THE MOOT COURT HONOR SOCIETY
TEMPLE UNIVERSITY JAMES E. BEASLEY SCHOOL OF LAW
2009-2010 Moot Court Honor Society Executive Board
President, Jeffrey Goodman
Vice President, Raphaella Poteau
Secretary, Diana D’Auria
Treasurer/Competitions Director, Shannon Petty
August 20, 2009
Dear Moot Court Candidate,
Thank you for your interest in the Moot Court Honor Society. On behalf of the
executive board and the members of Moot Court, I am proud to invite you to compete in
the 2009 Samuel L. Polsky Moot Court Competition.
Temple Law’s Moot Court Honor Society is a student-led organization committed
to the development of excellence in written and oral appellate advocacy. Although the
selection process is demanding, we are confident that your participation in the Polsky
Competition will be rewarding.
Everything you need to compete for a spot in Temple Law’s Moot Court Honor
Society is included within this packet. Please read the materials and instructions
carefully. Should you have any questions or concerns, please feel free to contact our
Polsky Chairperson, Shannon Petty, at Shannon.Petty@gmail.com.
We wish you the best of luck and hope you enjoy the competition.
Sincerely,
Jeffrey Goodman
President, Moot Court Honor Society
Temple University Beasley School of Law
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TABLE OF CONTENTS
Competition Schedule……………………………….…………….……………….. 3
Brief Writing Rules and Instructions……………….………………..…………….. 4
Oral Argument Rules and Instructions…………………………………………….. 6
Frequently Asked Questions………….……………………………………………. 7
District Court of Appeal Opinion……………….………………………………….. 9
Supreme Court of Florida Opinion…………………………………………………. 16
Supreme Court Writ of Certiorari and Question Presented…………………………. 28
List of Cases………………………………………………………………………… 29
Honor Code Document…………………………………………………………….. . 32
Transcript Release Form……………………………………………………………. 33
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2009 Polsky Competition Schedule
August 20, 2009
Polsky problem distributed
September 8, 2009
Briefs must be submitted to between 4pm and 5pm
Location TBA
September 19, 2009
First Round of Oral Argument
September 26, 2009
Second Round of Oral Argument
September 30, 2009
Semi-Finals of Polsky Competition
October 6, 2009
2009 Polsky Competition Finals
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2009 Samuel L. Polsky Moot Court Competition Brief Writing Instructions
1) Please read the following documents before continuing:
a. Honor Code document
b. Transcript Release Form document
2) You are to write a brief for either the Petitioner (Shaw) or the Respondent (State
of Florida). It is your choice as to which side to argue.
3) Regardless of which side you choose to argue, both sides must address the
specific question presented.
4) Brief scoring is anonymous. Your name should not be anywhere on the brief.
Include your TUID number along with the page number on the lower right hand
corner of each page of your brief. (ex. 123456789, 1)
5) The brief is to be no longer than eight (8) pages, double-spaced.
6) The brief should start with the point-heading for the question presented. Do not
provide a Statement of Facts, procedural history, table of contents or any other
section normally found in a brief to be submitted to a court of law. We are only
interested in your argument section.
7) The brief is to be written in Times New Roman twelve (12) point font.
8) One (1) inch margins are to be used on all pages.
9) Briefs for the Petitioner (Daniel Shaw) must be submitted with a BLUE
coversheet. Briefs for the Respondent (State of Florida) must be submitted with a
RED coversheet. Each coversheet must contain the case name and your TUID
number. Your name must not appear anywhere on the coversheet. The
coversheet does not count towards the eight page limit.
10) BRIEFS MUST BE SUBMITTED TO BARRACK 101 NO LATER THAN 5PM
ON SEPTEMBER [insert date], 2009. Transcript Release Forms must be
submitted along with your brief. The Transcript Release Form must be submitted
separately.
11) Please staple the briefs on the upper-left corner. Please do not staple the
Transcript Release Form to your brief submission.
12) This is a CLOSED competition. This means that only the cases listed on the
“2009 Polsky Competition Case List” and the materials included within this
packet are to be cited in your brief. You may also use:
a. A non-legal dictionary
b. A legal dictionary
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c. The Bluebook: A Uniform System of Citation, 18th ed. [for transfer
students only]
d. ALWD Citation Manual
13) You must make all citations according to the ALWD format unless you are a
transfer student, in which case you may use either ALWD or Bluebook.
14) When citing materials in the competition problem you may use the citations
provided and proper citation format must be used.
15) Until briefs are submitted, students may not discuss the problem with anyone else.
16) Once briefs have been turned in, competitors may discuss this problem with one
another. However, competitors are prohibited from speaking about the problem
with faculty, upper-division students, legal professionals, and other similar
persons.
17) All competitors are bound by the Law School’s Code of Conduct.
18) Failure to abide by these rules may result in point reductions or elimination from
the Polsky Competition.
19) All questions should be directed to the Polsky Chairperson, Shannon Petty.
Questions may not be addressed to the faculty or other students, including current
members of the Moot Court Honor Society.
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2009 Samuel L. Polsky Moot Court Competition Oral Argument Instructions
1) During the preliminary rounds of oral argument you will have to argue both onbrief (i.e. the side which you argued in your brief) and off-brief (i.e. the opposing
side).
2) A competitor must prepare his or her own oral argument.
3) Competitors may practice their oral arguments with other law students.
Competitors may not practice their arguments in front of, or receive advice or
coaching from faculty members or attorneys.
4) Arguments will be judged by Moot Court members and outside practitioners
including Temple Law alumni. Competitors will be scored based on presentation,
preparation, persuasiveness of argument, and response to questions. As each
panel of judges is different, be prepared to argue for either a “hot bench” (many
questions from judges) or “cold bench” (very few questions from judges).
5) Oral arguments will be limited to fifteen (15) minutes per competitor. At the
beginning of his or her argument, Petitioner may reserve up to five (5) minutes for
rebuttal. The time requested will be deducted from Petitioner’s total allotted time
(ex. if a Petitioner requests five minutes, his or her argument will be limited to ten
minutes).
6) Each argument will have a timekeeper/bailiff who will be in charge of keeping
time for the competitors and announcing when time has expired. Judges have
discretion to allow competitors to exceed the time limit when necessary.
7) The 8 competitors receiving the highest overall scores will advance to the semifinal round. Semi-finalists will argue once for either the Petitioner or Respondent.
8) The judges for the semi-final round will select the four strongest advocates to
advance to the final round. Selection of finalists will be based exclusively on the
semi-final round oral argument.
9) The judges for the final round will select a Champion and a Runner-up based
solely on the oral argument in the final round.
10) All questions should be directed to the Polsky Chairperson, Shannon Petty.
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2009 Polsky Competition Frequently Asked Questions
Q: Am I eligible to participate in the Polsky Competition?
A: All students in good academic standing who have completed at least 2 semesters of
law school and do not plan to graduate before May 2010 are eligible to compete.
Q: Are third-year law students eligible to participate in the Polsky Competition?
A: Yes. However, because Moot Court members may only compete in outside
competitions in their third and fourth semesters as a member, second-year law students
are preferred. This means that only a select few 3L competitors will be selected for
membership and 3L competitors can expect to be judged more rigorously during the
Polsky Competition.
Q: What are the duties and obligations of being a Moot Court member?
A: A student offered a position in the Moot Court Honor Society will take the Appellate
Advocacy class in the Spring of 2010. Students will receive 3 credits in the Spring
Semester for this class. This class involves writing a brief for a pending United States
Supreme Court case. In the class you are assigned to write a brief for one side of the case.
The class culminates in the I. Herman Stern Moot Court Competition, where you argue
against your fellow Moot Court members in a preliminary round of arguments. The
members that have the highest scores move on to the final round of the Stern
Competition. Your appellate advocacy grade depends on a combination of classroom
participation, the quality of your submitted brief, and your oral advocacy scores.
Second year students inducted into the Moot Court Honor Society are obligated to spend
two years with the Moot Court. In addition to taking a course in Appellate Advocacy,
two-year members will compete in outside competitions during their third year of law
school. Numerous law schools produce invitational Moot Court competitions on topics
including intellectual property, criminal procedure, evidence, First Amendment law,
environmental law and sports law, among many others. In your final two semesters Moot
Court members must also help organize and produce either the Samuel L. Polsky or I.
Herman Stern competitions.
Lastly, Moot Court members are required to judge 3Ls practicing their oral arguments for
the outside competitions. Members are required to “moot” competing members at least
four times but are encouraged to do more.
Q: Can I be in Moot Court Honor Society and also be on trial team and/or a
journal?
A: Yes, several current members of the Moot Court Honor Society are also members of
Trial Team, Law Review, or a Journal.
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Q: Who can I contact if I have more questions or concerns?
A: Email Shannon Petty at Shannon.Petty@gmail.com. In the subject of the email please
write “MOOT COURT QUESTION.”
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IN THE DISTRICT COURT OF APPEAL, FIRST DISTRICT,
STATE OF FLORIDA
State of FLORIDA, Plaintiff,
v.
Daniel SHAW, Defendant,
No. CR.S-95-325 WBS
Decided October 28, 2008
MEMORANDUM AND ORDER
BEASLEY, District Judge.
Appellant Daniel Shaw was convicted of armed home-invasion robbery in 2007.
Following his conviction, he was sentenced to life in prison without the possibility of
parole on January 17, 2008. This appeal raises both a facial and an as applied challenge to
the sentence of life imprisonment without parole for a minor convicted of a nonhomicide. For the reasons stated below, we reverse.
I.
Factual Background
On November 5, 2002, Florida voters amended Article I, Section 17 of the Florida
constitution mandating that Florida’s ban on cruel and unusual punishment be construed
in conformity with the United States Supreme Court’s interpretation of the Eighth
Amendment.
Appellant Daniel Shaw is currently serving a life sentence without the possibility
of parole in Florida following his 2008 conviction on one count of burglary with an
assault or battery in violation of Sections 810.02(2)(a) and 810.02(2)(b), Florida
Statutes.1
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The pertinent portion of F.S.A. § 810.02 provides the following:
(1) (a) For offenses committed on or before July 1, 2001, "burglary" means entering or remaining
in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the
premises are at the time open to the public or the defendant is licensed or invited to enter or
remain.
(b) For offenses committed after July 1, 2001, "burglary" means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense
therein, unless the premises are at the time open to the public or the defendant is licensed
or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or
conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to
commit an offense therein; or
c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.
9
Daniel Shaw was born on March 24, 1993. On June 20th, 2006, at the age of 13,
he was charged with (1) armed burglary with assault or battery (a first-degree felony) and
(2) attempted armed robbery (a second-degree felony) for an incident involving the
robbery of a local restaurant in which his codefendant, 17 year old David Jacobs,
assaulted the restaurant owner with a pipe. Daniel Shaw pled guilty to the offenses in
return for a sentence of four years, with the condition that he served at least twelve
months in a juvenile detention facility.
Daniel Shaw served the twelve-month sentence and was released from the
juvenile detention facility on June 25, 2007, with the remaining three years of his
sentence to be served on probation. In December 2007, he was charged with armed home
invasion robbery, illegal possession of a firearm, and assault with a deadly weapon. At
his trial, the State presented evidence establishing that in the evening of September 14,
2007, Daniel Shaw held the victim at gunpoint while two other individuals robbed the
home. After completing the robbery, Daniel Shaw and his codefendants locked the
victim in a closet. Upon leaving the scene, the getaway car carrying all the individuals
involved in the robbery and driven by co-defendant Brian Shield, age 17, was involved in
a lengthy car chase with police through a residential neighborhood. At trial Daniel
Shaw testified that he had also been involved in “two or three other robberies” prior to
the September 14 incident.
Daniel Shaw was found guilty of all charges by a jury. The trial court sentenced
him to life without the possibility of parole on January 17, 2008. Defendant was 14 years
old at the time of his sentencing. The trial court announced its reasoning behind the
sentence and stated in pertinent part:
Mr. Shaw, as I look back on your case, yours is really a sad situation. You
had a lot of people who wanted to try and help you get your life turned
around including the court system. And it appeared through your letters
that that is exactly what you wanted to do. I just don’t know why it is that
you threw your life away.
The only thing that I can rationalize is that you decided that this is how
you were going to lead your life, and, if that is the case, there is nothing
that we can do for you. And, as the State pointed out, this is an escalating
pattern of criminal conduct on your part and that we can’t help you any
further.
We can’t do anything to deter you. This is the way you chose to lead your
life.
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding
life imprisonment or as provided in s.775.082, s. 775.083, or s. 775.084, if, in the course of committing the
offense, the offender:
(a) Makes an assault or battery upon any person; or
(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a
dangerous weapon
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If I can’t do anything to help you, if I can’t do anything to get you back on
the right path, then I have to start focusing on protecting the community
from your actions. And unfortunately, that is where we are today.
I have reviewed the statute. I don’t see where any further juvenile
sanctions would be appropriate. I don’t see where any youthful offender
sanctions would be appropriate. Given your escalating pattern of criminal
conduct, it is apparent to the Court that you have decided that this is the
way you are going to live your life and that the only thing I can do now is
to try to protect the community from your actions.
II.
Discussion
Appellant presents both a facial and an as-applied challenge to the constitutionality of
his sentence. It is crucial to note that he does not object to the conduct of the trial or to
the jury’s verdict. Appellant’s challenge is exclusively to the constitutionality of
sentencing a minor to die in prison for a non-homicide.
Appellant’s facial challenge to the statute authorizing life imprisonment of
juveniles is based on two main components. First, appellant asserts that the sentencing of
juveniles to life without parole should be per se banned pursuant to the United States
Supreme Court’s holding in Roper v. Simmons, 543 U.S. 555 (2005). Second, Appellant
argues that the use of the sentence violates international law. Because we find that Roper
is dispositive, we do not reach the question of international law.
In Roper, the Court found the imposition of the death penalty on juvenile
offenders to be per se unconstitutional for several reasons. First, the court found that the
sentence had become truly unusual under the Eighth Amendment because of the current
trend of state legislatures to ban the sentence and the rarity of use of the death penalty in
those states that have not banned it. Roper, 543 U.S. at 561-568. Second, the Court noted
that the death penalty could be used only for those committing a “`narrow category of the
most serious crimes,’ and whose extreme culpability makes them ‘the most deserving of
execution’.” Id. at 568 (citing Atkins v. Virginia, 536 U.S. 304, 309 (2002)). Based on
the foregoing, the Supreme Court excluded juveniles from this narrow category because
juveniles, in the struggle to find themselves and determine their character, are more
susceptible to morally reprehensible behavior, but are less likely to have “irretrievably
depraved character.” Roper, 543 U.S. at 570. Third, the Supreme Court considered
international opinion and found it useful in that it provided significant confirmation that
the imposition of the death penalty on juveniles was a grossly disproportionate sentence
for juvenile offenders. Id. at 576-77.
The United States Supreme Court and the Florida Supreme Court have expressly
stated that a challenge to the length of years sentenced must rest on a determination of
whether the sentence is grossly disproportionate to the crime. In Adaway v. State, 902 So.
2d 746, 749 (Fla. 2005), the Florida Supreme Court held that “to violate the Cruel and
Unusual Punishment Clause, a prison sentence must, at least, be grossly disproportionate
11
to the crime.” Specifically, in Adaway, the Florida Supreme Court considered and
rejected a challenge to a 12-year old appellant’s sentence to life without the possibility of
parole for sexual battery.
The United States Supreme Court has not reached a majority consensus on the
standard for determining the constitutionality of long prison sentences. See
Ewing v. California, 538 U.S. 11 (2003)(plurality opinion); Harmelin v.
Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991)(plurality opinion). The Court has
acknowledged that “in determining whether a particular sentence for a term of
years can violate the Eighth Amendment, we have not established a clear or
consistent path for courts to follow.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003).
A majority of the Court recently agreed, however that “[t]hrough this thicket of
Eighth Amendment jurisprudence, one governing legal principle emerges as
‘clearly established’” – namely that a “gross disproportionality principle is
applicable to sentences for terms of years.” Id. (quoting 28 U.S.C. § 2254(d)(1)).
Adaway, 902 So. 2d at 748-49. Further, in Solem v. Helm, 463 U.S. 277, 292 (1983), the
United States Supreme Court announced objective criteria to be used in a court’s
proportionality analysis, including (1) the gravity of the offense and the harshness of the
penalty; (2) the sentence imposed on other criminals in the same jurisdiction; and (3) the
sentences imposed for commission of the same crime in other jurisdictions. Thus, the
determination of disproportionality is a fact specific determination. While this court
believes that the imposition of a life sentence without parole most likely would per se
pass the disproportionality test set forth in Solem, we do not reach that question because
we find that Appellant’s as-applied challenge is sufficient to warrant overturning the trial
court.
Appellant asserts that his particular sentence is “grossly disproportionate” to his
offense and, thus, violates the Eighth Amendment's ban on cruel and unusual punishment.
Based on the Solem disproportionality analysis, we agree.
In Blackshear v. State of Florida, 771 So.2d 1199 (Fla. Dist. App. 4, 2000), the
Fourth District considered a similar challenge to the Eighth Amendment by an appellant
who had been a juvenile upon the commission of his underlying offense, who
subsequently violated his probation through the commission of several robberies, and was
resentenced for the original offense at the age of twenty. In Blackshear, the Fourth
District affirmed the imposition of a life sentence and noted in pertinent part:
Appellant also complains that his life sentences, imposed for crimes he
committed at age thirteen, amount to cruel and unusual punishment in violation of
the Eighth Amendment of the United States Constitution and Article I, Section 17,
of the Florida Constitution. However, when appellant committed his crimes and
was certified as an adult, he was placed on probation, not sentenced to life
imprisonment as he could have been under the sentencing guidelines. The life
sentences were imposed only after the violation of probation, when appellant was
twenty years old. Thus, appellant was sentenced at age twenty for crimes that the
legislature has authorized a sentence of life imprisonment. See Hale v. State, 630
12
So.2d 521, 526 (Fla.1993) (length of sentence imposed is matter of legislative
prerogative).
Even considering age, appellant's sentence is not grossly disproportionate.
Appellant was originally charged and sentenced as an adult and did not object.
The crimes to which he pled were serious, violent crimes. By his plea and
sentence to probation, he was given an opportunity to avoid incarceration by
successfully completing his probation, which he did not. Instead he was arrested
for possession of a firearm in violation of his probation. Finally, the life sentence
was imposed for a violation of probation at age twenty. Not only was the sentence
imposed for three different armed burglaries, but appellant also had a long history
of other convictions, including five for strong armed robbery, many convictions
for burglary, grand theft, and additional misdemeanors.
Sentences imposed on juveniles of life imprisonment are not uncommon in
Florida Courts. See, e.g., Ritchie v. State, 651 So.2d 167 (Fla. 1st DCA
1995)(upholding a juvenile's life sentence for a second degree murder
conviction); Colon v. Irwin, 732 So.2d 428 (Fla. 5th DCA 1999)(addressing a
juvenile's petition for writ of mandamus to release documents who had been
sentenced to life for first degree murder); Manuel v. State, 629 So.2d 1052 (Fla.
2nd DCA 1993)(remanding to consider whether thirteen year old sentenced to life
had counsel for prior juvenile convictions included in score sheet which
recommended life sentence for attempted murder and armed robbery). Other
states have also explicitly upheld similar sentences. See, e.g., State v. Walker, 252
Kan. 117, 843 P.2d 203 (1992)(life sentence for fourteen year old active
participant in two aggravated kidnappings and an aggravated arson); State v.
Foley, 456 So.2d 979 (La.1984)(fifteen year old's life sentence without the
possibility of parole for aggravated rape proportional); White v. State, 374 So.2d
843 (Miss.1979)(life without possibility of parole for sixteen year old armed
robber and kidnaper); People v. Isitt, 55 Cal.App.3d 23, 127 Cal. Rptr. 279
(1976)(seventeen year old sentenced to life without parole for kidnapping and
robbery with bodily harm); Rogers v. State, 257 Ark. 144, 515 S.W.2d 79
(1974)(seventeen year old first time offender rapist sentenced to life without
possibility of parole); Howard v. State, 319 So.2d 219 (Miss.1975)(sixteen year
old's twenty-five year sentence for attempted armed robbery not cruel and
unusual); State v. Haley, 87 Ariz. 29, 347 P.2d 692 (1959)(not cruel and inhuman
to sentence fifteen year old who committed robbery, aggravated assault, and lewd
and lascivious acts to twenty-three to thirty years).
771 So.2d at 1201-02. The reasoning in Blackshear is sound but clearly distinguishable
from the case sub judice. In his “disproportionate” argument, Appellant emphasizes that
he was 13 at the time of the commission of his original offense and that the offense
involved a restaurant burglary in which he personally injured no one. Additionally, he
emphasizes that, at the time when he was sentenced to spend the rest of his life in prison,
he was not yet old enough to drive, watch an R-rated movie or smoke a cigarette. This
presents a sharp contrast to Blackshear, who was twenty years old when he was
13
sentenced. Furthermore, the defendant in Blackshear was more intimately involved in the
violence and he was on equal terms with his codefendants. Appellant was the youngest in
his group by at several years. It follows then, that the defendant in Blackshear was
substantially more culpable than Appellant.
A close examination of precedent demonstrates that while this court has upheld
the imposition of a life sentence without the possibility of parole for a juvenile, it has thus
far only done so in cases involving death. For example, in Phillips v. State, 807 So.2d
713 (Fla. Dist. App. 1, 2002), the defendant was fourteen years old at the time he
murdered an eight year old child. He was convicted of first-degree murder and sentenced
to life imprisonment without the possibility of parole. Id. at 714. In concluding that there
was no violation of proportionality, the Phillips court noted:
The responsibility for making this choice rests with the legislature and is entitled
to substantial deference. Further, we recognize that not every citizen nor even
every member of this court will agree with the penalty established by the
legislature for this crime as applied to this offender, but the legislative
determination falls within the bounds of a rational conclusion regarding an
appropriate prison term for the crime of first-degree murder. Finally, we find that
the penalty of life imprisonment is not grossly disproportionate to the crime of
first-degree murder. If, as Justice Kennedy's opinion noted, “the crime of felony
murder without specific intent to kill ... [is] a crime for which no sentence of
imprisonment would be disproportionate,” [ Harmelin v. Michigan, 501 U.S. 957,
111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ] [ ] then the sentence of life
imprisonment for the specific intent crime of first-degree murder cannot be
disproportionate. Accordingly, we hold that the defendant’s sentence does not
violate the proportionality principle mandated by the Eighth Amendment.
See also People v. Launsburry, 217 Mich.App. 358, 551 N.W.2d 460, 463-64
(1996) (holding life in prison without the possibility of parole was not cruel and
unusual punishment for juvenile convicted of murder); State v. Massey, 60
Wash.App. 131, 803 P.2d 340, 348 (1990) (approving true life sentence imposed
on youth convicted of committing murder at thirteen years of age), overruled on
other grounds by State v. Broadaway, 133 Wash.2d 118, 942 P.2d 363 (1997).
Appellant committed several armed robberies before reaching his majority. He has
undoubtedly acted in a dangerous and unacceptable manner. However, the United States
Supreme Court has noted that juveniles in general are more amenable to successful
rehabilitation, and the particular facts of this case cut toward the possibility of successful
rehabilitation for Appellant. As the trial court noted in its sentencing colloquy, when
Appellant was given a probationary sentence for a life felony, he wrote a letter expressing
his remorse and promising to refrain from the commission of further crimes. Appellant
further has the advantage of a strong family structure to support him. The fact that
Appellant did not take advantage of his second chance makes him no different than many
other thirteen year olds who do not understand the benefits that have been afforded them.
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It is the tested theory of rehabilitation for Appellant that sets this case apart from
other challenges to a juvenile's life sentence. The trial court was correct in balancing the
possibility of Appellant's rehabilitation with the safety of society in determining his
sentence, but erred in determining that Appellant was such a danger to society that he
warranted a sentence of life imprisonment.
Although it is clear from the record that Appellant received and squandered a second
chance to turn his life around, there is nothing that would indicate that Appellant is
beyond hope and that he should spend the rest of his life in jail for the safety of the
community.
III.
Conclusion
For the foregoing reasons, we reverse the sentence of the trial court and remand for
further proceedings in accordance with this ruling.
15
SUPREME COURT OF FLORIDA
State of FLORIDA, Petitioner,
v.
Daniel SHAW, Respondent
No. 02-10599
Decided May 1, 2009
MEMORANDUM AND ORDER
Before LESKY, QUINCE, PARIENTE, LEWIS, CANADY, PERRY, and POLSON
Supreme Court Justices
PER CURIAM.
On October 28, 2008, the District Court of Appeal overturned Respondent’s sentence of
life imprisonment without possibility of parole. The judgment rested on the court’s
construction of the Eighth Amendment to the United States Constitution. Accordingly,
we have jurisdiction under Article V, section 3 of the Florida Constitution.
I.
Background
On June 20th, 2006, Respondent Daniel Shaw pled guilty to armed burglary with assault
or battery (a first-degree felony) and attempted armed robbery (a second-degree felony)
for an incident involving the robbery of a local restaurant. Although armed burglary with
assault or battery is punishable by life in prison without the possibility of parole, the trial
court agreed to sentence Respondent to a lenient term of twelve months in a juvenile
detention facility followed by three years probation.
On June 25, 2007, Respondent was released from the juvenile detention facility. After
being on probation for only six months, Respondent was charged with armed home
invasion robbery, illegal possession of a firearm, and assault with a deadly weapon. At
trial Respondent testified that he had also been involved in “two or three other robberies”
prior to the incident for which he was charged.
Respondent was found guilty of all charges by a jury. After considering the danger to
society posed by Respondent, a demonstrated violent recidivist at the age of fourteen, the
trial court sentenced him to life in prison without the possibility of parole.
Respondent subsequently appealed his sentence, claiming that the sentence of life
imprisonment without possibility of parole, imposed on a juvenile, was cruel and unusual
in violation of the Eighth Amendment to the United States Constitution. Finding that the
sentence, as applied to Respondent, violated the Constitution, the District Court of
16
Appeal overturned the sentence. This appeal followed.
We reverse.
II.
Discussion
Petitioner asserts that sentencing Respondent to life in prison without the possibility of
parole at the age of fourteen for committing multiple armed robberies does not violate the
Eighth Amendment to the United States Constitution. We agree.
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. As the United States Supreme Court has
recognized, what constitutes cruel and unusual punishment, and thus, what violates the
Eighth Amendment, is determined by “evolving standards of decency that mark the
progress of a maturing society.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).
The United States Supreme Court has instructed that “the clearest and most reliable
objective evidence of contemporary values is the legislation enacted by the country’s
legislatures.” Atkins v. Virginia, 536 U.S. 304, 313 (2002). While the Constitution
requires this Court to use its independent judgment by “asking whether there is reason to
disagree with the judgment reached by the citizenry and its legislators,” id. at 313, “we
may not act as judges as we might as legislators” because “[c]ourts are not representative
bodies. They are not designed to be a good reflex of a democratic society.” Gregg, 428
U.S. at 175 (citations omitted). Therefore, in assessing a punishment selected by a
democratically elected legislature against the constitutional measure, we presume its
validity. We may not require the legislature to select the least severe penalty possible so
long as the penalty selected is not cruelly inhumane or disproportionate to the crime
involved. And a heavy burden rests on those who would attack the judgment of the
representatives of the people.
In disputing the sentence authorized by the Florida Legislature, Respondent asserts both a
facial and an as applied challenge to his life sentence without the possibility of parole.
a. Facial Challenge
Respondent’s facial challenge to the statute authorizing life imprisonment of juveniles is
based largely on dicta contained in Roper v. Simmons, 543 U.S. 551 (2005). The thrust
of Respondent’s argument is that the imposition of true life sentences on juveniles
offends “evolving standards of decency” as evidenced by the rarity with which such
sentences are imposed in the international community. For reasons we discuss below, this
is insufficient to support a finding that true life sentences for juveniles are per se
unconstitutional.
As correctly noted by the District Court of Appeal below, the Roper Court held the
imposition of the death penalty on juveniles to be per se unconstitutional for several
reasons. First, the court found there was sufficient evidence to establish a clear national
consensus against the death penalty on juveniles; thirty state legislatures had prohibited
the practice while in the remaining twenty states without formal prohibitions on
17
executing juveniles the practice was infrequent. Roper, 543 U.S. at 561-568. Second, the
Court noted that the death penalty could be used only for those committing a “‘narrow
category of the most serious crimes,’ and whose extreme culpability makes them ‘the
most deserving of execution.’” Id. at 568 (quoting Atkins, 536 U.S. at 309). Based on the
foregoing, the Supreme Court excluded juveniles from this narrow category because
juveniles, in the struggle to find themselves and determine their character, are more
susceptible to morally reprehensible behavior, but are less likely to have “irretrievably
depraved character.” Roper, 543 U.S. at 570. Third, the Supreme Court considered
international opinion and found it useful in that it provided significant confirmation that
the imposition of the death penalty on juveniles was a grossly disproportionate sentence
for juvenile offenders. Id. at 576-77.
Respondent ignores the largest and most evident distinguishing factor of
the Roper opinion; “[D]eath is different in kind from any other punishment imposed
under our system of criminal justice.” Gregg, 428 U.S. at 181 (opinion of Stewart,
Powell, and Stevens, JJ.); Furman v. Georgia, 408 U.S. 238, 286-291 (1972) (Brennan, J.,
concurring), 306-310 (Stewart, J., concurring); U.S. v. Salahuddin, 509 F.3d 858 (7th
Cir. 2008) (limiting the holding of Roper to death penalty cases and upholding the
imposition of a life sentence on a juvenile); Douma v. Workman, 2007 U.S. Dist. LEXIS
59487, *3 (N.D. Okla. 2007) (affirming appellant’s juvenile sentence of life
imprisonment without the possibility of parole and stating “the scope of Roper is narrow:
it applies only where an individual under 18 years of age is sentenced to death”). Relying
on the sound reasoning outlined in the foregoing precedent, we reject Respondent’s
invitation to extend the holding of Roper to prohibit the sentencing of juveniles to life
imprisonment in all situations.
In addition to the fact that “death is different,” Respondent fails to show that true life
sentences for juveniles violate contemporary standards of decency. In Roper, the express
prohibition of the death penalty in a majority of states unmistakably indicated public
disapproval of the death penalty. By contrast, at least forty-two states allow- at least in
theory- juvenile life imprisonment without parole for a wide variety of crimes. Human
Rights Watch/Amnesty Int’l, infra, available at
http://www.hrw.org/en/node/11578/section/14 (last visited November 19, 2008).
Therefore, there is little reason to suspect that our society disapproves of the challenged
practice and even less reason to think that it offends the “evolving standards of decency.”
Respondent states in his brief that “only fourteen nations, in theory, allow for juveniles to
be sentenced to life, and only three of those nations appear to do so in practice.” See
also Human Rights Watch and Amnesty International, The Rest of their Lives: Life
Without Parole for Child Offenders in the United States, at 111-16 (Oct. 2005), available
at http://www.hrw.org/en/node/11578/section/9 (last visited March 12, 2008).
Respondent points out that the United States currently has 2,225 persons sentenced to life
for juvenile crimes; Florida houses 273 such persons. Id. This court acknowledges that,
above all others, this argument is the strongest in support of a per se ban on the use of a
true life sentence for juveniles. Specifically, in Roper, the United States Supreme Court
18
discussed the weight to be given international pressure to change our existing legal
system and noted:
Our determination that the death penalty is disproportionate punishment
for offenders under 18 finds confirmation in the stark reality that the
United States is the only country in the world that continues to give
official sanction to the juvenile death penalty. This reality does not
become controlling, for the task of interpreting the Eighth
Amendment remains our responsibility. Yet at least from the time of the
Court's decision in Trop, the Court has referred to the laws of other
countries and to international authorities as instructive for its interpretation
of the Eighth Amendment’s prohibition of “cruel and unusual
punishments.” 356 U.S. 86, 102-103 (1953) (plurality opinion) (“The
civilized nations of the world are in virtual unanimity that statelessness is
not to be imposed as punishment for crime”); see also Atkins, supra, at
317 n. 21 (recognizing that “within the world community, the imposition
of the death penalty for crimes committed by mentally retarded offenders
is overwhelmingly disapproved”); Thompson v. Oklahoma, 487 U.S. 815,
830-831 (1988) (plurality opinion) (noting the abolition of the juvenile
death penalty “by other nations that share our Anglo-American heritage,
and by the leading members of the Western European community,” and
observing that “[w]e have previously recognized the relevance of the
views of the international community in determining whether a
punishment is cruel and unusual”); Coker [v. Georgia], 433 U.S. 584, 596
[1977] (plurality opinion) (“It is . . . not irrelevant here that out of 60
major nations in the world surveyed in 1965, only 3 retained the death
penalty for rape where death did not ensue.”).
543 U.S. at 575-576 (emphasis added). Similar to the imposition of the death penalty on
juvenile offenders, the sentencing of a juvenile to a true life sentence is frowned upon by
the international community. However, in Roper, the United States Supreme Court
further noted that it is for the courts of the United States, not the international or
community courts, to interpret the Eighth Amendment’s protections. Id. at 575-577. As
such, international pressure must be balanced with the due deference owed the state
legislatures of this country in matters of sentencing. Specifically, any analysis applying
the Eighth Amendment must provide due deference to “the broad authority that
legislatures necessarily possess in determining the types and limits of punishments for
crimes, as well as to the discretion that trial courts possess in sentencing convicted
criminals.” Solem v. Helm, 463 U.S. 277, 290 (1983). While the weight given the
international community is persuasive, it cannot be said to counter the individual rights of
the state to impose its chosen sentencing scheme if that scheme is not held to be
otherwise unconstitutional.
The United States Supreme Court has not reached a majority consensus on the standard
for determining the constitutionality of long prison sentences. See Ewing v. California,
538 U.S. 11 (2003) (plurality opinion); Harmelin v. Michigan, 501 U.S. 957 (1991)
19
(plurality opinion). The Court has acknowledged that “in determining whether a
particular sentence for a term of years can violate the Eighth Amendment, we have not
established a clear or consistent path for courts to follow.” Lockyer v. Andrade, 538 U.S.
63, 72 (2003). A majority of the Court recently agreed, however, that “[t]hrough this
thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as
‘clearly established’”--namely, that a “gross disproportionality principle is applicable to
sentences for terms of years.” Id. (quoting 28 U.S.C. § 2254 (d)(1)). In other words, to
violate the Cruel and Unusual Clause, a prison sentence must, at least, be grossly
disproportionate to the crime. See id.
The first and only case in which the Supreme Court has invalidated a prison sentence
because of its length was Solem v. Helm, 463 U.S. 277, 290 (1983). In Solem, the
Court’s proportionality analysis was “guided by objective criteria, including (i) the
gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on
other criminals in the same jurisdiction; and (iii) the sentences imposed for commission
of the same crime in other jurisdictions.” Id. at 292. While characterizing the first of the
three factors as one that “a court must consider,” in discussing the other factors the Court
stated only that “it may be helpful” to apply the second and that “courts may find it
useful” to apply the third. Id. at 291.2
Because the weight of applicable precedent requires a fact-specific inquiry into the
“grossly disproportionate” analysis, this type of constitutional argument does not lend
itself to a facial challenge. To state that the imposition of a life sentence without parole
on a juvenile is per se violative of the Eighth Amendment, a court would have to reject
existing Supreme Court precedent regarding the factual inquiry required in such a case.
As such, it does not appear that the United States Supreme Court contemplated this type
of per se prohibition to a specific term of years.
Additionally, even if the Solem factors were applicable in this context, it would not help
Respondent. Several courts have upheld the imposition of a life sentence for a juvenile
utilizing a similar disproportionality analysis.3 In Tate v. State, 864 So. 2d 44, 54 (Fla.
4th Dist. App. 2003), the Fourth District considered a juvenile’s challenge to the
imposition of a true life sentence for his brutal murder of a six year old child and stated in
pertinent part:
And, finally, we reject the argument that a life sentence without the
possibility of parole is cruel or unusual punishment on a twelve-year-old
In Solem, the Court found the sentence of life imprisonment without parole for writing a
“no account” check for $100 to be “significantly disproportionate to [the] crime, and . . .
therefore prohibited by the Eighth Amendment.” 463 U.S. at 281. The defendant
previously had been convicted of six nonviolent felonies. Id. at 303. By contrast,
Respondent is a violent recidivist who was sentenced to life imprisonment without parole
after holding multiple victims at gunpoint.
2
We note that Solem remains the only case in which the United States Supreme Court
declared a sentence unconstitutional based on its length.
3
20
child and that it violates Article I, Section 17 of the Florida Constitution
and the Eighth Amendment of the United States Constitution. Tate argues
that his sentence is greatly disproportionate to the sentences of other
juveniles charged with similar acts.
In Blackshear v. State, 771 So. 2d 1199 (Fla. 4th Dist. App. 2000), this
court rejected a cruel or unusual punishment challenge to three
consecutive life sentences imposed for three robberies committed when
Blackshear was thirteen. Id. at 1200. Upon his guilty plea, Blackshear was
certified as an adult and placed on probation. Id. When he violated his
probation at age twenty, he was sentenced to three consecutive life
sentences. Id. There, we recognized that “[s]entences imposed on juveniles
[as adults] of life imprisonment are not uncommon in Florida Courts.” Id.
at 1201-1202.
In Phillips v. State, 807 So. 2d 713 (Fla. 2d Dist. App. 2002), the
defendant was fourteen years old at the time he murdered an eight year old
child. He was convicted of first-degree murder and sentenced to life
imprisonment without the possibility of parole. Id. at 714. In concluding
that there was no violation of proportionality, the Phillips court noted:
The responsibility for making this choice rests with the legislature
and is entitled to substantial deference. Further, we recognize that
not every citizen nor even every member of this court will agree
with the penalty established by the legislature for this crime as
applied to this offender, but the legislative determination falls
within the bounds of a rational conclusion regarding an appropriate
prison term for the crime of first-degree murder. Finally, we find
that the penalty of life imprisonment is not grossly
disproportionate to the crime of first-degree murder. If, as Justice
Kennedy's opinion noted, “the crime of felony murder without
specific intent to kill . . . [is] a crime for which no sentence of
imprisonment would be disproportionate,” Harmelin v. Michigan,
501 U.S. 957 (1991) [ ] then the sentence of life imprisonment for
the specific intent crime of first-degree murder cannot be
disproportionate. Accordingly, we hold that Mr. Phillips' sentence
does not violate the proportionality principle mandated by the
Eighth Amendment.
See also People v. Launsburry, 551 N.W.2d 460, 463-464 (Mich. App. 1996) (holding
life in prison without the possibility of parole was not cruel and unusual punishment for
juvenile convicted of murder); State v. Massey, 803 P.2d 340, 348 (Wash. App. Div. 2
1990) (approving true life sentence imposed on youth convicted of committing murder at
thirteen years of age). These cases make clear that the imposition of a true life sentence
on a juvenile has never, in state or federal courts, been considered per se unlawful.
Accordingly, Respondent cannot assert that established precedent supports a conclusion
21
that the use of the sentence has become so unique as to be unusual as defined by the
Eighth Amendment.
b. As Applied Challenge
Respondent asserts his particular sentence is “grossly disproportionate” to his offense
and, thus, violates the Eighth Amendment’s ban on cruel and unusual punishment. Based
on the Solem disproportionality analysis, we do not agree.
Respondent urges us, in conducting our proportionality review, to consider his youth at
the time of the crimes as a mitigating factor. The chronological age of a defendant is a
factor that can be considered in determining whether a punishment is grossly
disproportionate to the crime inasmuch as it relates to his
culpability. Solem instructed courts to compare the gravity of an offense with the severity
of the sentence by looking at “the harm caused or threatened to the victim or society, and
the culpability of the offender.” 463 U.S. at 292. Culpability can be weighed by
examining factors such as the defendant’s motive and level of scienter, among other
things. Id. at 293-294.
In the context of capital cases, the Supreme Court has indicated that the age of a young
defendant is relevant, in the Eighth Amendment sense, to his culpability. The plurality in
Thompson v. Oklahoma, 487 U.S. 815, 835 (1988), concluded that “less culpability
should attach to a crime committed by a juvenile than to a comparable crime committed
by an adult.” Justice O’Connor’s controlling opinion in Thompson recognized that “the
special qualitative characteristics of juveniles that justify legislatures in treating them
differently from adults . . . are also relevant to Eighth Amendment proportionality
analysis.” Id. at 854. (O’Connor, J.).4
Other cases have dealt with the proportionality issue in the context of youthful defendants
given statutorily mandated sentences. In Harris v. Wright, 93 F.3d 581 (9th Cir. 1996),
the defendant was fifteen years old when he committed aggravated first-degree murder
and received the state’s mandatory sentence of life without parole. He argued that his
sentence was grossly disproportionate to “a fifteen-year-old’s limited culpability for any
crime.” Id. at 584. The Ninth Circuit disagreed, holding that it had no power to reverse
the state legislature’s decision on the matter. Id. In Rice v. Cooper, 148 F.3d 747 (7th Cir.
1998), the Seventh Circuit decided that life without parole was not a disproportionate
punishment for a sixteen year old mentally retarded boy who killed four people. Although
the court stated that the defendant’s youth “argued for a lighter sentence,” it, too, found
that the statutorily mandated sentence of life without parole was not disproportionate to
the crime. Id. at 752. In State v. Green, 502 S.E.2d 819 (N.C. 1998), the Supreme Court
of North Carolina sentenced a thirteen year old who was convicted of burglarizing his
neighbor’s house and raping her, to life in prison. The court found that, “while the
Justice O’Connor qualified this statement by adding that it is the legislature, not the
courts, which should decide the appropriate age cut-off for the death penalty. 487 U.S. at
854.
4
22
chronological age of a defendant is a factor that can be considered in determining
whether a punishment is grossly disproportionate to the crime, the Court’s review is not
limited to this factor.” Id. at 832.
We are still left with the question of whether and how a youthful defendant’s age should
factor in to the proportionality analysis when, as here, the punishment was not mandated
by the legislature but was set by a judge within a range of sentences the legislature
specified. We agree with the North Carolina court’s approach, and hold that age is a
relevant factor to consider in a proportionality analysis. This is so because the first prong
of the Solem test allows for courts to consider multiple factors relevant to culpability.
This conclusion does not, however, lead to a finding that Respondent’s punishment is
grossly disproportionate to his crimes. Respondent’s crimes were serious, involving a
deadly weapon, a home invasion, and threats of violence. Indeed, Respondent himself
held a gun to a man’s head during the incident for which he was sentenced. Although his
culpability may be diminished somewhat due to his age at the time of the crimes, it is
arguably more than counterbalanced by the harm Respondent caused to his victim. By
way of comparison, the Supreme Court has found that a life sentence without parole is
not disproportionate to the crime of possession of 672 grams of cocaine, see Harmelin,
501 U.S. 957, and that a life sentence with the possibility of parole is not disproportionate
for a three-time non-violent recidivist, see Rummel v. Estelle, 445 U.S. 263 (1980). If
these offenses warrant such severe punishments, Respondent’s crimes surely merit the
punishment he received, even when we take his age at the time of the offense into
account.
Respondent’s emphasis on his age at the time of his conviction is also unpersuasive
because it ignores the reality of Respondent’s circumstances. Although the United States
Supreme Court has noted that juveniles in general are more amenable to successful
rehabilitation, the particular facts of this case show that that the trial court was well
within its discretion when it determined that Respondent was a danger to society and
could not be rehabilitated. Despite expressing “remorse” for his actions and promising to
refrain from the commission of further crime, Respondent rejected his second chance and
chose to continue committing crimes at an escalating pace; he committed at least two
armed robberies and confessed to the commission of an additional three within a year of
his release.
Additionally, sentences imposed on juveniles of life imprisonment are not uncommon in
Florida Courts. See, e.g. Ritchie v. State, 651 So. 2d 167 (Fla. 1st Dist. App. 1995)
(upholding a juvenile’s life sentence for a second degree murder conviction). Other
states have also explicitly upheld similar sentences. See, e.g. State v. Walker, 843 P.2d
203 (Kan. 1992) (life sentence for fourteen year old active participant in two aggravated
kidnappings and an aggravated arson); State v. Foley, 456 So. 2d 979 (La. 1984) (fifteen
year old’s life sentence without the possibility of parole for aggravated rape
proportional); White v. State, 374 So. 2d 843 (Miss. 1979) (life without possibility of
parole for sixteen year old armed robber and kidnaper); People v. Isitt, 127 Cal.Rptr. 279
(Cal. App. 3d Dist. 1976) (seventeen year old sentenced to life without parole for
23
kidnapping and robbery with bodily harm); Rogers v. State, 515 S.W.2d 79 (Ark. 1974)
(seventeen year old first time offender rapist sentenced to life without possibility of
parole); Howard v. State, 319 So. 2d 219 (Miss. 1975) (sixteen year old’s twenty-five
year sentence for attempted armed robbery not cruel and unusual); State v. Haley, 347
P.2d 692 (Ariz. 1959) (not cruel and inhuman to sentence fifteen year old who
committed robbery, aggravated assault, and lewd and lascivious acts to twenty-three to
thirty years).
The gravity of Respondent’s crimes, his demonstrated aversion to rehabilitation, as well
as the treatment of like juveniles, supports the imposition of Respondent’s true life
sentence premised on a Solem factor analysis. As such, based on the particular facts of
this case, Respondent’s sentence does not violate the ban on cruel and unusual
punishment in either the Florida Constitution or the United States Constitution.
III.
Conclusion
For the foregoing reasons, we reverse the judgment of the District Court of Appeal and
reinstate the sentence imposed by the trial court.
SOLOMON, J. dissenting:
I must respectfully disagree with my colleagues on the court as to the appropriateness of
Respondent’s sentence. While there is no doubt that Respondent’s crimes are troubling,
especially given his youth, I cannot justify the imposition of a punishment that would
essentially sentence a 14-year-old to die in prison.
At age 13, Respondent was an accomplice to an armed burglary and attempted armed
robbery. After being found guilty at his jury trial, the trial court sentenced him to the
statutory maximum penalty - life imprisonment without the possibility of parole - for the
crime he committed as a 13-year-old.
This sentence, based upon the acts Respondent engaged in as a juvenile, cannot be
reconciled with this Court's precedents under the Eighth Amendment. As this Court
recognized in Roper v. Simmons, 543 U.S. 551 (2005), the characteristics of juvenile
offenders, in particular their diminished culpability, make them categorically different
from adult defendants who have committed the same crimes. And because of these
differences between juveniles and adults, the severity of the criminal sanction, which is
unquestionably harsher for a 14-year-old assigned to an adult prison population in
perpetuity than it is for an adult, cannot be considered proportional to any non-homicide
offenses committed.
Not surprisingly, almost every United States jurisdiction implicitly has recognized that
the imposition of a life-without-parole sentence on a juvenile, non-homicide offender
cannot be reconciled with basic understandings of decency which undergird the Eighth
Amendment. Florida stands nearly alone in its punishment of juveniles, such as
Respondent, who have not taken or attempted to take a life, as it is one of just six States
24
known to be incarcerating such offenders in perpetuity. And of the just 106 known
juvenile non-homicide offenders serving a life-without-parole sentence in the United
States, 77 of them are in Florida. Moreover, only Florida and South Carolina permit a
first-time juvenile offender such as Respondent to be sentenced to life imprisonment for
the crime of armed burglary, and only Florida does so in practice.
In Roper v. Simmons, 543 U.S. 551 (2005), this Court held that the characteristics of
juvenile offenders, in particular their diminished culpability and capacity for change,
rendered the death penalty unconstitutional as applied to offenders who committed their
offenses before the age of 18 years old, even though the death penalty is otherwise
constitutional when applied to adult offenders. These same considerations require that a
life-without-parole sentence imposed on a juvenile offender for a non-homicide is
unconstitutional.
The Eighth Amendment prohibits grossly disproportionate sentences of imprisonment.
Under its well-settled precedent, this Court considers the sentence's underlying
penological purposes and legislative judgments; the harshness of the sentence compared
to the gravity of the offense; and a comparison of the sentencing laws and practices of the
States and the international community. No single factor is dispositive.
The argument that “death is different” does not alter this analysis or restrict Roper to
capital cases. In both capital and non-capital cases, the Court also has examined the
offender's characteristics to determine whether a sentence is grossly disproportionate. In
Rummel v. Estelle, 445 U.S. 263, 276 (1980), and Ewing v. California, 538 U.S. 11
(2003), the Court explained that an otherwise grossly disproportionate sentence can
nonetheless be constitutionally permissible under the Eighth Amendment if the offender
is a recidivist.
Like the death penalty, a life-without-parole sentence rejects rehabilitation and is an
irrevocable sentence with regard to the many years lost while incarcerated. And for a
non-homicide, juvenile offense, life without parole is a severe punishment. Granted, the
Court has cited “death is different” as a basis to mandate more stringent procedures for
death-penalty sentencing, including an examination of the offender's potentially
mitigating characteristics on a case-by-case basis. But those requirements are unrelated to
the Court's proportionality analysis. Respondent does not claim any constitutional right to
a similar, individualized sentencing procedure. Indeed, Roper rejected the notion that a
juvenile offender's future characteristics as an adult could be accurately determined on a
contemporaneous, individualized basis at sentencing.
The unconstitutionality of Shaw's sentence is confirmed by the fact that he is one of a
handful of juveniles, in any State, who has been sentenced to life without parole for a
non-homicide offense such as armed burglary. A comparative analysis is required
because, as a threshold matter, Shaw's sentence is the same as the harshest sentence that a
juvenile could receive for murder, and thus is disproportionate in light of the less serious
nature of Shaw's offense, an armed burglary which did not involve the taking of a life or
an attempt to take life. Indeed, the harshest adult punishment (death) would not be
25
constitutional for any similar offense committed by an adult offender. Enmund v. Florida,
458 U.S. 782, 787, 801 (1982); Kennedy v. Louisiana, 128 S.Ct. 2641, 2645-2648, 2660
(2008).
Shaw's sentence is significantly greater than the average sentences for all offenders (adult
and juvenile) convicted in Florida of violent crimes (8.5 times greater) or armed
burglaries (7.1 times greater). Though Shaw's armed burglary conviction is comparable to
the offenses of thousands of juvenile offenders, Florida has sentenced only 77 juvenile
offenders to life without parole for a mere non-homicide offense.
More significantly, compared to the rest of the Nation, Florida stands virtually alone.
Florida leads the Nation in imprisoning juveniles for non-homicide offenses. Outside of
Florida, there is no juvenile, non-homicide offender serving a life-without-parole
sentence for a burglary offense, and only one other State even permits such a sentence for
a first-time armed burglary offender such as Shaw. Looking at all non-homicides, there
are only 29 juvenile, non-homicide offenders serving life without parole outside of
Florida, and they are concentrated in five other States. This means that Florida
incarcerates approximately 70% of the Nation's juvenile, non-homicide offenders.
Finally, the international community has overwhelmingly rejected and condemned the
practice of imprisoning juveniles for life without parole.
Additionally, Shaw's sentence is unusual in that it would not be imposed anywhere else in
the world. According to a 2008 survey, only ten nations, besides the United States, permit
juveniles to be imprisoned for life without parole, and none of these ten nations do so in
practice.5 Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in
Prison: Global Law and Practice, 42 U.S.F.L. Rev. 983, 989-990 & nn.18 & 20 (Aug.
2008).
International treaties prohibit imprisoning juveniles for life without parole. Article 24(1)
of the International Covenant on Civil and Political Rights, which was signed and ratified
by the United States, requires that every child have “the right to such measures of
protection as are required by his status as a minor.” G.A. Res. 2200A, Art. 24(1), U.N.
GAOR, 16th Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force Mar. 23,
1976). The United Nations Human Rights Committee has held “that sentencing children
to life sentence without parole is of itself not in compliance with article 24(1) of the
Covenant.” U.N. Human Rights Comm., Consideration of Reports Submitted by States
Parties Under Article 40 of the Covenant, ¶ 34, U.N. Doc. CCPR/C/USA/CO/3 (Sept. 15,
2006). Moreover, 185 nations in the United Nations General Assembly voted in favor of
resolutions calling for nations to abolish the practice of imprisoning juveniles for life
without parole; only the United States voted in opposition. De la Vega & Leighton,
supra, at 989 & n.19.
5
The ten nations are Antigua, Argentina, Australia, Barbuda, Belize, Brunei, Cuba,
Dominica, Saint Vincent and Grenadines, the Solomon Islands, and Sri Lanka.
26
Imprisoning juveniles for life without parole is also contrary to the standards of a widelyaccepted international treaty relied upon by this Court in Roper, 543 U.S. at 576; see id.
at 543 U.S. at 623 (Scalia, J., dissenting). Article 37(a) of the United Nations Convention
on the Rights of the Child (“CRC”) prohibits not only sentencing juveniles to death, but
also sentencing juveniles to “life imprisonment without the possibility of release.” United
Nations Convention on Rights of the Child, Art. 37(a), U.N. Doc. A/44/736, 28 I.L.M.
1456, 1470 (Nov. 20, 1989). The CRC has been ratified by 192 nations; only the United
States and Somalia have not ratified it. Human Rights Watch/Amnesty Int'l, supra, at 99
& nn.291-293.
Because Respondent’s sentence flies in the face of both domestic and international
practice, I must respectfully dissent from the opinion.
27
SUPREME COURT OF THE UNITED STATES
______________________
Present: Chief Justice Roberts, Justice Stevens, Justice Scalia, Justice
Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, Justice Alito and Justice
Sotomayor.
CERTIORARI GRANTED
No. 09-7058. State of Florida v. Daniel Shaw. Decision below: State of Florida v.
Daniel Shaw, No. CR-S-95-325 WBS. Petition for writ of certiorari to the Supreme Court
of Florida granted.
QUESTION PRESENTED
Does the Eighth Amendment’s ban on cruel and unusual punishments prohibit the
imprisonment of a juvenile for life without the possibility of parole as punishment for the
juvenile’s commission of a non-homicide?
28
2009 Polsky Competition List of Cases
The Polsky Competition is a CLOSED competition. That means that only the cases listed
on this page and the documents in this competition problem are to be cited in the brief.
No other sources may be cited in your brief including cites which are included within the
opinions but not included on the cite list. No other outside research is allowed.
Please review each cite on this list. You should assume that all cites on this list are good
law and you should disregard any “red flags” or “stop signs” that you may encounter.
You are not required to cite each case on this list, but you should endeavor to thoroughly
address the relevant authority in your brief.
Supreme Court Authority
Atkins v. Virginia, 536 U.S. 304 (2002)
Coker v. Georgia, 433 U.S. 584 (1977)
Enmund v. Florida, 458 U.S. 782 (1982)
Ewing v. California, 538 U.S. 11 (2003)
Furman v. Georgia, 408 U.S. 238 (1972)
Gregg v. Georgia, 428 U.S. 153 (1976)
Harmelin v. Michigan, 501 U.S. 957 (1991)
Kennedy v. Louisiana, 128 S. Ct. 2641 (2008)
Lawrence v. Texas, 539 U.S. 558 (2003)
Lockyer v. Andrade, 538 U.S. 63 (2003)
Roper v. Simmons, 543 U.S. 551 (2005)
Rummel v. Estelle, 445 U.S. 263 (1980)
Solem v. Helm, 463 U.S. 277 (1983)
Stanford v. Kentucky, 492 U.S. 361 (1989)
Thompson v. Oklahoma, 487 U.S. 815 (1988)
Woodsen v. North Carolina, 428 U.S. 280 (1976)
29
Circuit Court Authority
Harris v. Wright, 93 F.3d 581 (9th Cir. 1996)
Rice v. Cooper, 148 F.3d 747 (7th Cir. 1998)
State Authority
Blackshear v. State, 771 So. 2d 1199 (Fla. 4th Dist. App. 2000)
Howard v. State, 319 So. 2d 219 (Miss. 1975)
In re Nuñez, 93 Cal.Rptr.3d 242 (Cal. App. 4th Dist. 2009)
People v. Isitt, 127 Cal.Rptr. 279 (Cal. App. 3d Dist. 1976)
People v. Launsburry, 551 N.W.2d 460 (Mich. App. 1996)
Phillips v. State, 807 So. 2d 713 (Fla. 2d Dist. App. 2002),
Ritchie v. State, 651 So. 2d 167 (Fla. 1st Dist. App. 1995)
Rogers v. State, 515 S.W.2d 79 (Ark. 1974)
State v. Foley, 456 So. 2d 979 (La. 1984)
State v. Green, 502 S.E.2d 819 (N.C. 1998)
State v. Haley, 347 P.2d 692 (Ariz. 1959)
State v. Massey, 803 P.2d 340 (Wash. App. Div. 2 1990)
State v. Walker, 843 P.2d 203 (Kan. 1992)
Tate v. State, 864 So. 2d 44 (Fla. 4th Dist. App. 2003)
White v. State, 374 So. 2d 843 (Miss. 1979)
Statutory Authority
F.S.A. § 810.02 (2009)6
6
You may only review the statutory text. Please do not review or cite any annotations or notes associated
with this statute.
30
United States Constitutional Authority
U.S.C.A. Const. Amend. VIII:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”
State Constitutional Authority
Fla. Const. Art. 1, § 17
Fla. Const. Art. V, § 3
Other Authority
http://www.hrw.org/en/node/11578/section/97 (“VII: Just Sentences for Youth:
International Human Rights Law”)
http://www.hrw.org/en/node/11578/section/14 (“Appendix D: State Population Data
Table”)
GOOD LUCK!
7
You are permitted, but are not required, to review the article The Rest of Their Lives in its entirety.
However, you may only cite the enumerated sections in your brief.
31
THE MOOT COURT HONOR SOCIETY
TEMPLE UNIVERSITY JAMES E. BEASLEY SCHOOL OF LAW
HONOR CODE DOCUMENT
The 2009 Polsky Competition is subject to the Temple University James E.
Beasley School of Law Code of Student Conduct and Disciplinary Procedures, contained
in the Wise Guide at Appendix I. Competitors may not discuss the Polsky Problem with
other competitors during the two-week brief writing period. In addition, competitors may
not seek or obtain any review of written or oral work by attorneys, paralegals, judges,
non-competing law students, faculty members, or any others similar person during the
competition. Competitors may practice and discuss the Polsky Problem with other
competitors during the oral argument portion of the competition. Plagiarism is a
violation of the Honor Code and will not be tolerated. Failure to abide by the Honor
Code and Polsky Competition rules will result in disqualification and possible
disciplinary action.
32
THE MOOT COURT HONOR SOCIETY
TEMPLE UNIVERSITY JAMES E. BEASLEY SCHOOL OF LAW
TRANSCRIPT RELEASE FORM
I,
, authorize the Moot Court Honor Society
Polsky Committee to obtain a copy of my law school transcript from the Registrar at
Temple University Beasley School of Law to determine if I am in good academic
standing and eligible for selection in the Moot Court Honor Society.
Signature
33