SUPREME COURT OF THE UNITED STATES No

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1 * * * * * * * IN THE SUPREME COURT OF THE UNITED STATES No Wyatt FORBES, v. TEXANSAS, Petitioner, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF TEXANSAS BRIEF FOR THE RESPONDENT Respondent, Team #14

2 QUESTIONS PRESENTED (1) Whether the Eighth Amendment prohibits sentencing a child to life imprisonment without possibility of parole; and (2) Whether the Eighth Amendment prohibits sentencing a child to life imprisonment without the possibility of parole for a homicide offense, which does not require the prosecution to prove that the child intended to kill. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv OPINION BELOW...1 JURISDICTIONAL STATEMENT...1 CONSTITUTIONAL PROVISIONS & STATUTES...1 STATEMENT OF FACTS...1 SUMMARY OF ARGUMENT...3 ARGUMENT...4 I. UNDER THE EIGHTH AMENDMENT, SENTENCING A JUVENILE TO LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE IS NOT CRUEL AND UNUSUAL....6 A. Introduction....6 B. There is no national consensus against the practice of sentencing juveniles to life imprisonment without possibility of parole....7 C. This Court has made clear that life imprisonment without possibility of parole should remain available as a punishment for juvenile offenders....9 D. This Court should not adopt a bright-line rule against life sentences without parole for juvenile offenders, but should instead affirm the importance of judicial and legislative discretion II. THE EIGHTH AMENDMENT IS NOT VIOLATED WHEN SENTENCING A JUVENILE TO LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE FOR A HOMICIDE OFFENSE, WHICH DOES NOT REQUIRE THE PROSECUTION TO PROVE THAT THE JUVENILE INTENDED TO KILL...12 A. Introduction ii

4 B. The Texansas Court followed this Court s procedural requirements before sentencing juvenile Forbes and thereby was within the Eighth Amendment C. The Texansas Court s sentence of life without possibility of parole was substantively within the bounds of the Eighth Amendment and state statute for a homicide crime The Texansas Court sentenced Forbes for the crime of felony-murder, a homicide offense per Texansas State law The sentence of life imprisonment without possibility of parole for juvenile Forbes was not grossly disproportionate to the crime committed D. Petitioner s likely argument to rely on Justice Breyer s concurrence in Miller should not supersede the above precedent or facts of the felony-murder committed by Forbes CONCLUSION...22 APPENDIX... A-1 iii

5 TABLE OF AUTHORITIES SUPREME COURT OF THE UNITED STATES Apprendi v. New Jersey, 530 U.S. 466 (2000) Atkins v. Virginia, 536 U.S. 304 (2002)...6, 7, 8, 12 Coker v. Georgia, 433 U.S. 584 (1977)....5, 7 Enmund v. Florida, 458 U.S. 782 (1982)...5, 16, 17 Estelle v. Gamble, 429 U.S. 97 (1976)....5 Ewing v. California, 538 U.S. 11 (2003)....19, 20 Forbes v. Texansas, 999 U.S. 1 (2016)....3, 17 Ford v. Wainwright, 477 U.S. 399 (1986) Graham v. Florida, 560 U.S. 48 (2010).... passim Gregg v. Georgia, 428 U.S. 153 (1976)...19, 20 Harmelin v. Michigan, 501 U.S. 957 (1991)....5 Hopkins v. Reeves, 524 U.S. 88 (1998)...13, 21 Hutto v. Davis, 454 U.S. 370 (1982)....19, 20 J.D.B. v. North Carolina, 564 U.S. 261 (2011)....14, 15 Kennedy v. Louisiana, 554 U.S. 407 (2008)... passim Miller v. Alabama, 132 S. Ct (2012).... passim Montgomery v. Louisiana, 136 S. Ct. 718 (2016)....13, 14, 15, 20 Roper v. Simmons, 543 U.S. 551 (2005)... Passim Rummel v. Estelle, 445 U.S. 263 (1980)....13, 19, 20 Solem v. Helm, 463 U.S. 277 (1983)...13, 19, 20 Teague v. Lane, 489 U.S. 288 (1989) iv

6 Tison v. Arizona, 481 U.S. 137 (1987)....13, 16, 17, 21 Trop v. Dulles, 356 U.S. 86 (1958)...5 Weems v. United States, 217 U.S. 349 (1910)....5, 12, 13, 19 UNITED STATES CIRCUIT COURT CASES United States v. Dawson, 400 F.2d 194 (2d Cir. 1968) UNITED STATES CONSTITUTIONAL PROVISIONS U.S. Const. amend. VIII... passim U.S. Const. amend. XIV....1, 5 STATE COURT CASES Forbes v. State, 123 Texansas 1 (2015)....1, 2 People v. Benson, 480 N.Y.S.2d 811 (1984) People v. Dominguez, 140 P.3d 866 (2006) STATE STATUTES Texansas Penal Code 125 (2016).... passim Texansas Penal Code 135 (2016)....2 Texansas Penal Code 160 (2016)....2 Texansas Penal Code 300 (2016).... passim OTHER AUTHORITIES 40 Am. Jur. 2d Homicide Joshua Rovner, Juvenile Life Without Parole: An Overview, The Sentencing Project, 2 (February 2016), jj_juvenile_life_without_parole.pdf.....7, 8 v

7 OPINION BELOW The opinion of the Supreme Court of Texansas is officially published and contained at Forbes v. State, 123 Texansas 1 (2015). JURISDICTIONAL STATEMENT A formal Statement of Jurisdiction has been waived by Rule III(b)(v) of the 2016 Herbert Wechsler National Criminal Law Moot Court Competition. CONSTITUTIONAL PROVISIONS & STATUTES The following constitutional provisions and statutes relevant to the determination of this case are set forth in the Appendix: United States Constitution amendments VIII and XIV. STATEMENT OF FACTS On October 1, 2014, Wyatt Trey Forbes (hereafter Forbes) committed a series of felonies that would lead to a high-speed police pursuit, a violent crash, and the tragic death of six-month old Madison Taylor. Forbes v. State, 123 Texansas 1 (2015). The juvenile Forbes was tried as an adult and found guilty of murder in the second degree, amongst other felonies, under Texansas s felony-murder statute. Id. at 3-5. At fifteen, Forbes was sentenced to life imprisonment without the possibility of parole (hereafter LWOP). Id. at 3. Forbes grew up in Eagle Heights, Texansas, in a wealthy, prominent family known for owning an oil refinery. Id. Wyatt Forbes, Sr., the grandfather of Forbes, was a three-term Congressman from the District. Id. Young Forbes was personally known to local law enforcement and shopkeepers for prior arrests for disorderly conduct and shoplifting. Id. However, until the October 1 incident, Forbes had avoided formal charges. Id. On October 1, Forbes left the grounds of Eagle Heights Middle School to meet some friends at a local park and ingest stolen bath salts. Id. Soon after, Forbes alone entered a nearby 1

8 convenience store to steal more of the drug. Id. Forbes unsuccessfully attempted to disguise himself with the hood of his sweatshirt but was recognized and chased out of the store by a clerk. Id. at 4. After the failed theft, Forbes was seen by a surveillance camera pacing and muttering to himself in an alley behind the store. Id. at 4 n.2. At 8:30 p.m., Pamela Taylor pulled into the store s parking lot in a Toyota Corolla, left her car running, and entered the convenience store to buy diapers. Id. at 4. In the backseat of the vehicle slept Madison Taylor, a six-month infant old suffering from colic. Id. Pamela Taylor testified that she left her child in the running car to let her sleep. Id. at 4 n.4. Forbes jumped into the Corolla s driver seat and began to drive away, only to be spotted by the same clerk who had chased him out of the convenience store earlier. Id. The clerk then called the police. Id. Michael Dudley, an Eagle Heights Police Officer, responded to the call. Id. Officer Dudley first made contact with the Corolla on Main Street, a busy commercial street in the town. Id. Officer Dudley attempted a traffic stop by turning on his overhead lights and siren. Id. Forbes, in response, accelerated the Corolla to speeds in excess of 120 miles per hour down Main Street. Id. Forbes eventually lost control of the Corolla, struck another vehicle head-on, and rolled the car. Id. Forbes was ejected from the Corolla and suffered only a broken collarbone. Id. Six-month old Madison Taylor died as a direct result of her injuries in the crash. Id. Forbes was tried and convicted as an adult [d]ue to public outcry over the crime. Id. A jury convicted Forbes of first degree robbery, first degree kidnapping, and murder in the second degree. Id. at 4-5; Texansas Penal Law 160 (2016) (first degree robbery); Texansas Penal Law 135 (2016) (first degree kidnapping). The murder conviction was based on Texansas s felonymurder statute, where both robbery and kidnapping qualify as predicate felony offenses. Id. at 5 2

9 n.7; Texansas Penal Law 125 (2016) (second degree murder). The state, operating under the felony-murder statute, offered no evidence at trial that [Forbes] harbored any malicious intent toward [Madison Tyler]. Id. at 5-6. Prior to sentencing Forbes, the trial court heard testimony from a number of defense witnesses, including psychiatrists, psychologists, and school officials, all who testified to the extenuating circumstances of Forbes s youth. Id. at 5 n.8. The court also heard victim testimony, called by the state, from the parents of Madison Taylor. Id. Following this testimony, the court sentenced fifteen-year-old Forbes to life imprisonment without the possibility of parole. Id. The trial court s sentence was within Texansas s sentencing range for murder in the second degree. Id. at 5 n.9; Texansas Penal Law 300 (2016). Forbes first appealed his sentence to the Appellate Court of Texansas, petitioning a writ of habeas corpus and claiming his sentence was facially invalid. Id. at 3, 5. [Forbes] claim[ed] the Eighth and Fourteenth Amendments to the U.S. Constitution prohibit the sentencing of infants to life imprisonment without the possibility of parole. Id. at 3. The appellate court denied the petition and found Forbes failed to demonstrate that his commitment was unconstitutional. Id. Forbes then appealed to the Supreme Court of Texansas, which affirmed the appellate court s denial and found no error in the decision. Id. at 3. On January 1, 2016, this Court granted Forbes s petition for a writ of certiorari. Forbes v. Texansas, 999 U.S. 1 (2016). SUMMARY OF ARGUMENT The Eighth Amendment ensures that defendants in our criminal justice system are protected from excessive sanctions. The judicial system gauges the appropriate level of punishment based on standards set by the legislature, by lower courts, and by society as a whole. 3

10 There is no strong national consensus against imposing a life sentence without parole for juveniles who commit serious crimes. This Court has consistently made clear that a sentence of life without parole should remain available for some of the worst juvenile offenders. In fact, some Justices have relied upon this assurance in rendering other judgments. The importance of our state legislatures and trial courts in determining appropriate punishments for criminals has been highlighted throughout this Court s jurisprudence. It would be most appropriate and just for this Court to affirm that discretion and refrain from turning a deaf ear to state authority. The cruel and unusual clause of the Eighth Amendment prevents a prison term from being grossly disproportionate to the convicted offense. However, reversal solely on proportionality grounds is rare. Eighth Amendment analysis is far from defendant or crime blind. In the juvenile sentencing arena, a court must consider the age and maturity of the defendant against the criminal circumstances. Here, Forbes was sentenced to life without the parole for, primarily, a felony-murder conviction. The prosecution never showed any evidence that Forbes intended to kill that October night. The Texansas court heard evidence concerning Forbes s youth, and heard testimony from the baby Madison s parents. The heinous crime outweighed the immaturity of Forbes. The trial judge, in his discretion, was sound in sentencing Forbes to life without parole as affirmed by the appellate and state supreme courts. The Texansas court s sentence was harsh, fitting, and lawful under the State s sentencing framework. ARGUMENT The Eighth Amendment, under the auspices of the prohibition on cruel and unusual punishments, protects individuals from being subjected to excessive sanctions. Roper v. Simmons, 543 U.S. 551, 560 (2005). This Court has explained that this right flows from the basic precept of justice that punishment for crime should be graduated and proportioned to 4

11 both offender and offense. Id. (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). Further, this concept must be viewed according to the evolving standards of decency that mark the progress of a maturing society. Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). The Eighth Amendment has been incorporated to the states through the Fourteenth Amendment. Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). In Graham v. Florida, this Court explained the differing analyses it has used when considering challenges to the proportionality of a sentence. 560 U.S. 48, (2010). When considering questions of proportionality under the Eighth Amendment, this Court typically views cases under two distinct classifications. Id. at 48. The first analysis addresses the term of years in a sentence compared to the particular crime and circumstance. Id. at 59. This Court, in Harmelin v. Michigan, explained that the Eighth Amendment does not require strict proportionality between crime and sentence, but rather forbids only extreme sentences that are grossly disproportionate to the crime. 501 U.S. 957, 997 (1991) (as cited in Graham, 560 U.S. at 59-60). The second approach addresses categorical rules that define Eighth Amendment standards and has focused on death penalty challenges. Graham, 560 U.S. at 60. This consists of two different subsets, one considering the nature of the offense committed, and one the characteristics of the offender. Id. The cases regarding the nature of the offense have concluded, for example, that capital punishment is impermissible for non-homicide crimes against individuals. Kennedy, 554 U.S. at 407 (holding that the death penalty is prohibited for the rape of a child that did not result and was not intended to result in death of the victim); See also Enmund v. Florida, 458 U.S. 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977). In cases that invoke the characteristics of the offender, this Court has also adopted specific rules regarding the death penalty. In Roper, this Court prohibited capital punishment for defendants who committed their 5

12 crime before the age of eighteen. 543 U.S. at 578. In Atkins v. Virginia, this Court also prohibited the use of the death penalty for individuals whose intellectual functioning is in a low range. 536 U.S. 304, 321 (2002). Here, the questions presented invoke both approaches. The first, whether the Eighth Amendment prohibits sentencing a child to life imprisonment without possibility of parole (LWOP), is similar to the question in Graham and should consequentially be reviewed as a categorical challenge. The second, whether the Eighth Amendment prohibits sentencing a child to LWOP for a homicide offense, which does not require the prosecution to prove that the child intended to kill, is crime specific. This focuses on the proportionality of the sentence to the crime. This Court should hold that the Eighth Amendment does not prohibit sentencing a juvenile to LWOP. This Court should also hold that the Eighth Amendment does not prohibit sentencing a juvenile to LWOP for a homicide offense, which does not require the prosecution to prove that the juvenile intended to kill. The State of Texansas asks this Court to affirm the decision of the Supreme Court of Texansas. I. UNDER THE EIGHTH AMENDMENT, SENTENCING A JUVENILE TO LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE IS NOT CRUEL AND UNUSUAL. A. Introduction. The Supreme Court of Texansas properly held that the Eighth Amendment does not prohibit sentencing a child to LWOP. The question here is similar to the question in Graham, where this Court distinguished a categorical challenge to a term-of-years sentence. 560 U.S. at 61. As in Graham, this question implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. Id. Here, the Defendant is 6

13 challenging the constitutionality of a sentence of LWOP for juvenile offenders, no matter the crime. This Court should use a similar analysis as in Graham, which includes elements of the analyses used in other categorical challenges, such as Atkins, Roper, and Kennedy. Graham, 560 U.S. at In such analysis, the Court often begins with a review of objective indicia of any existing national consensus. Id. at 62. This Court, noting that community consensus is entitled to great weight, but is not exclusive, has also said that this Court s own judgment must be brought to bear. Kennedy, 554 U.S. at 434. The analysis here should accordingly include a review of this Court s own precedents and understanding of the Eighth Amendment s text, history, meaning, and purpose. Id. (as cited in Graham, 560 U.S. at 61). A review of available data shows that there is no national consensus against the practice of sentencing juveniles to LWOP. Further, this Court has made clear that it supports maintaining the availability of this punishment for juvenile offenders. This Court s precedents also show that discretion, of both the legislative and judicial branches of government, is extremely important in considering Eighth Amendment questions. To maintain that discretion, this Court should not adopt a bright-line rule against sentencing juveniles to LWOP. This Court should affirm the ruling of the Texansas Supreme Court. B. There is no national consensus against the practice of sentencing juveniles to life imprisonment without possibility of parole. Many cases exploring questions of the Eighth Amendment consider whether a national consensus exists against a particular practice. See Atkins, 536 U.S. at 314; Coker, 433 U.S. at 594; Roper, 543 U.S. at 561. In the case before us, there is no clear national consensus against the practice of sentencing juveniles to LWOP. The inquiry begins with an across the board review of existing laws allowing or prohibiting the practice in question. See Graham, 560 U.S. at 62. Currently, thirty-four states allow the practice of sentencing juveniles to LWOP. Joshua 7

14 Rovner, Juvenile Life Without Parole: An Overview, The Sentencing Project, 2 (February 2016), Sixteen U.S. states and the District of Columbia ban the practice of sentencing juveniles to LWOP. Id. The inquiry continues by reviewing actual sentencing practices. See Atkins, 536 U.S. at 316; Roper, 543 U.S. at 572; Kennedy, 554 U.S. at Available data shows that thirtyone states currently have juveniles, or adults sentenced as juveniles, serving LWOP sentences. Rovner, supra, at 2. Of the states that have not banned the practice, only five currently have no juveniles, or adults sentenced as juveniles, serving an LWOP sentence. Id. Seventeen states and the District of Columbia, including those states that ban the practice, have no offenders currently serving an LWOP sentence. Id. Approximately 2,500 individuals in the U.S. are serving LWOP sentences for offenses committed as juveniles. Id. In terms of pure numbers, there is no national consensus against the practice. While there are a comparatively small number of individuals currently serving this sentence, a vast majority of states allow and utilize the sentence. We can also compare to other cases that have decided categorical rules. In Atkins, thirty states prohibited the practice of sentencing offenders with intellectual disabilities to death. 536 U.S. at In Roper, thirty states prohibited the death penalty for juveniles. 543 U.S. at 564. In Kennedy, only six states authorized the death penalty for the rape of a child. 554 U.S. at 426. In those cases, a vast majority of states prohibited the practice in question, making a stronger argument for a categorical rule. If we compare to our case, where thirty-four states allow and thirty-one states have utilized the practice, it is clear that a national consensus does not exist against the practice. This Court should find that a national consensus does not exist, and therefore does not support prohibiting the practice of sentencing juveniles to LWOP. 8

15 C. This Court has made clear that life imprisonment without possibility of parole should remain available as a punishment for juvenile offenders. In cases prohibiting the death penalty or limiting juvenile life sentences, this Court has made clear that sentences of LWOP would still be an option for some juvenile offenders. See Graham, 560 U.S. at (Roberts, C.J., concurring) (distinguishing a life sentence from capital punishment); see also Roper, 543 U.S. at Even though this imposition of the sentence of LWOP has been limited in other cases, it should not be prohibited altogether. In Graham, Chief Justice Roberts, concurring with the judgment, noted that the conclusion does not establish that juveniles can never be eligible for life without parole. 560 U.S. at 89. Chief Justice Roberts goes on to explain that a life sentence is indeed less severe than a death sentence, and that this Court has never required that it be imposed only on the very worst offenders.... Id. The Chief Justice describes that in Roper, the Court explicitly relied on the possible imposition of life without parole on some juvenile offenders. 543 U.S. at (as cited in Graham, 560 U.S. at 90). Roper, which prohibited a sentence of capital punishment for juveniles, recognized the unique differences between juvenile and adult offenders. 543 U.S. at This Court laid out the many considerations that a trial judge and jury should weigh when determining a sentence for a juvenile. Id. However, it was apparent that some juveniles will still deserve such a severe punishment as LWOP. Id. Justice Kennedy, in the majority opinion for Roper, states that: When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. 543 U.S This assertion exemplifies the Court s desire to maintain the availability of an LWOP sentence. Justice Roberts, in his concurrence for Graham, states that some crimes are so 9

16 heinous, and some juvenile offenders so highly culpable, that a sentence of life without parole may be entirely justified under the Constitution. 560 U.S. at 96. In our case, Forbes was tried as an adult due to public outcry over the crime he committed. He was convicted of three distinct felonies, the final of which resulted in the death of Madison Taylor, a six-month old infant. The trial court heard extensive testimony prior to deciding Forbes s sentence. The sentence given was allowable under Texansas Penal Law 300. In previous cases, like Graham and Roper, this Court has made clear that the sentence of LWOP will and should remain available for some juvenile offenders. The case before is one of those very instances. Forbes committed crimes so offensive to the public, one of which resulted in an innocent infant s death, that he deserves an adequately harsh sentence. This Court should affirm Forbes s sentence to LWOP. D. This Court should not adopt a bright-line rule against life sentences without parole for juvenile offenders, but should instead affirm the importance of judicial and legislative discretion. Throughout this Court s varying jurisprudence around the Eighth Amendment, judicial discretion has garnered special significance. See generally Graham, 560 U.S. 52; Kennedy, 554 U.S. 407; Roper, 543 U.S The Court has also cited the importance of legislative discretion as it reviews the objective indicia of a national consensus, which focuses on existing state law. Graham, 560 U.S. at 61. This Court consistently looks to state law and action to determine the views of the country. This practice underscores this Court s value of state discretion concerning questions of the Eighth Amendment. To affirm the importance of that discretion, this Court should withhold from adopting a bright-line rule that would extinguish it. Discretion is especially important in reviewing the sentences of juvenile offenders. Because of the discrete difference between juveniles and adults, trial courts must be able to 10

17 review all circumstances surrounding a case when making a sentencing decision. Roper, 543 U.S. at Justice Roberts, in his concurrence in Graham, noted that while he agreed with the judgment, he would not reach the same conclusion in every case involving a juvenile. 560 U.S. at 96. Justice Kagan, in the majority opinion for Miller v. Alabama, states that mandatory sentencing runs afoul of our cases requirement of individualized sentencing for defendants facing the most serious penalties. 132 S. Ct. 2455, 2460 (2012). While Justice Kagan was speaking particularly against mandatory sentences, this sentiment reiterates that judges should be able to consider all circumstances in deciding on an individualized sentence. A footnote in Miller also emphasized that the case established a rule requiring individualized sentencing for homicide offenses. 132 S. Ct. at 2466 n.6. In explaining why mandatory LWOP sentences are unconstitutional, Justice Kagan explained the importance of discretion, even given the vicious nature of the crime and need for severe punishment. Miller, 132 S. Ct. at Justice Kagan says the sentencer needed to examine all of these circumstances before concluding that life without any possibility of parole was the appropriate penalty. Id. This Court must permit the trial judge and jury to uphold principles of proportionality, which are central to the Eighth Amendment, by allowing discretion to impose an LWOP sentence. This Court, in Miller, notes that the judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. 132 S. Ct. at The Florida mandatory sentencing scheme in Miller violated the principles of proportionality, as the judge and jury had no ability to review the unique case before them and exercise appropriate discretion. Id. Again, the same principles that reject mandatory sentences 11

18 also reject categorical rules against LWOP for juveniles. Trial judges and juries should not be bound by strict categorical rules set forth by the Supreme Court. Here, the trial court that sentenced Forbes heard extensive testimony before reaching a final sentencing decision. The defense offered testimony concerning the extenuating circumstances of Forbes s youth, including testimony from psychologists, psychiatrists, and school officials. The state offered victim impact testimony from the parents of Madison Taylor. Given this testimony, the trial court decided on a sentence of LWOP for Forbes. Again, this sentence is explicitly authorized under Texansas Penal Law 300. This Court should affirm the Texansas Supreme Court and respect the discretion of the trial court and legislature. In doing so, this Court will refrain from adopting a bright-line rule prohibiting the imposition of an LWOP sentence for any and all juvenile offenders, no matter the crime. II. THE EIGHTH AMENDMENT IS NOT VIOLATED WHEN SENTENCING A JUVENILE TO LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE FOR A HOMICIDE OFFENSE, WHICH DOES NOT REQUIRE THE PROSECUTION TO PROVE THAT THE JUVENILE INTENDED TO KILL. A. Introduction. The Texansas Supreme Court was within the bounds of the Eighth Amendment when upholding the trial court s sentence of LWOP. This Court has interpreted the Eighth Amendment to ban both modes of punishment and punishments for specific offenders. Roper, 543 U.S. at 569 (holding the Eighth Amendment prohibits the execution of a juvenile defendant); Atkins, 536 U.S. at 321 (same for individuals found to be mentally retarded); Ford v. Wainwright, 477 U.S. 399, 410 (1986) (same for individuals found to be insane). But, the Eighth Amendment also prohibits prison terms that severely lack proportionality to the underlying offense. Weems, 217 U.S. at 367. With a juvenile, an LWOP sentence is the last bastion of a harsh, state-selected prison term; the term is a disproportionate sentence for all but the rarest of children, those 12

19 whose crimes reflect irreparable corruption. Montgomery v. Louisiana, 136 S. Ct. 718, 726 (2016) (citing Miller, 132 S. Ct. at 2469). However, overturning an otherwise lawful sentence on proportionality alone is exceedingly rare. Rummel v. Estelle, 445 U.S. 263, 272 (1980) (noting, to that year, the solitary example of Weems). But see Solem v. Helm, 463 U.S. 277, 303 (1983) (holding unconstitutional a LWOP sentence for defendant s seventh nonviolent felony, passing a worthless check). The case here involves felony-murder, which qualifies as a homicide offense, per state law. 40 Am. Jur. 2d Homicide 65; Hopkins v. Reeves, 524 U.S. 88, (1998); Tison v. Arizona, 481 U.S. 137, 140 (1987). Unlike other intentional homicides, felony-murder borrows the underlying felonious intent and makes any killing, intended or otherwise, a statutory murder. Hopkins, 524 U.S. at 91 (recognizing Neb. Rev. Stat did not require the state to prove any intent other than intent to commit the underlying felony); Graham, 130 S. Ct. at A defendant s major participation in the baseline felony is the only mens rea showing necessary for a felony-murder conviction. Hopkins, 524 U.S. at 91; See, e.g., People v. Dominguez, 140 P.3d 866, 878 (2006), cert. denied, 127 S. Ct (2007) ( The mental state required [for felony-murder under California law] is simply the specific intent to commit the underlying felony. ); People v. Benson, 480 N.Y.S.2d 811, 814 (1984) ( Thus, in New York, intent to kill is not an element of felony murder. ). In Texansas, [a] person is guilty of murder in the second degree when [ ] he commits [ ] 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. In the instant case, the state judge properly sentenced Forbes to a term of LWOP. Forbes was primarily sentenced for a guilty verdict to second-degree murder, a clear homicide offense. 13

20 The trial court followed the procedural bifurcation process required under Miller, and the court properly considered the competing circumstances of Forbes s age against the crime. Substantively, given the heinous details of the botched robbery and kidnapping, along with the deadly crash, the sentence was far from gross disproportionality. The lack of evidence showing murderous intent from Forbes toward the victim is irrelevant for sentencing practices. This case does not present the type of rare, unhinged sentence requiring reversal by this Court. B. The Texansas Court followed this Court s procedural requirements before sentencing juvenile Forbes and thereby was within the Eighth Amendment. The Texansas court followed all necessary requirements before choosing a sentence for Forbes. The LWOP sentence was properly handed down only after the mandatory bifurcation process, consideration of Forbes s age, and consideration of the underlying felonies and murder. A juvenile may only be sentenced to LWOP for a homicide offense. Graham, 560 U.S. at 82. As this Court has recognized, juveniles are inherently different than adult offenders. Id. at 74; J.D.B. v. North Carolina, 564 U.S. 261 (2011) (holding a child s age and maturity must be factored into the validity of a Miranda warning). A sentencing court, when dealing with a juvenile, must consider[] an offender s youth and attendant characteristics before imposing a particular penalty. Miller, 132 S.Ct. at This procedure, for homicide offenses, must be bifurcated from the trial and the sentencing must be individualized. Id. at 2466 n.6. Miller impacts all juvenile sentencings, enough so to be retroactive by this Court s ruling in Teague v. Lane, 489 U.S. 288 (1989). Montgomery, 136 S. Ct. at Here, the state court followed the procedural requirements handed down in Miller to the letter. To start, the trial court held a sentencing hearing, separate from the trial. This allowed both the state and the defense to offer testimony specific to the court s sentencing. First, the trial court heard from a number of expert witnesses on behalf of the defense, all of who testified to Forbes s 14

21 youth and immaturity. The presentation of such testimony follows the decisions of Graham, Miller, J.D.B., and Montgomery, where a juvenile defendant s age was at the forefront. The defendant s experts all offered evidence to persuade the trial court that Forbes s immaturity should allow him a chance to obtain release later in life. Next, the trial court heard testimony from the mother and father of the victim, six-month old Madison Taylor. Victim impact testimony is very common at sentencing, and there is no prohibition on such testimony for juveniles in adult court. This type of victim testimony speaks directly to the nature and consequences of Forbes s crimes. Only after hearing both arguments did the trial court sentence Forbes to LWOP. The Texansas Appellate Court, followed by the Texansas Supreme Court, upheld the sentence. The trial court, after hearing the necessary testimony concerning the youth of Forbes, properly sentenced Forbes to LWOP under Texansas Penal Law 300. The Eighth Amendment s procedural requirements were completely met before sentencing. C. The Texansas Court s sentence of life without possibility of parole was substantively within the bounds of the Eighth Amendment and state statute for a homicide crime. The trial court was proper in sentencing Forbes to LWOP for a felony-murder offense. The sentence was proportional given the facts and circumstances of Forbes s crime, despite Forbes s youth. This Court should not overturn the trial judge s discretionary sentence when within the state sentencing statute. 1. The Texansas Court sentenced Forbes for the crime of felony-murder, a homicide offense per Texansas State law. The Texansas trial court s LWOP sentence was within the bounds of the Eighth Amendment. Forbes s sentence was for: (1) a felony-murder homicide offense; (2) where Forbes 15

22 was the only participant; and (3) where Forbes showed reckless indifference to the value of human life. The trial judge had broad discretion given such a verdict. Felony-murder presents a unique circumstance for sentencing, both with adults and juveniles. Felony-murder, as this Court has recognized, is a homicide offense. Enmund, 458 U.S. at 797. This Court has placed a categorical ban on capital punishment for adult offenders who do not commit a homicide offense. Kennedy, 554 U.S. at 437. Execution is allowable for the adult offender who either intends to kill or whose participation is major and whose mental state is one of reckless indifference to the value of human life. Tison, 481 U.S. at 152. In the juvenile arena, an LWOP sentence is inapplicable with any non-homicide offense. Graham, 130 S. Ct. at In Texansas, [a] person is guilty of murder in the second degree when [ ] he commits [ ] 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. For second-degree murder, Texansas allows for a sentence ranging from death to a term of imprisonment, all at the discretion of the trial judge. Texansas Penal Law 300. To understand the gravity of felony-murder, we direct this Court to reexamine the facts of Tison. There, this Court held that an adult offender who (1) was a major participant in a felony, and (2) showed reckless indifference to the value of human life, may be sentenced to death for felony-murder. Id. at 158. In Tison, the Petitioners helped their father escape from prison, helped rob and kidnap a family of four, and then watched as the family was executed in the Arizona desert. Id. at This Court found the Petitioners felonies were dangerous, their actions major, and the likelihood of taking innocent life was great, despite no direct intention to take the life of the passing family. Id. at 152. The Court held the Petitioners actions and states of mind 16

23 were sufficiently above the Enmund culpability bar, and therefore capital punishment was a sentencing option for the Arizona court. Id. at 158. In the instant case, the trial judge was on firm ground when he chose to sentence Forbes to LWOP for a homicide offense. This Court even recognized the crime here as a homicide offense, insofar as certiorari was granted on [w]hether the Eighth Amendment prohibits sentencing a child to life imprisonment without the possibility of parole for a homicide offense.... Forbes v. Texansas, 999 U.S. 1 (2016) (quoting the second question certified for review) (emphasis added). To begin, Forbes was found guilty of murder in the second degree, a homicide offense. Section 125 of the Texansas Penal Law, articulating murder in the second degree, imposes guilt on a defendant who causes the death of a non-participant in the course of any enumerated felony. Such enumerated felonies include robbery, burglary, and kidnapping. As the Texansas Supreme Court found, Forbes does not and cannot dispute he was found guilty of two underlying felonies enumerated in the second-degree murder statute: first-degree robbery and first-degree kidnapping. Forbes also cannot dispute that six-month old Madison Taylor died in the course of and in furtherance of such [felonies] or of immediate flight therefrom. Next, Forbes s actions on October 1 showed a mental state devoid of any concern for the value of human life. It is well established that the State s prosecution offered no evidence showing Forbes intended to kill young Madison Taylor. The state was in no way required to do so. Like the defendants in Tison or any similar felony-murder case, such a finding of murderous intent is unnecessary here. The only finding necessary is that Forbes was a major participant in the underlying felony, and that Forbes s mental state was one of reckless indifference to the value of human life. 17

24 First, to the major participation prong, Forbes was the only actor in the robbery and kidnapping. His major participation is without question. Second, to the mental state prong, Forbes displayed a startling number of actions that showed an indifference to human life and the value placed upon it by Texansas. Forbes showed a willingness to commit crimes, including felonies, under the influence of a dangerous drug. Forbes chose not only to steal an automobile, but also to drive the Corolla under the continued influence of bath salts, showing a disregard to any other motorist in Eagle Heights. This decision is only exacerbated by driving over 120 milesper-hour down Main Street, a busy commercial street, in an attempt to flee capture. This display of indifference to human life led to a violent crash with another motorist, and more importantly, cost the life of Madison Taylor, an infant strapped in to Forbes s suicide machine. Forbes s indifference to human life cost exactly that the life of an infant, only left in the car for being fussy with colic. Given Forbes s conviction of a homicide offense, along with the requisite mental state of extreme indifference to human life, the trial court was proper in sentencing Forbes to LWOP. Such a juvenile punishment is akin to capital punishment for an adult, as it is the last bastion of harsh state penalties available. The LWOP sentence is one made available to the discretion of the trial court and should be upheld. 2. The sentence of life imprisonment without possibility of parole for juvenile Forbes was not grossly disproportionate to the crime committed. The Texansas court sentenced Forbes to LWOP, a sentence that is in proportion with the heinous crime committed. The sentence was within the legislative framework and at the judge s discretion. The Eighth Amendment does not prohibit the sentence chosen for this crime, despite the prosecution never showing that Forbes intended to end the life of young Madison Taylor. 18

25 An offender s sentence must be proportioned, or graduated, to the crime committed. Weems, 217 U.S. at 367. When comparing a crime and punishment, the Eighth Amendment s context is looked at through a modern, normative lens. Kennedy, 554 U.S. at, 419. A legislatively enacted punishment is presumed valid, and a heavy burden rests on those who would attack the judgment of the representatives of the people. Gregg v. Georgia, 428 U.S. 153, 175 (1976). A sentencing judge is within the Eighth Amendment when choosing a term inside the statutory framework, whether by the United States Code or a state scheme. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United States v. Dawson, 400 F.2d 194, 200 (2d Cir. 1968), cert. denied, 393 U.S (1969). This Court is consistently reluctant to overstep a legislature s sentencing statute, and one could argue without fear of contradiction by any decision of this Court that for... felonies, that is as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative. Rummel, 445 U.S. at 274. Proportionality, however, is a difficult axiom to pin down. This Court has struggled with the limits for a prison term in relation to a given crime. In Rummel, this Court recognized that successful challenges on Eighth Amendment proportionality grounds are rare. Id. at 272. Proportionality would be lost in the extreme example... if a legislature made overtime parking a felony punishable by life imprisonment. Id. at 274 n.11. Under recidivist statutes, this Court has held that harsh prison sentences are not cruel and unusual. See Ewing v. California, 538 U.S. 11, (2003) (affirming a sentence of 25 years to life under California s three strikes law for defendant s stealing of three golf clubs, valued under $1,200); Hutto v. Davis, 454 U.S. 370, (1982) (reversing the court of appeals intrusion into the Virginia Legislature s sentencing scheme for a marijuana distribution felony). On the other end, in Solem, this Court reversed an 19

26 LWOP sentence, issued to a nonviolent recidivist defendant for uttering a no account check. 463 U.S. at 303. First, the court s sentence of LWOP for Forbes was proportional to the crime and its effect. Forbes began his crime spree by ingesting a dangerous drug, bath salts, which left him muttering to himself in a back alley after failing to steal more of the drug. Next came three felonies: first degree robbery, first degree kidnapping, and second degree murder. Forbes stole a vehicle, kidnapped a six-month old in the process, and fled the police, all while still under the influence. The high-speed pursuit through busy Eagle Heights would cost the life of Madison Taylor, the kidnapping victim. Such actions, qualifying as extreme indifference to the value of human life, illustrated above, show that a severe punishment was appropriate for Forbes. He was not a habitual offender, like in Ewing or Hutto, but his crimes were on an adult level and showed the irreparable corruption called for in Montgomery. A punishment of LWOP for such crimes is not akin to sentencing for overtime parking, or sentencing for a nonviolent felony, as in Solem. Second, the sentencing judge followed all the necessary procedures while staying within the state statute. This Court has always maintained a high level of deference to such sentencing decisions. Rather than have the Supreme Court of the United States become a national sentencing review board, each state is allowed to set their own punishment framework, as articulated in Rummel. Here, per Gregg, Texansas Penal Law 300 is presumed valid and the punishment of LWOP allowed. Had the trial court sentenced Forbes to death, the issue would be different. However, the trial court remained in the valid sentencing architecture, and exercised its proper discretion. This Court should not rewrite the Texansas Legislature s prescribed sentence, as it refrained from doing so in Hutto. 20

27 This Court should recognize that the crimes involved were all felonies and resulted in the death of an infant while the Defendant fled police capture. Further, this Court should recognize the wide deference given to state legislative schemes and punishments, as well as the wide discretion given to judges who sentence within such schemes. Thereby, the punishment given to Forbes, LWOP, in no way ran afoul of the Eighth Amendment s proportionality requirement. D. Petitioner s likely argument to rely on Justice Breyer s concurrence in Miller should not supersede the above precedent or facts of the felony-murder committed by Forbes. Petitioner likely points to Justice Breyer s concurrence in Miller as sound reasoning to reverse the sentence here. The concurrence states that only after determining a juvenile defendant kill[ed] or intend[ed] to kill could a court then sentence the child to LWOP. Miller, 132 S.Ct. at This is based, in part, on the twice diminished moral culpability found in a juvenile who commits felony-murder. Id. (quoting Graham, 130 S.Ct. at 2027, 2034). The diminished culpability stems from the characteristics of youth offenders, like immaturity, and the lack of a proven intent to kill, with felony-murder convictions. Graham, 130 S.Ct. at An argument relying on the Miller concurrence is just that an argument based on a concurrence, and not binding precedent. The first diminishment of moral culpability, factoring in a juvenile s immaturity and lack of understanding, has been well articulated in Roper, Graham, and Miller. The problem here is not against the Court s finding that children are different. The problem is that felony-murder, by and of itself, relies on the doctrine of transferred intent from an underlying felony. There is a strong moral culpability for a defendant who commits a dangerous felony that directly results in the death of another, especially a non-participant victim. This culpability is present in Hopkins, Tison, and here with Forbes, given that Texansas Penal Law 125 is narrowly tailored for death of a person other than one of the participants. 21

28 A required determination that the child killed or intended to kill is also untenable. To start, this obliterates the basic concept of transferred intent in felony-murder. A showing of murderous intent is unnecessary, so long as it is clear the defendant acted with extreme indifference to the value of human life. Here, Forbes made such a clear showing of extreme indifference. Requiring the prosecution team to make another showing of intent to kill adds an unnecessary sentencing element to the felony-murder case-in-chief. This would rewrite a basic facet of criminal law and procedure. Furthermore, an intent to kill requirement ignores the safeguard put in place by this Court in Miller, where an individualized sentencing determination is required. At such a sentencing stage, the judge can factor in evidence to the offender s youth against the circumstances of the case already presented. It is there a sentencing judge may find the defendant s diminished culpability requires a sentence less than LWOP. But, as the Texansas Supreme Court found, in accordance with the evidence produced, in its legitimate discretion, the [trial] court imposed a fit sentence for a crime of this nature. The trial judge was on constitutional grounds when sentencing Forbes to LWOP. The judge recognized that Forbes, as a juvenile, was different. However, the idea of diminished culpability ends when flight from police, during the commission of a felony, results in the death of a six-month old. This Court should affirm the LWOP sentence handed down to Forbes. CONCLUSION For the foregoing reasons, the State of Texansas respectfully requests this Court affirm the decision of the Supreme Court of Texansas. Respectfully Submitted, Team 14 22

29 APPENDIX UNITED STATES CONSTITUTION Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment XIV, Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws. A-1