Unjust Results
Many Youth Sentenced to Life without Parole did not Actually Kill
Under state law there are several ways in which a person can become criminally responsible for another person’s actions. In California a significant number of juveniles sentenced to life without parole were convicted of a murder that they did not physically commit. Forty-five percent of those who responded to Human Rights Watch’s survey said they were not convicted of physically committing the murder for which they are serving life without parole.28
This “murder once removed” exists in several legal forms.29 One is “felony murder.” Felony murder results when a participant in a felony is held responsible for a codefendant’s act of murder that occurred during the course of the felony. A person convicted under the felony murder rule is not the one who physically committed the murder. The law does not require the person to know that a murder will take place or even that another participant is armed.30 As long as an individual was a major participant in the commission of a felony, he or she becomes responsible for a homicide committed by a codefendant.
In addition to felony murder, juveniles can be sentenced to life without parole for other involvement that falls short of being the trigger person, such as aiding and abetting, or being an accomplice.31 “I sold the gun to the shooter prior [to] the day of the shooting, plus I gave him a ride from the crime scene,” Ruslan D. said, describing his role in a murder committed by his 18-year-old codefendant.32 Ruslan was convicted for aiding and abetting and was sentenced to life without parole. As one prosecutor said after the sentencing of a juvenile to life without parole, “A lot of kids don’t understand aiding and abetting.”33
A significant number of these cases involve situations of an attempted crime gone awry—a tragically botched robbery attempt, for example—rather than premeditated murder. Under the law, a teen who commits murder in the course of a felony—even when lacking premeditation—will presumptively receive life without parole because of the special circumstance of being engaged in or attempting to commit a felony.34 Based on available data, this special circumstance is the most frequently imposed out of all the 22 special circumstances, with a significant number based on the felony of robbery.35
Anthony C.
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The Worst Racial Disparity in the Nation
In California, as well as at least 10 other states, African American youth are sentenced to life without parole at rates that suggest unequal treatment before sentencing courts. This unequal treatment of youth cannot be explained by white and African American youths’ differential involvement in crime alone.
Eighty-five percent of youth sentenced to life without parole in California are people of color, with 75 percent of all cases in California being African American or Hispanic youth (Figure 1). Data from the California Department of Corrections and Rehabilitation shows that 95 are Hispanic and 74 African American. Whites are 44 percent of the state’s population but just 15 percent of those sentenced to life without parole as youth offenders.36
Figure 1
Source: California Department of Corrections and Rehabilitation data, April 2004
We have data on white and African American youth serving life without parole in the United States for 25 out of the 39 states that apply the sentence in law and practice. As illustrated by figure 2 below, in these states, relative to the state population in the age group 14-17, African American youth are serving life without parole at rates that are, on average, 10 times higher than their white counterparts.37
In California, however, African American youth are serving the sentence at a rate that is 18.3 times higher than the rate for white youth. The rate at which Hispanic youth in California serve life without parole is five times that of white youth in the state.38
Figure 2
Youth offenders serving life without parole data originally published in Human Rights Watch and Amnesty International, The Rest of Their Lives: Life without Parole for Child Offenders in the United States (New York: Human Rights Watch, 2005), http://hrw.org/reports/2005/us1005/; and supplemented by data on under-18 offenders serving life without parole in California provided to Human Rights Watch from California Department of Corrections and Rehabilitation in April 2007. Data on under-18 offenders serving life without parole in Mississippi provided to Human Rights Watch from NAACP LDF in October 2007 (report forthcoming). Population data extracted by Human Rights Watch from C. Puzzanchera, T. Finnegan, and W. Kang, Easy Access to Juvenile Populations Online: US Census Population Data, State Population Data with Bridged Race Categories 2004, for ages 14—17, http://www.ojjdp.ncjrs.gov/ojstatbb/ezapop/ (accessed January 2, 2008). Certain states are not included in the above figure because of insufficient data. Ratio calculated using rates per 10,000 population of youth age 14-17 disaggregated by race and state.39
Some argue that these differences in sentencing rates are due to differences in involvement in crime.40 Human Rights Watch sought data on the involvement in crime of youth in the United States disaggregated by race and state for a time period roughly comparable to the sentencing and population data sets we had already compiled. Specifically, we sought data on youths convicted of murder, since murder is the crime that most commonly results in the life without parole sentence for youth offenders.41 We were unable to find any such data source available in the country. The Federal Bureau of Investigations agreed to produce a special data set for us reporting on these variables for the years 1990—2005. These data on youths arrested for murder form the basis for Human Rights Watch’s analysis in this report.42 An important limitation of the data is that there was no information available for the rate of conviction for those arrested. Calculating the rates of JLWOP based upon rate of arrest rather than conviction may bias the results if there are differential rates of conviction by race.43
For the 25 states for which we have data, African American youth are arrested per capita for murder at rates that are six times higher than white youth.44 We have calculated murder arrest rates per capita for African American and white youth and found that in California for every 10,000 African American youth in the state, 82.69 are arrested for murder. For every 10,000 white youth in the state, 26.36 are arrested for murder. For the 25 states for which we have data, the rate of murder arrests for African American youth is 42.42 per 10,000 youth while the national average for white youth is 6.4 per 10,000. These rates show that twice as many African American youth and four times as many white youth are arrested for murder in California than are arrested on a per capita basis in the 25 states for which we have data.45
These racial disparities in arrest rates per capita for murder may reflect racial discrimination in the administration of juvenile justice in the United States, or they may reflect differences between African American and white youth criminality.Regardless, once arrested, one would expect that the ratio of the number of African American youths arrested to the number of African American youth sentenced to LWOP would be similar to the ratio of the number of white youth arrested versus the number of white youth sentenced to LWOP. However, we found that in 10 states, with California the most strikingly disproportionate example, that this was not the case (Figure 3).
Figure 3
|
State |
Black Murder Arrest Rate / Black JLWOP Rate |
White Murder Arrest Rate / White JLWOP Rate |
White Rate of JLWOP per Arrests / Black rate of JLWOP per Arrests |
|
California |
21.14 |
123.31 |
5.83 |
|
Delaware |
3.00 |
12.00 |
4.00 |
|
Colorado |
4.58 |
15.29 |
3.34 |
|
Arizona |
16.33 |
52.71 |
3.23 |
|
Georgia |
87.50 |
262.50 |
3.00 |
|
Connecticut |
22.83 |
47.50 |
2.08 |
|
N. Carolina |
22.44 |
37.83 |
1.69 |
|
Illinois |
12.74 |
18.90 |
1.48 |
|
Pennsylvania |
2.86 |
3.60 |
1.26 |
|
Nebraska |
4.40 |
5.40 |
1.23 |
Murder arrest data extracted by Human Rights Watch from data provided by the Federal Bureau of Investigations, Uniform Crime Reporting Program: 1990-2005 Arrest by State, (extracted by code for murder crimes, juvenile status, and race) (on file with Human Rights Watch). Population data extracted by Human Rights Watch from C. Puzzanchera, T. Finnegan, and W. Kang, Easy Access to Juvenile Populations Online: US Census Population Data, State Population Data with Bridged Race Categories 2004, for ages 14-17, http://www.ojjdp.ncjrs.gov/ojstatbb/ezapop/ (accessed January 2, 2008). Certain states are not included in the above figure because of insufficient data (see footnote 39, above). Youth offenders serving life without parole data originally published in Human Rights Watch and Amnesty International, The Rest of Their Lives: Life without Parole for Child Offenders in the United States (New York: Human Rights Watch, 2005), http://hrw.org/reports/2005/us1005/; and supplemented by data on under-18 offenders serving life without parole in California provided to Human Rights Watch from California Department of Corrections and Rehabilitation in April 2007. Data on under-18 offenders serving life without parole in Mississippi provided to Human Rights Watch from NAACP LDF in October 2007 (report forthcoming). Iowa data could not be used for this comparison.
In California, for every 21.14 African American youth arrested for murder in the state, one is serving a life without parole sentence; whereas for every 123.31 white youth arrested for murder, one is serving life without parole. 46 In other words, African American youth arrested for murder are sentenced to life without parole in California at a rate that is 5.83 times that of white youth arrested for murder. Overall, in the 25 states where data is available, African American youth arrested for murder are sentenced to life without parole at a rate that is 1.56 times that of white youth arrested for murder.
These disparities support the hypothesis that there is something other than the criminality of these two racial groups—something that happens after their arrests for murder, such as unequal treatment by prosecutors, before courts, and by sentencing judges—that causes the disparities between sentencing of African American and white youth to life without parole.
County Sentencing Practices Differ
There is geographic inequity as well: the application of life without parole sentences varies widely among California counties. For example, as Figure 5 shows, although Alameda and Riverside counties have similar juvenile homicide rates, Riverside County has a juvenile life without parole rate nearly three times that of Alameda County. Similarly, while Monterey and Solano counties have comparable juvenile homicide rates, Solano County has four times as many teens serving life without parole sentence as Monterey.47 In some counties these numbers are so small as to not be statistically significant.
Figure 5
Source: http://stats.doj.ca.gov/cjsc_stats/prof05/index.htm and US Census Bureau 2000 data. http://quickfacts.census.gov/qfd/states/06000.html (accessed October 28, 2007).
Los Angeles is the state’s most populous county; in fact, it has more children and youth than any other county in the country. 48 However, population alone does not explain the high number of Los Angeles teens sent to prison with no chance of release. While its population accounts for 28 percent of the state’s youth, over 41 percent of all California youth sentenced life without parole are from Los Angeles. 49 African American youth are about 11 percent of the Los Angeles youth population, but represent 37 percent of those sentenced to life without parole. White youth, on the other hand, make up 22 percent of general youth population but represent only eight percent of those from Los Angeles serving life without parole.50
Influence of Peers
Common experience and developmental science teach that teens tend to act in concert with and be influenced by others. Youth do things in the presence of peers they would never do alone. The power of peer influence decreases with age, and what an individual at age 16 or 17 will do in a group may be quite different than the choices he or she will make when older. This is significant in the context of sentencing youth to life without parole, where a final decision as to an individual’s amenability to rehabilitation is based on the person’s actions as a teenager. When those actions were in a group, they may not reflect the individual’s potential as he or she matures.
Not surprisingly, youth who commit crimes making them eligible for life without parole are likely to have codefendants. Over 75 percent of those surveyed by Human Rights Watch committed their crimes in groups ranging in size from two to eight individuals. Research shows that peer groups are particularly influential during teen years, as opposed to the more autonomous independent decision-making
characteristic of adults. The susceptibility to peer influence peaks during the early to mid teens—precisely the period during which many of the individuals serving life without parole committed the acts that lead to the life without parole sentence—a phenomenon exacerbated by the fact that adolescents spend less time with parents, more time in groups than adults, and that people in groups generally make riskier decisions than they do alone.51 “When you’re young, you’re trying to impress people…your friends,” said Eduardo E.52
Teens are not only more susceptible to peer influence, they are also much more likely to engage in risky behavior with peers. One study showed that the presence of peers more than doubled the number of risks that teenagers took in a simulated video driving game but had no effect at all on adults.53 Michael A. reflected on the events leading up to his crime. “A friend was saying he had a problem with some guy. A lot came down to [my] wanting to simply look like a cool guy—like a guy of action who could help him out.It was just a bunch of kids trying to be macho,” he concludes now, looking back with the perspective of a 30-year-old.54
The likelihood of engaging in risky behavior is further heightened when teens lack structured, supportive institutional and family contexts.55 While some people we interviewed and surveyed grew up in supportive homes and had strong school and social connections, others described growing up in environments that were troubled. Billy G.’s father died when he was seven years old, leaving his mother alone with seven kids, he told us. She held down two jobs through most of his childhood. Billy describes her as “mainly a monetary figure” while his older brothers played the role of parent. “That obviously didn’t work out too well,” he noted, dryly commenting on the fact that an older brother became a codefendant in the case that sent Billy to prison for life.56
Gangs and gang membership also can be, in part, a peer-driven force. A gang-related murder can result in a special circumstances finding and a presumptive sentence of life without parole under California law.57 However, when the issue is whether the harshest punishment available under law should be imposed on a teenager on the basis of gang affiliation, there should be an analysis of whether the gang involvement is actually a reliable measurement of a teen’s culpability and the 
likelihood of future criminal behavior. Some of those interviewed for this report described their gang involvement as an adolescent failing. “I was affiliated with a street gang—I used to do things to impress people, to fit in,” said Chris D. of his criminal behavior. As he matured, however, his perspective changed. “Now, you need to fit in to be in my life rather than the other way around…I look back and think—why did I do that?” he told us.58
Additionally, some of those interviewed said they were drawn to gangs as a substitute for family support. J.R. J. described his attraction to gangs at a very young age, coinciding directly with a period of time in his life when things were falling apart at home and he was placed in foster care. “I was eight or nine, hanging out with a lot of older dudes in a gang. They were my friends, I could count on them to be there for me. Hanging out with them, it was like, I’m cool.” He also has a different perspective as someone now in his thirties: “The way I see things now is different—I’m done with that, done with gangs. After all these years, I carry myself differently now…I don’t want to live like that any more. I just want to live my life.”59
Given the reasons why some youth become involved in gangs and the power dynamic between its older and younger members, the penal code’sblanketgang member special circumstance does not account for individual differences and does not necessarily identify the most violent teens.
Jay C. At age 16, Jay was convicted of a gang-related shooting. He looks back on his life at that time and says, “It’s pretty easy to get involved in gangs. You feel like it’s family, like everyone is there for you. It feels like it, but it’s not.” That became painfully clear after the crime. His five codefendants were all adults. “My lawyer said, these guys are blaming it all on you. Why are you not telling me what happened? How can you be so stupid?” In the end, three of those five adults got shorter sentences. Reflecting on his motivation to be in a gang, he said, “In the beginning it was more about having fun. It was the peer pressure of belonging, being with the crowd…Peer pressures played a tremendous role in my teen years. For some reason I felt I needed to be cool, to hang out with the older guys to be accepted, needed, and to fit in…It’s one of the stupidest things I ever did.” Jay has been in prison for more than 15 years and said he has rejected gang life there since his mid-20s. “I have spent long periods of time reflecting on my past actions and on myself,” he wrote to Human Rights Watch. “Each moment of my life in here I am thankful to be alive.” Speaking of the pain caused others by his actions, he said, “I can’t imagine losing someone like that, like a nephew, or losing a son. It’s like you have lost your own life in a way.” —Human Rights Watch interview with Jay C., serving life without parole in California, July 16, 2007, and letter to Human Rights Watch dated July 26, 2007 |
Adult Codefendants
Respondents to the survey report a high level of adult involvement in their crimes. In nearly 70 percent of cases in which the youth was acting with codefendants, at least one of the codefendants was an adult. According to Human Rights Watch’s survey, many juveniles sentenced to life without parole committed their crimes under the influence of, and in some cases, under the direction of, an adult.60 This high percentage of adult codefendants is an important factor in understanding how juveniles get involved in crimes that result in life without parole. Additionally, adult codefendants tend to get lower sentences than the youth. Age should be a factor in determining culpability, and the influence of adults over young people should be taken into account when assessing a youth’s criminal responsibility.
Specific examples abound: juveniles who were the youngest in a group of significantly older adults committing a crime; younger brothers participating in a crime facilitated or encouraged by an older brother or family member; a young gang member trying to impress older ones. For example, Franklin H. told us that while he was 15 at the time of his crime, his three codefendants were 19, 20, and 27 years old. Of his attempt to fit in with that group he said, “I was trying to be cool.” 61 Both of Bill K.’s codefendants were adults; he was 16. One codefendant was 12 years older and had sexually abused and beaten Bill. “I was in a forced relationship. Where my codefendant was, I was. [I was] never to leave his side or he would beat the crap out of me.” When he told Bill he had to be the lookout for a robbery, Bill said, he did it. “I was afraid of him.” The robbery ended with his codefendants killing the robbery victim, and Bill was sentenced to life without parole for his role in the robbery.62
A true examination of a teenager’s culpability would not be accurate without assessing whether he or she acted under an adult’s direction. While no one would suggest that teens are inclined to obey all adults, there can be no question that young people in the settings that give rise to criminal behaviors are vulnerable to adult influence. Yet once a juvenile is sent to be tried in adult court, this factor is not taken into account unless there is a defense that gives rise to the legal standard of duress, a very high bar to reach. Cases proceed, in essence, ignoring the reality of a child or young person under an adult’s influence.
Respondents reported that in 56 percent of cases in which there was an adult codefendant, the adult received a lower sentence than the juvenile. 63 For example, Jesus N. was 16 when he and a 20-year-old codefendant committed a murder. Jesus told us that the adult pled to a lesser charge and was sentenced to 11 years. Jesus went to trial and was sentenced to life without parole.64 J.R. J. was 16 when he participated in a robbery that ended with the victim being killed. J.R. was not the shooter and had several codefendants, including two adults. All were charged under the felony murder rule. Neither adult was sentenced to life without parole, but J.R. and another minor codefendant were sentenced to life without parole.65
One very likely explanation for why adults end up with lower sentences than juveniles is that youth may not appreciate the value of plea deals offered. Some told Human Rights Watch they did not grasp the significance of plea deals because they could not fathom the length of the prison term. Others described not understanding concepts like felony murder. Robert D. was offered a plea deal before trial. “When they offered [my codefendant and me] 30 years, a flat 30 years, not 30 to life—we were 17 [years old.] We didn’t understand. Thirty years? I was 17 and in 30 years I’d be 47. That seemed like forever to me. We were in juvie hall. We said no.”66 More than a third of youthful offenders responding to Human Rights Watch’s survey said they had been offered plea deals but turned them down.67
Another possible reason that adults tend to get shorter sentences than juveniles is that adults may be more sophisticated in maneuvering through the criminal justice system. In addition to having a keener idea of when to take a deal, they may be more savvy and able to blame their younger codefendants. One interviewee said he had several adult codefendants, one of whom was more than 10 years older than he. “I thought these older dudes would be my friends, but in the end, they said that I did it all.”68 Another interviewee said, “[In] Asian gang culture—it’s always the youngest who takes the blame.”69
Legal Representation that Compromises Justice
Poor legal assistance afforded to many teen defendants appears to further compromise just outcomes. Some of those Human Rights Watch interviewed or surveyed described a level of legal representation that falls well below professional norms. One of the most salient errors reported to Human Rights Watch is attorneys’ failures to adequately represent youthful offenders at the sentencing hearing. In 46 percent of cases respondents reported that their attorney failed to argue for a lower sentence.70 In addition, in over 65 percent of cases, attorneys failed to inform their young clients that family, community members, and others could testify on their behalf at their sentencing hearing. Nearly 70 percent had no one speak on their behalf at the hearing: not a parent, a teacher who saw some good in a student, a coach who knew another side to a young person’s personality, or a friend.71 “He just threw me to the wolves,” said Chris D., of his defense attorney. “I didn’t realize [that you could have witnesses at sentencing] until I was talking to other guys [in jail] that were going through the sentencing process.”72
This is significant because the sentencing hearing is an opportunity for the judge to hear information about the defendant that would not have surfaced at trial. Character, amenability to change, and other mitigating circumstances are relevant at sentencing and help a judge assess whether “good reason” exists to apply a 25-to-life sentence rather than life without parole. Such omissions have particularly egregious consequences for a juvenile defendant facing life without parole, given both the severity of the sentence and the factors in many of these young people’s lives that could be the basis for a lower sentence. “On the day of my sentence I was in such a stupor, I don’t even know what was said. But what I do remember was an empty courtroom. It had an atmosphere of a funeral. Then again, maybe it was just me,” Taylor C. wrote of his sentencing hearing.73
The mother of a 17 year old was stunned as she watched her son’s case move straight from the verdict to sentencing. “He was found guilty and then right after the jury left, just right that next minute, the judge and attorneys started talking about sentencing,” Ms. Murray told us. She had expected her son’s attorney to prepare for sentencing and she thought the judge would review information from the case before making the decision. “[The attorney] didn’t even ask the judge for more time to get ready for sentencing.” Instead, the case proceeded to sentencing and the attorney for her son made no argument for a lesser sentence. “Not even a single argument. He could have said, ‘this is a minor, he’s never been arrested before…’but [he did not say] a single thing in favor of a different sentence.”74
The picture is a stark one: many youth tried in an adult court, facing the most severe penalty allowed by law, go through their sentencing hearings alone. Many can not even rely on their attorneys to stand up for them.
It is hard to identify justifiable reasons why an attorney would fail to prepare a strong case at sentencing. An attorney might not argue for a sentence of 25 years to life instead of life with no chance of parole because of poor professional conduct, or ignorance that a lesser sentence is an option under law. Or, an attorney may fail to argue for a lesser sentence because, with life without parole being the presumed sentence, he or she believes there is no chance of winning a lower sentence.
Representing a juvenile facing serious charges is no simple matter for an attorney. Juveniles can be difficult clients who are less able to assist their attorneys by virtue of their lack of experience, developmental stage, and educational level. In addition, studies have shown that many youth involved in the juvenile justice system suffer from learning disabilities and mental health problems.75 Cyn Yamashiro is the Director of the Center for Juvenile Law and Policy and a professor at Loyola Law School in Los Angeles. He says that representing youth is “in many ways, far more complicated than representing adults.” 76 Noting that there are the natural developmental and cognitive issues that all youth present, Professor Yamashiro explains that for many youth involved in the criminal system, there are problems that make the role of the attorney more complex. “The majority of these children suffer from learning disabilities, have been physically and psychologically abused, and have at least one diagnosable mental illness.”77 These impairments can make clear communication about complex concepts difficult. Attorneys representing youth must take special care to ensure their clients understand what is happening in the case. “Especially as a kid, you just say ‘yes’ to everything. I could follow what was going on somewhat, but the law is an alien language. As a kid, you’re told what has to happen, and you just do it,” said Michael A.78
Many interviewees told us that their own participation in their court case was nominal at best. Robert D. remembers, “The law [didn’t] make sense to me. I was like, ‘It’s up to the lawyer, do what you do.’”79 Almost all of those interviewed said they did not fully understand the proceedings, their role in the process, and the consequences at stake. “I didn’t even know I got LWOP until I talked to my lawyer after the hearing,” Jeff S. told us.80 This, too, indicates inadequate legal representation. As Chris D. explained, “Part of it was I was young and didn’t know how to express myself. I wasn’t able to tell him how I felt. But him being the adult—he should have found a way to communicate with me. He treated me like another statistic.”81
Finally, in addition to inadequate preparation and communication on the part of attorneys, at least 11 respondents to Human Rights Watch’s survey reported that judges explicitly reasoned that they were bound by law to impose the life without parole sentence, when in fact the law would have allowed them to impose a shorter sentence. Robert C. remembers what the judge said at his sentencing: “He said he had no choice but to give me LWOP because the jury found me guilty of first degree murder and by law he has to give me what first degree murder hold[s] (LWOP).”82 If a judge is confused as to the application of the law, the attorney should provide the court with the correct statement of the law.83 Other information suggests that attorneys and judges alike are operating under the presumption that life without parole should almost always be imposed on youth convicted of murder with special circumstances in California. These cases further indicate the lack of attention in some courtrooms to the sentencing phase and a dearth of engaged discussion between the attorneys and judges about the law and appropriate sentencing. Judges and lawyers may be confused about the law and, at least in some cases, are not taking the time to figure it out. 84
Ray J.
Ray is one of five siblings, from, he said, a close-knit family in Oakland, California. As he grew up, his self-image was tied to being a protector and a good friend. “I was always the protector of the family and tried to be there for my friends. I wasn’t no bad guy or anything like that…I have sisters and a lot of nieces. I’m the only boy, so I had to watch out for all of them.” By age 17, Ray had been getting into minor trouble—“I’d cut school to hang out with girls” and had started to deal drugs—but did not have a juvenile record. During this time, Ray was also learning trades from his father and discovered a facility for the work. “I knew how to do carpentry, electrical work, roofing, plumbing, keys—I’ve had trades since I was little. My dad taught me things—he’s a carpenter and a locksmith.” Straddling the two worlds became a day to day reality. “I used to sell drugs for fast money, but at the same time, I worked for my father building houses.” Shortly before the crime, Ray decided to leave the street life behind him and applied—and was accepted—into the Job Corps program, a job training program for young people. “I had this epiphany—I’m tired of hanging out on the streets. I want to do something with my life, something creative.” He had plans to open up a mechanics shop where he would buy cars, fix them up and sell them. The day that his plane ticket to San Diego arrived for the Job Corps program, however, he was arrested. Earlier that week, Ray was approached by a friend who begged him to help rob a local convenience store, and Ray agreed. “I thought I’d just go to make sure nothing bad happens. So I went with him and everything went wrong.” During the course of the robbery, Ray’s codefendant shot and killed a convenience store employee. The two were tried together, and although the court found that Ray did not personally commit the murder, he was nevertheless found guilty on a felony murder basis of first degree murder and was sentenced to life without parole plus 10 years for the use of a gun. “The judge let me hug my mom and I cried and I couldn’t stop,” he said, describing the moment when he heard the sentence. “I got life without and I didn’t kill anybody.” —Human Rights Watch interview with Ray J., serving life without parole in California, July 16, 2007 |
28 We believe the answers to this question are credible for the following reasons: First, the response to this answer is corroborated in the survey by another set of answers to unrelated questions regarding codefendants. Over 75 percent of respondents reported having between one and seven codefendants. That so many cases involved multiple codefendants supports the finding that many juveniles are sentenced to life without parole for criminal behavior that did not include being the “trigger person” or otherwise physically committing a murder. Second, the question specifically asked what a respondent was convicted of, not what an individual believed to be the facts in his or her case. In most cases the narrative portion of the answer made clear whether the respondent had understood the question. Third, where possible, answers were crossed-checked with independent research. Finally, other studies have found similar rates for juveniles convicted of felony murder and aiding and abetting. For example, nearly half of youth sentenced to life without parole surveyed in Michigan were sentenced for felony murder or aiding and abetting, and 33 percent of youth life without parole cases investigated in Colorado had convictions based on the felony murder rule. See American Civil Liberties Union of Michigan, “Second Chances, Juveniles Serving Life without Parole in Michigan’s Prisons,” 2004, http://www.aclumich.org/pubs/juvenilelifers.pdf (accessed November 6, 2007), p. 4; Human Rights Watch, Thrown Away: Children Sentenced to Life without Parole in Colorado, February 2005, http://hrw.org/reports/2005/us0205/, pp.18-19. Ideally, this data would be crossed-checked with court records, including trial transcripts and the testimony of witnesses. However, because the California criminal justice system is county-based, such records are very difficult to obtain and this level of research was not possible for this report. See the explanation in the Methodology section.
29Adam Liptak, “Serving Life for Providing Car to Killers,” New York Times, December 4, 2007.
30 California Penal Code §190.2(d) states that a person who is not the actual killer but one who acts with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony which results in the death of someone, will face the same penalties as if he or she had been the actual killer.
31 California Penal Code §190.2(c).
32 Survey response from Ruslan D., serving life without parole in California, to Human Rights Watch, July 25, 2007.
33 Mike Kataoka, “No-Parole Life Sentence Handed Down in Slaying,” The Press enterprise (Riverside), January 29, 2000. Quoting Prosecutor John Davis.
34 Under California Penal Code § 190.2(a)(17), “The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit” one of 12 felonies. Note that this is different than the general felony murder rule in which a defendant does not physically commit the murder but just participated in a felony in which someone else commits the murder. The special circumstance of committing a murder while engaged in a felony increases the penalty for any murder committed in the course of certain felonies. As a result, some people will, then, be convicted under the felony murder rule for participating in a felony in which a codefendant kills someone, and also will be subject to the increased penalties because the murder took p0lace while the defendant was engaged in a felony.
35 This data is based on case-specific research conducted by examining the legal opinions and news articles of 107 of the approximately 227 individuals serving life without parole in California which identified the special circumstance of which the teen had been convicted.
36 Data from the California Department of Corrections and Rehabilitation, reflecting the state’s juvenile life without parole population as of April 2007.
37 For all calculations introduced in this section, Human Rights Watch used state population data based on the 2000 Census, estimated for the year 2004 with bridged race categories. We used population data from 2004 because this provided us with the most fairly comparable population data to the LWOP sentencing data from states, which we collected in 2004. We used bridged race categories because most state correctional systems have not adopted the 31 new racial categories established in 1997 by the US Census Bureau. Therefore, we believe that using the bridged race population estimates for 2004 provides the most accurate comparative data. The National Center for Health Statistics explains that the bridged race data “result from bridging the 31 race categories used in Census 2000, as specified in the 1997 Office of Management and Budget (OMB) standards for the collection of data on race and ethnicity, to the four race categories specified under the 1977 standards. Many data systems, such as vital statistics, are continuing to use the 1977 OMB standards during the transition to full implementation of the 1997 OMB standards. The bridged-race population estimates are produced under a collaborative arrangement with the U. S. Census Bureau. The bridging methodology is described in the report, http://www.cdc.gov/nchs/about/major/dvs/popbridge/popbridge.htm.”
38 The rate is per every 10,000 youth ages 14 to 17 in California. For Hispanic youth this is 1.22.
39 States that prohibit LWOP: Alaska, Colorado (as of 2005), Kansas, Kentucky (cases under court challenge), New Mexico, Oregon, Washington, D.C. No race data provided to HRW from the states of Hawaii, Idaho, Montana, North Dakota and Virginia. No racial disparity rates calculated for Indiana, Minnesota, New Hampshire, Ohio, Rhode Island South Dakota, and Wyoming because each of these states had either zero African American or zero white youth sentenced to life without parole: IN (2 white / 0 African American), MN (1 white / 0 African American), NH (10 white / 0 African American), OH (0 white, 1 African American), RI (0 white, 1 African American), SD (6 white / 0 African American) WY (3 white / 0 African American). No racial disparity rates calculated for Florida because FBI provided Human Rights Watch with murder arrest data only for the years 1990-1995, which were insufficient data to provide accurate rates comparable with other state data.
40 In fact, racial disproportionality exists at every stage of the criminal and juvenile justice systems. Data shows increasing rates of disproportionate representation of African Americans at every stage of youth contact with the California legal system. African American children and youth are 17 percent of all juvenile arrests in California. California Department of Justice, Division of California Justice Information Services, Bureau of Criminal Information and Analysis, “Juvenile Justice in California 2005,” http://ag.ca.gov/cjsc/publications/misc/jj05/dataAnalysis.pdf (accessed October 28, 2007), p. 26. As the stakes go up, so does the disproportionate effect on young African Americans. Just 6.7 percent of the population, African Americans are 19 percent of juvenile cases referred to probation for further action, 21 percent of petitions filed, 25 percent of youth detained in secure county detention facilities, 26 percent of juveniles found “unfit” for juvenile court by a judge and transferred to adult court, and 34 percent of cases directly filed in adult court instead of juvenile court. See ibid., pp. 29-65.
41 Unfortunately, after several months of research, we were unable to find any state-based or nationally-based repository of data that tracked convictions of persons for murder, disaggregated by state, race, and by youth offender status. Similarly, there is no publicly available data on youth murder arrest rates, disaggregated by state and race.
42 It must be noted that arrest data are notoriously inaccurate as an indicator of actual criminal participation by different racial groups—youth or adult.
43 If rates of conviction are higher for whites than for African Americans, the disparity in California would be greater than presented here.
44 A graph showing the ratio of murder arrest rates for African American and white youth can be found in Appendix C.
45 To view actual arrest rates themselves, see Appendix C.
46 Note that these rates are comparing FBI murder arrest data from the same years as juvenile life without parole sentencing data, but these data come from two different sources and thus do not necessarily track the same individual cases. We are using FBI murder arrest data as a proxy for criminality in order to compare criminality and sentencing trends.
47 Data from the California Department of Corrections and Rehabilitation.
48 There are 2.7 million children and youth zero to 19 years old residing in Los Angeles County. See US Census Bureau, "Census 2000 Summary File 1 (SF 1) 100-Percent Data," http://factfinder.census.gov (accessed December 20, 2007).
49 According to data from the California Department of Corrections and Rehabilitation, 95 of the 227 juveniles serving life without parole are Angelinos. Los Angeles County has 679,815 youth ages 13 through 17; the total state population for that age group is 2,445,306. Population calculations are based on US Census Bureau, "Census 2000 Summary File 1 (SF 1) 100-Percent Data," http://factfinder.census.gov (accessed December 20, 2007).
50 Data from the California Department of Correction and Rehabilitation. Population calculations are based on US Census bureau data for children and youth in Los Angeles County ages 13 through 17 found in the Census 2000 data set, http://factfinder.census.gov (accessed December 20, 2007).
51 Laurence Steinberg and Elizabeth S. Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty,” American Psychologist, vol. 58, no. 12, (December 2003), pp. 1009–1018.
52 Human Rights Watch interview with Eduardo E., serving life without parole in California, July 13, 2007.
53 Laurence Steinberg, “Risk Taking in Adolescence: New Perspectives From Brain and Behavioral Science,” Current Directions in Psychological Science, vol. 16 (2007), p. 57.
54 Human Rights Watch interview with Michael A., serving life without parole in California, June 29, 2007.
55 Dante Cicchetti and Donald Cohen, eds., Developmental Psychopathology (Oxford: John Wiley & Sons, 2006), Chapter 18, Laurence Steinberg et al., “The Study of Developmental Psychopathology in Adolescence: Integrating Affective Neuroscience with the Study of Context,” p. 727.
56 Human Rights Watch interview with Billy G., serving life without parole in California, June 29, 2007.
57 California Penal Code §190.2 (a)(22) states: “The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.”
58 Human Rights Watch interview with Chris D., serving life without parole in California, July 16, 2007.
59 Human Rights Watch interview with J.R. J., serving life without parole in California, July 13, 2007.
60 Responses to the question “Were any of your codefendants adults?” comprise over 40 percent of all people in California serving life without parole for crimes committed under age 18. Of these, 68 percent had adult codefendants.
61 Survey response from Franklin H., serving life without parole in California, to Human Rights Watch, July 25, 2007.
62 Human Rights Watch interview with Bill K., serving life without parole in California, January 26, 2006.
63 In response to a Human Rights Watch survey, respondents listed their codefendants’ ages and sentences, where known. We do not have sufficient data to fully assess the relative degrees of culpability in each case. We are not suggesting that adults should get higher sentences than youth merely because they are adults. This data is based on survey data, which may be inaccurate due to the memory, perception, or self-perceived self interest of the respondents .
64 Survey response from Jesus N., serving life without parole in California, to Human Rights Watch, July 24, 2007.
65 Human Rights Watch interview with J.R. J., serving life without parole in California, July 13, 2007.
66 Human Rights Watch interview with Robert D., serving life without parole in California, July 13, 2007.
67 Approximately 35 percent of respondents reported being offered plea deals.
68 Human Rights Watch interview with Dave U., serving life without parole in California, July 13, 2007.
69 Human Rights Watch interview with Joey R., serving life without parole in California, July 16, 2007.
70 There were 113 responses to this question, with 52 individuals reporting that their attorney did not argue for a lesser sentence at the sentencing hearing. Some respondents reported that they did not remember. It is possible that others did not remember accurately or may not have understood what was being said in the hearing. Ideally, this data would be cross-checked with the transcripts of sentencing hearings.
71 Eighty-four out of 124 respondents to this question reported that no witness spoke on their behalf at the sentencing hearing.
72 Human Rights Watch interview with Chris D., serving life without parole in California, July 17, 2007.
73 Letter from Taylor C. to Human Rights Watch, July 31, 2007.
74 Human Rights Watch telephone interview with Ms. Murray, City of Industry, California, December 6, 2007. Ms. Murray asked that we not use her first name.
75 Conservative estimates are that over 33 percent of youth in juvenile corrections have a disabling condition and are receiving special education services, almost four times the number in the general population. Disabling conditions identified include emotional disturbance, learning disabilities, mental retardation, and other impairments that may impede a person’s ability to help his or her attorney and understand court proceedings. Mary Magee Quinn, et al “Youth with Disabilities in Juvenile Corrections: A National Survey,” Exceptional Children, vol. 71, no. 3 (Spring 2005), p. 342. This data is likely to understate the actual prevalence of disabilities because it reflects those who have been identified and provided with services, not those who are actually eligible and in need of services. As such it represents the ability of the schools and agencies working with these youth to identify and provide services to them. Although this study is of youth in the juvenile justice system and not the adult criminal system, there is no reason to believe that juveniles who are transferred from juvenile court to adult court would have a lesser incidence of these types of impairments.
76 Email communication from Professor Cyn Yamashiro, Director, Center for Juvenile law and Policy, Loyola Law School, Los Angeles, to Human Rights Watch, December 6, 2007.
77 Ibid.
78 Human Rights Watch interview with Michael A., serving life without parole in California, June 29, 2007. Social scientists examining adolescents' understanding of courtroom procedure found that psychosocial immaturity makes adolescents more likely than young adults to comply with authority figures. (This study specifically compared a group of 12- to 17-year-olds with a group of 18- to 24-year-olds, and its primary findings address competence of younger adolescents to stand trial in adult court.) As Michael put it, saying ”’yes’ to everything” a defense attorney told him is an example of this finding. Thomas Grisso, et al, “Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants,” Law and Human Behavior, vol. 27, no. 4, (August 2003), p. 357.
79 Human Rights Watch interview with Robert D., serving life without parole in California, July 13, 2007.
80 Survey response from Jeff S., serving life without parole in California, to Human Rights Watch, July 26, 2007.
81 Human Rights Watch interview with Chris D., serving life without parole in California, July 16, 2007.
82 Survey response from Robert C., serving life without parole in California, to Human Rights Watch, July 28, 2007.
83 The correct statement of law is found in the California Court of Appeals case People v. Guinn, 28 Cal. App.4th 1130, 1141 (1994), in which the court held that with good reason a judge may impose the lesser sentence of 25 years to life in prison.
84 In the course of this research, Human Rights Watch came across two cases in which life without parole was imposed even though the law specifically prohibited it due to age (for murder, a youth must be 16 or 17 years old and these youth were 15.) Both cases were sent back for re-sentencing on appeal. In another case a law professor described to Human Rights Watch a discussion with a defense attorney who had contacted her with questions about a case. In the course of the discussion it became apparent that the attorney believed the client faced life without parole and was advising the client as such, when in fact, it is a sentence not permitted for a 14-year-old convicted of murder.