IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY HARDIN,
Defendant and Appellant.
S277487
Second Appellate District, Division Seven
B315434
Los Angeles County Superior Court
A893110
March 4, 2024
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Groban, and
Jenkins concurred.
Justice Liu filed a dissenting opinion.
Justice Evans filed a dissenting opinion.
PEOPLE v. HARDIN
S277487
Opinion of the Court by Kruger, J.
California’s youth offender parole statute offers
opportunities for early release to certain persons who are
incarcerated for crimes they committed at a young age. (Pen.
Code, §§ 3051, 4801.) When it was first enacted in 2013, the
statute applied only to individuals who committed their crimes
before the age of 18; the purpose of the statute was to align
California law with then-recent court decisions identifying
Eighth Amendment limitations on life without parole sentences
for juvenile offenders. In more recent years, however, the
Legislature has expanded the statute to include certain young
adult offenders as well. Under the current version of the
statute, most persons incarcerated for a crime committed
between ages 18 and 25 are entitled to a parole hearing during
the 15th, 20th, or 25th year of their incarceration. (Pen. Code,
§ 3051, subd. (b).) But not all youthful offenders are eligible for
parole hearings. The statute excludes, among others, offenders
who are serving sentences of life in prison without the possibility
of parole for a crime committed after the age of 18. (Id., subd.
(h).
Appellant Tony Hardin is currently serving a life without
parole sentence for a special circumstance murder he committed
at age 25. He contends that the youth offender parole statute
violates the Fourteenth Amendment’s equal protection
guarantee by irrationally discriminating against young adult
offenders sentenced to life without parole — including, in
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Opinion of the Court by Kruger, J.
particular, those sentenced to life without parole for special
circumstance murder. Agreeing with Hardin and disagreeing
with other appellate decisions to address the issue, the Court of
Appeal held the life without parole exclusion invalid for lack of
a rational basis.
We now reverse. The standard we apply here, rational
basis review, is necessarily deferential. The law recognizes that
“[i]t is both the prerogative and the duty of the Legislature to
define degrees of culpability and punishment, and to distinguish
between crimes in this regard.” (People v. Turnage (2012) 55
Cal.4th 62, 74.) Respect for the Legislature’s proper role — and
ours — means that we may not strike down its enactment under
a rational basis standard unless the challengers demonstrate
that “there is no ‘rational relationship between the disparity of
treatment and some legitimate governmental purpose.’ ” (Ibid.
Without foreclosing the possibility of other as-applied
challenges to the statute, we conclude that Hardin has not
demonstrated that Penal Code section 3051’s exclusion of young
adult offenders sentenced to life without parole is
constitutionally invalid under a rational basis standard, either
on its face or as applied to Hardin and other individuals who are
serving life without parole sentences for special circumstance
murder. Under California law, special circumstance murder is
a uniquely serious offense, punishable only by death or life
without possibility of parole. When it was considering whether
to expand the youth offender parole system to include not only
juvenile offenders but also certain young adults, the Legislature
could rationally balance the seriousness of the offender’s crimes
against the capacity of all young adults for growth, and
determine that young adults who have committed certain very
serious crimes should remain ineligible for release from prison.
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Opinion of the Court by Kruger, J.
Hardin has not demonstrated that the Legislature acted
irrationally in declining to grant the possibility of parole to
young adult offenders convicted of special circumstance murder,
even as it has granted youth offender hearings to young adults
convicted of other offenses.
This conclusion does not turn on this court’s judgments
about what constitutes sound sentencing policy. It turns on the
deference we owe to the policy choices made through the
democratic process by the people of California and their elected
representatives. The legislative branch may continue to
consider the appropriate reach of the youth offender parole
statute in light of the recognized capacity of young persons for
growth and change. Hardin has not, however, established that
the legislative policy choices reflected in current law are
irrational and therefore impermissible as a matter of equal
protection.
I.
In 1989, Hardin robbed and killed an elderly neighbor.
Hardin was then 25 years old. A jury convicted Hardin of first
degree murder, among other offenses. The jury also found true
a special circumstance allegation that Hardin murdered the
victim during the commission of a robbery. Hardin’s conviction
for first degree murder with special circumstances carried a
mandatory sentence of either death or life in prison without the
possibility of parole. (Pen. Code, § 190.2, subd. (a); id., subd.
(a)(17)(A).) Although the prosecution had sought the death
penalty, the penalty phase jury declined to return a death
verdict. The trial court imposed a sentence of life in prison
without parole for the murder and stayed the sentences for the
other convictions.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Decades later, Hardin filed a postjudgment motion to
develop and preserve evidence for later use in a youth offender
parole hearing under Penal Code section 3051 (section 3051).
(See People v. Franklin (2016) 63 Cal.4th 261, 283–284
(Franklin) [an offender who will later become eligible for a youth
offender parole hearing is entitled to an interim court
proceeding to develop and preserve evidence of youth-related
characteristics and circumstances at the time of the offense]; In
re Cook (2019) 7 Cal.5th 439, 458–459 [an offender whose
sentence is otherwise final may obtain a Franklin hearing by
filing a postjudgment motion in superior court].) In his motion,
Hardin acknowledged that, as an offender sentenced to life
without parole for a crime committed as a young adult, he is not
eligible for a youth offender parole hearing. (§ 3051, subd. (h).
He contended, however, that his exclusion violates the Equal
Protection Clause of the Fourteenth Amendment to the federal
Constitution. The superior court rejected the contention and
denied Hardin’s motion. The Court of Appeal, however,
reversed. (People v. Hardin (2022) 84 Cal.App.5th 273, 291
(Hardin).
On appeal, Hardin raised two equal protection arguments.
He first argued that section 3051 violates equal protection by
excluding young adult offenders sentenced to life without parole
while including juvenile offenders (that is, offenders younger
than 18 at the time of the offense) sentenced to life without
parole. The Court of Appeal rejected this argument. It
explained that the Legislature had a rational basis for
distinguishing between juvenile offenders and young adult
offenders, since a unique set of constitutional rules restricts
sentencing children to life without parole. (Hardin, supra, 84
Cal.App.5th at pp. 285–286, citing, inter alia, Miller v. Alabama
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Opinion of the Court by Kruger, J.
(2012) 567 U.S. 460 (Miller).) Hardin does not challenge the
Court of Appeal’s conclusion on this point.
Hardin next argued that section 3051 violates equal
protection by treating young adult offenders sentenced to life
without parole for special circumstance murder differently from
other young adult offenders serving parole-eligible life sentences
for other crimes. On this point, the Court of Appeal agreed with
Hardin. (Hardin, supra, 84 Cal.App.5th at p. 291.
Employing the two-step equal protection analysis
prescribed by our cases (see, e.g., Conservatorship of Eric B.
(2022) 12 Cal.5th 1085, 1102 (Eric B.)), the Court of Appeal
began by considering whether, in light of the purposes of the
challenged law, young adult offenders convicted of special
circumstance murder and sentenced to life without parole are
similarly situated to all other young offenders. The court
answered yes. It explained that the Legislature’s stated purpose
in enacting section 3051 was to permit “a determination
whether a person who committed a serious or violent crime
between the age of 18 and 25 has sufficiently matured and
outgrown the youthful impulses that led to the commission of
the offense.” (Hardin, supra, 84 Cal.App.5th at p. 287.) The
court concluded that all young offenders are similarly situated
from this standpoint, since a person’s potential for increased
maturity and growth is not crime-specific. (Ibid.
Turning to the next step of the analysis, the basis for the
disparate treatment of similarly situated groups, the court
concluded there was no rational basis for section 3051 to
distinguish between young adult offenders convicted of special
circumstance murder and sentenced to life without parole and
other young adult offenders. The court again adverted to the
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
stated purpose of section 3051: “[I]f, as the Legislature stated,
the goal of section 3051 was . . . to permit youth offenders a
meaningful opportunity for parole if they demonstrate increased
maturity and impulse control, then for that purpose there is no
plausible basis for distinguishing between same-age offenders
based solely on the crime they committed.” (Hardin, supra, 84
Cal.App.5th at p. 288; see id. at pp. 278–279.
The Court of Appeal acknowledged other appellate cases
had reached a different conclusion. In those cases, the courts
reasoned that the Legislature, in determining which young
adult offenders should be afforded opportunities for early
release, permissibly decided to take into account the seriousness
of the offender’s crime and rationally decided to exclude those
who had committed crimes sufficiently serious to warrant a
sentence of life without parole. (Hardin, supra, 84 Cal.App.5th
pp. 288–289 [citing cases].) But the court in this case rejected
this “superficially plausible justification” as “belied by the
statutory provisions that allow [a youth offender parole] hearing
for individuals who have committed multiple violent crimes
(albeit not special circumstance murder) and were sentenced to
a technically parole-eligible indeterminate state prison term
that is the functional equivalent of life without parole.” (Id. at
p. 289.) The court also deemed “illusory” any differences
between the culpability of individuals convicted of first degree
murder without special circumstances and first degree murder
with special circumstances. (Id. at p. 290.) The court relied for
this conclusion on a law review article finding that, as a result
of the expansion of the special circumstance statute over time,
at least one special circumstance could have been alleged in 95
percent of first degree murder cases. (Id. at p. 290 & fn. 11
[citing Com. on Revision of the Pen. Code, Annual Report and
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Recommendations (2021) p. 51, in turn citing Baldus et al.,
Furman at 45: Constitutional Challenges from California’s
Failure to (Again) Narrow Death Eligibility (2019) 16 J.
Empirical Legal Studies 693].) Ultimately, finding no rational
basis for the challenged life without parole exclusion, the court
concluded that “the disparate treatment of offenders like Hardin
cannot stand.” (Hardin, at p. 291.
We granted review to resolve the conflict between the
Court of Appeal’s decision in this case and the decisions of the
other appellate courts to address the issue.1
II.
A.
Section 3051 provides that, at a time designated in the
statute, the Board of Parole Hearings must hold a parole
hearing “for the purpose of reviewing the parole suitability of
any prisoner who was 25 years of age or younger . . . at the time
1
The Court of Appeal in this case was the first to conclude
that section 3051’s exclusion of young adults sentenced to life
without parole violated equal protection. Before Hardin, several
published appellate opinions had reached the opposite
conclusion. (See In re Williams (2020) 57 Cal.App.5th 427;
People v. Sands (2021) 70 Cal.App.5th 193; People v. Morales
(2021) 67 Cal.App.5th 326; People v. Jackson (2021) 61
Cal.App.5th 189; People v. Acosta (2021) 60 Cal.App.5th 769;
People v. Montano (2022) 80 Cal.App.5th 82.) More appellate
decisions have done so since Hardin. (People v. Ngo (2023) 89
Cal.App.5th 116, review granted May 17, 2023, S279458; People
v. Bolanos (2023) 87 Cal.App.5th 1069, review granted Apr. 12,
2023, S278803 [distinguishing Hardin on the ground that it
involved a murder conviction, as opposed to a sex offense
conviction carrying a life without parole sentence under the One
Strike law, Pen. Code, § 667.61].
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
of the controlling offense.” (§ 3051, subd. (a)(1); id., subd. (d).
How much time must pass before an eligible youth offender
receives a parole hearing depends on the length of the original
sentence for the “ ‘[c]ontrolling offense,’ ” a term defined to mean
“the offense or enhancement for which any sentencing court
imposed the longest term of imprisonment.” (Id., subd.
(a)(2)(B).) An offender sentenced to a determinate term becomes
eligible for parole after 15 years (id., subd. (b)(1)); an offender
sentenced to an indeterminate life term of fewer than 25 years
to life becomes eligible after 20 years (id., subd. (b)(2)); and an
offender sentenced to an indeterminate life term of 25 years to
life, or an offender sentenced to life without parole for a crime
committed before the age of 18, becomes eligible after 25 years
(id., subd. (b)(3), (4)).
Certain persons are, however, categorically ineligible for
youth offender parole hearings, including offenders sentenced
for multiple violent or serious felonies under the “Three Strikes”
law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12); offenders
sentenced for sex offenses under the One Strike law (id.,
§ 667.61); and offenders who, “subsequent to attaining 26 years
of age, commit[] an additional crime for which malice
aforethought is a necessary element of the crime or for which
the individual is sentenced to life in prison.” (§ 3051, subd. (h).
The statute also excludes those who, like Hardin, are sentenced
to life without parole for a controlling offense committed after
reaching the age of 18. (Ibid.) In Hardin’s case, as in most of
the appellate cases addressing the issue, the offense is first
degree murder with one or more special circumstances. (Pen.
Code, § 190.2.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
B.
The Legislature first created this system of youth offender
parole hearings in 2013, following a series of court decisions
identifying Eighth Amendment limits on the sentencing of
juvenile offenders. (Stats. 2013, ch. 312, § 1; see generally
Franklin, supra, 63 Cal.4th at p. 277.) In Roper v. Simmons
(2005) 543 U.S. 551 (Roper), the high court held that the Eighth
Amendment forbids imposing the death penalty for crimes
committed before age 18, given the diminished culpability of
juveniles relative to adult offenders. (Roper, at p. 575.) Five
years later, the high court held in Graham v. Florida (2010) 560
U.S. 48 (Graham) that the Eighth Amendment also forbids life
without parole sentences for nonhomicide crimes committed
before age 18. (Graham, at p. 82.) Finally, in Miller, supra, 567
U.S. 460, the high court held that the Eighth Amendment
forbids mandatory life without parole sentences for homicides
committed before the age of 18. (Miller, at pp. 479–480; see id.
at pp. 477–478, 489.
In each case, the high court explained why juvenile
offenders are “constitutionally different” from adult offenders
for purposes of criminal sentencing. (Miller, supra, 567 U.S. at
p. 471.) Relying “not only on common sense — on what ‘any
parent knows’ — but on science and social science,” the court
identified three primary differences between juveniles and
adults. (Ibid.) First, the “hallmark features” of youth — “among
them, immaturity, impetuosity, and failure to appreciate risks
and consequences” — both diminish a child’s moral culpability
and increase the chances that the child’s moral shortcomings
will be reformed with age. (Id. at p. 477; see id. at p. 472.
Second, children “ ‘are more vulnerable . . . to negative
influences and outside pressures,’ including from their family
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
and peers; they have limited ‘contro[l] over their own
environment’ and lack the ability to extricate themselves from
horrific, crime-producing settings.” (Id. at p. 471, quoting
Roper, supra, 543 U.S. at p. 569.) And finally, compared to an
adult, a juvenile’s character is “not as ‘well formed’ . . . his traits
are ‘less fixed’ ” and thus “his actions less likely to be ‘evidence
of irretrievabl[e] deprav[ity].’ ” (Miller, at p. 471, quoting Roper,
at p. 570.
In Graham and Roper, the court held that these features
of youth categorically preclude a death sentence, or a sentence
of life without parole for a nonhomicide offense. But in ruling
out life without parole sentences for nonhomicide offenses
committed by juveniles, the court in Graham “took care” to
distinguish homicide offenses, which raise different
considerations as a matter of “both moral culpability and
consequential harm.” (Miller, supra, 567 U.S. at p. 473.) When
confronted with the issue in Miller, the court did not
categorically rule out life without parole sentences for juvenile
offenders, instead concluding that before a court may impose
such a sentence, “a judge or jury must have the opportunity to
consider mitigating circumstances,” including the hallmark
features of youth and their relation to the offense. (Id. at p. 489.
The court further observed that, in light of “children’s
diminished culpability and heightened capacity for change, we
think appropriate occasions for sentencing juveniles to th[e]
harshest possible penalty [of life without parole] will be
uncommon. That is especially so because of the great difficulty
we noted in Roper and Graham of distinguishing at this early
age between ‘the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile
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Opinion of the Court by Kruger, J.
offender whose crime reflects irreparable corruption.’ ” (Id. at
pp. 479–480, quoting Graham, supra, 560 U.S. at p. 68.
Not long after the high court issued its decision in Miller,
this court clarified in People v. Caballero (2012) 55 Cal.4th 262,
268 (Caballero) that Graham’s prohibition on life without parole
sentences for juvenile nonhomicide offenders applies to a term-
of-years sentence that is “the functional equivalent of a life
without parole sentence” — there, a sentence of 110 years.
(Ibid.) Without dictating “a precise timeframe” for holding
parole hearings for juvenile offenders who had received actual
or de facto life sentences for nonhomicide crimes, this court
explained that, under Graham, “a state must provide a juvenile
offender ‘with some realistic opportunity to obtain release’ from
prison during his or her expected lifetime.” (Id. at pp. 269, 268.
The Legislature enacted section 3051 to bring California
juvenile sentencing law into line with Graham, Miller, and
Caballero. (Stats. 2013, ch. 312, § 1; see Franklin, supra, 63
Cal.4th at p. 268; id. at pp. 278–280 [holding that the youth
offender parole statute remedied any Eighth Amendment
defects in the sentences of juvenile offenders].) In language
echoing the holdings of these cases, section 3051 provided for
youth offender parole hearings at which the Board of Parole
Hearings must provide “a meaningful opportunity” for release
(§ 3051, subd. (e)), giving “great weight to the diminished
culpability of youth as compared to adults, the hallmark
features of youth, and any subsequent growth and increased
maturity” (Pen. Code, § 4801, subd. (c)).
As initially enacted, section 3051 provided youth offender
parole hearings only for juvenile offenders incarcerated for
crimes committed before the age of 18. (Former § 3051, subd.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
(a)(1), added by Stats. 2013, ch. 312, § 4.) But it did not include
all juvenile offenders; the statute excluded several categories of
individuals, including juvenile offenders sentenced to life
without possibility of parole. (Former § 3051, subd. (h), added
by Stats. 2013, ch. 312, § 4.) A different statute, enacted not
long before section 3051, had created an alternative mechanism
for relief that, with some exceptions, permitted juvenile
offenders sentenced to life without parole to petition for recall of
sentence and resentencing to a term that included an
opportunity for parole. (Stats. 2012, ch. 828, adding Pen. Code,
§ 1170, subd. (d).
Since the youth offender parole statute was first enacted,
the Legislature has expanded it in two primary respects. The
first area of change concerns juvenile offenders sentenced to life
without possibility of parole. In 2017, this court concluded the
recall and resentencing scheme did not provide an adequate
remedy for juvenile offenders who had been sentenced to life
without parole terms without adequate consideration of the
youth-related factors set out in Miller. (In re Kirchner (2017) 2
Cal.5th 1040, 1043 (Kirchner).) That same year, the Legislature
expanded section 3051 to include juvenile offenders sentenced
to life without parole, making them eligible for youth offender
parole hearings after their 25th year of incarceration. (Stats.
2017, ch. 684, § 1.5, adding § 3051, subd. (b)(4); see Assem. Com.
on Public Safety, Analysis of Sen. Bill No. 394 (2017–2018 Reg.
Sess.) as amended May 26, 2017, p. 1.
The second area of change concerns the statute’s
application to older offenders. In 2015, the Legislature raised
the age of eligibility for youth offender parole hearings to include
most young adults incarcerated for offenses committed before
the age of 23. (Stats. 2015, ch. 471, § 1.) In expanding section
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
3051 beyond the constitutional minimum age of 18 set out in
Graham and Miller, the Legislature considered scientific
evidence that neurological development, particularly in areas of
the brain relevant to judgment and decisionmaking, continues
beyond adolescence and into the mid-20’s. (See Sen. Com. on
Public Safety, Rep. on Sen. Bill No. 261 (2015–2016 Reg. Sess.
Apr. 28, 2015, p. 3.) In 2017, motivated by these same
considerations, the Legislature once again raised the age cut-off
for section 3051 parole hearings, this time to age 25. (Stats.
2017, ch. 675, § 1; see Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 1308 (2017–2018 Reg. Sess.) as amended Mar.
30, 2017, p. 2.
The expansion to young adults did not, however, include
all persons who committed crimes between the age of 18 and 25:
The Legislature carried forward preexisting exclusions,
including the exclusion for those sentenced to life in prison
without the possibility of parole. (See Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 1308, supra, as amended
Mar. 30, 2017, p. 2.) Similarly, when it expanded the youth
offender parole system to include juvenile offenders sentenced
to life without parole, the Legislature preserved the life without
parole exclusion for youthful offenders who committed their
controlling offense after the age of 18. (See Assem. Com. on
Public Safety, Analysis of Sen. Bill No. 394, supra, as amended
May 26, 2017, p. 1.
Hardin challenges the statute’s exclusion of young adult
offenders sentenced to life without parole as violative of equal
protection. As noted, in the trial court, Hardin challenged the
statute’s disparate treatment of juvenile and young adult
offenders sentenced to life without possibility of parole. But the
Court of Appeal in this case held, and he does not dispute, that
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Opinion of the Court by Kruger, J.
the Legislature acted reasonably in distinguishing between
offenses committed before and after the age of 18 because the
Eighth Amendment (and the law more generally) makes the
same distinction. (Hardin, supra, 84 Cal.App.5th at pp. 285–
286 [noting that age 18 generally marks the difference between
childhood and adulthood].
As the case comes to us, the parties agree that the
Legislature was not constitutionally obligated to expand youth
offender parole opportunities to young adults over the age of 18.
Hardin argues, however, that once the Legislature decided to
expand such opportunities to young adults, it could not
rationally treat those sentenced to life without parole differently
from those convicted of other serious crimes and serving lengthy
parole-eligible sentences. Once the Legislature decided to
include one class of young adult offenders, it was obligated to
include both.
Hardin effectively challenges the life without parole
exclusion on its face, in all of its applications. He also challenges
the exclusion more specifically as it applies to young adult
offenders who are, like him, serving life without parole
sentences following convictions for first degree murder with one
or more special circumstances.
III.
The Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution provides that no
state may “deny to any person within its jurisdiction the equal
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
protection of the laws.”2 (U.S. Const., 14th Amend.) This
provision is “essentially a direction that all persons similarly
situated should be treated alike.” (Cleburne v. Cleburne Living
Center, Inc. (1985) 473 U.S. 432, 439 (Cleburne).) “At core, the
requirement of equal protection ensures that the government
does not treat a group of people unequally without some
justification.” (People v. Chatman (2018) 4 Cal.5th 277, 288
(Chatman).
The degree of justification required to satisfy equal
protection depends on the type of unequal treatment at issue.
Courts apply heightened scrutiny when a challenged statute or
other regulation involves a suspect classification such as race,
or a fundamental right such as the right to vote, and accordingly
will demand greater justification for the differential treatment.
(E.g., Chatman, supra, 4 Cal.5th at p. 288; Massachusetts Bd. of
Retirement v. Murgia (1976) 427 U.S. 307, 312.) But when a
statute involves neither a suspect classification nor a
fundamental right, the “general rule is that legislation is
presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state
interest.” (Cleburne, supra, 473 U.S. at p. 440; see Chatman, at
pp. 288–289.) A court applying this standard finds “a denial of
equal protection only if there is no rational relationship between
2
The California Constitution also guarantees equal
protection of the law. (Cal. Const., art. I, § 7, subd. (a).) Hardin
does not raise any arguments specific to the California
Constitution, however, and we see “ ‘no reason to suppose’ that
federal equal protection analysis would yield a result different
from what would emerge from analysis of the state
Constitution.” (Chatman, supra, 4 Cal.5th at p. 288.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
a disparity in treatment and some legitimate government
purpose.” (Chatman, at pp. 288–289.
Here, both sides agree that rational basis review applies;
Hardin makes no argument that this case involves a suspect
classification or a fundamental right. (See Chatman, supra, 4
Cal.5th at pp. 282, 287 [rational basis review applied to evaluate
constitutionality of law prescribing different collateral
consequences for different types of criminal convictions]; People
v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson) [A
defendant “ ‘does not have a fundamental interest in a specific
term of imprisonment’ ”].
In the past, our cases have set out a two-part inquiry to
evaluate equal protection claims. “We first ask whether the
state adopted a classification affecting two or more groups that
are similarly situated in an unequal manner. [Citation.] If we
deem the groups at issue similarly situated in all material
respects, we consider whether the challenged classification” is
adequately justified. (Chatman, supra, 4 Cal.5th at p. 289.) In
a case, like this one, subject to rational basis review, the
question is “whether the challenged classification ultimately
bears a rational relationship to a legitimate state purpose.”
(Ibid.
The Courts of Appeal that have addressed the issue
presented here concerning the life without parole exclusion have
fractured over the proper analysis of the threshold “similarly
situated” inquiry. At this first step of the two-part equal
protection inquiry, the reviewing court asks “not whether
persons are similarly situated for all purposes, but ‘whether
they are similarly situated for purposes of the law challenged.’ ”
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, quoting
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Opinion of the Court by Kruger, J.
People v. Gibson (1988) 204 Cal.App.3d 1425, 1438.) If the
challenging party fails to satisfy this threshold “ ‘similarly
situated’ ” inquiry, the equal protection analysis is at an end.
(Cooley, at p. 254.
The Court of Appeal in this case held that offenders
serving life without parole sentences are, for purposes of the
youth offender parole statute, similarly situated to offenders
serving parole-eligible life terms for offenses committed at the
same age. It then went on to hold that the statute’s disparate
treatment of the two groups is not adequately justified.
(Hardin, supra, 84 Cal.App.5th at pp. 287–288, 290.) Several
other courts have likewise concluded that the groups are
similarly situated for purposes of the challenged law, but that
the difference in treatment is justified. A still larger group of
courts have concluded that the groups are not similarly situated
for purposes of the law, while citing essentially the same reasons
other courts have cited at the justification step of the inquiry.
And the largest group of courts have avoided the question by
assuming without deciding that the two groups are similarly
situated and proceeding to hold that the difference in treatment
is justified under rational basis review.
Despite this state of uncertainty, the Attorney General
asks us to join the group of courts that have avoided the issue
by assuming without deciding that a young adult offender
serving a parole eligible life sentence is similarly situated to an
individual serving a sentence of life without parole for an offense
committed at a similar age. The Attorney General thus would
have us proceed directly to the operative question, which is
whether the disparate treatment has a rational basis.
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Opinion of the Court by Kruger, J.
We have taken this assume-without-deciding approach to
the “similarly situated” inquiry in other recent equal protection
cases and could do the same here. (Chatman, supra, 4 Cal.5th
at p. 290 [moving to the second step of the equal protection
analysis without deciding the first, “similarly situated” step];
Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882
(Johnson).) But to do so would simply perpetuate the
uncertainty that has led courts to so many different conclusions
about how the “similarly situated” test ought to apply, and that
has so often led both this court and the Courts of Appeal to avoid
the test altogether.
There is a reason for this uncertainty. As we recognized
decades ago, in cases involving challenges to statutes like
section 3051, subdivision (h) that facially distinguish between
identifiable groups or classes of individuals, “[t]o ask whether
two groups are similarly situated in this context,” given the
interests underlying the law challenged, is essentially “the same
as asking whether the distinction between them can be justified
under the appropriate test of equal protection.” (Fullerton Joint
Union High School Dist. v. State Bd. of Education (1982) 32
Cal.3d 779, 798, fn. 19 (plur. opn.).) This is because one can only
reach the conclusion that two groups are similarly situated with
respect to the purposes of a particular law after considering the
law’s aims and how the differential treatment relates to those
aims. But the first, “similarly situated” step of the analysis
provides substantially less guidance about how this inquiry is to
proceed: “How similarly situated, precisely, relative to which
aims? These are questions courts already explore at the
justification step, using the tiers of scrutiny to guide their
answers.” (Eric B., supra, 12 Cal.5th at p. 1115 (conc. opn. of
Kruger, J.).) In the context of challenges like this one, the
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
similarly situated test serves no real purpose. At best it
duplicates the justification inquiry prescribed at the second step
of the analysis; at worst it creates an unnecessary threshold
obstacle to the adjudication of potentially meritorious
constitutional challenges; and in all events it injects
unnecessary uncertainty into the analysis, particularly in the
situations in which the challenged law reflects multiple,
sometimes competing aims.
Our cases purported to derive the threshold “similarly
situated” test from United States Supreme Court guidance, but
the high court itself has not employed any similar threshold test
in equal protection cases involving challenges to facial legal
classifications. (See, e.g., Cleburne, supra, 473 U.S. at pp. 439–
450.) Even when this court first began to speak in terms of a
“similarly situated” test, it did not initially understand this to
mean that courts must always engage in that inquiry as a
separate analytical step. (See In re Roger S. (1977) 19 Cal.3d
921; In re Eric J. (1979) 25 Cal.3d 522.) Rather, courts reciting
the rules of these cases over time came to lay out a two-step
analysis, even though no court ever identified precisely what
independent function the first step is supposed to serve.
Unsurprisingly, then, courts did not apply it consistently, often
adopting an approach of assuming-without-deciding that the
groups or classes facing disparate treatment are similarly
situated, or skipping the inquiry altogether, to reach the critical
question of whether the justification for the alleged disparate
treatment is adequate. (See, e.g., Chatman, supra, 4 Cal.5th at
p. 290; Johnson, supra, 60 Cal.4th at p. 882; Hernandez v. City
of Hanford (2007) 41 Cal.4th 279, 299 (Hernandez); People v.
Floyd (2003) 31 Cal.4th 179, 190.
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Opinion of the Court by Kruger, J.
After directing the parties and inviting amici curiae to
address this issue, none has identified any substantive reason
why we should continue to prescribe a two-step analysis in cases
like this one, in which the only real question is whether a facial
difference in treatment is adequately justified by the purposes
the law was meant to serve. The primary concern raised by the
Attorney General relates to stare decisis — the idea that once
an issue is decided, it should ordinarily remain decided.
Stare decisis plays a vitally important role in our work as
a common law court; the policy of adherence to precedent
ensures the certainty, stability, and predictability on which the
rule of law depends. But stare decisis concerns have no real
place here. The doctrine “does not ‘ “shield court-created error
from correction” ’ ” but “permits us ‘to reconsider, and ultimately
to depart from, our own prior precedent in an appropriate
case.’ ” (People v. Mendoza (2000) 23 Cal.4th 896, 924.) Here,
none of the factors we have identified as relevant to the question
of adherence to precedent — including “the age of the precedent,
the nature and extent of public and private reliance on it, and
its consistency or inconsistency with other related rules of law”
(Trope v. Katz (1995) 11 Cal.4th 274, 288) — suggests we are
bound to preserve an analytical framework that has generated
uncertainty and confusion, with no discernible effect on the
actual outcomes of cases.
For these reasons, we now hold that, when plaintiffs
challenge laws drawing distinctions between identifiable groups
or classes of persons, on the basis that the distinctions drawn
are inconsistent with equal protection, courts no longer need to
ask at the threshold whether the two groups are similarly
situated for purposes of the law in question. The only pertinent
inquiry is whether the challenged difference in treatment is
20
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
adequately justified under the applicable standard of review.
The burden is on the party challenging the law to show that it
is not.
To be clear, we cast no doubt on the utility of “similarly
situated” inquiries in other contexts. In cases that do not
involve challenges to classifications appearing on the face of the
law, to ask whether a person has been treated differently from
another person similarly situated is typically how we determine
whether a person has been treated differently on the basis of
group membership or another actionable basis. We do not call
into question the established role the similarly situated inquiry
plays in, for instance, cases involving claims of group-based
discrimination against individuals, in which plaintiffs bear the
burden of showing disparate treatment along class lines, or so-
called “class of one” cases that do not allege differential
treatment on the basis of class membership. (See, e.g., United
States v. Armstrong (1996) 517 U.S. 456, 465–467; Village of
Willowbrook v. Olech (2000) 528 U.S. 562, 564.
Nor, in dispensing with the threshold “similarly situated”
test in equal protection challenges like this one, do we call into
question any of this court’s precedent that purported to dispose
of an equal protection challenge upon deciding that the
challenged disparate treatment did not involve groups that were
similarly situated for purposes of the law in question. As we
have explained, the conclusion in each of those cases could just
as well have been cast as a conclusion about whether the
difference in treatment was adequately justified under the
applicable standard of review. (See, e.g., People v. Salazar
(2016) 63 Cal.4th 214, 227 [noting individuals who commit a
capital crime after being convicted of a juvenile murder in
superior court are not similarly situated to those whose prior
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Opinion of the Court by Kruger, J.
murder was adjudicated in juvenile court, because the
Legislature may fairly distinguish these groups based on
culpability]; People v. Johnson (1992) 3 Cal.4th 1183, 1242–1243
[noting capital defendants are not similarly situated to those
subject to ordinary sentencing enhancements because of the
aggravating circumstances surrounding the capital offense].
Having thus clarified the governing analytical framework,
we turn to the central inquiry in this case: whether there is a
rational basis justifying section 3051’s disparate treatment of
individuals who, like Hardin, are serving sentences of life
without parole for special circumstance murder.
IV.
A.
Rational basis review “sets a high bar” for litigants
challenging legislative enactments. (Chatman, supra, 4 Cal.5th
at p. 289.) The reasons for this lie at the heart of our democratic
system of governance. “Coupled with a rebuttable presumption
that legislation is constitutional, [rational basis review] helps
ensure that democratically enacted laws are not invalidated
merely based on a court’s cursory conclusion that a statute’s
tradeoffs seem unwise or unfair.” (Ibid.
Under this deferential standard, we presume that a given
statutory classification is valid “until the challenger shows that
no rational basis for the unequal treatment is reasonably
conceivable.” (Chatman, supra, 4 Cal.5th at p. 289.) The
underlying rationale for a statutory classification need not have
been “ever actually articulated” by lawmakers, nor “be
empirically substantiated.” (People v. Turnage, supra, 55
Cal.4th at pp. 74, 75 (Turnage).) Evaluating potential
justifications for disparate treatment, a court reviewing a
22
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
statute under this standard must “treat the statute’s potential
logic and assumptions far more permissively than with other
standards of constitutional or regulatory review.” (Chatman, at
p. 294.) “If a plausible basis exists for the disparity, courts may
not second-guess its ‘ “wisdom, fairness, or logic.” ’ ” (Johnson,
supra, 60 Cal.4th at p. 881.) “[T]he logic behind a potential
justification need [not] be persuasive or sensible — rather than
simply rational.” (Chatman, at p. 289.)3
B.
Hardin’s central argument is that section 3051’s exclusion
of offenders sentenced to life without possibility of parole has no
rational basis because it is inconsistent with what he
understands to be the “sole” purpose behind the statute: to
create “a meaningful opportunity for release for youthful
3
The high court has on occasion applied a more searching
form of rational basis review that looks to the Legislature’s
actual motivations in enacting a statute rather than
hypothesized ones. (See, e.g., U.S. Dept. of Agriculture v.
Moreno (1973) 413 U.S. 528, 535–538.) The high court has
generally reserved this form of review for cases in which the sole
motivation underlying the enactment is baseless prejudice
against a politically unpopular group. (See, e.g., ibid.; Cleburne,
supra, 473 U.S. at pp. 448–450.) Those are not the
circumstances we confront here, and no party argues otherwise.
Justice Liu lays out an argument for reconsidering
rational basis review under our state equal protection guarantee
to require a focus on the Legislature’s actual, rather than
hypothesized, reasons for the challenged classification. (Dis.
opn. of Liu, J., post, at p. 21.) We note, however, that our
analysis focuses on the apparent motivations underlying the
challenged classification, as revealed in the statutory text and
history; we do not endeavor to exhaustively catalog all
conceivable concerns that might be hypothesized in support of
the challenged distinction.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
offenders, who were 25 or younger at the time of their crimes,
through demonstrated growth and rehabilitation.” Pointing to
the high court’s reasoning concerning juvenile offenders in
Miller, supra, 567 U.S. 460, and the scientific research that
prompted the Legislature to expand section 3051 to young
adults, Hardin contends that all youthful offenders, by virtue of
their age and the limitations associated with still-developing
judgment and impulse control, possess the same characteristics
that prompted the enactment and expansion of section 3051,
including diminished culpability and the potential for change.
Hardin acknowledges the core of the counterargument. “It
is both the prerogative and the duty of the Legislature to define
degrees of culpability and punishment, and to distinguish
between crimes in this regard.” (Turnage, supra, 55 Cal.4th at
p. 74.) Life without parole is the most severe sentence of
imprisonment in California law, applicable only in cases of
special circumstance murder and a small number of other
offenses the law regards as particularly serious.4 By excluding
persons sentenced to life without parole from youth offender
parole proceedings, the Legislature exercised its prerogative to
define degrees of culpability and punishment by leaving in place
4
These offenses include certain aggravated sex offenses
against minors (Pen. Code, § 667.61, subds. (j)(1), (l));
kidnapping for ransom resulting in death or bodily harm or
exposure to a substantial likelihood of death (id., § 209, subd.
(a)); certain felonies inflicting great bodily injury that are
committed by a “habitual offender” (id., § 667.7, subd. (a)); hate
crime first degree murder (id., § 190.03, subd. (a)); willful and
malicious ignition of an explosive device causing death (id.,
§ 18755, subd. (a)); and intentional train wrecking (id., §§ 218,
219).
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
longstanding judgments about the seriousness of these crimes
and, relatedly, the punishment for them.
Hardin asserts, however, that the seriousness of the
offenses “provides no basis for their exclusion because the
purpose of the statute was ameliorative, not punitive.” The
Court of Appeal made a similar point: “[I]f, as the Legislature
stated, the goal of section 3051 was to apply the Miller youth-
related mitigating factors to young adults up to the age of 26 in
light of neuroscience research that demonstrated the human
brain continues to develop into a person’s mid-20’s, and thus to
permit youth offenders a meaningful opportunity for parole if
they demonstrate increased maturity and impulse control, then
for that purpose there is no plausible basis for distinguishing
between same-age offenders based solely on the crime they
committed.” (Hardin, supra, 84 Cal.App.5th at p. 288.
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.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
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.
This balancing has been evident throughout the history of
the youth offender parole statute. Even as initially drafted, the
statute did not categorically extend youth offender parole
hearings to all persons below the age of 18, but instead
distinguished between offenders based on the crimes they
committed. (Stats. 2013, ch. 312, § 1; former § 3051, added by
Stats. 2013, ch. 312, § 4; cf. Sen. Com. on Appropriations,
Analysis of Sen. Bill No. 394 (2017–2018 Reg. Sess.) Apr. 17,
2017, p. 2 [“[The bill that created section 3051] established a
parole process for persons sentenced to prison for certain crimes
committed before attaining 18 years of age” (italics added)].
Through multiple rounds of statutory amendments gradually
expanding the statute, the Legislature retained crime-based
distinctions, and the legislative history accompanying the
amendments confirms that these were deliberate choices. (See,
e.g., Assem. Com. on Appropriations, Analysis of Assem. Bill
No. 1308 (2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2
[“Some offenders are not eligible [for parole hearings] based on
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
the crime that was committed, or actions taken by the inmate
after the age of 23” (italics added)]; Sen. Com. on Public Safety,
Rep. on Sen. Bill No. 394 (2017–2018 Reg. Sess.) Mar. 21, 2017,
p. 4 [“This bill would apply the youth offender parole process to
juveniles sentenced to [life without parole]. . . . [¶] The bill
makes clear that . . . the provisions applying to juvenile [life
without parole] apply only to those sentenced before the age of
18” and thus exclude individuals sentenced to life without parole
for crimes committed after the age of 18].
The end result is that under the youth offender parole
statute as enacted and since amended, the nature of the
sentence received for a particular crime — what the statute
terms the “controlling offense” — sometimes determines
whether an individual is eligible for a youth offender parole
hearing in the first instance. And for those who are eligible, the
nature of the sentence determines when they will receive such a
hearing: whether after 15, 20, or 25 years. In other words, in
designing section 3051, the Legislature consciously drew lines
that altered the parole component of offenders’ sentences based
not only on the age of the offender (and thus the offender’s
amenability to rehabilitation) but also on the offense and
sentence imposed. The lines the Legislature drew necessarily
reflect a set of legislative judgments about the nature of
punishment that is appropriate for the crime.
It may be true, as Hardin argues, that these crime-based
categories are not rationally related to the Legislature’s purpose
of expanding opportunities for early release based on the
attributes of youth since, as Miller explained, the attributes of
youth are not “crime-specific.” (Miller, supra, 567 U.S. at
p. 473.) No doubt the Legislature — which consciously enacted
section 3051 in language that borrowed from Miller and other
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Opinion of the Court by Kruger, J.
Eighth Amendment juvenile sentencing cases — was aware of
this point. The Legislature nonetheless crafted a statutory
scheme that assigns significance to the nature of underlying
offenses and accompanying sentences. The most natural
conclusion to draw from this is not, as Hardin would have it,
that the Legislature enacted a statute at odds with its own
rehabilitative ends, but instead that the Legislature — as
legislatures often do — was attempting to pursue other
“ ‘(perhaps even contrary) ends as well.’ ” (Hernandez, supra, 41
Cal.4th at p. 301, quoting Fitzgerald v. Racing Assn. of Central
Iowa (2003) 539 U.S. 103, 108.
The statutory framework indicates that the Legislature
aimed to increase opportunities for meaningful release for young
adult offenders, while taking into account the appropriate
punishment for the underlying crimes, depending on their
severity. These are essentially the same considerations involved
whenever the Legislature exercises its responsibility “for
determining which class of crimes deserves certain punishments
and which crimes should be distinguished from others.”
(Wilkinson, supra, 33 Cal.4th at p. 840.) They are also not
dissimilar from the considerations that prompted the high court
to distinguish, for Eighth Amendment purposes, between
sentencing juveniles for homicide offenses and sentencing
juveniles for nonhomicide offenses. (Miller, supra, 567 U.S. at
p. 473 [based on considerations of “both moral culpability and
consequential harm,” juvenile homicide offenders, unlike
juvenile nonhomicide offenders, may be sentenced to life without
possibility of parole, but only after individualized sentencing
that gives appropriate consideration to the mitigating attributes
of youth].) Much as the high court invoked culpability-related
concerns to distinguish among crimes in that context, it is
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
reasonable to infer that the Legislature considered such
concerns in this one.
Hardin argues that the Legislature’s decision to adopt a
parole process indicates it was unconcerned with culpability and
instead had only rehabilitation in mind. If the Legislature had
been concerned with calibrating the appropriate sentence for
particular crimes, Hardin reasons, the Legislature could have
instead enacted a statute providing for the recall of sentence and
resentencing, as it had done in Penal Code section 1170,
subdivision (d) — the predecessor statute to section 3051
discussed in Kirchner, supra, 2 Cal.5th at pages 1049–1050 —
and as it has done in other recently enacted ameliorative
statutes (e.g., Pen. Code, § 1172.6; see People v. Lewis (2021) 11
Cal.5th 952, 959–960). In Hardin’s view it is “telling” that the
Legislature instead enacted a parole process, since “California’s
parole process explicitly measures rehabilitation. . . . To the
extent the crime of commitment can be taken into consideration
at all, it is only for purposes of determining the present level of
risk.”
What Hardin says is true of the task of the Parole Board
at a parole hearing. (§ 3051, subd. (d), citing Pen. Code, § 3041;
see Pen. Code, § 3041, subd. (b)(1) [“The panel . . . shall grant
parole . . . unless it determines that the gravity of . . . current or
past convicted offense or offenses . . . is such that consideration
of the public safety requires a more lengthy period of
incarceration”].) But the Legislature has a different role, which
is to determine not only whether an incarcerated individual may
be suitable for release on parole, but when and whether it is
appropriate to afford that individual the opportunity to
demonstrate suitability for release. Parole eligibility is
frequently an important component of the sentence prescribed
29
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
for a crime, and so the Legislature frequently considers multiple
sentencing objectives — including both the prospects for
rehabilitation and the degree of culpability demonstrated by the
crime — in determining when, and if, a particular category of
offenders will become eligible for a parole hearing.
Hardin also argues that section 3051’s focus on the
“controlling offense” — that is, the single “offense or
enhancement for which any sentencing court imposed the
longest term of imprisonment” (§ 3051, subd. (a)(2)(B)) — is
indicative of the Legislature’s rehabilitative concerns rather
than concerns with appropriate punishment. Hardin points out,
for example, that the statute sets a 25-year eligibility date for
all youthful offenders who have received a sentence of 25 years
to life for any one offense or enhancement — even if another
individual with the same youth offender parole eligibility date
may be serving a much longer aggregate sentence on account of
other crimes; and even if the offender’s “controlling offense” is
merely an enhancement, rather than a substantive crime.
Hardin argues that the Legislature that enacted section 3051
therefore must not have been concerned with the relatively
greater culpability of the individual with the longer aggregate
sentence, or of the substantive crime to which the longer
enhancement was attached.
To be sure, the statute’s “controlling offense” framework
does rely on a certain amount of generalization about the
relationship between the lengthiest individual sentence the
offender has received and the culpability of the underlying
criminal conduct. But “ ‘[w]hen conducting rational basis
review, we must accept any gross generalizations and rough
accommodations that the Legislature seems to have made.’ ”
(Turnage, supra, 55 Cal.4th at p. 77.) Hardin’s argument
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
presumes there is only one way to evaluate culpability for these
purposes — by focusing on the offender’s entire criminal history
rather than examining an individual offense, or by focusing on
substantive crimes and ignoring the role of sentence
enhancements. But these are not the only possible ways to
evaluate culpability. That the Legislature may have prescribed
a measurement of culpability different from Hardin’s does not
mean the Legislature was not attempting to measure culpability
at all. While section 3051 is not, in terms, a statute prescribing
sentences for particular crimes, it does “set[] the consequences
of criminal offenses.” (Johnson, supra, 60 Cal.4th at p. 887.) It
is reasonable to infer that in setting those consequences through
operation of the youth offender parole system, the Legislature
balanced multiple considerations, including both concerns about
increasing opportunities for release for young adults able to
show growth and maturity and concerns about calibrating the
level of punishment appropriate for certain serious criminal
offenses.
Hardin also suggests that, by enacting a system of single-
offense-based staggered eligibility terms and exclusions, the
Legislature was attempting to capture the moment when, based
on the sentence received for a single offense or enhancement, “a
person might be first expected to demonstrate meaningful
rehabilitation.” Hardin provides no logical or evidentiary
support for this view. It is unclear how the Legislature could
have determined that 15 years marks the relevant line of
maturation for an offender who received a determinate sentence
for a controlling offense; 20 years marks the maturation line for
an offender sentenced to a life term of less than 25 years to life;
and so on. But more fundamentally, this is not an either/or
matter. Parole eligibility dates are an important component of
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
the sentences prescribed for crimes. As such, they
presumptively reflect the full range of usual penological
considerations, including rehabilitative and retributive
purposes. Even assuming the staggered parole eligibility terms
reflect some set of legislative judgments about when an offender
is most likely to be rehabilitated, the critical point is that they
also necessarily reflect a judgment about the degree to which the
youth offender parole statute should reduce potential
punishment. Concerns about both appropriate punishment and
rehabilitation underlie this provision, just as the same balance
of penological considerations underlie the other provisions of the
statute. These are unquestionably legitimate purposes. (E.g.,
Wilkinson, supra, 33 Cal.4th at p. 840.) The exclusion that
Hardin challenges may or may not be rationally related to those
purposes — we will turn to that question below — but the
exclusion is not invalid simply because it reflects interests on
the other side of a legislative balance.
Finally, Hardin argues that the other exclusions from
youth offender parole eligibility set forth in section 3051,
subdivision (h) “further undermine the rationality of the
statute.” The only question before us here concerns the
constitutionality of the exclusion of youthful offenders sentenced
to life without parole, and there is no occasion for us to pass
judgment on the validity of any other exclusion. It suffices to
observe, however, that nothing in the other exclusions
undermines the conclusion that the Legislature that crafted the
youth offender parole statute was attempting to balance
multiple penological considerations in addition to rehabilitation.
Whether or not each of the other exclusions is adequately
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
justified in light of those considerations is beyond the scope of
our inquiry in this case.5
C.
Hardin argues that even if the life without parole
exclusion reflects culpability-related concerns, it nonetheless
fails rational basis review because there is no reasonable basis
to conclude that young adult offenders sentenced to life without
parole are more culpable or less deserving of the opportunity for
release than other young adult offenders. Hardin’s arguments
focus specifically on individuals who, like him, received life
without parole sentences following convictions for special
circumstance murder. The Legislature, he argues, “would have
had no rational basis to distinguish between youthful offenders
sentenced to life without parole for special circumstance murder
and youthful offenders sentenced either to the functional
equivalent of life without parole or to indeterminate life terms
for first degree murder. That is because, from a culpability
standpoint, these groups cannot rationally be distinguished.”
Hardin, however, fails to demonstrate that the life without
parole exclusion is irrational, and therefore unconstitutional, as
applied to individuals sentenced for special circumstance
murder.
In California, a conviction for first degree murder
generally results in a life sentence with parole eligibility after
5
We do not, for instance, decide the issue presented in
People v. Williams (2020) 47 Cal.App.5th 475, review granted July
22, 2020, S262229, in which the Court of Appeal held that section
3051, subdivision (h) violates equal protection principles by
excluding youthful offenders convicted and sentenced for
aggravated sex crimes under the One Strike law (Pen. Code
§ 667.61) from youth offender parole consideration.
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Opinion of the Court by Kruger, J.
25 years. (See Pen. Code, § 190, subd. (a); id., §§ 190.1–190.5.
Penal Code section 190.2 (section 190.2) lists special
circumstances that, under California law, mark a first degree
murder particularly egregious and thus render the perpetrator
eligible for the death penalty, consistent with Eighth
Amendment requirements. (People v. Bacigalupo (1993) 6
Cal.4th 457, 467–468 [the “special circumstances” statute
performs the constitutionally required function of “ ‘narrowing’ ”
the “class of murderers eligible for the death penalty”].) If a
defendant is convicted of first degree murder with a special
circumstance under section 190.2, there are only two possible
sentences: death or life without the possibility of parole. (Id.,
subd. (a).
To understand the function of special circumstances in
California’s capital sentencing law is to understand why Hardin
faces a particularly difficult task in establishing that the
Legislature’s decision to exclude offenders convicted of special
circumstance murder from the youth offender parole system is
“so devoid of even minimal rationality that it is unconstitutional
as a matter of equal protection.” (Chatman, supra, 4 Cal.5th at
p. 289.) The core of Hardin’s argument is that the Legislature
could not rationally conclude that a conviction for special
circumstance murder is a reliable indication of the seriousness
of an offense or the culpability of the offender, such that it could
rationally decide to exclude the offender from receiving the
youth offender parole consideration to which other young adults
are statutorily entitled. In making this argument, Hardin does
not focus on any single special circumstance or any particular
factual scenarios; his argument is a categorical one, aimed at
special circumstance murder in general. This argument about
the relative insignificance of special circumstance murder, as a
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Opinion of the Court by Kruger, J.
category, is inconsistent with what are by now legions of
decisions holding that special circumstance murder is
sufficiently serious and morally culpable as to justify imposing
the most severe sanctions available under the law, up to and
including death.
In the Eighth Amendment context, this court has
consistently rejected arguments that section 190.2’s potential
coverage is too broad to perform its constitutionally required
function of identifying those convicted of murders whose crimes
are sufficiently egregious to warrant the law’s most severe
penalty.6 We have explained why various challenged provisions
of section 190.2 adequately separate the most egregious first
degree murders — those deserving of the most severe
punishment available — from the rest. (See, e.g., People v.
Anderson (1987) 43 Cal.3d 1104, 1147 [“[B]y making the felony
murderer but not the simple murderer death-eligible, a death
penalty law furnishes the ‘meaningful basis [required by the
Eighth Amendment] for distinguishing the few cases in which
[the death penalty] is imposed from the many cases in which it
is not’ ”].
Here, for example, Hardin was convicted of murdering his
victim in the course of robbing her. We have explained why the
6
See, e.g., People v. Wilson (2023) 14 Cal.5th 839, 865–866;
People v. Thomas (2023) 14 Cal.5th 327, 408; People v. Ramirez
(2022) 13 Cal.5th 997, 1160; People v. Parker (2022) 13 Cal.5th
1, 89; People v. Wright (2021) 12 Cal.5th 419, 455–456; People v.
Scully (2021) 11 Cal.5th 542, 610; People v. Schultz (2020) 10
Cal.5th 623, 682; People v. Frederickson (2020) 8 Cal.5th 963,
1026; People v. Capers (2019) 7 Cal.5th 989, 1012–1013; People
v. Brooks (2017) 3 Cal.5th 1, 114–115; People v. Johnson (2016
62 Cal.4th 600, 654–655.
35
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
law treats robbery-murder as more culpable than simple
murder. The special circumstance is limited to those defendants
who commit “a ‘willful, deliberate and premeditated’ murder
‘during the commission’ of a robbery or other listed felony”
rather than “when the defendant’s intent is not to steal but to
kill and the robbery is merely incidental to the murder.” (People
v. Green (1980) 27 Cal.3d 1, 61.) The law treats as particularly
egregious a murder “in cold blood in order to advance an
independent felonious purpose, e.g., who carried out an
execution-style slaying of the victim of or witness to a holdup, a
kidnaping, or a rape.” (Ibid.) “[T]he purpose of this special
circumstance is to make eligible for the most severe punishment
those defendants who escalate a serious felony into a murder,
thereby attempting to deter such escalation.” (People v. Mora
and Rangel (2018) 5 Cal.5th 442, 520 (conc. & dis. opn. of Liu,
J.).
Given this body of case law, it is difficult to see how the
Legislature that enacted section 3051 could have acted
irrationally in singling out special circumstance murder as a
particularly culpable offense. In concluding otherwise, the
Court of Appeal in this case pointed to a law review article’s
finding that, because of the expansion of the special
circumstances over the years, at least one special circumstance
could be alleged in many if not most first degree murder cases,
“leaving the decision whether a life without parole sentence may
be imposed to the discretion of local prosecutors, rather than a
matter of statewide policy.” (Hardin, supra, 84 Cal.App.5th at
p. 290; id. at p. 290, fn. 11, citing Com. on Revision of the Pen.
Code, supra, Annual Report and Recommendations, p. 51, in
turn citing Baldus et al., Furman at 45: Constitutional
Challenges from California’s Failure to (Again) Narrow Death
36
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Eligibility, supra, 16 J. Empirical Legal Studies at pp. 713–714
(Baldus study).) Hardin now invokes the same article in support
of his challenge to section 3051’s disparate treatment of
individuals sentenced for special circumstance murder.
Hardin’s argument is not that prosecutorial discretion
itself offends equal protection. (See People v. Keenan (1988) 46
Cal.3d 478, 505, 506 [rejecting the argument that “prosecutorial
discretion to select those eligible cases in which the death
penalty will actually be sought” in and of itself “offend[s]
principles of equal protection,” and explaining that “[m]any
circumstances may affect the litigation of a case chargeable
under the death penalty law. These include factual nuances,
strength of evidence, and, in particular, the broad discretion to
show leniency”]; see also United States v. Batchelder (1979) 442
U.S. 114, 125 [rejecting an equal protection challenge to “the
discretion a prosecutor exercises when deciding whether to
charge under one of two statutes”].) Nor does he bring or
develop a claim that prosecutorial discretion has been exercised
in an arbitrary or invidious manner. Rather, in light of the
findings of the cited law review article, Hardin “challenges the
Legislature’s ability to rely on a distinction between two
groups — youthful offenders convicted of special circumstance
murders and youthful offenders convicted of first degree
murders — that collapses on further scrutiny.”
We have previously considered a similar argument raised
in the Eighth Amendment context. In People v. Frye (1998) 18
Cal.4th 894, 1028–1029 (Frye), a capital defendant relied on “a
statistical analysis based on an examination of published
appeals from murder convictions for the years 1988–1992” that
showed “virtually all first degree murders are death eligible.”
The defendant in that case attributed this result to “the broad
37
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
interpretation of the lying-in-wait special circumstance and the
expansive sweep of the felony-murder special circumstance.”
(Id. at p. 1029.) We rejected the argument, citing case law
upholding the validity of both the lying-in-wait special
circumstance and the felony-murder special circumstance in
cases in which the defendant did not harbor an intent to kill but
was instead a major participant in a felony who acted with
reckless indifference to human life. (Ibid., citing, inter alia,
People v. Morales (1989) 48 Cal.3d 527, 557–558 & People v.
Marshall (1990) 50 Cal. 3d 907, 946.
Our treatment of the issue in Frye was admittedly terse,
and it relied on a different study than the one on which Hardin
now relies. But based on the arguments and evidence that have
been presented to us here, we have no adequate basis to fault
the Legislature for distinguishing, as a categorical matter,
between a conviction for special circumstance murder and a
conviction for a different homicide offense, as the law has long
done.
At the outset, we note that the Baldus study on which
Hardin relies is not part of the record in this case, having been
first raised not by the parties but by the Court of Appeal in its
opinion. (See Hardin, supra, 84 Cal.App.5th at p. 290.) The
study’s findings were not litigated in the trial court, so they have
never been the subject of any sort of adversarial testing that
would afford us insight into either the methodology employed or
the ultimate accuracy or significance of the results. To strike
down an act of the Legislature as irrational based on a set of
untested empirical findings would be antithetical to multiple
settled principles of judicial review.
38
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Even if we were to take the study’s findings at face value,
however, they do not support Hardin’s claim that it is, as a
categorical matter, irrational to treat individuals convicted of
first degree special circumstance murder differently from
individuals convicted of first degree murder without special
circumstances. The study neither says nor suggests that
California’s special circumstance law is categorically invalid.
Rather, as the Court of Appeal noted in its opinion, the study
appears to suggest that certain special circumstances, added
through various amendments after the initial enactment of
section 190.2, have led to the results found in the study.7 (See
Hardin, supra, 84 Cal.App.5th at p. 290.) But Hardin makes no
challenge specific to any particular special circumstance or
special circumstances added or changed by postenactment
7
As Justice Liu notes, the Baldus study also reports that
robbery-murder is factually present in a majority of special
circumstance murder cases. (Dis. opn. of Liu, J., post, at p. 38.
But standing alone, that finding has no clear relevance; a special
circumstance is not legally invalid simply because it may be the
most frequently recurring form of special circumstance murder.
Justice Liu also invokes a different study, cited in the
Baldus study but not raised by either party to this case, in
support of the view that “ ‘the felony murder special
circumstances alone defeat any possibility of genuine
narrowing.’ ” (Dis. opn. of Liu, J., post, at p. 38.) Particularly
without any adversarial testing or argument concerning the
relationship between this limited set of empirical findings and
the Eighth Amendment’s narrowing requirement, we have no
adequate basis for drawing this sweeping conclusion, which
would call into question a substantial body of precedent of both
this court and of the United States Supreme Court. (See Pulley
v. Harris (1984) 465 U.S. 37, 51, fn. 13, 53 [upholding the 1978
version of the special circumstance murder statute]; Frye, supra,
18 Cal.4th at pp. 1028–1029.
39
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
amendments. (The special circumstance finding at issue in
Hardin’s own case is based on a provision of the law that dates
back to the initial enactment of section 190.2. (See Stats. 1973,
ch. 719, § 5, pp. 1299–1300.)) While we do not foreclose the
possibility of other challenges to the distinctions drawn by the
special circumstances statute based on a more robust record or
a more focused as-applied inquiry, Hardin has not carried his
burden to demonstrate that legislative reliance on the special
circumstance murder statute in section 3051, subdivision (h) is
categorically irrational.
Hardin next argues that an individual who commits
special circumstance murder may not actually be more culpable
than an offender who commits a string of other violent crimes.
Agreeing with Hardin, the Court of Appeal raised for
comparison two hypothetical offenders who would be eligible for
a section 3051 parole hearing: (1) “a 20 year old who shot and
killed his victim one day, committed a robbery the next, and was
sentenced to an indeterminate term of 50 years to life”; and
(2) an individual “who committed multiple violent crimes . . .
and received a parole-eligible indeterminate life term that far
exceeded his or her life expectancy.” (Hardin, supra, 84
Cal.App.5th at p. 289.) In the court’s view, these crimes “cannot
rationally” be considered less severe than “[t]he crime of a 20-
year-old offender who shot and killed his victim while
attempting to commit robbery and was sentenced to life without
parole.” (Ibid.) Yet section 3051 would deny a parole hearing to
that offender. The court concluded that “[b]y defining the youth
parole eligible date in terms of a single ‘controlling offense,’
rather than by the offender’s aggregate sentence, the
Legislature has eschewed any attempt to assess the offenders’
40
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
[sic] overall culpability, let alone his or her amenability to
growth.” (Hardin, at p. 289.
That view again rests on the assumption that the
Legislature is required to evaluate culpability in a particular
way — a way that would, essentially, regard special
circumstance murder as similar in culpability to a string of other
violent crimes that leads to technically parole-eligible sentences.
But the Legislature that enacted section 3051 was not obligated
to see things this way. Indeed, the law in general does not see
things this way: In the criminal law, there is no violent crime
or set of violent crimes considered more serious, or that trigger
more severe punishment, than special circumstance murder.
We thus cannot say that the decision to deny a parole hearing to
an offender convicted of special circumstance murder is
irrational, even if it is possible that in certain cases some might
consider an individual offender convicted of multiple violent
crimes more culpable, in a holistic sense, than an individual
convicted of special circumstance murder. (Turnage, supra, 55
Cal.4th at pp. 77–78 [“When conducting rational basis review
. . . [a] plausible reason for distinguishing between [two groups
of individuals] need not exist in every scenario in which the
statutes might apply”].
Hardin notes that we have described an aggregate
sentence that fixes parole eligibility outside of an offender’s life
expectancy as the “functional equivalent of a life without parole
sentence.” (Caballero, supra, 55 Cal.4th at p. 268.) But we have
employed that description in the context of identifying the
category of juvenile offenders to whom the Eighth Amendment
limitations on life without parole sentences apply; for that
purpose, what matters is only whether the sentence, by its
nature, forecloses any realistic chance for a juvenile offender to
41
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
rejoin society. (See People v. Contreras (2018) 4 Cal.5th 349,
368.) We have not held that a lengthy term-of-years sentence is
necessarily equivalent to a life without parole sentence for all
purposes. Nor, more specifically, have we suggested that a set
of crimes punishable by a lengthy term-of-years sentence is
necessarily more culpable, or equivalent in culpability, to a
single crime for which the law prescribes a sentence of life
without parole. It was not irrational for the Legislature to
exclude from youth offender parole eligibility those young adults
who have committed special circumstance murder, an offense
deemed sufficiently culpable that it merits society’s most
stringent sanctions.
V.
In holding that Hardin has not demonstrated that the
exclusion of offenders who are serving sentences of life in prison
without the possibility of parole for a crime committed after the
age of 18 from youth offender parole eligibility is irrational, we
pass no judgment on the validity of any of the other exclusions
set forth in section 3051, subdivision (h). Nor do we resolve here
the constitutionality of section 3051, subdivision (h) as it might
arise in other as-applied challenges based on particular special
circumstances or the factual circumstances of individual cases.
We emphasize, finally, that the question before us
concerns only the constitutional permissibility of the lines the
Legislature has drawn. It is not for us to pass judgment on the
wisdom or desirability of its policy choices. (Chatman, supra, 4
Cal.5th at p. 297.) Recognizing this, every published Court of
Appeal decision other than the decision in this case has upheld
the life without parole exclusion against equal protection
challenge. At the same time, several opinions have taken the
42
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
additional step of calling on the Legislature to give further
careful consideration to the issue. (See, e.g., In re Murray (2021
68 Cal.App.5th 456, 464; People v. Morales, supra, 67
Cal.App.5th at p. 349; People v. Jackson, supra, 61 Cal.App.5th
at p. 202 (conc. stmt. of Liu, J.) review den. June 9, 2021,
S267812; id. at pp. 201–202 (conc. opn. of Dato, J.); People v.
Acosta, supra, 60 Cal.App.5th at p. 781; People v. Montelongo
(2020) 55 Cal.App.5th 1016, 1041a (conc. stmt. of Liu, J.) review
den. Jan. 27, 2021, S265597; id. at pp. 1035–1036 (conc. opn. of
Segal, J.); In re Jones (2019) 42 Cal.App.5th 477, 486–487 (conc.
opn. of Pollak, J.).
That so many judges across the state have taken this step
reflects the significance of this issue. Special circumstance
murder is an unquestionably grave offense, one that exacts an
unimaginable toll on the lives of victims and those the victims
leave behind. But we also know that young people — even
young people who have committed grave offenses — are capable
of significant, sometimes transformative, change over the course
of their lifetimes. To extinguish any hope of release, particularly
for an individual just past the cusp of adulthood, is a form of
retribution that exacts its own price — one borne not just by the
individuals involved, but by their families, by their
communities, and by society as a whole.8
8
In addition to pointing to neuroscience research showing
that all youthful offenders, irrespective of their offense, bear the
mitigating attributes of adolescent cognitive development and
are capable of reform, various amici curiae also caution against
legislative reliance on the special circumstance law given the
geographic, temporal, and racial disparities in its application.
Justice Evans’s dissent, too, argues that the exclusion of
43
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
We acknowledge our dissenting colleagues’ view that, in
light of these overarching concerns, the Legislature should have
made a different choice. But for us to hold that the Legislature
was constitutionally compelled to do so would require us to set
aside multiple settled rules of constitutional adjudication. As
this court has repeatedly explained, the purpose of these rules
is to ensure that courts act as courts, and allow for the
offenders sentenced to life without parole perpetuates racial
disparities, and that this bias “should inform this court’s mode
of deference.” (Dis. opn. of Evans, J., post, at p. 2.) Hardin
himself, however, has never argued that heightened scrutiny
should apply to the facially neutral section 3051, subdivision (h),
nor has he brought a constitutional claim based on the unequal
or invidious enforcement of the special circumstance law. We do
not here address how claims concerning racial disparities might
be raised or addressed in a different case, whether under the
Equal Protection Clause or under the California Racial Justice
Act of 2020 (Pen. Code, § 745).
Some amici curiae on the other side of the issue argue that,
if we were to find an equal protection violation in section 3051,
subdivision (h), the only possible remedy would be to deny youth
offender parole hearings to all young adult offenders; we could
not instead order that treatment be equalized by granting youth
offender parole hearings to young adults convicted of special
circumstance murder. These amici curiae argue that because
the current version of section 190.2 was enacted by voter
initiative (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7,
1978) § 6), extending parole eligibility to youthful offenders
sentenced to special circumstance murder would constitute an
impermissible amendment by the Legislature. In response,
Hardin contends that the penalty scheme set forth in section
190.2 was first enacted by the Legislature, so the Legislature
remains free to amend the penalties available for special
circumstance murder. We have no occasion to reach this issue,
since Hardin has not established that section 3051’s exclusion of
young adult offenders sentenced to life without parole violates
equal protection.
44
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
development of policy through the democratic process without
putting the Legislature to unwarranted all-or-nothing choices.
“While this court will not condone unconstitutional variances in
the statutory consequences of our criminal laws,” rational basis
review requires us to extend substantial respect to the
Legislature’s judgments, for “ ‘ “ ‘[o]nly by faithful adherence to
this guiding principle of judicial review of legislation is it
possible to preserve to the legislative branch its rightful
independence and its ability to function.’ ” ’ ” (Johnson, supra,
60 Cal.4th at p. 889.
Our legislative bodies may continue to consider the issue
and how to balance concerns about the severity of certain crimes
with the overarching concern that prompted enactment of the
youth offender parole hearing system and its eventual
expansion to young adult offenders — that is, the recognition of
the potential of young persons for growth and change. We are,
however, mindful that the issue in this case arises in the first
instance because the Legislature chose to expand opportunities
for early parole consideration to many categories of young adult
offenders, even though it was under no constitutional
compulsion to do so. We are also mindful that the legislative
branch is entitled to proceed incrementally, so long as it
proceeds rationally, in “walking [the] tightrope” of the political
process. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 487.) Our
task is limited to determining whether Hardin has shown that
the Legislature’s decision to expand youth offender parole
hearings to most young adult offenders, while excluding Hardin
and others similarly situated, violates equal protection under a
rational basis standard. For reasons explained above, we cannot
so conclude.
45
PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
VI.
We reverse the judgment of the Court of Appeal.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
46
PEOPLE v. HARDIN
S277487
Dissenting Opinion by Justice Liu
In a series of statutes over the past decade, the Legislature
has established a parole eligibility process that provides young
people who have committed serious crimes “the opportunity to
obtain release when he or she has shown that he or she has been
rehabilitated and gained maturity.” (Stats. 2013, ch. 312, § 1.
Although the initial version of the parole scheme applied to
persons serving sentences for crimes committed before age 18,
the Legislature soon expanded eligibility by increasing the age
cutoff, first to 23 and then to 26. In these enactments, the
Legislature repeatedly recognized that “youthfulness both
lessens a juvenile’s moral culpability and enhances the prospect
that, as a youth matures into an adult and neurological
development occurs, these individuals can become contributing
members of society” (Stats. 2013, ch. 312, § 1), and that brain
development affecting judgment and decisionmaking “continues
beyond adolescence and into the mid-20’s” (maj. opn., ante, at
p.13 [citing legislative history]).
Parole eligibility is now available to young adult offenders
serving sentences for crimes committed before age 26, but with
exceptions. (Pen. Code, § 3051; undesignated citations are to
the Penal Code.) In 1989, at age 25, appellant Tony Hardin
killed his elderly neighbor in the course of robbing her, and he
was convicted of special-circumstance murder and sentenced to
life imprisonment without the possibility of parole (LWOP). The
parole eligibility scheme from its inception has excluded young
1
PEOPLE v. HARDIN
Liu, J., dissenting
offenders sentenced to LWOP. That exclusion has been lifted
for juvenile offenders (§ 3051, subd. (b)(4)), but it still applies to
individuals like Hardin who committed their crimes between
the ages of 18 and 25 (id., subd. (h)), even though it is
undisputed that the Legislature’s concerns about youth
offenders’ diminished culpability and capacity for rehabilitation
are not “crime-specific.” (Miller v. Alabama (2012) 567 U.S. 460,
473 (Miller); see maj. opn., ante, at p. 27.) Hardin says this
exclusion violates equal protection of the laws, and he is right.
Today’s opinion rationalizes the exclusion by imputing to
the Legislature a purpose — calibrating “culpability and the
appropriate level of punishment for certain very serious crimes”
(maj. opn., ante, at p. 26) — that is nowhere stated in the statute
or its legislative history. It then posits that special-
circumstance murder is generally distinguishable from simple
first degree murder in terms of culpability (id. at pp. 33–42
despite strong evidence to the contrary. According to the court,
nothing more is required under rational basis review.
Although I agree that rational basis review applies to
Hardin’s claim, I disagree with how the court has applied it here.
Today’s opinion ignores the considerable variation and nuance
in our case law applying rational basis review and undertakes
the sort of lax analysis that has become typical “ ‘[i]n areas of
social and economic policy.’ ” (Warden v. State Bar (1999) 21
Cal.4th 628, 644 (Warden).) But the issue in this case is a far
cry from, say, whether the State Bar may exempt retired judges
from continuing education requirements applicable to other
licensed attorneys. (Id. at p. 633.) Hardin, who is Black, is
challenging a law that spells the difference between dying in
prison and having a chance to earn freedom. The law targets a
class of offenders who are overwhelmingly Black or Hispanic,
2
PEOPLE v. HARDIN
Liu, J., dissenting
and whose crimes — no less than the crimes of other youth
offenders — reflect the “transient rashness, proclivity for risk,
and inability to assess consequences” that are characteristic of
young minds still undergoing neurological development.
(Miller, supra, 567 U.S. at p. 472.) In light of today’s decision,
nearly 3,000 inmates continue to be denied any chance to
demonstrate — as no doubt many could — that as mature adults
they are more than the worst thing they ever did in their youth.
We have applied rational basis review more rigorously in
cases with lower stakes. Rational basis review “require[s] the
court to conduct ‘a serious and genuine judicial inquiry into the
correspondence between the classification and the legislative
goals.’ ” (Newland v. Board of Governors (1977) 19 Cal.3d 705,
711 (Newland).) Here, such inquiry reveals that the exclusion
of young offenders convicted of special-circumstance murder is
irrational when measured against the Legislature’s stated
purpose for establishing and expanding youth offender parole
eligibility. And even if we were to impute a purpose of excluding
young offenders who have committed the most serious crimes,
the exclusion of those convicted of special-circumstance murder
does not withstand scrutiny. That is because, as the Court of
Appeal found, they are not meaningfully distinguishable from
young offenders convicted of simple first degree murder, a group
that is parole eligible under the statute.
Today’s opinion concludes by echoing judges throughout
the state who have urged the Legislature to reconsider the
statute. (Maj. opn., ante, at pp. 42–43.) One can hope the
Legislature will take up the invitation, but that is no salve for
what should have happened here. It is indeed imperative that
“courts act as courts” (maj. opn., ante, at p. 45), and in our
system of government, courts are the ultimate guarantor of
3
PEOPLE v. HARDIN
Liu, J., dissenting
constitutional rights against arbitrariness or excesses of
majoritarian rule. Although courts owe deference to the
democratic process, deference is not abdication. Upon a serious
and genuine judicial inquiry, it is evident that the exclusion of
persons convicted of special-circumstance murder from youth
offender parole eligibility does not meet the basic test of
rationality. I respectfully dissent.
I.
While I agree that rational basis review is the appropriate
equal protection standard in this case, today’s opinion largely
ignores the way this standard has been articulated and applied
in our case law. One feature that distinguishes our equal
protection doctrine from its federal counterpart is that the
standards of review under our doctrine are limited to two:
rational basis review and strict scrutiny. (See In re Marriage
Cases (2008) 43 Cal.4th 757, 832.) Unlike the federal courts, we
have declined to adopt intermediate scrutiny as a third standard
of review. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584,
595–603 (conc. opn. of Mosk, J.); id. at pp. 607–610 (conc. opn.
of Bird, C. J.).) This means that rational basis review, in our
doctrine, covers a wide range of cases and must be applied with
nuance and sensitivity if we are to avoid the “rigidity of [a] two-
tiered framework” that “applies either a standard that is
virtually always met [rational basis] or one that is almost never
satisfied [strict scrutiny].” (Id. at p. 598 (conc. opn. of Mosk, J.).
In the pages that follow, I discuss the rational basis standard in
depth. I regret the length of this discussion, but patient readers
will understand why careful attention to our case law is
essential to proper resolution of Hardin’s equal protection claim.
4
PEOPLE v. HARDIN
Liu, J., dissenting
A.
In Brown v. Merlo (1973) 8 Cal.3d 855 (Brown), we applied
rational basis review and struck down an automobile guest
statute that “deprive[d] an injured automobile guest of any
recovery for the careless driving of his host unless the injury
results from the driver’s willful misconduct or intoxication.” (Id.
at pp. 858–859, citing Veh. Code, former § 17158.) Our opinion
examined the two rationales traditionally offered for the
statute — protecting hospitality and preventing collusive
lawsuits — and rejected both with extensive analysis. As to
protecting hospitality, the court found this rationale
underinclusive in that it “provides no explanation for the
statute’s differential treatment of automobile guests as
distinguished from other guests, or indeed, all other recipients
of hospitality.” (Brown, at p. 864.) Further, we said that any
interest in protecting drivers from claims by “ungrateful” guests
had been undermined by the advent of widespread liability
insurance. (Id. at p. 868; see id. at p. 869 [“a classification which
once was rational because of a given set of circumstances may
lose its rationality if the relevant factual premise is totally
altered”].) As to preventing collusive lawsuits, the court
explained that “it is unreasonable to eliminate causes of action
of an entire class of persons simply because some undefined
portion of the designated class may file fraudulent lawsuits.”
(Id. at p. 875.) “[B]y broadly prohibiting all automobile guests
from instituting causes of action for negligence because a small
segment of that class may file collusive suits, the guest statute
presents a classic case of an impermissibly overinclusive
classification scheme . . . .” (Id. at p. 876.
The court in Brown did not rationalize the statute’s
underinclusivity by saying that a legislature “may take one step
5
PEOPLE v. HARDIN
Liu, J., dissenting
at a time, addressing itself to the phase of the problem which
seems most acute to the legislative mind.” (Williamson v. Lee
Optical of Oklahoma, Inc. (1955) 348 U.S. 483, 489 (Lee
Optical).) Nor did Brown rationalize the statute’s
overinclusivity by saying that a classification does not fail
rational basis review “simply because [it] ‘is not made with
mathematical nicety or because in practice it results in some
inequality,’ ” or that practical problems of government “ ‘may
justify, if they do not require, rough accommodations — illogical,
it may be, and unscientific.’ ” (Dandridge v. Williams (1970) 397
U.S. 471, 485.) In fact, Brown began its discussion of the
rational basis standard by observing that a classification “ ‘must
rest upon some ground of difference having a fair and
substantial relation to the object of the legislation,’ ” (Brown,
supra, 8 Cal.3d at p. 681, italics omitted, quoting Reed v. Reed
(1971) 404 U.S. 71, 76 (Reed).) Although Reed presaged the
development of intermediate scrutiny under federal law (see
Craig v. Boren (1976) 429 U.S. 190, 197–199, 204; Frontiero v.
Richardson (1973) 411 U.S. 677, 682–684, 690–691 (plur. opn.)),
Brown assimilated it into our explication of rational basis
review.
The next year, this court in D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1 (D’Amico) invalidated statutes
that barred persons with osteopathic training (holders of O.D.
degrees) from obtaining a physician’s license available to
persons with allopathic training (holders of M.D. degrees). (Id.
at p. 23.) We began by explaining that rational basis review, not
strict scrutiny, applies to occupational licensing laws. (Id. at
pp. 16–18.) We then noted the Attorney General’s admissions
“(1) that osteopathy, like allopathy, is a complete school of
medicine and surgery whose practitioners successfully engage
6
PEOPLE v. HARDIN
Liu, J., dissenting
in the full range of activities commonly thought of as
constituting medical science . . . , and (2) that there exists in the
state examining and licensing boards the technical capacity to
screen osteopathic applicants for licensure, as allopathic
applicants are now screened, so as to insure that the people of
the state will be protected from incompetent and unqualified
practitioners.” (Id. at p. 23.) “This showing,” we said,
“demonstrates beyond peradventure of a doubt that there exists
no rational relationship between the protection of the public
health and the exclusion from licensure of all medical
practitioners who . . . hold D.O. rather than M.D. degrees.”
(Ibid.) We further said that in light of the admissions above, the
same result would obtain even if “evidence might show
differences of emphasis and quality between osteopathic
training and allopathic training.” (Id. at p. 24.) We did not posit
that the Legislature could proceed “one step at a time” in
protecting public health (Lee Optical, supra, 348 U.S. at p. 489
or that the additional cost of screening osteopathic applicants
for licensure could justify the exclusion (cf. Reed, supra, 404 U.S.
at p. 76 [rejecting administrative efficiency as a valid rationale
for an otherwise “arbitrary legislative choice”]).
Three years later, in Newland, supra, 19 Cal.3d 705, we
applied rational basis review and invalidated a statute that
barred persons with a misdemeanor conviction, but not persons
with a felony conviction, from eligibility for a teaching
credential. (Id. at p. 707.) The differential treatment turned on
the fact that one of the statutory eligibility requirements was a
certificate of rehabilitation, which was available to felons but
not misdemeanants. (Ibid.) We speculated that the certificate
requirement “may simply be a case of legislative oversight — a
failure to realize that this requirement would block any relief to
7
PEOPLE v. HARDIN
Liu, J., dissenting
a misdemeanant.” (Id. at p. 712.) But we did not rest our
reasoning on that ground. Instead, we said “our inquiry must
begin with an identification of the purpose of [the statute] so
that we may determine whether the statutory classification . . .
rationally relates to that purpose.” (Id. at p. 711.) We
determined that the credentialing statute’s purpose was “to
protect the students, faculty and others who might be harmed
by the employment of an unfit teacher.” (Id. at pp. 711–712.
We then explained: “This statutory discrimination against
misdemeanants can claim no rational relationship to the
protective purpose of [the statute]. . . . The Legislature could
not possibly or sensibly have concluded that misdemeanants, as
opposed to felons, constitute a class of particularly incorrigible
offenders who are beyond hope of rehabilitation.” (Id. at p. 712.
In applying rational basis review, Newland hewed to the
statute’s clear purpose and evaluated the classification against
that purpose. We did not posit any competing purposes, though
it would have been easy to do so: The state could have had an
interest in minimizing the costs associated with determining
which persons with criminal history have been rehabilitated
and are thus fit to be a teacher. Whereas an existing
mechanism (a certificate of rehabilitation) simplified that
determination for persons with a felony conviction, no such
mechanism existed for persons with a misdemeanor conviction,
a far larger group. Educational institutions, if they wished to
screen such applicants, would have needed to incur the burden
of conducting their own fitness hearings, as Newland
acknowledged. (Newland, supra, 19 Cal.3d at p. 714, fn. 11.
Had we taken the view that “ ‘[i]f a plausible basis exists for the
disparity, courts may not second-guess its “ ‘wisdom, fairness, or
logic’ ” ’ ” (maj. opn., ante, at p. 23), Newland would have come
8
PEOPLE v. HARDIN
Liu, J., dissenting
out the other way. But we did not deploy such reasoning. After
canvassing various formulations of the rational basis standard,
we said that “[a]ll of the formulas require the court to conduct ‘a
serious and genuine judicial inquiry into the correspondence
between the classification and the legislative goals’ ” and that
such inquiry demonstrated the unconstitutionality of the
classification at issue. (Newland, at p. 711, italics added.
The following year, we applied the inquiry as stated in
Newland to invalidate a Vehicle Code provision barring
passengers who own the car in which they were injured from
suing the negligent driver: “[H]aving conducted a ‘serious and
genuine judicial inquiry into the correspondence between the
[statutory] classification and the legislative goals’ [citation to
Newland], we are convinced that the disparate treatment
accorded by the statute is not rationally related to a realistically
conceivable legislative purpose.” (Cooper v. Bray (1978) 21
Cal.3d 841, 855 (Cooper).) From “the origin and legislative
history of the provision,” we found it “rather clear” that “the
provision was not intended to impose special burdens on owner-
passengers but rather proposed to place such owner-passengers
on an equal plane with most other injured automobile
passengers” at a time when the Vehicle Code also barred
recovery by nonpaying automobile guests. (Id. at p. 848.
Because the court in Brown had since invalidated the
automobile guest statute, the bar on recovery by owner-
passengers no longer “ ‘further[ed] the legislative purpose of
according owner-passengers the same treatment as such guests,
but rather defeat[ed] that purpose by singling out owner-
passengers for differential treatment from all other automobile
accident victims.’ ” (Id. at p. 851.
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Liu, J., dissenting
In evaluating the classification against the statute’s
actual purpose, we declined to impute other purposes to the
Legislature, such as an “interest in promoting automobile safety
by encouraging the careful selection and supervision of
permissive drivers by car owners.” (Cooper, supra, 21 Cal.3d at
p. 851.) We found the statute overinclusive with regard to such
an interest because it “bar[red] recovery by all owner-
passengers, including the most careful owners who selected the
most cautious drivers and who scrupulously supervised the
driving.” (Id. at p. 852.) We also explained that if the
Legislature had intended “to encourage care in the selection and
supervision of drivers,” then the statutory exceptions allowing
recovery by owner-passengers for injury caused by a driver’s
intoxication or willful misconduct “obviously make[] no sense.”
(Ibid.) We were unmoved by the dissent’s argument that “the
Legislature, pursuing the clearly legitimate goal of achieving a
fair distribution of liability for damage caused by unreasonable
conduct,” could have reasonably “weighed the conflicting
interests of driver and owner and concluded that the driver
should be protected, given the owner’s selection of, and
supervision over, the driver,” even if this “reasoning was unwise,
or . . . the purpose of the Legislature could have been better
furthered by another means.” (Id. at pp. 857–858 (dis. opn. of
Richardson, J.).
Our approach in Cooper, Newland, and earlier cases was
consonant with a contemporaneous high court case, United
States Department of Agriculture v. Moreno (1973) 413 U.S. 528
(Moreno), which invalidated a statute excluding households
“containing an individual who is unrelated to any other member
of the household” from food stamp eligibility. (Id. at p. 529.
Applying rational basis review, the high court quoted the Food
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PEOPLE v. HARDIN
Liu, J., dissenting
Stamp Act’s stated purpose “ ‘[t]o alleviate . . . hunger and
malnutrition’ ” among “ ‘low-income households’ ” and
concluded that “[t]he challenged statutory classification . . . is
clearly irrelevant to the stated purposes of the Act.” (Id. at
pp. 533–534.) The court then considered whether “Congress
might rationally” have had an “interest in minimizing fraud in
the administration of the food stamp program.” (Id. at p. 535.
It rejected this rationale on the grounds that the statute already
contained other antifraud provisions (id. at pp. 536–537) and
that the exclusion of unrelated households “in practical
operation” did not target “persons who are ‘likely to abuse the
program’ ” (id. at p. 538). The court did not posit that Congress
could have desired a belt-and-suspenders approach to
combating fraud. Nor did it accept the generalization that
limiting food stamps to related households “provides a
guarantee . . . that the household exists for some purpose other
than to collect federal food stamps” (id. at p. 546 (dis. opn. of
Rehnquist, J.), citing evidence to the contrary (id. at pp. 537–
538 (maj. opn.)). Like Cooper, Moreno evaluated the
classification against the stated legislative purpose and declined
to impute other purposes, and the high court did not defer to
plausible yet unsubstantiated generalizations, even while
acknowledging that rational basis review “does not require that
every classification be drawn with precise ‘ “mathematical
nicety.” ’ ” (Moreno, at p. 538.
We continued to apply this mode of analysis in Hays v.
Wood (1979) 25 Cal.3d 772 (Hays), where we invalidated a voter-
enacted disclosure law that required public officials who were
lawyers or brokers to disclose any source of payments equal to
or greater than $1,000, but which required filers with other
business interests to disclose only sources of payments equal to
11
PEOPLE v. HARDIN
Liu, J., dissenting
or greater than $10,000. (Id. at p. 795.) We again applied
Newland’s formulation of the rational basis inquiry (Hays, at
p. 787) and focused on the legislative purpose stated in “the Act
itself,” i.e., “insuring disclosure of income which may be
materially affected by the official actions of the filing public
official” (id. at p. 788). We recognized that the potential for
conflict of interest is a function of an official’s “actual profits”
derived from business dealings (ibid.) and that providers of
professional services have “substantially greater” profit margins
than business entities that make or sell goods (id. at p. 789).
But this distinction did not justify “special treatment” of lawyers
and brokers as compared to other professionals with comparable
profit margins. (Ibid.) We said this “ ‘underinclusiv[ity]’ ” could
not be justified on the ground that “a legislative body . . . need
not attack all phases [of a problem] at once.” (Id. at p. 790.
“[W]hen the legislative body proposes to address an area of
concern in less than comprehensive fashion by ‘striking the evil
where it is felt most’ [citation], its decision as to where to ‘strike’
must have a rational basis in light of the legislative objectives.”
(Id. at p. 791.
We then proceeded to reject four possible bases for
distinguishing lawyers from “all others similarly situated in
terms of profit margin.” (Hays, supra, 25 Cal.3d at p. 792.) It
was argued that lawyers are more likely to have potential
conflicts because they often represent private interests in
dealings with government; we said other professionals may have
a higher volume of clients, making potential conflicts more
frequent. (Id. at pp. 792–793.) It was argued that “the unique
nature” of the lawyer-client relationship, including “habits of
loyalty,” make lawyers more prone to conflict; we said the
professional relationships of physicians and psychotherapists
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PEOPLE v. HARDIN
Liu, J., dissenting
are at least as “personal and intense.” (Id. at p. 793.) It was
argued that “the customary practice of many lawyers of
accepting retainers” can serve as “a unique device for
channeling money in payment for public favors”; we said a
“disguised payment for political favor” can occur “in any number
of ways.” (Id. at pp.793, 794.) And it was argued that the public
may perceive a lawyer, “ ‘more so than . . . persons in other
professions,’ ” as promoting client interests when serving as a
public official; we said this was a “curious assertion” that
provided no basis for “significantly different standards of
disclosure for members of different professions.” (Id. at pp. 794,
795.) We thus rejected a series of unsubstantiated assertions en
route to holding that the classification “fails to exhibit any fair
and reasonable relationship to the stated legislative objectives.”
(Id. at p. 795.
Another case in this line was United States Steel Corp. v.
Public Utilities Commission (1981) 29 Cal.3d 603 (U.S. Steel),
which involved a challenge to a Public Utilities Commission
order exempting commodities carried by private vessels (as
opposed to common carriers) from intrastate minimum shipping
rates. The effect of this order was to make foreign steel cheaper
to transport compared to domestic steel. (Id. at p. 607.) We
annulled the order on the ground that the Commission had
adopted it without having satisfied its statutory duty to “assess
the economic impact of its action,” including whether the
exemption would drive shippers out of business and cost jobs.
(Id. at p. 610.) “To guide the commission in further proceedings”
(ibid.), we went on to discuss the requirements of equal
protection in this context. We again quoted Newland’s
formulation of the rational basis inquiry and observed that
“[t]he aim of minimum rate regulation is to preclude destructive
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PEOPLE v. HARDIN
Liu, J., dissenting
rate practices and to provide for movement at the lowest rates
compatible with the maintenance of adequate transportation
service. [Citations.] Rates below the minimum do not serve that
aim absent some showing of a difference in cost in hauling
private-vessel steel as compared with domestic steel, or of a
difference regarding destructive rate practices. There is no
showing here.” (U.S. Steel, at p. 612.) A further argument for
the exemption was that the “difficulty in determining whether
imported steel has arrived via common carrier or private vessel”
would burden “truckers in determining the appropriate rate as
well as on the commission in enforcing minimum rates.” (Id. at
p. 613.) We said this concern was plausible, but “the
commission’s finding as to ‘difficulty’ seems inadequately
supported by the record,” and the equal protection issue could
not be settled “[w]ithout a more complete record.” (Id. at p. 614.
In sum, we again declined to accept plausible yet
unsubstantiated assertions under rational basis review.
B.
A few years after U.S. Steel, we decided a series of cases
rejecting equal protection challenges to various provisions of the
Medical Injury Compensation Reform Act of 1975 (MICRA).
(See American Bank & Trust Co. v. Community Hospital (1984
36 Cal.3d 359, 370–374 (American Bank); Barme v. Wood (1984
37 Cal.3d 174, 181–182 (Barme); Roa v. Lodi Medical Group,
Inc. (1985) 37 Cal.3d 920, 930–931 (Roa); Fein v. Permanente
Medical Group (1985) 38 Cal.3d 137, 161–164 (Fein).) Our
language in those cases featured more deferential formulations
of rational basis review. (See, e.g., American Bank, at p. 371
[“the equal protection clause does not prohibit a Legislature
from implementing a reform measure ‘one step at a time’
[citation], or prevent it ‘from striking the evil where it is felt
14
PEOPLE v. HARDIN
Liu, J., dissenting
most’ ”]; id. at p. 374 [“the constitutionality of a measure under
the equal protection clause does not depend on a court’s
assessment of the empirical success or failure of the measure’s
provisions”].) But we observed that “our application of equal
protection principles in [the MICRA cases] is not inconsistent
with the principles enunciated in [Brown and Cooper] or like
cases. As Cooper explains, . . . what is required is that the court
‘conduct “a serious and genuine judicial inquiry into the
correspondence between the classification and the legislative
goals.” ’ (21 Cal.3d at p. 848 [quoting Newland v. Board of
Governors (1977) 19 Cal.3d 705, 711, italics added in Cooper].
We have conducted such an inquiry in all of these cases . . . .”
(Fein, at p. 163.
Fein is illustrative. The plaintiff argued that MICRA’s
$250,000 cap on noneconomic damages violates equal protection
because it “discriminates between medical malpractice victims
and other tort victims” and because it “discriminates within the
class of medical malpractice victims, denying a ‘complete’
recovery of damages only to those malpractice plaintiffs with
noneconomic damages exceeding $250,000.” (Fein, supra, 38
Cal.3d at pp. 161–162.) As to the first contention, we cited our
earlier cases that had extensively examined the legislative
history of MICRA showing that the Legislature, with ample
basis, had targeted medical malpractice cases for reform
because of “an insurance ‘crisis’ in that particular area.” (Fein,
at p. 162, citing American Bank, Barme, and Roa.) As to the
second contention, we said “the Legislature clearly had a
reasonable basis” for seeking cost savings “only by limiting the
recovery of noneconomic damage.” (Fein, at p. 162.) While
acknowledging other plausible means of distributing cost
savings across malpractice plaintiffs, we explained that the size
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PEOPLE v. HARDIN
Liu, J., dissenting
and unpredictability of noneconomic damages awards rationally
justified the Legislature’s approach. (Id. at pp. 162–163.) We
noted that “the unpredictability of the size of large noneconomic
damage awards” was “[o]ne of the problems identified in the
legislative hearings” (id. at p. 163), and we cited legal
scholarship and an American Bar Association report to show
that the issue was one on which “reasonable persons can
certainly disagree” (id. at p. 160; see id. at pp. 159–160 &
fns. 16–17). Fein did not rely on imputed legislative purposes or
unsubstantiated assertions to uphold the challenged provision.
A subsequent case, Warden, supra, 21 Cal.4th 628, marks
perhaps our most deferential application of rational basis
review. We rejected an equal protection challenge to an
exemption for retired judges, elected officials, and law professors
from continuing education requirements that are generally
applicable to practicing attorneys. (Id. at p. 634.) We said “it
would not have been irrational to conclude that the attorneys in
each of the exempted categories, as a general matter, are less
likely than other attorneys to represent clients on a full-time
basis, thus rendering the need for a continuing education
requirement less vital,” and that “in view of their particular
professional roles and experience, the attorneys in each of the
exempt classes (again, as a general matter) are less likely than
lawyers in general to need continuing education courses in order
to be familiar with recent legal developments or to remain
competent practitioners.” (Id. at pp. 645–646.
The Court of Appeal had observed that there was “ ‘no
support’ in the legislative history . . . to indicate that these were
the actual explanations of the rationale or motivation for the
adoption of the exemptions.” (Warden, supra, 21 Cal.4th at
pp. 649–650.) Citing federal case law, we said that “when there
16
PEOPLE v. HARDIN
Liu, J., dissenting
is a reasonably conceivable justification for a classification, ‘[i]t
is . . . “constitutionally irrelevant whether [the] reasoning in fact
underlay the legislative decision.” ’ ” (Id. at p. 650, quoting
United States Railroad Retirement Board. v. Fritz (1980) 449
U.S. 166, 179.) We also said, citing federal case law, that “ ‘a
legislative choice . . . may be based on rational speculation
unsupported by evidence or empirical data’ ” (Warden, at p. 650,
italics added, quoting Federal Communications Commission v.
Beach Communications, Inc. (1993) 508 U.S. 307, 315 (Beach
Communications) and that “ ‘reform may take one step at a
time’ ” (Warden, at p. 645, quoting Lee Optical, supra, 348 U.S.
at p. 489).
As two dissenting Justices observed, Warden relied
heavily on federal authority in elaborating a highly deferential
rational basis test without grappling with the fact that whereas
it is one of three levels of scrutiny in federal equal protection
doctrine, our own case law “has not slavishly followed decisions
of the federal high court” and has never adopted intermediate
scrutiny. (Warden, supra, 21 Cal.4th at pp. 652–653 (dis. opn.
of Kennard, J.); id. at p. 661 (dis. opn. of Brown, J.) [“Our state
equal protection jurisprudence grew out of a recognition of the
inadequacy of federal standards.”].) Justice Brown noted that
our decision in Hays had “expressly rejected” Lee Optical in
saying that “ ‘the legislative body, when it chooses to address a
particular area of concern in less than comprehensive fashion by
merely “striking the evil where it is felt most” [citation] may not
do so wholly at its whim.’ [Citation.] Rather ‘its decision as to
where to “strike” must have a rational basis in light of the
legislative objectives.’ ” (Warden, at p. 664 (dis. opn. of Brown,
J.), quoting Hays, supra, 25 Cal.3d at pp. 790, 791.) “[O]ur state
Constitution insists on greater precision . . . . Rather than
17
PEOPLE v. HARDIN
Liu, J., dissenting
merely ‘rubberstamping’ the legislative categories at issue here,
we should be engaging in ‘ “a serious and genuine judicial
inquiry into the correspondence between the classification and
the legislative goals” ’ (Newland v. Board of Governors, supra,
19 Cal.3d at p. 711), and, more particularly, we should be asking
whether the legislative classifications substantially advance the
legislative purposes without being ‘grossly overinclusive’ or
‘underinclusive.’ (Brown v. Merlo, supra, 8 Cal.3d at p. 877 &
fn. 17.)” (Warden, at pp. 664–665 (dis. opn. of Brown, J.).
Warden made clear that the standards it elaborated apply
“ ‘[i]n areas of social and economic policy’ ” (Warden, supra, 21
Cal.4th at p. 644, quoting Beach Communications, supra, 508
U.S. at p. 313), and issues such as continuing legal education
requirements or the definition of a “cable system” (Beach
Communications, at pp. 310–311) are paradigmatic examples.
Warden’s deferential language has seeped into our case law
addressing equal protection challenges to criminal statutes,
with no examination of how our doctrine has evolved differently
from its federal counterpart. (See People v. Turnage (2012) 55
Cal.4th 62, 75, 79 (Turnage); People v. Johnson (2015) 60 Cal.4th
871, 887 (Johnson); People v. Chatman (2018) 4 Cal.5th 277, 289
(Chatman).) But even in those cases, we have not actually
employed the full extent of deference that Warden’s language
contemplates.
In Turnage, we upheld a statute allowing felony treatment
of placing a false bomb without proof of causing sustained fear,
even though a separate statute requires proof of sustained fear
for felony treatment of placing a false weapon of mass
destruction (WMD). (Turnage, supra, 55 Cal.4th at pp. 67–68.
We said the differential treatment was rational because “[i]t is
conceivable from a legislative perspective” that false WMDs,
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PEOPLE v. HARDIN
Liu, J., dissenting
unlike false bombs, “would not necessarily be recognized or
cause fear, even where it is detected and was intended to do so.”
(Id. at p. 68.) But this rationale was not merely “conceivable”;
the history of the false WMD statute implied that the
Legislature had actually considered it. Extensively citing a
Senate committee report, we observed that “[t]he new false
WMD statute was said to be inspired by the false bomb statute”
(id. at p. 79) and that “in acknowledging the similarity between
the ‘wobbler’ provisions of [the false WMD statute] and [the false
bomb statute], the Legislature implied that it was aware of the
substance of the latter statute, that proof of sustained fear was
not required in felony false bomb cases, and that both felonies
nonetheless involved the same level of ‘violent’ fear. . . . In other
words, a showing of sustained fear for felonies under the false
WMD statute was necessary to reflect the same level of violent
fear that the Legislature assumed was present in false bomb
cases . . . .” (Id. at p. 80.) “[T]he Senate Report implicitly shows
a rational connection between the disparate role of sustained
fear in the false bomb and false WMD statutes, and the purpose
such disparity was apparently meant to serve.” (Id. at pp. 79–
80.
In Johnson, we upheld a statutory scheme allowing
discretionary sex offender registration for persons convicted of
unlawful sexual intercourse with a minor, while imposing
mandatory registration for persons convicted of crimes involving
other sexual acts with a minor, including nonforcible oral
copulation. (Johnson, supra, 60 Cal.4th at pp. 874–875.) We
said that “intercourse is unique in its potential to result in
pregnancy and parenthood. Given that unique potential,
legislative concerns regarding teen pregnancy and the support
of children conceived as a result of unlawful sexual intercourse
19
PEOPLE v. HARDIN
Liu, J., dissenting
provide more than just a plausible basis for” the disparate
treatment. (Id. at p. 875.) This rationale was not hypothetical.
We examined the history of the statute against unlawful sexual
intercourse and observed that the Legislature, by separating
this offense from the general rape statute, “sought to eliminate
. . . the social stigma associated with the rape label so that
offenders could more readily obtain employment and support
children conceived as a result of such intercourse. [Citations to
legislative history.] This history confirms that the potential for
pregnancy and parenthood has, in fact, influenced legislative
decisionmaking regarding unlawful intercourse with minors.”
(Id. at p. 885; see ibid. [citing subsequent legislative concerns
about teen pregnancy and birth rates resulting from unlawful
sexual activity between adult males and teenage girls, and
implications for public welfare and health care expenses].) We
said this actual legislative concern provided a rational basis for
allowing trial courts not to order registration where it “might
cause economic or other hardship to a child born to the minor
victim and the adult offender,” while requiring registration for
persons convicted of other unlawful sexual activity with minors.
(Id. at p. 886.
Similarly, in Chatman, we upheld a statute barring
former probationers but not former prisoners from eligibility for
a certificate of rehabilitation in certain circumstances.
(Chatman, supra, 4 Cal.5th at pp. 282–283.) Our analysis
focused on the state’s interest in avoiding the costs associated
with extending certificates of rehabilitation to former
probationers, a group much larger than former prisoners. (Id.
at pp. 291–292.) Although we said the rationale for a legislative
classification need not have been articulated by lawmakers and
does not need to be empirically substantiated (id. at p. 289), in
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PEOPLE v. HARDIN
Liu, J., dissenting
fact we observed that legislative history “provide[s] at least
some indication that this cost concern figured in legislative
deliberations” (id. at p. 292), and we went on to cite “data” that
substantiated the cost concern (id. at p. 293). In other words,
Chatman addressed what appeared to be the actual rationale for
the classification and found it had some empirical support. (See
also People v. Wilkinson (2004) 33 Cal.4th 821, 834, 839
[legislative history showed rationale for statute allowing
potentially harsher treatment of battery on a custodial officer
without injury than such battery with injury].
C.
In sum, this court’s articulation and application of rational
basis review has not marched in lock step with federal authority.
Our approach is deferential but far from toothless; our case law,
though not entirely uniform, reveals several recurring themes:
In conducting “ ‘a serious and genuine judicial inquiry into the
correspondence between the classification and the legislative
goals’ ” (Newland, supra, 19 Cal.3d at p. 711), we have focused
on actual legislative purposes instead of imputing hypothetical
ones, and we have looked for empirical support instead of relying
on conjecture or unsubstantiated assertions. Although we “do
not require absolute precision in the designation of
classifications,” we also “do not tolerate classifications which are
so grossly overinclusive as to defy notions of fairness or
reasonableness.” (Brown, supra, 8 Cal.3d at p. 877.) And while
the Legislature may proceed incrementally, we have said it
must do so rationally in light of the legislative objectives and
“not . . . wholly at its whim.” (Hays, supra, 25 Cal.3d at p. 790.
Today’s opinion ignores this case law and claims that I am
offering “an argument for reconsidering rational basis review.”
21
PEOPLE v. HARDIN
Liu, J., dissenting
(Maj. opn., ante, at p. 23, fn. 3.) To the contrary, it is the court’s
refusal to consider, not reconsider, our precedent that is the
problem here. The principles above have sturdy foundations in
what our cases say and, perhaps more importantly, in what they
actually do. Although Warden took a more deferential approach,
today’s opinion does not cite Warden for an obvious reason: We
are not dealing with a matter at all similar to who is or isn’t
subject to continuing legal education requirements. The case
before us concerns which young offenders will be condemned to
die in prison and which will have a meaningful chance to earn
release. Instead of measuring the challenged classification
against the Legislature’s stated purpose in enacting the youth
offender parole statute, today’s opinion upholds the exclusion of
young offenders convicted of special circumstance murder by
imputing a different purpose that is nowhere mentioned in the
statute’s text or legislative history, and that even on its own
terms does not provide a rational basis for treating the excluded
group differently from young offenders convicted of first degree
murder. The court’s reasoning cannot sustain the result here.
II.
The provision at issue — section 3051, subdivision (h) —
is part of the youth offender parole statute enacted by the
Legislature in 2013. I begin with some background on the
statute and then explain its constitutional infirmity.
A.
The Legislature made clear the purpose of section 3051 in
the statute itself. Its opening provision, as originally enacted,
says in full: “The Legislature recognizes that youthfulness both
lessens a juvenile’s moral culpability and enhances the prospect
that, as a youth matures into an adult and neurological
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PEOPLE v. HARDIN
Liu, J., dissenting
development occurs, these individuals can become contributing
members of society. The purpose of this act is to establish a
parole eligibility mechanism that provides a person serving a
sentence for crimes that he or she committed as a juvenile the
opportunity to obtain release when he or she has shown that he
or she has been rehabilitated and gained maturity, in
accordance with the decision of the California Supreme Court in
People v. Caballero (2012) 55 Cal.4th 262 and the decisions of
the United States Supreme Court in Graham v. Florida (2010
560 U.S. 48 [(Graham)], and Miller v. Alabama (2012) [567 U.S.
460]. Nothing in this act is intended to undermine the
California Supreme Court’s holdings in In re Shaputis (2011) 53
Cal.4th 192, In re Lawrence (2008) 44 Cal.4th 1181, and
subsequent cases. It is the intent of the Legislature to create a
process by which growth and maturity of youthful offenders can
be assessed and a meaningful opportunity for release
established.” (Stats. 2013, ch. 312, § 1 [Sen. Bill No. 260].) The
only references to culpability in the statute are the Legislature’s
recognition of the diminished culpability of youth (ibid.) and the
mandate that any psychological evaluations or risk assessments
used by the parole board “shall take into consideration the
diminished culpability of youth as compared to that of adults”
(§ 3051, subd. (f)(1)).
Subsequently, in light of more “[r]ecent scientific evidence
on adolescent and young adult development and neuroscience
show[ing] that certain areas of the brain — particularly those
affecting judgment and decision-making — do not fully develop
until the early- to mid-20s” (Sen. Com. on Public Safety, Rep. on
Sen. Bill No. 261 (2015–2016 Reg. Sess.) Apr. 28, 2015, p. 3), the
Legislature amended the parole eligibility scheme — first, to
include youth offenders who committed crimes before the age of
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PEOPLE v. HARDIN
Liu, J., dissenting
23 (Stat. 2015, ch. 471, § 1, Sen. Bill No. 261 (2015–2016 Reg.
Sess.) § 1), and then, to include offenders who committed crimes
before age 26 (Stat. 2017, ch. 675, § 1, Assem. Bill No. 1308
(2017–2018 Reg. Sess.) § 1). A committee report on the latter
bill states: “The rationale, as expressed by the author and
supporters of this bill, is that research shows that cognitive
brain development continues into the early 20s or later. The
parts of the brain that are still developing during this process
affect judgment and decision-making, and are highly relevant to
criminal behavior and culpability. (See Johnson, et al.,
Adolescent Maturity and the Brain: The Promise and Pitfalls of
Neuroscience Research in Adolescent Health Policy, Journal of
Adolescent Health (Sept. 2009); National Institute of Mental
Health, The Teen Brain: Still Under Construction (2011).) ‘The
development and maturation of the prefrontal cortex occurs
primarily during adolescence and is fully accomplished at the
age of 25 years. The development of the prefrontal cortex is very
important for complex behavioral performance, as this region of
the brain helps accomplish executive brain functions.’ [Citation
to Arain et al., Maturation of the Adolescent Brain (2013) 9
Neuropsychiatric Disease & Treatment 449.]” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 1308
(2017–2018 Reg. Sess.) Sept. 4, 2017, pp. 4–5.
As today’s opinion acknowledges, “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.” (Maj. opn., ante, at p. 26.) “The Legislature
enacted section 3051 to bring California juvenile sentencing law
into line with Graham, Miller, and Caballero.” (Id. at p. 11.
Relying “not only on common sense — on what ‘any parent
24
PEOPLE v. HARDIN
Liu, J., dissenting
knows’ — but on science and social science,” those cases explain
that juveniles have an underdeveloped sense of responsibility,
vulnerability to negative influences and outside pressures, lack
of control over their own environment, and transitory traits that
are not fixed but developing — all of which mitigate their
culpability and point to their capacity for rehabilitation. (Miller,
supra, 567 U.S. at p. 471.) These attributes of youth also
diminish the traditional penological justifications of retribution,
deterrence, and incapacitation. (See id. at p. 472; Graham,
supra, 560 U.S. at pp. 71–73.) As indicated in the legislative
history, the Legislature had these concerns not only about
juveniles but also about young adults under the age of 26.
Further, there is no dispute that the scientific evidence
cited by the Legislature applies to young offenders across the
board. Nothing about the “distinctive (and transitory) mental
traits and environmental vulnerabilities” of youth offenders “is
crime-specific” (Miller, supra, 567 U.S. at p. 473), and the
Legislature nowhere suggested that young offenders who
commit certain crimes, including crimes punishable by LWOP,
are immune to those vulnerabilities or incapable of reform.
There is also no dispute that providing young offenders with a
meaningful opportunity for release in light of their capacity for
change is the only purpose stated by the Legislature in creating
and expanding the parole scheme. No other purpose is stated in
the statute or legislative history.
The implications for equal protection analysis are
straightforward, as the Court of Appeal discerned: “[I]f, as the
Legislature stated, the goal of section 3051 was to apply the
Miller youth-related mitigating factors to young adults up to the
age of 26 in light of neuroscience research that demonstrated
the human brain continues to develop into a person’s mid-20’s,
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PEOPLE v. HARDIN
Liu, J., dissenting
and thus to permit youth offenders a meaningful opportunity for
parole if they demonstrate increased maturity and impulse
control, then for that purpose there is no plausible basis for
distinguishing between same-age offenders based solely on the
crime they committed.” (People v. Hardin (2022) 84 Cal.App.5th
273, 288 (Hardin).) Just as there was no rational basis for
excluding persons with misdemeanor convictions from eligibility
for a teaching credential in Newland, or for excluding
osteopathic applicants from eligibility for medical licensure in
D’Amico, or for imposing more onerous disclosure rules on
lawyers than on other professionals in Hays, or for excluding
unrelated households from food stamp eligibility in Moreno,
there is no rational basis here for excluding inmates convicted
of special-circumstance murder from youth offender parole
eligibility. In each of the cited cases, the court evaluated the
classification against “the primary purpose” (maj. opn., ante, at
p. 26) of the statute and found the classification inconsistent
with that purpose. Those decisions did not impute additional,
unstated purposes that might have justified the challenged
classifications.
Nor did those decisions rely on the notion that legislative
bodies may proceed incrementally or train their attention
wherever they feel it is needed most. In Hays, we made clear
that when a legislature “chooses to address a particular area of
concern in less than comprehensive fashion,” “its decision as to
where to ‘strike’ must have a rational basis in light of the
legislative objectives.” (Hays, supra, 25 Cal.3d at p. 791.) To be
sure, equal protection doctrine gives legislators ample leeway to
avoid “all-or-nothing choices.” (Maj. opn., ante, at p. 45.) But if
the rational basis standard could be met by observing that the
challenged legislation reflects a political compromise, then
26
PEOPLE v. HARDIN
Liu, J., dissenting
virtually no enacted policy would ever fail rational basis review.
The Court of Appeal here rejected the argument that the
exclusion should be upheld “on the general principle that, when
addressing a problem, the Legislature may choose to proceed
incrementally,” aptly noting that “ ‘the fact that a line has to be
drawn somewhere does not justify its being drawn anywhere.’ ”
(Hardin, supra, 84 Cal.App.5th at pp. 290, 291.
B.
In reaching today’s holding, the court says the Legislature
had a second purpose when it expanded youth offender parole
eligibility to include young adult offenders: “[T]he structure and
history of the [parole eligibility] expansion make clear that the
Legislature sought to balance [its] primary objective with . . .
concerns about culpability and the appropriate level of
punishment for certain very serious crimes.” (Maj. opn., ante,
at p. 26.) Presumably the court points to “structure and history”
because the text of the original statute focuses solely on the
diminished culpability of youth and their capacity for
rehabilitation, and nothing in the text of the original statute or
subsequent expansions indicates concerns about culpability or
appropriate punishment for serious crimes. But neither
structure nor history helps the court’s argument either.
As for history, the court says “the legislative history
accompanying the amendments [expanding parole eligibility]
confirms that [crime-based distinctions] were deliberate
choices.” (Maj. opn., ante, at p. 26.) That is true, but I see no
probative value in quotations from legislative history observing
that the Legislature through multiple rounds of statutory
amendments retained distinctions based on the crime
committed. (Id. at pp. 26–27.) Those quotations simply describe
27
PEOPLE v. HARDIN
Liu, J., dissenting
what the statute does; they shed no light on the Legislature’s
rationale for the distinctions it drew. (Cf. Cooper, supra, 21
Cal.3d at p. 854 [“a suggested legislative purpose” of protecting
negligent drivers from liability to owner-passengers “does no
more than restate the terms of the statute itself and [does not]
indicate[] the general goal which the Legislature ostensibly
intended to promote in providing such ‘protection’ at owner-
passengers’ expense”].
As for structure, the court notes that the statute provides
for parole eligibility during a youth offender’s 15th, 20th, or 25th
year of incarceration depending on the controlling offense. (Maj.
opn., ante, at p. 27; see § 3051, subd. (b).) Based on the fact that
“the Legislature consciously drew lines that altered the parole
component of offenders’ sentences based not only on the age of
the offender (and thus the offender’s amenability to
rehabilitation) but also on the offense and sentence imposed,”
the court infers that those lines “necessarily reflect a set of
legislative judgments about the nature of punishment that is
appropriate for the crime.” (Maj. opn., ante, at p. 27.) As the
Court of Appeal explained, this “superficially plausible”
inference is implausible when one considers the role of the
controlling offense in the parole scheme. (Hardin, supra, 84
Cal.App.5th at p. 289.
The statute defines “ ‘controlling offense’ ” as “the offense
or enhancement for which any sentencing court imposed the
longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).) The
timing of parole eligibility is keyed to a person’s controlling
offense, not to the number of offenses or the aggregate sentence.
(Id., subd. (b).) This means that a young adult offender serving
an aggregate term of 85 years plus 189 years to life for two first
degree murders, six attempted premeditated murders, various
28
PEOPLE v. HARDIN
Liu, J., dissenting
gang and firearm enhancements, and other crimes (People v.
Harris (Dec. 5, 2019, B288611) [nonpub. opn.]) is eligible for
parole on the same timeline as a young adult offender serving
25 years to life for a single count of first degree murder (§ 190,
subd. (a)). It means that a young adult offender serving 80 years
to life for two gang-related attempted premeditated murders
with firearm enhancements (People v. Itehua (June 30, 2016,
B265575) [nonpub. opn.]) is eligible for parole on the same
timeline as a young adult offender convicted of a single
attempted murder with a 25-year firearm enhancement
(§ 12022.53, subd. (d)). And it means a young adult offender
sentenced to more than 100 years to life for six attempted
premeditated murders, mayhem, gang enhancements, and
multiple firearm offenses and enhancements (People v. Jimenez
(Apr. 20, 2007, B192157) [nonpub. opn.]) is eligible for parole on
the same timeline as a young adult offender convicted of a gang-
related felony in which an accomplice shot and injured a victim
(§ 12022.53, subd. (e)(1)). What legislature “concern[ed] about
culpability and the appropriate level of punishment for certain
very serious crimes” (maj. opn., ante, at p. 26) would write a
statute with these results?
Today’s opinion says “the statute’s ‘controlling offense’
framework does rely on a certain amount of generalization about
the relationship between the lengthiest individual sentence the
offender has received and the culpability of the underlying
criminal conduct.” (Maj. opn., ante, at p. 30.) I suppose “a
certain amount of generalization” is in the eye of the beholder,
but consider: There are literally thousands of sentences
encompassed by the provision establishing parole eligibility in
the 25th year of incarceration for young adult offenders whose
controlling offense carries a term of 25 years to life. (§ 3051,
29
PEOPLE v. HARDIN
Liu, J., dissenting
subd. (b)(3).) The examples above are easily multiplied. (See,
e.g., People v. Sepulveda (2020) 47 Cal.App.5th 291, 295–297 [90
years to life for first degree murder, three counts of attempted
premeditated murder, drive-by shooting, and firearm and gang
enhancements, committed before age 22]; People v. Jones (Dec.
30, 2020, E073115) [nonpub. opn.] [50 years to life sentence for
single count of first degree murder with firearm and gang
enhancements, committed at age 18]; People v. Kennedy (Jan.
15, 2020, B264661) [nonpub. opn.] [“sentence of life, plus 173
years and eight months,” for second degree murder, four counts
of attempted premeditated murder, shooting at an occupied
vehicle, and gang and firearm enhancements, committed at age
22]; People v. Windfield (Jan. 15, 2020, E055062) opn. ordered
nonpub. Apr. 22, 2020, S260848 [90 years to life for first degree
murder, attempted premeditated murder, assault with a
semiautomatic weapon, and gang and firearm enhancements,
committed before age 23]; People v. Rakisits (Apr. 12, 2018,
B280133) [nonpub. opn.] [40 years to life for single count of
second degree murder with firearm enhancement, committed at
age 18].) To say that “the culpability of the underlying criminal
conduct” in all of these cases is “ ‘ “rough[ly]” ’ ” the same goes
well beyond “ ‘ “any gross generalizations.” ’ ” (Maj. opn., ante,
at p. 30.) It is simply irrational.
The Legislature presumably knew that the cases covered
by section 3501, subdivision (b)(3) span a vast range of
culpability based on the type and number of crimes committed
and enhancements charged, especially in light of the 25 years-
to-life firearm enhancement (§ 12022.53, subds. (d), (e)(1)),
which applies to a wide range of crimes. (See In re Greg F. (2012
55 Cal.4th 393, 407 [“The Legislature is presumed to be aware
of all laws in existence when it passes or amends a statute.”]; cf.
30
PEOPLE v. HARDIN
Liu, J., dissenting
Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308
(2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 4 [noting
that the parole board “held 2,519 youth offender hearings”
during the first three years of section 3051’s implementation].
Yet the Legislature chose to establish a uniform rule of parole
eligibility in the 25th year of incarceration for this large and
varied group of young offenders. As Hardin contends, that rule
is untethered to relative culpability. Today’s opinion does not
explain why the Legislature would have fixated on relative
culpability in its treatment of young adult offenders serving
LWOP sentences when it was clearly indifferent to the relative
culpability of young adult offenders serving non-LWOP
sentences ranging from a single term of 25 years to life up to a
wide array of de facto LWOP sentences. (See Cooper, supra, 21
Cal.3d at p. 852 [rejecting putative rationale for a classification
because it did not cohere with other parts of the statute];
Moreno, supra, 413 U.S. at pp. 536–537 [same].
The court says considerations of “the appropriate
punishment for the underlying crimes, depending on their
severity,” are “not dissimilar from the considerations that
prompted the high court [in Miller] to distinguish, for Eighth
Amendment purposes, between sentencing juveniles for
homicide offenses and sentencing juveniles for nonhomicide
offenses.” (Maj. opn., ante, at p. 28.) But the line drawn here
between LWOP and non-LWOP sentences does not track the
line between homicide and nonhomicide offenses. And more
fundamentally, the import of Miller is that juvenile sentencing
even for the most severe crimes must be bounded by what is
known about young offenders’ capacity for change. Miller held
that life without parole may be imposed on juvenile homicide
offenders only on “ ‘rare’ ” occasions based on an individualized
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PEOPLE v. HARDIN
Liu, J., dissenting
sentencing determination that “take[s] into account how
children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” (Miller,
supra, 567 U.S. at pp. 479, 480.) The Legislature, aware of
Miller, determined that young offenders’ transient traits and
capacity for change extend through age 25. Denying parole
eligibility to a subset of young offenders on the ground that their
culpability
categorically
trumps
their
potential
for
rehabilitation is plainly “dissimilar” (maj. opn., ante, at p. 28
from Miller’s emphasis on individualized sentencing
determinations to account for youth-related vulnerabilities.
At bottom, the court says that assessing culpability on the
basis of aggregate sentences or underlying criminal conduct is
“not the only possible way[] to evaluate culpability. That the
Legislature may have prescribed a measurement of culpability
different from Hardin’s does not mean the Legislature was not
attempting to measure culpability at all.” (Maj. opn., ante, at
p. 31.) But it is not Hardin’s measurement of culpability that
the “controlling offense” framework displaces. It is the
Legislature’s own measurements of culpability written into the
Penal Code, including prescribed sentences for certain crimes
and enhancements, as well as requirements for consecutive
sentencing. (E.g., §§ 190, subd. (a), 186.22, subd. (b)(1),
12022.53, subds. (b)–(e).) Notably, the court contends that the
Legislature leaned into its own measurement of culpability in
the special circumstances law (§ 190.2) when it excluded persons
like Hardin from parole eligibility. (Maj. opn., ante, at p. 41
[there is no crime that is “more serious, or that trigger[s] more
severe punishment, than special circumstance murder”]; see id.
at pp. 33–34.) And yet, the court would have us believe that the
Legislature elsewhere in section 3051 simply ditched the
32
PEOPLE v. HARDIN
Liu, J., dissenting
multitude of culpability measurements it has made throughout
the remainder of the Penal Code in favor of a three-tiered
measurement of culpability based only on an offender’s crime or
enhancement with the longest sentence. (See id. at pp. 30–31.
There is a far simpler explanation: In enacting and
expanding section 3051, the Legislature was not in the business
of measuring culpability at all, apart from recognizing the
diminished culpability of young offenders across the board. The
statute’s text and history make clear that the Legislature’s
purpose was to recognize the developmental vulnerabilities of
young offenders and provide them a chance to earn release by
demonstrating growth and change. As Hardin says, the parole
scheme simply reflects the Legislature’s general calibration as
to how much time is needed for rehabilitation based on a young
person’s most serious offense, keeping in mind that eligibility for
parole does not mean release. The tiered scheme embodies a
legislative judgment that while the attributes of youth are not
crime-specific, young people who commit more serious offenses
generally require more time for rehabilitation, while young
people who commit less serious offenses require less.
This view readily explains the flattening of myriad
gradations of crimes and underlying conduct into three tiers of
parole eligibility. Within a given tier, committing more crimes
typically results in greater harm and culpability, but in view of
the science on which the Legislature relied, it does not typically
indicate less potential for growth and rehabilitation. Moreover,
the 15-, 20-, and 25-year benchmarks are not random numbers;
they track the steeply declining risk of offending as people
mature beyond early adulthood. (See Lofstrom et al., Pub.
Policy Institute of Cal., Are Younger Generations Committing
Less Crime? (2023) p. 8, figure 1 [California age-crime curves
33
PEOPLE v. HARDIN
Liu, J., dissenting
showing that violent felony arrest rates decline significantly as
people mature into their 30s and 40s].) This commonsense
understanding of the eligibility framework, unlike the court’s
culpability rationale, is tethered to the Legislature’s stated
purpose of providing young offenders with an opportunity for
release in light of their diminished culpability and capacity for
change.
Finally, the court says “[t]he most natural” inference is not
that the Legislature “enacted a statute at odds with its own
rehabilitative ends” but that it was “attempting to pursue other
‘ “(perhaps even contrary) ends as well.” ’ ” (Maj. opn., ante, at
p. 28.) Similar reasoning could have been deployed in Newland,
D’Amico, Cooper, Moreno, and other cases. But Newland and
D’Amico did not infer a cost-saving purpose for the exclusions at
issue, Cooper did not accept an owner-negligence rationale for
barring suits by owner-passengers against permissive drivers,
and Moreno did not infer a fraud prevention purpose for
excluding unrelated households from food stamps. In each case,
the court measured the classification against the express or
primary purpose of the statute and did not hesitate to find the
“statute at odds with its own . . . ends.” (Maj. opn., ante, at
p. 28.) The court simply ignores this case law in claiming its
view of the statute is “[t]he most natural.” (Ibid.
It is easy to posit that the exclusion here reflects a
legislative assessment of culpability and proper punishment;
the court even says this is “necessarily” what the Legislature
thought. (Maj. opn., ante, at pp. 27, 32.) But there is not a single
mention of such an assessment in the repeated consideration of
this legislation. In contrast to the clear statements of
rehabilitative aims, nothing in the legislative record states that
young adult offenders serving LWOP are categorically more
34
PEOPLE v. HARDIN
Liu, J., dissenting
culpable than their parole-eligible peers serving de facto LWOP
or other lengthy sentences for very serious crimes. It is not hard
to imagine that such a claim, had it been asserted, would have
invited skepticism (see post, at pp. 36–41) as well as heightened
attention to the racial skew of the affected group and its
traceability to a history of racially inflected tough-on-crime
policies. (See dis. opn. of Evans, J., post, at p. 16 [“The LWOP
exclusion perpetuates extreme racial disparities in our criminal
and juvenile justice systems.”]; Com. on Revision of the Pen.
Code, Annual Report and Recommendations (2021), at pp. 51,
figure 24, 53 [among California LWOP inmates who were under
age 26 at the time of the offense, 86 percent are people of color
and 76 percent are Black or Latinx]; cf. Hetey & Eberhardt,
Racial Disparities in Incarceration Increase Acceptance of
Punitive Policies (2014) 25 Psychological Science 1949 [field
study showing that awareness of extreme racial disparities in
prison population made voters more accepting of punitive
policies and less likely to support reform].
The Legislature did not say why it excluded persons like
Hardin, and we should not paper over this lacuna by imputing
a purpose that the Legislature never had. As in past cases, we
should take the Legislature’s actual statement of purpose at its
word. Doing so, I would hold that the exclusion “fails to exhibit
any fair and reasonable relationship to the stated legislative
objective.” (Hays, supra, 25 Cal.3d at p. 795.
III.
Even if we were to assume that the Legislature had
concerns about culpability and appropriate punishment when it
excluded young adults convicted of special circumstance murder
from parole eligibility, we must still inquire whether such
35
PEOPLE v. HARDIN
Liu, J., dissenting
concerns provide a reasonable basis to distinguish the excluded
group from others who are eligible for youth offender parole.
A.
As the Court of Appeal explained, the rationality of the
exclusion “is belied by the statutory provisions that allow [a
parole] hearing for individuals who have committed multiple
violent crimes (albeit not special circumstance murder) and
were sentenced to a technically parole-eligible indeterminate
state prison term that is the functional equivalent of life without
parole. (Cf. People v. Caballero, supra, 55 Cal.4th at p. 268
[sentence of 110 years to life for three counts of attempted
premeditated murder with firearm-use and criminal street gang
enhancements ‘amounts to the functional equivalent of a life
without parole sentence’]; [citation].) The crime of a 20-year-old
offender who shot and killed his victim while attempting to
commit robbery and was sentenced to life without parole (see
§ 190.2, subd. (a)(17)(A)) cannot rationally be considered more
severe than those of a 20 year old who shot and killed his victim
one day, committed a robbery the next, and was sentenced to an
indeterminate term of 50 years to life (see §§ 190, subd. (a),
12022.53, subd. (d)), or who committed multiple violent crimes,
like Caballero, and received a parole-eligible indeterminate life
term that far exceeded his or her life expectancy.” (Hardin,
supra, 84 Cal.App.5th at p. 289.) As suggested by the many
cases cited above, persons sentenced to de facto LWOP but
eligible for a youth offender parole hearing are “far from
anomalous.” (Id. at p. 289, fn. 10.
But there is more for us to consider than a litany of
examples. As the Court of Appeal observed, the 2021 Annual
Report and Recommendations (2021 Report) of the Committee
36
PEOPLE v. HARDIN
Liu, J., dissenting
on Revision of the Penal Code, a statutorily created committee
of the California Law Revision Commission (Gov. Code, §§ 8280
et seq.), cited recent research showing that “special
circumstance allegations could have been charged in 95 percent
of all first degree murder convictions, leaving the decision
whether a life without parole sentence may be imposed to the
discretion of local prosecutors, rather than a matter of statewide
policy. (2021 Report, at p. 51.)” (Hardin, supra, 84 Cal.App.5th
at p. 290, fns. omitted.
The 95 percent figure comes from a study of over 27,000
California murder and manslaughter convictions between 1978
and 2002, led by the late Professor David Baldus. The findings,
based on a representative sample of 1,900 cases, are
comprehensively reported with methodological details in a pair
of recent articles. (See Baldus et al., Furman at 45:
Constitutional Challenges from California’s Failure to (Again
Narrow Death Eligibility (2019) 16 J. Empirical Legal Studies
693 (Baldus study); id. at pp. 713, 714, table 2 [reporting the 95
percent figure]; Grosso et al., Death by Stereotype: Race,
Ethnicity, and California’s Failure to Implement Furman’s
Narrowing Requirement (2019) 66 UCLA L.Rev. 1394.) One of
the authors, Professor Catherine Grosso, further reports in an
amicus brief that among persons under the age of 26 who were
convicted of first degree murder, 98 percent could have been
charged with one or more special circumstances, and that in Los
Angeles County, the figure is 99 percent. (See also Baldus
study, at pp. 719–723 [California has the highest percentage of
homicide cases that are death eligible among all states].
The court’s only direct response to these data is a brief
comment that “the study appears to suggest that certain specific
special circumstances, added through various amendments
37
PEOPLE v. HARDIN
Liu, J., dissenting
after the initial enactment of section 190.2, have led to the
results found in the study,” and that Hardin is in no position to
challenge “[t]he special circumstance finding at issue in [his]
own case [i.e., robbery-murder]” because it “is based on a
provision of the law that dates back to the initial enactment of
section 190.2” in 1973. (Maj. opn., ante, at pp. 39–40.) But this
does not accurately characterize the Baldus study or its
relevance to Hardin’s case. It ignores the fact that the Baldus
study suggests the high rate of factually death-eligible cases
among first degree murders is significantly attributable to the
felony murder special circumstance, including robbery murder,
that has existed since early iterations of section 190.2. (See
Baldus study, supra, 16 J. Empirical Legal Studies at p. 729,
fn. 122 [robbery felony-murder special circumstance accounted
for 55 percent of factually death-eligible homicide cases during
a period when that special circumstance required proof of intent
to kill].) It also ignores the Baldus study’s citation to an earlier
study of several hundred California murder convictions with an
appellate decision between 1988 and 1992, which found that 84
percent of first degree murder cases were death-eligible under
the statute. (Id. at p. 704, citing Shatz & Rivkind, The
California Death Penalty Scheme: Requiem for Furman? (1997
72 N.YU. L.Rev. 1283, 1332.) That earlier study, on the very
page cited by the Baldus study, states: “The majority of first
degree murders are felony murders, and felony murders are
virtually all special circumstances murders. Thus, the felony
murder special circumstances alone defeat any possibility of
genuine narrowing.” (Shatz & Rivkind, at p. 1332, fn. omitted.
To be sure, charging decisions that result in a special
circumstance conviction may attempt to target the most severe
and culpable conduct among factually eligible cases. But it is
38
PEOPLE v. HARDIN
Liu, J., dissenting
undeniable that charging decisions are also influenced by many
factors unrelated to offense severity and culpability, including
the policies and priorities of the district attorney, the attitudes
and demographics of the jury pool, the strength of the evidence,
and available resources. As noted in an amicus brief filed here
by the Prosecutors Alliance of California in support of neither
party, “charging decisions have created racial, geographic, and
temporal disparities between offenders who were charged with
special-circumstance murder and those who were charged with
murder without a special circumstance.” Layered on top of well-
known racial and geographic disparities are “the vicissitudes of
charging decisions (and politics) over time,” the brief observes.
Such temporal disparities “mean that someone was more likely
to be convicted of special-circumstance murder” during the
tough-on-crime era of the past than during more recent years
“for effectively the same crime.”
The court is correct that “Hardin does not argue that
prosecutorial discretion itself offends equal protection.” (Maj.
opn., ante, at p. 37.) But that is not the issue. The issue, on the
court’s own view of legislative purpose, is whether it is rational
to exclude young offenders convicted of special circumstance
murder from parole eligibility on the ground that they are more
culpable or have committed more severe offenses than their
peers convicted of simple first degree murder. In other words,
is special circumstance murder in actuality “a uniquely serious
offense” (id. at p. 2) for purposes of youth offender parole
eligibility? No one disputes that “[s]pecial circumstance murder
is an unquestionably grave offense, one that exacts an
unimaginable toll on the lives of victims and those the victims
leave behind.” (Id. at p. 43.) But does that distinguish special
39
PEOPLE v. HARDIN
Liu, J., dissenting
circumstance murder from all or any first degree murders in this
context?
The panoply of charging factors unrelated to culpability,
along with the sheer number of factually eligible cases among
first degree murders, casts considerable doubt on the
proposition. As Professor Grosso observes in her amicus briefing
here, a special circumstance conviction cannot reasonably serve
as a proxy for severity of the crime “when virtually all of the
youthful first-degree offenders who are eligible for parole
consideration committed crimes that qualify for sentencing
under California’s special circumstances statute.” (Accord,
Hardin, supra, 84 Cal.App.5th at pp. 289–290 [“[W]ith respect
to first degree murder, any purported legislatively recognized
distinction in culpability between individuals serving a parole-
eligible indeterminate life sentence and those sentenced to life
without parole is illusory.”].
B.
Instead of grappling with these data, today’s opinion says
the Baldus study is “not part of the record in this case” and
“ha[s] never been the subject of any sort of adversarial testing.”
(Maj. opn., ante, at p. 38.) But the study’s findings are a
prominent feature of the Court of Appeal’s reasoning as well as
Hardin’s arguments and substantial amicus briefing in this
court. Indeed, before we set this matter for oral argument, we
took the affirmative step of directing, not inviting, the Attorney
General to file an answer to the amicus briefing in this case. In
his answer, the Attorney General did not take issue with the
study’s findings or methodology.
Among the hundreds of pages of briefing in this case, only
one amicus brief, filed by the San Bernardino County District
40
PEOPLE v. HARDIN
Liu, J., dissenting
Attorney, questions the reliability of the Baldus study. That
brief asserts that the study’s data were “produced by
inexperienced law students and recent graduates reading
probation reports,” that probation reports may omit information
important to charging decisions, and that the study yielded the
“strange” finding that there is a higher rate of factually death-
eligible cases among voluntary manslaughters (47 percent) than
among second degree murders (38 percent), though the reported
rate among first degree murders is far higher (95 percent). But
the amicus brief does not engage with the coding protocol
described at length in the peer-reviewed study. The protocol
sets forth a series of detailed rules for characterizing cases,
acknowledges and addresses the limitations of probation
reports, includes methods for curing insufficient information in
a probation report, and notes that ultimately 11 percent of cases
had insufficient information to permit characterization. (See
Baldus study, supra, 16 J. Empirical Legal Studies at pp. 708–
713 & fns. 81, 83.) Neither the court nor any party or amicus
has identified any specific shortcoming of the research protocol.
While acknowledging the study’s findings, the Attorney
General argues that “rational basis review does not require
mathematical precision or a perfect fit.” But no one is insisting
on mathematical precision or a perfect fit. The issue is whether
there is any reasonable relation between the classification
drawn and the purported purpose of calibrating youth offender
parole eligibility to offense severity and culpability. The Baldus
study and related findings in Professor Grosso’s amicus brief are
clearly relevant to that issue, and these findings have been
brought to our attention in the tradition of a “Brandeis brief.”
(See Muller v. Oregon (1908) 208 U.S. 412, 419 & fn. †
[discussing the 113-page brief by then-attorney Louis Brandeis
41
PEOPLE v. HARDIN
Liu, J., dissenting
that documented social science research on the negative effects
of long working hours on women’s well-being].) “[W]hen a
question of fact is debated and debatable, and the extent to
which a special constitutional limitation goes is affected by the
truth in respect to that fact,” courts “take judicial cognizance of
all matters of general knowledge.” (Id. at pp. 420–421.) This is
a familiar practice in constitutional adjudication. (See, e.g.,
Graham, supra, 560 U.S. at p. 68 [“As petitioner’s amici point
out, developments in psychology and brain science continue to
show fundamental differences between juvenile and adult
minds.”]; People v. Contreras (2018) 4 Cal.5th 349, 362–363
[citing empirical research outside the record in rejecting an
actuarial approach to defining life expectancy of juvenile
offenders]; Johnson, supra, 60 Cal.4th at pp. 883–884 [citing
empirical research outside of the record in determining that
there is “more than a speculative possibility that sexual
predators are more successful in manipulating minors to engage
in oral copulation, as opposed to sexual intercourse”].) Does the
court believe these decisions, in relying on “untested empirical
findings,” violate “multiple settled principles of judicial review”?
(Maj. opn., ante, at p. 38.
If the concern is that the Baldus study has not been
subject to adversarial testing, then the prudent course is to
remand this case for factual development in the trial court. In
D’Amico, we were careful to ensure adequate presentation of
“ ‘constitutional facts’ bearing upon the validity of the [statute
excluding osteopaths from medical licensure] under the equal
protection clause.” (D’Amico, supra, 11 Cal.3d at p. 16; see id.
at pp. 9–10 [observing that the Court of Appeal had initially
declined to decide the equal protection issue and remanded the
matter to the trial court for development of relevant facts].) In
42
PEOPLE v. HARDIN
Liu, J., dissenting
U.S. Steel, we similarly indicated that the equal protection issue
could not be settled “[w]ithout a more complete record”; we said
we lacked an adequate factual basis for evaluating how
burdensome it would be to truckers and the PUC to determine
for rate-setting purposes whether foreign steel is transported by
common carrier or private vessel. (U.S. Steel, supra, 29 Cal.3d
at p. 614.) And the Massachusetts high court, in a recent
decision holding LWOP unconstitutional for 18- to 20-year-olds,
noted that it had earlier “remanded the defendant’s case to the
Superior Court for ‘development of the record with regard to
research on brain development after the age of seventeen [in
order to] allow us to come to an informed decision as to the
constitutionality of sentencing young adults to [LWOP].’ ”
(Commonwealth v. Mattis (Mass. 2024) 224 N.E.3d 410, 416, fn.
omitted.
To the extent the court has similar concerns in this case,
we should take a similar course. We should not dodge a key
component of the equal protection claim on the ground that it
was “not litigated in the trial court” (maj. opn., ante, at p. 38
and then proceed to establish a precedent rejecting the equal
protection claim. If “untested empirical findings” are the
concern (ibid.), then why not remand this matter for factual
development in light of the highly relevant information that has
been brought to our attention? The court gives no reason. This
head-in-the-sand approach — opting for less rather than more
information in deciding a major constitutional question —
hardly seems like a sound way to exercise judicial review.
C.
Ultimately, the core of the court’s reasoning is that our
case law has held in the Eighth Amendment context that
43
PEOPLE v. HARDIN
Liu, J., dissenting
“section 190.2 adequately separates the most egregious first
degree murders — those deserving of the most severe
punishment available — from the rest” and that “[g]iven this
body of case law, it is difficult to see how the Legislature that
enacted section 3051 could have acted irrationally in singling
out special circumstance murder as a particularly culpable
offense.” (Maj. opn., ante, at pp. 35, 36.
It is true that our capital cases have repeatedly upheld the
special circumstances statute against claims that it does not
properly serve the narrowing function required by the Eighth
Amendment for imposition of the death penalty. But what the
court leaves unsaid is that none of the cases in its lengthy string
cites illuminates the underlying rationale of the Eighth
Amendment holding; the cases simply refuse to revisit
precedent or summarily reject the claim without analysis. (See
maj. opn., ante, at p. 35 & fn. 6 [citing 12 cases that contain no
substantive analysis of the issue].
Today’s decision cites People v. Green (1980) 27 Cal.3d 1,
61, which “explained why the law treats robbery-murder as
more culpable than simple murder.” (Maj. opn., ante, at p. 36.
But that case said nothing about whether the robbery-murder
special circumstance, in operation, actually distinguishes
crimes that are more culpable than simple murder offenses. The
court also cites People v. Bacigalupo (1993) 6 Cal.4th 457
(Bacigalupo) in asserting that special circumstances “mark a
first degree murder [as] particularly egregious.” (Maj. opn.,
ante, at p. 34.) We said in that case: “In California, the special
circumstances serve to ‘ “guide” ’ and ‘ “channel” ’ jury discretion
‘by strictly confining the class of offenders eligible for the death
penalty.’ [Citation.] As the criteria in the California capital
scheme that define the class of murders for which death is a
44
PEOPLE v. HARDIN
Liu, J., dissenting
potential penalty, the special circumstances set forth in section
190.2 must comport with Eighth Amendment requirements by
providing not only clear and objective standards for channeling
jury discretion, but also detailed and specific guidance, thus
making the process for imposing a death sentence ‘ “rationally
reviewable.” ’ [Citation.] [¶] Under our death penalty law,
therefore, the section 190.2 ‘special circumstances’ perform the
. . . constitutionally required ‘narrowing’ function” of
“circumscrib[ing] the class of murderers eligible for the death
penalty.” (Bacigalupo, at pp. 467–468.) That was the extent of
our analysis.
Bacigalupo described the intended function of special
circumstances but undertook no empirical inquiry or factual
analysis of the statute’s actual operation. That is because the
main issue in Bacigalupo was not whether section 190.2
adequately performs the constitutionally required narrowing
function. It was whether the sentencing considerations at the
penalty phase (§ 190.3) must satisfy the Eighth Amendment’s
narrowing principle. (Bacigalupo, supra, 6 Cal.4th at pp. 462–
463.) On that issue, we said that “when a capital punishment
statute adequately narrows the class of death-eligible
murderers, the Eighth Amendment does not require a further
round of ‘narrowing’ at the sentence selection stage.” (Id. at
p. 475.) Bacigalupo did not address whether special
circumstances actually fulfill their intended narrowing function.
Today’s opinion cites only one case that examined data on
the operation of the special circumstances statute, People v. Frye
(1998) 18 Cal.4th 894, 1028–1029 (Frye), and acknowledges that
“[o]ur treatment of the issue in Frye was admittedly terse, and
it relied on a different study than the one on which Hardin now
relies.” (Maj. opn., ante, at p. 38.) Given these qualifiers, it is
45
PEOPLE v. HARDIN
Liu, J., dissenting
not clear what persuasive value the court thinks Frye has here.
The defendant in Frye argued that “virtually all first degree
murders are death eligible” based on “a statistical analysis . . .
of published appeals from murder convictions for the years
1988–1992.” (Frye, at pp. 1028, 1029; cf. Shatz & Rivkind,
supra, 72 N.Y.U. L.Rev. at pp. 1326–1335.) Our opinion in Frye
did not discuss or even mention the actual data. Instead, we
rejected the claim in three short sentences: “Defendant’s
argument notwithstanding, the special circumstances ‘are not
overinclusive by their number or terms.’ ([People v. Arias (1996
13 Cal.4th 92, 187].) Nor have they been construed in an overly
expansive manner. (Ibid.; see also People v. Morales (1989) 48
Cal.3d 527, 557–558 [lying-in-wait]; People v. Marshall (1990
50 Cal.3d 907, 946 [felony murder]; People v. Anderson (1987
43 Cal.3d 1104, 1147 [felony murder].) Defendant’s statistics do
not persuade us to reconsider the validity of these decisions.”
(Frye, at p. 1029.) The cases cited in Frye shed no further light
on the issue, and today’s opinion cites nothing else.
What we have, then, is a body of case law that has never
grappled with empirical findings regarding the actual operation
of special circumstances, much less with findings based on data
as comprehensive as those in the Baldus study. On this point,
the court does not and cannot disagree. Instead, today’s
decision, like the cases it cites, simply piles citation upon
citation. But when one follows the trail of citations in search of
a foundational rationale or analysis, one comes up empty.
“Truly, this is ‘turtles all the way down.’ ” (Rapanos v. United
States (2006) 547 U.S. 715, 754 (maj. opn. of Scalia, J.).
I suppose the Legislature could have posited that special
circumstance murder is categorically worse than other murders
based on the mere fact that this court has said it again and
46
PEOPLE v. HARDIN
Liu, J., dissenting
again. But the fact that our cases have said it does not make it
so. Under rational basis review, “ ‘the constitutionality of a
statute predicated upon the existence of a particular state of
facts may be challenged by showing to the court that those facts
have ceased to exist.’ ” (Brown, supra, 8 Cal.3d at p. 869.) We
have been shown information that forcefully challenges the
rationality of including youthful offenders convicted of simple
first degree murder in the parole scheme while excluding
youthful offenders convicted of special circumstance murder.
This information calls for serious engagement and analysis, not
repeated citation to ipse dixit in our case law.
D.
Toward the end of today’s opinion, the court says it does
not decide “the constitutionality of section 3051, subdivision (h
as it might arise in other as-applied challenges based on
particular special circumstances or the factual circumstances of
individual cases.” (Maj. opn., ante, at p. 42; see id. at p. 40
[“While we do not foreclose the possibility of other challenges to
the distinctions drawn by the special circumstance statute
based on a more robust record and a more focused as applied
inquiry.”].) It is not clear what the court means in dangling this
possibility. Does it mean that Hardin or someone like Hardin
could bring a challenge to the felony murder special
circumstance by comparing such cases with simple murder cases
in which the felony murder special circumstance was not
charged or not found true? Or does it mean that a litigant in
Hardin’s position would have to bring a challenge specifically to
the robbery-murder special circumstance, since that is the one
he was convicted of? Or does it mean that a litigant would have
to focus the equal protection claim not simply on a “particular
special circumstance[]” but more narrowly on a comparison to
47
PEOPLE v. HARDIN
Liu, J., dissenting
“individual cases” (id. at p. 42) that did not result in a special
circumstance charge or finding but involved similar facts?
Although the court’s lack of elaboration may be
understandable, its gesture of purportedly leaving the door open
to future challenges should invite some skepticism. For it is not
clear how a litigant can succeed on a “more focused” claim (maj.
opn., ante, at p. 40) without running into the argument that
even if there is disparate treatment within a subset of similar
cases (defined by a particular special circumstance or set of
factual circumstances), the overall classification of persons
convicted of special circumstance murder as more culpable than
persons convicted of simple murder is a “ ‘gross generalization[]
and rough accommodation[] that the Legislature seems to have
made’ ” and that “ ‘we must accept’ ” (id. at p. 30). Indeed, given
a prison population as large as ours, many young offenders
serving LWOP could cite one or more cases involving equally if
not more culpable conduct that received less punitive treatment.
Presumably it would be easy for the court to reject such claims
by moving the analysis up one or more levels of generality.
What the court envisions as the proper level of “focus” is a
mystery. The open-door language reads like an attempt to
cushion the blow of today’s decision; time will tell whether it
offers only hollow hope.
IV.
Amidst all the legal reasoning in this case, what is missing
are the facts of Tony Hardin’s crime, committed in 1989 at age
25, and a real-life understanding of why the Legislature raised
the cutoff for youth offender parole eligibility to age 26.
According to the Court of Appeal decision affirming his
conviction, the evidence showed that Hardin was friends with
48
PEOPLE v. HARDIN
Liu, J., dissenting
his elderly neighbor, Norma Barber. One night, Hardin killed
Barber in her home by strangling her and stole her jewelry,
VCR, Vantage cigarettes, car keys, and other items because he
was “desperate to buy drugs and had no money to do so.” Hardin
also stole two cans of beer from her fridge. The next morning,
Hardin tried to buy cocaine from a drug dealer using Barber’s
necklace. The dealer refused but offered Hardin drugs in
exchange for a ride to pick up a drug supply. Hardin complied
and drove Barber’s car, which had a personalized license plate.
After they picked up the drugs, Hardin drove to a pawn shop
and parked the car illegally in the lot. Inside the shop, Hardin
exchanged Barber’s jewelry for $15 and filled out the pawn slip
with his name and provided a thumbprint. Meanwhile, the car
was ticketed by a traffic officer.
Hardin used the $15 to buy cocaine from the dealer. That
evening, Hardin asked for more cocaine and used the VCR as
payment. He also offered Barber’s microwave and brought the
dealer to Barber’s apartment. There, Hardin held the door open
while the dealer took the microwave and other items. Hardin
also lent the dealer Barber’s car, which he parked nearby, for
additional cocaine. Sometime after, police came to question
Hardin at his home. Hardin spoke to the police and denied ever
driving Barber’s car. During the interview, police saw Vantage
cigarette butts on an ashtray as well as cans of beer that
Barber’s son had reported missing. Hardin was ultimately
arrested, charged, and convicted. It does not take much to
recognize that Hardin’s crime, driven by a drug habit and devoid
of any sophistication, exhibited many of the hallmark features
of youth: “recklessness, impulsivity, and heedless risk-taking”
(Miller, supra, 567 U.S. at p. 471); “inability to assess
consequences” (id. at p. 472); “inability to deal with police
49
PEOPLE v. HARDIN
Liu, J., dissenting
officers” (id. at p. 477); and vulnerability to substance abuse (id.
at p. 478).
It is now almost 35 years later, and Hardin is 60 years old.
I do not know whether he is a changed man. But no one disputes
that the basic propositions of “science,” “social science,” and
“common sense” (Miller, supra, 567 U.S. at p. 471) on which the
Legislature relied in expanding youth offender parole eligibility
apply equally to all young adults, whatever their crimes. The
Attorney General, citing amicus briefs filed by neuroscience
scholars and by Human Rights Watch, says “[t]he People have
never disputed that ‘[f]undamental changes in brain
development’ may occur through age 25, or whether certain
young adult offenders initially sentenced to life terms have been
capable of demonstrating ‘remarkable’ reform.” Some young
offenders may be unable to show sufficient rehabilitation to gain
parole; eligibility does not mean release. But the Legislature
recognized that many young offenders — through normal
maturation as well as years of hard work in coming to terms
with their past conduct, repaying debts to victims and society,
and bettering themselves and others — are capable of change
and deserve a meaningful chance at life beyond prison walls.
Upon “ ‘a serious and genuine judicial inquiry’ ” (Newland,
supra, 19 Cal.3d at p. 711), I see no rational basis for extending
youth offender parole eligibility to persons convicted of simple
murder regardless of the number or severity of their crimes,
while denying it to the Tony Hardins who have been condemned
to die in prison for committing similar crimes in their youth. I
again join numerous judges throughout the state in urging the
Legislature to revisit this issue. (See, e.g., People v. Jackson
(2021) 61 Cal.App.5th 189, 202a–202b (conc. stmt. of Liu, J.
50
PEOPLE v. HARDIN
Liu, J., dissenting
review den. June 9, 2021, S267812; see also maj. opn., ante, at
pp. 42–43.
While I agree with the court’s decision to dispense with the
“similarly situated” step of our equal protection doctrine, I
dissent from the merits of today’s equal protection holding. I
would affirm the judgment of the Court of Appeal.
LIU, J.
51
PEOPLE v. HARDIN
S277487
Dissenting Opinion by Justice Evans
Tony Hardin committed a murder in 1989 when he was 25
years old. Hardin, who is African American, was convicted of
special circumstance murder and sentenced to life without the
possibility of parole (LWOP). In 2021, Hardin moved for a
hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261
(Franklin) to preserve evidence related to youth mitigating
factors for an eventual youth offender parole hearing. The
superior court denied the motion on the grounds he was
ineligible for a youth offender parole hearing based on his
LWOP sentence. (Pen. Code, § 3051, subd. (h).)1
The question presented is whether section 3051’s
exclusion of youthful offenders from the youth offender parole
eligibility scheme based on their LWOP sentence violates equal
protection. I would hold that it does. The LWOP exclusion
offends the Legislature’s only express and articulated purpose
of the youth offender parole eligibility scheme and lacks
rationality. The exclusion bears the taint of racial prejudice and
perpetuates extreme racial disparities plaguing our juvenile and
criminal justice systems. Thus, I conclude it fails any mode of
rational basis review. With respect, I dissent.
1
All further unspecified statutory references are to the
Penal Code.
1
PEOPLE v. HARDIN
Evans, J., dissenting
I.
Level of Scrutiny & Lens of Deference
Several amici urge the court to apply strict scrutiny.
Under the federal equal protection clause, strict scrutiny only
applies where the challenged regulation involves a fundamental
right or a suspect classification. (Massachusetts Bd. of
Retirement v. Murgia (1976) 427 U.S. 307, 312.) Hardin
concedes it does not apply here.
Even assuming strict scrutiny does not apply to the
exclusion at issue here, rational basis review still requires us to
engage in a “ ‘serious and genuine’ ” inquiry between the
classification and the legislative objective at issue in this case.
(Newland v. Board of Governors (1977) 19 Cal.3d 705, 711.
While I generally agree that this exclusion fails under any form
of rational basis review (see dis. opn. of Liu, J., ante), I write
separately to explain that the nature of the deprivation and
whether the classification can be attributed to bias should
inform this court’s mode of deference. A rational basis review
that considers racial disparities in classifications is particularly
appropriate in cases such as this “where the challenged
classification
appears
to
impose
a
substantially
disproportionate burden on the very class of persons whose
history inspired the principles of equal protection.” (State v.
Russell (Minn. 1991) 477 N.W.2d 886, 889.)2
2
The majority declines to consider the significance of the
racially disparate impact of the LWOP exclusion by faulting
Hardin for not having raised a claim that heightened scrutiny
applies on that basis. (Maj. opn., supra, at pp. 43–44, fn. 4.
However, amici raised that argument and, following our order
2
PEOPLE v. HARDIN
Evans, J., dissenting
The LWOP exclusion disproportionately impacts Black
and Brown youth. It perpetuates racial disparities in LWOP
sentences for youthful offenders. While perhaps unintentional,
it nonetheless embodies racial bias that has plagued our
criminal and juvenile justice systems since their inception. The
stakes could not be higher. The differential treatment means
the difference between whether young people who are otherwise
worthy of release will die in prison or will return to society
following a grant of parole. The impact of that deprivation on
an individual and their family cannot be overstated. As the
majority recognizes, the deprivation also extends to a societal
level. Society benefits from the return of rehabilitated
individuals sentenced to LWOP to their communities. (See
Human Rights Watch, I Just Want to Give Back: The
Reintegration of People Sentenced to Life Without Parole (June
2023) p. 4 <https://www.hrw.org/report/2023/06/28/i-just-want-
to-give-back/reintegration-of-people-sentenced-to-life-without-
parole> [as of Mar. 4, 2024].)3
Notably, a sister court has recognized that the equal
protection guarantee of its state constitution “hold[s] lawmakers
to a higher standard of evidence when a statutory classification
demonstrably and adversely affects one race differently than
other races, even if the lawmakers’ purpose in enacting the law
was not to affect any race differently.” (Fletcher Props. v. City
of Minneapolis (Minn. 2020) 947 N.W.2d. 1, 19 (Fletcher).) In
directing him to do so, the Attorney General filed an answer
addressing that argument. Thus, due consideration of the
racially disparate impact of the LWOP exclusion is warranted.
3
All Internet citations in this opinion are archived by year,
docket number, and case name at <http://www.courts.ca.gov/
38324.htm>.
3
PEOPLE v. HARDIN
Evans, J., dissenting
such cases, the Minnesota equal protection clause demands
“actual (and not just conceivable or theoretical) proof that a
statutory classification serves the legislative purpose.” (Ibid.
The parties here do not present any argument that the equal
protection guarantee of California’s constitution likewise
requires this heightened degree of rational basis analysis. In
my view, the resolution of that question is not determinative in
this case. Our mode of deference, however, must take into
account whether the challenged classification results in
demonstrable and adverse racial discrimination.
With these principles in mind, I turn to the question of
whether section 3051’s LWOP exclusion fails rational basis
review.
II.
Application of the Rational Basis Standard
I begin with the articulated purpose of section 3051. The
parties agree the articulated objective of section 3051 is to
provide youthful offenders with a meaningful opportunity to
obtain release upon a showing of maturation and rehabilitation.
In extending youth offender parole eligibility to those who
committed a crime before they were 26 years of age, the
Legislature relied on brain science establishing the attributes of
youth are maintained until age 26.4 The LWOP exclusion —
which impacts youthful offenders who were 18 to 25 years old at
4
Recently, the Massachusetts Supreme Court relied on
similar brain science pertaining to 18 to 20 year olds in holding
LWOP sentences for that age group violated the Massachusetts
State Constitution’s prohibition against cruel and unusual
punishment. (Commonwealth v. Mattis (Mass. 2024) 224
N.E.3d 410.
4
PEOPLE v. HARDIN
Evans, J., dissenting
the time of the offense — is entirely at odds with that statutory
objective and the brain science motivating the enactment and
extension of youth offender parole eligibility. Youthful offenders
sentenced to LWOP, as a class, have the same capacity for
maturation and rehabilitation as their parole-eligible
counterparts. Their youthful age — not their offense or
sentence — is what makes them less morally culpable and more
likely to rehabilitate themselves such that they should be
entitled to a youthful offender parole hearing.
The majority speculates the Legislature excluded youthful
offenders sentenced to LWOP to account for their culpability
based on their offense of special circumstance murder. This
purported purpose not only conflicts with the statute’s actual
purpose, but there is nothing in the statute or its history
indicating the Legislature was motivated by any “culpability”
rationale. (Maj. opn., ante, at pp. 26, 29; see dis. opn. of Liu, J.,
ante, at pp. 23–36.) Contrary to the majority’s hypothesis, the
Legislature’s decision to tether the youthful offender parole
eligibility date to a youthful offender’s controlling offense does
not reflect rational judgments about culpability. (See dis. opn.
of Liu, J., ante, at pp. 28–33.) What’s more, the framework has
little to no relevance to the Legislature’s choice to enact the
exclusion at issue before us. It is one thing to designate varying
parole eligibility dates based on a youthful offender’s controlling
offense. It is quite another to exclude a class of youthful
offenders from parole eligibility entirely based on their sentence,
given the underlying rationale for youth offender parole.
Even assuming we can impute a legislative rationale that
is contrary to a statute’s purpose, a “culpability” rationale for
the LWOP exclusion here is irrational. The hallmarks of youth
and the heightened potential for rehabilitation are not crime-
5
PEOPLE v. HARDIN
Evans, J., dissenting
specific. (Miller v. Alabama (2012) 567 U.S. 460, 473.) In
retaining the attributes of youth until age 26, as the Legislature
recognized, youthful offenders “cannot with reliability be
classified among the worst offenders.” (Roper v. Simmons (2005
543 U.S. 551, 569.) As noted, youthful offenders who have been
sentenced to LWOP are just as capable of becoming
rehabilitated as their peers. Given the neuroscience, excluding
youthful offenders from parole eligibility based on their offense
does not make rational sense.
The imputed “culpability” rationale is also belied by
uncontroverted evidence presented to the Legislature and this
court.5 As the Committee on Revision of the Penal Code noted,
recent research has shown that 95 percent (in one study, 98
percent) of first degree murders could be charged as special
circumstance murder and that factors other than culpability —
including race — impact whether youth are convicted of special
circumstance murder or simple first degree murder. (Com. on
Revision of the Pen. Code, Annual Report and
Recommendations (2021) pp. 51–52 <http://clrc.ca.gov/CRPC/
Pub/Reports/CRPC_AR2021.pdf> [as of Mar. 4, 2024] (Annual
Report).) According to the Committee, 96 percent of LWOP
5
The majority declines to engage with this uncontroverted
research on the grounds that it was not subject to adversarial
testing in the trial court (see maj. opn., ante, at p. 38) and that,
even if taken at face value, the study does not “say[] nor
suggest[] that California’s special circumstance law is
categorically invalid.” (Maj. opn., ante, at p. 39.) But, contrary
to the majority’s suggestion, our hands are not tied. We can do
as we have previously done and remand the matter to the trial
court for further factual development (see dis. opn. of Liu, J.,
ante, at pp. 42–43) and then decide whether there is a rational
basis for the differential treatment of youthful offenders.
6
PEOPLE v. HARDIN
Evans, J., dissenting
sentences are based on a special circumstance murder. (Id. at
p. 51.) Hardin was convicted of a felony murder special
circumstance. Felony murder special circumstance accounts for
over 50 percent of the LWOP sentences for special circumstance
murder. (Id. at p. 52.) Unlike other special circumstances, the
felony murder special circumstance does not require a mens rea
of intent to kill. (See People v. Anderson (1987) 43 Cal.3d 1104,
1138–1139.
Black people are disproportionately convicted of the
felony-murder special circumstance. (Annual Report, supra, at
p. 52.) As the Annual Report noted, 42 percent of people
convicted of felony murder special circumstance are Black
“compared to only 34% of the overall first-degree murder
population and 26% of the second-degree murder population.”
(Ibid.) “Rates of felony murder special circumstance convictions
also vary by the intersection of race and age. . . . Black
individuals sentenced to LWOP for felony murder are much
more likely to be younger at the time of offense than their White
counterparts. In fact, almost half of people who were sentenced
to LWOP through felony murder for offenses that took place
when they were under the age of 21 are Black.” (Special
Circumstances Conviction Project, Life Without Parole and
Felony Murder Sentencing in California (2023) p. 9
<https://csw.ucla.edu/wp-content/uploads/2023/08/SCCP-
Report11.pdf> [as of Mar. 4, 2024].
While racial disparities exist across age groups, racial
disparities are most prevalent “among people who were 25 or
younger at the time of the offense and received a life without
parole sentence — 86% are people of color.” (Annual Report,
supra, at p. 53.) The total LWOP population in California is over
5,000, and 62 percent are youthful offenders. (Id. at pp. 50, 53.
7
PEOPLE v. HARDIN
Evans, J., dissenting
Of the roughly 3,100 youthful offenders sentenced to LWOP, 38
percent are Black, 38 percent are Latinx, 14 percent are White,
2 percent are Asian or Pacific Islander, 2 percent are American
Indian/Alaskan Native, and 7 percent are “other.” (Id. at p. 51.
In contrast, for the overall LWOP population, 35 percent are
Black, 35 percent are Latinx, and 21 percent are White, with the
same percentages for the remaining demographic groups.
(Ibid.) The seven percent point differential (86 percent of
youthful offenders sentenced to LWOP are people of color,
compared to 79 percent of the overall LWOP population are
people of color) is due to an increased rate in sentencing Black
and Latinx youth to LWOP, and a decreased rate in sentencing
White youth to LWOP.6 (Ibid.) “African American youth are
sentenced to life without parole at a rate that is 18.3 times the
rate for whites. Hispanic youth in California are sentenced to
life without parole at a rate that is five times that for white
youth in the state.” (Human Rights Watch, When I Die, They’ll
Send Me Home: Youth Sentenced to Life Without Parole in
California (Jan. 2008) Vol. 20, No. 1 (G) p. 4
<http://www.hrw.org/reports/2008/us0108/us0108web.pdf> [as
of Mar. 4, 2024].) This racially disparate impact makes it
especially important that we evaluate the classification against
the Legislature’s articulated purpose and reject the exclusion as
irrational. (See Fletcher, supra, 947 N.W.2d at 19.
The Legislature was well aware of the racial disparities in
LWOP sentences for youthful offenders, as the legislative
6
It would be useful to compare racial disparities among
youthful offenders sentenced to LWOP with youthful offenders
sentenced to an indeterminate life term for first degree murder.
The parties, however, have not provided any such data.
8
PEOPLE v. HARDIN
Evans, J., dissenting
history of various bills relating to the youth offender parole
eligibility scheme includes discussion of these disparities.7
Although the Legislature has enacted various remedial
measures to address racism in our justice and carceral systems,
the question remains: why did the Legislature ignore the brain
science and disparate impact of the LWOP exclusion on young
people of color? The legislative history does not provide a
definitive answer to this question. The LWOP exclusion,
however, perpetuates severe racial disparities and, given its
historical context, bears the taint of prejudice against Black and
Brown youth.
III.
The LWOP Exclusion Perpetuates Racial Bias Against Black
and Brown Youth
The historical context of the LWOP exclusion illuminates
its origin and the motivating force behind it. “To determine the
validity of the enactment . . . it must be viewed in light of its
historical context and the conditions existing prior to its
enactment.” (Mulkey v. Reitman (1966) 64 Cal.2d 529, 534.
“[T]he judicial branch can rely on history and context on issues
of race to the same extent that courts have always relied on
history and context to analyze all other issues.” (State v.
Hawkins (Wn. 2022) 519 P.3d 182, 196.) “The way to stop
discrimination on the basis of race is to speak openly and
candidly on the subject of race, and to apply the Constitution
7
Notably, the Human Rights Watch submitted its report to
the Legislature in support of Senate Bill No. 394 (2017–2018
Reg. Sess.), which expanded the youth offender parole eligibility
scheme to include youthful offenders who were younger than 18
at the time of the offense and were sentenced to LWOP.
9
PEOPLE v. HARDIN
Evans, J., dissenting
with eyes open to the unfortunate effects of centuries of racial
discrimination.” (Schuette v. Coalition to Defend Affirmative
Action, Integration and Immigrant Rights and Fight for
Equality By Any Means Necessary (2014) 572 U.S. 291, 381 (dis.
opn. of Sotomayor, J.); see id. at pp. 380–381.
The historical context of the LWOP exclusion
demonstrates it was motivated — consciously or not — by racial
bias, including racial stereotypes and myth. The provision
excluded a group of youthful offenders based on their LWOP
sentence — a metric that is not reflective of their culpability or
their potential for rehabilitation, and a sentence with a
significant disparate impact on Black and Brown youth. The
Legislature enacted the LWOP exclusion against the backdrop
of the now-debunked “superpredator” myth. The myth distorted
policy makers’ collective understanding of youth as a mitigating
circumstance and instead treated it as an aggravating
circumstance and specifically demonized young Black males.
The LWOP exclusion tracks that myth.
In the mid-1990s, Princeton University Professor John J.
DiIulio, Jr., warned of an approaching violent crime surge
perpetrated by “tens of thousands of severely morally
impoverished” and “super crime-prone young males . . . on the
horizon.” (DiIulio, The Coming of the Super-Predators (Nov. 27,
1995
Washington
Examiner
<https://www.washington
examiner.com/magazine/1558817/the-coming-of-the-super-
predators/> [as of Mar. 4, 2024].) According to DiIulio, “[A]s long
as their youthful energies hold out, they will do what comes
‘naturally’: murder, rape, rob, assault, burglarize, deal deadly
drugs, and get high.” (Ibid.) Criminologist James Alan Fox
likewise warned that “ ‘[u]nless we act today, we’re going to have
a bloodbath when these kids grow up.’ ” (Mills et al., Juvenile
10
PEOPLE v. HARDIN
Evans, J., dissenting
Life Without Parole in Law and Practice: Chronicling the Rapid
Change Underway (2016) 65 Am. U. L.Rev. 535, 582.
The superpredator myth particularly focused on Black
youth. DiIulio claimed “[t]he surge in violent youth crime has
been most acute among black inner-city males” (DiIulio, supra,
Washington Examiner) and predicted that “as many as half of
[the] juvenile super-predators could be young black males.”
(DiIulio, My Black Crime Problem, and Ours (Spring 1996) 6
City J. 19 <https://www.city-journal.org/html/my-black-crime-
problem-and-ours-11773.html> [as of Mar. 4, 2024].) In
reversing a trial court’s denial of a motion to correct an illegal
sentence, the Connecticut Supreme Court explained, “[T]he
superpredator myth employed a particular tool of
dehumanization — portraying Black people as animals.
[Citation.] . . . The superpredator metaphor invoked images of
packs of teens prowling the streets. The news coverage in the
mid-1990s, which depicted ‘young Black males, showing them
[handcuffed] and shackled, held down by [the] police, or led into
courtrooms wearing orange jumpsuits’ . . . [citation] . . . left
little doubt that the ‘packs’ were Black teens.” (State v. Belcher
(Conn. 2022) 268 A.3d 616, 626, 627 (Belcher).) “Under its
influence, all too many Black and brown children were explicitly
or tacitly classified as ‘juvenile superpredators’ and treated as
irredeemable monsters.” (State v. Anderson (Wn. 2022) 516 P.3d
1213, 1227 (dis. opn. of González, C. J.).
The superpredator myth “turn[ed] upside down the
constitutional mandate of Roper and its progeny. By labeling a
juvenile as a superpredator, the very characteristics of youth
that should serve as mitigating factors in sentencing —
impulsivity, submission to peer pressure, deficient judgment —
are treated instead as aggravating factors justifying harsher
11
PEOPLE v. HARDIN
Evans, J., dissenting
punishment.” (Belcher, supra, 268 A.3d at p. 629.) “The
‘superpredator’ was constructed as the ultimate other, as
possessing all the characteristics that innocent young children
do not. . . . And because the ‘superpredator’ was the antithesis
of childhood, it was slyly constructed as young, Black, and
male.” (Nunn, The End of Adolescence: The Child as Other:
Race and Differential Treatment in the Juvenile Justice System
(2002) 51 DePaul L.Rev. 679, 713.
Empirical evidence quickly demonstrated that the
superpredator myth was baseless and false. Between 1994 and
2009, the juvenile crime rate dropped by half. (Southerland,
Youth Matters: The Need to Treat Children Like Children (2015
27 J. Civ. Rights & Economic Development 765, 777
(Southerland).) There was “a fifty-six percent decline in
homicides committed by juveniles from 1993 to 1998, and a
thirty percent decline in overall juvenile crime during the same
period.” (Barton, Reconciling the Burden: Parental Liability for
the Tortious Acts of Minors (2002) 51 Emory L.J. 877, 879.) In
California, “from 1980 to 2016, the arrest rate among those 17
or younger dropped by 84 percent.” (Lofstrom et al., Public
Policy Institute of Cal., New Insights into California Arrests:
Trends, Disparities, and County Differences (Dec. 2018) p. 3
<https://www.ppic.org/wp-content/uploads/new-insights-into-
california-arrests-trends-disparities-and-county-
differences.pdf> [as of Mar. 4, 2024].) “Moreover, the predictions
that youth of color would be primarily responsible for increases
in violent crime were proven false. The fluctuations in juvenile
homicide rates during the last two decades have not been
specific to any demographic groups, peaking in 1994 for both
African-American and white teenagers before falling through
12
PEOPLE v. HARDIN
Evans, J., dissenting
the year 2000.” (Southerland, supra, 27 J. Civ. Rights &
Economic Development at p. 777.
Despite the drop in juvenile crime and arrest rates, the
overall size of the incarcerated juvenile population grew in
response to the superpredator myth, disproportionately
impacting youth of color. “[F]our out of five youth newly held in
detention between 1983 and 1997 were juveniles of color. The
transfer of juveniles of color to adult court was equally, if not
more, disproportionate. . . . These numbers persist even today.”
(Moriearty & Carson, Cognitive Warfare on Young Black Males
in America (2012) 15 J. Gender, Race & Justice 281, 300–301,
fn. omitted.) “Ultimately, the sinister connections between race,
crime, and youth led to punitive sanctions, like life without
parole, for young offenders.” (Southerland, supra, 27 J. Civ.
Rights & Economic Development at p. 781.) As a result, Black
and Brown young people were sentenced to LWOP at extreme
and disparate rates in California.8
8
During the era of the superpredator myth, LWOP
sentences swelled in the United States — increasing by over 400
percent between 1992 and 2016. (Seeds, Life Sentences and
Perpetual Confinement (2021) Annual Review of Criminology,
at p. 288 <https://www.annualreviews.org/doi/pdf/10.1146/
annurev-criminol-061020-022154> [as of Mar. 4, 2024]; see
Annual Report, supra, at p. 50.) “[T]he overwhelming majority
of JLWOP sentences were imposed in the mid-1990s . . .
pursuant to policies adopted at the height of fear over the myth
of the superpredator. . . . A handful of jurisdictions [including
California] are responsible for imposing two-thirds of all
JLWOP sentences.” (Mills et al., supra, 65 Am. U. L.Rev. at pp.
560, 563.) Notably, prior to this proliferation in the use of the
sentence, LWOP operated as a sentence wherein a governor
(rather than a parole board) was tasked with granting parole,
13
PEOPLE v. HARDIN
Evans, J., dissenting
While empirical evidence demonstrated that the
superpredator myth was baseless and false, the myth “tapped
into and amplified racial stereotypes that date back to the
founding of our nation.” (Belcher, supra, 268 A.3d at p. 626.
The superpredator myth “relied heavily on ‘racist imagery and
stereotypes’ and harkened back to ‘historic representations of
African Americans [and other people of color] as violence-prone,
criminal and savage.” (Southerland, supra, 27 J. Civ. Rights &
Economic Development at p. 773.
The superpredator myth is one of many incarnations of
racism that have plagued our criminal and juvenile justice
systems since their inception. For example, once juvenile courts
became more accessible to Black youth in the mid-1900s, the
justice system shifted away from a rehabilitative objective and
became more punitive. (Lapp, Young Adults & Criminal
Jurisdiction (2019) 56 Am. Crim. L.Rev. 357, 386, citing Ward,
The Black Child-Savers: Racial Democracy and Juvenile Justice
(2012) p. 4.) “[T]he increase in disproportionate minority
contact with juvenile court overlaps with the decline of the
rehabilitative ideal and the rise of a more punitive juvenile
court.” (Lapp, at p. 386.) At the same time, politicians began
treating youth not as individuals in need of guidance, support,
and perhaps treatment — but as looming forces threatening to
destroy public safety. (See Henning, The Challenge of Race and
Crime in a Free Society: The Racial Divide in Fifty Years of
Juvenile Justice Reform, 86 Geo. Wash. L.Rev. 1604, 1618–1620
(Henning).) The superpredator myth was an apex of racial
whereas it is now treated as “ ‘the other death penalty’ ” — a
death-in-prison sentence. (Seeds, Life Sentences and Perpetual
Confinement, supra, Annual Review of Criminology at p. 302.
14
PEOPLE v. HARDIN
Evans, J., dissenting
prejudice in criminal and juvenile justice policy and catalyzed
“nearly every state in the country to step up the sentencing and
punishment of juveniles.” (Belcher, supra, 268 A.3d at p. 628;
see Henning, supra, 86 Geo. Wash. L.Rev. at p. 1620.) It also
coincided with a proliferation in the use of LWOP sentences —
particularly for Black and Brown youthful offenders. (See pp.
7–8, ante; see also Mills et al., The Phillips Black Project, No
Hope: Re-Examining Lifetime Sentences for Juvenile Offenders
(2015
p.
10
<https://static1.squarespace.com/static/
55bd511ce4b0830374d25948/t/5600cc20e4b0f36b5caabe8a/144
2892832535/JLWOP+2.pdf> [as of Mar. 4, 2024].) “Starting in
1992, the height of the superpredator panic, a black juvenile
arrested for homicide has been twice as likely to be sentenced to
LWOP as his white counterpart.” (Id. at p. 9.
In California, the superpredator myth animated
legislation underpinning LWOP sentences for youthful
offenders. For example, as a direct result of the superpredator
myth, voters passed Proposition 21 in 2000. (See de Vries, Guilt
By Association: Proposition 21’s Gang Conspiracy Law Will
Increase Youth Violence in California (2002) 37 U.S.F. L.Rev.
191, 197; see also Assem. Com. on Public Safety, Analysis of Sen.
Bill No. 1391 (2017–2018 Reg. Sess.) as amended May 25, 2018,
pp. 4–5 [acknowledging the shift towards punitive treatment of
youth “was fueled by media’s portrayal of youth as ‘super-
predators,’ consistent with the era’s tough on crime attitude. . . .
In 2000, Proposition 21 again dramatically shifted California’s
criminal justice policies”].) Proposition 21, among other things,
created the gang-murder special circumstance and allowed —
and sometimes mandated — charging children as young as 14
years old directly in adult criminal court. In advocating for the
initiative’s passage, proponents adopted the language of the
15
PEOPLE v. HARDIN
Evans, J., dissenting
superpredator myth, perpetuating racial prejudice and
capitalizing on dire “predictions of a juvenile crime wave.”
(Voter Information Guide, Primary Elec. (Mar. 7, 2000),
argument in favor of Prop. 21, p. 48.) Contrary to the ballot
material claims, juvenile crime had, in fact, been declining since
1993. (See pp. 10–11, ante.
Even after the superpredator myth was exposed as false
and the system began to refocus on rehabilitation, Black youth
continue to disproportionately “experience the devastating
effects of legislative and policy shifts that undermined the core
rehabilitative philosophy of American juvenile courts in the
wake of the superpredator myth.” (Henning, supra, 86 Geo.
Wash. L.Rev. at p. 1622.) They continue to be viewed as older
and more culpable than White youth (id. at p. 1627) and, as
noted above, have experienced the disproportionate imposition
of LWOP sentences. Passed in the wake of the superpredator
myth, the LWOP exclusion at issue here is part of this legacy of
dehumanization and harm against Black and Brown youth.
*
*
*
The LWOP exclusion perpetuates extreme racial
disparities in our criminal and juvenile justice systems. The
historical and invidious discrimination against Black and
Brown youth in criminal and juvenile justice policy provides
important context when analyzing whether the exclusion has a
rational basis. The LWOP exclusion is particularly striking
since the Legislature otherwise recognizes that youthful
offenders as a class have diminished moral culpability.
Particularly given the context of the LWOP exclusion’s
enactment and its discriminatory impact, the statutory
classification must serve the Legislature’s expressed purpose —
16
PEOPLE v. HARDIN
Evans, J., dissenting
to provide youthful offenders with a meaningful opportunity to
obtain release upon a showing of maturation and rehabilitation.
In light of that purpose and lack of any difference in the brain
development or capacity for rehabilitation between excluded
and non-excluded young people, the LWOP exclusion is
irrational.
This case calls on us to correct a legacy of casting Black
and Brown youth as predatory, remorseless, and irredeemable,
older than they are, and treated differently from White youth.
The equal protection clause demands that lawmakers extend
the mercy, dignity and grace embodied in the youthful offender
parole eligibility scheme to all youth — regardless of the crimes
of which they were convicted. As a class, they all are less
morally culpable and are more likely to become rehabilitated
based on accepted scientific evidence regarding adolescent brain
development. The majority has avoided this heed with the
hollow promise of another day. I urge the Legislature to correct
itself by ridding section 3051 of the LWOP exclusion and
extending youth offender parole eligibility to all individuals who
were convicted in their youth.
I respectfully dissent.
EVANS, J.
17
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Hardin
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 84 Cal.App.5th 273
Review Granted (unpublished)
Rehearing Granted
Opinion No. S277487
Date Filed: March 4, 2024
Court: Superior
County: Los Angeles
Judge: Juan Carlos Dominguez
Counsel:
William L. Heyman, under appointment by the Court of Appeal;
Munger, Tolles & Olson, William D. Temko, Sara A. McDermott, Adeel
Mohammadi; USC Post-Conviction Justice Project, Heidi Rummel,
Michael Parente and Danielle A. Wilkins for Defendant and Appellant.
Complex Appellate Litigation Group and Greg Wolff for Human Rights
Watch, State Senator Loni Hancock (Ret.), the Anti-Recidivism
Coalition, the LWOP Alliance Group at Calipatria State Prison and the
National Life Without Parole Leadership Council as Amici Curiae on
behalf of Defendant and Appellant.
Law Office of B.C. McComas, Brian C. McComas; and Eric Weaver for
the Santa Clara County Independent Defense Counsel Office as
Amicus Curiae on behalf of Defendant and Appellant.
Cooley, Kathleen R. Hartnett, Darina Shtrakhman, Prianka Misra,
Ariana E. Bustos, Adam S. Gershenson, Matt K. Nguyen; and Marsha
L. Levick for Neuroscience, Psychology and Juvenile Justice Scholars,
Juvenile Law Center, the American Academy of Pediatric
Neuropsychology, the Pacific Juvenile Defender Center and the
Sentencing Project as Amici Curiae on behalf of Defendant and
Appellant.
Kim Saltz; Avram Frey; Summer Lacey; and Diana Garrido for The
ACLU, The ACLU of Northern California, The ACLU of Southern
California, The California Public Defenders Association and The
Contra Costa Public Defender Office as Amici Curiae on behalf of
Defendant and Appellant.
Law Office of Michael Laurence and Michael Laurence for Catherine
M. Grosso as Amicus Curiae on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Michael J. Mongan, State Solicitor
General, Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Helen H. Hong, Deputy
State Solicitor General, Noah P. Hill, Idan Ivri and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
Jason Anderson, District Attorney (San Bernardino), and Brent J.
Schultze, Deputy District Attorney, for the District Attorney of San
Bernardino County as Amicus Curiae on behalf of Plaintiff and
Respondent.
Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice
Legal Foundation as Amicus Curiae on behalf of Plaintiff and
Respondent.
Jeffrey F. Rosen, District Attorney (Santa Clara), and David R. Boyd,
Deputy District Attorney, for the District Attorney of Santa Clara
County as Amicus Curiae on behalf of Plaintiff and Respondent.
Gibson, Dunn & Crutcher, Eric D. Vandevelde, Jamila D. MacEbong,
Patrick J. Fuster, Benjamin W. Holston, Jenna Bernard, Maya M.
Halthore and Allison P. Miller for Prosecutors Alliance of California as
Amicus Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Heidi Rummel
USC Post-Conviction Justice Project
699 Exposition Boulevard, University Park
Los Angeles, CA 90089
(213) 740-2865
Sara A. McDermott
Munger, Tolles & Olson LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
(213) 683-9556
Helen H. Hong
Deputy State Solicitor General
600 West Broadway, 18th Floor
San Diego, CA 92101
(619) 738-9693
Opinion Information
| Date: | Docket Number: |
| Mon, 03/04/2024 | S277487 |
