What sentence is appropriate for the following crime:
Defendant holds down a nine-year old boy on a dining room table and then tells another boy to (1) stick his hand in a bag and then stick his hand in the nine-year old's butt, (2) put a Star Wars light saber with a broken tip in the nine-year old's butt, and (3) rub his penis on the nine-year old's butt, and in response to each of these requests/orders, the other young boy did so because he was afraid of defendant.
That's a pretty grim set of crimes, right? No one wants their nine-year old abused in such a fashion.
So what's the appropriate sentence?
Oh. One more thing. The defendant is a sixteen year old boy.
I'm not sure if that last fact changes your answer. But it likely changes mine.
The trial court gives the defendant a sentence of 30 years to life. It doesn't like that it's compelled to do so, and notes that it has "sent a number of people to prison for first degree murder for less than the sentence" it felt it had to impose here. But that's what the relevant statutes say, so the trial court held it had no discretion, even though if it were up to him, he'd have thought a sentence of 15 to life would be more just.
The Court of Appeal affirms. Justice Bedsworth holds that this doesn't constitute cruel and unusual punishment, and is a permissible sentence for a sixteen year old, because it's not LWOP and because the sixteen year old will be eligible for parole thirty years hence, when he's 47.
Even if he would have reached the same result, I wish that Justice Bedsworth would have displayed a bit more remorse about the equities. Instead, the opinion lacks anything like that, and suggests that a sentence of 30 to life seems just about right for the underlying crime. Mind you, if the sixteen year old had simply killed the victim, he'd almost undoubtedly serve less time. But that's apparently not a reason to doubt the wisdom or righteousness of the sentence. Or at least that's the thought you're left with after reading the opinion, since there's nothing in there at all to suggest a contrary principle.
This is disappointing for two reasons. First, the precedent on this issue is in flux. Yes, I agree with Justice Bedsworth that the Supreme Court has thus far limited its holdings about youthful offenders to situations in which the defendant effectively never gets out of prison (and ditto for the California courts), so those cases are arguably distinguishable. But the rationale of those cases could potentially extend to lesser sentences too, particularly when, as here, a child is unlikely to have a meaningful life upon release having essentially spent his entire existence in prison. Yes, it's true, a 47-year old might indeed expect a decade or two of freedom before he dies (assuming, of course, he doesn't die earlier, in prison, or that his post-release life expectancy isn't reduced by his thirty years of incarceration). I shudder to think, however, of the quality of those final two decades.
More importantly, there's something about the fact that the defendant is a child. That's the reason for the Supreme Court's precedent. Because we know that children are simply not as culpable as adults. Their moral reasoning isn't fully developed. We know they do messed up, utterly inexplicable stuff that might well indicate a fully depraved heart if done by an adult, but that nonetheless may well not mean the same thing for a child. Did Perez know that he was doing something wrong when he told another child to stick a Star Wars light saber into another child's butt? I'm sure he did. But my sense is that -- in a totally messed up way -- he somewhat thought it was a "game". And I'm darn sure that he didn't recognize the seriousness of what he was doing. His internal assessment of the situation, as a child, was qualitatively different than what an adult would be thinking. That's simply the nature of children. Particularly, I might add, as regards sexual practices with another child.
But none of that matters to the statute. At all. The statutes makes the child be charged as an adult. No discretion. It makes the sentence be 30 to life. No discretion. The statute's designed for adults, and concerns the forceful molestation of children. We are understandably harsh about that. But the text of the statute facially applies whenever the defendant is seven years older than the victim. Even if the defendant is himself a child. Ergo the virtually life-long incarceration. A result that, at least as far as you can tell from the opinion, seems entirely fine to Justice Bedsworth.
I think there's a colorable argument to be made that a statute that entirely removes discretion with respect to child offenders and that automatically sentences them to serve nearly all of their relevant adult years in prison is unconstitutional under the Supreme Court's precedents. Is it a slam dunk? No way. Would the Supreme Court actually so hold? Maybe. Maybe not. I could certainly see three or four votes for such a proposition, and maybe even five. I could certainly see such a holding come out of a differently-constituted Court, or from a state supreme court not compelled to interpret its state constitutional provisions identically to those contained in the federal Constitution.
Which is not to say that Justice Bedsworth necessarily gets this one wrong. If I were a betting man, my money would, in truth, be on the U.S. Supreme Court doing the same thing. Albeit with a dissent.
But here's the thing. Tone matters. Caveats matter. When you're dealing with locking up a child for a minimum of 30 years, I think it makes sense to demonstrate some concern. Some feeling that what you're doing may not, in fact, be just. Some feeling that it's not just history that may view the holding that you now pronounce as unsound, but that a large segment of society -- not just the child's parents -- may feel that an injustice has been done, and that a child has essentially had his life taken away by mandatory structures that wrongfully do not take into account the fact that the perpetrator is a child.
One final thing. Justice Bedsworth ends his opinion by saying that "Perez makes no argument or data to the effect that other American jurisdictions impose on 16-year olds significantly more lenient sentences than the ones given here." Well, I can't say what data Perez had. But it only took me five minutes on Google to discover that the average sentence for juveniles convicted and sentenced in adult court for sexual assault is less than nine years; i.e., less than a third of what Perez received.
Oh. One more thing. Don't forget we're part of a global community. Let's compare Perez's sentence to the worst of the worst. Perez gets 30 years. What sort of sentence would we give someone who, say, (1) was an adult, (2) who dresses up as a police officer, goes to a youth camp, and methodically shoots and kills 69 people, mostly children, and then (3) smiles about it and is utterly remorseless?
That guy, Anders Breivik, gets 21 years. Nine less than the toy lightsaber-wielding sixteen year old offender here.
