IN THE

Supreme Court of the United States

WYATT FORBES III,Petitioner,

v.

TEXANSAS, Respondent.

Brief of Petitioner

Team No. 2Brief on Behalf of Petitioner Wyatt Forbes IIIHerbert Wechsler Moot Court Competition

ISSUES PRESENTED

1. Whether the Eighth Amendment prohibits sentencing a child to life imprisonment without

the possibility of parole?

2. Whether the Eighth Amendment prohibits sentencing a child to life imprisonment without

the possibility of parole for a homicide offense, which does not require the prosection to prove

that the child intended to kill?

TABLE OF CONTENTS

JURISDICTIONAL STATEMENT............................................................................................... ii

STATEMENT OF FACTS. ........................................................................................................... ii

STATEMENT OF CASE. ............................................................................................................ iii

SUMMARY OF ARGUMENT. ................................................................................................... iv

ARGUMENT.................................................................................................................................. 6I. LIFE WITHOUT PAROLE IS UNCONSTITUTIONAL AS APPLIED TO CHILDREN

................................................................................................................................. 6A. Juveniles have diminished moral culpability, and should not be permanently

deprived of their liberty without a chance to show rehabilitation .............. 61. State Cases following Miller have prohibited life without parole for

juveniles under all circumstances.. ................................................. 7B. Life without parole is effectively a death sentence for a juvenile, and is

therefore disproportionate to any offense committed by a juvenile,including homicide...................................................................................... 81. Children are a unique class of offender. ................................................. 92. Making imposition of life without parole “discretionary” does not cure

its unconstitutionality.................................................................... 10II. THE EIGHTH AMENDMENT PROHIBITS SENTENCING JUVENILES TO

LIFE WITHOUT PAROLE FOR OFFENSES LACKING SPECIFIC INTENT. 11A. The Eighth Amendment Requires Consideration of Specific Intent When

Imposing the Highest Penalties Available for Any Offense. .................... 121. Offenses lacking specific intent are generally punished less

severely. ........................................................................................ 132. Felony murder offenses where death was not intended or

foreseen, and where the defendant did not provide significant assistance, are also punished less severely.................................... 16

B. Only Juveniles Who Kill or Intend to Kill Should Receive Life Without Parole. ................................................................. 19

CONCLUSION............................................................................................................................. 22

TABLE OF AUTHORITIES

Cases

Tison v. Arizona, 481 U.S. 137 (1987). .................................................................................. 17, 18

Gregg v. Georgia, 428 U.S. 153 (1976). ...................................................................................... 16

Bose Corp. v. Consumers Union, 466 U.S. 485 (1984). ................................................................. v

Coker v. Georgia, 433 U.S. 584 (1977). ................................................................................. 14, 15

Diatchenko v. District Attorney for Suffolk Dist. 466 Mass. 655 (2013)........................................ 7

Enmund v. Florida, 458 U.S. 782 (1982). .............................................................................. 14-17

Estelle v. Gamble, 429 U.S. 97 (1976). .......................................................................................... 6

Ewing v. California, 538 U.S. 11 (2003). ............................................................................... 14-16

Ford v. Wainwright, 477 U.S. 399 (1986). ................................................................................... 14

Graham v. Florida, 560 U.S. 48 (2011). ............................................................................ 3, 13, 20

Kennedy v. Louisiana, 554 U.S. 407 (2008). .......................................................................... 14, 15

Miller v. Alabama, 132 S. Ct. 2455 (2012) ............................................................ iv, 9, 13, 20, 22

Naovarath v. State, 105 Nev. 525 (1989). ...................................................................................... 4

Roper v. Simmons, 543 U.S. 551 (2005)............................................................................. 6, 1, 4, 5

Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001). ............................................................ v

Statutes

Cal.Penal Code Ann. §667(b) . ..................................................................................................... 15

Texansas Penal Law § 125................................................................................................................ iii

Texansas Penal Law § 135................................................................................................................ iii

Texansas Penal Law § 160................................................................................................................ iii

Constitutions

U.S. Const. amend VIII.................................................................................................................. 6

i

JURISDICTIONAL STATEMENT

The judgment of the Supreme Court of Texansas was entered on December 1, 2015. This

Court has jurisdiction to review the judgment of the Supreme Court of Texansas under 28 U.S.C.

§ 1254.

STATEMENT OF FACTS

Wyatt Forbes (hereinafter “Forbes”) is a fifteen year old minor from a prominent family

in the wealthy Texansas City suburb of Eagle Heights. R. at 3. Before the present conviction,

Forbes had other arrests for disorderly conduct and shoplifting. R. at 3. However, due to his

youth and family connections, he was released into the custody of his parents, with no charges

filed. R. at 3.

On October 1, 2014, Forbes and his friends ingested stolen “bath salts,” a common name

for synthetic cathinone. R. at 3. Later, Forbes attempted to disguise himself and steal additional

bath salts from a convenience store. R. at 3. When he entered the store, he had a backpack, a

large screwdriver, and a pair of nunchaku, or ‘nunchuks,’ a Japanese martial arts weapon. R. at

3-4. The store clerk recognized Forbes and she chased him from the store as she was aware of

his prior arrest for shoplifting. R. at 4. Forbes, still under the influence of the bath salts,

remained in the area and hid in an alley behind the store. R. at 4.

At 8:30 p.m., a 2012 Toyota Corolla driven by Pamela Taylor (hereinafter “Taylor”)

entered the parking lot of the store. R. at 4. In the backseat of the car was Taylor’s sleeping six-

month year old daughter, Madison. R. at 4. Taylor, afraid of waking her child by turning the

ignition on and off, left the car running, doors unlocked, and entered the store to purchase

ii

diapers. R. at 4. Forbes witnessed Taylor’s vehicle enter the parking lot and climbed into the

vehicle. R. at 4.

Forbes stole the vehicle and fled the scene. As he drove away, the store clerk saw Forbes

at the wheel and immediately called Eagle Heights Police. R. at 4. Responding Officer Michael

Dudley (hereinafter “Dudley”) found the vehicle heading north on Main Street, a busy

commercial street in the town. R. at 4. Despite Dudley’s attempt to pull him over, Forbes failed

to stop and accelerated the vehicle, reaching a top speed in excess of 120 miles per hour. R. at 4.

Forbes lost control of the vehicle, struck an on-coming car, and rolled over several times. R. at

4. He was thrown from the vehicle and suffered a broken collarbone. Madison Taylor died as a

result of her injuries. R. at 4.

STATEMENT OF CASE

Forbes was charged as an adult and was convicted by a jury of first-degree robbery,1 first

degree kidnapping,2 and murder in the second degree3 (Texansas’s felony-murder statute). The

trial court heard about the extenuating circumstances of Forbes’ youth, including testimony from

psychiatrists, psychologists, and school officials, and victim impact testimony. After a

sentencing hearing, the trial court sentenced Forbes to life imprisonment without the possibility

of parole.

Following his conviction and sentence, Forbes filed a petition seeking a writ of habeas

1Texansas Penal Law § 160.

2Texansas Penal Law § 135.

3Texansas Penal Law § 125.

iii

corpus in the Appellate Court of Texansas. The State moved to dismiss the petition. The

Appellate Court granted the State’s motion and found that Frobes failed to demonstrate that his

commitment was unconstitutional.

Forbes appealed to the Supreme Court of Texansas, arguing that the Appellate Court

erred in denying his petition because his sentence was invalid on its face. Specifically, Forbes

claims that the Eighth and Fourteenth Amendments prohibit the sentencing of juveniles to life

imprisonment without the possibility of parole. The Supreme Court of Texansas upheld Forbes’

sentence and affirmed the Supreme Court of Texansas’ finding.

SUMMARY OF ARGUMENT

1. The Eighth Amendment forbids imposing life without parole on juveniles under

any circumstances. As the Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012),

proportionality is central to the determination of whether a sentence is cruel or unusual under the

Eighth Amendment. Juveniles are different than adult offenders; their lack of mental and

emotional development makes them less morally culpable for their actions, even when those

actions are heinous or malevolent. For this reason, this Court has held that it is unconstitutional

to execute a juvenile for any crime; that it is unconstitutional to impose life without parole on a

juvenile for non-homicide offenses; and that it is unconstitutional to impose life without parole

automatically, without giving a judge or a jury the chance to weigh mitigating and aggravating

evidence in a homicide case. By extension, under these precedents, the Court should hold that it

is also unconstitutional to deprive a juvenile the opportunity to demonstrate rehabilitation or

individual development by sentencing a juvenile to die in prison without any opportunity for

release. Life without parole does exactly this. By “front-loading” the evaluation of the

iv

juvenile’s character, it fails to take into consideration how a juvenile may change over their

lifetime while incarcerated. The Court could rule that it is still constitutional to impose life

sentences; but the Eighth Amendment should always require a parole board to periodically

review the offender’s character, so as to ensure that a juvenile does not pay for the entirelty of

their lifetime for an offense committed while in the diminished capacity of youth.

2. Alternatively, should the Court find that life without parole for juvenile offenders

is not strictly forbidden by the Eighth Amendment, it should nevertheless find that life without

parole for homicide offenses lacking a specific intent requirement is indeed unconstitutional. The

Court has generally held that homicide offenses where the offender has diminished mental

capacity or lacks specific intent should be punished less severely than homicides where specific

intent is present. The Court has also held that juveniles should not receive life (with or without

parole) where they neither “kill nor intend to kill.” In situations like the present case, where

death was the result of recklessness or negligence (two qualities which are common in offenses

involving juveniles), the state should not impose what is effectively the highest penalty available

on the juvenile offender. Rather, life without parole should be reserved, if at all, only for those

offenses where the juvenile had specific intent to commit murder.

STANDARD OF REVIEW

Legal questions are reviewed de novo. Bose Corp. v. Consumers Union, 466 U.S. 485,

508 (1984). An appellate court’s review of a district court’s decision is independent and plenary,

and the court looks at the matter anew, as though the matter had come to the courts for the first

time. See Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 (2d Cir. 2001). Both issues are legal

questions governed by this standard of review.

v

ARGUMENT

I. LIFE WITHOUT PAROLE IS UNCONSTITUTIONAL AS APPLIED TOCHILDREN

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”

U.S. Const. amend VIII. The Eighth Amendment’s prohibition of cruel and unusual punishment

guarantees individuals the right not to be subjected to excessive sanctions, which “flows from

the basic precept of justice that punishment for crime should be graduated and proportioned to

both the offender and the offense.” Roper v. Simmons, 543 U.S. 551, 560 (2005). This Court

has viewed the concept of proportionality “less through a historical prism than according to ‘the

evolving standards of decency that mark the progress of a maturing society.’” Miller v.

Alabama, 132 S. Ct. 2455, 2463 (2012) (quoting Estelle v. Gamble, 429 U.S. 97 (1976)). Thus,

as American society evolves, so too does the court's definition of what is cruel and unusual. By

protecting even those convicted of heinous and malevolent crimes, the Eighth Amendment

reaffirms the duty of government to respect the dignity of all persons. Roper, 543 U.S. at 560.

A. Juveniles have diminished moral culpability, and should not be permanentlydeprived of their liberty without a chance to show rehabilitation

By evaluating this Court’s treatment of life without parole sentences on minors, it is clear

that Texansas’ statute should be declared unconstitutional as cruel and unusual punishment.

This Court’s reasoning in prior controlling decisions prohibiting the imposition of life sentences

on minors clearly militates toward declaring the statute invalid.

In Roper, this Court set a standard regarding sentencing that juveniles must be treated

differently from their adult counterparts and adopted a categorical ban on imposing capital

1

punishment on juveniles under the age of eighteen. 543 U.S. at 575. Simmons, a seventeen year

old minor, committed a capital murder and was later convicted at the age of eighteen. Nine

months later, he was sentenced to death. Id. at 555. Simmons executed a premeditated plan to

kill Shirley Cook. Id. He bound Cook’s hands, covered her eyes and mouth with duct tape,

drove her to a state park, and threw her from a bridge, drowning her in the waters below. Id. at

556-57. Simmons then “bragged about the killing, telling friends he had killed a woman

‘because the bitch saw my face.’” Id. at 557. The State charged Simmons with burglary,

kidnapping, stealing, and first degree murder and he was tried as an adult. Id. Clearly, Simmons

is a case of specific and deliberate intent to kill.

This Court explained that there were three general differences between juveniles under

eighteen and adults, which demonstrate that juvenile offenders cannot be classified among the

worst offenders: (1) their lack of maturity and underdeveloped sense of responsibility; (2) their

vulnerability or susceptibility to negative influences and outside pressures, including peer

pressure; and (3) that the character of a juvenile is not as well formed as an adult. Id. at 569.

The court noted that “[f]rom a moral standpoint it would be misguided to equate the failings of a

minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies

will be reformed.” Id. at 570.

The court then noted that because of the diminished culpability of juveniles, the

penological justifications for the death penalty are less applicable. Id. The court found that even

though the criminal law system is designed to consider both aggravating and mitigating

circumstances, including youth, in every case prior to imposing the death penalty, the

“differences between juvenile and adult offenders are too marked and well understood to risk

2

allowing a youthful person to receive the death penalty despite insufficient culpability.” Id.

Specifically:

An unacceptable likelihood exists that the brutality or cold-blooded nature of anyparticular crime would overpower mitigating arguments based on youth as amatter of course, even where the juvenile offender's objective immaturity,vulnerability, and lack of true depravity should require a sentence less severe thandeath. In some cases a defendant's youth may even be counted against him.

Id. (emphasis added).

Five years later, in Graham v. Florida, 560 U.S. 48 (2011), this Court found that a

mandatory sentence of life without parole imposed on a juvenile who committed a non-homicide

offense was a violation of the Eighth Amendment. 560 U.S. 48, 74. Again adopting a

categorical ban on sentencing juveniles to life without parole, this Court likened such a sentence

to a death sentence. The defendant, Terrance Jamar Graham, was sixteen years old when he

committed attempted burglary. Id. at 53. Six months after he pleaded guilty and he was again

arrested for robbery. Id. at 54. The sentencing judge believed Graham was irredeemable because

he had quickly returned to a life of crime. Id. at 56-57. The judge ordered Graham to serve a

life sentence for the armed burglary and fifteen years for the attempted armed robbery. Id. at

57.4

This Court exercised its independent judgment in reversing this decision and examined

two factors: (1) the lessened culpability of juvenile offenders in general, and (2) the fact that life

without parole in the non-homicide context did not further any established penological goals (i.e.

punishment, rehabilitation, prevention, etc.). The Graham court adhered to Roper’s finding that

4 Florida lacks a parole system, effectively making a sentence of “life” one of life without parole.

3

juvenile offenders had a lessened culpability and that their actions were less likely to be evidence

of an “irretrievably depraved character” than the actions of adults. Id. at 68 (quoting Roper, 543

U.S. at 570).

While this Court recognized a line between homicide and other serious violent offenses,

it analogized life without parole to a death sentence by noting that they shared some important

characteristics. In effect, a sentence of life without parole “alters the offender’s life by a

forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving

hope of restoration . . .” Id. This sentence “means denial of hope; it means that good behavior

and character improvement are immaterial; it means that whatever the future might hold in store

for the mind and spirit of [the convict], he will remain in prison for the rest of his days.” Id. at

70 (citing Naovarath v. State, 105 Nev. 525, 526 (1989)). Additionally, life without parole “is

an especially harsh punishment for a juvenile. Under this sentence, a juvenile offender will on

average “serve more years and a greater percentage of his life in prison than an adult offender.”

Id. The Graham court noted that none of the penological justifications were served by imposing

life without parole on a juvenile for a non-homicide offense. Id. at 71-74. Life without parole

for a non-homicide offense “forswears altogether the rehabilitative ideal. By denying the

defendant the right to reenter the community, the State makes an irrevocable judgment about that

person's value and place in society.” Id. at 74.

The Court rejected the premise that the Florida statute was facially valid because

“prosecutors have discretion to charge those offenders as adults for other felonies; and that

prosecutors may not charge non-recidivist 16-and 17-year-old offenders as adults for

misdemeanors.” Id. at 75. Specifically, the Court found that these discretionary decisions were

4

insufficient to address the larger constitutional concerns at issue and noted that “[n]othing in

Florida’s laws prevents its courts from sentencing a juvenile nonhomicide offender to life

without parole based on a subjective judgment that the defendant’s crimes demonstrate an

‘irretrievably depraved character.’” Id. at 76. The court also noted that a case-by-case approach

to sentencing, which would require courts to take the offender's age into consideration as part of

a case-specific gross disproportionality inquiry, could not with sufficient accuracy distinguish

the few incorrigible juvenile offenders from the many that have the capacity for change. Id. The

Court adhered to its reasoning in Roper that “the differences between juvenile and adult

offenders are too marked and well understood to risk allowing a youthful person to receive a

sentence of life without parole for a nonhomicide crime despite insufficient culpability.” Id.

(quoting Roper, 543 U.S. at 572-73) (internal quotation marks omitted). Additionally, the case-

by-case approach was insufficient as “[j]uveniles mistrust adults and have limited

understandings of the criminal justice system and the roles of the institutional actors within it.

They are less likely than adults to work effectively with their lawyers to aid in their defense.”

Id. at 78.

The court adopted a categorical rule against life without parole for juvenile nonhomicide

offenders because juveniles should have “a chance to demonstrate maturity and reform.” Id. at

79. Moreover,

[l]ife in prison without the possibility of parole gives no chance for fulfillmentoutside prison walls, no chance for reconciliation with society, no hope. Maturitycan lead to that considered reflection which is the foundation for remorse,renewal, and rehabilitation. A young person who knows that he or she has nochance to leave prison before life's end has little incentive to become a

5

responsible individual. In some prisons, moreover, the system itself becomescomplicit in the lack of development.

Id. The confluence of this Court’s reasoning in both Roper and Graham led to the Court’s

decision in Miller v. Alabama. In Miller, this Court extended the reasoning in Roper and

Graham to invalidate state penalty schemes mandating life without parole sentences for a

juvenile convicted of a homicide offense. The Court decided two petitions with one opinion.

The first was the case of Kuntrell Jackson, a fourteen year old juvenile who was prosecuted as an

adult for capital felony murder and aggravated robbery. He was convicted and sentenced

automatically to life without parole because the statute required it. Miller, 132 S. Ct. at 2461.

In the second case, petitioner Evan Miller (who, like Jackson, was fourteen at the time of

his offense) was charged as an adult for intentional murder after the case was transferred from

juvenile court. Id. at 2463. He was also sentenced to mandatory life without the possibility of

parole. Id.

While this Court did not categorically bar such sentences, as it did in Roper and Graham,

in light of Graham’s reasoning, it found flaws in imposing life without parole on juvenile

homicide offenders automatically. The Court's reasoning was grounded in the need to consider

mitigating circumstances, such as age, maturity, and other factors of youth, when imposing such

severe sentences on juveniles. Id. at 2469. Justice Elena Kagan, writing for the majority, noted

that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be

uncommon. That is especially so because of the great difficulty we noted in Roper and Graham

of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate

yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable

6

corruption.” Id. The Court further held, based on its death penalty jurisprudence, a defendant

who is going to be subjected to a state's harshest penalty must “have an opportunity to advance,

and the judge or jury a chance to assess, any mitigating factors, so that the death penalty is

reserved only for the most culpable defendants committing the most serious offenses.” Id. at

2467.

1. State Cases following Miller have prohibited life without parole forjuveniles under all circumstances.

Following Graham, in Diatchenko v. District Attorney for Suffolk Dist.

466 Mass. 655, 671 (2013), the Supreme Judicial Court of Massachusetts (SJC) held that the

discrtionary imposition of life without parole on a juvenile committing a homicide offense was

unconstitutional, even where the statute prescribed a penalty phase. In Diatchenko, a jury

convicted Gregory Diatchenko, a juvenile, of first-degree murder in a circumstance that had

begun as a robbery and burglary. Diatchenko was sentenced to life without parole. Id. at 656. In

reexamining Diatchenko's case after Miller, the SJC decided that life without parole for juvenile

offenders violated Article 26 of the Massachusetts Declaration of Rights, whether mandatory or

discretionary, effectively abolishing the penalty for juvenile homicide offenders in

Massachusetts. Id. at 671.

The SJC agreed with the Supreme Court that mandatory life without parole for juvenile

homicide offenders is unconstitutional, and also assessed the discretionary imposition of the

sentence for juveniles under all circumstances. While the SJC did not find the sentence

disproportionate to the crime of first-degree murder, it found the sentence unconstitutional for

juveniles as a “class of offenders,” as the penological justifications for imposing life in prison

7

without the possibility of parole—incapacitation, retribution, and deterrence—reflect the ideas

that certain offenders should be imprisoned permanently because they have committed the most

serious crimes, and they pose an ongoing and lasting danger to society. Id. at 671.

B. Life without parole is effectively a death sentence for a juvenile, and istherefore disproportionate to any offense committed by a juvenile, includinghomicide

In holding that even the most severe crimes committed by juveniles should not

lead to imposition of the death penalty, it is clear that felony crimes, which are serious crimes,

should also not lead to the imposition of life without parole, which is effectively a death

sentence. While the Texansas statute, like the one at issue in Roper, takes into account

aggravating and mitigating factors, it is clear that these “discretionary” features are not enough

to overcome the insufficient culpability of juvenile offenders. Moreover, such a sentence is de

facto an imposition of a death sentence, as there is no potential for escape and the juvenile

offender is subject to spend the remainder of his life in prison. Furthermore, the

unconstitutionality of the Texansas statute stems not from the imposition of a life sentence, but

rather from the imposition of a sentence that does not afford a juvenile an opportunity to be

rehabilitated, effectively judging a juvenile as incapable of development and rehabilitation at the

time of the offense, and issuing a “death sentence” that provides no hope for a child to take

advantage of rehabilitative tools while imprisoned. We submit that, rather than make a

permanent and irrevocable judgment about a juvenile’s character before they are fully grown,

states should reserve the ability to make a life sentence permanent only once a parole board has

been given some opportunity to evaluate the offender after the passage of time. We do not

8

suggest that the Court render life sentences inapplicable to juveniles; rather, the Court should

find that the Eighth Amendment requires states to revisit the juvenile once they are no longer

legally juveniles, and evaluate whether life is indeed the appropriate punishment.

1. Children are a unique class of offender

As Roper and Graham clearly establish, a juvenile offende, like Forbes, is

a special class of offender because he is less culpable due to his inability to appreciate the

repercussions of his actions. The distinctive attributes of youth diminish the force of penological

justifications for imposing the harshest sentences on juvenile offenders, even when they commit

terrible crimes, such as felony murder. As in Diatchenko, this overriding concern clearly

outweighs imposing even a discretionary sentence of life without parole. Because a juvenile is

not fully developed, structurally or functionally, by the age of eighteen, a trier of fact or a

prosecutor cannot find with confidence that a particular offender, at that point in time, is

irretrievably depraved. Thus, the trier of fact cannot ascertain, with any reasonable degree of

certainty, whether imposition of this severe punishment, life without parole, is unwarranted. The

differences between juveniles and adults are relevant here as well:

First, children have a lack of maturity and an underdeveloped sense ofresponsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second, children are more vulnerable to negative influences and outsidepressures, including from their family and peers; they have limited control overtheir own environment and lack the ability to extricate themselves from horrific,crime-producing settings. And third, a child’s character is not as well-formed asan adult’s; his traits are less fixed and his actions less likely to be evidence ofirretrievable depravity.

Miller, 132 S. Ct. at 2464 (internal citations and quotations omitted).

9

As this Court has made clear, imposition of life without parole on juveniles is

unconstitutional when penological justifications are not met. As juveniles are a distinct class of

offenders who are incapable of appreciating the risks and repercussion of their actions, imposing

life without parole within any context—homicide or non-homicide—does not support the

penological justifications of retribution, deterrence, and rehabilitation. The distinctive attributes

of juvenile offenders render such justifications suspect. Imposition life without parole on a

minor who has made a grave mistake and committed a serious crime is subject to a more severe

sentence than a minor who has repeatedly committed non-severe non-homicide crimes. The

incongruity and disparity of these guidelines render a non-reasoned conclusion that a juvenile's

commission of a serious crime, which is the product of a minor's age, is more severe than non

homicide offenses, which cannot accurately be adjudged.

Moreover, the unconstitutionality of life without parole for a juvenile arises not from the

imposition of a life sentence, but rather, the imposition of a life sentence without the possibility

of parole. By failing to provide an inherently less culpable juvenile the opportunity to obtain

reprieve from juvenile acts of rashness, a court de facto imposes a death sentence. A court is

front-loading discretion to an individual as they are at the time a crime is committed, rather than

taking account of how that individual may develop and permitting discretion to be incorporated

at the parole stage.

2. Making imposition of life without parole “discretionary” does notcure its unconstitutionality

A “discretionary” sentence of life without parole does not eliminate any

failings of an unfair proportionate sentence. As the SJC in Diatchenko explained, no matter how

10

a court weighs the evidence in the penalty phase, the sentence can never be constitutionally

applied to a child. The inherent nature of a juvenile leads courts to make a premature judgment

call as to the depravity or potential for rehabilitation of an undeveloped minor, which cannot be

done with any reasonable degree of certainty given the inherent nature of juveniles. In whatever

manner the sentence is imposed, the sentence is still the same-an unwavering life sentence

without any chance to demonstrate rehabilitation. Given the inability of courts to assess with

accuracy whether a minor is permanently depraved or capable of rehabilitation, life without

parole is inherent inapplicable. The mandatory or discretionary function is an inconsistent

procedural characterization, which can be both over inclusive and under inclusive, yet still

imposes life without parole in one of these ways. Moreover, the imposition of discretionary

sentences have the potential to perpetuate unequal treatment of various segments of youth. For

instance, in a study of youth arrested for murder in twenty-five states, African American youth

were found to be sentenced to life without parole at a rate that is 1.59 times higher than white

youth.5

II. THE EIGHTH AMENDMENT PROHIBITS SENTENCING JUVENILES TO LIFE WITHOUT PAROLE FOR OFFENSES LACKING SPECIFIC INTENT

Alternatively, should the Court disagree that life without parole is always inapplicable to

juveniles, it should nevertheless agree that life without parole is unconstitutional in cases where

a juvenile committed an homicide offense lacking specific intent.

5 Ana Tchoukleva, Children Are Different: Bridging the Gap Between Rhetoric and Reality Post Miller v. Alabama,

4 Cal. L. Rev. Circuit 92, 93 (2013). Moreover, there is an overall lack of uniformity in mitigating and aggravatingfactors that may lead to vast differences in sentences. See Human Rights Watch, Rest of Their Lives: Life WithoutParole for Youth Offenders in the United States in 2008, 6-7 (2008) (available at:http://www.hrw.org/sites/default/files/reports/the_youth of color).

11

First, because life without parole is the highest penalty available to a juvenile, and has

been compared to the death penalty in some cases, it is inapplicable to crimes where an offender

necessarily lacks full appreciation of his or her actions. Only in those cases where offenders are

found to have full mental culpability for their actions are the severest punishments appropriate.

Without consideration of this mental culpability, the Eighth Amendment’s command of

proportionality is lost, and the sentence becomes unconstitutional. It is doubly so when the

offender is already less mentally culpable than adult offenders, as are most juveniles.

Second, as life without parole is the highest offense available for a juvenile, imposing it

for offenses lacking specific intent–which are necessarily less grave than offenses with specific

intent–means that the penalty is imposed disproportionately and unfairly. If it must be imposed

on juveniles at all, then life without parole should be reserved for offenses where, to mirror the

words of Graham, the juvenile either “killed or intended to kill.” In situations where, as here,

the offender did not mean to cause death, and the death happened as a result of recklessness or

negligence, the court should not impose the same penalty it would award in cases where the

offender intended death to result, or knowingly and deliberately caused one.

A. The Eighth Amendment Requires Consideration of Specific Intent WhenImposing the Highest Penalties Available for Any Offense

While the Court should conclude that life without parole is inapplicable to

juveniles for any offense whatsoever, it is also the case that sentencing juveniles to life without

parole for offenses lacking specific intent is unconstitutional. As Justice Breyer noted in Miller,

juveniles already have a diminished moral culpability; in instances where juvenile offenders

neither kill nor intend to kill, those offenders are “categorically less deserving of the most

12

serious forms of punishment than are murderers.” Miller, 132 S.Ct. at 2475 (Breyer, J.,

concurring)(quoting Graham, 560 U.S. at 69).

The Texansas Supreme Court essentially manufactured this question for review when it

held that “the crime for which [Forbes] was convicted–murder in the second degree–does not

require intent,” and that the sentence was therefore appropriate. Forbes, 123 Texansas at 6. This

holding, which lacks any further justification or rationale, works against this Court’s established

doctrine that the highest penalties–death and life in prison without parole–are generally

inappropriate for those offenders who lack specific intent. As mentioned above, this is true even

though life in prison is a lesser punishment to the extent that it is still profoundly severe and may

have a greater impact on some offenders than others. Thus, when considering whether to impose

either, intent to commit an offense and the “moral culpability” that intent embodies have always

been indispensable under the Eighth Amendment. This is especially true where the offender is a

juvenile.

1. Offenses lacking specific intent are generally punished less severely

In Graham v. Florida, supra, the Court held that the Eighth Amendment

prohibits sentencing a juvenile to life in prison without parole for committing a non-homicide

offense. 560 U.S. 48, 82. At the heart of this holding was the majority’s recognition that, since

the goal of retribution is “directly related to the personal culpability of the criminal offender,”

and that because juveniles are fundamentally different from adult offenders, imposing the

highest penalties available on juveniles serves no penological purpose.

A sentence lacking any legitimate penological justification is by itsnature disproportionate to the offense. With respect to life without

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parole for juvenile non-homicide offenders, none of the goals ofpenal sanct ions that have been recognized aslegitimate—retribution, deterrence, incapacitation, andrehabilitation [. . .]—provides an adequate justification.

Id. at 71 (citing Ewing v. California, 538 U.S. 11, 25 (2003)).

What Justice Breyer means by “penological justification” is understood in the context of

other cases. Justice Breyer’s concurrence in Miller provides a number of cases from this Court,

ruling that defendants who do not kill, intend to kill, or foresee that life will be taken, are

categorically less deserving of the most serious forms of punishment than murderers. Graham,

569 U.S. at 69; see Coker v. Georgia, 433 U.S. 584 (1977)(plurality opinion)(holding death

penalty excessive for rape of an adult woman); Enmund v. Florida, 458 U.S. 782 (1982)(death

penalty inapplicable for felony murder where defendant did not kill, attempt to kill, or intend to

kill); Ford v. Wainwright, 477 U.S. 399 (1986)(death penalty inapplicable to mentally insane

defendant); Kennedy v. Louisiana, 554 U.S. 407 (2008) (death penalty excessive for violent but

non-lethal rape of a minor where death neither resulted nor was intended).

In each of these cases, the Court examined its own precedents and “evolving standards of

decency” to determine whether the death sentence was appropriate punishment for the

underlying offense. In Kennedy, the petitioner was convicted of cruelly and violently raping his

stepdaughter, who was a minor. While the stepdaughter suffered severe injuries, it was generally

presumed that the petitioner, however savage his conduct had been, had not intended to kill the

girl. The majority, looking to the Court’s cases on the death penalty, concluded that while rape

of a child was a grave offense, the death penalty had gradually become exclusive to offenses

where the defendant either killed or intended to kill. The Court then ruled that whether or not a

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sentence “is disproportionate to the crime committed depends [. . .] upon 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.” 554 U.S. at 421 (citing Enmund,

supra, 458 U.S. at 788). Relying on many of the cases cited above, the Kennedy majority

concluded that society had largely abandoned or at least become ambivalent about the imposition

of death for non-homicide offenses. Thus, the Court concluded, the death penalty is

inappropriate where the defendant neither killed nor intended to kill. This effectively echoed its

earlier holding in Coker, where the Court used the same analysis to determine that it is

unconstitutional to execute a defendant for the rape of an adult woman. See Coker, supra, 433

U.S. at 598 (“Rape is without doubt deserving of serious punishment; but in terms of moral

depravity and of the injury to the person and to the public, it does not compare with murder,

which does involve the unjustified taking of human life.”).

In each of these cases, the gravity of deliberate homicide was treated as the moral

benchmark for imposing the death sentence. It is true that the Court has approved life without

parole as not-disproportionate for non-violent offenders who have “repeatedly engaged in

serious or violent criminal behavior, and whose conduct has not been deterred by more

conventional approaches to punishment.” Ewing v. California, 538 U.S. 11, 24 (2003) (plurality

opinion). But this can be done to adult offenders who repeatedly demonstrate that they cannot be

deterred, to the extent that they “must be isolated from society in order to protect the public

safety.” Id. In Ewing, the petitioner had committed a string of felony offenses and received life

imprisonment under California’s “three-strikes” law. See Cal.Penal Code Ann. §667(b) (West

1999). Public safety concerns, the Court reasoned, trumped other penological considerations,

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such as deterrence, punishment, and possibility for rehabilitation; with a defendant who was an

irredeemable threat to the public, the sentence of life was not disproportionate. Ewing, 538 U.S.

at 24.

2. Felony murder offenses where death was not intended or foreseen, and where the defendant did not provide significant assistance, are also punished less severely

With respect to felony murder, which does not require specific intent,

Enmund v. Florida is cited heavily in both Graham and Miller for the proposition that felony

murder lacks the same moral gravity as an intentional homicide, and therefore ought to be

punished less severely. Enmund was an accomplice to a robbery where an elderly couple were

shot and killed in their own home. Enmund, the get-away driver, knew that a robbery would

happen but neither expected that death would result, nor did he participate in the slaying.

Nevertheless, he was convicted of robbery and first degree murder and sentenced to death by a

Florida court, which took as the aggravating factors certain out-of-context facts about the

underlying crime (done while an accomplice to armed robbery, done for pecuniary gain, etc.).

The Florida Supreme Court affirmed the sentence. 399 So.2d 1362 (Fla.1981).

On review, the U.S. Supreme Court disagreed, noting that the record supported “no more

than the inference that Enmund was the person in the car by the side of the road at the time of the

killings, waiting to help the robbers escape.” 458 U.S. at 788. While this was enough for the

Florida Supreme Court to find death an appropriate punishment, the U.S. Supreme Court held

that robbery, while horrid in its own way, was not a crime of such affront to humanity “that the

only adequate response may be the penalty of death.” Id. at 797 (quoting Gregg v. Georgia, 428

U.S. 153, 184 (1976)). To support this conclusion, the Court examined the practice among the

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states, which had overwhelmingly withdrawn death as a penalty for felony murder: “the evidence

is overwhelming that American juries have repudiated imposition of the death penalty for crimes

such as petitioner's.” 458 U.S. at 794. Next, the Court opined that

[w]e have no doubt that robbery is a serious crime deservingserious punishment. It is not, however, a crime “so grievous anaffront to humanity that the only adequate response may be thepenalty of death.” Gregg v. Georgia, 428 U.S., at 184, 96 S.Ct., at2930 (footnote omitted). “[I]t does not compare with murder,which does involve the unjustified taking of human life. Althoughit may be accompanied by another crime, [robbery] by definitiondoes not include the death of or even the serious injury to anotherperson. The murderer kills; the [robber], if no more than that, doesnot. Life is over for the victim of the murderer; for the [robbery]victim, life ... is not over and normally is not beyond repair.”Coker v. Georgia, 433 U.S., at 598, 97 S.Ct., at 2869 (footnoteomitted). As was said of the crime of rape in Coker, we have theabiding conviction that the death penalty, which is “unique in itsseverity and irrevocability,” Gregg v. Georgia, supra, 428 U.S., at187, 96 S.Ct., at 2931, is an excessive penalty for the robber who,as such, does not take human life.

Id. at 797.

The Court has held on one occasion that an adult convicted of felony murder who did not

actually perform the killing could receive the death penalty, as the defendant’s participation in

the felony was “major” and the mental state was one of extreme “reckless indifference.” Tison

v. Arizona, 481 U.S. 137 (1987). In Tison, the petitioners aided others in escaping from an

Arizona state prison, after which the group kidnapped, robbed, and savagely murdered a family

traveling on the highway. While the petitioners did not actually shoot the victims, the Court

found that they knew or should have known that in aiding the escape of violent convicts, death or

serious injury would result–as it did. “[The] facts not only indicate that the Tison brothers'

participation in the crime was anything but minor; they also would clearly support a finding that

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they both subjectively appreciated that their acts were likely to result in the taking of innocent

life.” 481 U.S. at 152.

To support its conclusion, the Court’s analysis focused on the specific details of the case.

The Court tracked the petitioners’ involvement in the murders, concluding that they were

“actively involved in every aspect of the kidnapping” and subsequent shootings, even though

they did not pull the trigger. Id. at 157-58. Writing for the majority, Justice O’Connor delved

into an intricate assessment of varying levels of intent, noting that even for outright murder,

culpability can be mitigated by various factors to the point where the homicide is treated as a

lesser offense–such as manslaughter:

Other intentional homicides, though criminal, are often feltundeserving of the death penalty-those that are the result ofprovocation. On the other hand, some nonintentional [sic]murderers may be among the most dangerous and inhumane of all-the person who tortures another not caring whether the victim livesor dies, or the robber who shoots someone in the course of therobbery, utterly indifferent to the fact that the desire to rob mayhave the unintended consequence of killing the victim as well astaking the victim's property. This reckless indifference to the valueof human life may be every bit as shocking to the moral sense asan “intent to kill.” Indeed it is for this very reason that the commonlaw and modern criminal codes alike have classified behavior suchas occurred in this case along with intentional murders.

481 U.S. at 157. Justice O’Connor distinguished this conclusion from the Court’s holding in

Enmund solely by distinguishing the facts; Enmund was only tangentially connected to the

murder, whereas the Tison brothers not only should have expected that innocents might die, but

they actually helped the “trigger-men” tie up and handle their victims before their deaths. Id.

The facts of the present case are completely different from those in Tison. In Tison, the

victims were cruelly executed by the shooters, who had assistance from the petitioners at every

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step of the way; here, the death was accidental, the result of inexperience, impulsiveness, and

drug use. There was no level of malevolence in the death that Forbes caused; it was not a

“killing” in the sense of deliberate or premeditated homicide. Forbes did not even know that the

victim was in the car at the time that he took it, and while he certainly should have known that

innocent persons could have been harmed or killed in the course of his flight, the Texansas

Supreme Court itself agreed that he had no specific intent to harm the baby, let anyone else. 123

Texansas, at 6.

In fact, nothing appears in the record from the Texansas Supreme Court or any of the

lower courts holding that Forbes exhibited recklessness or malevolent indifference of any kind.

Far from Tison, where the petitioners were intimately involved in a dangerous and well-planned

prison escape that ended in the annihilation of an entire family, Forbes’s situation evinces

nothing more than the negligence and lack of foresight that is typical of youthful offenders,

albeit exacerbated by other factors. Forbes clearly intended to steal the car. His intent as to

kidnapping is less clear, though he was ultimately convicted of that offense too. In any event,

conviction for either felony was enough to secure the additional conviction for second degree

murder under Texansas’ felony-murder statute, which allows conviction when death results from

robbery, kidnapping, or burglary.

B. Only Juveniles Who Kill or Intend to Kill Should Receive Life Without Parole

In cases where, as here, the only specific intent considered for the purpose of

conviction is related to non-homicide offenses, the Court should conclude that the Eighth

Amendment forbids imposing the highest sentence, as opposed to situations where the defendant

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did possess some level of premeditation or malevolent intent. “Graham dictates a clear rule: The

only juveniles who may constitutionally be sentenced to life without parole are those convicted

of homicide offenses who ‘kill or intend to kill.’” Miller, 132 S.Ct. at 2475 (Breyer, J.,

concurring) (citing Graham, 560 U.S. at 69).

In Tison, Justice O’Connor is generally correct when she condemns “reckless

indifference to the value of human life” as “every bit as shocking to the moral sense as an ‘intent

to kill.’” 481 U.S. at 157. But as we demonstrated in support of our first point above, juveniles

are fundamentally different than adult offenders when it comes to the scope of their moral

culpability. Impulsive, mentally under-developed, often suffering from environmental factors

beyond their control that compel them to poor behavior, juvenile offenders regularly demonstrate

nothing more than mere recklessness in their actions. Clearly the rationale of Tison is

inapplicable to juveniles. Imposing the same penalty–life without parole–on offenders who

intentionally kill and those who kill by accident or mistake clearly lacks the proportionality that

is so central to the Eighth Amendment.

Furthermore, not all felony murders involve situations where only one offender commits

a felony resulting in death. In fact, the arguable majority of felony murders involve multiple

defendants. See generally Enmund, Tison, supra. As Justice Breyer noted in his Miller

concurrence, the predominant theory behind the felony-murder rule is not a determination of

recklessness-in-fact. Rather, “the felony-murder doctrine traditionally attributes death caused in

the course of a felony to all participants who intended to commit the felony, regardless of

whether they killed or intended to kill.” 132 S.Ct. at 2476. This is the so-called doctrine of

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“transferred intent.” As Justice Breyer explains, transferred intent is given no consideration in

Eighth Amendment issues:

As an initial matter, this Court has made clear that this artificiallyconstructed kind of intent does not count as intent for purposes ofthe Eighth Amendment. We do not rely on transferred intent indetermining if an adult may receive the death penalty. Thus, theConstitution forbids imposing capital punishment upon an aiderand abettor in a robbery, where that individual did not intend tokill and simply was “in the car by the side of the road ..., waiting tohelp the robbers escape.” Enmund, supra, at 788, 102 S.Ct. 3368.Cf. Tison, supra, at 157–158, 107 S.Ct. 1676 (capital punishmentpermissible for aider and abettor where kidnaping led to deathbecause he was “actively involved” in every aspect of thekidnaping and his behavior showed “a reckless disregard forhuman life”). Given Graham, this holding applies to juvenilesentences of life without parole a fortiori. See ante, at 2466 –2467. Indeed, even juveniles who meet the Tison standard of“reckless disregard” may not be eligible for life without parole.

Miller, 132 S.Ct. at 2477.

The Court could attempt to divorce situations of transferred intent from situations

involving recklessness, holding that life-without-parole is appropriate for one but not the other.

The result, however, would still be inconsistent with the Eighth Amendment’s overriding

concern with proportionality. The Court cannot allow juveniles to receive life without parole for

any situation where the defendant neither killed nor intended to kill, viz. Graham, but also

impose that same sentence where offenders did kill or intend to kill. Indeed, the majority in

Miller noted that:

[G]iven all we have said in Roper, Graham, and this decisionabout children's diminished culpability and heightened capacity forchange, we think appropriate occasions for sentencing juveniles tothis harshest possible penalty will be uncommon. That is especiallyso because of the great difficulty we noted in Roper and Grahamof distinguishing at this early age between “the juvenile offender

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whose crime reflects unfortunate yet transient immaturity, and therare juvenile offender whose crime reflects irreparable corruption.”Roper, 543 U.S., at 573, 125 S.Ct. 1183; Graham, 560 U.S., at––––, 130 S.Ct., at 2026–2027.

Miller, 132 S.Ct. at 2439. The Court seems to imply that only the “rare juvenile offender” will

receive the harshest penalty, and that there is a clear distinction between such offenders and

those whose “crime reflects unfortunate yet transient immaturity.” Id. The Court cannot, and

should not, allow imposition of the maximum sentence for a crime that clearly falls within the

latter camp, while still imposing the same punishment for those more serious offenses in the

former camp.

In sum, the Court should reserve life without parole for juvenile offenders who actually

kill or intend to kill. Imposing life without parole for a felony murder offense, however

horrendous it may be, imposes the highest penalty available on the offender, to the detriment of

every legitimate penological concern as articulated by the Court.

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that this Court deem that the

Eighth Amendment forbids imposition of a sentence of life without parole for juvenile offenders

under all circumstances; or, alternatively, that the Eighth Amendment forbids imposition of a

sentence of life without parole for juvenile offenders convicted of homicide offenses lacking

specific intent; and all other relief as this Court may deem just and proper.

Respectfully submitted,Team 02Counsel for PetitionerWYATT FORBES III

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