Applying a newly modified equal protection analysis, a 5-2 Supreme Court in People v. Hardin today rejects a challenge to a statutory scheme that excludes from otherwise possible youth offender parole those defendants who are convicted of special circumstances murder — committed when they were between 18 and 25 years old — and sentenced to life without parole. Possible parole is available to, among others, defendants sentenced to life without parole for murders committed before they turn 18 and defendants sentenced to 25 years to life for crimes, including first degree premeditated murder, committed when they were under 26 years old.

The court’s opinion by Justice Leondra Kruger notes that a series of U.S. Supreme Court decisions have “explained why juvenile offenders are ‘constitutionally different’ from adult offenders for purposes of criminal sentencing,” but concludes, “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.”

The court also changes the way it has approached equal protection issues. Previously, it was a two-step test, the first determination being whether “ ‘ “ ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ ” ’ ”  (Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1102.) Now, the court says, “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 adequately justified under the applicable standard of review.” The change was presaged by a Justice Kruger concurrence in Eric B. and a call for supplemental briefing on the issue in Hardin. (See here.)

But the change won’t cause an upheaval in past precedents — including some death penalty cases — that were based on the now-discarded two-step test. The court says, “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.”

Justices Goodwin Liu and Kelli Evans both file extended dissenting opinions, of 51 and 17 pages, respectively. Before today, Justice Liu showed a continued interest in issues concerning parole eligibility for young adults (see herehere, and here), including filing two separate statements (see here and here).

Saying that the court’s historical equal protection “approach is deferential but far from toothless,” Justice Liu’s strongly worded dissent contends that “the exclusion of persons convicted of special-circumstance murder from youth offender parole eligibility does not meet the basic test of rationality.” He writes, “The law targets a class of offenders who are overwhelmingly Black or Hispanic, 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. [Citation.] 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.” He notes that the defendant is now 60 years old and is 35 years removed from the murder he committed.

Justice Evans focuses more than Justice Liu on the disparate racial impact of the Legislature’s classification and argues that disparity should inform the court’s decision. She argues, “The LWOP exclusion offends the Legislature’s only express and articulated purpose of the youth offender parole eligibility scheme and lacks rationality. [She says the purpose is “to provide youthful offenders with a meaningful opportunity to obtain release upon a showing of maturation and rehabilitation.”] The exclusion bears the taint of racial prejudice and perpetuates extreme racial disparities plaguing our juvenile and criminal justice systems.”

Justice Evans writes, “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.” “[W]hy did the Legislature ignore the brain science and disparate impact of the LWOP exclusion on young people of color?,” she asks. She continues, “The Legislature enacted the LWOP exclusion against the backdrop of the now-debunked ‘superpredator’ myth,” a myth that “specifically demonized young Black males.” Justice Evans concludes that “[t]his 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 court’s opinion expressly states it’s not deciding the question before it in the still pending People v. Williams case (review granted almost four years ago (see here and here)): “Does Penal Code section 3051, subdivision (h), violate the equal protection clause of the Fourteenth Amendment by excluding young adults convicted and sentenced for serious sex crimes under the One Strike law (Pen. Code, § 667.61) from youth offender parole consideration, while young adults convicted of first degree murder are entitled to such consideration?”

The court reverses the Second District, Division Seven, Court of Appeal’s published opinion, which was contrary to numerous previous and subsequent appellate court decisions.