6XSUHPH&RXUWRI&DOLIRUQLD 6XSUHPH&RXUWRI&DOLIRUQLD -RUJH(1DYDUUHWH&OHUNDQG([HFXWLYH2IILFHURIWKH&RXUW -RUJH(1DYDUUHWH&OHUNDQG([HFXWLYH2IILFHURIWKH&RXUW (OHFWURQLFDOO\5(&(,9('RQRQ30 (OHFWURQLFDOO\),/('RQ4/3E\(PLO\)HQJ'HSXW\&OHUN No. S256149 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE WILLIAM M. PALMER, ON HABEAS CORPUS On Review From The Court Of Appeal For the First Appellate District Division Two, 1st Civil No. A154269 APPLICATION TO FILE BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONER, WILLIAM M. PALMER and BRIEF OF AMICI CURIAE HUMAN RIGHTS WATCH AND THE PACIFIC JUVENILE DEFENDER CENTER IN SUPPORT OF PETITIONER William D. Temko (State Bar No. 98858) [email protected] *Sara A. McDermott (State Bar No. 307564) [email protected] Michele C. Nielsen (State Bar No. 313413) [email protected] MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071-3426 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Human Rights Watch and the Pacific Juvenile Defender Center No. S256149 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE WILLIAM M. PALMER, ON HABEAS CORPUS On Review From The Court Of Appeal For the First Appellate District Division Two, 1st Civil No. A154269 APPLICATION TO FILE BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONER, WILLIAM M. PALMER William D. Temko (State Bar No. 98858) [email protected] *Sara A. McDermott (State Bar No. 307564) [email protected] Michele C. Nielsen (State Bar No. 313413) [email protected] MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071-3426 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Human Rights Watch and the Pacific Juvenile Defender Center TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Human Rights Watch (HRW) and the Pacific Juvenile Defender Center (PJDC), through their attorneys and pursuant to Rule 8.520(f) of the California Rules of Court, respectfully apply for leave to file the attached amici curiae brief in support of Petitioner William M. Palmer. As explained in further detail below, amici, as sponsors and supporters of much of the youth justice legislation in California, submit this brief to provide the Court with a comprehensive and balanced review of the case law, legislation, executive actions, and direct voter initiatives pertinent to the issues before the Court. IDENTITY AND INTEREST OF AMICI CURIAE HRW was founded in 1978 as “Helsinki Watch” to investigate human rights abuses in countries that signed the Helsinki Accords. HRW is an independent, international organization devoted to combatting human rights abuses. It brings together lawyers, journalists, country experts, researchers, and others to protect those most at risk in the world. HRW works in five continents. One of its divisions is devoted to Children’s Rights. That division has advocated for much of the pertinent youth justice reform in California: For example, HRW sponsored Senate Bills 9 (co- source), 260 (co-source), 261 (sponsor), 394 (sponsor), 395 (co-source), 2 1391 (co-source), and Assembly Bill 1308 (co-source). HRW also supported SB 1143. Given HRW’s unique role in sponsoring, drafting, supporting, and advocating for a large number of the bills within the California Legislature addressing youth justice reform, HRW is well positioned to provide the Court with a description of the shifting culture and norms in the Legislature toward incarcerated youth. PJDC is a regional affiliate of the Washington, D.C.-based National Juvenile Defender Center. PJDC works to build the capacity of the juvenile defense bar and to improve access to counsel and quality of representation for children in the justice system. PJDC provides support to more than 1,000 trial lawyers, appellate counsel, law school clinical programs and non-profit law centers to ensure quality representation for children throughout California and around the country. Collectively, PJDC members represent thousands of youth in juvenile court delinquency cases and youth being tried as adults in California. PJDC also engages in policy work and involvement in appellate cases aimed at assuring fairness and appropriate treatment of young people in the justice system. In this regard, PJDC has long been concerned about the handling of youth in the adult criminal justice system. PJDC wrote an amicus brief in People v. Lara, 6 Cal. 5th 1128 (2019), in which this Court found Proposition 57 applied retroactively to all cases not yet final on appeal. PJDC participated with other amici in In re 3 Cook, 7 Cal. 5th 439 (2019), regarding whether, and by what means, a person may seek a post-sentencing hearing to make a record of mitigating evidence tied to his youth. In People v. Contreras, 4 Cal. 5th 349 (2018), PJDC filed an amicus brief in a case in which this Court held that a sentence of 50 years to life for juvenile non-homicide offenders constitutes a de facto life without parole sentence in violation of the Eighth Amendment. The organization participated with other amici curiae in the cases of People v. Franklin, 63 Cal. 4th 261 (2016), In re Alatriste, S214652, and In re Bonilla, S214960, filing an amicus brief in Bonilla regarding whether imprisonment for a total term of 50 years to life for murder committed by a 16-year-old offender is the functional equivalent of life without possibility of parole by denying the offender a meaningful opportunity for release on parole. PJDC also participated with other amici curiae in People v. Gutierrez, 58 Cal. 4th 1354 (2014), in which this Court held that the Eighth Amendment forbids a presumption in favor of life without parole at sentencing hearings under Penal Code section 190.5. And PJDC participated in People v. Caballero, 55 Cal. 4th 262 (2012), in which this Court struck down the imposition of de facto life sentences on juveniles tried as adults. PJDC is knowledgeable about the relevant law, and the impact of age and immaturity on behavior, adjudicative competence, and capacity for rehabilitation. 4 PJDC is interested in this case because it presents a significant opportunity for the Court to consider the seismic policy shift in California during the past decade in the way youth are treated by the justice system in its determination as to when continued confinement becomes constitutionally disproportionate. To assist the Court in resolving the complex questions presented by this matter, amici respectfully request that their application be granted. Pursuant to Rule 8.520(f)(4), no party or counsel for any party in the pending appeal authored the proposed amicus brief in whole or in part, and no one other than the amici have made any monetary contribution intended to fund the preparation or submission of the brief. Amici are familiar with the questions involved in this case and the scope of their application, and feel that additional argument and briefing on these points will be helpful. Accordingly, HRW and PJDC request that the Court accept the attached brief and allow them to appear as amici curiae. 5 Respectfully submitted, MUNGER, TOLLES & OLSON LLP Sararragunwenoegunwenoa A. McDermott William D. Temko (State Bar No. 98858) Sara A. McDermott (State Bar No. 307564) Michele C. Nielsen (State Bar No. 313413) MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071-3426 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Human Rights Watch and the Pacific Juvenile Defender Center March 23, 2020 6 No. S256149 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE WILLIAM M. PALMER, ON HABEAS CORPUS On Review From The Court Of Appeal For the First Appellate District Division Two, 1st Civil No. A154269 BRIEF OF AMICI CURIAE HUMAN RIGHTS WATCH AND THE PACIFIC JUVENILE DEFENDER CENTER IN SUPPORT OF PETITIONER William D. Temko (State Bar No. 98858) [email protected] *Sara A. McDermott (State Bar No. 307564) [email protected] Michele C. Nielsen (State Bar No. 313413) [email protected] MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071-3426 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Human Rights Watch and the Pacific Juvenile Defender Center TABLE OF CONTENTS Page INTRODUCTION 1 ARGUMENT 4 I. Changing Norms Drove a Series of Decisions in the United States and California Supreme Courts Prohibiting the Most Extreme Sentences for Youth 4 A. In Light of the Transitory and Distinctive Traits of Youth and their Environmental Vulnerabilities, the Supreme Court of the United States Prohibits Sentencing Youth to the Death Penalty and, in Most Cases, Life Without Parole 5 B. The California Supreme Court Confirms That the Prohibition Against Sentencing Youth to Life Without Parole Includes Extreme Term-of- Years Sentences and Urges Comprehensive Legislative Reform 12 II. California’s Legislative and Executive Acts Demonstrate a Change in the Evolving Standards of Decency 15 A. Youth Offender Parole 16 B. Restrictions on Juvenile Transfer 24 C. Other Reform Measures 26 D. Governor Newsom’s Executive Support 30 E. Popular Support: Proposition 57 32 III. The Seismic Policy Shift in California Is Not Theoretical: Data Demonstrate That, If Sentenced Today, Mr. Palmer Likely Would Have Remained in Juvenile Court and Served a Sentence Less Than a Third of the Time He Has Already Spent Behind Bars 34 CONCLUSION 43 i TABLE OF AUTHORITIES Page FEDERAL CASES Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................................. 6 Graham v. Florida, 560 U.S. 48 (2010) .......................................................................... passim Johnson v. Texas, 509 U.S. 350 (1993) ................................................................................. 7 Kennedy v. Louisiana, 554 U.S. 407 (2008) ............................................................................... 10 Miller v. Alabama, 567 U.S. 460 (2012) ........................................................................ passim Montgomery v. Louisiana, 577 U.S.