By Kate Moser | The Recorder —
After it was all said and done, Richard Power’s legal work might have bought his young client 14 years of life.
Power’s client, who was 14 when he committed his crimes and 18 when he was sentenced, will spend most of his years behind bars, but thanks to a Second District Court of Appeal ruling this week, the individual known by the initials J.A. may see freedom when he is 56, rather than 70.
“My frank opinion is that it’s stupid to try a 14-year-old kid as an adult,” Power said.
Across the United States, courts are grappling with how to deal with violent youthful offenders who may not by law be sentenced to life in prison without the possibility of parole. Some are imposing long prison terms, sometimes hundreds of years.
Power’s client, whose IQ was shown to be in the mentally retarded range, was sentenced by an Orange County judge to 50 years to life plus two life sentences for sexually assaulting and robbing four boys when he was 14.
“On average, a person in his situation is not going to live as long as his sentence is,” said Power, an appellate attorney in El Dorado County.
Power argued the appeal 10 days after the U.S. Supreme Court held oral arguments in a case raising a similar question. In Graham v. Florida, the high court ultimately held that sentencing juveniles in nonhomicide crimes to life in prison without the possibility of parole violates the Eighth Amendment’s ban on cruel and unusual punishment.
Now, a battle in California’s appellate courts is raging over whether trial courts violate the Graham ruling by handing down lengthy sentences that, in practical terms, mean juveniles won’t be eligible for parole until well past retirement age, if ever.
Across the country, the trend on upholding these so-called de facto life sentences is mixed, said Kyra Millich, interim director of the Project to End Juvenile Life Without Parole at the University of San Francisco School of Law.
California’s could be the first state Supreme Court to reach the issue, after granting review in one such case in April. In People v. Caballero, S190647, a Second District panel upheld a 110-year sentence for a schizophrenic juvenile convicted of attempted murders after he went on a gang-related shooting rampage when he was 16. The case has caught the attention of national advocacy groups.
In Power’s case, the Fourth District panel decided the case this week after a couple of rounds of supplemental briefing.
“Although the parole board may one day conclude J.A. should be separated from society for the remainder of his life,” Justice Kathleen O’Leary wrote for the unanimous panel, “the trial court’s decision at the outset that J.A. is irredeemable is premature, rendering his sentence unconstitutional under the Eighth Amendment.”
Rather than returning the case to the trial judge, the panel recalculated the sentence and ordered the superior court clerk to send an amended abstract of judgment to the Department of Corrections and Rehabilitation that will make Power’s client eligible for parole about 42 years after his offense.
Corene Kendrick, a staff attorney at the Prison Law Office in Berkeley, said the decision was celebrated by juvenile justice advocates.
“How is it not cruel and unusual to sentence them to sentences where there’s no way they’ll be alive when they come up for the possibility of parole?” Kendrick said.
But other appellate panels have reached a different conclusion.
Two Second District panels, including the one in Caballero, have backed long sentences, concluding that the U.S. Supreme Court meant only that juveniles can’t literally be sentenced to life without the possibility of parole. Both opinions were written by Justice Steven Suzukawa.
One ruling upheld a 120-year sentence for a defendant convicted of three counts of attempted murder in a gang-related shooting when he was 16.
“He has thus effectively been sentenced to ‘life without parole’ — a sentence Graham prohibits for juvenile nonhomicide offenders,” Justice Nora Manella wrote in a dissent.
As California’s courts continue to hash out what the U.S. Supreme Court meant in its Graham ruling, the responsibility falls on judges.
Orange County Superior Court Judge William Froeberg sounded frustrated when a Fourth District panel granted a 14-year-old defendant’s habeas petition on a life-without-parole sentence for a gang-related aggravated kidnapping.
Froeberg resentenced the defendant, who also had repeatedly fired an AK47 at police officers, this time making him eligible for parole after 175 years in prison.
“There is clearly a tension between the Father Flanagans of the world and the victims of gang violence,” Froeberg said. “Mr. Nuñezis not Mickey Rooney, and I don’t believe in the saying that there is no such thing as a bad boy.”
Nonetheless, the Fourth District panel last month reversed and ordered yet another sentencing hearing in People v. Nuñez, G042873.
In the Caballero case, the Pacific Juvenile Defender Center is preparing an amicus curiae brief, and national groups are also readying their support. Sue Burrell, a staff attorney at the Youth Law Center in San Francisco, said the California Supreme Court has many options for how to handle the issue.
“We’re hoping that no matter whether it’s narrow or broad, they will see that Caballero really is just too much, and that at least that decision cannot stand,” she said.