American Civil Liberties Union, et al. Amicus Brief, People v. Hardin

This amicus brief by American Civil Liberties Union and others argues that denying an opportunity for parole for young adults between the ages of 18 and 25 raises an equal protection violation given the racially disproportionate impact of life without parole sentences on young adults, resulting from “tough on crime” politics based in racial bias.  

From the Introduction: 

“In analyzing Petitioner Hardin’s equal protection challenge, this Court should apply strict scrutiny review under Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) 429 U.S. 252. Hardin was sentenced to life without the possibility of parole (LWOP) for an offense committed when he was 25 years old. In 2013, the Legislature created a new parole opportunity for individuals who committed offenses before the age of 18, in recognition of the diminished culpabilities of youth and their heightened capacity for change. (Stats.2013, ch. 312, § 1 (amending Pen. Code, § 3051). Shortly thereafter, citing findings that the mitigating characteristics of youth persist into young adulthood, the Legislature expanded the class of those eligible for youth offender parole to those who committed an offense up to the age of 23 in 2015, (Stats 2015 ch 471, § 1), then to age 25 in 2017, (Stats 2017 ch 675, § 1.) But the Legislature excluded those between 18 and 25 years of age at the time of their offense who, like Hardin, were originally sentenced to LWOP. (Id. at § 3051(h).) Hardin challenges this provision under the Equal Protection Clause, U.S. Const., 14th Amend. 

Hardin’s challenge should be reviewed using strict judicial scrutiny because the Legislature’s creation of parole eligibility for individuals between the ages of 18 and 25 at the time of their offense except those who were sentenced to LWOP is a distinction based in part on the suspect classification of race. Under Arlington Heights, racial prejudice may be inferred from such circumstantial factors as the racially disparate impact of a decision, “the historical background of the decision,” “the legislative history,” and “[s]ubstantive departures [from the related legal landscape] . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” (Arlington Heights, supra, 429 U.S. at p. 266-67.) As applied to Section 3051(h), these factors support an inference of intentional discrimination—specifically, an intent to trade on fear and animus of young men of color in exchange for political advantage. 

First, Section 3051(h) has a significant, racially disparate impact. Black and brown people between 18 and 25 years of age are disproportionately sentenced to LWOP to an astonishing degree—approximately 86% of the population targeted by Section 3051(h) are people of color. Closer examination of one exemplary county, Contra Costa, reveals that this disparity reflects overreliance on special circumstances that facilitate discrimination against Black and brown people. Already, this data has led one Contra Costa Superior Court to strike the gang-related special circumstance, Penal Code section 190.2, subdivision (a)(22), under the Racial Justice Act, Penal Code section 745, subdivision (a), in the case of a young Black man. 

Second, the historical background of Section 3051(h) reveals a legislative intent to subject Black and brown youth to Draconian prison sentences for political advantage. Three distinct policy movements created the racial disparity among those impacted by Section 3051(h), and the discriminatory intent behind those policies sheds light on the legislative purpose here. Those movements include: (a) the dawn of “tough on crime” politics in the 1960’s and early ‘70’s, and subsequent over-policing and mass incarceration of communities of color; (b) California’s 1978 enactment of the Briggs Initiative, creating an expansive list of special circumstances to  maximize discretion in seeking and obtaining sentences of death and LWOP; and (c) the emergence in the 1990’s of the “superpredator” myth—a discredited claim that Black and brown youth represent a new breed of irredeemable menace—as justification for overcharging and excessive sentencing of young people of color. In view of this history, the Legislature’s decision to create youth offender parole but deny eligibility to the highly racially disparate population of 18- to-25-year-olds sentenced to LWOP, emerges as yet another effort to over-incarcerate Black and brown youth.  

Third, pertinent legislative history reveals that the Legislature was acutely aware of the disproportionate impact of Section 3051(h). Indeed, the statutes creating youth offender parole, as well as contemporaneous enactments, evince an attempt to redress exactly the sort of racial harms that Section 3051(h) perpetuates. That the Legislature nonetheless denied any chance of release from prison to this population, without explanation, also suggests a default to race-based “tough on crime” politics. 

Fourth, and finally, Section 3051(h) is a dramatic, substantive departure from related legislative enactments. The Legislature’s continual expansion of the population entitled to a youth offender parole opportunity, repeatedly raising the age at the time of offense of those eligible, reflects the scientific consensus that youth diminishes the justification for punishment up to the age of 25. Section 3051(h) abandons this principle without a competing justification, again suggesting racialized politics.  

Evidence under the Arlington Heights factors thus reveals a continuous thread of racial bias culminating in the enactment of Section 3051(h). Mr. Hardin, and those like him, have been sacrificed by the Legislature to a racialized politics that will further harm an already disproportionately burdened group. That is, the relevant context suggests that the Legislature knowingly harmed a politically disfavored group—young men of color—to preserve some “tough on crime” credibility in passing an otherwise ameliorative statute. For these reasons, Amici urge this Court to apply strict judicial scrutiny in reviewing Petitioner’s Equal Protection claim.”