IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 * * * * * * * IN THE SUPREME COURT OF THE UNITED STATES No WYATT FORBES, III, Petitioner, v. TEXANSAS, Respondent. ON APPEAL FROM THE SUPREME COURT OF TEXANSAS BRIEF FOR THE PETITIONER Petitioner, Team #23

2 QUESTIONS PRESENTED I. Whether a juvenile defendant s constitutional rights under the Eighth Amendment are violated when the defendant is sentenced to life without the possibility of parole. II. Whether a juvenile defendant s constitutional rights under the Eighth Amendment are violated when the defendant is sentenced to life without the possibility of parole for a homicide offense that does not require the prosecution to prove that the defendant intended to kill. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i! TABLE OF CONTENTS... ii! TABLE OF AUTHORITIES... iii! STATEMENT OF THE CASE... 1! (I)! PROCEEDINGS BELOW... 1! (II)! STATEMENT OF THE FACTS... 1! (III)! JURISDICTIONAL STATEMENT AND STANDARD OF REVIEW... 2! SUMMARY OF THE ARGUMENT... 2! ARGUMENT... 3! I.! II.! THE EIGHTH AMENDMENT S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT FORBIDS SENTENCING A CHILD TO LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE BECAUSE THE PUNISHMENT IS ALWAYS DISPROPORTIONATE TO THE CRIME.... 3! A.! B.! C.! Sentencing a Child to Life Imprisonment Without the Possibility of Parole Is Always Disproportionate to the Crime.... 5! A Categorical Rule is Necessary Here Because No Alternative Will Suffice and Allowing Life Imprisonment Without Parole for Children Does Not Reflect the Current Standards or Values of Today s Society.... 8! Sentencing a Child to Life Imprisonment Without the Possibility of Parole Violates the Court s Holding in Atkins v. Virginia Because Children are Not as Competent as Adults ! THE EIGHTH AMENDMENT S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT FORBIDS SENTENCING A CHILD TO LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE FOR A HOMICIDE OFFENSE, WHICH DOES NOT REQUIRE THE PROSECUTION TO PROVE INTENT TO KILL, BECAUSE THE PUNISHMENT IS NOT PROPORTIONATE TO THE CRIME ! A.! Life Imprisonment Without the Possibility of Parole Is the Most Severe Punishment a Minor Can Receive ! 1.! Negligent, unintentional conduct is less severe than intentional conduct ! 2.! Children are less deserving of the most severe punishments ! 3.! Deciding that a juvenile offender will forever be a danger to society would require making a judgment that he is incorrigible, but incorrigibility is inconsistent with youth ! B.! Other Jurisdictions Do Not Impose Life Without the Possibility of Parole Upon Minors For Crimes That Do Not Require the Prosecution to Prove Intent to Kill... 20! 1.! Eighteen states and the District of Columbia have abolished sentencing a child to life without parole, regardless of intent ! 2.! Foreign jurisdictions do not sentence children to life without parole ! CONCLUSION... 25! ii

4 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT! Atkins v. Virginia, 536 U.S. 304 (2002)... 12, 13 Coker v. Georgia, 433 U.S. 584 (1977)... 5 Enmund v. Florida, 458 U.S. 782 (1982)... 15, 16, 23 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995)... 2 Furman v. Georgia, 408 U.S. 238 (1972)... passim Graham v. Florida, 560 U.S. 48 (2010)... passim In re Kemmler, 136 U.S 436 (1890)... 10, 12 J.D.B. v. North Carolina, 131 S. Ct (2011)... 12, 13 Miller v. Alabama, 132 S. Ct (2012)... passim Robinson v. California, 370 U.S. 660 (1962)... 4 Roper v. Simmons, 543 U.S. 551 (2005)... passim Solem v. Helm, 463 U.S. 277 (1983)... 4 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Trop v. Dulles, 356 U.S. 86 (1958)... 9, 10 Weems v. United States, 217 U.S. 349 (1910)... 4, 5 UNITED STATES CONSTITUTIONAL PROVISIONS! U.S. CONST. amend. VIII... 4 STATE STATUTES! A.B. 267 (Nev. 2015) CAL. PEN. CODE 1170(d)(2) FLA. STAT. ANN H.B. 2116, 27 Leg. (Haw. 2014) Texansas Penal Law 125 (2016)... 1 Texansas Penal Law 135 (2016)... 1 Texansas Penal Law 160 (2016)... 1 Texansas Penal Law 300 (2016) TREATISES! NORTHWEST ORDINANCE of 1787, 14, art iii

5 U.N. Convention on the Rights of the Child, art SECONDARY SOURCES! Brief for Amnesty International, et al. as Amici Curiae Supporting Petitioners, Miller v. Alabama, 132 S. Ct (2012) (No ) George W. Bush, President of the U.S., State of the Union Address (Jan. 20, 2004)... 8 JOHN R. MILLS ET AL., NO HOPE: RE-EXAMINING LIFETIME SENTENCES FOR JUVENILE OFFENDERS 6 (2015)... 9, 23 Marsha Levick, et al., The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment Through the Lens of Childhood and Adolescence, 15 U. PA. J. L. & SOC. CHANGE 285, 316 (2012) Miller v. Alabama and Juvenile Life Without Parole Laws, NATIONAL CONFERENCE OF STATE LEGISLATURES (Jan. 25, 2016) Natasja Sheriff, UN expert slams US as only nation to imprison kids for life without parole, AL JAZEERA AMERICA (Mar. 9, 2015) Trends in Juvenile Justice State Legislation , NATIONAL CONFERENCE OF STATE LEGISLATURES (Oct. 8, 2015) UN lauds South Sudan as country ratifies landmark child rights treaty, UN NEWS CENTRE (May 4, 2015) iv

6 STATEMENT OF THE CASE This is a criminal case in which Appellee, Texansas, charged the Appellant, Wyatt Forbes, III, as an adult for first-degree robbery in violation of Texansas Penal Law section 160, firstdegree kidnapping in violation of Texansas Penal Law section 135, and second-degree murder in violation of Texansas Penal Law section 125. (i) PROCEEDINGS BELOW At the jury trial, fifteen-year-old Forbes was charged as an adult. (R. at 4). Forbes was convicted of first-degree robbery, first-degree kidnapping, and second-degree murder. (R. at 4-5). The trial court heard testimony from the defense s witnesses including psychiatrists, psychologists, and school officials, regarding the extenuating circumstances of Forbes youth. (R. at 5). At the young age of fifteen, Forbes was subsequently sentenced to life imprisonment without the possibility of parole. (Id.) Forbes petitioned the Appellate Court of Texansas to overturn his sentence as facially unconstitutional, but was denied. (Id.) Forbes appealed the Appellate Court s decision to the Supreme Court of Texansas, but was again denied. (R. at 1). Forbes now appeals the denial of his petition for habeas corpus to the Supreme Court of the United States. (R. at 5). (ii) STATEMENT OF THE FACTS Wyatt Trey Forbes, III was an eighth grader at Eagle Heights Middle School in Eagle Heights, Texansas. (R. at 3). On October 1, 2014, he left school and met two friends at a local park. (Id.) Following his friends, Forbes partook in ingesting bath salts, also known as synthetic cathinone. (Id.) That same day, Forbes left the park to get more bath salts from a nearby convenience store. (Id.) He wore a hooded sweatshirt and carried a backpack with a screwdriver and a pair of nunchuks. (R. at 3-4). Forbes had a rapport with local law enforcement, but he was never charged for allegations of disorderly conduct or shoplifting. (R. at 3). Even 1

7 though the store clerk did not see Forbes steal anything, she chased him out of the store. (R. at 4). Forbes hid in the alley behind the store as he tried to figure out what was going on. (Id.) Meanwhile, at 8:30 p.m., Pamela Taylor parked her 2012 Toyota Corolla in the convenience store s parking lot. (Id.) Irresponsibly, Mrs. Taylor left her sleeping daughter, in the running, unlocked car while she went inside the store. (Id.) Still under the influence of bath salts, and unaware that the car contained passengers, Forbes stepped into Mrs. Taylor s car and drove away. (Id.) The store clerk, still keeping an eye on Forbes, immediately called the police after seeing Forbes drive away in Mrs. Taylor s car. (Id.) Michael Dudley, an Eagle Heights Police Officer, found the car driving north on a busy commercial street in town. (Id.) Hastily, Officer Dudley sounded his siren, flashed his lights, and alerted Forbes to stop the car. (Id.) While accelerating away from the loud noises and flashing lights, Forbes lost control and hit an oncoming car, which caused the Toyota Corolla to roll over several times (Id.) In the accident, Forbes suffered a broken collarbone after being thrown from the car. (Id.) Mrs. Taylor s daughter passed away as a result of her injuries. (Id.) (iii) JURISDICTIONAL STATEMENT AND STANDARD OF REVIEW A formal Statement of Jurisdiction has been waived by the Rules of the 2016 Herbert Wechsler National Criminal Law Moot Court Competition. The standard of review on questions of law is de novo. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). SUMMARY OF THE ARGUMENT The Texansas Supreme Court violated Wyatt Forbes Eighth Amendment protection against cruel and unusual punishment when it sentenced him to life imprisonment without the possibility of parole. First, sentencing a child to life imprisonment without the possibility of parole is always disproportionate to the crime because it effectively sentences a child to death, which is unconstitutional. Second, sentencing a child to life imprisonment without the possibility 2

8 of parole does not comport with society s values that call for allowing a child to gain eventual release from prison. Lastly, sentencing a child to life imprisonment without the possibility of parole conflicts with the idea that children are not as competent as adults and should not be held to the same standards. Wyatt Forbes was unconstitutionally sentenced to life imprisonment without the possibility of parole regardless of the prosecutions lack of need to prove intent to kill for several reasons. Life imprisonment without parole is the most severe punishment Forbes could have received, making it a disproportionate sentence. Additionally, other jurisdictions would not have sentenced Forbes to life imprisonment without parole and the worldwide trend is moving away from such harsh punishments for children. Sentencing Forbes to life imprisonment without the possibility of parole constituted cruel and unusual punishment and violated his constitutional rights. For these reasons, this Court should reverse the lower court s decision. ARGUMENT I. THE EIGHTH AMENDMENT S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT FORBIDS SENTENCING A CHILD TO LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE BECAUSE THE PUNISHMENT IS ALWAYS DISPROPORTIONATE TO THE CRIME. Common law jurisprudence contains the deeply rooted principle that any given punishment should be proportionate to the crime committed. See Solem v. Helm, 462 U.S. 277, 284 (1983). Beginning in 1215 with the Magna Carta, the writers devoted three chapters to ensuring that amercements, or financial penalties, were not excessive. See Furman v. Georgia, 408 U.S. 238, 243 (1972) ( Chapter 14 [of the Magna Carta] clearly stipulated... [a] free man shall not be amerced for a trivial offense; and for a serious offence, he shall be amerced according to its gravity, saving his livelihood... ). This idea translated into prison sentences with the First Statute of Westminster as well as courtroom judges holding that prison sentences 3

9 needed to be proportional to the crimes. See Solem, 463 U.S. at 285 ( [I]mprisonment ought always to be according to the quality of the offence ). Continuing in the pre-american era, the English Bill of Rights firmly stated that cruel and unusual punishments were forbidden. See Solem, 463 U.S. at 285 ( [E]xcessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted. ). After the historical separation from England, the Founding Fathers of the United States did not re-invent the wheel for the basis of government. Rather, these men created a more fair government system, while taking the laws they appreciated most from the English including the prohibition of cruel and unusual punishment. See U.S. CONST. amend. VIII. Although not directly in the Articles of Confederation, the Northwest Ordinance, an act passed by Congress under the Confederation, also contained a provision banning cruel and unusual punishment. See NORTHWEST ORDINANCE of 1787, 14, art. 2. Following the failure of the Confederation, the United States ratified the United States Constitution and ten amendments in The Eighth Amendment of the United States Constitution takes language straight from English law and prohibits the infliction of cruel and unusual punishments. See U.S. CONST. amend. VIII. Not only did America take the law from England, but the United States also adopted the reasoning behind the Eighth Amendment. The Eighth Amendment to the United States Constitution, applicable to the States by reason of the Due Process Clause, requires that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. CONST. amend. VIII; see Robinson v. California, 370 U.S. 660, 675 (1962). To be considered constitutional under the Eighth Amendment, a punishment must be proportionate to the offense. See Weems v. United States, 217 U.S. 349, 367 (1910). A punishment is excessive and unconstitutional if it 4

10 (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. See Coker v. Georgia, 433 U.S. 584, 592 (1977). Sentencing a child to life imprisonment without the possibility of parole constitutes cruel and unusual punishment because it is always disproportionate to the crime, as it is essentially sentencing a child to death, because it does not reflect today s standards and values, and because it violates the Supreme Court s past holding that children are not as competent as adults. A. Sentencing a Child to Life Imprisonment Without the Possibility of Parole Is Always Disproportionate to the Crime. Proportionality is a concept inherent to the enforcement of the Eighth Amendment. See Weems, 217 U.S. at 367. [I]t is a precept of justice that punishment for crime should be graduated and proportioned to offense. Id. Under a similar proportionality analysis as to why capital punishment is impermissible when implemented against children, it is clear that sentencing a child to life imprisonment without the possibility of parole is unconstitutional because there will never be a crime severe enough to warrant life imprisonment without parole for a child. See Roper v. Simmons, 543 U.S. 551, 559 (2005). The Supreme Court has consistently noted the essential differences between juvenile offenders and adult offenders that should be taken into consideration during sentencing offenders. See id. at 569. For instance, the Court in Roper explicitly noted three of the most general differences that should be considered when conducting the proportionality analysis in sentencing: (i) a more understandable lack of maturity and responsibility found in the youth of society, (ii) the heightened susceptibility of juveniles to negative influences and outside pressures, such as peer pressure, and (iii) the overall character of a juvenile is not as well formed as an adult. See id. at 568. In his opinion in Roper, Justice Kennedy highlighted the special 5

11 force given to the Eighth Amendment when dealing with severe punishments and the narrowing of these punishments to the offenders who are most deserving. See id. This exemplifies why reduced culpability of youth offenders is so important to this issue. Furthermore, the Court in Furman v. Georgia established four principles by which a court may determine whether a particular punishment is cruel and unusual. See 408 U.S. at 281 (Brennan, J., concurring). These four principles include: (i) a punishment must not by its severity be degrading to human dignity, (ii) a punishment must not be so severe that is obviously inflicted in wholly arbitrary fashion, (iii) a punishment must not be so severe that it is clearly and totally rejected throughout society, and (iv) a punishment must not be so severe that it is patently unnecessary. See id. The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. Id. at 282. The Eighth Amendment prohibits the execution of individuals who were under 18 years of age at the commission of their capital crimes because [t]he susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. Roper, 543 U.S. at 570. In Roper, the defendant was seventeen when he, along with two friends, planned and executed a murder where he tied up and threw the victim over a bridge. See id. at 555. In determining that capital punishment was unconstitutional, the Court stated that youth is a mitigating factor in such circumstances because the basic concept of youth expresses the notion that the impetuous, immature, and reckless nature that may dominate in the younger years can subside. Id. 6

12 A punishment may be degrading to human dignity simply by its enormity. See Furman, 408 U.S. at 288 (Brennan, J., concurring). Expatriation, which inherently entails the total destruction of the individual's status in organized society, is a historically relevant example for why life imprisonment of a child without parole is indeed cruel and unusual. Id. at 289. For instance, imprisoning a child permanently before that child becomes fully mentally capable of participating in society is analogous to the degradation of human dignity exemplified by expatriation. Although it is understood why a state may have to imprison a child, even in some cases for very long periods of time, it would be degrading to human dignity to imprison a child for his or her entire existence without considering a child s ability to change throughout the decades of imprisonment. The proportionality standard and the mitigating factors outlined in Roper effectively assist in concluding that life without the possibility of parole for a child is categorically unconstitutional. If courts have already recognized that immature and reckless behavior is a component of being a child, then not granting a child offender even the slightest opportunity for eventual release is disproportionate to any crime that child may have committed, regardless of circumstance. Mr. Forbes is only in eighth grade, and to lock him up, throw away the key, and never reassess his character would be entirely adverse to the concepts of justice and proportionality. The factors of peer pressure, immaturity, and recklessness that are inherent to children are clear in Forbes case. Forbes was indeed an immature kid, influenced by peer pressure, who simply lacked the responsibility most children lack, and whose actions resulted in an unfortunate death. Not only does Forbes demonstrate all of the differences between juveniles and adults expressed in Roper, but also these factors themselves can easily be seen to have been the 7

13 prominent reasons as to why Forbes committed any crime at all. In other words, the crimes committed by Forbes were not just mitigated by these factors, but would most likely not have occurred had he been an adult who fully comprehended the consequences of his actions. To sentence Forbes to life imprisonment without the possibility of parole would be to ignore the distinctions that the Supreme Court has implemented to protect the youth of our society. Such a sentence would fail to give our children a fair opportunity to change the error of their ways. The lower court s decision to send Forbes to life in prison without the possibility of parole is essentially an elongated death penalty sentence, which the Court in Roper has already declared wholly unconstitutional. See Roper, 543 U.S. at 578. B. A Categorical Rule is Necessary Here Because No Alternative Will Suffice and Allowing Life Imprisonment Without Parole for Children Does Not Reflect the Current Standards or Values of Today s Society. America is the land of the second chance and when the gates of the prison open, the path ahead should lead to a better life. George W. Bush, President of the U.S., State of the Union Address (Jan. 20, 2004). For some children, the gates of the prison never open, there is no path ahead, and there is no second chance because these children have been unconstitutionally sentenced to life imprisonment without the possibility of parole. Sentencing a child to life imprisonment without the possibility of parole is unconstitutional because it does not reflect the current rehabilitation standards of today s society. See generally Graham v. Florida, 560 U.S. 48, 71 (2010). Although states are not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime, states must grant the offender some meaningful opportunity for release based on demonstrated maturity and rehabilitation. See Graham, 560 U.S. at 75. Furthermore, the Court in Graham held that the Eighth Amendment prohibits imposition of life without parole sentences on juvenile offenders who did not commit a homicide. See id. at 55. 8

14 These sentences do not execute the offender sentenced to life without parole, but [rather] alters the offender s life by a forfeiture that was irrevocable. Id. at 69. These sentencing procedures against children should be analyzed under the same standard established by Roper, which listed numerous compelling reasons why children should be sentenced far differently than adults. See generally Roper, 543 U.S. at 564. In addition to traditional understandings of how the state may sentence offenders, a penalty that was permissible at one time in our nation's history is not necessarily permissible today. See Furman, 408 U.S. at 329 (Marshall, J., concurring). Rather then following past precedent, courts today overlook historical conception and focus on the evolving standards of decency that mark the progress of a maturing society when deciding if a punishment is cruel and unusual. Graham, 560 U.S. at 58 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). As recent jurisprudence has significantly furthered the protection of historically overlooked groups of citizens, statistics show that merely nine states account for over 82% of juvenile life without parole sentences. See JOHN R. MILLS ET AL., NO HOPE: RE-EXAMINING LIFETIME SENTENCES FOR JUVENILE OFFENDERS 6 (2015). This statistic alone is staggering enough to make understood that further legislature is required. A refusal to implement a categorical rule making life without parole sentences for children unconstitutional is a refusal to accurately reflect the trends and values already demonstrated by the state courts. See Graham, 560 U.S. at 58. As Justice Kennedy made clear in Graham, the courts should look towards objective criteria in determin[ing] whether there is a national consensus against the sentencing practice at issue. Id. Kennedy s point helps indicate that the national trend is away from sentencing 9

15 children to life without parole because it is apparent that a minority of states inflicts the majority of juvenile life without parole sentences. The available data, nonetheless, are sufficient to demonstrate how rarely these sentences are even imposed. Id. at 65. Additionally, on an international level, Justice Kennedy notes that to continue to impose these sentences to life imprisonment against juveniles who did not commit homicide, our country would be supporting a practice rejected world over. Id. at 80. For sentences of imprisonment, the problem is not so much one of ordering, but one of line-drawing. Solem, 464 U.S. at 294. If we are to draw a line for sentences of imprisonment, sentences for juveniles must be made with some possibility of release given the very immature, very impulsive, and very susceptible to being manipulated or influenced nature that juveniles exhibit simply as a result of being too young. Roper, 543 U.S. at 559; see also Graham, 560 U.S. at 74. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Trop, 356 U.S. at 101. The notion of civilized standards importance in sentencing analysis is furthered when taking into consideration In re Kemmler wherein the Court concluded that death that involves torture or lingering death is cruel and unusual. In re Kemmler, 136 U.S. 436, 447 (1890). Such deaths involve something more than the mere extinguishment of life. Id. In Graham v. Florida, the defendant was sixteen years old when he and three other friends attempted to rob a barbeque restaurant, which resulted in head injuries to the restaurant manager. See 560 U.S. at 53. The Court determined that it would be cruel and unusual punishment to sentence Graham to life in prison without the possibility of parole because 10

16 enforcing the nation s most severe punishments on children is unconstitutional under the Eighth Amendment. See id. Considering the standards by which modern courts judge cruel and unusual punishment, current trends, along with the compelling concept of analyzing life imprisonment without parole for children under the same light of capital punishment, Forbes should be afforded a meaningful opportunity for release. If only eighteen percent of juvenile life without parole sentences are being implemented by the forty-one states, and the goal of the analysis is to first understand the national consensus on these practices as per Graham, then it is fair to say that these sentences are so rarely imposed because they are not supported by a large majority of members of the various state judiciaries. See Graham, 560 U.S. at 48. Legislation is an enormous factor judges consider in making their rulings, and the above facts strongly suggest that these sentences are not supported by judges in at least forty-one state jurisdictions. Categorically outlawing life imprisonment without parole for children is the only sufficient solution to reconcile the fact that these offenders are not even fully developed in an innumerable amount of ways. Therefore, condemning children to death before they even reach the age to buy a lottery ticket goes against the current standards of our society and rejects the system s ability to effectively rehabilitate those who deserve the most honest attempt to change. Life without parole for a child who has not even learned who they truly are is far too similar to capital punishment, which has already been prohibited through Roper. See Roper, 543 U.S. at 578. If sentencing issues are a matter of line drawing, as noted in Solem, then this line need not stop at the second harshest punishment available in our judicial systems when considering our nation s children. See Solem, 463 U.S. at

17 Lastly, the Court in In re Kemmler already determined that sentences that involve torture or lingering death are cruel and unusual. In re Kemmler, 136 U.S. at 447. Sentencing a child to life imprisonment without the possibility of parole is essentially a prolonged death sentence. Taking into consideration the underdeveloped nature of children and their superior capacity to change, a life sentence without the possibility of parole is certainly analogous to a sentence that involves lingering death, and is therefore cruel and unusual punishment in violation of the Eighth Amendment. C. Sentencing a Child to Life Imprisonment Without the Possibility of Parole Violates the Court s Holding in Atkins v. Virginia Because Children are Not as Competent as Adults. Due to the undeveloped nature of children the Supreme Court has already ruled that, construing the Eighth Amendment in the light of our evolving standards of decency, it is cruel and unusual punishment to subject capital punishment on the mentally incapacitated. Atkins v. Virginia, 536 U.S. 304, 321 (2002); see also J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011). Although mentally challenged offenders often are competent to stand trial and do in fact understand the difference between right and wrong, because of their mental impairments... by definition they have diminished capacities to understand and process information, to communicate... to engage in logical reasoning, to control impulses, and to understand the reactions of others. Id. at 317. With the exception of the death penalty, life imprisonment without the possibility of parole is the harshest punishment available. See Graham, 560 U.S. at 92. Enforcing the second most severe penalty possible within a system containing a myriad of forms of punishment ignores the strong precedent Courts have created in sentencing undeveloped and incompetent citizens under a different light. See generally Atkins, 536 U.S. at 306. Moreover, the Court in Atkins notes that mentally incapacitated defendants may be less able to give meaningful assistance to their counsel and are also typically poor witnesses. See id. 12

18 at 320. Atkins rejects the argument of deterrence as a whole, noting that this interest in preventing capital crimes by prospective offenders is only an effective tool of deterrence when the crime is a homicide and it was the result of premeditation or deliberation. See id. The standard and policy that support the holding of Atkins are enormously analogous to the reasons why life imprisonment of children without parole, which is in effect a long-term death sentence in its own right, is unconstitutional as well. With the modern standards of decency in mind, children have quite similar disadvantages as the mentally incapacitated under a judicial scope. For instance, Forbes is only in the eighth grade and, while he may seem quite competent to stand trial and know the difference between right and wrong, he inherently lacks the mental capacities that a fully developed adult is expected to have. Knowing the difference between right and wrong is far from being able fully understand the consequences of our actions, especially prior to a complete education and social development. Additionally children, like the mentally incapacitated, are less able to give meaningful advice to their counsel because they lack the years of life experience necessary before becoming self-sufficient members of society. Lastly, children are already seen as incompetent under other areas of the law. For example, a child is unable to create an entirely enforceable contract because the law considers a child to be incapacitated. See J.D.B., 131 S. Ct. at 2403 ( The law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them. ) (noting that there are legal disqualifications placed on children including the ability to enter into a binding and enforceable contract). Here, a child is incapacitated in the same light. Although a child is able to understand some of their actions, the child might not think through the consequences. Because 13

19 they are not as competent as adults, the Eighth Amendment s ban on cruel and unusual punishment prohibits sentencing children to life imprisonment without the possibility of parole. II. THE EIGHTH AMENDMENT S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT FORBIDS SENTENCING A CHILD TO LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE FOR A HOMICIDE OFFENSE, WHICH DOES NOT REQUIRE THE PROSECUTION TO PROVE INTENT TO KILL, BECAUSE THE PUNISHMENT IS NOT PROPORTIONATE TO THE CRIME. In Furman v. Georgia, Justice Brennan wrote a monumental concurrence that laid the setting for interpreting the Eighth Amendment. Arguing that a [s]tate, even as it punishes, must treat its members with respect for their intrinsic worth as human beings, he wrote that there are certain principles inherent in the second clause of the Eighth Amendment. See 408 U.S. at 270 (Brennan, J., concurring). His four considerations are as follows: a punishment must not be so severe as to be degrading to the dignity of human beings; the statute must not arbitrarily inflict a severe punishment because doing so would mean that the state does not respect human dignity; a severe punishment must not be so unacceptable to contemporary society; and a severe punishment must not be excessive. Id. at 271. When reviewing sentences under the Eighth Amendment s proportionality clause, the Supreme Court is guided by three objective factors: the gravity of the offense and the harshness of the punishment; a comparison of the sentences imposed on other criminals in the same jurisdiction; and a comparison of the sentences imposed on other criminals in other jurisdictions. See Solem, 463 U.S. at 292. Sentencing a child to life imprisonment without the possibility of parole, even if the offense does not require the prosecution to prove intent, violates the Eighth Amendment s prohibition against cruel and unusual punishment because the punishment is not proportionate to the crime. Here, not only was Forbes given the most severe punishment possible for a minor in Texansas, but no other jurisdictions would impose this severe of a punishment 14

20 upon a minor for homicide which does not require proof of intent. For these reasons, Forbes sentence is unconstitutional and the Supreme Court should reverse the lower court s decision. A. Life Imprisonment Without the Possibility of Parole Is the Most Severe Punishment a Minor Can Receive. The Eighth Amendment prohibits not only barbaric punishments, but also punishments that are disproportionate to the crime. See Solem, 463 U.S. at 284. The Supreme Court in Solem v. Helm held that a seven-time felonious offender sentenced to life without parole was given a disproportionate sentence because of the nature of the defendant s offenses, the nature of his sentence, and the sentence he could have received in other states for the same offense. See id at 303. In that case, the Supreme Court held that the defendant s sentence was unconstitutional because it was disproportionate to the crime committed. See id. The facts here show that, like in Solem, Forbes sentence is disproportionate to the crime committed and is therefore unconstitutional. 1. Negligent, unintentional conduct is less severe than intentional conduct. The Court in Enmund v. Florida looked to the petitioner s lack of intent in determining that he was less culpable than his accomplices. See 458 U.S. 782, 801 (1982). There, the Court held that it is entitled to look at the motive in committing the crime when determining a sentence for the convicted. See id. ( Putting Enmund to death to avenge to killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just desserts. ). Although the crime in this case does not require that the prosecution prove intent, the Court is entitled to look at Forbes lack of intent in committing this accidental homicide. Here, the lower court concedes that Forbes harbored no intent to kill. (R. at 5). The court incorrectly reasons that, even though Forbes had no intent to harm, the intent in committing the 15

21 crime that ultimately lead to a death is the only requisite. According to Texansas that may be correct, but this Court is entitled to consider that Forbes did not intend to kill and was still given the most severe punishment possible. In Enmund, for example, it was irrelevant whether or not the defendant intended to kill and the Court still considered the defendant s lack of intent when sentencing. See Enmund, 458 U.S. at 800. Per Roper v. Simmons, it is unconstitutional for a court to sentence a minor to death. See 543 U.S. at 568. The penultimate punishment on a scale of severity in Texansas would be life without parole. (R. at 5). Here, Forbes is a minor and was sentenced to life without parole for negligent homicide, not intentional. (Id.) In Solem, the Court reviewed the defendant s sentence because he received the very worst punishment possible in the state for a relatively minor crime. See Solem, 463 U.S. at 303. Similarly, Forbes received the most severe punishment possible for an unintentional crime, which is far less severe than an intentional, premeditated homicide. Although the Texansas statute does not require the prosecution to prove intent for this crime, the lack of intent normally diminishes the moral culpability. See Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012) (Breyer & Sotomayor, JJ., concurring). In their concurrence, Justices Breyer and Sotomayor argued that a lack of intent makes those who committed a crime less deserving of the most severe punishments. Id. Here, Forbes did not have intent to kill even if he had intent to take the car for a joy ride. That lack of intent to kill makes Forbes less deserving of the most severe punishment, which would be life without the possibility of parole. 2. Children are less deserving of the most severe punishments. Children cannot be sentenced to death. See Roper, 543 U.S. at 578. Here, Texansas Penal Law section 300 allows four possible punishments for second-degree murder. (R. at 5). The first one is death, which Forbes cannot receive. (Id.) The next highest sentence is the one Forbes received: life imprisonment without the possibility of parole. (Id.) Forbes conviction does not 16

22 require prosecution to prove intent, as stated, but he still received the most severe punishment possible. The Supreme Court has held that children are constitutionally different than adults for purposes of sentencing, highlighting the fact that children are less deserving of the most severe punishments. See Roper, 543 U.S. at 569; see also Graham, 560 U.S. at 68. Here, although Forbes is only in eighth grade, he still received the most severe punishment committing him to spend the rest of his life imprisoned. The distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile defenders, even when they commit the most horrific crimes. See Roper, 543 U.S. at 553. Here, Forbes did not even commit one of the most horrific crimes because it was unintentional, but was still sentenced to life imprisonment without the possibility of parole. Additionally, Forbes was sentenced at fifteen years old. Unlike in Roper, Forbes was not close to being an adult when he committed the crime. When a child is involved, the justifications for harsh sentences change because the case for retribution is not as strong. See Graham, 560 U.S. at 71. Additionally, as per the Supreme Court, deterrence is ineffective because children are less likely to consider potential future punishments than are adults. See Roper, 543 U.S. at 602. Finally, deciding that a child should spend the entire rest of his or her life in jail does not take into consideration the child s ability to change. See Graham, 560 U.S. at 68. In Miller v. Alabama, the Supreme Court held that mandatory life without parole for juveniles violated the Eighth Amendment. See 132 S. Ct. at In Miller, a fourteen-year-old defendant robbed a video store with two other boys. See id. at The defendant initially stayed outside while the two others went inside, but eventually followed the boys. See id. During the robbery, a victim was shot and killed. See id. The defendant was charged as an adult, 17

23 convicted, and later sentenced to the mandatory sentence of life imprisonment without the possibility of parole. See id. In reversing the decision, the Supreme Court held that a mandatory life imprisonment sentence violated the Eighth Amendment because children are constitutionally different than adults. See id. at In its reasoning, the Supreme Court wrote that children have a lack of maturity, children are more vulnerable to negative outside influences, and children do not have well formed characters. See id. at Importantly, the Court held that the mandatory provisions did not allow the sentencer to consider the status of the child. See id. at 2469 ( [G]iven all we have said in Roper, Graham, and this decision about children s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to the harshest possible penalty will be uncommon. ). Although Forbes sentence was not mandatory, the sentencer did not appropriately consider all the facets of the case. In Miller, the Court held that children lack maturity and responsibility, which leads them to recklessness, impulsivity, and heedless risk taking. See id. at Because of this, children are different from adults for sentencing and do not deserve the most severe punishments. Here, Forbes past shows that he is impulsive and a risk taker, but that is part of his childish ways. It is clear that Forbes had an underdeveloped sense of responsibility because he had prior arrests for disorderly conduct and shoplifting, but did not learn from his mistakes. Moreover, Forbes showed his underdeveloped sense of responsibility and lack of maturity when he accelerated Mrs. Taylor s car in hopes of escaping a cop. Because Forbes was only fifteen at the time of the accident, he lacked maturity and had an absent sense of responsibility that led to his reckless and impulsive actions in taking Mrs. Taylor s car. Due to these characteristics inherent in children, Forbes should not be sentenced to the most severe punishment of life imprisonment without the possibility of parole. 18

24 A second consideration made in Miller was that children are less deserving of the most severe punishments because they are more vulnerable to negative influences from outside pressures. See id. Like in Miller, Forbes was easily influenced by his outside pressures. The day of the accident, Forbes met up with some of his friends at a park and ingested bath salts. (R. at 3). As a fifteen-year-old boy, Forbes is more vulnerable to the negative influences of his friends and those outside pressures. Forbes was from a prominent, wealthy family in Eagle Heights, and he was not exposed to negative influences. (Id.) Therefore, Forbes was more vulnerable to the negative influences of his friends who were also ingesting bath salts, and Forbes was more likely to commit crimes because of those outside pressures. This vulnerability shows that Forbes should not be sentenced to the most severe punishment of life imprisonment without the possibility of parole. A final consideration made in Miller was that children do no have fully formed characters and should not be given the most severe punishments. See id. Here, being in eighth grade and only fifteen years old, Forbes did not have a fully formed character. Even though Forbes had been arrested for disorderly conduct and shoplifting, Forbes character was not fully formed. An adult would most likely not accelerate a car away from a cop, but Forbes actions were clearly not evidenced by irretrievabl[e] deprav[ity]. Id. Rather, Forbes was a scared child. He was driving without a license and probably for the first time, being that he was fifteen at the time of his sentencing. (R. at 3). Due to a child s incompletely formed character, Forbes was not trying to cause harm nor was he trying to make a scene. To the contrary, Forbes was trying to stay out of trouble and thought that he could get away from the cop when he accidentally lost control of the car that he was unlicensed to drive. (R. at 4). 19

25 3. Deciding that a juvenile offender will forever be a danger to society would require making a judgment that he is incorrigible, but incorrigibility is inconsistent with youth. In Furman v. Georgia, Justice Marshall instructed that in borrowing the Eighth Amendment s language from England, the Founding Fathers wanted to outlaw torture and other cruel punishments. See 408 U.S. at 319 (Marshall, J., concurring). Thus, he correctly argued, that the language of the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society; and concluded that a penalty that was permissible at one time in the United States history is not necessarily permissible today. See id. at 329. In today s society, and after Miller, deciding that a juvenile offender will forever be a danger to society requires making an incorrigible judgment, which is inconsistent with youth. Sentencing a person to life imprisonment without the possibility of parole suggests that the offender forever has no place in society. Applying this same reasoning to a child, and sentencing the child to life imprisonment without the possibility of parole, is unconstitutional because it is at odds with a child s ability to change in the future. Sentencing Forbes to life imprisonment without the possibility of parole at fifteen years old is adverse to Forbes capacity to change. Therefore, because Forbes has the ability to grow and change, he should not have been sentenced to life imprisonment without the possibility of parole. B. Other Jurisdictions Do Not Impose Life Without the Possibility of Parole Upon Minors For Crimes That Do Not Require the Prosecution to Prove Intent to Kill. As advised in Graham v. Florida, the Court should consider 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, 560 U.S. at 49 (quoting Roper, 543 U.S. at 552). The trend in jurisdictions across the United States is 20

26 away from juvenile incarceration and towards more evidence-based methods and cost-effective alternatives. See Trends in Juvenile Justice State Legislation , NATIONAL CONFERENCE OF STATE LEGISLATURES (Oct. 8, 2015). Today, eighteen states and the District of Columbia have laws that completely ban juvenile life imprisonment without the possibility of parole. See Miller v. Alabama and Juvenile Life Without Parole Laws, NATIONAL CONFERENCE OF STATE LEGISLATURES (Jan. 25, 2016) (the eighteen states include Oregon, California, Nevada, Utah, Hawaii, Montana, Wyoming, Colorado, New Mexico, Texas, Kansas, Alabama, Kentucky, Wyoming, West Virginia, Massachusetts, Vermont, and Connecticut). The United States of America is the only country in the world that allows juvenile life imprisonment without the possibility of parole, regardless of the crime. See Natasja Sheriff, UN expert slams US as only nation to imprison kids for life without parole, AL JAZEERA AMERICA (Mar. 9, 2015). Because jurisdictions within the United States are leaning towards abolishing the option of life imprisonment without the possibility of parole and because no foreign nation tolerates such an option, the Court should find that Forbes sentence is unconstitutional. 1. Eighteen states and the District of Columbia have abolished sentencing a child to life without parole, regardless of intent. Since the Court s ruling in Miller v. Alabama, legislation in the United States has drastically changed. The holding directed that a state cannot mandatorily sentence a juvenile to life without parole. See Miller, 132 S. Ct. at Following this decision, eighteen states have now completely abolished sentencing a child to life without parole, regardless of the crime committed, which is beyond what the Court required. See Miller v. Alabama and Juvenile Life Without Parole Laws, NATIONAL CONFERENCE OF STATE LEGISLATURES (Jan. 25, 2016). This shows not only that the trend in other states is away from sentencing a juvenile for life without 21

27 parole, but also that if Forbes had been in just about any other state, he would not be facing life imprisonment without the possibility of parole. For the eighteen states that banned juvenile life without parole, intent is not a consideration. Those states have completely abolished the draconian sentence for many of the reasons listed above. For example, in 2014, Hawaii passed the Fair Sentencing in Youth Act that eliminated life without parole, which was a mandatory sentence for first-degree and attempted murder. See H.B. 2116, 27 Leg. (Haw. 2014). Hawaii took the Miller holding one step further and prohibited the entire sentence regardless as to whether there was intent in the commission of the crime. Nevada passed Assembly Bill 267, which eliminated juvenile life without parole for those who committed a crime under eighteen years old. See A.B. 267 (Nev. 2015). For Nevada, the absolute maximum sentence for juveniles for the harshest of crimes is life imprisonment with parole. Id. If Forbes had been in the states that banned juvenile life without parole, he would not be facing this sentence. Although not all states have done away with juvenile life imprisonment without the possibility of parole, society s standards are changing. Florida and California, two states who afflict the sentence most often, have allowed for the option of sentence review. Florida Statute section states that juvenile offenders who were sentenced to life imprisonment without parole are entitled to a review of his or her sentence after 25 years while California Statute section 1170(d)(2) allows for a petition for recall and resentencing after at least 15 years. See FLA. STAT. ANN ; see CAL. PEN. CODE 1170(d)(2). Even in two states with high statistics for juvenile life without parole sentences, Forbes would still have the ability to petition for review of his sentence. Texansas sentence is cruel and unusual not only because it takes 22

28 away Forbes life outside a jail cell, but also because it does not even allow for him to petition his sentence for good behavior or maturity. Additionally, many of the states that still allow juvenile life without parole as an option have abolished the sentence for a number of offenses. Pennsylvania eliminated juvenile life without parole for those convicted of second degree murder; Washington eliminated juvenile life without parole for those who were under sixteen at the time of their crimes; and North Carolina eliminated juvenile life without parole for felony murder restricting the sentence for premeditated or deliberate first degree murder only. See JOHN R. MILLS ET AL., NO HOPE: RE- EXAMINING LIFETIME SENTENCES FOR JUVENILE OFFENDERS 6 (2015). In any of these states, Forbes would not be facing life without parole because he had no intent to kill. Even the states that are continuing to keep life without parole as an option recognize that intent is a factor to be considered. Here, Forbes lack of intent to kill should be considered. Otherwise, Forbes sentence is cruel and unusual in violation of the Eighth Amendment. 2. Foreign jurisdictions do not sentence children to life without parole. The Court in Graham v. Florida noted that it is important to consider the climate of international opinion concerning the acceptability of a particular punishment. Graham, 560 U.S. at 80 (quoting Enmund, 458 U.S. at 796, n.22). Although some foreign jurisdictions may implement the death penalty on some criminals, the United States is the only country that entertains the possibility of allowing a child to spend the rest of his or her life imprisoned. See Marsha Levick, et al., The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment Through the Lens of Childhood and Adolescence, 15 U. PA. J. L. & SOC. CHANGE 285, 316 (2012). Furthermore, the international trend is veering away from sentencing juveniles to prison sentences at all especially life imprisonment without the possibility of parole. See id. at 315 ( The Committee [on the Rights of the Child] also reemphasizes that the detention or 23