The unknowable weight of separateness

The separation of powers doctrine -- the constitutional mandate that divides our government into three branches and then narrowly delineates the specific instances when one may trespass onto the others' designated turf -- has been described by the courts as both "important" and "fundamental." Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1408 (2018); Strumsky v. San Diego County Employees Retirement Assn., 11 Cal. 3d 28, 35 (1974).

But this begs the question: How important is it? In other words, how much weight should one branch's solicitude of the other's -- most relevant here, the judiciary branch's solicitude of the legislative's -- be accorded?

We may get some sense of that weight depending on how the California Supreme Court resolves two pending cases involving very different issues -- namely, People v. Williams, S262229 and People v. Lemcke, S250108.

Williams presents the question: May the Legislature treat convicted sex offenders differently than other youthful offenders when deciding who should get an earlier opportunity for parole?

In 2012, the California Legislature enacted Penal Code Section 3051. In response to United States Supreme Court decisions holding that sentencing a juvenile (that is, someone under 18 years of age) to a mandatory term of life in prison without the possibility of parole (LWOP) constituted cruel and unusual punishment, e.g., Graham v. Florida, 560 U.S. 48, 74 (2010); Miller v. Alabama, 567 U.S. 460, 470-71 (2012), Section 3051 gave juveniles a statutory right to a "juvenile offender parole hearing" (at 15, 20 or 25 years into their sentences) where they would have a "meaningful opportunity for release" on parole based on the "diminished culpability of youth" at the time of their crime and their "growth and maturity since the time of the crime." The Legislature subsequently extended the reach of Section 3051 by upping the maximum age of eligible defendants from 17 to 23 to 25. However, the Legislature has consistently denied access to Section 3051 to persons (1) sentenced under California's One Strike Law for violent sex offenders, and (2) sentenced to LWOP if they are 18 or older. Penal Code Section 3051(h).

At issue in Williams is whether the exception that denies violent sex offenders a "juvenile offender parole hearing" treats similarly situated offenders differently, thereby violating equal protection. The Court of Appeal in Williams held there was no violation of equal protection because the Legislature's "concerns about recidivism by those who commit violent sex offenses" -- the same concern animating several other laws like the Sexually Violent Predators Act, the Mentally Disordered Offenders Act, and the registration of many sex offenders -- distinguished those youthful offenders from other youthful offenders who had committed different offenses. People v. Williams, 47 Cal. App. 5th 475, 491-92 (2020).

The Court of Appeal in People v. Edwards, 34 Cal. App. 5th 183 (2019) came to a different conclusion. Specifically, Edwards faulted the People for "cit[ing] no evidence that violent rapists recidivate more than other felons." Without this empirical evidence, Edwards reasoned, Section 3051's exception for violent sex offenders lacked a basis for treating violent sex offenders differently. Id. at 195, 198-99.

The Williams-Edwards split over the importance of empirical evidence is mirrored with respect to another issue under Section 3051.

As noted above, Section 3051 also denies access to "juvenile offender parole hearings" to persons receiving LWOP sentences if they are 18 or older, but grants such hearings to those under the age of 18. Persons who are convicted of murder with special circumstances (which is what triggers an LWOP sentence) when they are 18 have challenged this age distinction as also violating equal protection. So far, the courts have uniformly rejected these challenges, echoing the U.S. Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 574 (2005) that line-drawing is a necessary evil and "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood." People v. Montelongo, 55 Cal. App. 5th 1016 (2020); People v. Jackson, 2021 Cal. App. LEXIS 152 (2021); In re Williams, 57 Cal. App. 5th 427 (2020). However, a growing number of courts and jurists have urged the Legislature to treat all persons under the age of 25 similarly because the empirical "science and social science ... show[] that some differences between juvenile and adult brains persist[] into the late teenage years and early 20s." Montelongo at 1039-40 (Segal, J., concurring); Jackson at *19-*20 (Dato, J., concurring); In re Jones, 42 Cal. App. 5th 477, 482-83 (2019) (Pollak, J., concurring); People v. Montelongo, 2021 Cal. LEXIS 620 (2021) (Lui, J., concurring in the denial of review); In re Williams at 436 n.7.

Lemcke presents a different question: Should the courts continue to instruct jurors that one factor relevant to assessing the accuracy of an eyewitness's identification of a defendant is how certain the eyewitness is of his or her identification.

For decades now, the standard jury instruction has enumerated several factors for jurors to consider in evaluating the accuracy of eyewitness identifications, and the certainty or uncertainty of the identification has long been a factor. CALJIC 2.92; CALCRIM 315. However, "scientific studies" have established, "at best, a weak correlation between witness certainty and accuracy." People v. Sanchez, 63 Cal. 4th 411, 462 (2016). Following the rejection of this factor by other state supreme courts, e.g., State v. Mitchell, 294 Kan. 469 (Kan. 2012), Commonwealth v. Santoli, 424 Mass. 837 (Mass. 1997), the California Supreme Court granted review in Lemcke to decide whether to eliminate the certainty factor.

Williams and Lemcke therefore present a similar, underlying question -- namely, when does empirical evidence undermine a prior rule to the point that it must be disregarded? More importantly, Williams and Lemcke present this underlying question in different contexts -- Williams examines when a court may conclude that empirical evidence undermines a legislative determination, while Lemcke examines when a court may conclude that empirical evidence undermines how courts go about their business. In this regard, Williams implicates the separation of powers in a way Lemcke does not. Whether the Supreme Court's eventual opinions in Williams and Lemcke reach different outcomes or use different analyses may therefore reflect the weight that the separation of powers concern is to be given.

Although Williams raises a straight question of equal protection, the "exceedingly deferential" review that courts give to legislation under rational basis scrutiny under equal protection law is a function of the separation of powers. City of Cleburne v. Cleburne Living Center, 473 U.S 432, 441-42 (1985), superseded on other grounds; People v. Love, 55 Cal. App. 5th 273, 287 (2020), review granted, S265445. To keep courts on their own turf and to prevent them from "'sit[ting] as a superlegislature to judge the wisdom or desirability of legislative policy determinations,'" Heller v. Doe, 509 U.S. 312, 319 (1993), courts engaging in rational basis scrutiny will uphold legislation even if it is not "empirically substantiated." People v. Turnage, 55 Cal. 4th 62, 75 (2012). But what if it is empirically contradicted? How much contradiction is necessary before a court will strike it down as lacking a rational basis?

What if, as a fanciful example, a state legislature prohibits drilling below 1,000 feet based on its belief that the earth is a giant S'More floating in space and that drilling too deeply through the graham cracker crust/mantle will cause the marshmallow-y interior to come gushing out? This would seem to be squarely contradicted by the sciences of geology and astronomy, but is it sufficiently outlandish to be struck down? Does it matter if multiple state legislatures adopt the Earth-is-a-S'More theory?

Confectionary hypos aside, this issue is anything but an idle one.

There remains much disagreement about how much weight to give to empirical evidence -- on nearly every topic from climate change to incarceration.

And there remains a distinction between the scrutiny courts give the policies that order their own affairs and the scrutiny courts give policies enacted by legislatures. One need look no further than our collective experience with the COVID-19 pandemic to see that courts have treated their own policies for staving off the pandemic differently than they approach the review of legislatively enacted policies for doing the same (at least where no individual, fundamental constitutional rights are at stake).

What Williams and Lemcke may do is give a better sense of the extent of this differential treatment -- albeit in different contexts and involving extrinsic evidence of potentially different magnitudes -- and, thus, what weight the separation of powers concern that animates that treatment is to be given. 