A California law, enacted directly by the people, provides that the crime of first-degree murder with special circumstances committed by an adult is punishable by death or life in prison with no possibility of parole. Yet Tony Hardin, who committed a vicious murder at age 25, claimed that the Equal Protection Clause of the Fourteenth Amendment requires that he be considered for parole anyway because others who committed lesser degrees of murder at the same age are eligible for “youth offender parole” under California law. A California Court of Appeal panel actually bought that. The California Supreme Court rejected this claim in a 5-2 decision yesterday, reversing the Court of Appeal.
Tony Hardin is an exemplar of why the life-without-parole law was passed. He worked as a security guard in an apartment complex where he and an elderly neighbor, Norma Barber, both lived. Mrs. Barber was friendly with Hardin, and sometimes invited him for dinner in her apartment along with other friends. Yet Hardin handcuffed her behind her back, bound her legs, and strangled her to death, just to steal her belongings to buy drugs. In a less squeamish age, he would have been justly executed for this crime. In the 1970s, as courts were repeatedly striking down death penalty laws, the alternative of life in prison without parole was added to California’s murder sentencing statute to insure that those who commit death-worthy crimes will at least never be released.
Equal protection challenges to statutes that classify crimes and specify the sentences for them rarely succeed. First-degree murder with special circumstances is, for practical purposes, a higher degree of murder than first-degree without special circumstances. So why would anyone think such a challenge to this law had a shot? This requires a dive into U.S. Supreme Court decisions on young murderers, changes in California parole law over the last decade, and an examination of some loose language in other equal protection decisions.
Legal Background
In 2005, the U.S. Supreme Court decided in Roper v. Simmons that murderers under 18 at the time of the crime could never be sentenced to death, no matter how heinous the crime. This decision had no direct effect in California. The state has never had the death penalty for juveniles at any time in the modern era of capital punishment (post-1972). In 2010 in Graham v. Florida, the high court held that a sentence of life without parole (LWOP) could never be imposed on a perpetrator of a crime less than murder who was under 18 at the time of the crime. This decision did not have much direct effect in California, as only a few uncommon nonhomicide crimes carry LWOP sentences.
In 2012, the high court decided in Miller v. Alabama that LWOP could never be a mandatory sentence for a juvenile murderer. Properly interpreted, this decision would also have had no effect in California. The state’s juvenile LWOP law was discretionary, and it was cited as such in the Miller opinion as part of the argument that there was a national consensus against mandatory sentences of LWOP for juvenile murderers. However, in People v. Caballero, decided shortly after Miller, the California Supreme Court extended Graham to juveniles convicted of nonhomicide crimes whose sentences were so long as to be effective life sentences.
In 2013, the California Legislature enacted section 3051 of the Penal Code, creating a new type of parole called “youth offender parole.” As originally enacted, it only applied to juveniles, i.e., persons under 18 years old at the time of the crime. The law applied to nonhomicide crimes to fix the Caballero problem. It also applied to murder sentences up to 25-to-life, though there was not constitutional imperative to do so. However, the original version excluded juveniles sentenced to life without parole. After all, that sentence was authorized by an initiative statute, which the Legislature cannot amend without either a supermajority or a new vote of the people. In 2016, the Legislature bumped the age limit to under-23, but the LWOP exclusion was still in effect.
Also in 2016, the U.S. Supreme Court issued its confusing and internally inconsistent decision in Montgomery v. Louisiana. This decision could have been read to imply that discretionary sentencing alone was not enough to satisfy the Miller rule, and that additional findings had to be made. One way to comply, the opinion commented, was to open a path to parole.
The following year, the California Supreme Court decided in In re Kirchner that existing legislative remedies were inadequate for juveniles sentenced to LWOP without the extra consideration it thought Miller and Montgomery required, and it authorized them to seek relief via habeas corpus. The California Legislature seized on this opportunity to claim that it was constitutionally required to “fix” a supposed constitutional problem, and it added a new paragraph extending youth offender parole to persons sentenced to LWOP if they were under 18 at the time of the crime and thus within the scope of the Montgomery decision. This extension led many of us to ask, “what part of ‘without’ did you not understand?” In the same bill, the Legislature further raised the “youth” limit of the original paragraphs (which do not include LWOP sentences) to under-26.
CJLF participated in two cases to clarify the constitutional limits. We supported the prosecution with an amicus brief in the U.S. Supreme Court in Jones v. Mississippi. The high court decided that case in 2021, clarifying that Miller requires only the exercise of discretion by the sentencer before a juvenile murderer can be sentenced to LWOP, nothing more. That should eliminate any doubt about the constitutionality of California’s pre-2013 law on parole eligibility for juvenile murderers, but the California Supreme Court opinions to the contrary have not yet been overruled.
CJLF also represented a murder victim’s daughter in a challenge to the extension of youth offender parole to juveniles sentenced to LWOP. The Sacramento Superior Court ruled that this extension was indeed unconstitutional in Peterson v. Board of Parole Hearings, No. 34-2022-80003792 (June 3, 2022), but the court limited relief to the specific case. The board appealed, and the appeal was dismissed as moot when the murderer was released by another route.
The Hardin Case
Hardin claimed that he was being denied equal protection of the laws because he, as a 25-year-old convicted of first-degree murder with special circumstances, was treated less favorably than (1) 17-year-olds convicted of the same crime, and (2) other 25-year-olds convicted of first-degree murder without special circumstances. The trial court rejected both claims. The Court of Appeal rejected the first but accepted the second. So only the second went to the California Supreme Court. That is, the California Supreme Court considered only Hardin’s claim that was treated less favorable than other young adult murderers convicted of murder without special circumstances, and that this distinction lacks even a rational basis.
This claim is very strange in light of the California Supreme Court’s repeated rulings in dozens of cases over almost half a century that special circumstances are sufficient to separate who is eligible for the death penalty from who is not. How can the same circumstances be insufficient for the lesser distinction of eligibility for parole?
The essence of the argument is that equal protection analysis should not consider all rational reasons for distinguishing between two groups but rather should ask solely if there is a reason consistent with the purpose of the statute. Hardin further claimed that the “sole” purpose of section 3051 is to create “a meaningful opportunity for release for youthful offenders, who were 25 or younger at the time of their crimes, through demonstrated growth and rehabilitation.” Such a narrowed and artificial focus would dramatically expand judicial second-guessing of legislation. The court’s sensible answer is that this view is not consistent with the way legislation actually works.
This argument rests on the premise that “there was only a single purpose underlying” section 3051. (Hernandez, supra, 41 Cal.4th at p. 300.) But as we explained in Hernandez, legislation does not always — or even often — work this way. Legislation is frequently the “ ‘product of multiple and somewhat inconsistent purposes that led to certain compromises.’ ” (Id. at p. 301, quoting U. S. Railroad Retirement Bd. v. Fritz (1980) 449 U.S. 116, 181 (conc. opn. of Stevens, J.).) This is only to be expected, for “[d]eciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice.” (Rodriguez v. United States (1987) 480 U.S. 522, 526.) “Past cases establish that the equal protection clause does not preclude a . . . legislative measure that is aimed at achieving multiple objectives, even when such objectives in some respects may be in tension or conflict.” (Hernandez, at p. 300.)
Section 3051 is such a measure. 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. Even though the Eighth Amendment requires that this opportunity be afforded only to persons who committed their crimes as juveniles, the Legislature determined that comparable opportunities should be available to some older offenders as well. But the structure and history of the expansion make clear that the Legislature sought to balance this primary objective with other, sometimes competing, concerns, including concerns about culpability and the appropriate level of punishment for certain very serious crimes.
The California Legislature has already gone too far in watering down the consequences to criminals for committing major crimes. For the most part, that problem must be addressed through the political process. For courts to use the Equal Protection Clause to take this watering down even further than the Legislature did based on a tunnel-visioned view of the supposed “sole” purpose of the statute would be a gross misuse of the power of judicial review. It would be raw judicial activism of the kind we have not seen on the California Supreme Court since three justices were rightly ousted by the voters in 1986.
It is reassuring that a solid majority of the current California Supreme Court refused to go down that path. It is cause for concern, though, that even two were willing to take such an extreme step.
