In the Supreme Court of the United States
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1 No In the Supreme Court of the United States TIMOTHY S. WILLBANKS, Petitioner, V. MISSOURI DEP T OF CORRECTIONS, Respondent. LEDALE NATHAN, Petitioner, V. STATE OF MISSOURI, Respondent. On Petition for a Writ of Certiorari to the Missouri Supreme Court REPLY BRIEF FOR PETITIONERS CRAIG A. JOHNSTON WILLIAM J. SWIFT STUART BANNER Counsel of Record Office of the Missouri UCLA School of Law State Public Defender Supreme Court Clinic Woodrail Centre 405 Hilgard Ave W. Nifong Los Angeles, CA Building 7, Suite 100 (310) Columbia, MO banner@law.ucla.edu
2 i TABLE OF CONTENTS TABLE OF AUTHORITIES... ii REPLY BRIEF FOR PETITIONERS... 1 CONCLUSION... 3
3 ii TABLE OF AUTHORITIES CASES Ali v. Minnesota, No (filed Aug. 8, 2017)... 1 Graham v. Florida, 560 U.S. 48 (2010)... 2 Miller v. Alabama, 567 U.S. 460 (2012)... 2 New Jersey v. Zuber, No (filed June 12, 2017)... 1, 2 Ohio v. Moore, No (filed Mar. 22, 2017)... 1, 2
4 1 REPLY BRIEF FOR PETITIONERS Missouri concedes (BIO 17-18) that there is a deep lower court conflict on the question presented. The state acknowledges (BIO 24) that this case is an excellent vehicle for resolving the conflict. Missouri even provides (BIO 26-32) additional reasons for granting certiorari. The state nevertheless urges the Court to deny certiorari on two grounds first (BIO 19), that the Court would benefit from letting the issue percolate in the lower courts, and second (BIO 19-24), that the decision below was correct. The state is mistaken in both respects. 1. There is nothing to be gained from further percolation. The lower courts are already divided fourteen to five. Many of the opinions on both sides are lengthy and thorough. Several of these opinions have long dissents that are just as thoughtful. See cases cited at Pet Every conceivable argument has been aired. By now the Court has received at least three other certiorari petitions raising the same issue. See Ali v. Minnesota, No (filed Aug. 8, 2017); New Jersey v. Zuber, No (filed June 12, 2017); Ohio v. Moore, No (filed Mar. 22, 2017). If the Court denies certiorari in all these cases, the conflict will just grow larger, but the Court will not acquire any new information. Missouri correctly notes (BIO 19) that the Court denied certiorari on this issue while the conflict was still in the process of forming. But that is hardly a reason for denying certiorari now that the conflict is fully formed. Missouri is just one of seventeen states the Court has recently heard from on this issue. The other six-
5 2 teen are urging the Court to decide the issue now, because they recognize that additional percolation would be pointless. See Pet. for Cert., New Jersey v. Zuber, No ; Brief of Amici Curiae State of Utah and Thirteen Other States Supporting Petitioner, New Jersey v. Zuber, No ; Pet. for Cert., Ohio v. Moore, No This is not the place for an extended argument on the merits, but two points deserve emphasis. First, Missouri s discussion completely overlooks the rationale of the Court s cases in this area that children are constitutionally different from adults for purposes of sentencing. Miller v. Alabama, 567 U.S. 460, 471 (2012). The difference between juveniles and adults is that because juveniles have lessened culpability they are less deserving of the most severe punishments. Graham v. Florida, 560 U.S. 48, 68 (2010). Much of what Missouri has to say on the merits would be on point as applied to adults, but the Court has already rejected Missouri s view when it comes to juveniles. Second, Miller and Graham would be virtually meaningless if states could evade them by imposing de facto, rather than de jure, sentences of life without parole. The Eighth Amendment governs the substance of sentences, not merely their form. It is small comfort to hear that each offender has an opportunity for parole in old age (BIO 20), when petitioners are very likely to be dead by then.
6 3 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, CRAIG A. JOHNSTON WILLIAM J. SWIFT STUART BANNER Counsel of Record Office of the Missouri UCLA School of Law State Public Defender Supreme Court Clinic Woodrail Centre 405 Hilgard Ave W. Nifong Los Angeles, CA Building 7, Suite 100 (310) Columbia, MO banner@law.ucla.edu
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No. 01- IN THE Supreme Court of the United States Barrett N. Weinberger, v. United States of America Petitioner, On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth
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SUPREME COURT OF THE UNITED STATES
Cite as: U. S. (1999) 1 NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions,
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NO. 15-557 In the Supreme Court of the United States DOUGLAS COUNTY SCHOOL DISTRICT, ET AL., v. Petitioners, TAXPAYERS FOR PUBLIC EDUCATION, ET AL., Respondents. On Petition for Writ of Certiorari to the
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No. 13-502 IN THE Supreme Court of the United States PASTOR CLYDE REED AND GOOD NEWS COMMUNITY CHURCH, Petitioners, v. TOWN OF GILBERT, ARIZONA AND ADAM ADAMS, IN HIS OFFICIAL CAPACITY AS CODE COMPLIANCE
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JAVARRIS LANE, Appellant, v. STATE OF FLORIDA, IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
No. 10-9,4. In the ~reme ~eurt oi t~e i~tniteb ~tate~ RICHARD F. ALLEN, Comm. of Alabama Dept. of Corrections, et. al., Petitioners, Respondent.
No. 10-9,4 In the ~reme ~eurt oi t~e i~tniteb ~tate~ RICHARD F. ALLEN, Comm. of Alabama Dept. of Corrections, et. al., Petitioners, V. JAMES CHARLES LAWHORN, Respondent. On Petition for a Writ of Certiorari
IN THE COURT OF APPEALS OF IOWA. No / Filed July 11, Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,
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No IN THE SUPREME COURT OF THE UNITED STATES
No. 17-5716 IN THE SUPREME COURT OF THE UNITED STATES TIMOTHY D. KOONS, KENNETH JAY PUTENSEN, RANDY FEAUTO, ESEQUIEL GUTIERREZ, AND JOSE MANUEL GARDEA, PETITIONERS v. UNITED STATES OF AMERICA ON PETITION
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No. 16-572 FILED NAR 15 2017 OFFICE OF THE CLERK SUPREME COURT U ~Jn tl~e Dupreme C ourt of toe i~tnite~ Dtate~ CITIZENS AGAINST RESERVATION SHOPPING, ET AL., PETITIONERS Vo RYAN ZINKE, SECRETARY OF THE