘s decision to exclude offenders convicted of special circumstance murder from the youth offender parole system is “so devoid of even minimal rationality that it is unconstitutional as a matter of equal protection.” (Chatman, supra, 4 Cal.5th at p. 289.) The core of Hardin‘s argument is that the Legislature could not rationally conclude that a conviction for special circumstance murder is a reliable indication of the seriousness of an offense or the culpability of the offender, such that it could rationally decide to exclude the offender from receiving the youth offender parole consideration to which other young adults are statutorily entitled. In making this argument, Hardin does not focus on any single special circumstance or any particular factual scenarios; his argument is a categorical one, aimed at special circumstance murder in general. This argument about the relative insignificance of special circumstance murder, as a category, is inconsistent with what are by now legions of decisions holding that special circumstance murder is sufficiently serious and morally culpable as to justify imposing the most severe sanctions available under the law, up to and including death.
In the
Here, for example, Hardin was convicted of murdering his victim in the course of robbing her. We have explained why the law treats robbery-murder as more culpable than simple murder. The special circumstance is limited to those defendants who commit “a ‘willful, deliberate and premeditated’ murder ‘during the commission’ of a robbery or other listed felony” rather than “when the defendant‘s intent is not to steal but to kill and the robbery is merely incidental to the murder.” (People v. Green (1980) 27 Cal.3d 1, 61.) The law treats as particularly egregious a murder “in cold blood in order to advance an independent felonious purpose, e.g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnaping, or a rape.” (Ibid.) “[T]he purpose of this special circumstance is to make eligible for the most severe punishment those defendants who escalate a serious felony into a murder, thereby attempting to deter such escalation.” (People v. Mora and Rangel (2018) 5 Cal.5th 442, 520 (conc. & dis. opn. of Liu, J.).)
Given this body of case law, it is difficult to see how the Legislature that enacted
We have previously considered a similar argument raised in the
Our treatment of the issue in Frye was admittedly terse, and it relied on a different study than the one on which Hardin now relies. But based on the arguments and evidence that have been presented to us here, we have no adequate basis to fault the Legislature for distinguishing, as a categorical matter, between a conviction for special circumstance murder and a conviction for a different homicide offense, as the law has long done.
At the outset, we note that the Baldus study on which Hardin relies is not part of the record in this case, having been first raised not by the parties but by the Court of Appeal in its opinion. (See Hardin, supra, 84 Cal.App.5th at p. 290.) The study‘s findings were not litigated in the trial court, so they have never been the subject of any sort of adversarial testing that would afford us insight into either the methodology employed or the ultimate accuracy or significance of the results. To strike down an act of the Legislature as irrational based on a set of untested empirical findings would be antithetical to multiple settled principles of judicial review.
Even if we were to take the study‘s findings at face value, however, they do not support Hardin‘s claim that it is, as a categorical matter, irrational to treat individuals convicted of first degree special circumstance murder differently from individuals convicted of first degree murder without special circumstances. The study neither says nor suggests that California‘s special circumstance law is categorically invalid. Rather, as the Court of Appeal noted in its opinion, the study appears to suggest that certain special circumstances, added through various amendments after the initial enactment of
amendments. (The special circumstance finding at issue in Hardin‘s own case is based on a provision of the law that dates back to the initial enactment of
Hardin next argues that an individual who commits special circumstance murder may not actually be more culpable than an offender who commits a string of other violent crimes. Agreeing with Hardin, the Court of Appeal raised for comparison two hypothetical offenders who would be eligible for a
That view again rests on the assumption that the Legislature is required to evaluate culpability in a particular way — a way that would, essentially, regard special circumstance murder as similar in culpability to a string of other violent crimes that leads to technically parole-eligible sentences. But the Legislature that enacted
Hardin notes that we have described an aggregate sentence that fixes parole eligibility outside of an offender‘s life expectancy as the “functional equivalent of a life without parole sentence.” (Caballero, supra, 55 Cal.4th at p. 268.) But we have employed that description in the context of identifying the category of juvenile offenders to whom the
V.
In holding that Hardin has not demonstrated that the exclusion of offenders who are serving sentences of life in prison without the possibility of parole for a crime committed after the age of 18 from youth offender parole eligibility is irrational, we pass no judgment on the validity of any of the other exclusions set forth in
We emphasize, finally, that the question before us concerns only the constitutional permissibility of the lines the Legislature has drawn. It is not for us to pass judgment on the wisdom or desirability of its policy choices. (Chatman, supra, 4 Cal.5th at p. 297.) Recognizing this, every published Court of Appeal decision other than the decision in this case has upheld the life without parole exclusion against equal protection challenge. At the same time, several opinions have taken the additional step of calling on the Legislature to give further careful сonsideration to the issue. (See, e.g., In re Murray (2021) 68 Cal.App.5th 456, 464; People v. Morales, supra, 67 Cal.App.5th at p. 349; People v. Jackson, supra, 61 Cal.App.5th at p. 202 (conc. stmt. of Liu, J.) review den. June 9, 2021, S267812; id. at pp. 201–202 (conc. opn. of Dato, J.); People v. Acosta, supra, 60 Cal.App.5th at p. 781; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1041a (conc. stmt. of Liu, J.) review den. Jan. 27, 2021, S265597; id. at pp. 1035–1036 (conc. opn. of Segal, J.); In re Jones (2019) 42 Cal.App.5th 477, 486–487 (conc. opn. of Pollak, J.).)
That so many judges across the state have taken this step reflects the significance of this issue. Special circumstance murder is an unquestionably grave offense, one that exacts an unimaginable toll on the lives of victims and those the victims leave behind. But we also know that young people — even young people who have committed grave offenses — are capable of significant, sometimes transformative, change over the course of their lifetimes. To extinguish any hope of release, particularly for an individual just past the cusp of adulthood, is a form of retribution that exacts its own price — one
Some amici curiae on the other side of the issue argue that, if we were to find an equal protection violation in
We acknowledge our dissenting colleagues’ view that, in light of these overarching concerns, the Legislature should have made a different choice. But for us to hold that the Legislature was constitutionally compelled to do so would require us to set aside multiple settled rules of constitutional adjudication. As this court has repeatedly explained, the purpose of these rules is to ensure that courts act as courts, and allow for the development of policy through the democratic process without putting the Legislature to unwarranted all-or-nothing choices. “While this court will not condone unconstitutional variances in the statutory consequences of our criminal laws,” rational basis review requires us to extend substantial respect to the Legislature‘s judgments, for “‘“[o]nly by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.“‘” (Johnson, supra, 60 Cal.4th at p. 889.)
Our legislative bodies may continue to consider the issue and how to balance concerns about the severity of certain crimes with the overarching concern that prompted enactment of the youth offender parole hearing system and its eventual expansion to young adult offenders — that is, the recognition
VI.
We reverse the judgment of the Court of Appeal.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
Dissenting Opinion by Justice Liu
In a series of statutes over the past decade, the Legislature has established a parole eligibility process that provides young people who have committed serious crimes “the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity.” (Stats. 2013, ch. 312, § 1.) Although the initial version of the parole scheme applied to persons serving sentences for crimes committed before age 18, the Legislature soon expanded eligibility by increasing the age cutoff, first to 23 and then to 26. In these enactments, the Legislature repeatedly recognized that “youthfulness both lessens a juvenile‘s moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society” (Stats. 2013, ch. 312, § 1), and that brain development affecting judgment and decisionmaking “continues beyond adolescence and into the mid-20‘s” (maj. opn., ante, at p. 13 [citing legislative history]).
Parole eligibility is now available to young adult offenders serving sentences for crimes committed before age 26, but with exceptions. (
Today‘s opinion rationalizes the exclusion by imputing to the Legislature a purpose — calibrating “culpability and the appropriate level of punishment for certain very serious crimes” (maj. opn., ante, at p. 26) — that is nowhere stated in the statute or its legislative history. It then posits that special-circumstance murder is generally distinguishable from simple first degree murder in terms of culpability (id. at pp. 33–42) despite strong evidence to the contrary. According to the court, nothing more is required under rational basis review.
Although I agree that rational basis review applies to Hardin‘s claim, I disagree with how the court has applied it here. Today‘s opinion ignores the considerable variation and nuance in our case law applying rational basis review and undertakes the sort of lax analysis that has become typical “‘[i]n areas of social and economic policy.‘” (Warden v. State Bar (1999) 21 Cal.4th 628, 644 (Warden).) But the issue in this case is a far cry from, say, whether the State Bar may exempt retired judges from continuing education requirements applicable to other licensed attorneys. (Id. at p. 633.) Hardin, who is Black, is challenging a law that spells the difference between dying in prison and having a chance to earn freedom. The law targets a class of offenders who are overwhelmingly Black or Hispanic, and 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. (Miller, supra, 567 U.S. at p. 472.) In light of today‘s decision, nearly 3,000 inmates 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.
We have applied rational basis review more rigorously in cases with lower stakes. Rational basis review “require[s] the court to conduct ‘a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals.‘” (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 (Newland).) Here, such inquiry reveals that the exclusion of young offenders convicted of special-circumstance murder is irrational when measured against the Legislature‘s stated purpose for establishing and expanding youth offender parole eligibility. And
Today‘s opinion concludes by echoing judges throughout the state who have urged the Legislature to reconsider the statute. (Maj. opn., ante, at pp. 42–43.) One can hope the Legislature will take up the invitation, but that is no salve for what should have happened here. It is indeed imperative that “courts act as courts” (maj. opn., ante, at p. 45), and in our system of government, courts are the ultimate guarantor of constitutional rights against arbitrariness or excesses of majoritarian rule. Although courts owe deference to the democratic process, deference is not abdication. Upon a serious and genuine judicial inquiry, it is evident that the exclusion of persons convicted of special-circumstance murder from youth offender parole eligibility does not meet the basic test of rationality. I respectfully dissent.
I.
While I agree that rational basis review is the appropriate equal protection standard in this case, today‘s opinion largely ignores the way this standard has been articulated and applied in our case law. One feature that distinguishes our equal protection doctrine from its federal counterpart is that the standards of review under our doctrine are limited to two: rational basis review and strict scrutiny. (See In re Marriage Cases (2008) 43 Cal.4th 757, 832.) Unlike the federal courts, we have declined to adopt intermediate scrutiny as a third standard of review. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584, 595–603 (conc. opn. of Mosk, J.); id. at pp. 607–610 (conc. opn. of Bird, C. J.).) This means that rational basis review, in our doctrine, covers a wide range of cases and must be applied with nuance and sensitivity if we are to avoid the “rigidity of [a] two-tiered framework” that “applies either a standard that is virtually always met [rational basis] or one that is almost never satisfied [strict scrutiny].” (Id. at p. 598 (conc. opn. of Mosk, J.).) In the pages that follow, I discuss the rational basis standard in depth. I regret the length of this discussion, but patient readers will understand why careful attention to our case law is essential to proper resolution of Hardin‘s equal protection claim.
A.
In Brown v. Merlo (1973) 8 Cal.3d 855 (Brown), we applied rational basis review and struck down an automobile
The court in Brown did not rationalize the statute‘s underinclusivity by saying that a legislature “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” (Williamson v. Lee Optical of Oklahoma, Inc. (1955) 348 U.S. 483, 489 (Lee Optical).) Nor did Brown rationalize the statute‘s overinclusivity by saying that a classification does not fail rational basis review “simply because [it] ‘is not made with mathematical nicety or because in practice it results in some inequality,‘” or that practical problems of government “‘may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.‘” (Dandridge v. Williams (1970) 397 U.S. 471, 485.) In fact, Brown began its discussion of the rational basis standard by observing that a classification “‘must rest upon some ground of difference having a fair and substantial relation to the object of the legislation,‘” (Brown, supra, 8 Cal.3d at p. 681, italics omitted, quoting Reed v. Reed (1971) 404 U.S. 71, 76 (Reed).) Although Reed presaged the development of intermediate scrutiny under federal law (see Craig v. Boren (1976) 429 U.S. 190, 197–199, 204; Frontiero v. Richardson (1973) 411 U.S. 677, 682–684, 690–691 (plur. opn.)), Brown assimilated it into our explication of rational basis review.
The next year, this court in D‘Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D‘Amico) invalidated statutes
Three years later, in Newland, supra, 19 Cal.3d 705, we applied rational basis review and invalidated a statute that barred persons with a misdemeanor conviction, but not persons with a felony conviction, from eligibility for a teaching credential. (Id. at p. 707Ibid.) We speculated that the certificate requirement “may simply be a case of legislative oversight — a failure to realize that this requirement would block any relief to a misdemeanant.” (Id. at p. 712) But we did not rest our reasoning on that ground. Instead, we said “our inquiry must begin with an identification of the purpose of [the statute] so that we may determine whether the statutory classification . . . rationally relates to that purpose.” (Id. at p. 711.) We determined that the credentialing statute‘s purpose was “to protect the students, faculty and others who might be harmed by the employment of an unfit teacher.” (Id. at pp. 711–712.) We then explained: “This statutory discrimination against misdemeanants can claim no rational relationship to the protective purpose of [the statute]. . . . The Legislature could not possibly or sensibly have concluded that misdemeanants, as
In applying rational basis review, Newland hewed to the statute‘s clear purpose and evaluated the classification against that purpose. We did not posit any competing purposes, though it would have been easy to do so: The state could have had an interest in minimizing the costs associated with determining which persons with criminal history have been rehabilitated and are thus fit to be a teacher. Whereas an existing mechanism (a certificate of rehabilitation) simplified that determination for persons with a felony conviction, no such mechanism existed for persons with a misdemeanor conviction, a far larger group. Educational institutions, if they wished to screen such applicants, would have needed to incur the burden of conducting their own fitness hearings, as Newland acknowledged. (Newland, supra, 19 Cal.3d at p. 714, fn. 11.) Had we taken the view that “‘[i]f a plausible basis exists for the disparity, courts may not second-guess its “wisdom, fairness, or logic“‘” (maj. opn., ante, at p. 23), Newland would have come out the other way. But we did not deploy such reasoning. After canvassing various formulations of the rational basis standard, we said that “[a]ll of the formulas require the court to conduct ‘a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals‘” and that such inquiry demonstrated the unconstitutionality of the classification at issue. (Newland, at p. 711, italics added.)
The following year, we applied the inquiry as stated in Newland to invalidate a
Our approach in Cooper, Newland, and earlier cases was consonant with a contemporaneous high court case, United States Department of Agriculture v. Moreno (1973) 413 U.S. 528 (Moreno), which invalidated a statute excluding households “containing an individual who is unrelated to any other member of the household” from food stamp eligibility. (Id. at p. 529.) Applying rational basis review, the high court quoted the Food Stamp Act‘s stated purpose “‘[t]o alleviate . . . hunger and malnutrition‘” among “‘low-income households‘” and concluded that “[t]he challenged statutory classification . . . is clearly irrelevant to the stated purposes of the Act.” (Id. at pp. 533–534.) The court then considered whether “Congress might rationally” have had an “interest in minimizing fraud in the administration of the food stamp program.” (Id. at p. 535.) It rejected this rationale on the grounds that the statute already contained other antifraud provisions (id. at pp. 536–537) and that the exclusion of unrelated households “in practical operation” did not target “persons who are ‘likely to abuse the program‘” (id. at p. 538). The court did not posit that Congress could have desired a belt-and-suspenders approach to combating fraud. Nor did it accept the generalization that limiting food stamps to related households “provides a guarantee . . . that the household exists for some purpose other than to collect federal food stamps” (id. at p. 546 (dis. opn. of Rehnquist, J.), citing evidence to the contrary (id. at pp. 537–538 (maj. opn.)). Like Cooper, Moreno evaluated the classification against the stated legislative purpose and declined to impute other purposes, and the high
We continued to apply this mode of analysis in Hays v. Wood (1979) 25 Cal.3d 772 (Hays), where we invalidated a voter-enacted disclosure law that required public officials who were lawyers or brokers to disclose any source of payments equal to or greater than $1,000, but which required filers with other business interests to disclose only sources of payments equal to or greater than $10,000. (Id. at p. 795.) We again applied Newland‘s formulation of the rational basis inquiry (Hays, at p. 787) and focused on the legislative purpose stated in “the Act itself,” i.e., “insuring disclosure of income which may be materially affected by the official actions of the filing public official” (id. at p. 788). We recognized that the potential for conflict of interest is a function of an official‘s “actual profits” derived from business dealings (ibid.) and that providers of professional services have “substantially greater” profit margins than business entities that make or sell goods (id. at p. 789). But this distinction did not justify “special treatment” of lawyers and brokers as compared to other professionals with comparable profit margins. (Ibid.) We said this “‘underinclusiv[ity]‘” could not be justified on the ground that “a legislative body . . . need not attack all phases [of a problem] at once.” (Id. at p. 790.) “[W]hen the legislative body proposes to address an area of concern in less than comprehensive fashion by ‘striking the evil where it is felt most’ [citation], its decision as to where to ‘strike’ must have a rational basis in light of the legislative objectives.” (Id. at p. 791.)
We then proceeded to reject four possible bases for distinguishing lawyers from “all others similarly situated in terms of profit margin.” (Hays, supra, 25 Cal.3d at p. 792.) It was argued that lawyers are more likely to have potential conflicts because they often represent private interests in dealings with government; we said other professionals may have a higher volume of clients, making potential conflicts more frequent. (Id. at pp. 792–793.) It was argued that “the unique nature” of the lawyer-client relationship, including “habits of loyalty,” make lawyers more prone to conflict; we said the professional relationships of physicians and psychotherapists are at least as “personal and intense.” (Id. at p. 793) It was argued that “the customary practice of many lawyers of accepting retainers” can serve as “a unique device for channeling money in payment for public favors“; we said a “disguised payment for political favor” can occur “in any number of ways.” (Id. at pp. 793, 794.) And it was argued that the public may perceive a lawyer, “‘more so than . . . persons in other professions,‘” as promoting client interests when serving as a public official; we said this was a “curious assertion” that provided no basis for “significantly different standards of disclosure for members of different
Another case in this line was United States Steel Corp. v. Public Utilities Commission (1981) 29 Cal.3d 603 (U.S. Steel), which involved a challenge to a Public Utilities Commission order exempting commodities carried by private vessels (as opposed to common carriers) from intrastate minimum shipping rates. The effect of this order was to make foreign steel cheaper to transport compared to domestic steel. (Id. at p. 607.) We annulled the order on the ground that the Commission had adopted it without having satisfied its statutory duty to “assess the economic impact of its action,” including whether the exemption would drive shippers out of business and cost jobs. (Id. at p. 610.) “To guide the commission in further proceedings” (ibid.), we went on to discuss the requirements of equal protection in this context. We again quoted Newland‘s formulation of the rational basis inquiry and observed that “[t]he aim of minimum rate regulation is to preclude destructive
rate practices and to provide for movement at the lowest rates compatible with the maintenance of adequate transportation service. [Citations.] Rates below the minimum do not serve that aim absent some showing of a difference in cost in hauling private-vessel steel as compared with domestic steel, or of a difference regarding destructive rate practices. There is no showing here.” (U.S. Steel, at p. 612.) A further argument for the exemption was that the “difficulty in determining whether imported steel has arrived via common carrier or private vessel” would burden “truckers in determining the appropriate rate as well as on the commission in enforcing minimum rates.” (Id. at p. 613.) We said this concern was plausible, but “the commission‘s finding as to ‘difficulty’ seems inadequately supported by the record,” and the equal protection issue could not be settled “[w]ithout a more complete record.” (Id. at p. 614.) In sum, we again declined to accept plausible yet unsubstantiated assertions under rational basis review.
B.
A few years after U.S. Steel, we decided a series of cases rejecting equal protection challenges to various provisions of the Medical Injury Compensation Reform Act of 1975 (MICRA). (See American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 370-374 (American Bank); Barme v. Wood (1984) 37 Cal.3d 174, 181-182 (Barme); Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 930-931 (Roa); Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 161-164 (Fein).) Our language in those cases featured more deferential formulations of rational basis review. (See, e.g., American Bank, at p. 371 [“the equal protection clause does not prohibit a Legislature from implementing a reform measure ‘one step at a time’ [citation], or prevent it ‘from striking the evil where it is feltmost’ “]; id. at p. 374 [“the constitutionality of a measure under the equal protection clause does not depend on a court‘s assessment of the empirical success or failure of the measure‘s provisions“].) But we observed that “our application of equal protection principles in [the MICRA cases] is not inconsistent with the principles enunciated in [Brown and Cooper] or like cases. As Cooper explains, . . . what is required is that the court ‘conduct “a serious and genuine judicial inquiry into thе correspondence between the classification and the legislative goals.“’ (21 Cal.3d at p. 848 [quoting Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, italics added in Cooper].) We have conducted such an inquiry in all of these cases . . . .” (Fein, at p. 163.)
Fein is illustrative. The plaintiff argued that MICRA‘S $250,000 cap on noneconomic damages violates equal protection because it “discriminates between medical malpractice victims and other tort victims” and because it “discriminates within the class of medical malpractice victims, denying a ‘complete’ recovery of damages only to those malpractice plaintiffs with noneconomic damages exceeding $250,000.” (Fein, supra, 38 Cal.3d at pp. 161-162.) As to the first contention, we cited our earlier cases that had extensively examined the legislative history of MICRA showing that the Legislature, with ample basis, had targeted medical malpractice cases for reform because of “an insurance ‘crisis’ in that particular area.” (Fein, at p. 162, citing American Bank, Barme, and Roa.) As to the second contention, we said “the Legislature clearly had a reasonable basis” for seeking cost savings “only by limiting the recovery of noneconomic damage.” (Fein, at p. 162.) While acknowledging other plausible means of distributing cost savings across malpractice plaintiffs, we explained that the sizeand unpredictability of noneconomic damages awards rationally justified the Legislature‘s approach. (Id. at pp. 162-163.) We noted that “the unpredictability of the size of large noneconomic damage awards” was “[o]ne of the problems identified in the legislative hearings” (id. at p. 163), and we cited legal scholarship and an American Bar Association report to show that the issue was one on which “reasonable persons can certainly disagree” (id. at p. 160; see id. at pp. 159-160 & fns. 16-17). Fein did not rely on imputed legislative purposes or unsubstantiated assertions to uphold the challenged provision.
A subsequent case, Warden, supra, 21 Cal.4th 628, marks perhaps our most deferential application of rational basis review. We rejected an equal protection challenge to an exemption for retired judges, elected officials, and law professors from continuing education requirements that are generally applicable to practicing attorneys. (Id. at p. 634.) We said “it would not have been
The Court of Appeal had observed that there was ” ‘no support’ in the legislative history . . . to indicate that these were the actual explanations of the rationale or motivation for the adoption of the exemptions.” (Warden, supra, 21 Cal.4th at pp. 649-650.) Citing federal case law, we said that “when thereis a reasonably conceivable justification for a classification, ‘[i]t is . . . “constitutionally irrelevant whether [the] reasoning in fact underlay the legislative decision.” ’ ” (Id. at p. 650, quoting United States Railroad Retirement Board v. Fritz (1980) 449 U.S. 166, 179.) We also said, citing federal case law, that ” ‘a legislative choice . . . may be based on rational speculation unsupported by evidence or empirical data’ ” (Warden, at p. 650, italics added, quoting Federal Communications Commission v. Beach Communications, Inc. (1993) 508 U.S. 307, 315 (Beach Communications) and that ” ‘reform may take one step at a time’ ” (Warden, at p. 645, quoting Lee Optical, supra, 348 U.S. at p. 489).
As two dissenting Justices observed, Warden relied heavily on federal authority in elaborating a highly deferential rational basis test without grappling with the fact that whereas it is one of three levels of scrutiny in federal equal protection doctrine, our own case law “has not slavishly followed decisions of the federal high court” and has never adopted intermediate scrutiny. (Warden, supra, 21 Cal.4th at pp. 652-653 (dis. opn. of Kennard, J.); id. at p. 661 (dis. opn. of Brown, J.) [“Our state equal protection jurisprudence grew out of a recognition of the inadequacy of federal standards.“].) Justice Brown noted that our decision in Hays had “expressly rejected” Lee Optical in saying that ” ‘the legislative body, when it chooses to address a particular area of concern in less than comprehensive fashion by merely “striking the evil where it is felt most” [citation] may not do so wholly at its whim.’ [Citation.] Rather its decision as to where to ‘strike’ must have a rational basis in light of the legislative objectives.” (Warden, at p. 664 (dis. opn. of Brown, J.), quoting Hays, supra, 25 Cal.3d at pp. 790, 791.) “[O]ur state Constitution insists on greater precision . . . . Rather thanmerely ‘rubberstamping’ the legislative categories at issue here, we should be engaging in ’ “a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals” ’ (Newland v. Board of Governors, supra, 19 Cal.3d at p. 711), and, more particularly, we should be
Warden made clear that the standards it elaborated apply ” ‘[i]n areas of social and economic policy’ ” (Warden, supra, 21 Cal.4th at p. 644, quoting Beach Communications, supra, 508 U.S. at p. 313), and issues such as continuing legal education requirements or the definition of a “cable system” (Beach Communications, at pp. 310-311) are paradigmatic examples. Warden‘s deferential language has seeped into our case law addressing equal protection challenges to criminal statutes, with no examination of how our doctrine has evolved differently from its federal counterpart. (See People v. Turnage (2012) 55 Cal.4th 62, 75, 79 (Turnage); People v. Johnson (2015) 60 Cal.4th 871, 887 (Johnson); People v. Chatman (2018) 4 Cal.5th 277, 289 (Chatman).) But even in those cases, we have not actually employed the full extent of deference that Warden‘s language contemplates.
In Turnage, we upheld a statute allowing felony treatment of placing a false bomb without proof of causing sustained fear, even though a separate statute requires proof of sustained fear for felony treatment of placing a false weapon of mass destruction (WMD). (Turnage, supra, 55 Cal.4th at pp. 67-68.) We said the differential treatment was rational because “[i]t is conceivable from a legislative perspective” that false WMDs,unlike false bombs, “would not necessarily be recognized or cause fear, even where it is detected and was intended to do so.” (Id. at p. 68.) But this rationale was not merely “conceivable“; the history of the false WMD statute implied that the Legislature had actually considered it. Extensively citing a Senate committee report, we observed that “[t]he new false WMD statute was said to be inspired by the false bomb statute” (id. at p. 79) and that “in acknowledging the similarity between the ‘wobbler’ provisions of [the false WMD statute] and [the false bomb statute], the Legislature implied that it was aware of the substance of the latter statute, that proof of sustained fear was not required in felony false bomb cases, and that both felonies nonetheless involved the same level of ‘violent’ fear. . . . In other words, a showing of sustained fear for felonies under the false WMD statute was necessary to reflect the same level of violent fear that the Legislature assumed was present in false bomb cases....” (Id. at p. 80.) “[T]he Senate Report implicitly shows a rational connection between the disparate role of sustained fear in the false bomb and false WMD statutes, and the purpose such disparity was apparently meant to serve.” (Id. at pp. 79-80.)
Similarly, in Chatman, we upheld a statute barring former probationers but not former prisoners from eligibility for a certificate of rehabilitation in certain circumstances. (Chatman, supra, 4 Cal.5th at pp. 282-283.) Our analysis focused on the state‘s interest in avoiding the costs associated with extending certificates of rehabilitation to former probationers, a group much larger than former prisoners. (Id. at pp. 291-292.) Although we said the rationale for a legislative classification need not have been articulated by lawmakers and does not need to be empirically substantiated (id. at p. 289), infact we observed that legislative history “provide[s] at least some indication that this cost concern figured in legislative deliberations” (id. at p. 292), and we went on to cite “data” that substantiated the cost concern (id. at p. 293). In other words, Chatman addressed what appeared to be the actual rationale for the classification and found it had some empirical support. (See also People v. Wilkinson (2004) 33 Cal.4th 821, 834, 839 [legislative history showed rationale for statute allowing potentially harsher treatment of battery on a custodial officer without injury than such battery with injury].)
In sum, this court‘s articulation and application of rational basis review has not marched in lock step with federal authority. Our approach is deferential but far from toothless; our case law, though not entirely uniform, reveals several recurring themes: In conducting ” ‘a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals’ ” (Newland, supra, 19 Cal.3d at p. 711), we have focused on actual legislative purposes instead of imputing hypothetical ones, and we have looked for empirical support instead of relying on conjecture or unsubstantiated assertions. Although we “do not require absolute precision in the designation of classifications,” we also “do not tolerate classifications which are so grossly overinclusive as to defy notions of fairness or reasonableness.” (Brown, supra, 8 Cal.3d at p. 877.) And while the Legislature may proceed incrementally, we have said it must do so rationally in light of the legislative objectives and “not . . . wholly at its whim.” (Hays, supra, 25 Cal.3d at p. 790.)
Today‘s opinion ignores this case law and claims that I am offering “an argument for reconsidering rational basis review.“(Maj. opn., ante, at p. 23, fn. 3.) To the contrary, it is the court‘s refusal to consider, not reconsider, our precedent that is the problem here. The principles above have sturdy foundations in what our cases say and, perhaps more importantly, in what they actually do. Although Warden took a more deferential approach, today‘s opinion does not cite Warden for an obvious reason: We are not dealing with a matter at all similar to who is or isn‘t subject to continuing legal education requirements. The case before us concerns which young offenders will be condemned to die in prison and which will have a meaningful chance to earn release. Instead of measuring the challenged classification against the Legislature‘s stated purpose in enacting the youth offender parole statute, today‘s opinion upholds the exclusion of young offenders convicted of special circumstance murder by imputing a different purpose that is nowhere mentioned in the statute‘s text or legislative history, and that even on its own terms does not provide a rational basis for treating the excluded group differently from young offenders convicted of first degree murder. The court‘s reasoning cannot sustain the result here.
II.
The provision at issue —
The Legislature made clear the purpose of section 3051 in the statute itself. Its opening provision, as originally enacted, says in full: “The Legislature recognizes that youthfulness both lessens a juvenile‘s moral culpability and enhances the prospect that, as a youth matures into an adult and neurologicaldevelopment occurs, these individuals can become contributing members of society. The purpose of this act is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the decisions of the United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48 [(Graham)], and Miller v. Alabama (2012) [567 U.S. 460]. Nothing in this act is intended to undermine the California Supreme Court‘s holdings in In re Shaputis (2011) 53 Cal.4th 192, In re Lawrence (2008) 44 Cal.4th 1181, and subsequent cases. It is the intent of the Legislature to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established.” (Stats. 2013, ch. 312, § 1 [Sen. Bill No. 260].) The only references to culpability in the statute are the Legislature‘s recognition of the diminished culpability of youth (ibid.) and the mandate that any psychological evaluations or risk assessments used by the parole board “shall take into consideration the diminished culpability of youth as compared to that of adults” (
Subsequently, in light of more “[r]ecent scientific evidence on adolescent and young adult development and neuroscience show[ing] that certain areas of the brain — particularly those affecting judgment and decision-making — do not fully develop until the early- to mid-20s” (Sen. Com. on Public Safety, Rep. on Sen. Bill No. 261 (2015-2016 Reg. Sess.) Apr. 28, 2015, p. 3), the Legislature amended the parole eligibility scheme — first, to include youth offenders who committed crimes before the age of23 (Stat. 2015, ch. 471, § 1, Sen. Bill No. 261 (2015-2016 Reg. Sess.) § 1), and then, to include offenders who committed crimes before age 26 (Stat. 2017, ch. 675, § 1, Assem. Bill No. 1308 (2017-2018 Reg. Sess.) § 1). A committee report on the latter bill states: “The rationale, as expressed by the author and supporters of this bill, is that research shows that cognitive brain development continues into the early 20s or later. The parts of the brain that are still developing during this process affect judgment and decision-making, and are highly relevant to criminal behavior and culpability. (See Johnson, et al., Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience Research in Adolescent Health Policy, Journal of Adolescent Health (Sept.
As today‘s opinion acknowledges, “No one doubts that the Legislature‘s primary purpose in expanding section 3051 to include young adult offenders was to give these young persons the opportunity to obtain release based on demonstrated growth and rehabilitation.” (Maj. opn., ante, at p. 26.) “The Legislature enacted section 3051 to bring California juvenile sentencing law into line with Graham, Miller, and Caballero.” (Id. at p. 11.) Relying “not only on common sense — on what ‘any parentknows’ — but on science and social science,” those cases explain that juveniles have an underdeveloped sense of responsibility, vulnerability to negative influences and outside pressures, lack of control over their own environment, and transitory traits that are not fixed but developing — all of which mitigate their culpability and point to their capacity for rehabilitation. (Miller, supra, 567 U.S. at p. 471.) These attributes of youth also diminish the traditional penological justifications of retribution, deterrence, and incapacitation. (See id. at p. 472; Graham, supra, 560 U.S. at pp. 71-73.) As indicated in the legislative history, the Legislature had these concerns not only about juveniles but also about young adults under the age of 26.
Further, there is no dispute that the scientific evidence cited by the Legislature applies to young offenders across the board. Nothing about the “distinctive (and transitory) mental traits and environmental vulnerabilities” of youth offenders “is crime-specific” (Miller, supra, 567 U.S. at p. 473), and the Legislature nowhere suggested that young offenders who commit certain crimes, including crimes punishable by LWOP, are immune to those vulnerabilities or incapable of reform. There is also no dispute that providing young offenders with a meaningful opportunity for release in light of their capacity for change is the only purpose stated by the Legislature in creating and expanding the parole scheme. No other purpose is stated in the statute or legislative history.
The implications for equal protection analysis are straightforward, as the Court of Appeal discerned: “[I]f, as the Legislature stated, the goal of section 3051 was to apply the Miller youth-related mitigating factors to young adults up to the age of 26 in light of neuroscience research that demonstrated the
Nor did those decisions rely on the notion that legislative bodies may proceed incrementally or train their attention wherever they feel it is needed most. In Hays, we made clear that when a legislature “chooses to address a particular area of concern in less than comprehensive fashion,” “its decision as to where to ‘strike’ must have a rational basis in light of the legislative objectives.” (Hays, supra, 25 Cal.3d at p. 791ante, at p. 45.) But if the rational basis standard could be met by observing that the challenged legislation reflects a political compromise, thenvirtually no enacted policy would ever fail rational basis review. The Court of Appeal here rejected the argument that the exclusion should be upheld “on the general principle that, when addressing a problem, the Legislature may choose to proceed incrementally,” aptly noting that ” ‘the fact that a line has to be drawn somewhere does not justify its being drawn anywhere.’ ” (Hardin, supra, 84 Cal.App.5th at pp. 290, 291.)
B.
In reaching today‘s holding, the court says the Legislature had a second purpose when it expanded youth offender parole eligibility to include young adult offenders: “[T]he structure and history of the [parole eligibility] expansion make clear that the Legislature sought to balance [its] primary objective with . . . concerns about culpability and the appropriate level of punishment for certain very serious crimes.” (Maj. opn., ante, at p. 26.) Presumably the court points to “structure and history” because the text of the original statute focuses solely on the diminished culpability of youth and their capacity for
As for history, the court says “the legislative history accompanying the amendments [expanding parole eligibility] confirms that [crime-based distinctions] were deliberate choices.” (Maj. opn., ante, at p. 26.) That is true, but I see no probative value in quotations from legislative history observing that the Legislature through multiple rounds of statutory amendments retained distinctions based on the crime committed. (Id. at pp. 26-27.) Those quotations simply describewhat the statute does; they shed no light on the Legislature‘s rationale for the distinctions it drew. (Cf. Cooper, supra, 21 Cal.3d at p. 854 [“a suggested legislative purpose” of protecting negligent drivers from liability to owner-passengers “does no more than restate the terms of the statute itself and [does not] indicate[] the general goal which the Legislature ostensibly intended to promote in providing such ‘protection’ at owner-passengers’ expense“].)
As for structure, the court notes that the statute provides for parole eligibility during a youth offender‘s 15th, 20th, or 25th year of incarceration depending on the controlling offense. (Maj. opn., ante, at p. 27; see
The statute defines ” ‘controlling offense’ ” as “the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (
Today‘s opinion says “the statute‘s ‘controlling offense’ framework does rely on a certain amount of generalization about the relationship between the lengthiest individual sentence the offender has received and the culpability of the underlying criminal conduct.” (Maj. opn., ante, at p. 30.) I suppose “a certain amount of generalization” is in the eye of the beholder, but consider: There are literally thousands of sentences encompassed by the provision establishing parole eligibility in the 25th year of incarceration for young adult offenders whose controlling offense carries a term of 25 years to life. (
The Legislature presumably knew that the cases covered by section 3051, subdivision (b)(3) span a vast range of culpability based on the type and number of crimes committed and enhancements charged, especially in light
The court says considerations of “the appropriate punishment for the underlying crimes, depending on their severity,” are “not dissimilar from the considerations that prompted the high court [in Miller] to distinguish, for Eighth Amendment purposes, betweеn sentencing juveniles for homicide offenses and sentencing juveniles for nonhomicide offenses.” (Maj. opn., ante, at p. 28.) But the line drawn here between LWOP and non-LWOP sentences does not track the line between homicide and nonhomicide offenses. And more fundamentally, the import of Miller is that juvenile sentencing even for the most severe crimes must be bounded by what is known about young offenders’ capacity for change. Miller held that life without parole may be imposed on juvenile homicide offenders only on “rare” occasions based on an individualizedsentencing determination that “take[s] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Miller, supra, 567 U.S. at pp. 479, 480.) The Legislature, aware of Miller, determined that young offenders’ transient traits and capacity for change extend through age 25. Denying parole eligibility to a subset of young offenders on the ground that their culpability categorically trumps their potential for rehabilitation is plainly “dissimilar” (maj. opn., ante, at p. 28) from Miller‘s emphasis on individualized sentencing determinations to account for youth-related vulnerabilities.
At bottom, the court says that assessing culpability on the basis of aggregate sentences or underlying criminal conduct is “not the only possible way[] to evaluate culpability. That the Legislature may have prescribed a measurement of culpability different from Hardin‘s does not mean the
There is a far simpler explanation: In enacting and expanding section 3051, the Legislature was not in the business of measuring culpability at all, apart from recognizing the diminished culpability of young offenders across the board. The statute‘s text and history make clear that the Legislature‘s purpose was to recognize the developmental vulnerabilities of young offenders and provide them a chance to earn release by demonstrating growth and change. As Hardin says, the parole scheme simply reflects the Legislature‘s general calibration as to how much time is needed for rehabilitation based on a young person‘s most serious offense, keeping in mind that eligibility for parole does not mean release. The tiered scheme embodies a legislative judgment that while the attributes of youth are not crime-specific, young people who commit more serious offenses generally require more time for rehabilitation, while young people who commit less serious offenses require less.
This view readily explains the flattening of myriad gradations of crimes and underlying conduct into three tiers of parole eligibility. Within a given tier, committing more crimes typically results in greater harm and culpability, but in view of the science on which the Legislature relied, it does not typically indicate less potentiаl for growth and rehabilitation. Moreover, the 15-, 20-, and 25-year benchmarks are not random numbers; they track the steeply declining risk of offending as people mature beyond early adulthood. (See Lofstrom et al., Pub. Policy Institute of Cal., Are Younger Generations Committing Less Crime? (2023) p. 8, figure 1 [California age-crime curves
showing that violent felony arrest rates decline significantly as people mature into their 30s and 40s].) This commonsense understanding of the eligibility
Finally, the court says “[t]he most natural” inference is not that the Legislature “enacted a statute at odds with its own rehabilitative ends” but that it was “attempting to pursue other “(perhaps even contrary) ends as well.” ‘” (Maj. opn., ante, at p. 28.) Similar reasoning could have been deployed in Newland, D‘Amico, Cooper, Moreno, and other cases. But Newland and D‘Amico did not infer a cost-saving purpose for the exclusions at issue, Cooper did not accept an owner-negligence rationale for barring suits by owner-passengers against permissive drivers, and Moreno did not infer a fraud prevention purpose for excluding unrelated households from food stamps. In each case, the court measured the classification against the express or primary purpose of the statute and did not hesitate to find the “statute at odds with its own . . . ends.” (Maj. opn., ante, at p. 28.) The court simply ignores this case law in claiming its view of the statute is “[t]he most natural.” (Ibid.)
It is easy to posit that the exclusion here reflects a legislative assessment of culpability and proper punishment; the court even says this is “necessarily” what the Legislature thought. (Maj. opn., ante, at pp. 27, 32.) But there is not a single mention of such an assessment in the repeated consideration of this legislation. In contrast to the clear statements of rehabilitative aims, nothing in the legislative record states that young adult offenders serving LWOP are categorically more culpable than their parole-eligible peers serving de facto LWOP or other lengthy sentences for very serious crimes. It is not hard to imagine that such a claim, had it been asserted, would have invited skepticism (see post, at pp. 36-41) as well as heightened attention to the racial skew of the affected group and its traceability to a history of racially inflected tough-on-crime policies. (See dis. opn. of Evans, J., post, at p. 16 [“The LWOP exclusion perpetuates extreme racial disparities in our criminal and juvenile justice systems.“]; Com. on Revision of the Pen. Code, Annual Report and Recommendations (2021), at pp. 51, figure 24, 53 [among California LWOP inmates who were under age 26 at the time of the offense, 86 percent are people of color and 76 percent are Black or Latinx]; cf. Hetey & Eberhardt, Racial Disparities in Incarceration Increase Acceptance of Punitive Policies (2014) 25 Psychological Science 1949 [field study showing that awareness of extreme racial disparities in prison population made voters more accepting of punitive policies and less likely to support reform].)
The Legislature did not say why it excluded persons like Hardin, and we should not paper over this lacuna by imputing a purpose that the Legislature never had. As in past cases, we should take the Legislature‘s actual statement
III.
Even if we were to assume that the Legislature had concerns about culpability and appropriate punishment when it excluded young adults convicted of special circumstance murder from parole eligibility, we must still inquire whether such concerns provide a reasonable basis to distinguish the excluded group from others who are eligible for youth offender parole.
A.
As the Court of Appeal explained, the rationality of the exclusion “is belied by the statutory provisions that allow [a parole] hearing for individuals who have committed multiple violent crimes (albeit not special circumstance murder) and were sentenced to a technically parole-eligible indeterminate state prison term that is the functional equivalent of life without parole. (Cf. People v. Caballero, supra, 55 Cal.4th at p. 268 [sentence of 110 years to life for three counts of attempted premeditated murder with firearm-use and criminal street gang enhancements ‘amounts to the functional equivalent of a life without parole sentence‘]; [citation].) The crime of a 20-year-old offender who shot and killed his victim while attempting to commit robbery and was sentenced to life without parole (see
But there is more for us to consider than a litany of examples. As the Court of Appeal observed, the 2021 Annual Report and Recommendations (2021 Report) of the Committee on Revision of the Penal Code, a statutorily created committee of the California Law Revision Commission (
The court‘s only direct response to these data is a brief comment that “the study appears to suggest that certain specific special circumstances, added through various amendments after the initial enactment of section 190.2, have led to the results found in the study,” and that Hardin is in no position to challenge “[t]he special circumstance finding at issue in [his] own case [i.e., robbery-murder]” because it “is based on a provision of the law that dates back to the initial enactment of section 190.2” in 1973. (Maj. opn., ante, at pp. 39-40.) But this does not accurately characterize the Baldus study or its relevance to Hardin‘s case. It ignores the fact that the Baldus study suggests the high rate of factually death-eligible cases among first degree murders is significantly attributable to the felony murder special cirсumstance, including robbery murder, that has existed since early iterations of section 190.2. (See Baldus study, supra, 16 J. Empirical Legal Studies at p. 729, fn. 122 [robbery felony-murder special circumstance accounted for 55 percent of factually death-eligible homicide cases during a period when that special circumstance required proof of intent to kill].) It also ignores the Baldus study‘s citation to an earlier study of several hundred California murder convictions with an appellate decision between 1988 and 1992, which found that 84 percent of first degree murder cases were death-eligible under the statute. (Id. at p. 704, citing Shatz & Rivkind, The California Death Penalty Scheme: Requiem for Furman? (1997) 72 N.Y.U. L.Rev. 1283, 1332.) That earlier study, on the very page cited by the Baldus study, states: “The majority of first degree murders are felony murders, and felony murders are virtually all special circumstances murders. Thus, the felony murder special circumstances alone defeat any possibility of genuine narrowing.” (Shatz & Rivkind, at p. 1332, fn. omitted.)
The court is correct that “Hardin does not argue that prosecutorial discretion itself offends equal protection.” (Maj. opn., ante, at p. 37.) But that is not the issue. The issue, on the court‘s own view of legislative purpose, is whether it is rational to exclude young offenders convicted of special circumstance murder from parole eligibility on the ground that they are more culpable or have committed more severe offenses than their peers convicted of simple first degree murder. In other words, is special circumstance murder in actuality “a uniquely serious offense” (id. at p. 2) for purposes of youth offender parole eligibility? No one disputes that “[s]pecial circumstance murder is an unquestionably grave offense, one that exacts an unimaginable toll on the lives of victims and those the victims leave behind.” (Id. at p. 43.) But does that distinguish special circumstance murder from all or any first degree murders in this context?
The panoply of charging factors unrelated to culpability, along with the sheer number of factually eligible cases among first degree murders, casts considerable doubt on the proposition. As Professor Grosso observes in her amicus briefing here, a special circumstance conviction cannot reasonably serve as a proxy for severity of the crime “when virtually all of the youthful first-degree offenders who are eligible for parole consideration committed crimes that qualify for sentencing under California‘s special circumstances statute.” (Accord, Hardin, supra, 84 Cal.App.5th at pp. 289-290 [“[W]ith respect to first degree murder, any purported legislatively recognized distinction in culpability between individuals serving a parоle-eligible indeterminate life sentence and those sentenced to life without parole is illusory.“].)
Instead of grappling with these data, today‘s opinion says the Baldus study is “not part of the record in this case” and “ha[s] never been the subject of any sort of adversarial testing.” (Maj. opn., ante, at p. 38.) But the study‘s findings are a prominent feature of the Court of Appeal‘s reasoning as well as Hardin‘s arguments and substantial amicus briefing in this court. Indeed, before we set this matter for oral argument, we took the affirmative step of directing, not inviting, the Attorney General to file an answer to the amicus briefing in this case. In his answer, the Attorney General did not take issue with the study‘s findings or methodology.
Among the hundreds of pages of briefing in this case, only one amicus brief, filed by the San Bernardino County District Attorney, questions the reliability of the Baldus study. That brief asserts that the study‘s data were “produced by inexperienced law students and recent graduates reading probation reports,” that probation reports may omit information important to charging decisions, and that the study yielded the “strange” finding that there is a higher rate of factually death-eligible cases among voluntary manslaughters (47 percent) than among second degree murders (38 percent), though the reported rate among first degree murders is far higher (95 percent). But the amicus brief does not engage with the coding protocol described at length in the peer-reviewed study. The protocol sets forth a series of detailed rules for characterizing cases, acknowledges and addresses the limitations of probation reports, includes methods for curing insufficient information in a probation report, and notes that ultimately 11 percent of cases had insufficient information to permit characterization. (See Baldus study, supra, 16 J. Empirical Legal Studies at pp. 708-713 & fns. 81, 83.) Neither the court nor any party or amicus has identified any specific shortcoming of the research protocol.
While acknowledging the study‘s findings, the Attorney General argues that “rational basis review does not require mathematical precision or a perfect fit.” But no one is insisting on mathematical precision or a perfect fit. The issue is whether there is any reasonable relation between the classification drawn and the purported purpose of calibrating youth offender parole eligibility to offense severity and culpability. The Baldus study and related findings in Professor Grosso‘s amicus brief are clearly relevant to that issue, and these findings have been brought to our attention in the tradition of a “Brandeis brief.” (See Muller v. Oregon (1908) 208 U.S. 412, 419 & fn. † [discussing the 113-page brief by then-attorney Louis Brandeis that documented social science research on the negative effects of long working hours on women‘s well-being].) “[W]hen a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact,” courts
If the concern is that the Baldus study has not been subject to adversarial testing, then the prudent course is to remand this case for factual development in the trial court. In D‘Amico, we were careful to ensure adequate presentation of “‘constitutional facts’ bearing upon the validity of the [statute excluding osteopaths from medical licensure] under the equal protection clause.” (D‘Amico, supra, 11 Cal.3d at p. 16; see id. at pp. 9-10 [observing that the Court of Appeal had initially declined to decide the equal protection issue and remanded the matter to the trial court for development of relevant facts].) In U.S. Steel, we similarly indicated that the equal protection issue could not be settled “[w]ithout a more complete record“; we said we lacked an adequate factual basis for evaluating how burdensome it would be to truckers and the PUC to determine for rate-setting purposes whether foreign steel is transported by common carrier or private vessel. (U.S. Steel, supra, 29 Cal.3d at p. 614.) And the Massachusetts high court, in a recent decision holding LWOP unconstitutional for 18- to 20-year-olds, noted that it had earlier “remanded the defendant‘s case to the Superior Court for ‘development of the record with regard to research on brain development after the age of seventeen [in order to] allow us to come to an informed decision as to the constitutionality of sentencing young adults to [LWOP].’ ” (Commonwealth v. Mattis (Mass. 2024) 224 N.E.3d 410, 416, fn. omitted.)
To the extent the court has similar concerns in this case, we should take a similar course. We should not dodge a key component of the equal protection claim on the ground that it was “not litigated in the trial court” (maj. opn., ante, at p. 38) and then proceed to establish a precedent rejecting the equal protection claim. If “untested empirical findings” are the concern (ibid.), then why not remand this matter for factual development in light of the highly relevant information that has been brought to our attention? The court gives no reason. This head-in-the-sand approach — opting for less rather than more
C.
Ultimately, the core of the court‘s reasoning is that our case law has held in the Eighth Amendment context that “section 190.2 adequately separates the most egregious first degree murders — those deserving of the most severe punishment available — from the rest” and that “[g]iven this body of case law, it is difficult to see how the Legislature that enacted section 3051 could have acted irrationally in singling out special circumstance murder as a particularly culpable offense.” (Maj. opn., ante, at pp. 35, 36.)
It is true that our capital cases have repeatedly upheld the special circumstances statute against claims that it does not properly serve the narrowing function required by the Eighth Amendment for imposition of the death penalty. But what the court leaves unsaid is that none of the cases in its lengthy string cites illuminates the underlying rationale of the Eighth Amendment holding; the cases simply refuse to revisit precedent or summarily reject the claim without analysis. (See maj. opn., ante, at p. 35 & fn. 6 [citing 12 cases that contain no substantive analysis of the issue].)
Today‘s decision cites People v. Green (1980) 27 Cal.3d 1, 61, which “explained why the law treats robbery-murder as more culpable than simple murder.” (Maj. opn., ante, at p. 36.) But that case said nothing about whether the robbery-murder special circumstance, in operation, actually distinguishes crimes that are more culpable than simple murder offenses. The court also cites People v. Bacigalupo (1993) 6 Cal.4th 457 (Bacigalupo) in asserting that special circumstances “mark a first degree murder [as] particularly egregious.” (Maj. opn., ante, at p. 34.) We said in that case: “In California, the special circumstances serve to ’ “guide” ’ and ’ “channel” ’ jury discretion ‘by strictly confining the class of offenders eligible for the death penalty.’ [Citation.] As the criteria in the California cаpital scheme that define the class of murders for which death is a potential penalty, the special circumstances set forth in section 190.2 must comport with Eighth Amendment requirements by providing not only clear and objective standards for channeling jury discretion, but also detailed and specific guidance, thus making the process for imposing a death sentence ’ “rationally reviewable.” ’ [Citation.] [¶] Under our death penalty law, therefore, the section 190.2 ‘special circumstances’ perform the . . . constitutionally required ‘narrowing’ function” of “circumscrib[ing] the class of murderers eligible for the death penalty.” (Bacigalupo, at pp. 467-468.) That was the extent of our analysis.
Bacigalupo described the intended function of special circumstances but undertook no empirical inquiry or factual analysis of the statute‘s actual operation. That is because the main issue in Bacigalupo was not whether section 190.2 adequately performs the constitutionally required narrowing function. It was whether the sentencing considerations at the penalty phase (
Today‘s opinion cites only one case that examined data on the operation of the special circumstances statute, People v. Frye (1998) 18 Cal.4th 894, 1028-1029 (Frye), and acknowledges that “[o]ur treatment of the issue in Frye was admittedly terse, and it relied on a different study than the one on which Hardin now relies.” (Maj. opn., ante, at p. 38.) Given these qualifiers, it is not clear what persuasive value the court thinks Frye has here. The defendant in Frye argued that “virtually all first degree murders are death eligible” based on “a statistical analysis . . . of published appeals from murder convictions for the years 1988-1992.” (Frye, at pp. 1028, 1029; cf. Shatz & Rivkind, supra, 72 N.Y.U. L.Rev. at pp. 1326-1335.) Our opinion in Frye did not discuss or even mention the actual data. Instead, we rejected the claim in three short sentences: “Defendant‘s argument notwithstanding, the special circumstances ‘are not overinclusive by their number or terms.’ ([People v. Arias (1996) 13 Cal.4th 92, 187].) Nor have they been construed in an overly expansive manner. (Ibid.; see also People v. Morales (1989) 48 Cal.3d 527, 557-558 [lying-in-wait]; People v. Marshall (1990) 50 Cal.3d 907, 946 [felony murder]; People v. Anderson (1987) 43 Cal.3d 1104, 1147 [felony murder].) Defendant‘s statistics do not persuade us to reconsider the validity of these decisions.” (Frye, at p. 1029.) The cases cited in Frye shed no further light on the issue, and today‘s opinion cites nothing else.
What we have, then, is a body of case law that has never grappled with empirical findings regarding the actual operation of special circumstances, much less with findings based on data as comprehensive as those in the Baldus study. On this point, the court does not and cannot disagree. Instead, today‘s decision, like the cases it cites, simply piles citation upon citation. But when one follows the trail of citations in search of a foundational rationale or analysis, one comes up empty. “Truly, this is ‘turtles all the way
I suppose the Legislature could have posited that special circumstance murder is categorically worse than other murders based on the mere fact that this court has said it again and again. But the fact that our cases have said it does not make it so.
Under rational basis review, “‘the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.’ ” (Brown v. Merlo, supra, 8 Cal.3d at p. 869.) We have been shown information that forcefully challenges the rationality of including youthful offenders convicted of simple first degree murder in the parole scheme while excluding youthful offenders convicted of special circumstance murder. This information calls for serious engagement and analysis, not repeated citation to ipse dixit in our case law.
D.
Toward the end of today‘s opinion, the court says it does not decide “the constitutionality of section 3051, subdivision (h) as it might arise in othеr as-applied challenges based on particular special circumstances or the factual circumstances of individual cases.” (Maj. opn., ante, at p. 42; see id. at p. 40 [“While we do not foreclose the possibility of other challenges to the distinctions drawn by the special circumstance statute based on a more robust record and a more focused as applied inquiry.“].) It is not clear what the court means in dangling this possibility. Does it mean that Hardin or someone like Hardin could bring a challenge to the felony murder special circumstance by comparing such cases with simple murder cases in which the felony murder special circumstance was not charged or not found true? Or does it mean that a litigant in Hardin‘s position would have to bring a challenge specifically to the robbery-murder special circumstance, since that is the one he was convicted of? Or does it mean that a litigant would have to focus the equal protection claim not simply on a “particular special circumstance[]” but more narrowly on a comparison to “individual cases” (id. at p. 42) that did not result in a special circumstance charge or finding but involved similar facts?
Although the court‘s lack of elaboration may be understandable, its gesture of purportedly leaving the door open to future challenges should invite some skepticism. For it is not clear how a litigant can succeed on a “more focused” claim (maj. opn., ante, at p. 40) without running into the argument that even if there is disparate treatment within a subset of similar cases (defined by a particular special circumstance or set of factual circumstances), the overall classification of persons convicted of special circumstance murder as more culpable than persons convicted of simple murder is a ” ‘gross generalization[] and rough accommodation[] that the Legislature seems to have made’ ”
IV.
Amidst all the legal reasoning in this case, what is missing are the facts of Tony Hardin‘s crime, committed in 1989 at age 25, and a real-life understanding of why the Legislature raised the cutoff for youth offender parole eligibility to age 26. According to the Court of Appeal decision affirming his conviction, the evidence showed that Hardin was friends with his elderly neighbor, Norma Barber. One night, Hardin killed Barber in her home by strangling her and stole her jewelry, VCR, Vantage cigarettes, car keys, and other items because he was “desperate to buy drugs and had no money to do so.” Hardin also stole two cans of beer from her fridge. The next morning, Hardin tried to buy cocaine from a drug dealer using Barber‘s necklace. The dealer refused but offered Hardin drugs in exchange for a ride to pick up a drug supply. Hardin complied and drove Barber‘s car, which had a personalized license plate. After they picked up the drugs, Hardin drove to a pawn shop and parked the car illegally in the lot. Inside the shop, Hardin exchanged Barber‘s jewelry for $15 and filled out the pawn slip with his name and provided a thumbprint. Meanwhile, the car was ticketed by a traffic officer.
Hardin used the $15 to buy cocaine from the dealer. That evening, Hardin asked for more cocaine and used the VCR as payment. He also offered Barber‘s microwave and brought the dealer to Barber‘s apartment. There, Hardin held the door open while the dealer took the microwave and other items. Hardin also lent the dealer Barber‘s car, which he parked nearby, for additional cocaine. Sometime after, police came to question Hardin at his home. Hardin spoke to the police and denied ever driving Barber‘s car. During the interview, police saw Vantage cigarette butts on an ashtray as well as cans of beer that Barber‘s son had reported missing. Hardin was ultimately arrested, charged, and convicted. It does not take much to recognize that Hardin‘s crime, driven by a drug habit and devoid of any sophistication, exhibited many of the hallmark features of youth: “recklessness, impulsivity, and heedless risk-taking” (Miller, supra, 567 U.S. at p. 471); “inability to assess consequences” (id. at p. 472); “inability to deal with police officers” (id. at p. 477); and vulnerability to substance abuse (id. at p. 478).
Upon “‘a serious and genuine judicial inquiry‘” (Newland, supra, 19 Cal.3d at p. 711), I see no rational basis for extending youth offender parole eligibility to persons convicted of simple murder regardless of the number or severity of their crimes, while denying it to the Tony Hardins who have been condemned to die in prison for committing similar crimes in their youth. I again join numerous judges throughout the state in urging the Legislature to revisit this issue. (See, e.g., People v. Jackson (2021) 61 Cal.App.5th 189, 202a-202b (conc. stmt. of Liu, J.) review den. June 9, 2021, S267812; see also maj. opn., ante, at pp. 42-43.)
While I agree with the court‘s decision to dispense with the “similarly situated” step of our equal protection doctrine, I dissent from the merits of today‘s equal protection holding. I would affirm the judgment of the Court of Appeal.
LIU, J.
Tony Hardin committed a murder in 1989 when he was 25 years old. Hardin, who is African American, was convicted of special circumstance murder and sentenced to life without the possibility of parole (LWOP). In 2021, Hardin moved for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) to preserve evidence related to youth mitigating factors for an eventual youth offender parole hearing. The superior court denied the motion on the grounds he was ineligible for a youth offender parole hearing based on his LWOP sentence. (
I.
Level of Scrutiny & Lens of Deference
Several amici urge the court to apply strict scrutiny. Under the federal equal protection clause, strict scrutiny only applies whеre the challenged regulation involves a fundamental right or a suspect classification. (Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307, 312.) Hardin concedes it does not apply here.
Even assuming strict scrutiny does not apply to the exclusion at issue here, rational basis review still requires us to engage in a “‘serious and genuine‘” inquiry between the classification and the legislative objective at issue in this case. (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711.) While I generally agree that this exclusion fails under any form of rational basis review (see dis. opn. of Liu, J., ante), I write separately to explain that the nature of the deprivation and whether the classification can be attributed to bias should inform this court‘s mode of deference. A rational basis review that considers racial disparities in classifications is particularly appropriate in cases such as this “where the challenged classification appears to impose a substantially disproportionate burden on the very class of persons whose history inspired the principles of equal protection.” (State v. Russell (Minn. 1991) 477 N.W.2d 886, 889.)2
The LWOP exclusion disproportionately impacts Black and Brown youth. It perpetuates racial disparities in LWOP sentences for youthful offenders. While perhaps unintentional, it nonetheless embodies racial bias that has plagued our criminal and juvenile justice systems since their inception. The stakes could not be higher. The differential treatment means the difference
Notably, a sister court has recognized that the equal protection guarantee of its state constitution “hold[s] lawmakers to a higher standard of evidence when a statutory classification demonstrably and adversely affects one race differently than other races, even if the lawmakers’ purpose in enacting the law was not to affect any race differently.” (Fletcher Props. v. City of Minneapolis (Minn. 2020) 947 N.W.2d 1, 19 (Fletcher).) In directing him to do so, the Attorney General filed an answer addressing that argument. Thus, due consideration of the racially disparate impact of the LWOP exclusion is warranted. In such cases, the Minnesota equal protection clause demands “actual (and not just conceivable or theoretical) proof that a statutory classification serves the legislative purpose.” (Ibid.) The parties here do not present any argument that the equal protection guarantee of California‘s constitution likewise requires this heightened degree of rational basis analysis. In my view, the resolution of that question is not determinative in this case. Our mode of deference, however, must take into account whether the challenged classification results in demonstrable and adverse racial discrimination.
With these principles in mind, I turn to the question of whether section 3051‘s LWOP exclusion fails rational basis review.
II.
Application of the Rational Basis Standard
I begin with the articulated purpose of section 3051. The parties agree the articulated objective of section 3051 is to provide youthful offenders with a meaningful opportunity to obtain release upon a showing of maturation and rehabilitation. In extending youth offender parole eligibility to those who committed a crime before they were 26 years of age, the Legislature relied on brain science establishing the attributes of youth are maintained until age 26.4
The majority speculates the Legislature excluded youthful offenders sentenced to LWOP to account for their culpability based on their offense of special circumstance murder. This purported purpose not only conflicts with the statute‘s actual purpose, but there is nothing in the statute or its history indicating the Legislature was motivated by any “culpability” rationale. (Maj. opn., ante, at pp. 26, 29; see dis. opn. of Liu, J., ante, at pp. 23-36.) Contrary to the majority‘s hypothesis, the Legislature‘s decision to tether the youthful offender parole eligibility date to a youthful offender‘s controlling offense does not reflect rational judgments about culpability. (See dis. opn. of Liu, J., ante, at pp. 28-33.) What‘s more, the framework has little to no relevance to the Legislature‘s choice to enact the exclusion at issue before us. It is one thing to designate varying parole eligibility dates based on a youthful offender‘s controlling offense. It is quite another to exclude a class of youthful offenders from parole eligibility entirely based on their sentence, given the underlying rationale for youth offender parole.
Even assuming we can impute a legislative rationale that is contrary to a statute‘s purpose, a “culpability” rationale for the LWOP exclusion here is irrational. The hallmarks of youth and the heightened potential for rehabilitation are not crime- specific. (Miller v. Alabama (2012) 567 U.S. 460, 473.) In retaining the attributes of youth until age 26, as the Legislature recognized, youthful offenders “cannot with reliability be classified among the worst offenders.” (Roper v. Simmons (2005) 543 U.S. 551, 569.) As noted, youthful offenders who have been sentenced to LWOP are just as capable of becoming rehabilitated as their peers. Given the neuroscience, excluding youthful offenders from parole eligibility based on their offense does not make rational sense.
The imputed “culpability” rationale is also belied by uncontroverted evidence presented to the Legislature and this court.5 As the Committee on
Black people are disproportionately convicted of the felony-murder special circumstance. (Annual Report, supra, at p. 52.) As the Annual Report noted, 42 percent of people convicted of felony murder special circumstance are Black “compared to only 34% of the overall first-degree murder population and 26% of the second-degree murder population.” (Ibid.) “Rates of felony murder special circumstance convictions also vary by the intersection of race and age. . . . Black individuals sentenced to LWOP for felony murder are much more likely to be younger at the time of offense than their White counterparts. In fact, almost half of people who were sentenced to LWOP through felony murder for offenses that took place when they were under the age of 21 are Black.” (Special Circumstances Conviction Project, Life Without Parole and Felony Murder Sentencing in California (2023) p. 9 <https://csw.ucla.edu/wp-content/uploads/2023/08/SCCP-Report11.pdf> [as of Mar. 4, 2024].)
While racial disparities exist across age groups, racial disparities are most prevalent “among people who were 25 or younger at the time of the offense and received a life without parole sentence — 86% are people of color.” (Annual Report, supra, at p. 53.) The total LWOP population in California is over 5,000, and 62 percent are youthful offenders. (Id. at pp. 50, 53.) Of the roughly 3,100 youthful offenders sentenced to LWOP, 38 percent are Black, 38 percent are Latinx, 14 percent are White, 2 percent are Asian or Pacific Islander, 2 percent are American Indian/Alaskan Native, and 7 percent are
The Legislature was well aware of the racial disparities in LWOP sentences for youthful offenders, as the legislative history of various bills relating to the youth offender parole eligibility scheme includes discussion of these disparities.7 Although the Legislature has enacted various remedial measures to address racism in our justice and carceral systems, the question remains: why did the Legislature ignore the brain science and disparate impact of the LWOP exclusion on young people of color? The legislative history does not provide a definitive answer to this question. The LWOP exclusion, however, perpetuates severe racial disparities and, given its historical context, bears the taint of prejudice against Black and Brown youth.
III.
The LWOP Exclusion Perpetuates Racial Bias Against Black and Brown Youth
The historical context of the LWOP exclusion illuminates its origin and the motivating force behind it. “To determine the validity of the enactment . . . it must be viewed in light of its historical context and the conditions existing
The historical context of the LWOP exclusion demonstrates it was motivated — consciously or not — by racial bias, including racial stereotypes and myth. The provision excluded a group of youthful offenders based on their LWOP sentence — a metric that is not reflective of their culpability or their potential for rehabilitation, and a sentence with a significant disparate impact on Black and Brown youth. The Legislature enacted the LWOP exclusion against the backdrop of the now-debunked “superpredator” myth. The myth distorted policy makers’ collective understanding of youth as a mitigating circumstance and instead treated it as an aggravating circumstance and specifically demonized young Black males. The LWOP exclusion tracks that myth.
In the mid-1990s, Princeton University Professor John J. DiIulio, Jr., warned of an approaching violent crime surge perpetrated by “tens of thousands of severely morally impoverished” and “super crime-prone young males . . . on the horizon.” (DiIulio, The Coming of the Super-Predators (Nov. 27, 1995) Washington Examiner <https://www.washingtonexaminer.com/magazine/1558817/the-coming-of-the-super-predators/> [as of Mar. 4, 2024].) According to DiIulio, “[A]s long as their youthful energies hold out, they will do what comes ‘naturally‘: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.” (Ibid.) Criminologist James Alan Fox likewise warned that “[u]nless we act today, we‘re going to have a bloodbath when these kids grow up.” (Mills et al., Juvenile Life Without Parole in Law and Practice: Chronicling the Rapid Change Underway (2016) 65 Am. U. L.Rev. 535, 582.)
The superpredator myth particularly focused on Black youth. DiIulio claimed “[t]he surge in violent youth crime has been most acute among black inner-city males” (DiIulio, supra, Washington Examiner) and predicted that “as many as half of [the] juvenile super-predators could be young black males.” (DiIulio, My Black Crime Problem, and Ours (Spring 1996) 6 City J. 19 <https://www.city-journal.org/html/my-black-crime-problem-and-ours-11773.html> [as of Mar. 4, 2024].) In reversing a trial court‘s denial of a
The superpredator myth “turn[ed] upside down the constitutional mandate of Roper and its progeny. By labeling a juvenile as a superpredator, the very characteristics of youth that should serve as mitigating factors in sentencing — impulsivity, submission to peer pressure, deficient judgment — are treated instead as aggravating factors justifying harsher punishment.” (Belcher, supra, 268 A.3d at p. 629.) “The ‘superpredator’ was constructed as the ultimate other, as possessing all the characteristics that innocent young children do not. . . . And because the ‘superpredator’ was the antithesis of childhood, it was slyly constructed as young, Black, and male.” (Nunn, The End of Adolescence: The Child as Other: Race and Differential Treatment in the Juvenile Justice System (2002) 51 DePaul L.Rev. 679, 713.)
Empirical evidence quickly demonstrated that the superpredator myth was baseless and false. Between 1994 and 2009, the juvenile crime ratе dropped by half. (Southerland, Youth Matters: The Need to Treat Children Like Children (2015) 27 J. Civ. Rights & Economic Development 765, 777 (Southerland).) There was “a fifty-six percent decline in homicides committed by juveniles from 1993 to 1998, and a thirty percent decline in overall juvenile crime during the same period.” (Barton, Reconciling the Burden: Parental Liability for the Tortious Acts of Minors (2002) 51 Emory L.J. 877, 879.) In California, “from 1980 to 2016, the arrest rate among those 17 or younger dropped by 84 percent.” (Lofstrom et al., Public Policy Institute of Cal., New Insights into California Arrests: Trends, Disparities, and County Differences (Dec. 2018) p. 3 <https://www.ppic.org/wp-content/uploads/new-insights-into-california-arrests-trends-disparities-and-county-differences.pdf> [as of Mar. 4, 2024].) “Moreover, the predictions that youth of color would be primarily responsible for increases in violent crime were proven false. The fluctuations in juvenile homicide rates during the last two decades have not been specific to any demographic groups, peaking in 1994 for both African-American and white teenagers before falling through the year 2000.” (Southerland, supra, 27 J. Civ. Rights & Economic Development at p. 777.)
While empirical evidence demonstrated that the superpredator myth was baseless and false, the myth “tapped into and amplified racial stereotypes that date back to the founding of our nation.” (Belcher, supra, 268 A.3d at p. 626.) The superpredator myth “relied heavily on ‘racist imagery and stereotypes’ and harkened back to ‘historic representations of African Americans [and other people of color] as violence-prone, criminal and savage.” (Southerland, supra, 27 J. Civ. Rights & Economic Development at p. 773.)
The superpredator myth is one of many incarnations of racism that have plagued our criminal and juvenile justice systems since their inception. For example, once juvenile courts became more accessible to Black youth in the mid-1900s, the justice system shifted away from a rehabilitative objective and became more punitive. (Lapp, Young Adults & Criminal Jurisdiction (2019) 56 Am. Crim. L.Rev. 357, 386, citing Ward, The Black Child-Savers: Racial Democracy and Juvenile Justice (2012) p. 4.) “[T]he increase in disproportionate minority contact with juvenile court overlaps with the decline of the rehabilitative ideal and the rise of a more punitive juvenile court.” (Lapp, at p. 386.) At the same time, politicians began treating youth not as individuals in need of guidance, support, and perhaps treatment — but as looming forces
In California, the superpredator myth animated legislation underpinning LWOP sentences for youthful offenders. For example, as a direct result of the superpredator myth, voters passed Proposition 21 in 2000. (See de Vries, Guilt By Association: Proposition 21‘s Gang Conspiracy Law Will Increase Youth Violence in California (2002) 37 U.S.F. L.Rev. 191, 197; see also Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1391 (2017-2018 Reg. Sess.) as amended May 25, 2018, pp. 4-5 [acknowledging the shift towards punitive treatment of youth “was fueled by media‘s portrayal of youth as ‘superpredators,’ consistent with the era‘s tough on crime attitude. . . . In 2000, Proposition 21 again dramatically shifted California‘s criminal justice policies“].) Proposition 21, among other things, created the gang-murder special circumstance and allowed — and sometimes mandated — charging children as young as 14 years old directly in adult criminal court. In advocating for the initiative‘s passage, proponents adopted the language of the superpredator myth, perpetuating racial prejudice and capitalizing on dire “predictions of a juvenile crime wave.” (Voter Information Guide, Primary Elec. (Mar. 7, 2000), argument in favor of Prop. 21, p. 48.) Contrary to the ballot material claims, juvenile crime had, in fact, been declining since 1993. (See pp. 10-11, ante.)
Even after the superpredator myth was exposed as false and the system began to refocus on rehabilitation, Black youth continue to disproportionately “experience the devastating effects of legislative and policy shifts that undermined the core rehabilitative philosophy of American juvenile courts in the wake of the superpredator myth.” (Henning, supra, 86 Geo. Wash. L.Rev. at p. 1622.) They continue to be viewed as older and more culpable than White youth (id. at p. 1627) and, as noted above, have experienced the disproportionate imposition of LWOP sentences. Passed in the wake of the
* * *
The LWOP exclusion perpetuates extreme racial disparities in our criminal and juvenile justice systems. The historical and invidious discrimination against Black and Brown youth in criminal and juvenile justice policy provides important context when analyzing whether the exclusion has a rational basis. The LWOP exclusion is particularly striking since the Legislature otherwise recognizes that youthful offenders as a class have diminished moral culpability. Particularly given the context of the LWOP exclusion‘s enactment and its discriminatory impact, the statutory classification must serve the Legislature‘s expressed purpose — to provide youthful offenders with a meaningful opportunity to obtain release upon a showing of maturation and rehabilitation. In light of that purpose and lack of any difference in the brain development or capacity for rehabilitation between excluded and non-excluded young people, the LWOP exclusion is irrational.
This case calls on us to correct a legacy of casting Black and Brown youth as predatory, remorseless, and irredeemable, older than they are, and treated differently from White youth. The equal protection clause demands that lawmakers extend the mercy, dignity and grace embodied in the youthful offender parole eligibility scheme to all youth — regardless of the crimes of which they were convicted. As a class, they all are less morally culpable and are more likely to become rehabilitated based on accepted scientific evidence regarding adolescent brain development. The majority has avoided this heed with the hollow promise of another day. I urge the Legislature to correct itself by ridding section 3051 of the LWOP exclusion and extending youth offender parole eligibility to all individuals who were convicted in their youth.
I respectfully dissent.
EVANS, J.
Notes
Justice Liu lays out an argument for reconsidering rational basis review under our state equal protection guarantee to require a focus on the Legislature‘s actual, rather than hypothesized, reasons for the challenged classification. (Dis. opn. of Liu, J., post, at p. 21.) We note, however, that our analysis focuses on the apparent motivations underlying the challenged classification, as revealed in the statutory text and history; we do not endeavor to exhaustively catalog all conceivable concerns that might be hypothesized in support of the challenged distinction.
All Internet citations in this opinion are archived by year, docket number, and case name at <http://www.courts.ca.gov/38324.htm>.Justice Liu also invokes a different study, cited in the Baldus study but not raised by either party to this case, in support of the view that “‘the felony murder special circumstances alone defeat any possibility of genuine narrowing.‘” (Dis. opn. of Liu, J., post, at p. 38.) Particularly without any adversarial testing or argument concerning the relationship between this limited set of empirical findings and the Eighth Amendment‘s narrowing requirement, we have no adequate basis for drawing this sweeping conclusion, which would call into question a substantial body of precedent оf both this court and of the United States Supreme Court. (See Pulley v. Harris (1984) 465 U.S. 37, 51, fn. 13, 53 [upholding the 1978 version of the special circumstance murder statute]; Frye, supra, 18 Cal.4th at pp. 1028-1029.)
Notably, the Human Rights Watch submitted its report to the Legislature in support of Senate Bill No. 394 (2017-2018 Reg. Sess.), which expanded the youth offender parole eligibility scheme to include youthful offenders who were younger than 18 at the time of the offense and were sentenced to LWOP.