No IN THE SUPREME COURT OF THE UNITED STATES. Wyatt Forbes, III, Petitioner, Texansas, Respondent, ON WRIT OF CERTIORARI TO THE

No. 16-01 IN THE SUPREME COURT OF THE UNITED STATES Wyatt Forbes, III, Petitioner, v. Texansas, Respondent, ON WRIT OF CERTIORARI TO THE SUPREME COURT OF TEXANSAS BRIEF FOR THE RESPONDENT Team 17 Counsel for the Respondent

QUESTIONS PRESENTED 1. Does the Eighth Amendment s proportionality principle categorically prohibit sentencing any juvenile to life imprisonment without the possibility of parole, even when the juvenile has committed a homicide crime? 2. Under the Eighth Amendment, can a minor be sentenced to life without the possibility of parole when the minor was tried as an adult; the prosecution proves that the minor intended to commit an inherently dangerous felony; and the sentencing authority determined the sentence was warranted by the circumstances of the case? i

TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii OPINIONS BELOW... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 2 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 7 I. Sentencing a juvenile to life without parole for a homicide crime is not categorically cruel and unusual punishment under the Eighth Amendment.... 8 A. Homicide offenses are by nature the most severe offenses one can commit; therefore the Eighth Amendment should not foreclose the penalty of life without parole for such heinous crimes.... 9 B. Although juveniles necessarily are characteristically less culpable than adult offenders, the Eighth Amendment does not foreclosure serious penalties for serious offenders... 12 II. The Eighth Amendment allows juveniles can be sentenced to life without parole for homicide offenses without proving intent to kill because intent to kill is not required for capital punishment and this sentence is narrowly proportional to the gravity of the crime.... 17 ii

A. The Eighth Amendment does not require proof of intent to kill in order to receive capital punishment.... 18 B. Under the narrow proportionality test, a juvenile can be sentenced to life in prison without parole without proving intent because the punishment is not grossly disproportionate... 21 CONCLUSION... 24 TABLE OF AUTHORITIES Cases Atkins v. Virginia, 536 U.S. 304 (2002)... 13, 18 Coker v. Georgia, 433 U.S. 584 (1977)... 9 Enmund v. Florida, 458 U.S. 782 (1982)... 10, 23 Ewing v. California, 538 U.S. 11 (2003).... 22 Forbes v. Texansas, 123 Texansas 1 (2015)... 1, 3, 4, 5, 19, 20, 23 Furman v. Georgia, 408 U.S. 238 (1972)... 7 Graham v. Florida, 560 U.S. 48 (2010)... 8, 9, 13, 14, 17, 18, 22, 23 Gregg v. Georgia, 428 U.S. 153 (1976)... 11, 12 Harmelin v. Michigan, 501 U.S. 957 (1991)... 22 Kennedy v. Louisiana, 554 U.S. 407 (2008)... 10, 11, 18 Lockyer v. Andrade, 538 U.S. 63 (2003)... 22 Miller v. Alabama, 132 S. Ct. 2455 (2012)... 14, 15, 17, 18, 21 Robinson v. California, 370 U.S. 660 (1962).... 8 iii

Roper v. Simmons, 543 U.S. 551 (2005)... 8, 12, 13, 17, 18 Rummel v. Estelle, 445 U.S. 263 (1980)... 22 Solem v. Helm, 463 U.S. 277 (1983)... 22 Thompson v. Oklahoma, 487 U.S. 815 (1988)... 13, 18 Tison v. Arizona, 481 U.S. 137 (1987)... 19 Weems v. U.S., 217 U.S. 349 (1910)... 17 Statutes Texansas Penal Law 125... 2, 4 Texansas Penal Law 135... 2, 4, 23 Texansas Penal Law 160... 2, 4, 23 Texansas Penal Law 300... 2, 17 Constitutional Provisions U.S. Const. Amend. VIII... 2, 7 Academic Sources Joshua Rovner, Juvenile Life Without Parole: An Overview. The Sentencing Project, 3 (2016), http://sentencingproject.org/doc/publications/jj_juvenile_life_without_parole.pdf... 11, 16 iv

No. 16-01 IN THE SUPREME COURT OF THE UNITED STATES Wyatt Forbes, III, Petitioner, v. Texansas, Respondent, ON WRIT OF CERTIORARI TO THE SUPREME COURT OF TEXANSAS BRIEF FOR THE RESPONDENT OPINIONS BELOW The decision of the Supreme Court of Texansas affirming the decision of the Appellate Court is reported at Forbes v. Texansas, 123 Texansas 1 (2015). 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The pertinent part of the Eighth Amendment to the United States Constitution provides that cruel and unusual punishments [shall not be] inflicted. U.S. Const. Amend. VIII. The pertinent part of section 160 of the Texansas Penal Law provides that [a] person is guilty of robbery in the first degree when he forcibly steal property and when, in the course of... immediate flight therefrom, he... causes serious physical injury to another person; or... is armed with a deadly weapon. Texansas Penal Law 160. The pertinent part of section 135 of the Texansas Penal Law provides that [a] person is guilty of kidnapping in the first degree when he abducts another person and when... the person abducted dies during the abduction. Texansas Penal Law 135. The pertinent part of section 125 of the Texansas Penal Law provides that [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. Texansas Penal Law 125. The pertinent part of section 300 of the Texansas Penal Law provides possible penalties of death, life imprisonment without the possibility of parole, life imprisonment with the possibility of parole, [and] imprisonment for a term to be determined. Texansas Penal Law 300. The sentencing authority has discretion to impose any enumerated sentence warranted by the circumstances of the case. Id. STATEMENT OF THE CASE 1. This Court is being asked to affirm a decision of the Supreme Court of Texansas that found sentencing a minor to life imprisonment without the possibility of parole does not violate the Eighth and Fourteenth Amendments of the U.S. Constitution. The Eighth Amendment, 2

among other things, prohibits cruel and unusual punishment of criminals. Petitioner Wyatt Forbes was sentenced to life in prison without the possibility of parole when he was fifteen years old after he was convicted of murder in the second degree. Under Texansas Penal Law, murder in the second degree is a felony murder statue and the prosecution did not have to prove that Forbes intended to kill another person. The issues at hand are whether the Eighth Amendment prohibits the sentencing of a minor to life in prison without the possibility of parole, and whether the Eighth Amendment prohibits the imprisonment of a minor without the possibility of parole under a felony murder statute, i.e. where the prosecution does not have to prove the minor intended to kill. 2. The evidence at trial showed Petitioner Wyatt Trey Forbes, III is from a prominent family in the wealthy suburb of Eagle Heights. Forbes v. Texansas, 123 Texansas 1, 3 (2015). His family included a three-term congressman and owned an oil refinery in the area. Id. Forbes has prior arrests for shoplifting and disorderly conduct. Id. However, due to his age and family connections, both cases were dismissed. Id. On the afternoon of October 1, 2014, eight-grader Forbes left his middle school to meet some friends at a local park. Id. At the park, Forbes and his friends ingested synthetic cathinone, bath salts, that Forbes stole from a nearby convenience store. Id. Later, Forbes went back to the same store to steal more of the bath salts. Id. Forbes entered the store with the hood of his sweatshirt over his head to disguise himself. Id. In his backpack, he carried a large screwdriver to pry open vending machines, and a pair of nunchaku, or nunchuks, that he was trying to learn to wield. Id. at 3-4. Despite his attempts to disguise himself, the store clerk recognized Forbes. Id. at 4. Knowing his history of shoplifting, the clerk chased Forbes away. Id. Forbes remained in an 3

alley behind the store and surveillance footage showed him pacing back and forth, muttering to himself. Forbes at 4. A little later, at 8:30 p.m., Pamela Taylor drove into the parking lot of the convenience store. Id. She left her 2012 Toyota Corolla with her six-month old daughter, Madison, asleep in her car seat. Id. She left the doors unlocked and went inside to buy diapers. Id. Pamela testified that her daughter was colicky and often needed to be taken on drives at night to go to sleep. Id. Pamela was afraid to wake her baby and left her vehicle running as she went inside. Id. Forbes observed Pamela drive in and as soon as she went inside, climbed into the vehicle and drove away. Id. The clerk of the store witnessed Forbes behind the wheel of the vehicle and called the police. Id. Officer Dudley responded to the report of the stolen vehicle and observed Forbes traveling northbound on Main Street. Id. Main Street is a busy commercial street in Eagle Heights. Id. Officer Dudley initiated a traffic stop by turning on his flashing lights and siren, but Forbes refused to pull over. Id. Forbes accelerated the vehicle and reached a speed in excess of 120 mph. Id. Forbes lost control of his vehicle, crashed into an on-coming car, and rolled the vehicle several times. Id. He suffered a broken collarbone after being ejected from the vehicle. Id. Six-month old Madison was killed as a result of the injuries she suffered in the crash. Id. 3. Due to public outcry over the crime, Forbes was tried as an adult. Forbes at 4. The jury convicted Forbes of first-degree robbery, Texansas Penal Law 160, first-degree kidnapping, Texansas Penal Law 135, and murder in the second degree, Texansas Penal Law 125. Id. at 4-5. Texansas Penal Law 300 gives the sentencing authority discretion to determine the appropriate punishment for second degree murder based upon the circumstances of the case. Id. at fn 9. Prior to sentencing, the trial court heard testimony from psychiatrists, psychologists, and 4

school officials offered by Forbes to explain the extenuating circumstances of his youth. Forbes. at 5. In addition, the trial court listened to the impact Forbes crimes had upon the parents of Madison Taylor. Id. After listening and evaluating the circumstances of the case, the trial court sentenced Forbes to life in prison without the possibility of parole. Id. After conviction and sentencing, Forbes filed a petition seeking a writ of habeas corpus in the Appellate Court of Texansas. He claimed the Eighth Amendment prohibits the sentencing of minors to life in prison without the possibility of parole and therefore his sentence was invalid on its face. The Appellate Court dismissed his petition because Forbes failed to demonstrate his punishment was unconstitutional. Forbes appealed that decision to the Supreme Court of Texansas, who affirmed the decision of the Appellate Court. Id. at 6. This Court granted certiorari to review the Supreme Court of Texansas decision. SUMMARY OF THE ARGUMENT This case is not about governmental desire to disproportionately punish children. Quite obviously, the state of Texansas in no way enjoys sentencing juveniles to life without parole, no matter how heinous the crime they committed was. However, giving the sentencing authority the discretion to sentence a juvenile to life without parole is a societal accepted practice, and the availability of the sentence serves legitimate penological goals. This Court has never found the sentence of life without parole to be categorically constitutionally disproportionate punishment for a juvenile who commits a homicide crime, and this Court should decline to do so in this case. The homicide offense is by nature the most severe offense one can commit, and accordingly no punishment should be foreclosed based on the nature of the homicide crime. While this Court has categorically found the most severe punishments to be disproportionate to nonhomicide crimes, this Court has always distinguished homicide offenses and has avoided 5

categorical bars based on the nature of the homicide offense. Similarly, while this Court has consistently recognized the characteristics of juveniles that make them categorically less culpable, and has categorically prohibited the death sentence for juveniles, this Court has consistently recognized the necessity for harsh punishment for serious offenders, including life without parole sentences. Societal standards, including state practices, indicate a consensus that life without parole sentences are acceptable for juveniles. Accordingly, neither the nature of the offense nor the characteristics of the offender justify a categorical ban on life without parole sentences for juveniles. Additionally, the state can sentence a juvenile to life without parole when that juvenile commits a dangerous felony and during the course of that felony kills, intends to kill, or shows indifference to the sanctity of human life. Roper, Graham, and Miller establish a categorical rule that sentencing for a juvenile is different than adults. The severest punishment for a juvenile is life without parole. In Miller, the Court used its death penalty jurisprudence to rule mandatory sentencing for juvenile to life without parole is cruel and unusual punishment. For a juvenile to be sentenced to life without parole, evaluation of the facts of the case must be considered. The Supreme Court has upheld conviction for murder without showing intent to kill i.e. the felony murder rule. Like the death penalty jurisprudence used in Miller, this jurisprudence can be used to show that the government does not have to show intent to kill in order to sentence a juvenile to life without parole. Like other death penalty cases, the Court requires that the individual facts of the case be used to show that a defendant was actively involved in the commission of a dangerous felony and the record justifies a showing of indifference to the value of human life. The record in this case is sufficient to find that Forbes demonstrated a reckless indifference to human life in the course of committing a dangerous felony. 6

Likewise, the Supreme Court uses a narrow proportionality test under Harmelin to decide if an individual sentence violated the Eighth Amendment. This has been expressly used for noncapital cases and is a high standard to overcome. It allows the court to consider the particular facts, defendant, and crime. It balances the gravity of the juveniles conduct against the harshness of the penalty. Only in cases of grossly disproportionate sentences will relief be available. After examining Forbes mental state, the severity of the crime, the impact of the crime, it is clear that his sentence was proportionate to his crime and should be upheld. ARGUMENT The Court should affirm the denial of the writ of habeas corpus because the Eighth Amendment allows the sentencing of a minor, tried as an adult, to life imprisonment without the possibility of parole and allows the sentencing of a minor, tried as an adult, to life imprisonment under a felony murder statue. The Eighth Amendment to the United States Constitution provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. Amend. VIII. The provision is applicable to the States through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239 (1972) (per curiam); Robinson v. California, 370 U.S. 660, 666 667 (1962). In the present case, the undisputed record shows Forbes was correctly sentenced to life imprisonment without the possibility of parole because there is nothing "cruel and unusual" about a prison term and the trial court examined the circumstances of the case and imposed a sentence fit for a crime of this nature. Additionally, under the Texansas felony murder statue, the imposition of life in prison without the possibility of parole only requires the prosecution to prove that someone dies during the commission of a predicate offense. This court should affirm the decision of the Supreme Court of Texansas because sentencing a juvenile to life in prison 7

without parole is not cruel and unusual punishment under the Eighth Amendment and narrow proportionality only requires proof that the defendant caused the death of another in the course of an inherently dangerous felony. I. Sentencing a juvenile to life without parole for a homicide crime is not categorically cruel and unusual punishment under the Eighth Amendment. This Court should not foreclose the most serious penalty that can be imposed on a juvenile based on the proportionality principle of the Cruel and Unusual Punishments Clause. In this Court s jurisprudence addressing the proportionality of a sentence to the severity of the crime, this Court has identified two general classifications for proportionality cases: challenges to the length of term-of-years sentences given all the circumstances in a particular case, and cases in which this Court implements the proportionality standard by certain categorical restrictions, primarily categorical restrictions the death penalty. Graham v. Florida, 560 U.S. 48, 49 (2010). In Graham, this Court determined that a categorical challenge to a term-of-years sentence should be analyzed under the categorical approach. Graham 560 U.S. at 61 62. This Court s categorical rules defining Eighth Amendment standards have focused on two considerations: the nature of the offense, and the characteristics of the offender. Graham 560 U.S. at 60. In cases adopting categorical rules, this Court first considers objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Graham 560 U.S. at 61 (quoting Roper v. Simmons, 543 U.S. 551, 572 (2005)). Next, this Court determines in the exercise of its own independent judgment whether the punishment in question violates the Constitution, guided by the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and 8

purpose. Graham, 560 U.S. at 61 (citing Roper, 543 U.S. at 572; quoting Kennedy v. Louisiana, 128 S.Ct. 2641, 2650 (2008)). A. Homicide offenses are by nature the most severe offenses one can commit; therefore the Eighth Amendment should not foreclose the penalty of life without parole for such heinous crimes. In considering the nature of the crime in proportion to the severity of the punishment imposed, this Court considers homicide crimes to be the most severe crimes worthy of the most severe punishments. This Court has consistently recognized a distinction between homicide offenses and nonhomicide offenses, and has held that imposing a death sentence for a lesser crime, such as rape of an adult woman, is cruel and unusual punishment under the Eighth Amendment. Coker v. Georgia, 433 U.S. 584, 600 (1977) (plurality opinion). The petitioner in Coker was sentenced to death for raping an adult woman while escaped from prison and in the course of committing an armed robbery, motor vehicle theft, and kidnapping. Coker, 433 U.S. at 587 91. The Coker court noted that a punishment is excessive and unconstitutional if it 1) makes no measurable contribution to acceptable goals of punishment...or 2) is grossly out of proportion to the severity of the crime. Coker, 433 U.S. at 592. To determine whether the death sentence for rape was excessive, the Coker court looked to history and objective evidence of the country s judgment concerning the acceptability of the penalty. Coker, 433 U.S. at 593. This objective evidence weighed heavily on the side of rejecting capital punishment: the Coker court noted that Georgia was the sole jurisdiction at the present time that authorized a death sentence for rape of an adult woman, and even in Georgia the vast majority (9 out of 10) of rape convictions since 1973 had not resulted in an imposed death sentence in such cases. Coker, 433 U.S. at 595 97. Accordingly, this Court found the death penalty to be a disproportionate punishment for rape. Id. at 597. See also Enmund v. Florida, 458 9

U.S. 782, 798 (1982) (finding the death sentence to be constitutionally disproportionate punishment for a robber who did not kill or intend to kill ). This Court again emphasized the distinction between homicide and nonhomicide offenses when it held that the death penalty may not be imposed for the rape of a child where the crime did not result, and was not intended to result, in the victim s death. Kennedy v. Louisiana, 554 U.S. 407, 413 (2008). In Kennedy, the petitioner was sentenced to death for the aggravated rape of his 8-year-old stepdaughter. Kennedy, 554 U.S. at 416 417. In making its determination that the Eighth Amendment prohibited such a sentence, this Court was again guided by objective indicia of society s standards, as expressed in legislative enactments and state practice with respect to executions. Kennedy, 554 U.S. at 421 (quoting Roper, 543 U.S., at 563; citing Coker, 433 U.S. at 593-597; Enmund, 458 U.S. at 788). While this Court was persuaded by the consensus against use of the death penalty by 45 jurisdictions, Id. at 423, and by execution statistics indicating that no one had been executed for a nonhomicide crime in over forty years, Id. at 433 434, the Kennedy court also considered the standards elaborated by controlling precedents and by the Court s own understanding and interpretation of the Eighth Amendment s text, history, meaning, and purpose. Id. at 421 (citing Enmund at 797 801; Gregg v. Georgia, 428 U.S. 153, 182 183 (1976); Coker, 433 U.S. at 597 600). The Kennedy court emphasized a distinction between homicide crimes and nonhomicide crimes, noting that the latter crimes may be devastating in their harm, as here, but 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. Kennedy, 544 U.S. at 438 (quoting Coker, 433 U.S. at 598 (plurality opinion)). The Kennedy court also found its decision to be consistent with the justifications offered for the 10

death penalty (retribution and deterrence) and therefore concluded that the death penalty is not a proportional punishment for the rape of a child. Id. at 441, 446. On the other hand, this Court has recognized that homicide crimes require the most severe penalties, and has upheld the death penalty for an adult defendant who commits murder. Gregg v. Georgia, 428 U.S. 153, 185 187 (1976). In Gregg, a plurality of this Court looked to society s standards of decency to determine whether the death penalty was constitutionally permissible, and found that society had endorsed the death penalty for murder through legislative enactments in 35 states. Gregg, 428 U.S. at 179 180. Additionally, the Gregg court found the death penalty for murder to be supported by both retributivist and deterrence theories of punishment. Id. at 183 187. Therefore, this Court determined that the imposition of the death penalty for murder was constitutionally permissible, so long as imposed according to statutory procedures. Gregg, 428 U.S. at 185 187. Accordingly, this Court has consistently recognized the severity of homicide crimes, and has found that the Eighth Amendment guarantee against disproportionate punishment permits imposition of the harshest punishments for the most severe crimes. This Court should not impose a categorical rule prohibiting life without parole for juvenile offenders in homicide cases due to the nature of the homicide offense. The homicide offense is by nature the most severe offense one can commit: no other offense compares in terms of severity and irrevocability. Kennedy, 554 U.S. at 438. Objective indicia of society s standards indicate a consensus that life without parole sentences should be permitted for homicide crimes: thirty-four states allow life without parole sentences for juveniles. Joshua Rovner, Juvenile Life Without Parole: An Overview. The Sentencing Project, 3 (2016), http://sentencingproject.org/doc/publications/jj_juvenile_life_without_parole.pdf The life 11

without parole sentence for juveniles similarly furthers the acceptable goals of punishment this Court set forth in Gregg: retribution and deterrence. If serious penalties are not imposed for the most serious crimes, then people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, and then there are sown the seeds of anarchy of self-help, vigilante justice, and lynch law. Gregg, 428 U.S. 153, 183 (1976) (quoting Furman v. Georgia, 408 U.S. at 308 (Stewart, J., concurring)). Accordingly, this Court should not foreclose serious penalties for the homicide crimes based on the nature of the offense, and the decision of the Texansas Supreme Court should be affirmed. B. Although juveniles necessarily are characteristically less culpable than adult offenders, the Eighth Amendment does not foreclosure serious penalties for serious offenders. Although this Court has explicitly recognized the lesser culpability of juveniles, this Court has never found that the proportionality principle of the Eighth Amendment forecloses all potentially serious punishments for the most culpable juveniles. Specifically, although this Court has found the death penalty to be categorically disproportionate punishment for even the most serious juvenile offenders, this Court did so with the recognition that life without parole was a feasible alternative. Roper v. Simmons, 543 U.S. 551, 572 (2005). In Roper, the defendant was convicted and sentenced to death for committing first-degree murder when he was 17. Roper, 543 U.S. at 556. To analyze the proportionality of the punishment, this Court again reviewed objective indicia of consensus and then exercised this Court s own independent judgment whether the death penalty is disproportionate punishment for juveniles. Roper, 543 U.S. at 564. The Roper court found ample evidence of a national consensus against the death penalty for juveniles, based on the rejection of the juvenile death penalty in the majority of States; the infrequency of it use even where it remain[ed] on the books; and the consistency in the trend 12

toward abolition of the practice. Id. at 567. In light of this evidence, this Court found that as compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility, are more vulnerable or susceptible to negative influences and outside pressures, and a juvenile s character is not as well formed as that of an adult. Id. at 569 70 (quoting Johnson, 113 S.Ct. 2658). While this Court recognized that penological justifications for the death penalty apply to [juveniles] with lesser force than to adults, this Court indicated that to serve deterrence functions, life without parole was a feasibly severe alternative to the death penalty. Id. at 570 572. Accordingly, this Court determined that the death penalty was a categorically disproportionate punishment for juvenile offenders. Roper, 543 U.S. at 578-579. See also Thompson v. Oklahoma, 487 U.S. 815, 818-838 (1988); Atkins v. Virginia, 536 U.S. 304, 316 (2002). Similarly, this Court has foreclosed the most serious permissible penalty for juveniles (life without parole) based on the characteristics of juveniles and the nature of nonhomicide offenses. Graham v. Florida, 560 U.S. 48, 74 75 (2010). However, the Graham court emphasized that the case only concerned those juvenile offenders sentenced to life without parole solely for a nonhomicide offense, and not those who had been convicted of both a homicide and nonhomicide offense. Id. at 63. In Graham, this Court again examined the objective indicia of national consensus, but, despite the fact that a majority of the states and the federal government permitted life without parole sentences, this Court was persuaded by the actual sentencing practices of each jurisdiction, which indicated a consensus against its use: only 123 juvenile nonhomicide offenders were serving life without parole. Graham, 560 U.S. at 62, 65 66. While this Court gave community consensus great weight, this Court also considered the lesser culpability of juveniles as compared to the severity of the punishment, and considered 13

whether the sentencing practice served penological goals. Id. at 67 68. The Graham court found no reason to reconsider the Court s observations in Roper about the nature of juveniles, and reaffirmed the Kennedy court s holding that there is a line between homicide and other serious violent offenses. Id. at 68 69 (quoting Kennedy at 2659 60). As to the severity of the punishment, the Graham court noted that life without parole is the second most severe penalty permitted by law. Id. at 69 (quoting Harmelin, 501 U.S. at 1001 (opinion of Kennedy, J.)). After considering the culpability of juveniles and the severity of the punishment, the Graham court determined that none of the legitimate goals of penal sanctions (retribution, deterrence, incapacitation, and rehabilitation) are furthered by imposing life without parole sentences on juvenile nonhomicide offenders because the goals of punishment apply with significantly less weight when a juvenile committed a nonhomicide offense. Id. at 71 72 (relying on Roper at 571). Accordingly, this Court concluded that the sentencing practice under consideration [was] cruel and unusual. Id. at 74. Additionally, this Court has also considered the constitutionality of mandatory life without parole sentences for juveniles who commit homicide offenses. Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012). In Miller, this Court relied on Roper and Graham to conclude that mandatory life without parole sentences for those who were juveniles at the time the crime was committed violates the Eighth Amendment. Id. at 2460. In Miller, two 14 year olds were convicted of murder and sentenced to life in prison without the possibility of parole because state law demanded it; the sentencing authority was given no discretion to impose a different punishment. Miller, 132 S.Ct. at 2460. In making its decision, the Miller court relied on Atkins, Kennedy, and Graham, decisions creating categorical bans on specific sentences for less culpable offenders, as well as those cases in which this Court prohibited mandatory imposition of capital 14

punishment. Id. at 2463 2464 (citing Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion); Lockett v. Ohio, 438 U.S. 586 (1978)). This Court reiterated the constitutional differen[ces] between adults and juveniles for sentencing purposes laid out in Roper and Graham. Miller, 132 S.Ct. at 2464. Specifically, the Miller court noted that an offender s age, as we made clear in Graham, is relevant to the Eighth Amendment, and so criminal procedure laws that fail to take defendant s youthfulness into account at all would be flawed. Id. at 2466 (citing Graham at 2028 2032). Accordingly, this Court found that removing youth from the balance and prohibit[ing] a sentencing authority from assessing whether the law s harshest term of imprisonment proportionately punishes a juvenile offender, contravened Graham s and Roper s foundational principles. Id. at 2466. This Court also found that although the objective indicia of society s standards were not applicable in Miller because it was not a categorically challenge to a penalty, but rather a challenge to a sentencing process, the standards did not distinguish the Miller case from the courts previous cases invalidating sentencing practices under the Eighth Amendment. Miller, 132 S.Ct. at 2469 2474. Accordingly, the Miller court found, based on Graham, Roper, and the individualized sentencing decisions, that the mandatory sentencing scheme before the court violated the Eighth Amendment s bar against cruel and unusual punishments. Id. at 2475. This Court should not foreclose the most serious constitutionally permissible punishment for juveniles life without parole based on the juvenile s lesser culpability when the juvenile commits a homicide offense. While this Court has imposed reasonable and necessary categorical restrictions based on juveniles lesser culpability, such as foreclosing the death penalty, foreclosing life without parole for nonhomicide offenses, and requiring individualized sentencing procedures, this Court has always recognized the importance of the possibility of life without 15

parole for homicide offenses. In Roper, this Court found the death penalty to be categorically disproportionate punishment for juveniles, but recognized that life without parole would be a suitable alternative to the death penalty. In Graham, this Court foreclosed life without parole sentences for juveniles who committed nonhomicide offenses, but recognized that severity homicide offenses offered much greater justifications for the higher penalty. Finally, in Miller this Court invalidated mandatory sentencing schemes requiring juveniles to be sentenced to life without parole, but did not categorical ban life without parole sentences for juveniles when the sentencing authority had discretion to consider the offender s age. This Court has consistently recognized the necessity for life without parole sentences for the most serious juvenile offenders. Similarly, objective indicia of society s standards suggest a nationwide consensus that life without parole is a necessary sentence for serious juvenile offenders. This Court first looks to legislative enactments for evidence of society s standards, and thirty-four states permit sentencing juveniles to life without parole sentences. Joshua Rovner, Juvenile Life Without Parole: An Overview. The Sentencing Project, 3 (2016), http://sentencingproject.org/doc/publications/jj_juvenile_life_without_parole.pdf. This provides ample evidence of a national consensus for the practice: in Atkins and Roper, this Court found thirty jurisdictions persuasive to establish a national consensus against the imposition of the death penalty to the mentally disabled and juveniles. Unlike the sentencing practices in Graham, not only is the sentence of life without parole for juvenile homicide offenders permitted by a majority of jurisdictions, but there are in fact a great number of juveniles serving the sentence. Approximately 2,500 individuals are currently serving life without parole sentences for homicide offenses they committed as a juvenile, in contrast to the 123 serving the sentence in 16

Graham. Rovner at 2. These numbers indicate a national consensus in support of sentencing juvenile homicide offenders to life without parole in some circumstances. Similarly, nothing in the Texansas penal statutes contravenes this Court s interpretation of the Eighth Amendment. In Miller, this Court found that life without parole sentences for juveniles could not be mandatory for any specific offense, but Texansas Penal Law 300 specifically provides the sentencing authority with discretion to impose any enumerated sentence warranted by the circumstances of the case. Accordingly, because the Texansas statute is in compliance with constitutional requirements, this court should affirm the judgment of the Texansas Supreme Court. II. The Eighth Amendment allows juveniles can be sentenced to life without parole for homicide offenses without proving intent to kill because intent to kill is not required for capital punishment and this sentence is narrowly proportional to the gravity of the crime. A juvenile who causes the death of another during the commission of an inherently dangerous felony can be sentenced to life without parole without proving intent to kill. The Cruel and Unusual Punishment Clause stands for the principle that punishment for crime should be graduated and proportioned to offense. Weems v. U.S., 217 U.S. 349, 367 (1910). Under the Eighth Amendment, the Supreme Court has also ruled that juveniles are different for purposes of sentencing. [J]uveniles have diminished culpability and greater prospects for reform, Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012), and are less deserving of the most serious forms of punishment. Graham v. Florida, 560 U.S. 48, 50 (2010). See also Roper v. Simmons, 543 U.S. 551, 569 (2005). However, the Court in Graham recognized that defendants who... kill, intend to kill, or foresee that life will be taken are... deserving of the most serious forms of punishment. Graham at 69 (emphasis added). The imposition of life without parole for 17

juveniles is analogous to capital punishment, and is the most serious form of punishment available for juveniles. Miller at 2467. In Miller, the court used its death penalty precedent to analyze a mandatory life in prison without parole sentence for juveniles. Id. It ruled that mandatory life without parole sentences for juveniles violates the Eighth Amendment when defendants are not sentenced based on the individual circumstances of the case. Id at 2469. It specifically reserved the ability of courts to sentence juveniles to life without parole for homicide cases if the facts warrant the sentence. Id. Since Miller used death penalty cases to require an individual assessment of the circumstances of a case, the appropriate test in this case is to use felony murder precedents and the Harmelin narrow proportionality test to show this sentence is constitutional. A. The Eighth Amendment does not require proof of intent to kill in order to receive capital punishment. Felony murder is constitutionally acceptable for capital punishment. The Eighth Amendment applies with special force to the death penalty because it is the most severe punishment in the criminal justice system. Thompson v. Oklahoma, 487 U.S. 815, 856 (1988). This punishment depends on the culpability of the offender and only applies to a narrow category of the most serious crimes. Atkins v. Virginia, 536 U.S. 304, 319 (2002). The Court has created several categorical exceptions to capital punishment under the Eighth Amendment based on nature of the offense or the characteristics of the offender; see e.g. Kennedy v. Louisiana, 554 U.S. 407 (2008) (prohibiting the imposition of the death penalty for rape of child); Roper v. Simmons, 543 U.S. 551(2005)(no death penalty for under 18 juveniles); Graham v. Florida, 560 U.S. 48 (2010) (finding life without parole sentence for juveniles who do not commit homicide unconstitutional). 18

However, the Court has upheld capital punishment for those who manifest extreme indifference to human life. In Tison v. Arizona, 481 U.S. 137 (1987), this Court upheld the death sentence of two defendants who were major participants in a felony and whose mental state was one of reckless indifference to human life, even though they did not intend to kill nor inflict the fatal wounds of the victims. Id. at 158. The court reasoned that, this reckless indifference to the value of human life may be every bit as shocking to the moral sense as an intent to kill. Id. at 157. A defendant who knowingly engag[es] in criminal activities known to carry a grave risk of death represents a highly culpable mental state. Id. The court ruled an examination of the record was sufficient for a finding of reckless indifference. Id.at 158. In the present case, the undisputed record shows at a minimum that Forbes was guilty of reckless indifference to human life. Forbes was in eighth grade on October 1 st, 2014. Forbes at 3. He was old enough at this point to have already been arrested for disorderly conduct and shoplifting. Id. He had experience with the police and the criminal justice system and was able to have both charges dropped. Id. This proves he knew there were consequences for his actions. Forbes was culpable for his actions; he had the freedom to choose to meet his friends to ingest bath salts and go to a local store to steal more of the product. Id. He had the self-awareness to enter the store with the hood of his sweatshirt over his head to disguise himself. Id. Likewise, he planned this crime in advance; he carried a large screwdriver to pry open containers and carried nunchuks to wield Id. at 3-4. Then, despite his attempts to disguise himself, the store clerk recognized Forbes and chased him away. Id. at 4. Now being fully informed by the clerk that what he was doing was wrong, Forbes chose to remain pacing and muttering in the alley behind the store waiting for his chance. Id. While waiting in the back, Forbes saw Pamela Taylor drive into the parking 19

lot. Forbes at 4. Observing that she left the car running, after Pamela went inside, Forbes jumped in the vehicle and drove away. Id. Inside the vehicle was a six-month old baby girl, Madison Taylor, who was sleeping. Id. The clerk witnessed this robbery and called the police. Id. Once the police caught up to Forbes and tried to initiate a traffic stop, Forbes recklessly chose to continue to drive the vehicle onto busy Main Street. Id. Showing further reckless indifference to the value of human life, he increased his speed to well over 100 mph on a busy commercial street. Id. Sadly, yet foreseeably, Forbes struck another car head-on and rolled the vehicle over several times. Id. As a direct and proximate result of Forbes reckless indifference to his own life, the lives of those on the road that night, and, most tragically, to the life of Madison Taylor, Forbes was ejected from the vehicle and suffered a broken collar bone. Id. Despite being in a car seat, Madison was killed by the injuries she sustained as a result of Forbes reckless indifference. The petitioner will argue that Forbes did not know the baby was in the car when he stole it. However, it was a 2012 Toyota Corolla, parked in a lit parking lot, and a reasonable person would have seen not only the baby, but the entire car set in the back of the car. Even if he didn t see her when he got in the car, he would have seen her when he backed the vehicle out of the parking lot to begin driving. Furthermore, after he drove the vehicle away, Officer Dudley pursued him and initiated a traffic stop by turning on his sirens and activating his lights. Id. At that point a reasonable person would look behind them at the lights of the officer and notice the baby sleeping in the back. Even then, Forbes chose to flee from the officer, a reasonable person would look behind them to see if the officer was still following or look to their left and right while trying to avoid traffic on a busy commercial street. To say that Forbes never saw the child or the car seat in the back of the vehicle stretches belief. 20

Forbes was familiar with law enforcement. He had not only been arrested but also was able to navigate the legal system well enough to have two charges dropped. He was a habitual thief and foresaw the need for a screwdriver with him to open locked containers. He also was learning how to wield nunchuks, a dangerous weapon. He attempted to conceal his identity because he knew what he was doing was wrong. He fled from the police because he knew there were consequences for his actions. Based on these facts, it is reasonable to conclude that Forbes intended to commit a dangerous felony. Likewise, even a fourteen year old would foresee that driving a vehicle at a high speed on a busy street was risking death for him and others. Additionally, to take a baby along, whether as a joke, or with deliberate intent, displays at a minimum, reckless indifference to human life. Similar to Tison, Forbes was the principle actor in the robbery and kidnapping felony, his actions were the proximate cause of the death of a six-month old infant, and the record supports a finding of reckless indifference to human life. In contrast to Tison or Enmund, this is not a case where an accomplice is facing the severest penalty provided by law, this is a case where the perpetrator, Forbes, is being held accountable for his actions. In situations such as this, and other more heinous crimes, the prosecution does not have to prove that a juvenile intended to kill in order for him to receive a life sentence without the possibility of parole. B. Under the narrow proportionality test, a juvenile can be sentenced to life in prison without parole without proving intent because the punishment is not grossly disproportionate A juvenile can be sentenced to life in prison without parole after being convicted of felony murder i.e. without proving intent to kill. In addition to the established categorical rules for the Eighth Amendment, see Graham supra, the court has used a narrow proportionality 21

principle to review noncapital sentences given all the circumstances of a particular case. Lockyer v. Andrade, 538 U.S. 63, 72 (2003) (internal citations omitted). The Eighth Amendment does not require strict proportionality between crime and sentence, but rather forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin v. Michigan, 501 U.S. 957, 959 (1991) (upholding the sentence of life without parole for first-time offender who possessed a large amount of cocaine.) Substantial deference should be given to legislatures and sentencing courts and a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate. Solem v. Helm, 463 U.S. 277, 290 (1983)(emphasis added) (reversing the sentence of life without parole for a seventh nonviolent felony). This is a high standard to overcome and successful challenges to the proportionality of particular [noncapital] sentences [are] exceedingly rare. Rummel v. Estelle, 445 U.S. 263, 272 (1980) (upholding the sentence of life with possibility of parole for a defendant s third nonviolent felony). See also Ewing v. California, 538 U.S. 11, 20 (2003). This individualized inquiry begins with a threshold inquiry of the gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 290-91. This evaluation looks at a particular offender's mental state and motive in committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history Graham, 560 U.S. at 88 (internal citations omitted). Only in rare instances where gross disproportionality is found, will courts look to intrajurisdictional and interjurisdictional sentencing comparisons to determine a violation. Id. The gravity of Forbes crimes compared to the harshness of the penalty is proportionate 22

because of Forbes s culpability, the harm inflicted, and his prior criminal history. Forbes was convicted of first-degree robbery, Texansas Penal Law 160, and first-degree kidnapping, Texansas Penal Law 135, Forbes at 4-5. These crimes are serious crime[s] deserving serious punishment. Enmund v. Florida, 458 U.S. 782, 782 (1982). In addition, Forbes caused the death of Madison Taylor he was found guilty of murder in the second degree. Texansas Penal Law 125, provides [a] person is guilty of murder in the second degree when... he commits... robbery [or] kidnapping... and, in the course of... [or] immediate flight therefrom, he... causes the death of a person. Forbes at 5. This law only requires proof that during the commission of a robbery or kidnapping, another person dies. Forbes mental state, diminished or otherwise, is not required to be shown. Likewise, Graham stated: compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. Id. However, Graham did concede that life in prison without parole is a constitutional sentence when a juvenile kill[s]... or foresee[s] that life will be taken. Graham, 560 U.S. at 69. Like Tison, this allows for a juvenile to be convicted of felony murder and sentenced to life in prison with no parole. The harm inflicted by Forbes crimes is the death of a six-month-old baby girl. This Court has held that there is a line between homicide and other serious violent offenses against the individual. Graham, 560 U.S. at 69 (internal quotes and citations omitted). See Kennedy supra. Not only will Madison not have the opportunity to grow up and live her life, her parents will suffer the feelings of loss and remorse for the rest of their life. Part of the reason that life without parole is the harshest sentence for a juvenile and analogous to the death penalty is because a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult. Graham, at 70. This same logic extends to the severity of the homicide of 23

Madison Taylor. Forbes had had fourteen years to live his life as he pleased; she had only just begun her life. As shown above, the record is sufficient to justify a finding of reckless indifference by the sentencing authority. Forbes mental state was at least as culpable as the accomplices in Tison. He intended to steal a vehicle, he intended to flee from the police, and he intended to travel at a speed of over 100 mph. He was a habitual thief and knew there were consequences for his action. A family is forever changed by the homicide of their baby girl. Forbes displayed a reckless indifference to human life. His actions caused the death of a six-month-old child and he should be held accountable. His punishment is proportionate to the magnitude of his crime and allowed under the Eighth Amendment. CONCLUSION The Texansas statutes do not violate the Eighth Amendment s prohibition against cruel and unusual punishments, because this Court has recognized that categorical rules are not necessary to protect the most serious juvenile offenders. Accordingly, the judgment of the Texansas Court of Appeals should be affirmed. Team 17 Counsel for the Respondent March 14, 2016 24