To the Honorable Members of the Legislature:
In 1787, as Benjamin Franklin left the Constitutional Convention, Mrs. Elizabeth Powel asked him, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin replied: “A republic, if you can keep it.”
Today, from a California prison cell nearly 240 years later, I write because that warning echoes across time to resonate anew in our own modern era. The founding father’s warning is not just a fixed historical fact. It speaks directly to the structural test now facing our State: whether enacted law and constitutional limits will govern punishment, or whether judge-made doctrines and institutional interests will.
I write on behalf of people who were 14 or 15 years old when we were sent to adult prison under laws the State has since repudiated as animated and motivated by irrational racial fears.
We begin with appreciation. Through the Racial Justice Act and Assembly Bill 1071, you courageously acknowledged that courts had “misconstrued” remedial statutes and erected “procedural barriers” that insulate racially tainted convictions and sentences from scrutiny. You recognized what Justice Liu later described as the “silent evisceration” of the RJA through a catch-22 that denies petitioners the very data they need to prove discrimination. We commend that candor because it mattered.
But what is happening now goes beyond misconstruction. It is a form of constitutional capture. Through selective interpretation, misframing of voter-enacted reforms, and disregard of codified canons of construction, the judiciary has begun to occupy the Legislature’s and Electorate’s exclusive field: fixing punishment and its temporal reach.
I. From False “Super-Predator” Panic to Procedural Neutrality
California’s legal history shows a recurring pattern: methods of racialized control change form while preserving function. In 1855, the Anti-Vagrancy Act—known as the Greaser Act—openly targeted “Greasers, or the issue of Spanish and Indian blood.” Later, the 1990s super-predator narrative, though couched in race-neutral language, framed Black and Brown youth as uniquely dangerous and justified laws like AB 560 and Proposition 21 that made it easier to try children as adults and secure, thereby, an expanded long term prison population.
Today, the mechanism has adapted again. The lawbooks no longer say “Greaser” or “super-predator,” but neutral doctrines—finality, the Estrada presumption, “jurisdictional” limits, narrow retroactivity—perform the same work. They preserve adult sentences for 14- and 15-year-olds sentenced under a regime you and the Governor have now repudiated as rooted in irrational racial fear.
II. Disregard of Codified Canons and Positive Law
The Welfare and Institutions Code contains its own jurisdictional and interpretive framework, enacted by the Legislature and, in part, by the Electorate:
● Section 2 treats substantially similar provisions as continuations, not new enactments.
● Section 4 commands that, in any pending action, “all procedure thereafter taken therein shall conform to the provisions of this code so far as possible.”
● Section 5 declares that these General Provisions govern the construction of the Code.
● Section 11 provides that the present tense “includes the past and future tenses.”
● Section 15 makes “shall” mandatory.
● Section 202 sets the purposes of juvenile law as public safety, rehabilitation, family preservation, and care and guidance, and orders that the chapter “shall be liberally construed” to carry out those purposes.
Government Code section 9603 reinforces this design by directing interpreters to “the preliminary provisions of the different codes” as the primary source of general construction rules.
The California Supreme Court’s own decisions in In re Williamson and People v. Navarro hold that such specific statutory commands—especially those governing retroactivity and jurisdiction—control over general common-law canons. Scholars have confirmed that these legislated interpretive rules are positive law, not mere suggestions. Yale Law School constitutional scholar, Jacob Scott, describes codified canons as binding statutes that displace contrary judge-made rules.
His colleague scholar, Daniel Listwa, similarly warns that courts who ignore legislated canons and rely instead on their own interpretive habits are not engaged in interpretation but in “nullification,” a practice that “borders on lawlessness.”
Yet when it comes to the temporal reach of juvenile reforms, courts often bypass this framework entirely. They treat the Welfare and Institutions Code as if it contained a Penal-Code-style bar on retroactivity, and they default to Estrada and “finality” without ever engaging sections 2, 4, 5, 11, 15, and 202. In doing so, they silently displace positive law with judge-made doctrine—and assume for the judiciary the power to decide which children will benefit from reforms the People have already enacted with the understanding of the operational mechanics of existing law.
III. Jurisdictional Conferring and Withdrawing: Prop 57, SB 1391, and In re Harris
Under California law, all delinquency cases begin in juvenile court. The juvenile court has original and exclusive jurisdiction. Adult criminal jurisdiction over a minor exists only if the juvenile court validly relinquishes its jurisdiction through a transfer hearing under Welfare and Institutions Code section 707. Kent v. United States calls this a “critically important” proceeding because it is the gateway that determines whether the juvenile court’s jurisdiction will be waived and whether an adult court will acquire lawful authority over the child.
The mechanics are jurisdictional in substance:
● Transfer must occur before the jurisdiction hearing.
● If a criminal case was filed first, it is stayed and can resume only after transfer.
● Pleas are postponed until the transfer decision is made.
● The prosecutor bears the burden, by clear and convincing evidence, to justify moving a youth out of juvenile jurisdiction.
In this architecture, section 707 is a jurisdiction-conferring gate; without a valid transfer, the adult court never lawfully acquires power over the minor.
The Legislature and Electorate have now fundamentally altered that gate.
Proposition 57 (2016) did two crucial things:
● It shifted transfer decisions back from prosecutors to judges, eliminating direct file and requiring a “judicially controlled transfer” process.
● It codified the U.S. Supreme Court’s Miller v. Alabama “hallmark features of youth” factors into WIC § 707, making individualized consideration of youth a statutory prerequisite to adult prosecution.
Under In re Scoggins, when the Legislature codifies the precise language of controlling Supreme Court precedent, it adopts not only the words but the rationale and retroactivity framework of that precedent. Because Montgomery v. Louisiana later held Miller substantive and retroactive, Proposition 57’s mirroring language should be understood as the Electorate’s decision to implement a substantive, retroactive limit on which juveniles may be subject to adult punishment. SB 1391 (2018) then withdrew the State’s authority to transfer almost all 14- and 15-year-olds to adult court by amending WIC § 707. Legislative analyses and Governor Brown’s signing statement explicitly described the bill as “further[ing] the intent of Proposition 57,” repudiating the super-predator regime, and addressing “stark racial and geographic disparity.”
This is not mere amelioration. It is a jurisdiction-withdrawing enactment. For that cohort, adult criminal jurisdiction no longer exists. Senate Bill 135 (2023) confirmed this structural reading by amending WIC § 607(d) and (m) to clarify that juvenile courts retain jurisdiction over people well into adulthood when implementing reforms in old cases. In re Harris (1993) already supplies the remedial template when jurisdiction is found wanting:
● deem the adult conviction a juvenile adjudication, vacate the adult sentence, and remand for a new disposition under current juvenile law.
There, the Supreme Court held that sentencing a 15-year-old as an adult under a statute reserving adult prosecution for those 16 and older was an act “in excess of [the court’s] jurisdiction,” requiring exactly that adult-to-juvenile jurisdiction conversion remedy.
Applied honestly, this framework leads to a simple conclusion:
● for those who were 14 or 15 at the time of offense, continuing to enforce adult sentences after Prop 57, SB 1391, and SB 135 is at best legally precarious and at worst ultra vires, because the State has withdrawn the jurisdictional basis for those sentences.
IV. Constitutional Capture: Misframing Reform as Mere Amelioration
Despite this architecture, courts often characterize Proposition 57 and SB 1391 as merely retroactivity-optional ameliorative sentencing measures. They treat them as if they slightly lowered punishment but left the underlying jurisdiction intact and subject to Estrada’s default rule.
This misframing has three consequences:
● It ignores that these measures were explicitly introduced as long-term structural solutions to the unconstitutional prison overcrowding condemned in Brown v. Plata and to the juvenile proportionality crisis addressed by Miller and Graham v. Florida.
● It conflicts with the single-subject rule’s germaneness requirement by treating Prop 57’s juvenile component as if it were a stand-alone ameliorative tweak, rather than an integral part of the initiative’s unified purpose: reducing unconstitutional prison overcrowding through jurisdictional restructuring and rehabilitation.
● It permits finality—a value derived from adult retribution and deterrence—to trump the rehabilitative, youth-centered hierarchy that Graham and Miller established for children and that WIC § 202 codifies as state policy.
In effect, the judiciary is fixing punishment where the Electorate and Legislature, through mechanics of existing law, have already fixed it differently. That is a classic separation-of-powers violation:
● the branch tasked with interpreting law has begun to rewrite it in ways that preserve past outcomes at the expense of present statutes.
V. Juvenile Law as “Civil” or “Criminal” on Demand
To preserve these outcomes, courts have also deployed a selective taxonomy. When characterizing juvenile law as “civil” helps avoid ex post facto limits or expands state power, the civil label is emphasized. But when the same framework would expand remedial reach—such as applying Prop 57 or SB 1391 to legacy cases—courts reframe juvenile provisions as “criminal” in order to invoke Estrada and finality, thereby insulating old convictions.
This was visible, for example, in litigation over juvenile registration and punishment, where juvenile law was designated “civil” to avoid constitutional challenges, yet Prop-57-related reforms were treated as “criminal” when individuals sentenced as children sought their benefit. The same body of law cannot be civil for purposes of state power and criminal for purposes of relief without eroding its coherence and remedial purpose. These are the “remarkable powers of adaptation” you identified in AB 1071, now operating not only to misconstrue individual statutes but to re-categorize whole domains of law to avoid their remedial effect.
VI. Racial Justice, Economic Costs, and the Constitutionalization of Prison Power
The Legislature and Governor have officially repudiated the super-predator transfer regime as racially biased and unsupported by evidence. Committee reports for SB 1391 documented that Latino youth were 4–5 times more likely and Black youth more than 10 times more likely to be transferred than white youth for similar conduct. AB 1071’s findings lament courts’ use of procedural barriers to keep such racially tainted convictions from review. Yet those same convictions persist, shielded by doctrines that the governing statutes do not require nor support.
Economically, the picture is just as irrational. California spends roughly $130,000 per year to incarcerate a person in adult prison; over decades, a single youth-onset sentence can cost taxpayers millions. Juvenile rehabilitation, by contrast, costs far less and is aligned with long-term public safety. Voters were told that Proposition 57’s juvenile provisions would “reduce state prison and parole costs as those youths would no longer spend any time in prison or be supervised by state parole agents.”
By narrowing those provisions through interpretation, the judiciary has produced the opposite result: prolonged adult incarceration for a cohort that current law and science say should have been treated in juvenile systems.
At the same time, Proposition 57’s constitutional amendment—Article I, section 32—constitutionalized elements of CDCR’s operational authority, including credit-earning and parole consideration rules. This is extraordinary. Constitutional text is ordinarily reserved for declaring and protecting rights and freedoms of the People or for structuring government generally. Here, the Electorate elevated aspects of prison administration itself to constitutional status as part of an imperative response to the Plata prison constitutional crisis.
No other state appears to have given its prison department comparable constitutional protections. When you combine constitutionalized prison power with judicial doctrines that restrict access to remedial statutes, you approach a condition where the prison system’s interests are structurally favored over the rights reforms were designed to protect.
That is the essence of constitutional capture.
VII. The Path the Legislature Can Take
Under our Constitution, it is your branch that defines crimes, fixes punishments, and confers jurisdiction. To restore alignment between enacted law and actual outcomes—and to keep the republic Franklin warned us could lose—we respectfully urge three targeted actions:
● Enact declarative law: (i) reasserting the Legislature and Electorate’s lawmaking constitutional supremacy; (ii) Unequivocally clarify the premier “Interpretive Authority” in Juvenile Law; (iii) Codify that in juvenile matters, the Welfare and Institutions Code’s Preliminary and General Provisions—sections 2, 4, 5, 11, 15, and 202—are binding interpretive rules that displace contrary judge-made canons where conflict exists.
● Explicitly reference In re Williamson, People v. Navarro, and the codified-canons scholarship of Scott and Listwa to confirm that legislated canons are positive law that courts must follow.
● Jurisdiction and Remedy for 14–15-Year-Olds. Declare that SB 1391’s withdrawal of transfer authority for almost all 14- and 15-year-olds is jurisdictional in nature and applies irrespective of finality. Provide a uniform remedial pathway, codifying In re Harris (1993), for converting past adult convictions into juvenile adjudications with new dispositions consistent with Electorate intent and current law. WIC §§ 602, 607(d), 607(m), and 202.
● Racial Justice Implementation and Data Transparency. Require state and county agencies to make charging, conviction, and sentencing data publicly available in forms usable for RJA litigation. Specify that procedural doctrines—including timeliness, exhaustion, or claimed jurisdictional limits—may not be applied in ways that foreclose discovery or hearings where a prima facie showing of racial disparity or bias has been made, consistent with AB 1071’s command to “stare at racial disparity unblinkingly” and with Justice Liu’s warnings.
These steps do not create new rights. They enforce the rights already enacted and the constitutional principles you have already chosen to implement—Graham, Miller, Montgomery, Plata, and the Racial Justice Act.
VIII. Keeping the Republic
Today, two people who committed the same offense at age 15 stand in radically different positions. One, sentenced after 2016, benefits from Proposition 57, SB 1391, SB 135, and modern understanding of youth:
● juvenile jurisdiction, rehabilitative focus, and release when safe.
The other, sentenced in 1996 or 2000, remains in adult prison under a transfer regime you have renounced and a punishment structure the U.S. Supreme Court and this Legislature have moved beyond. The only difference is the date of conviction.
The mechanism preserving that disparity is not a statute; it is judicial doctrine.
A republic endures when each branch honors the limits of its own authority and the commands of the others. The Legislature and Electorate have spoken clearly about juvenile jurisdiction, racial justice, and rehabilitation. Where interpretive habits and institutional interests prevent those enactments from taking effect for those of us sentenced as children, legislative clarification is not an intrusion. It is a constitutional necessity.
I have spent three decades in California prisons, including one of those decades in solitary confinement. During that time, I have studied the law, litigated pro se, obtained a 2015 San Francisco federal jury verdict against prison officials for retaliation—spurred by helping other prisoners file grievances—founded a violence-reduction program that continues to operate to this day, and earned a college degree. I do not ask for mercy. I ask for constitutional compliance and statutory fidelity. The evidence exists. The complaints are filed. The case law and scholarship work are available. If you wish to see them, I will provide them.
Franklin’s answer—“A republic, if you can keep it”—was both description and warning. In California today, keeping the republic requires ensuring that the Judiciary cannot, through “remarkable powers of adaptation,” undo the democratic decisions you and the People have already made, especially where the exclusive prerogative of the Republic’s constitutional lawmakers and juvenile sentencing values, democratically adopted, are not the sole stakes. A deeper structural stake of the California Republic is that through a politically vulnerable class of individuals, here the juveniles sentenced during the height of the super-predator myth era, the pattern reveals how the powers of animus not only adapt but metastasize and overtake the Republic.
Respectfully,
Jesse Perez
Delano, CA 93216
On behalf of those sentenced as children under laws this State has since repudiated, and a duty to both justice and Republic.
Follow the Vanguard on Social Media – X, Instagram and Facebook. Subscribe the Vanguard News letters. To make a tax-deductible donation, please visit davisvanguard.org/donate or give directly through ActBlue. Your support will ensure that the vital work of the Vanguard continues.
