In The Supreme Court of the United States

No. 16 01 In The Supreme Court of the United States WYATT FORBES, III, v. Petitioner, TEXANSAS, Respondent. On Writ of Certiorari to The Supreme Court of Texansas BRIEF FOR RESPONDENT TEAM NO. 22 COUNSEL FOR RESPONDENT MARCH 14, 2016

QUESTIONS PRESENTED 1. Whether the Eighth Amendment prohibits a trial court from imposing a discretionary sentence of life imprisonment without parole on a juvenile that committed homicide after considering mitigating circumstances of the defendant s youth. 2. Whether the Eighth Amendment prohibits a trial court from imposing a discretionary sentence of life imprisonment without parole on a juvenile that killed but did not intend to kill another person. i

TABLE OF CONTENTS QUESTIONS PRESENTED... I TABLE OF CONTENTS... II TABLE OF AUTHORITIES... IV STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 I. THIS COURT SHOULD AFFIRM THE SUPREME COURT OF TEXANSAS BECAUSE THE EIGHTH AMENDMENT DOES NOT BAR SENTENCING JUVENILES TO LIFE SENTENCES WITHOUT THE POSSIBILITY OF PAROLE.... 6 A. The Devastating Nature of the Petitioners Crime Justified the Possibility of a Sentence of Life Without Parole.... 7 B. The Petitioners Sentence Is Justified by Looking to the Objective Indicia of Society s Current Standards.... 10 1. There is convincing evidence indicating that the states support the retention and implementation of these sentences.... 11 2. There is convincing historical evidence that these sentences are, and will be, routinely implemented.... 12 II. This Court should affirm the Supreme Court of Texansas because the Eighth Amendment does not bar discretionary life sentences without the parole for juveniles THAT COMMIT UNINTENTIONAL HOMICIDE.... 15 A. The Eighth Amendment Does Not Prohibit a Life Sentence Without Parole for Juveniles That Commit Unintentional Homicide.... 16 B. Life Sentences Without Parole for Felony Murder Are a Necessary Deterrent Against Violent Crimes... 20 C. The Trial Court s Sentence Was Valid Because It Was Within the Statutory Maximum Established by Texansas Law.... 22 ii

CONCLUSION... 23 iii

TABLE OF AUTHORITIES CASES Atkins v. Virginia, 536 U.S. 304 (2002)... 6, 10, 11, 15 Enmund v. Florida, 458 U.S. 782 (1982)... 17 Forbes v. Texansas, 123 Texansas 1 (2015)... passim Graham v. Florida, 560 U.S. 48 (2010), as modified, (July 6, 2010)... passim Graham v. Florida, 982 So. 2d 43 (Fla. Dist. Ct. App. 2008), reh g denied, (May 16, 2008)... 16 Gregg v. Georgia, 428 U.S. 153 (1976)... 12 Harris v. Roberts, 485 Fed. App x 927 (10th Cir. 2012)... 23 Horsley v. State, 160 So. 3d 393 (Fla. 2015)... 9, 10 Kennedy v. Louisiana, 554 U.S. 407 (2008), reh g denied, 554 U.S. 945 (October 1, 2008).. 7, 16 Miller v. Alabama, U.S., 132 S. Ct. 2455 (June 25, 2012)... passim Montgomery v. Louisiana, U.S., 136 S. Ct. 718 (Jan. 25, 2016), as revised, (Jan. 27, 2016)... passim People v. Patterson, 778 P.2d 549 (Cal. 1989)... 20 People v. Tate, 352 P.3d 959 (Cal. 2010)... 8 Robinson v California, 370 U.S. 660 (1962)... 22 Roper v. Simmons, 543 U.S. 551 (2005)... 11, 12 Solem v. Helm, 463 U.S. 277 (1983)... 22 State v. Lyle, 854 N.W.2d 378 (Iowa 2014)... 8 State v. Wilson, 2014-1267 (La. App. 4 Cir. 4/29/15); 165 So. 3d 1150... 7, 8, 9 Stevens v. Armontrout, 787 F.2d 1282 (8th Cir. 1986)... 23 iv

CONSTITUTIONAL AMENDMENTS U.S. CONST. amend. VIII...passim STATUTES Ark. Code Ann. 5-10-101(a)(1) (1997)... 9 Texansas Penal Law 125 (2016)... 12 Texansas Penal Law 300 (2016)... 6, 14 OTHER AUTHORITIES Edie Green & Andrew J Evelo, Attitudes Regarding Life Sentences for Juvenile Offenders, 37 LAW AND HUMAN BEHAVIOR 280, 280 (2013), http://goo.gl/9wvsi1 (last visited Mar 12, 2016)... 14 James J. Tomkowicz, The Endurance of the Felony-Murder Rule: A Study of the Forces That Shape Our Criminal Law, 51 WASH. & LEE L. REV. 1429 (Fall 1994)... 20 John R. Mills, Anna M. Dorn & Amelia C. Hritz, NO HOPE: Re-Examining Lifetime Sentences for Juvenile Offenders, THE PHILLIPS BLACK PROJECT (Sept. 22, 2015), http://goo.gl/5ms87i... 13 Juvenile Life Without Parole: An Overview, THE SENTENCING PROJECT (February 2016), available at http://sentencingproject.org/doc/publications/jj_juvenile_life_without_parole.pdf... 11, 14 Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 AM. CRIM. L. REV. 73 (1990)... 20 v

Michael T. Moore, Jr., Comment, Felony Murder, Juveniles, And Culpability: Why The Eighth Amendment s Ban on Cruel and Unusual Punishment Should Preclude Sentencing Juveniles Who Do Not Kill, Intend to Kill, Or Attempt to Kill To Die In Prison, 16 LOY. J. PUB. INT. L 99 (2014)... 20 Richard Dieter, The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases At Enormous Costs to All Death Penalty Information Center, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/twopercent (last visited Mar 12, 2016)... 14 States With and Without the Death Penalty, STATES WITH AND WITHOUT THE DEATH PENALTY, http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Mar. 12, 2016)... 12 vi

STATEMENT OF THE CASE On October 1, 2014, Petitioner stole a Toyota Corolla and crashed into an on-coming vehicle at a speed in excess of 120 miles per hour. Forbes v. Texansas, 123 Texansas 1, 2 (2015). Six month old Madison Taylor was in the back seat of that stolen car at the time of the crash and died as a result of her injuries. Id. By the eighth grade, Petitioner, the member of a prominent political family in the wealthy Texansas suburb of Eagles Heights, had an unfavorable reputation among local law enforcement. Id. at 1. Although Petitioner had prior arrests for disorderly conduct and shoplifting, he escaped punishment each time due to his youth and family connections. Id. But on the afternoon of October 1, Petitioner left Eagles Heights Middle School to meet his friends in a local park. Id. There, the group ingested bath salts 1 that Petitioner had stolen from a convenience store. Id. Subsequently, Petitioner left the group and returned to the same convenience store, armed with a large screwdriver and a pair of martial arts weapons, to steal more bath salts. Id. at 1-2. Despite his attempts at disguise, the store clerk recognized Petitioner and his propensity for shoplifting, and chased him away from the store. Id. at 2. Petitioner, still under the influence of bath salts, remained in the area and hid in an alley behind the store. Id. At 8:30 p.m., Pamela Taylor pulled into the store s parking lot buy diapers. Id. Her daughter, Madison, was asleep in the back seat of the car, a 2012 Toyota Corolla. Id. Petitioner, who had witnessed Pamela Taylor pull in, climbed into the car and drove away while Ms. Taylor was inside. Id. When police officer Michael Dudley responded to the store clerk s emergency call, a high speed chase began down Main Street, a busy commercial thoroughfare in Eagle 1 Bath salts is a common name for synthetic cathinone. Forbes, 123 Texansas at 1. 1

Heights. Id. Petitioner accelerated to speeds in excess of 120 miles per hour to escape Officer Dudley and subsequently crashed into an oncoming vehicle. Id. The State charged Petitioner as an adult, and a jury subsequently convicted him of firstdegree robbery, first-degree kidnapping, and second-degree murder. 2 Id. at 2-3. During sentencing, the trial court heard and considered testimony concerning the circumstances of Petitioner s youth. Id. at 3. This testimony included psychiatrists, psychologists, and school officials called by the defense, as well as victim impact testimony, offered by the State and Madison Taylor s parents. Id. at 3 n.8. Petitioner was subsequently sentenced to life imprisonment without the possibility of parole. Id. at 3. Following sentencing, Petitioner filed a petition for writ of habeas corpus in the Appellate Court of Texansas and sought to overturn his sentence as facially invalid under the Eighth Amendment. Id. at 1. The Appellate Court granted the State s motion to dismiss and denied Petitioner s petition because he failed to demonstrate that his sentence was constitutionally invalid. Id. Petitioner appealed to the Supreme Court of Texansas and claimed that the Appellate Court erred in denying his petition. Id. He argued that his sentence was cruel and unusual under the Eighth Amendment as a result of the United States Supreme Court s decision in Miller v. Alabama, U.S., 132 S. Ct. 2455 (June 25, 2012), and because he did not intend to murder Madison Taylor. Forbes at 1. The Supreme Court affirmed the denial and held that Petitioner s sentence was valid because Miller does not apply to discretionary sentences of life imprisonment without the possibility of parole. Id. at 3-4. The Court further noted that the trial court acted 2 The court noted that second degree murder in Texansas is equivalent to felony murder. Forbes, 123 Texansas at 2-3. 2

within its discretion to sentence Petitioner to life without parole despite his lack of intent to kill. Id. This Court granted Petitioner s Petition for Writ of Certiorari to decide whether his sentence was invalid under the Eighth Amendment. Id. at 4. Respondents respectfully request that this Court affirm the decision of the Supreme Court of Texansas and uphold Petitioner sentence. 3

SUMMARY OF THE ARGUMENT This Court should affirm the Supreme Court of Texansas because a sentence of life without parole for a juvenile convicted of a homicide offense is lawful. Homicide is a devastating crime that leaves its victims, and their families, with no hope of recovery. This undeniable fact provides the penalogical justification for exposing juveniles who commit murder to a possible sentence of life without parole. Furthermore, sentences of life without parole for juveniles are well within society s moral standards as they are authorized in 34 states, have historically been routinely imposed, and are acceptable to the public. Instead of a categorical bar, this Court has determined that sentencing courts must engage in an individualized sentencing hearing in which the mitigating factors of a defendant s youth are considered. After this hearing the sentencing court is free to sentence a juvenile to life without parole if it determines that the punishment is warranted. In this case, the petitioner committed a heinous crime and received a substantive sentencing hearing pertaining to his youth, which included testimony from psychologists, psychiatrists, and school officials. Subsequently, the trial court lawfully sentenced the petitioner to a term of life without parole. Moreover, the Eighth Amendment does not bar a discretionary life sentence without parole for juveniles that commit unintentional homicide. Although the Eighth Amendment prohibits trial courts from imposing a life without parole sentences for juveniles who do not kill or intend to kill, this Court has carved out two exceptions: juveniles that convicted of both homicide and non-homicide crimes, and juveniles who unintentionally kill another person during commission of a felony. Thus, the Eighth Amendment allows a trial court to sentence a juvenile convicted of homicide to life without parole. Petitioner satisfies both of these exceptions when he unintentionally murdered Madison Taylor during the commission of two non-homicide felonies. Additionally, the state s legitimate 4

penalogical interest in deterring especially violent crimes via its felony murder statute justifies Petitioner s life sentence without parole. Finally, the trial court s discretionary sentence is valid because it fell within the maximum sentencing limit of Texansas s felony murder statute. Thus, this Court should affirm the Supreme Court of Texansas and uphold Petitioner sentence as valid under the Eighth Amendment. 5

ARGUMENT I. THIS COURT SHOULD AFFIRM THE SUPREME COURT OF TEXANSAS BECAUSE THE EIGHTH AMENDMENT DOES NOT BAR SENTENCING JUVENILES TO LIFE SENTENCES WITHOUT THE POSSIBILITY OF PAROLE. This Court has consistently recognized a penalogical justification for possibly sentencing a juvenile to life in prison for murder, and the aforementioned factors encompass every prong required to do that under Miller v. Alabama. Miller v. Alabama, U.S., 132 S. Ct. 2455 (June 25, 2012). In Miller, this Court noted that children are different and that as a result the mandatory imposition of life sentences without the possibility of parole was unconstitutional. Id. at 2469. However, this Court also made clear that Miller did not foreclose a sentencer s ability to impose life without parole on a juvenile for the crime of murder. Montgomery v. Louisiana, U.S., 136 S. Ct. 718, 726 (Jan. 25, 2016), as revised, (Jan. 27, 2016). This is in keeping with the devastating nature of homicide offenses and the penalogical theory required to justify their harsh punishment. Graham v. Florida, 130 S. Ct. 2011, 2023 (2010). To determine whether a punishment is cruel or unusual this Court has looked to the objective indicia of societies standards. Atkins v. Virginia, 536 U.S. 304, 324 (2002). These objective indicia include the weight of legislation enacted by the legislator, whether or not the punishment in question is actually routinely implemented, and occasionally public opinion polls. Id. at 312, 316. In order for a juvenile to be given such a punishment the sentencing court must take into consideration an offender's age and associated circumstances before imposing lifewithout-parole. Miller, 132 S. Ct. at 2463-64. These factors compare favorably to the instant case where the petitioner killed a six-month old infant and had an individualized hearing in which psychologists, psychiatrists, and school officials testified to the extenuating factors of his youth. Furthermore the discretionary imposition of life without parole for a juvenile, for the 6

crime of homicide, fits favorably within the objective indicia parameters. At present these sentences are authorized in 34 states, they continue to be imposed by those states, and evidence suggests they remain accepted by the public. Even if this Court were to find itself unable to make a determination on the objective indicia evaluation, there is overwhelming evidence from Graham, Miller, and Montgomery that this Court has long recognized a penalogical justification for sentencing juveniles to life without parole for murder. It is on the basis of this longstanding recognition that this Court should, even in the absence of an objective indicia determination, conclude that such a sentence is lawful. Accordingly this Court should affirm the decision of the Supreme Court of Texansas. A. The Devastating Nature of the Petitioners Crime Justified the Possibility of a Sentence of Life Without Parole. Nothing in Miller prohibits a penalty of life without parole for a juvenile; it only mandates [ ] that a sentencer follow a certain process--considering an offender's youth and attendant characteristics--before imposing a particular penalty. State v. Wilson, 2014-1267 (La. App. 4 Cir. 4/29/15); 165 So. 3d 1150, 1167-68. This Court has also repeatedly distinguished between homicide and other serious violent offenses against the individual. Graham, 560 U.S. at 69; accord Kennedy v. Louisiana, 554 U.S. 407, 438 (2008). Accordingly, it is the fundamental difference between homicide and non-homicide offenses that provides the justification for the penalogical prong of Graham. As noted by Graham s progeny, the difference stems from the devastating nature of murder and that in terms of moral depravity and of the injury to the person and to the public,... they cannot be compared to murder in their 'severity and irrevocability. Graham, 560 U.S. at 69. This is because [l]ife is over for the victim of the murderer, but for the victim of even a very serious non-homicide crime, life... is not over and normally is not beyond repair. Id. 7

In Montgomery, this Court explicitly recognized that a juvenile might be sentenced to life without parole. All that is required is that before sentencing a juvenile to life without parole, the sentencing judge take into account how children are different. Montgomery 136 S. Ct. at 733. What Miller rejected was the notion that the discretionary decision to charge a juvenile as an adult qualifies as the kind of careful consideration required when dealing with a juvenile who faces life without parole. Miller, 132 S. Ct. at 2473. This is because the Court was simultaneously concerned with the fact that many jurisdictions place juvenile homicide offenders in adult court automatically, with no apparent opportunity to seek transfer to juvenile court and that even where transfer discretion is authorized, it does not allow for the full weight of a juveniles mitigating factors to be assessed. Id. at 2474-75. Consequently, this Court found that the discretion available to a judge at the transfer stage cannot substitute for discretion at post-trial sentencing in adult court. Id. Montgomery interpreted this to mean that a hearing where youth and its attendant characteristics are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. Montgomery, 136 S. Ct. at 735. Several courts have determined that a hearing in which the defendant s "youth and attendant characteristics," are considered is all that is needed to satisfy Miller. Wilson, 165 So. 3d at 1163; see also: People v. Tate, 352 P.3d 959, 962 (Cal. 2010); State v. Lyle, 854 N.W.2d 378, 413 (Iowa 2014). In Wilson, the defendant asserted that his sentence of life without parole was unlawful because it did not fully consider all of the extenuating factors relating to his youth. Wilson, 165 So. 3d at 1153-55. The court rejected this argument, finding that Miller does not require the sentencing court to articulate all mitigating factors on the record. Id. at 1163. Instead of an exhaustive review, the sentencing court must simply hold a hearing in which the 8

youth related mitigating factors are presented to the sentencer and considered when making a determination on whether or not a sentence of life without parole is appropriate. Id. Similarly, in Lyle, the court emphasized that while juveniles were entitled to an individualized sentencing hearing their youth was a mitigating factor not an excuse. Lyle, 854 N.W.2d at 398. In Horsley v. State, the court was forced to wrestle with the question of what the appropriate remedy was for juveniles either serving or facing a sentence of life without parole. Horsley v. State, 160 So. 3d 393, 395 (Fla. 2015). There, Florida legislation had established the factors that should be considered when sentencing minors. Id. The court chose not to craft its own remedy, though it noted that doing so would satisfy our duty. Instead, it deferred to the legislature s factors. Id. at 404. Among the factors to be considered were the juvenile s age, maturity, psychological development, and victim impact statements. Id. at 403-04. By choosing to apply the legislature s formulation instead of creating its own remedy, Horsley implicitly acknowledged that a judicial remedy might not match a legislature s solutions. Yet either formulation would have been acceptable under Miller, as Horsley noted we could fashion our own remedy or we could determine that the appropriate remedy is to apply chapter 2014-220. Id. at 405. Thus, there are numerous ways in which Miller might be satisfied. What matters is the core principle: that juveniles are given an individualized sentencing hearing in which the mitigating evidence of their youth can be presented. In the instant case, the sentencing court heard substantial testimony regarding the extenuating circumstances of Petitioner s youth including testimony from psychiatrists, psychologists, and school officials before imposing a sentence of life without parole. This process compares favorably to Wilson, where the court concluded that consideration of evidence from special education teachers, psychiatrists, and family reports satisfied the Miller 9

requirement. Wilson, 165 So. 3d at 1162-65. The hearing also encompassed most of the primary sentencing factors that Horsley found acceptable, which similarly required the review of a juvenile s age, maturity, psychological development, and victim impact statements. Furthermore, the concern raised in Miller regarding the mandatory transfer of juveniles to adult jurisdiction was avoided in this case. Petitioner was not mandatorily removed from juvenile custody. Instead, the outcry over his heinous actions led to him being charged as an adult, and the mitigation hearing was conducted at sentencing, not as part of his transfer. Petitioner could have been sentenced to life without parole, life with parole, or a determinate sentence of years. Id. After careful review by the sentencing court, including an individualized review of the mitigating factors of the defendant s youth, the Judge sentenced Petitioner to life without parole. Because a heinous crime was committed and that the procedure required by Miller was followed in order to reach the final sentence, this Court should affirm the decision of the Supreme Court of Texansas. B. The Petitioners Sentence Is Justified by Looking to the Objective Indicia of Society s Current Standards. Ample evidence indicates that there is no national consensus against the sentencing practice at issue. Graham, 560 U.S. at 48. The test frequently utilized by this Court in order to make such determinations is the 'objective indicia of societies standards evaluation. Id. at 49. In Graham, this Court construed the objective indicia of societies standards evaluation to consist of two distinct prongs: (1) the weight of legislation in favor or opposed to the sentence in question and (2) how routinely the sentence is actually imposed. Id. Per the legislative prong, this Court noted in Atkins that [T]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures. Atkins, 536 U.S. at 322-23. This court also considered public opinion polling as supporting evidence that a national 10

consensus existed. Id. at 316. Upon noting that sentences of life without parole for juveniles are authorized in 34 states, have historically been routinely imposed, and are reasonably acceptable to the public, this Court should find that such a sentence passes the objective indicia evaluation. 1. There is convincing evidence indicating that the states support the retention and implementation of these sentences. This Court should find that the jurisdictional prong of the objective indicia evaluation has been met, because a clear majority of jurisdictions have retained sentences of life without parole for a juvenile in the wake of Miller. This Court held in Atkins that it is not so much the number of these States that is significant, but the consistency of the direction of change. Id. at 344. This assertion referenced the fact that over twenty states had recently abolished the death penalty for the mentally retarded and many more seemed poised to do so. Id. In Roper, this Court held that the mere fact that a state authorized a particular sentence was irrelevant; what mattered was if they actually used it. Roper v. Simmons, 543 U.S. 551, 555 (2005). This was in the context of eighteen states that had a de facto prohibition on juvenile death sentences, thereby reducing the number of jurisdictions who actually imposed the sentences to twelve. Id. At present, there are 34 states that authorize a sentence of life without parole for a juvenile, and of these states all but five currently have inmates serving such a sentence. Juvenile Life Without Parole: An Overview, THE SENTENCING PROJECT (February 2016), available at http://sentencingproject.org/doc/publications/jj_juvenile_life_without_parole.pdf. This statistic contrasts favorably with Graham, where this Court was exceedingly critical of the assertion that 37 states allowed a sentence of life without parole for a non-homicide offense when in fact only 11 jurisdictions nationwide [ ] impose life without parole sentences and only those jurisdictions actually had anyone serving that sentence. Graham, 560 U.S. at 49. Unlike Graham, however, no clear trend exists. Prior to Miller there were 39 states that allowed a 11

sentence of life without parole for a juvenile, whereas since Miller this number has reduced to 34. Juvenile Life Parole, supra. This wide division makes the juvenile life without parole analogous, in a jurisdictional sense, to the death penalty. Since Gregg v. Georgia, where the death penalty was reinstituted in the United States, nearly twenty jurisdictions have abolished the death penalty while 31 have retained it. Gregg v. Georgia, 428 U.S. 153 (1976); see also: States With and Without the Death Penalty, STATES WITH AND WITHOUT THE DEATH PENALTY, http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Mar. 12, 2016). It seems unlikely that this Court should look at these trends and conclude that the death penalty has failed the objective indicia evaluation. Rather, there is an honest division of opinion over a contentious penalogical question. Given the absence of a clear trend in this case, this Court should heed the dissent in Roper and not substitute its own "inevitably subjective judgment" on how best to resolve this difficult moral question for the judgments of the Nation's democratically elected legislatures. Roper, 542 U.S. at 607. 2. There is convincing historical evidence that these sentences are, and will be, routinely implemented. There is no evidence that sentences of life without parole for juveniles are exceedingly rare. Graham, 560 U.S. at 62. In order to determine whether or not a sentence is exceedingly rare, an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted is crucial. Id. In Graham, this meant that even though 37 jurisdictions authorized a sentence of life without parole for non-homicide offenses, only eleven jurisdictions actually had any inmates serving such a sentence, and that of those jurisdictions there were only 129 inmates, the sentence was not routinely implemented. The paucity of actual 12

sentences indicated it was exceedingly rare and national consensus has developed against it. Id. This Court was presented with a different situation in Miller, where over 2,000 inmates across numerous jurisdictions were serving a sentence of life without parole for homicide. Miller, 132 S. Ct. at 2477. The crucial distinguishing factor was that most of the jurisdictions place juvenile homicide offenders in adult court automatically, with no apparent opportunity to seek transfer to juvenile court. Id. at 2474-75. Even discretionary transfers were held to be suspect because many juvenile systems require that the offender be released at a particular age or after a certain number of years which forces the courts to decided between extremes light punishment as a child or standard sentencing as an adult. Id. As a result, this Court found that the apparently large number of juveniles sentenced to life without parole was ultimately the work of automatic factors rather than discretionary implementation. Id. Examining actual sentencing practices in the instant case is problematic due to how recently Montgomery, which applied Miller retroactively, was decided. This is because there has not been a meaningful amount of time for the states to begin resentencing. Without having information on how these offenders are resentenced it is impossible to determine whether or not the sentences will be routinely implemented in the future. Thus, this Court must look to historical evidence, trends, and the limited post-miller information that is available. In the two years after Miller, the number of juvenile life without parole sentences per arrest for homicide hovered in line with the trend from much of the past decade. John R. Mills, Anna M. Dorn & Amelia C. Hritz, NO HOPE: Re-Examining Lifetime Sentences for Juvenile Offenders, THE PHILLIPS BLACK PROJECT (Sept. 22, 2015), http://goo.gl/5ms87i. While the overall number of juveniles sentenced to life without parole has declined since Miller, this can be 13

traced to a number of factors including: the reaction by several states to overhaul their legislation, the continuation of a trend that began in 1999 due to a fall in crime, and continued uncertainty over the status of the penalty itself. Juvenile Life Without Parole, supra. Even if the concentration of these sentences in just a few jurisdictions is evidence that this practice fails objective indicia evaluation, it would have to be concluded that the death penalty also fails this evaluation, as just 2% of the counties in the United States are responsible for a majority of all executions since 1976. Richard Dieter, The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases At Enormous Costs to All Death Penalty Information Center, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/twopercent (last visited Mar 12, 2016). There is no requirement that a severe sentence, like life without parole or the death penalty, be frequently carried out in order to be constitutionally valid. Instead, it must be shown that the sentence is actually carried out as a matter of course, that it is not an artifact occasionally inflicted on an individual, and that it is not relegated to too few jurisdictions. Finally, given the difficulties of determining current sentencing practices, this Court should consider supplementary data on public opinion which is available. According to one of the most comprehensive studies done on the subject, at least 53% of individuals surveyed considered a possible sentence of life without parole appropriate for a juvenile convicted of murder. Edie Green & Andrew J Evelo, Attitudes Regarding Life Sentences for Juvenile Offenders, 37 LAW AND HUMAN BEHAVIOR 280, 280 (2013), http://goo.gl/9wvsi1 (last visited Mar 12, 2016). While this sample of research is certainly not dispositive, it should be considered as objective indicia that society is comfortable with a possible sentence of life without parole for a juvenile who commits murder. 14

Given the uncertainty surrounding sentencing procedures in the aftermath of Montgomery, this Court should fall back upon the dictum that [T]he 'clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures. Atkins, 536 U.S. at 322-23. The will of the peoples elected legislatures should be given great deference. Furthermore, this Court may consider the post-miller evidence that exists and supplementary public opinion to buttress such a decision. Consequently, this Court should find that the objective indicia evaluation has been met and thus affirm the Supreme Court of Texansas. II. THIS COURT SHOULD AFFIRM THE SUPREME COURT OF TEXANSAS BECAUSE THE EIGHTH AMENDMENT DOES NOT BAR DISCRETIONARY LIFE SENTENCES WITHOUT THE PAROLE FOR JUVENILES THAT COMMIT UNINTENTIONAL HOMICIDE. The trial court did not violate the cruel and unusual punishment clause of the Eighth Amendment when it sentenced Petitioner to life imprisonment without the possibility of parole for second-degree murder, despite Petitioner s lack of intent to murder Madison Taylor. Although this Court has categorically barred sentencing a juvenile who does not kill or intend to kill to life imprisonment without parole, this prohibition is not absolute. Graham v. Florida, 560 U.S. 48, 69 (2010), as modified, (July 6, 2010). There are two explicit exceptions to this prohibition: juveniles convicted of both homicide and non-homicide crimes, and juveniles that commit unintentional homicide. Id. at 63, 69. Subsequently, this Court held that the Eighth Amendment does not bar a life without parole sentence for juveniles convicted of homicide, so long as the trial court considers an offender s youth and attendant circumstances... before imposing [sentence]. Miller v. Alabama, U.S., 132 S. Ct. 2455, 2469-71 (June 25, 2012). Here, Petitioner falls under both of Graham s exceptions because he unintentionally murdered Madison Taylor during the commission of two non-homicide felonies. Additionally, the trial court s ability to impose life sentences on individuals who unintentionally kill another 15

person during commission of a felony serves as a necessary deterrent against violent crimes. Petitioner s sentence is therefore justified and valid under the penalogical theory of deterrence. Finally, the trial court acted within its discretion and sentenced Petitioner to life without parole, a sentenced within the enumerated limits of Texas Penal Law 300 (2016). Forbes v. Texansas, 123 Texansas 1, 2 (2015). Thus, this Court should affirm the Supreme Court of Texansas and uphold Petitioner sentence as valid under the Eighth Amendment. A. The Eighth Amendment Does Not Prohibit a Life Sentence Without Parole for Juveniles That Commit Unintentional Homicide. This Court has drawn a sharp distinction between juveniles convicted of homicide and juveniles convicted of non-homicide crimes. Graham, 560 U.S. at 82. In Graham, a juvenile was arrested on charges of armed robbery with assault or battery, a first-degree felony that carried a maximum sentence of life without parole under Florida law. Id. at 53. During sentencing, the trial judge concluded that the juvenile was incapable of rehabilitation and sentenced the youth to the maximum penalty authorized by law on each charge. Id. Following the juvenile s motion challenging his sentence under the Eighth Amendment, the First District Court of Appeal of Florida affirmed the sentence holding that it was not grossly disproportionate to his crimes. Id. at 58 (citing Graham v. Florida, 982 So. 2d 43 (Fla. Dist. Ct. App. 2008), reh g denied, (May 16, 2008)). This Court subsequently reversed the lower court, and held that the Eighth Amendment prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. Graham, 560 U.S. at 82. Regarding intent to kill, this Court recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. Id. at 69 (citing Kennedy v. Louisiana, 554 U.S. 407 (2008), reh g denied, 554 U.S. 945 (October 1, 2008) 16

(holding that the Eighth Amendment prohibits death penalty for rape where the crime did not result, and was not intend to result, in death of victim); see also Enmund v. Florida, 458 U.S. 782 (1982). This Court additionally held that the juvenile, who neither killed nor intended to kill, had a twice diminished moral culpability as compared to an adult murderer, and was thus categorically undeserving of a life without parole sentence. Graham, 560 U.S. at 69. This reasoning implies that each part of Graham s did not kill or intend to kill component the actus reus and the mens rea for murder is necessary, not sufficient. Id. Consequently, Graham s holding does not invalidate a life without parole sentence for juveniles who kill unintentionally, nor does it forbid a life sentence for juveniles who attempt to kill without success. While the petitioner in Graham had a twice diminished moral culpability because he lacked both the actus reus and mens rea for murder, one of those elements alone may have been enough to justify his life sentence. Id. Justice Breyer confirms this caveat in his Miller concurrence: if, on remand, the jury found that the petitioner did intend to cause the clerk s death, the question remains open whether the Eighth Amendment prohibits the imposition of life without parole upon a juvenile [under those circumstances]. Miller, 132 S. Ct. at 2477 (Breyer, J., concurring). It follows, therefore, that a court may only impose a life sentence without parole for a juvenile that possesses both the actus reus and mens rea for murder. Furthermore, Graham explicitly distinguished its holding from cases involving juveniles convicted of both homicide and non-homicide crimes. Juvenile offenders who committed both homicide and [non-homicide] crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide.... The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense. Graham, 17

560 U.S. at 63 (emphasis added). The Court further reasoned that a juvenile convicted of both homicide and non-homicide crimes is in some sense being punished in part for the homicide when the judge makes the sentencing determination, and therefore falls outside of Graham s general prohibition. Id. Thus, Graham does not bar a trial court from sentencing a juvenile convicted of homicide to life without parole. Id. This Court subsequently reiterated this distinction in Miller. To distinguish Graham, the court noted that their decision did not categorically bar a penalty for a class of offenders or type of crime, but merely established a minimal procedural requirement that trial courts consider an offender s youth and attendant circumstances... before imposing [a life sentence without parole]. Miller, 132 S. Ct. at 2469-71. Here, Petitioner relies on Justice Breyer s concurrence in Miller to argue that his lack of intent to kill invalidates his sentence despite his homicide conviction. Forbes, 123 Texansas at 3-4; Miller, 132 S. Ct. at 2475 (Breyer, J., concurring) (citing Graham, 560 U.S. at 69). In that case, a jury found the juvenile guilty of first degree murder under an Arkansas statute that permitted a jury to convict if an individual attempted to commit or committed an aggravated robbery, and, in the course of that offense, he or an accomplice, caused [the clerk s] death under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. 5-10-101(a)(1) (1997); Id. at 2477. Justice Breyer noted that petitioner s life sentence without parole stemmed from a conviction under the transferred intent theory of the felony murder doctrine. Miller, 132 S. Ct. at 2477 (Breyer, J., concurring). This, he argued, was invalid under Graham because the Arkansas statute allowed a jury to sentence petitioner, a mere accomplice to the clerk s murder, to life without parole. Id. A jury could find petitioner guilty regardless of 18

whether he himself killed the clerk, possessed the requisite intent to kill, or harbored extreme indifference towards human life. Id. Petitioner s reliance on Justice Breyer s concurrence is misplaced because his crime did not involve transferred intent. The trial court here, however, did not invoke transferred intent because Petitioner committed three violent felonies by himself, without the aid of any accomplices. Forbes, 123 Texansas at 1-3. Thus, Justice Breyer s concerns regarding transferred intent are distinguishable. Furthermore, Petitioner does not fall under Graham s general prohibition because he murdered Madison Taylor, albeit unintentionally. Id. at 3-4. Unlike the juvenile in Graham, Petitioner s moral culpability was not twice diminished because his commission of two felonies robbery and kidnapping in the first-degree directly resulted in the death of another. Id.; Graham, 560 U.S. at 69. Moreover, while there is no evidence that Petitioner intended to kill Madison Taylor, his intent to commit robbery and kidnapping was indisputable. Forbes, 123 Texansas at 3-4. Petitioner s commission of these two dangerous felonies directly caused Madison Taylor s tragic death. Finally, because the trial court convicted Petitioner of two non-homicide felonies in addition to second-degree murder, Petitioner falls squarely under Graham s exception for juveniles that commit both homicide and non-homicide crimes. Id. at 3; Graham, 560 U.S. at 63. As this Court noted in Graham, it is unreasonable to challenge a sentence of life without parole for a defendant convicted of multiple homicide and non-homicide crimes, because a sentencing judge may factor each of these convictions into his determination. Graham, 560 U.S. at 63. Likewise, it is unreasonable to challenge the validity of the life sentence without parole in this case, because the trial court considered three violent felonies one of which involved the death of a six-month-child in the process of calculating a lawful sentence. Forbes, 123 Texansas at 3. 19

Because his sentence is not categorically prohibited under Graham, Petitioner cannot demonstrate that his sentence is invalid under the Eighth Amendment for want of intent to kill. Therefore, this court should affirm the Supreme Court of Texansas and uphold his sentence. B. Life Sentences Without Parole for Felony Murder Are a Necessary Deterrent Against Violent Crimes This Court has held that the validity of a sentence under the Eighth Amendment partly depends on the legitimacy of its penalogical goals. Graham, 560 U.S. at 71; Michael T. Moore, Jr., Comment, Felony Murder, Juveniles, And Culpability: Why The Eighth Amendment s Ban on Cruel and Unusual Punishment Should Preclude Sentencing Juveniles Who Do Not Kill, Intend to Kill, Or Attempt to Kill To Die In Prison, 16 LOY. J. PUB. INT. L 99, 118 (2014). The primary penalogical purpose of the felony murder rule and its characteristically harsh penalties is to deter offenses that bear a substantial risk of injury or death to others. Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 AM. CRIM. L. REV. 73 (1990); see also People v. Patterson, 778 P.2d 549, 558 (Cal. 1989) (Lucas, C.J., concurring and dissenting) (asserting felony-murder valuably deters inherently dangerous crimes). The deterrence function of a felony murder statute is two-fold: the statutes discourage criminals from engaging in dangerous felonies generally and discourage specific conduct during a felony that may result in injury or death of another. James J. Tomkowicz, The Endurance of the Felony- Murder Rule: A Study of the Forces That Shape Our Criminal Law, 51 WASH. & LEE L. REV. 1429, 1448-49 (Fall 1994). Graham held there was no legitimate penalogical justification, including deterrence, to sentence a juvenile who did not kill or intend to kill to life imprisonment. 560 U.S. at 72. Citing 20

juveniles lack of maturity and underdeveloped sense of responsibility, This court reasoned that any limited deterrent effect does justify a life sentence without parole for the particular felony-murder crime at issue. Id. (citing Johnson v. Texas, 509 U.S. 350, 367 (1993)). Subsequently, Miller noted that mandatory sentencing schemes prevented a trial court from considering the relative lack of maturity and responsibility of juveniles as compared to adults. 132 S. Ct. at 2465 (citing Graham, 560 U.S. at 72). Thus, the Graham and Miller courts reasoned that these unique characteristics of juvenile offenders made them significantly less amenable to deterrence. Graham and Miller, however, explicitly opposed the deterrence justification for mandatory, not discretionary, life sentences without parole. Specifically, Miller did not outright reject the legitimacy of deterrence theory; rather, the court took issue with the way mandatory sentencing schemes nullified a trial court s consideration of the specific factors that made juveniles less amenable to deterrence. Id. The holding, which mandated that trial courts consider an offender s youth and attendant circumstances... before imposing [sentence], rectified this discrepancy and granted juveniles convicted of homicide crimes to present mitigating evidence of their youth when facing a life sentence without parole. Id. at 2469-71. Consequently, these mitigating circumstances may include evidence that the juvenile s age, lack of maturity, and diminished responsibility made him less susceptible to the deterrence function of felony murder statutes. Here, Texansas s legitimate penalogical interests in deterring violent crimes justifies Petitioner s life sentence without parole. The Texansas legislature presumably adopted Penal Law 125 and 300 to deter the very crimes Petitioner committed. Forbes, 123 Texansas at 2-3. Both of Petitioner s felonies first degree robbery and kidnapping carry a substantial risk of 21

injury or death to others. It is indisputable that at least one death Madison Taylor s occurred as a result of Petitioner s felonies. Id. Nevertheless, Petitioner could have potentially injured or killed several other individuals during the night of October 1, 2014, such as the driver of the other vehicle involved in the crash. Id. Even without Texansas s legitimate penalogical interests, Petitioner had an opportunity to present evidence that his youth made him less receptive to deterrence. Unlike the trial courts in Graham and Miller, the Texansas trial court considered this mitigating evidence including testimony from psychiatrist, psychologist, and school officials and factored the circumstances of his youth into their sentencing determination. Id. Nevertheless, the trial court acted within its discretion and sentenced Petitioner to life without parole. Id. Accordingly, because Petitioner s sentence under Texansas s felony murder statute is a necessary and justifiable deterrent against violent crimes, this Court should affirm the Supreme Court of Texansas and uphold the life sentence. C. The Trial Court s Sentence Was Valid Because It Was Within the Statutory Maximum Established by Texansas Law. A criminal sentence must be proportionate to the crime committed, and appellate courts should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. Solem v. Helm, 463 U.S. 277, 284, 290 (1983) (citing Robinson v California, 370 U.S. 660, 667 (1962)). The Solem court was careful to disavow a general rule of appellate review for sentences. Id. at 290 n.16. The court held that it was not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather... [the] appellate court decides only whether the sentence under review is within constitutional limits. Id. Thus, a reviewing court is 22

not required to engage in an extended analysis of the trial record to decide whether a sentence is constitutionally proportionate. Id. Regarding felony murder or second-degree murder, courts have held that any sentence, except for the death penalty, is valid so long as it falls within the statutory maximum set by the state legislature. See, e.g., Stevens v. Armontrout, 787 F.2d 1282 (8th Cir. 1986) (holding 200- year sentence for second-degree murder did not violate Eighth Amendment where sentence was within maximum provided by Missouri statute); Harris v. Roberts, 485 Fed. App x 927 (10th Cir. 2012) (holding sentence for second-degree murder that fell within statutory limits did not violate Eighth Amendment). In the instant case, the trial court had discretion to impose any enumerated sentence warranted by the circumstances of the case for the crime of second-degree murder, up to and including life imprisonment, and either with or without parole. Texansas Penal Law 300 (2016). The same statute also authorized a trial court to impose the death penalty. Id. After considering mitigating and aggravating evidence related to Petitioner s youth, the trial court exercised its discretion and sentence him to life imprisonment without parole. Forbes, 123 Texansas 1. Accordingly, because the sentence fell within the boundaries of Texansas Penal Law 300, and the defendant had the opportunity to present evidence of his lack of intent during the sentencing hearing, the trial court s sentence is valid under the Eighth Amendment. Id. CONCLUSION For the reasons above, Respondents respectfully request that this Court affirm the judgment of the Supreme Court of Texansas. 23 Respectfully Submitted, Team No. 22 Team No. 22 Counsel for Respondent