In the early 20th century, criminal justice reformers rallied behind the concept of juvenile justice, which recognized that children are different from adults. One hundred years later, we are starting to believe this again. Senate Bill 260, currently awaiting a vote in the California Assembly, would offer a vital chance to give judges an opportunity to reconsider the life sentences that courts doled out to children during the past several decades. SB 260 passed the California State Senate on May 29 of this year. However, it faces an uphill battle as it goes to the contentious California State Assembly. It needs your support.

One man who is serving a life sentence at San Quentin State Prison, and who I will call John, put it succinctly in a wonderful trailer for “Crying Sideways—When Children Kill,” a documentary film:
“I’m not the same person I was 18 years ago, when I murdered another teenager.” When John entered prison, he was a young teenager. Today he is a member of Kid C.A.T. (Creating Awareness Together), a service organization of men who received life sentences but who were juveniles when they were sentenced. “Crying Sideways” features these men and their stories.

I have volunteered with Kid C.A.T. since 2012 and helped to launch their newsletter. The men surprised me when they told me that they want the newsletter to consist primarily of work by young people. I quickly realized empowering young people is Kid C.A.T.’s mission. Gary “Malachi” Scott, a recently-paroled member of Kid C.A.T., even published an article in the New York Times about men who were sentenced to life as juveniles. As John said in the trailer, “I hope that by joining these men, we can help prevent another senseless killing.”

Kid C.A.T. gathered 1,000 letters in support of SB 260 from within San Quentin alone, and Elizabeth Calvin of Human Rights Watch said that when she promotes SB 260 to legislators, she never fails to argue that Kid C.A.T. represents the reason we need the bill.

SB 260 could not come at a better time for another reason: prison populations are swelling despite strict orders from the Supreme Court to reduce over-crowding to no more than 134% capacity; several prisons are now at 175%.

This bill would help relieve pressure on our bloated prisons. It applies to individuals who have already served 10 years. As Calvin said, “It is not a get out of jail free card.” Even traditional conservatives recognize this. In a virtually unprecedented move, three Republicans voted yes. It will go first to the Assembly Committee on Public Safety and then to the Appropriations Committee before it can go before the full Assembly for a vote. Therefore, it is critical that you write to the Committee on Public Safety here, as well as to your legislator.

According to Human Rights Watch, over 6,500 people in California prisons were under the age of 18 at the time of their crime. Some were as young as 14 years old and over half have life sentences. SB 260 could make a significant impact by allowing for the release of individuals who are at among the lowest risk but who, since they are in for life, cost the state the most.

This year, two Kid C.A.T. members were paroled. Perhaps this reflects a changing mindset around youth who commit crimes. (Or, perhaps it reflects efforts to decrease state prison populations, as I have written about previously.) Parole boards are infamously tough and very few individuals are actually recommended for parole and governors approve even fewer. (Since roughly 1980, one’s chances of receiving parole has fluctuated with the political winds. It has ranged from 0 to 20%.) Though Governors have been more likely to approve paroles in recent years, the length of time that a prisoner must wait to appear before the parole board has increased significantly; any Kid C.A.T. member could tell you that.

Ranging from their late 20’s to 40’s, the men of Kid C.A.T. are the first generation of youth to receive LWOP—and especially given the extreme sentencing that was in vogue at the time, they should not have to wait for their far-off parole dates before someone reviews their suitability for returning to society.

Why did LWOP for juveniles surge? Mandatory minimum sentencing became the norm in the 1990’s and California’s Proposition 21 put “direct file” into law in 2000. With direct file, prosecutors can try a youth in adult court without requiring a judge to consider the wisdom of removing a youth from juvenile court. This reversed the long-standing policy wherein a juvenile court judge would review the case to determine whether it would be appropriate to try the youth as an adult. Mandatory minimums came to include LWOP for some crimes (a policy that the Supreme Court has outlawed, citing child development).

Neuroscience now dominates the reasoning for juvenile justice reform. It says what most people—even those at the turn of the last century—believed to be common sense knowledge about teenagers. One of the most significant results of recent research is that in most cases, the brain does not finish developing until the early to mid-twenties; the pre-frontal cortex that governs reasoning develops last.

Justice Elena Kagan wrote the majority opinion in Miller:

“‘[Youth’s] ‘lack of maturity’ and ‘underdeveloped sense of responsibility’ lead to recklessness, impulsivity, and heedless risk-taking…. They ‘are more vulnerable . . . to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. And because a child’s character is not as ‘well formed’ as an adult’s, his traits are ‘less fixed’ and his actions are less likely to be ‘evidence of irretrievabl[e] deprav[ity].’”


Following this reasoning, in its most recent decision on the topic, Miller v. Alabama (2012), Kagan wrote: “We…hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amend¬ment’s prohibition on “‘cruel and unusual punishments’” (emphasis mine).

Although the Supreme Court cites several distinct of precedents in juvenile justice decisions, all essentially argue that children are not adults and that LWOP sentences are cruel and unusual. (Important prior cases include Roper v. Simmons (2005), which found the death penalty for youth under 18 to be cruel and unusual. Graham v. Florida (2010) ruled that LWOP may not be a sentence for youth who commit any non-homicide crime.) Because children are still developing and therefore more prone to impulsive actions, because children who commit crimes often have a background of abuse and/or trauma, and because of their “increased” potential for rehabilitation.

In a crucial legal decision, the Court also decided in Miller that LWOP is equivalent to capital punishment. As in the 2005 Roper v. Simmons ban on the death penalty, the Court reasoned that “Life-without-parole terms…share some characteristics with death sentences that are shared by no other sentences…. Im¬prisoning an offender until he dies alters the remainder of his life….”

Heartening though Kagan’s writing is, Miller could be a colossal flop. The operative word in Kagan’s decision above is “mandatory.” She wrote, “This Court does not categorically bar a penalty [i.e. LWOP], but instead…require[s] it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Kagan concludes, rather optimistically, “[W]e think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon” (emphasis mine).

In other words, we have to put our faith in judges.

Since the Court decided Miller in 2012, we cannot yet tell if judges around the country are heeding Kagan’s advice and keeping youth in juvenile courts, even when prosecutors demand otherwise. This is yet another reason that we must ensure that SB 260 passes.

As one member of Kid C.A.T. said in the “Crying Sideways” trailer, “When I was arrested, the whole time, I knew the pain I caused.” Today, he wants to become a defense attorney and help give a second chance to youth who make mistakes. SB 260 will help make sure that he gets the second chance he needs to help others. "


Please urge your Assemblyperson to vote YES on SB 260.

Send them this article, or use Human Rights Watch’s template or in Spanish.

Don’t know your representative? Find out here.

See the SB 260 Factsheet here.