Commentary: Should There Be Effective Life Without Parole in Non-Capital Cases?


Last week Judge David Reed sentenced Joseph Hernandez to 93 years in prison.  That means the 26-year-old would effectively be 119 at the time his sentence expires, or 106 by the time he is eligible for parole, assuming he serves 85 percent of the time.

Mr. Hernandez was one of three co-defendants, along with Fakhem Bradford who received 13 years and four months and Joshua Givens, who is facing 26 years in his sentencing hearing.

The three young men were convicted of multiple counts of first-degree burglary, receiving stolen property and conspiracy, following a nearly five-month trial.  Prosecutors claimed that Mr. Hernandez and his cohorts burglarized 34 homes between the fall of 2012 and January of 2014, when they were arrested.

They sold that stolen property to pay for rent and other expenses.

This is not a case where we have reason to doubt the guilt or innocence here.  This is not a wrongful conviction.  It is also not a case where a man is facing 25 to life for stealing a bag of shredded cheese or a pizza.

At the same time, it is a case where the punishment does not seem to fit the crime.  In effect, Mr. Hernandez has received a de facto life without parole sentence and he has been sentenced to die in prison for property crimes.

Again, this is not to make light of the impact that residential burglars have on property owners or the victims.  But no one was physically harmed.  He is not a serial murderer or rapist.  And so, once again, from our view, the punishment far exceeds the crime.

During the sentencing hearing, Deputy Public Defender Allison Zuvela argued, “Sentencing Mr. Hernandez to a de facto life sentence would violate the 8th amendment.”

Here she relied on the 2012 case from People of California v. Caballero which held that sentencing a juvenile offender “for a non-homicide offense to a term of years with a parole eligibility date that falls outside the offender’s natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.”

In this ruling, it allows the authorities to later “determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful
opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.”

That means that a juvenile offender under People v. Franklin (2016) get “adequate procedures” to ensure a “meaningful opportunity for release.”

Mr. Hernandez, now at 26, clearly does not fit under youthful parole provisions as the law currently understands them.

Still, Ms. Zuvela argued that “it is cruel and unusual to impose a life sentence on Mr. Hernandez as he fits the features of what a youthful offender is.”

The “hallmark features of youth” are “poor judgment, impulsivity, recklessness, failure to fully appreciate the consequences of his or her actions, susceptibility to negative peer influences, powerlessness in affecting the home environment, and the inability to extricate himself or herself from the negative/criminally oriented setting outside the home.”

Youth offenders, she argued, are given special consideration because of the “‘developments in psychology and brain science [that] continue to show fundamental differences between juvenile and adult minds,’ including ‘parts of the brain involved in behavior control.’ 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 development occurs, these individuals can become contributing members of society.”

She further points out, “The law has now expanded to those who commit crimes who are 25 or under as the law is now mirroring the science.”

That would include Mr. Hernandez at the time of the crime.

On Friday, she argued that Mr. Hernandez should receive an 18-year, four-month sentence.  She argued that “the mitigating factors balance the aggravating factors and that he should get the mid-term of 4 yrs as the principle term, which would be doubled to 8 yrs.”

Ms. Zuvela also asked the court to dismiss a prior conviction pursuant to the Three Strikes law in a Marsden motion regarding ineffective or conflicted counsel.

She referenced the 2010 probation report and argued that “the facts of the 2010 case are much different from the current case. Mr. Hernandez was not present at the burglary. He simply let others know that the victims were not going to be at their house.”

Mr. Hernandez was in 2010 convicted of felony burglary and received a four-year suspended sentence and granted probation.

In neither case was Mr. Hernandez “involved in any egregious acts of violence.”

Ms. Zuvela in her motion also cited Mr. Hernandez’s troubled history.  She argued that his conduct “is the by-product of a turbulent childhood, substance abuse, and an unstable home environment combined with an adolescent b~ in which the frontal lobe, the decision making center, is not fully developed. As a result, Mr. Hernandez made poor choices and received multiple convictions for actions. He is very intelligent and has the ability to succeed if given an opportunity.”

She argued: “Mr. Hernandez has made some poor choices but as this case has progressed he has grown up. He was 22 when the conduct occurred but now is 26.  Mr. Hernandez has much potential.”

The question here is not whether Mr. Hernandez needs to serve prison time for his crimes, but what is a reasonable sentence.  Frankly, the 18-year sentence seems reasonable, and that would put him in prison well into his forties.  Studies show that most people in their forties are not a threat to commit additional crimes.

Critics of sentencing in the United States have pointed out that our sentencing schemes are counterproductive and not cost effective.

We end up sentencing people more as they get older and commit additional crimes. There is a logic to that – we tend to go easier on people who have been convicted of fewer crimes, assuming that those who repeatedly commit crimes are more likely to continue to do so.

But the research shows that criminal activity actually peaks relatively early in life and, as individuals age, they commit fewer crimes and the crimes they commit tend to be less violent. The truly dangerous and unrepentant career criminals are relatively rare.

Not only are older people much less likely to commit further crimes, the cost to incarcerate them goes up as they require more health care.

Marc Mauer, director of The Sentencing Project, has advocated for a 20-year cap that gives judges or parole boards the opportunity to add more time if necessary.

As a recent article in the New York Times points out, “Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime.”

The peak of criminal rates are somewhere between the age of 16 and 19 for violent crimes, while forgery, fraud and embezzlement peak in the early 20s.

“For most of the crimes the F.B.I. tracks, more than half of all offenders will be arrested by the time they are 30,” journalist Dana Goldstein reports.

“Property criminals, like burglars and car thieves, tend to stop in their 20s, while violent criminals are more likely to continue into their early 30s. Drug-crime careers can be lengthier, stretching into the mid-30s, yet long sentences have had little effect on the drug trade,” the article notes.

But there is another point that this current case brings up – as much as many have pointed the finger at sentencing laws and the prosecutors for overcharging cases in Yolo County, the other factor at play here is that, most of the time, judges have discretion to reduce charges or impact sentencing and they almost never do, even in a case like this where a burglar has been basically sentenced to die in prison.

The system is broken – but it is broken in multiple places.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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5 thoughts on “Commentary: Should There Be Effective Life Without Parole in Non-Capital Cases?”

  1. Sharla C.

    It is my understanding that qualification to be treated as a Youth Offender is the age at the time of the crime, not at sentencing.  He would be entitled to parole hearings starting at 15 years.

    1. David Greenwald Post author

      The law as it is written right now does not apply to Mr. Hernandez. That is because he has a prior strike. As a result, youthful offender parole does not apply to him.

  2. Tia Will

    the research shows that criminal activity actually peaks relatively early in life and, as individuals age, they commit fewer crimes and the crimes they commit tend to be less violent.”

    I believe that current research would indicate that it would be both safe and financially prudent to have mandatory re-evaluation at age 40-45 for those convicted of non violent crimes in their 20’s or younger to see if they remain a threat to society. We continued to use a discredited and simplistic premise to incarcerate those we have judged as incorrigible based on crimes committed prior to full mental maturation.

  3. Ken A

    While it is true that as testosterone levels drop older males are less likely to get in bar fights, but one of the main reason that “older men commit fewer crimes’ is that after multiple arrests most cities put “career criminals” behind bars for a long time.  In cities like San Francisco they don’t arrest many people and if you park a nice car to a bad neighborhood a 40 something homeless guy will probably break a window within an hour…

    1. David Greenwald Post author

      “but one of the main reason that “older men commit fewer crimes’ is that after multiple arrests most cities put “career criminals” behind bars for a long time. ”

      That’s largely not true. For one thing, the phenomenon predates mass incarceration and lengthy prison sentences.

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