In the Supreme Court of the United States

Transcription

1 No In the Supreme Court of the United States WYATT FORBES, III Petitioner, v. TEXANSAS, Respondent. On Writ of Certiorari to the Supreme Court of Texansas BRIEF FOR THE RESPONDENT TEAM NUMBER 4 Counsel of Record Department of State Texansas, Txs (555) State@Texansas.Gov

2 QUESTIONS PRESENTED I. Whether the lower court was correct when they found that a statute that is discretionary and allows the court to decide on a case-by-case basis did not violate the Eighth Amendment ban on cruel and unusual punishment. II. Was the Appellate Court of Texansas correct when it upheld a sentence of life imprisonment without the possibility of parole for a juvenile defendant who committed a heinous crime of murder in the second degree, which does not require intent? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iii CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...1 STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT...4 ARGUMENT...6 I. THE EIGHTH AMENDMENT S BAN ON CRUEL AND UNUSUAL PUNISHMENT DOES NOT PROHIBIT DISCRETIONARY SENTENCING OF A JUVENILE TO LIFE WITHOUT PAROLE...6 A. The sentence of juvenile life without parole is not cruel and unusual punishment because the evolving standard of decency demonstrates that there is a national consensus in support of the sentence...7 B. Juvenile life without parole is not excessive because the Eighth Amendment s proportionality requirement ensures that juveniles are given an opportunity to present mitigating factors in order to ensure individualized sentencing...12 II. LIFE IMPRISONMENT WITHOUT PAROLE FOR A JUVENILE DEFENDANT WHO COMMITS THE CRIME OF FELONY MURDER IS CONSTITUTIONAL PURSUANT TO THE EIGHTH AMENDMENT...15 A. Felony murder is an excepted rule that is recognized in forty-eight states because it is imperative to prevent inherently dangerous felonies and the resulting deaths that often follow...17 B. The plain meaning of Texansas Penal Law 125 (2016) mandates a charge of murder in the second degree where a defendant commits felony murder, which does not require the intent to take a life but only that a life be taken...18 C. Life without parole for a defendant is constitutional because it is not grossly disproportionate to the defendant s crime of felony murder even as a juvenile...22 CONCLUSION...25 ii

4 TABLE OF AUTHORITIES CASES Atkins v. Virginia, 536 U.S. 304 (2002)...7, 8, 9 Coker v. Georgia 433 U.S. 584 (1977)...6 Edmund v. Florida, 458 U.S. 782 (1982)...22, 24 Graham v. Florida, 560 U.S. 48 (2010)... passim Harmelin v. Michigan, 501 U.S. 957 (1991)... passim Kennedy v. Louisiana, 128 S. Ct (2008)...9, 12 Miller v. Alabama, 132 S. Ct (2012)... passim Montgomery v. Louisiana, 136 S. Ct. 718 (2016)...11, 15 Patterson v. New York, 432 U.S. 197 (1977)...19 Penry v. Lynaugh, 492 U.S. 302 (1989)...8 People v. Washington, 62 Cal.2d 777 (1965)...17 Roper v. Simmons, 543 U.S. 551 (2004)...9, 12, 16, 23 Rummel v. Estelle, 445 U.S. 263 (1980)...19 Solem v. Helm, 463 U.S. 277 (1983)...12 Stanford v. Kentucky, 492 U.S. 361 (1989)...8 Tison v. Arizona, 481 U.S. 127 (1987)...17, 22, 23 Trop v. Dulles, 356 U.S. 86 (1958)...7 STATUTES Model Penal Code 2.02(2)(c)...21 Model Penal Code Texansas Penal Law 125 (2016)...15, 17, 18 Texansas Penal Law 135 (2016)...19 Texansas Penal Law 160 (2016)...19 CONSTITUTIONAL PROVISIONS U.S. Const, amend. VIII...4, 6 iii

5 OTHER AUTHORITIES Brian J. Fuller, General Law Division: Case Note: Criminal Law A Small Step Forward in Juvenile Sentencing, But is it enough? The United States Supreme Court Ends Mandatory Juvenile Life without Parole Sentences; Miller v. Alabama, 132 S. Ct (2012), 13 Wyo. L. Rev. 377, 392 (2013)...13 David Crump & Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J.L & Pub. Pol y 359, 372 (1985)...18 Emily C. Keller, Constitutional Sentences for Juvenile Convicted of Felony Murder in the Wake of Roper, Graham & J.B.D., 11 Conn. Pub. Int. L. J. 297 (2012)...17 Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 501 (2011)...17 Joshua P. Gilmore, Murder Felony is Felony Murder: How the Nevada Supreme Court s decision in Nay v. State reflects the growing misconception surrounding afterthought robbery, 9 Nev. L.J. 672 (2009)...15, 17 Kallee Spooner, Juvenile Life without Parole, Undergraduate Review, 8, (2012)...11 The Campaign for the Fair Sentencing of Youth, Facts and Infographics about Life Without parole for Children 11 iv

6 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Amendment VII to the Constitution of the United States Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Texansas Penal Law 125 (2016) A person is guilty of murder in the second degree when [ ] he commits or attempts to commit robbery, burglary, [or] kidnapping [ ] and, in the course of and in furtherance of such crime or of immediate flight therefrom, he [ ] causes the death of a person other one of the participants. Texansas Penal Law 135 (2016) A person is guilty of kidnapping in the first degree when he abducts another person and when [ ] the person abducted dies during the abduction [.] Texansas Penal Law 160 (2016) A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [ ] causes serious physical injury to another person who is not a participant in the crime; or [ ] is armed with a deadly weapon. 1

7 STATEMENT OF FACTS On December 1, 2015, defendant-appellant Wyatt Trey Forbes, III (hereinafter defendant ), was convicted of murder in the second degree, robbery in the first degree, and kidnapping in the first degree by a jury of his peers. R. at 1. At the time, the defendant was 15 years old. R. at 1. Due to the severity of the crime and outrage from the public, the defendant was tried as an adult. R. at 4. At the sentencing hearing, the trial court sentenced the defendant to life imprisonment without the possibility of parole. R. at 4. Subsequently, the defendant filed a petition attempting to obtain a writ of habeas corpus in the Appellate Court of Texansas. R. at 3. The state of Texansas moved to dismiss the petition and the Appellate Court granted that dismissal. R. at 3. The defendant appealed the dismissal of his petition to the Appellate Court of Texansas and it affirmed the dismissal. On January 1, 2016, the Supreme Court of the United States granted the appellants writ of certiorari. R. at 2. On October 1, 2014, the defendant s actions lead to the death of 6 month old baby girl, Madison Taylor. He met up with some friends at a local park where he ingested synthetic cathinone, which is a drug commonly known as bath salts. R. at 3. He stole this drug from a nearby convenience store and then went back to this same store to steal some more. R. at 3. To do this, he disguised himself with his sweatshirt and went into the store with a large screwdriver and a pair of nunchuks. R. at 4. While the defendant was in the store, the clerk recognized him as a prior shoplifter and chased him outside the store. From there, the defendant hid in an alley behind the store. R. at 4. The defendant remained hidden until Pamela Taylor pulled her car into the parking lot of the convenience store. Pamela Taylor, the mother of 6 month of old baby Madison, left her 2012 Toyota Corolla running to go inside and buy diapers. Ms. Taylor left the car running, with the 2

8 doors unlocked, because Madison suffered from colic and she did not want to wake her up by turning the car on and off. The defendant saw the car pull in, climbed in to the front seat and drove away. The store clerk saw the defendant get into the vehicle and called the police. Officer Michael Dudley responded to the call and found the defendant speeding at an excess of one hundred and twenty miles per hour down a busy commercial street in town. Due to the defendant s excessive speed, the Corolla hit another car head on causing the car to roll over multiple times. The crash extinguished the life 6 month old Madison while the defendant suffered a broken collarbone. R. at 4. The defendant had previous run-ins with the law when he was arrested for shoplifting and disorderly conduct. R. at 3. He was released, due to his youth and family connections, into the care of his parents and no charges were filed. R. at 3. At trial, the defendant was found guilty of murder in the second degree, robbery in the first degree, and kidnapping in the first degree. R. at 4. During the sentencing hearing, the trial court heard testimony about the defendant and his history. After hearing all of the evidence, the trial court sentenced the defendant, in its discretion, to life in prison without the possibility of parole. R. at 6. The defendant claims that this sentence is unconstitutional because it is cruel and unusual punishment, but the Appellate Court disagreed with this reasoning. The defendant subsequently appealed to the Texansas Supreme Court. The Supreme Court of Texansas held that the sentence was not excessive when compared to the crimes the defendant committed and, further, that the trial court had properly exercised its discretion in applying the sentence. Moreover, according to Texansas law, no intent to kill is necessary for the prosecution to prove murder in the second degree when robbery, kidnapping, or burglary has been committed. R. at 5. The Supreme Court of Texansas affirmed the Appellate Court s decision and held that the 3

9 defendant s punishment was not cruel and unusual punishment and was within the trial court s discretion. The defendant subsequently appealed. R. at 6. SUMMARY OF THE ARGUMENT The Supreme Court of Texansas was correct in affirming the denial of the defendant s petition for a writ of habeas corpus because his sentence of life without parole does not need to be overturned. The Eighth Amendment of the Constitution protects against excessive sentencing by prohibiting cruel and unusual punishment. U.S. Const, amend. VIII. This Court s jurisprudence has placed categorical bans on certain sentencing practices that involve juvenile defendants. While this Court has held that the sentence of juvenile life without parole for nonhomicide convictions violates the Eighth Amendment, the sentence as applied to homicide convictions is still constitutional. This Court has continued to review the matter in recent cases, but rather than create a categorical ban, it has changed the sentencing practice to allow a defendant to proffer mitigating factors that the sentencer must consider when sentencing. This individualized approach to sentencing is in accordance with the Eighth Amendment because it takes into consideration the evolving standards of decency and the Court s individual judgment in assessing whether a sentence is disproportionate. While deference should be given to the legislature, the court looks to the objective indicia of society in order to evaluate whether there is a national consensus against the sentence. Homicide, being one of the most severe crimes, has always been meet with an equally severe punishment. While some states have changed their position on the sentence, a majority of states have retained the sentence of life without parole for juvenile defendants. Therefore a national consensus against the sentencing practice does not exist. 4

10 In applying their individual judgment, this Court has recognized that there is a distinction between juvenile and adult offenders. However, a sentence is still considered proportional if is allows for review of mitigating factors. This Court has recognized that while the sentence may not be applied to all juvenile defendants after an assessment of the mitigating factors, a categorical ban would impede justice if a juvenile has committed an egregious crime. All the states in the majority have changed their sentencing practice to reflect this discretionary approach and concomitantly reserving the option to apply the sentence, should the opportunity arise. For a sanction to be excessive it would have to be cruel and unusual and that is simply not the case at hand. The state of Texansas created a criminal statute of murder in the second degree involving the common known rule of felony murder, which was well within its power to do so. Felony murder allows for a justifiable sentence of murder when a defendant commits a dangerous felony and in doing so, takes the life of another in the process. Thus, in the interests of justice, more than a majority of states rely on this rule to deter dangerous felonies and to help save the lives of innocent collaterals to felons decisions. This juvenile defendant was tried and convicted by a jury of his peers to murder in the second degree and after careful consideration and the presence of the juveniles youthful and family background, the trial court, in its discretion, sentenced the defendant to life without parole. What occurred in the Texansas district court is in accordance with all of the criteria that this Court has set forth thus far regarding the subject of life without parole for a juvenile. The felony murder rule has always been applied to cases involving a murder because even though there is no need to prove intent to kill, a life has been taken by the defendant. There are times, where even as a juvenile, an individual can act with his own cognitive ability to his 5

11 surrounding circumstances and do so with a reckless indifference to the life of others. Therefore, the sentencing of a juvenile defendant convicted of a homicide is constitutional under the Eight Amendment because its compliance with the new sentencing practices set forth by this Court ensures that it is not grossly disproportionate and thus, this sentence should be affirmed. For the following reasons, we ask that this Court affirm the decision of the Supreme Court of Texansas. ARGUMENT I. THE EIGHTH AMENDMENT S BAN ON CRUEL AND UNUSUAL PUNISHMENT DOES NOT PROHIBIT DISCRETIONARY SENTENCING OF A JUVENILE TO LIFE WITHOUT PAROLE. Sentencing a juvenile offender who has been convicted of homicide to life without parole is constitutional under the Eighth Amendment because a sentence cannot be deemed excessive when the sentencer accounts for the individualized mitigating factors of the defendant. The Eighth Amendment of the United States Constitution states that: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. Amend. VIII. When a sentence is deemed to be grossly disproportionate it is inherently cruel and unusual and consequently unconstitutional under the Eighth Amendment. In assessing whether a sentence is cruel or unusual punishment the court first looks to the evolving standard of decency to see if the objective indicia of society s standards has established a national consensus against the sentencing practice. Miller v. Alabama, 132 S. Ct. 2455, 2474 (2012). The court then looks to its own independent judgment to determine whether the sentence is excessive. Punishments can be deemed excessive if it (1) makes no measurable contribution to acceptable goals of punishment or (2) it is grossly out of proportion to the severity of the crime. Coker v. Georgia 433 U.S. 584, 592 (1977). 6

12 The Court has had an opportunity to address whether the sentence of life without parole for a juvenile defendant is facially unconstitutional. This Court in Miller held that mandatory sentencing of life without parole was unconstitutional, but left the door open for state courts to apply the sentence where they deemed it necessary after an evaluation of the mitigating factors on a case-by-case basis. 132 S. Ct (2012). Since Miller did not create a categorical ban on the sentencing practice, discretionary sentencing is not disproportionate and therefore constitutional. A. The sentence of juvenile life without the possibility of parole is not cruel and unusual punishment because the evolving standard of decency demonstrates that there is a national consensus in support of the sentence. Discretionary sentencing of a juvenile to life without parole is consistent with the nation s evolving standard of decency as emphasized by this Court s recent jurisprudence and the current legislative trend. In Trop v. Dulles, this Court acknowledged that what may have been constitutionally acceptable under the Eighth Amendment when it was first ratified may be cruel and unusual under today s standards. 356 U.S. 86 (1958). Chief Justice Warren stated in this decision that the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S. 86, 101 (1958). In evaluating the evolving standards of decency, the Court examines the objective indicia of society s standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Graham v. Florida, 130 S. Ct. 2011, 2021 (2012). Within this examination the Court takes into consideration public opinion in establishing whether there is a trend in favor of abolishing the sentence. Atkins v. Virginia, 536 U.S. 304, (2002). 7

13 In Stanford v. Kentucky, the Court was tasked with determining whether the Eighth Amendment prohibits the death penalty for juvenile defendants. 492 U.S. 361, 405 (1989). Their assessment indicated that twenty-two of thirty-seven death penalty states permitted the death penalty for sixteen-year-old offenders and that twenty-five of the thirty-seven states permitted the death penalty for seventeen-year-old offenders. Id. at In light of the support for the sentence, the Court concluded that the contemporary standards of decency did not reflect a national consensus sufficient to label a particular punishment cruel and unusual. Id. Similarly, in Penry v. Lynaugh, the Court held that the Eighth Amendment did not mandate the categorical exemption from the death penalty for the mentally retarded. 492 U.S. 302 (1989). In the Court s analysis of the national consensus, only two states had enacted laws that banned the imposition of the death penalty on the mentally retarded convicted of a capital offenses. Id. at 334. The Court added that although fourteen states had rejected capital punishment completely, this did not provide sufficient evidence of a national consensus on not giving the death penalty to the mentally retarded. Id. at 334. The Court revisited the same issue in Atkins v. Virginia. 536 U.S. 304 (2002). In Atkins, the Court held that the standard of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. Id. at 314. In evaluating the objective indicia of society, as expressed in legislative enactment and state practice, the Court found that only a minority of states permitted the practice, and even in those states it was rare. Id. at Based on this evaluation, the Court decided that the practice of executing of mentally retarded offenders has become truly unusual, and [ ] that the national consensus has developed against it. Id. at

14 However, the evolving standards of decency involves more than just an evaluation of numbers; it measures the direction, speed, and consistency of the change. Id. at 315. In Roper v. Simmons, the Court held that the imposition of the death penalty on juvenile offenders violated the Eighth Amendment. 543 U.S. 551, 568 (2005). The Court observed a consistency in the trend towards abolition of the practice to show the direction of change. Id. at 566. To do this, the Court looked to death penalty states and saw a significant change in legislation from the time of Stanford. Id. at 567. At the time Stanford was heard, twenty-seven states had prohibited the execution of juveniles. Id. The court noted that even where the sentence remained on the books, its use was infrequent. Id. Therefore, an evaluation of the objective indicia of consensus found that the national consensus did not support the sentence. Id. Based on the precedent set by these death penalty cases, the same analysis applies in assessing the constitutionality of the sentencing juveniles to life without parole. Two cases have discussed the sentence of juvenile life without parole. The first case is Graham v. Florida, in which this Court created a categorical ban on the sentence of juvenile life without parole for nonhomicide cases. 560 U.S. 48, 82 (2010). The Court in Graham found six jurisdictions that did not allow life without parole sentences for juvenile offenders and seven jurisdictions that permitted juvenile life without parole for homicide crimes. Id. at 62. The Court also found that thirty-seven states, as well as the District of Columbia, permitted sentences of juvenile life without parole for a non-homicide offender. The analysis of this nation s legislation demonstrated that there was no national consensus against the sentence in practice at issue. Id. However, [t]here are measure of consensus other than legislation. Kennedy v. Louisiana, 128 S. Ct. 2641, 2657 (2008). The Court looked beyond the current legislative enactments to the actual sentencing practices. Since there were only 109 juvenile offenders serving life without parole for non-homicide offenses, the 9

15 Court found that the sentence was infrequent. This infrequency illustrated a consensus against the use of this sentence. Graham, 560 U.S. 48 at 62. Although there were many statutes on the books, the Court ultimately decided that due to the small amount of juvenile offenders actually sentenced to life without parole, the sentence was infrequently used through the states. Because of this infrequency, the Court found that the majority of the states did not sentence juvenile offenders to life without parole except for in the most serious cases The second case is Miller v. Alabama, where this Court held that the mandatory sentencing of juveniles to life without parole is unconstitutional. 132 S. Ct. at The Court in Miller did not place a categorical ban on the sentence of juvenile life without parole. Instead, the Court contrasted Graham, which had established a categorical ban, from Miller, which changed the requirements for sentencing. Unlike Graham s categorical ban on sentencing juveniles to life without parole for non-homicide offenses, Miller holds that applying a mandatory sentence to life without parole is unconstitutional. Miller, however, leaves discretionary sentencing up for debate. Presently, a national consensus against the sentence of juvenile life without parole has not been established. In assessing the number of states that retained the sentence of juvenile life without parole, it is clear that a majority of the nation continues to accept the need for this sentence in some form or another. Before Miller, seven states did not have or did not use the sentence of life without parole for juveniles. The Campaign for the Fair Sentencing of Youth, Facts and Infographics about Life Without parole for Children (March 14, 2016, 1:37AM). After the decision in Miller, only nine states eliminated the sentence. Id. However, thirty-six states have preserved the sentence for discretionary use. Id. 10

16 In the four years after the Miller decision, there has been more legislation regarding retroactively applying the decision in Miller to defendants that were mandatorily sentenced. Nineteen states have taken the question under review. Id. Nevertheless, these states have not decided to simply pardon the offenders. Seven states have ruled that Miller does not apply retroactively, while 12 other states have ruled that Miller should apply retroactively by allowing convicted offenders to present mitigating factors when determining if they are eligible for parole in the future. Id. While a trend against the sentence existed immediately after the Miller decision, that movement has stopped. States have instead embraced the mandate in Miller and tried to rectify their sentencing practices. This shift is even more evident from this Court s recent decision in Montgomery v. Louisiana, where the court affirmed that the decision in Miller should be applied retroactively. 136 S. Ct. 718, 729 (2016). The opinion in this case emphasized that Miller did not foreclose a sentencers ability to impose life without parole on a juvenile. Id. at 726. Furthermore, there has been continuous use of the juvenile life without parole sentence. In 2010, there was an estimated 2,445 individuals serving a life without parole sentence for homicide offenses committed as juveniles. Kallee Spooner, Juvenile Life without Parole, Undergraduate Review, 8, (2012). Currently there are almost 2,600 individuals sentenced to life without parole. This shows that after the Miller decision, states have continued to enforce this sentence. The Campaign for the Fair Sentencing of Youth, Facts and Infographics about Life Without parole for Children (March 14, 2016, 1:37AM). The change adopted by the majority of states has been to embrace the mandate in Miller that calls for individualized sentencing and apply it to the current sentencing practice to ensure that new sentences meet the proportionality requirement of the Eighth Amendment. 11

17 Since the objective indicia of society demonstrates that the legislative enactments and state practice are in favor of applying the mandate issued in Miller instead of abolishing the sentence in its entirety, there is no national consensus against the sentencing practice at issue. B. Juvenile life without parole is not excessive because the Eighth Amendment s proportionality requirement ensures that juveniles are given an opportunity to present mitigating factors in order to ensure individualized sentencing. The sentence of juvenile life without parole does not violate the Eighth Amendment s ban on cruel and unusual punishment because it is not grossly disproportionate. Proportionality is the notion that the punishment should fit the crime. When determining whether a sentence is cruel and unusual, courts must consider the proportionality of the sentence to the crime committed. Graham, 130 S. Ct. at The concept of proportionality is central to the Eighth Amendment, because grossly disproportionate sentences are inherently cruel and unusual. Miller, 132. S. Ct. at The Court uses its own independent judgment in determining whether a sentence is disproportionate. Roper, 543 U.S. at 564. This judgment is guided by controlling precedents, the Court s own understanding, and the interpretations of the Eighth Amendment s text, history, meaning, and purpose Kennedy, 554 U.S. at 421. While courts have not always been clear or consistent in its analysis of proportionality, recent jurisprudence has provided guidance. In this Court s plurality decision in Harmelin v. Michigan, Justice Scalia pronounced that the proportionality analysis in Solem v. Helm was incorrect. 501 U.S. 957, 963 (1991); 463 U.S. 277, (1983). Although Justice Scalia argues the Eighth Amendment contains no proportionality guarantee, the concurrence argues that there five common principals that should be used during a proportionality review. Harmelin, 501 U.S. 957 at 963. These principals are: (1) the need for legislative deference, (2) review of legitimate penological schemes, (3) acceptance 12

18 of the varying results sentencing, (4) the review of objective factors, and (5) consideration of whether the sentence is grossly disproportionate. Id. at 959. In this case, the sentencing of a juvenile offender to the sentence of life without parole adheres to both this Court s holing in Miller, which required a sentencer to review mitigating factors during sentencing, as well as the common principles set forth in Harmelin. The Court in Miller did not require a categorical ban on the sentencing practice of juvenile life without parole. Rather, the Court held that the mandatory imposition of that sentence was a violation of the Eighth Amendment. Miller, 132 S. Ct at In making that determination, the Court looked at Roper and Graham, which both identified that children are constitutionally different from adults for purposes of sentencing. Id. Roper, Graham, and Miller focused on three objective factors that made juveniles different from adults. These factors were (1) the offender s youthful age and diminish ability, (2) his family and personal background, and (3) his role and actions in the commission of the crime in question. Brian J. Fuller, General Law Division: Case Note: Criminal Law A Small Step Forward in Juvenile Sentencing, But is it enough? The United States Supreme Court Ends Mandatory Juvenile Life without Parole Sentences; Miller v. Alabama, 132 S. Ct (2012), 13 Wyo. L. Rev. 377, 392 (2013). While all three decisions concluded that youth matters in considering a sentence s proportionality, it is simply one factor among others that should be considered in determining whether the punishment is excessive. Miller, 132 S. Ct. at In the case of homicide, there are several penological justifications for imposing the sentencing of juvenile life without parole to an offender who committed murder. In assessing this factor, it is important to recognize that although the categorical ban on life without parole in Graham applies only to non-homicide cases, the Court took care to distinguish those offenses 13

19 from murder, based on both moral culpability and consequential harm. Id. at While Miller states that the distinctive attributes of youth diminish the penological justifications for imposing life without parole on juvenile offenders, the sentence is still justified if it meets a penological objective. Id. The Court in Harmelin recognizes that federal and state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation. 501 U.S. 957, 999 (1991). Hence, the Eighth Amendment does not require the implementation of any one penological theory; the application of one would be sufficient. Accordingly, the penological objectives of incapacitation and deterrence would serve as strong incentives for state legislatures who want to protect their constituents from offenders who have been convicted of the crime of homicide. While the Court in Miller acknowledged that a mandatory sentence neglects the circumstances of homicide offenses, individualized sentencing allows a sentencer to examine all circumstances before concluding that life without parole is the appropriate penalty. Miller, 132 S. Ct at The state legislatures have complied with the mandate in Miller by changing their current statutes to provide an offender with the opportunity to consider mitigating circumstances. This Court stated in Miller that Although we do not foreclose a sentencer s ability to make that judgment in homicide cases, we require it to take into account how children are different [.] Id. Miller only mandates that the sentencer follow a certain process before imposing a particular penalty. Id. at Since all the states in the majority have acted in conformity with the mandate set forth in Miller, the Court should give legislative deference when a sentence enforces this sentence. The Court in Miller explicitly refused to consider the argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles. Id. at While not every 14

20 juvenile offender may be suitable to serve life without parole in light of their diminished culpability and heightened capacity for change, this Court recognized that a sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. Montgomery, 136 S.Ct. at 733. As this Court recognized earlier this year, life without the possibility of parole is still a proportionate sentence for a juvenile offender whose crime demonstrates more than transient immaturity. Id. at 734. Therefore, individualized sentencing that allows for a sentencer to use discretion in evaluating the mitigating factors offered by a juvenile offender convicted of homicide comports not only with the mandate in Miller, but with the Eighth Amendment s ban on excessive sentences and is constitutional. II. LIFE IMPRISONMENT WITHOUT PAROLE FOR A JUVENILE DEFENDANT WHO COMMITS THE CRIME OF FELONY MURDER IS CONSTITUTIONAL PURSUANT TO THE EIGHTH AMENDMENT. Sentencing a defendant, even a juvenile, to life in prison without parole is not a cruel and unusual punishment for the crime of felony murder and is therefore not barred by the Eighth Amendment of the Constitution. In the Texansas Penal Law, felony murder falls under the category of murder in the second degree, and is thus considered a crime of homicide for all purposes of trial. Texansas Penal Law 125 (2016). This is a widely used criminal statute in America, as forty-eight out of the fifty states have a felony murder rule in effect. Joshua P. Gilmore, Murder Felony is Felony Murder: How the Nevada Supreme Court s decision in Nay v. State reflects the growing misconception surrounding afterthought robbery, 9 Nev. L.J. 672, 678 (2009). Felony murder is a useful tool to obtain justice in situations where a life is taken during the commission of a felony. This criminal statute in Texansas does not require the intent to kill to be proven by the state but that does not take away from the defendant s culpability in 15

21 the case at bar. The state must prove beyond a reasonable doubt that the defendant committed one of the underlying dangerous felonies, and here, robbery and kidnapping were proven along with the fact that a life was taken during the kidnapping and thus the defendant committed the crime of felony murder. Furthermore, in Roper, this Court held that it would be cruel and unusual to sentence a juvenile defendant to death for a crime of murder but noted that without being able to extinguish the defendants life, a state can take away some of his or hers most basic liberties. Roper v. Simmons, 543 U.S. 551, 573 (2005). This Court s decision gives the ability by the eighth amendment to sentence a juvenile to life in prison without parole for a homicide. Moreover, in the case at hand, the defendant committed a homicide by way of felony murder, regardless of whether he intended to kill or not. Moreover, life without parole for a juvenile is not an excessive sanction when compared to the crime of felony murder and is therefore not grossly disproportionate. The natures of the crimes in this case are atrocious and ended with the termination of a six-month-old infant. A fifteen-year-old defendant terminated this life but his age does not excuse the fact that he was the sole actor who played a major role in the cause of her death. This Court has rendered that proportionality has a place in the Eighth Amendment because the percept of justice that punishment for crime should be graduated and proportioned to [the] offense. Graham v. Florida, 560 U.S. 48, 59 (2010). For justice to be adequately served in this case, the defendant must serve a sentence of life without parole. A. Felony murder is an excepted rule that is recognized in forty-eight states because it is imperative to prevent inherently dangerous felonies and the resulting deaths that often follow. The concept of felony murder made its first appearance for the betterment of society in 16

22 England during the eighteenth century. Emily Keller, Constitutional Sentences for Juveniles Convicted of Felony Murder in the wake of Roper, Graham & J.D.B., 11 Con. Pub. Int. L.J. 297, 303 (2012). Eventually, this rule made its way over to the United States criminal justice system, providing that a defendant would be liable for murder if the murder occurred during the commission of a felony, even without the intent for that murder to occur. Id. at 304. The felony murder rule has long been recognized in the United States for the purpose of deterring not only the commission of felonies but to deter negligent and possible accidental killings during such commissions or flights therefrom. People v. Washington, 62 Cal.2d 777, 790 (1965) (Burke, J., dissenting). As of 2008, only two states do not implement the felony murder rule. Gilmore, supra at 678. More than half of jurisdictions have criminal statutes that are in sync with the Texansas statute defining felony murder as a death that was procured during a predicate felony. Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 501 (2011). The benefit of these statutes is that each state can determine which felonies are provided therein and they are usually the inherently dangerous ones. The District of Columbia describes the premise of this ability is because there are certain violent and dangerous felonies that generally involve a risk of death. Id. at 504. Texansas, having this ability, chose the dangerous felonies of robbery, burglary, and kidnapping. Texansas Penal Law 125 (2016). This Court acknowledged that during the commission of violent felonies, the possibility of bloodshed is inherent. Tison v. Arizona, 481 U.S. 127, 151 (1987). Violent felonies occur when the defendant arms himself, just as the juvenile defendant did here. By driving a car at an excess speed, the defendant in this case turned that car into a weapon that turned deadly. Id. In felony murder cases, a death has occurred and justice must be served. Less ambiguity in a 17

23 felony murder statute will avoid a scenario where a defendant would get away with murder when he or she causes a death. David Crump & Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J.L & Pub. Pol y 359, 372 (1985). The fact that forty-eight states continue to have a felony murder statute shows that felony murder is a widely accepted rule across the nation. B. The plain meaning of Texansas Penal Law 125 (2016) mandates a charge of murder in the second degree where a defendant commits felony murder, which does not require the intent to take a life but only that a life be taken. The state of Texansas has a felony murder doctrine imbedded in its Penal Law; this allows a defendant to be adequately punished for taking the life of another even in a situation where he or she did not intend to take a life but did so regardless. Moreover, it must be proven that the defendant had the intent to commit one of the enumerated felonies in the statute. If proven, the defendant is guilty of second-degree murder under the felony murder rule. In this case, the defendant by acting in furtherance of a crime, here robbery and kidnapping, extinguished the life of a six month old infant and is therefore guilty of felony murder. There need not be any proof that the defendant intended to extinguish that life; the only requirement is that the death occurred and that the defendant caused the death during the felony as occurred here. The defendant in this case is charged with murder in the second degree pursuant to the criminal statute in Texansas, which states that a person is guilty of murder in the second degree when [...] he commits or attempts to commit robbery, burglary, [or] kidnapping [...] and, in the course of and in furtherance of such crime or of immediate flight therefrom, he [...] causes the death of a person other than one of the participants. Texansas Penal Law 125. This statute specifically selected three inherently dangerous felonies 18

24 that in conjunction with a death raise the conviction to the level of felony murder. This Court has noted that each individual state has the power to define its murder statute as it sees fit, which allows Texansas to define felony murder as murder in the second degree and select which felonies should be enumerated in its felony murder statute. See Patterson v. New York, 432 U.S. 197, 201 (1977) (noting that the Constitution should not intrude on how a state deals with criminal activity). By each state having the power of regulation for its criminal statutes, it has the power to define each element that must be proven by the prosecutor in a particular statute. Id. at 210. For the felony murder statute in Texansas, the state had to, and did, prove that the defendant committed the crimes of only one felony that is enumerated in the second-degree murder statute. In this case, the state proved not only one, but two felonies in front of the district court. First, the elements of robbery in the first degree were proven because the defendant caused the death of another while in flight therefrom the commission of a robbery. Texansas Penal Law 160 (2016). Second, the elements of kidnapping in the first degree were proven because the defendant abducted another person who died during the abduction. Texansas Penal Law 135 (2016). Furthermore, this Court has noted its prohibition against life imprisonment without parole for a juvenile defendant that committed a crime that does not involve a homicide. Graham, 560 U.S. at 82 (emphasis added). However, Chief Justice Roberts stated in his concurrence that the holding in Graham does not mean that a juvenile will never be eligible for life without parole. Id. at 89. (Roberts, J., concurring). In some cases, some crimes are so heinous and some juvenile defendants are so highly culpable that the sentence of life without parole is justified under the Constitution. Rummel v. Estelle, 445 U.S. 263, 272 (1980). 19

25 Moreover, sentencing this juvenile defendant to life without parole for felony murder is consistent with this Court s holding in Miller. While the concurrence mentions the complications of felony murder, the majority in that case held that a juvenile defendant could not be mandatorily sentenced to life without parole. Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012) (emphasis added). This case follows the Miller opinion because the judge had ultimate discretion in deciding the juvenile defendant s sentence after having a hearing where the defendant s youth was discussed. R. at 6. In Miller, there were two cases at hand. The first case deals with Kuntrell Jackson. He was fourteen years old and went to rob a video store with two other boys but he decided to wait outside the store after learning that another had a shotgun. Miller, 132 S. Ct. at This boy who carried the shotgun, shot and killed the store clerk after demanding for money. Id. The second case deals with another fourteen year old, Evan Miller, who robbed a sleeping man of his wallet who awoke and grabbed Miller at the throat. Id. at Miller responded by repeatedly striking the man with a baseball bat. Id. In both of these cases, the juvenile defendants were convicted of murder and sentenced to life in prison without parole. However, this Court reversed both of these sentences because the sentences were mandatory and the trial court had chance to gather and examine all of the surrounding circumstances of the juvenile and the crime before sentencing. Id. at The Texansas trial court s decision does not stray away from the holding in Miller because the juvenile defendant here obtained a discretionary sentence of life without parole after adhering to the Miller demand of allowing the surrounding circumstances to be discussed. Id. Furthermore, Kuntrell Jackson was charged on the theory of transferred intent because he intended to commit the felony of robbery so that satisfies the intent to commit the murder. Id at 20

26 2460. This is distinguishable from the case at hand because it deals with a killing committed directly by a juvenile because the defendant here solely caused the death of six month old baby Madison Taylor. Furthermore, commentary to the Model Penal Code has stated that in many felony murder cases, a defendant is either guilty of homicide with an intentional or extremely reckless state of mind. Model Penal Code commentary at (Official Draft 1980). This is consistent with the rules of felony murder created by the common law when they decided not to include any element stating that the defendant should have the intent to kill. It is not necessary to show the intent to kill to prove felony murder. Here, the felony murder statute is satisfied because this juvenile defendant was had an extremely reckless state of mind when causing the death of 6 month old Madison Taylor. Furthermore, the juvenile defendant here had a blatant disregard for human life when he drove a vehicle in excess of one hundred and twenty miles per hour on a busy main street. R. at 4. This is a reasonably foreseeable situation where a death could occur and is reckless behavior according to the Model Penal Code, which states that the individual takes a subjective and objective unjustifiable risk. Model Penal Code 2.02(2)(c). The juvenile defendant here took the risk of stealing and driving a car away onto a busy main street after staying hidden in an alley behind the store. R. at 4. These actions of kidnapping an infant and causing her death make felony murder acceptable as murder in the second degree as the Texansas statute proscribes because felony murder is still murder, when a life is taken without justification. C. Life without parole for a defendant is constitutional because it is not grossly disproportionate to the defendant s crime of felony murder even as a juvenile. When determining the constitutionality of a defendant s sentence, this court stated it would only forbid extreme sentences that are grossly disproportionate to the crime. Harmelin v. 21

27 Michigan, 501 U.S. 957, 974 (1991). The Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. Miller, 132 S. Ct. at In this case, the juvenile defendant is being protected by the Eighth Amendment because his sentence is not overly harsh compared to the nature of the crime. This Court has stated that there are occasions where it shall be appropriate to sentence a juvenile to life without parole and this is one of those occasions because it is not grossly disproportionate. Id. at In Miller, it was established that sentencing a juvenile defendant to the harshest possible penalty may be uncommon but not impossible. Id. Even if this sentence occurs rarely, it should occur for the crime of murder. This Court has held that a murderer is one who unjustifiably takes the life of another human. Edmund v. Florida, 458 U.S. 782, 797 (1982). The defendant is therefore a murderer because although he is a juvenile, he took the life of another with no justification. He played a major role in the commencement of the robbery and kidnapping, which he committed with a reckless indifference to human life. Tison, 481 U.S. at 151. In Tison, this Court found where a defendant played such an active role and acted with reckless indifference to the value of human life, he could be sentenced to the death penalty. Life without parole is a less harsh sentence than the death penalty and should be allowed for a defendant with the same culpable mental state as the defendant in Tison. The defendant in this case had a high level of participation just as in Tison and that further implicates him in the resulting death of Madison Taylor. Id. at 158. His degree of reckless indifference to the value of human life [is] every bit as shocking to the moral sense as an intent to kill. Id. at 157. The juvenile defendant here obtains this heightened degree of culpability and should have foreseen that death would occur due to his heinous actions. 22

28 This Court has noted that defendants who do not kill, intend to kill, or foresee that a life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. Graham, 560 U.S. at 69. However, the juvenile defendant here is not less deserving because even if he did not intend to kill, he should have foreseen that a life could have been taken. There is more than a possibility of bloodshed when it comes to the commission of inherently dangerous felonies, such as robbery and kidnapping. Tison, 481 U.S. at 151. During the commission of these felonies, most felons arm themselves and while the juvenile defendant here did not arm himself with the typical notion of a weapon, he made one. By driving a car down a busy main street at the speed of one hundred and twenty miles per hour, he turned the car into a deadly weapon against himself and everyone else on that street. R. at 4. In Graham, the court noted that adults are different than juveniles because they may be more reckless than adults, but that does not diminish all of a juvenile s culpability and should not absolve a juvenile s guilt for murder. Graham, 560 U.S. at 68. When an individual turns eighteen, he does not miraculously become more responsible or conscience of his actions than he would at a younger age. Moreover, this Court discusses the fact that a fifteen year old is old enough to be tried as adult in criminal court because that is too old to be tried effectively in juvenile court for a serious crime. Id. at 65. In Roper, this Court notes that there is an argument to be made that there can be time where a juvenile defendant will have the maturity and capacity to demonstrate the depravity of human life. Roper, 543 U.S. at 572. Furthermore, there can be no bright line in determining when a juvenile reaches his or her state of maturity because every individual varies and grows at different levels. This does not mean that a fifteen year old should not get life without parole when he commits a murder, albeit in this case of felony murder. This Court has decided that life without parole is the second most 23