Team 5 Respondent Brief 1
QUESTIONS PRESENTED Whether a juvenile is deprived of their Eighth Amendment constitutional right against cruel and unusual punishment, when the juvenile is sentenced to life in prison without the possibility of parole after being convicted of a crime resulting in homicide and the sentence was properly decided under valid state law which gave the judge discretion to impose the sentence. Whether a juvenile is deprived of their Eighth Amendment constitutional right against cruel and unusual punishment, when the juvenile is sentenced to life in prison without the possibility of parole after being convicted of felony murder, despite the crime lacking a requisite element of intent to kill, and where the sentence was properly decided under valid state law and allowed discretion in imposing the sentence. 2
TABLE OF CONTENTS Questions Presented.2 Table of Authorities.4 Statement of Facts...6 Summary of the Argument...8 Argument...10 I. A JUVENILE WHO IS CONVICTED OF FELONY MURDER HAS NOT BEEN DEPRIVED OF THEIR EIGHTH AMENDMENT CONSTITUTIONAL RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT, WHEN THEY RECEIVE A SENTENCE OF LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE...10 A. Deference Should Be Granted to the Sentencing Decision Because the Statute Allowing for an Array of Punishments Was an Authorized and Proper Exercise of Legislative Power...10 B. The Sentence Granted is Not Violative of the Constitution Because it is Consistent with the Statutory Text of the Eighth Amendment and the Nation s Evolving Standard of Decency..13 C. Youth is Considered at Different Stages of the Trial, Even Though Age is Not a Concept That Can Be Easily Analyzed in Concrete, Categorical Terms in the Criminal Justice System.17 II. A JUVENILE WHO IS CONVICTED OF FELONY MURDER HAS NOT BEEN DEPRIVED OF THEIR EIGHTH AMENDMENT CONSTITUTIONAL RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT WHEN THEY RECEIVE A SENTENCE OF LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE, EVEN IF THE CRIME LACKS AN ELEMENT OF INTENT TO KILL...20 A. The Logical Nexus Test Ensures That Only Deaths Reasonably Related to an Intended Felony Will Be Considered Felony Murder...21 B. Life Without Parole is Not Categorically a Grossly Disproportionate Sentence for A Juvenile Convicted of Felony Murder...23 C. Modern Society s Evolving Standards of Decency Do Not Forbid a Sentence of Life Without Parole for Juveniles..26 3
TABLE OF AUTHORITIES Cases Supreme Court Atkins v. Virginia, 536 U.S. 304 (2002). 25 Ewing v. California, 538 U.S. 11 (2003)...11, 12, 23 Gore v. United States, 357 U.S. 386 (1958)..12 Graham v. Florida, 560 U.S. 48 (2010)..16, 17, 22, 27 Harmelin v. Michigan, 501 U.S. 957 (1991)... 13, 14, 23, 24 Kent v. United States, 388 U.S. 541 (1966)...18 McCleskey v. Zant, 499 U.S. 467 (1991)...10 Miller v. Alabama, 132 S. Ct. 2455 (2012) 14, 15, 16, 17, 18, 22, 28 Robinson v. California, 370 U.S. 660 (1962)...10 Roper v. Simmons, 543 U.S. 551 (2005).. 17, 19, 26, 27 Rummel v. Estelle, 445 U.S. 263 (1980)..10, 24 Solem v. Holm, 463 U.S. 277 (1983)...24 Stanford v. Kentucky, 492 U.S. 361 (1989)...26 Teague v. Lane, 489 U.S. 288 (1989)....11 Thompson v. Oklahoma, 487 U.S. 815 (1988)...26 Trop v. Dulles, 356 U.S. 86 (1958)...26 Weems v. United States, 217 U.S. 349 (1910)...12 Lower Courts People v. Cavitt, 91 P.3d 222 (Cal. 2004).....21 People v. Fernandez, 883 P.2d 491 (Colo. Ct. App. 1994)...27 State v. Green, 502 S.E.2d 819 (N.C. 1998)..27 State v. Shanahan, 994 P.2d 1059 (Idaho Ct. App. 1999).....27 State v. Walker, 843 P.2d 203 (Kan. 1992)...27 United States v. Cupa Guillen, 34 F.3d 860 (9th Cir. 1994). 24 Constitution U.S. CONST. amend. VIII.....10, 15 U.S CONST. amend. XIV.....10 Statutes 18 U.S.C.A. 1111 1112.....27 Texansas Penal Law 125 (2016). 7, 27 Texansas Penal Law 300 (2016). 7, 12, 22, 27 Articles 2 W. LaFave, Substantive Criminal Law 14.5(a) and (c) (2d ed. 2003)... 21 Albert Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1 13 (2003).16 4
Brian R. Gallini, Equal Sentences for Unequal Participation: Should the Eight Amendment Allow All Juveniles Murder Accomplices to Receive Life Without Parole?, 87 Or. L. Rev. 29 (2008)..27 Erin H. Flynn, Dismantling the Felony Murder Rule: Juvenile Deterrence and Retribution Post Roper v. Simmons,156 U. Pa. L. Rev. 1049 (2008)...25 James J. Brennan, The Supreme Court's Excessive Deference to Legislative Bodies under Eighth Amendment Sentencing Review, 94 J. Crim. L. & Criminology 551 (2004). 15 Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 Am. Crim. L. Rev. 73, 74 78 (1991).28 Lauren Fine, Death Behind Bars: Examining Juvenile Life Without Parole, 5 Duke J. Const. Law & PP Sidebar 24 (2009)...16, 17 5
STATEMENT OF THE FACTS The defendant in this case, Wyatt Trey Forbes, is a juvenile from the wealthy suburb of Eagle Heights, Texansas who has enjoyed a privileged life through his entire childhood. Transcript Page 3. The grandson of a three term Congressman and son of the owners of a local oil refinery, Forbes had every opportunity to lead a successful life, but despite his position decided to engage in criminal behavior. Id. Forbes was twice arrested for misdemeanors and twice given the chance to curtail his unlawful behavior when law enforcement declined to file charges, in part due to family connections. Id. Unfortunately, Forbes did not take these chances, instead continuing his criminal conduct. Id. On the afternoon of October 1, 2014, Forbes met with friends at a local park to ingest cathinone, a psychoactive substance, that he had stolen from a nearby convenience store. Id. The group soon needed more of the drug, so Forbes decided to return to the the store to steal more. Id. Carrying a robbery tool and an illegal weapon in his backpack, Forbes entered the store with his hood covering his head to conceal his identity, but was quickly recognized by the store clerk due to his past shoplifting and subsequently chased from the store. Tr. at 3 4. For unknown reasons, Forbes remained behind the store for the rest of the afternoon. Tr. at 4. At 8:30pm that night, Pamela Taylor parked her car outside the convenience store that Forbes had previously tried to rob. Id. Leaving the car running, the doors unlocked, and her six month old baby, Madison Taylor, in the back seat, Ms. Taylor entered the store to quickly purchase diapers. Id. In the brief time that Ms. Taylor was making this purchase, Forbes had 6
already stolen her vehicle and drove away with her daughter in the back seat, as witnessed by the store clerk who promptly called local police. Id. Upon spotting Forbes driving the stolen vehicle on Main Street in Eagle Heights, Eagle Heights Police Officer Michael Dudley attempted to intercept the vehicle by flashing his lights and siren, though Forbes refused to pull over. Id. Forbes then attempted to evade Officer Dudley, reaching speeds of 120mph before causing a serious accident with oncoming traffic. Id. Despite the vehicle rolling several times and Forbes being thrown from the vehicle, Forbes survived the accident with minor injuries. Id. The co occupant, Madison Taylor, was not as fortunate. Id. At the age of just six months, Madison Taylor died from injuries sustained in the accident. Id. Forbes was charged as an adult and shortly thereafter convicted at a jury trial of first degree robbery, first degree kidnapping, and murder in the second degree. Tr. at 4 5. This latter charge is Texansas s felony murder statute, which states A person is guilty of murder in the second degree when [ ] he commits or attempts to commit robbery, burglary, [or] kidnapping [ ] and, in the course of and in furtherance of such crime or of immediate flight therefrom, he [ ] causes the death of a person other than one of the participants. Texansas Penal Law 125 (2016). At sentencing, both parties offered testimony regarding Forbes, the victims, and other relevant considerations. Tr. at 5. Having been persuaded by the egregious nature of the offense, Forbes circumstances, and the impact on the victim and her family, the court sentenced Forbes to life without parole, a sentence permitted, but not required, by statute under Texansas state law for those convicted of murder in the second degree. Id. Texansas Penal Law 300 (2016). After an unsuccessful petition to the Appellate Court to overturn his sentence, Forbes makes this appeal. Id. 7
SUMMARY OF THE ARGUMENT A juvenile who is convicted of felony murder has not been deprived of their Eighth Amendment constitutional right against cruel and unusual punishment when they receive a sentence of life in prison without the possibility of parole. Deference should be granted to the court s sentencing decisions, rather than being disrupted by federal court review, because the sentence imposed was a proper application of penal law as carefully developed by Texansas legislature. States also have an interest in finality of sentencing, and being able to make policy decisions about what penological goals to serve. Furthermore, the sentence that was imposed was not grossly disproportionate to the homicidal crime that was committed. It is also consistent with the nation s evolving standards of decency because life in prison without the possibility of parole for a juvenile continues to be a sentence that is allowed in the majority of states. Allowing judges to have discretion to impose this punishment or an alternative is consistent with Eighth Amendment precedent, and a better alternative than creating a categorical ban on such sentence. Finally, youth was considered at different stages of the trial, even though age is difficult to analyze in concrete, categorical terms. In Forbes s trial, his age was first considered in making the decision to transfer him to an adult court, which was appropriate under Texansas law. Furthermore, chronological age is not an unfailing measure of psychological development and an age based categorical ban on this sentence is too broad and leaves victims of juvenile offenders with fewer rights. The Eighth Amendment also does not prohibit sentencing a child to life imprisonment without the possibility of parole for a homicide offense, even absent any requirement that the prosecution prove that the child intended to kill, such as in the case of felony murder statutes. 8
While severe, life without parole is an appropriate punishment for a homicide, and the doctrines of transferred intent and the logical nexus test ensure that juveniles with the requisite mental maturity are still actually intending these crimes. In cases where there is not enough mental maturity in a juvenile where intent to commit a given felony could be formed, the court may exercise its discretion to impose a lesser sentence, as it is currently able to do per majority rule. Further, the court s gross disproportionality standard and our society s evolving standards of decency do not forbid the imposition of a life without parole sentence to juveniles in many felony murder cases. Once again, there are certainly cases where a child s low mental development could hinder their ability to form intent to a degree where life without parole would be grossly disproportionate or offend our standards of decency, however a categorical rule banning such sentences in all juvenile cases would be an unwarranted abrogation of legislative authority. 9
ARGUMENT I. A JUVENILE WHO IS CONVICTED OF FELONY MURDER HAS NOT BEEN DEPRIVED OF THEIR EIGHTH AMENDMENT CONSTITUTIONAL RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT, WHEN THEY RECEIVE A SENTENCE OF LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE. The Eighth Amendment of the United States Constitution states that, Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. CONST. amend. VIII. The command of the Eighth Amendment, banning cruel and unusual punishments, stems from the Bill of Rights, and it is applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 675 (1962). In deciding whether it is permissible to sentence a juvenile to life in prison without the possibility of parole, it must be noted that decisions about sentencing are ones better decided by state legislatures, rather than federal courts. Furthermore, this sentence was consistent with the statutory text of the Eighth Amendment and the nation s standards of decency and proportionality and, finally, age is not a concept that can be analyzed in concrete, categorical terms in the criminal justice system. A. Deference Should Be Granted to the Sentencing Decision Because the Statute Allowing for an Array of Punishments Was an Authorized and Proper Exercise of Legislative Power The fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts. Rummel v. Estelle, 445 U.S. 263, 275 276 (1980). Reexamination of state convictions on federal habeas frustrates both the State s sovereign power to punish offenders and their good faith attempts to honor constitutional rights. McCleskey v. Zant, 499 U.S. 467, 491 (1991). In that 10
case, the petitioner was convicted of murder in Georgia and was sentenced to death. Id. at 471. After review, the habeas corpus petition was denied and the judgment was affirmed. Id. Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them. Id. at 490. Without finality, the criminal law is deprived much of its deterrent effect. Teague v. Lane, 489 U.S. 288, 309 (1989). It is imperative to apply the concept of finality because maintaining state sovereignty is a bedrock principle. Here, a sentence was imposed on a criminal defendant through careful consideration and process. The trial court heard testimony concerning the extenuating circumstances of youth, including witnesses called by the defense, such as psychiatrists, psychologists, and school officials. Forbes received a sentence through this process, a decision which was later affirmed by the Appellate Court. Direct review through the Texansas state system indicates finality. The State also followed relevant statutory language to decide upon the punishment. The State was conferred the power to pass the statute and the sentences decided upon under these statutes must be enforced accordingly. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts. Ewing v. California, 538 U.S. 11, 24 (2003) (plurality opinion). Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution, does not mandate adoption of any one penological theory. Id. A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation, and some or all of these justifications may play a role in a State s sentencing scheme. Id. In Ewing, petitioner was convicted of felony grand theft after previously having been convicted of 11
serious felonies. Id. at 18. Petitioner was sentenced to 25 years to life under the California Three Strikes Law because he was a newly convicted felon with two or more serious or violent felony convictions in his past. Id. at 20. The California Court of Appeal rejected Petitioner s claim that his sentence was grossly disproportionate under the Eighth Amendment because, enhanced sentences under recidivist statutes like the three strikes law, serve the legitimate goal of deterring and incapacitating repeat offenders. Id. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. Id. See also Weems v. United States, 217 U.S. 349, 379 (1910), Gore v. United States, 357 U.S. 386, 393 (1958). Deference should be given to the State s penal law creating a sentencing regime for instances of felony murder that serves appropriate penological goals. The California Three Strikes Law gives prosecutors the choice to consider wobbler crimes as a misdemeanors or felonies to possibly avoid the use of the three strikes laws, much like the Texansas law which allows for an array of possible punishments. The statute states, Among the possible punishments enumerated for the crime of murder in the second degree are: death, life imprisonment without the possibility of parole, life imprisonment with the possibility of parole, [and] imprisonment for a term to be determined at the discretion of the sentencing authority. Texansas Penal Law 300 (2016). The sentencing authority has discretion to impose any enumerated sentence warranted by the circumstances of the case. Id. Beyond the statute and sentencing decision by the judge deserving deference, consideration of recidivism is imperative in determining a punishment for crimes that are dangerous to the society. There is cause for concern when a criminal has previously been 12
arrested, but due to fortunate familial circumstances has never faced criminal charges, yet continues to commit increasingly dangerous crimes. It is well within the state court s power to sentence these types of criminals to life in prison without the possibility of parole. This sentence is the only way that the society can be guaranteed that a violent criminal will be off the streets and prevented from causing further harm. In Forbes s sentence for example, the society can be reassured that his family s influence and politicking will not be able to get him a lesser sentence, even being a prominent family in the wealthy suburb. The circumstances of the case and his past criminal behavior support the court s decision to impose a life sentence and advance specific penological goals. Because the statute allowing for an array of punishments was an authorized and proper exercise of legislative power, deference should be granted to the sentencing decision. B. The Sentence Granted is Not Violative of the Constitution Because it is Consistent with the Statutory Text of the Eighth Amendment and the Nation s Evolving Standard of Decency The Eighth Amendment contains no strict proportionality guarantee. Harmelin v. Michigan, 501 U.S. 957, 965 (1991). While there are relatively clear historical guidelines and accepted practices that enable judges to determine which modes of punishment are cruel and unusual, proportionality does not lend itself to such analysis. Id. at 985. In that case, the Petitioner was convicted of possessing cocaine and was sentenced to a mandatory term of life in prison without the possibility of parole. Id. at 961 962. The Petitioner s argument that his sentence was cruel and usual was rejected, and his sentence was affirmed. Id. at 961. The Court reasoned that severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation s history. Id. 13
at 994 995. A concurrence written by Justice Kennedy in Harmelin expands on a discussion of proportionality. Id. at 996 (Kennedy, J., concurring in part and concurring in the judgment). Strict proportionality is not required, rather, it forbids only extreme sentences that are grossly disproportionate to the crime, and that outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare. Id. at 1001. (Kennedy, J., concurring in part and concurring in the judgment). Life without parole sentences for juveniles convicted of homicide are not grossly disproportionate. Similar to Harmelin, where it was determined that a severe, mandatory sentence was not unusual because it was a common form of punishment across many jurisdictions, Forbes s sentence is also not unusual. Juvenile life imprisonment without the possibility of parole is an option for sentencing in many states for a homicidal crime. Juvenile defendants are also provided further protection because their sentences cannot be mandatory. Miller v. Alabama, 132 S. Ct. 2455 (2012). The sentencing official is given the opportunity to consider a number of factors to make a determination of what would be an appropriate sentence. Considering the concurrence in Harmelin, which has been persuading in many sentencing decisions, supports the conclusion that a judge does not have to exercise strict proportionality in making a sentencing decision. Therefore, as long as a sentence is not grossly disproportionate to the crime committed, it is a proper sentencing decision. Sentencing a fifteen year old to life in prison without the possibility of parole is not grossly disproportionate to taking the life of a six month old through felony murder. A textual analysis of the Eighth Amendment is imperative to understanding sentencing decisions. The Eighth Amendment states, Excessive bail shall not be required, nor excessive 14
fines imposed, nor cruel and unusual punishments inflicted. U.S. CONST. amend. VIII. A punishment is cruel if it is disposed to inflict pain or bitterly conducted: devoid of mildness or severe: distressing. James J. Brennan, The Supreme Court's Excessive Deference to Legislative Bodies under Eighth Amendment Sentencing Review, 94 J. Crim. L. & Criminology 551 (2004). A punishment is unusual by being out of the ordinary or deviating from the normal. Id. A textual interpretation of the Cruel and Unusual Punishments Clause would be that it forbids a punishment that deviates from the normal and causes pain. Id. Case law has provided some clarity to the meaning of the Cruel and Unusual Punishments Clause by prohibiting some sentences, specifically mandatory life sentences for youthful offenders. Miller, 132 S.Ct. at 2455. In that case, two 14 year olds were convicted of murder and sentenced to a mandatory term of life imprisonment without the possibility of parole. Id. at 2460. In neither case did the sentencing authority have any discretion to impose a different punishment because state law mandated the punishment even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence more appropriate. Id. Justice Kagan noted that the Miller opinion does not categorically bar a penalty for a class of offenders or type of crime. Id. at 2471. Instead, it mandates only that a sentencing authority follow a certain process considering an offender s youth and attendant characteristics before imposing a particular penalty. Id. A juvenile life sentence without the possibility of parole is consistent with the statutory language that affords protection to criminal defendants because it is not cruel and unusual. This type of sentence is not out of the ordinary for a homicide offense. Unlike in Miller, where the sentencing authority had no discretion to impose a different punishment because life 15
imprisonment was mandatory through state law, the sentencing authority in this case did have discretion. This added protection of discretion is what pushes Forbes s sentence from being cruel and unusual to one that is consistent with the Eighth Amendment and precedent. When determining whether a punishment is cruel and usual, Courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society. Graham v. Florida, 560 U.S. 48, 58 (2010). Courts typically begin with objective indicia of society s standards, as expressed in legislative enactments and state practice. Miller, 132 S. Ct. at 2470. Such tangible evidence of societal standards enables us to determine whether there is a consensus against a given sentencing practice. Id. at 2478. If there is, the punishment may be regarded as unusual, but when, as here, most States formally require and frequently impose the punishment in question, there is no objective basis for that conclusion. Id. Decency is not the same as leniency and a decent society protects the innocent from violence. Id. A mature society may determine that this requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. Id. This is further strengthened by the trend beginning in the 1980s, when outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legislatures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes, See Albert Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1 13 (2003). Review of the relevant data and statutes of each of the states and the District of Columbia indicates juvenile life without parole has overwhelming continued vitality and a lack of nationwide agreement regarding its prohibition. See Lauren Fine, Death Behind Bars: Examining Juvenile Life Without 16
Parole, 5 Duke J. Const. Law & PP Sidebar 24 (2009). Unlike the climate leading up to Roper considering a capital punishment sentence for juvenile offenders, no national consensus currently exists on declaring juvenile life without parole sentences unconstitutional. Id. Sentences like Forbes s, life without parole for a juvenile homicide offender, are not violative of the Eighth Amendment because they are consistent with the nation s evolving standard of decency. The majority of states in the nation continue to have the option of sentencing juveniles to life in prison without the possibility of parole. It is important to note that this sentence should only be an option in those crimes resulting in homicide, and that the sentencing authority should have discretion in determining whether it would be appropriate for the crime committed. Safeguards beyond these would be crossing the line from decency to leniency for juvenile offenders. Furthermore, the Court has slowly chipped away at sentencing options available for juveniles through cases such as Graham and Miller. These restrictions are clearly established rules, but the Court has yet to go as far as to announce an outright ban which is an indication of the consensus towards allowing this sentence with some important limitations. Because the sentence is consistent with the statutory text of the Eighth Amendment and the nation s evolving standard of decency, the sentence granted is not violative of the Constitution. C. Youth is Considered at Different Stages of the Trial, Even Though Age is Not a Concept That Can Be Easily Analyzed in Concrete, Categorical Terms in the Criminal Justice System Most jurisdictions authorized life without parole for juveniles only through the combination of two independent statutory provisions. Miller, 132 S. Ct at 2472. One allowed the transfer of certain juvenile offenders to adult court, while another set out the penalties set out the 17
penalties for any and all individuals tried there. Id. Both defendants in Miller were 14 year olds charged with murder. Id. at 2457. Both teens were tried as adults, and sentenced to statutorily mandated sentences, which were later overturned by the Supreme Court. Id. Because the teens were treated as adults, it was impossible to say whether a legislature had endorsed a given penalty for children (or would do so if presented with the choice). Id. at 2472. Because many juvenile systems require that the offender be released at a particular age or after a certain number of years, transfer decisions often present a choice between extremes: light punishment as a child or standard sentencing as an adult. Id. at 2474. It is clear beyond dispute that the waiver of jurisdiction is a critically important action determining vitally important statutory rights of the juvenile. Kent v. United States, 388 U.S. 541, 556 (1966). Juveniles who do not wish to be sentenced as an adult should challenge the decision to transfer them from juvenile court to an adult court. States have a right to create legislation that allows for the transfer of juveniles to adult courts under specific circumstances. Like the defendants in Miller, who were transferred to adult courts, and sentenced according to adult standards, Forbes was also transferred and sentenced appropriately with Texansas criminal law. The courts have allowed this type of sentencing because the punishment hinged upon two statutory grounds: one involving transfer, and one involving the sentencing scheme for felony murder. It would be improper for the courts to be lenient with a juvenile offender in an adult court setting after being convicted of felony murder. Rather, the decision to shield juveniles from adult punishments should come in the first step, by disallowing the juvenile s transfer to adult court. Sentences that have not been found to be cruel and unusual for adults are not cruel and unusual for those juveniles who find themselves in adult court after a legitimate transfer. 18
Chronological age is not an unfailing measure of psychological development. Roper v. Simmons, 543 U.S. 551, 602 (2005). In Roper, the majority held that juveniles cannot be sentenced to death. Id. at 560. Justice O Connor dissents to express her concern that the class of offenders exempted from capital punishment is too broad and too diverse to warrant a categorical prohibition. Id. at 601 (O Connor, S., dissenting). She continues by saying that the age based line drawn by the Court is indefensibly arbitrary it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not. Id (O Connor, S., dissenting). The majority s rule fails to establish that the differences in maturity between 17 year olds and young adults are both universal enough and significant enough to justify a bright line prophylactic rule against punishment of the former. Id (O Connor, S., dissenting). Finally, she explains how the Court s analysis is premised on differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals. Id (O Connor, S., dissenting). Although it may be that many 17 year old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Id (O Connor, S., dissenting). Age and maturity is a fluid concept, especially in criminal law, and an offender should not be exempted from a specific punishment through a bright line rule. There is often little difference in a 15 year old s mental maturity as compared to a non juvenile 18 year old, and in some cases the 15 year old may even be more mature. Because it is such a hard line to draw, there is no concrete reasoning for sentencing the latter to life in prison without the possibility of parole, and not the former, based solely on an arbitrary number. Both defendants would spend anywhere from 50 70 years in prison depending on their life span. Both defendants would likely 19
view this sentence as harsh, yet a bright line rule against juvenile life imprisonment without parole would grant a remedy to only one defendant. Allowing discretion at sentencing allows judges to consider mental maturity at the margins in age where culpability can be established. Furthermore, victims of juvenile crimes do not suffer less. Forbes stole a full life from a six month old baby, and is now expecting to be granted leniency. A categorical ban on juvenile life imprisonment without the possibility of parole would leave many victims of juvenile crimes receiving fewer rights than the victims of adult offenders. Even though age is not a concept that can be easily analyzed in concrete, categorical terms in the criminal justice system, Forbes s youth was considered at different stages of the trial. When a juvenile receives a sentence of life in prison without the possibility of parole for committing felony murder, they have not been deprived of their Eighth Amendment constitutional right against cruel and unusual punishments. II. A JUVENILE WHO IS CONVICTED OF FELONY MURDER HAS NOT BEEN DEPRIVED OF THEIR EIGHTH AMENDMENT CONSTITUTIONAL RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT WHEN THEY RECEIVE A SENTENCE OF LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE, EVEN IF THE CRIME LACKS AN ELEMENT OF INTENT TO KILL The Eighth Amendment does not prohibit sentencing a child to life imprisonment without the possibility of parole for a homicide offense, even absent any requirement that the prosecution prove that the child intended to kill, such as in the case of felony murder statutes. While severe, life without parole is an appropriate punishment for a homicide, and the doctrines of transferred intent and the logical nexus test ensure that juveniles with the requisite mental maturity are still actually intending these crimes. Further, the court s gross disproportionality standard and our society s evolving standards of decency do not forbid the imposition of a life without parole 20
sentence to juveniles in many felony murder cases, thus a categorical rule banning such sentences in all juvenile cases would be an unwarranted abrogation of legislative authority. A. The Logical Nexus Test Ensures That Only Deaths Reasonably Related to an Intended Felony Will Be Considered Felony Murder Under most felony murder statutes, there is not an element of intent to kill that the prosecution must prove, but rather an element of intent to commit a felony that resulted in the death of another. See 2 W. LaFave, Substantive Criminal Law 14.5(a) and (c) (2d ed. 2003). Under the doctrine of transferred intent, the intent to commit a felony will be transferred to the intent to kill due to the understanding individuals should have that dangerous felonies could result in the death of a victim, rendering such a death caused by a defendant in the commission of a felony into a homicide. See 2 LaFave, supra, 14.5(c). There may be instances where an entirely unforeseeable and coincidental death occurs during the commission of a felony, however the logical nexus test controls for this possibility and ensures that there is a reasonable relationship between the intent to commit a particular felony and the death that occurs as a result. Under this test, there must be a logical nexus i.e., more than mere coincidence of time and place between the felony and the act resulting in death before the felony murder rule may be applied to a non killer. People v. Cavitt, 91 P.3d 222, 227 (Cal. 2004). Whereas jurisdictions who do not use this test may be charged under felony murder having no relation to a death other than mere coincidence, the logical nexus test requires that the felon participate in the transaction leading to death in some meaningful way, tightening the intent requirement of felony murder. Id. at 231. 21
Children may occasionally have diminished culpability due to their lower levels of mental development, however felony murder doctrine still applies to them. Like adults, children still intend to commit felonies that result in deaths and this intent can be transferred just the same. There might be an extra diminishment of culpability due to the more abstract nature of a felony murder killing when contrasted with a traditional homicide, however these crimes can be treated like they would be for an adult in many instances. Graham, 560 U.S. at 50. For children that have the maturity and agency to commit heinous crimes that occasionally result in the death of a third party, many will have the mental capacity to understand this logical connection and the consequences their actions might have, thus their sentences should reflect that they are forming a similar level of intent as adults are when committing a felony could lead to a death. There are surely some cases where a child with relatively undeveloped mental capacities commits a felony that results in a death sharing a logical nexus with said felony, and in these cases courts may retain discretion to sentence these children differently. Since the banning of mandatory life without parole sentences for children in Miller, the court has allowed for just this and jurisdictions like Texansas have implemented this discretion in sentencing statutes. Miller, 132 S.Ct. at 2461; Texansas Penal Law 300 (2016). Forbes himself benefitted from such discretion at sentencing, but due to to the aggravating factors in this case was given the maximum sentence, life without parole. Regardless, the fact that a child is originally charged with felony murder should have no bearing on each child s understanding of intent; this latter aspect is a matter purely for consideration by the sentencing court upon conviction, and with the discretion afforded to sentencing courts to consider mental development, children with a truly diminished capacity for intent may be treated differently than their peers. 22
Unless the court is prepared to do away with considering intent for juveniles in criminal cases at large, diminished culpability needs to be considered on a spectrum. Some children will likely have such an undeveloped mental state as to not be able to form intent for their crimes, though many children are developed enough to have a fully developed understanding for the nature and consequences of their actions. What the petitioners ask for is a categorical rule treating all children the same with respect to intent, which would allow many children to get away with a crime that they were fully capable of intending given their mental state. Courts need to have discretion to control for these possibilities, thus allowing for life without parole yet not mandating it is the best outcome for appropriate juvenile sentencing based on intent, as well as the current majority rule. B. Life Without Parole is Not Categorically a Grossly Disproportionate Sentence for A Juvenile Convicted of Felony Murder In determining whether a sentence is permissible under the Eighth Amendment, the court may consider whether the sentence is proportionate to the crime, though per the current majority rule there are no constitutional guarantees of strict proportionality. Harmelin, 501 U.S. 957; Ewing, 538 U.S. 11. Under a proportionality analysis, the Eighth Amendme nt only forbids sentences that are grossly disproportionate to the crime committed. Harmelin, 501 U.S. at 1005. Sentences that are grossly disproportionate are only the most extreme sentences when considering the crime committed under a variety of objective criteria, including but not limited to (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same 23
crime in other jurisdictions. Harmelin, 501 U.S. at 1001; Solem v. Holm, 463 U.S. 277, 292 (1983). These sentences are ones that are so grossly out of proportion to the severity of the crime as to shock our [the courts ] sense of justice. United States v. Cupa Guillen, 34 F.3d 860, 864 (9th Cir. 1994). The grossly disproportionate standard is thus a highly deferential one, leading to exceedingly rare instances where a defendant has successfully convinced the court that their non capital sentence is so disproportionate as to be cruel and unusual. Solem, 463 U.S. at 277 78. Absent a clear showing of an objectively extreme sentence, the court prefers to leave sentencing matters to legislative prero gative. Rummel, 445 U.S. at 274. There has been no relevant challenge for disproportionality in a juvenile case, and per the court s disproportionality analysis, age should not make a difference in terms of forging a new categorical rule. Disproportionality analysis considers many objective factors, most notably contrasting the crime committed with the sentence levied, and none of these factors allude to a defendant s subjective mental capacities when considering a sentence in the abstract. Solem, 463 U.S. at 292 293. Forging a categorical rule based on a subjective factor like cognitive ability due to age would be a departure from the current test and would require courts to levy both inadequate sentences and excessively severe sentences. Life without parole is often a proportionate sentence for violators of a felony murder statute lacking an element of intention to kill, or at the very least not one that is grossly disproportionate, even for many juvenile offenders. While the lack of an intent to kill may make the crime look less egregious than a first degree murder, the end result for victims is the same as any other homicide, death, making life without parole look even favorable to the harm that the 24
victim has suffered. There is no greater crime one can commit on a person than homicide and the manner by which this occurs is often irrelevant to the victim, their family, and their community. Barring an unforeseeable accident, homicide carries maliciousness with it regardless of intent, which is why felony murder is often punished as severely as other homicides. See: Erin H. Flynn, Dismantling the Felony Murder Rule: Juvenile Deterrence and Retribution Post Roper v. Simmons,156 U. Pa. L. Rev. 1049 (2008). Whether that malicious intent was to kill or to commit a felony should not matter; the intent was still there. Culpability may be lessened for a juvenile due to their underdeveloped mental capacities, however disproportionality analysis does not lend itself to a consideration of such matters when making a categorical rule. As long as the court finds that life without parole is a proportionate sentence for an adult with a felony murder conviction, which it repeatedly has, then the same should hold true for any juvenile offender with the requisite mental development. If a juvenile has the requisite mental ability to intend their felonies, they certainly have the ability to intend their actions, giving them the same transfer of intent that felony murder carries for adults. On a case by case basis, proportionality might dictate that some juveniles, and adults for that matter, lack the mental capacity to form intent and thus the severity of punishment need be adjusted accordingly. Atkins v. Virginia, 536 U.S. 304, 318 (2002). For the many cases with fully formed intent however, courts need to retain discretion to impose all sentences allowable by statute, which is why a categorical rule would be misguided. 25
C. Modern Society s Evolving Standards of Decency Do Not Forbid a Sentence of Life Without Parole for Juveniles When determining if a sentence offends the Eighth Amendment s prohibition on cruel and unusual punishment, the court may evaluate whether such a sentence would be rejected by evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S. 86, 101 (1958). This standard places a heavy burden on the defendant to show with overwhelming evidence that a given sentence is in total non conformance with all modern standards of decency; there must not be ambiguity in the matter across various criminal justice systems if the defendant is to prevail. Stanford v. Kentucky, 492 U.S. 361, 369 71 (1989). The court uses a multi factor test when determining if the decency standard is met, considering (i) whether a nationwide consensus favors the challenged punishment, (ii) the extent to which the behavior of juries and prosecutors invoke the challenged punishment, (iii) its own judgment by focusing on whether the challenged punishment furthers legitimate penological goals, and (iv) the climate of international law. Roper, 543 U.S. at 564; Stanford, 492 U.S. at 370; Thompson v. Oklahoma, 487 U.S. 815, 822 (1988). In the case of child offenders, the court may shift its decency analysis somewhat in light of the fact that children do not have fully developed decision making capabilities and thus have lesser abilities to manifest intent, making the level of culpability for a child somewhat less than that of an adult. Thompson, 487 U.S. at 822 823. For these reasons, the court has created more lenient rules for juveniles, holding that capital punishment is cruel and unusual for even the most severe offenses, including first degree murder, though the courts still allow a sentence of life 26
without parole for juveniles convicted of homicide. Roper, 543 U.S. at 578; Graham, 560 U.S. at 50. For juvenile offenders convicted of felony murder statutes lacking an intent to kill element, nationwide consensus generally favors lower courts retaining discretion to issue life without parole sentences due to the copious amount of state statutory authority. See: Brian R. Gallini, Equal Sentences for Unequal Participation: Should the Eighth Amendment Allow All Juveniles Murder Accomplices to Receive Life Without Parole?, 87 Or. L. Rev. 29 (2008). With a limited number of exceptions, most jurisdictions in the country have allowed juveniles convicted of homicide to be sentenced to life without parole and many recently allowed such a sentence for lesser felonies such as sexual assault, arson, or aggravated kidnapping. People v. Fernandez, 883 P.2d 491, 495 (Colo. Ct. App. 1994); State v. Green, 502 S.E.2d 819, 827 34 (N.C. 1998); State v. Walker, 843 P.2d 203, 213 (Kan. 1992); State v. Shanahan, 994 P.2d 1059, 1061 63 (Idaho Ct. App. 1999). Texansas finds itself in the former group of jurisdictions, allowing life without parole for felony murder convictions, though not mandating it in order to allow for judicial discretion. Texansas Penal Law 300 (2016). The court has recently placed some limits on the ability of states to impose life without parole upon juveniles, though state court discretion regarding felony murder offenders should not be affected by these limitations. In Graham, the court held that juveniles may only be sentenced to life without parole for homicide offenses, invalidating many state statutes that enabled life without parole for lesser felonie s. Graham, 560 U.S. at 50. T his limitation does not affect felony murder statutes however, as these crimes are still considered homicides, even without an intent to kill element. Texansas Penal Law 125 (2016); 18 U.S.C.A. 1111 1112. Even post Graham, 27
national consensus still favors allowing discretion to impose life without parole for juvenile homicide convictions, and the only reason that consensus has even shifted this far is due to court action. Imposing life without parole sentences upon all felony murder offenders, regardless of age, also furthers legitimate penological goals by deterring potential offenders with the prospect of life imprisonment and offering retribution to each victim s family and community. Without a requisite intent to kill element, felony murders cannot be said to deter the actual homicide itself, but rather the crimes that occasionally lead to a homicide. See: Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 Am. Crim. L. Rev. 73, 74 78 (1991). Nonetheless, placing a harsh penalty on felony murder offenders deters dangerous acts that can result in death, which has the same ultimate effect as deterring those who intend to commit homicides, albeit with the added benefit of deterring other serious criminal activity. Id. at 74 76. Providing retribution to the victim s family and community is a penological goal that operates independently of an offender s intent. For these individuals, whether or not the offender wished to harm their loved one is a moot point; what matters predominantly is that the offender committed a heinous act that ultimately resulted in an unwarranted death. There may be circumstances where life without parole would seem unfair to the offender and deprive these individuals of satisfactory retribution given the circumstances, however the court s ruling in Miller controls for this scenario by prohibiting statutes that mandate life without parole while still allowing judicial discretion to impose such a sentence if given statutory authority to do so. Miller, 132 S.Ct. at 2461. While our evolving standards of decency may sometimes disfavor life 28
without parole for juvenile felony murder offenders, these scenarios become more limited when considering our goal of providing retribution to victims, and outright condemns a categorical rule that prohibits life without parole in all cases. When a juvenile receives a sentence of life in prison without the possibility of parole, even if the crime lacks an element of intent to kill, such as felony murder, they have not been deprived of their Eighth Amendment constitutional right against cruel and unusual punishment. 29