IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2011
No. 01-2319
J.M,
PETITIONER
v.
STATE,
RESPONDENT
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
BRIEF FOR THE PETITIONER
TABLE OF CONTENTS
QUESTION PRESENTED ……………………………………………………………………….1
CONSTITUTIONAL PROVISION ………………………………………………………………2
STATUTORY PROVISION……………………………………………………………………...2
JOINT STIPULATED FACTS …………………………………………………………………...3
ARGUMENT ……………………………………………………………………………...….….7
I.
Juvenile life in prison without the possibility of parole (JLWOP) for felony
murder is unusual because it does not align with national and international
standards..…………………………………………………………………………….7
A. JLWOP for felony murder does not align with national standards..................7
B. JLWOP for felony murder does not align with international standards.........8
II.
JLWOP for felony murder is cruel because it is disproportionate to culpability
and does not further legitimate penological purposes....…….………………….....9
A. JLWOP is disproportionate to culpability for juveniles who commit
felony murder……………………..………………………….......………………9
i. The categorical ban on JLWOP for non-homicides in Graham v. Florida
extends to felony murder because felony murder does not require intent
to kill….........................................................................................................….9
ii. Juveniles are less mentally developed than adults, making them less
culpable for their crimes…….…………………………………..…………10
B. JLWOP for felony murder does not serve the purposes of punishment …...11
III.
Even if there is no categorical ban on JLWOP for felony murder, it would be a
cruel and unusual punishment for J.M...…………………………………….……13
IV.
Conclusion…………………………………………………………………………..15
APPENDIX I—CASE SUMMARIES…………………………………………………………..16
APPENDIX II—TESTIMONIES ……………………..………………………………..……….18
Testimony by Marc, Brother of J.M. ……………………………………………………18
Testimony by Dr. Stuart Green, PhD in Psychology ……………………………...…….20
Testimony by Sara, Classmate of J.M…………………………………………………...23
APPENDIX III—VICTIM IMPACT STATEMENT BY KATHERINE MILLER …….……...24
APPENDIX IV—STATISTICS………………………………………...………………...……..25
QUESTIONS PRESENTED
I.
Does life without the possibility of parole violates the Eighth Amendment’s ban on
cruel and unusual punishment for juveniles under the age of eighteen who commit
felony murder?
II.
If there is no categorical ban on juvenile life without the possibility of parole for
felony murder, is JLWOP a cruel and unusual punishment for this petitioner?
1
CONSTITUTIONAL PROVISION
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted. U.S. Const. amend. VIII.
STATUTORY PROVISIONS
State Stat. § 790.115 (2011)
A person shall not possess any firearm . . . except as authorized in support of school-sanctioned
activities, at a school-sponsored event or on the property of any school, school bus, or school bus
stop . . . A person who willfully and knowingly possesses any firearm in violation of this
subsection commits a felony of the third degree.
State Stat. § 782.04 (2011)
The unlawful killing of a human being . . . when committed by a person engaged in the
perpetration of, or in the attempt to perpetrate . . . resisting an officer with violence to his or her
person . . . is murder in the first degree and punishable by a term of years not exceeding life.
State Stat. § 985.56 (2011)
A child of any age who is charged with a violation of state law punishable by death or by life
imprisonment is subject to the jurisdiction of the court . . . and the child must be tried and
handled in every respect as an adult.
2
JOINT STIPULATED FACTS
When J.M. was sixteen, he moved to the United States. One month later, on August 27,
2010, he started his junior year of high school at Middleton High. J.M. spent fourth period in
English Language Learner (ELL) classes, but because he struggled to learn English, he had a
hard time fitting in with the other students. Ben, a senior, thought it would be funny to trick J.M.
and told him that it would be a great compliment to tell a girl, “I have a communicable disease
and it’s contagious.” Although J.M. did not fall for the trick, he became extremely angry that the
other students treated him badly and would not accept him.
J.M. had a history of getting into physical and verbal fights, and had once told his teacher
“Screw you” after she told him that he had to stay for lunch detention. Given J.M.’s trouble
fitting in and expressing himself in English, Middleton High was especially difficult. J.M. got in
fights with various students and reacted aggressively even when people were not intentionally
mean to him. During one incident, he went into a rage and cussed out another student in his
native language. When the other students laughed at him for not being able to insult someone in
English, J.M. grew even angrier and got into a fist fight.
J.M lived with his older brother Marc, who is twenty-six. Although teachers and
administrators sent notes home with J.M., Marc had a hard time enforcing rules and punishments
for bad behavior. When Marc asked what was going on in school, J.M. told him, “I don’t feel
respected by the other students. I wish I knew how to get them to respect me.” Marc continued
to worry when he found alcohol in J.M.’s room while he was cleaning, but he decided not to say
anything to avoid an argument.
Because she was concerned that J.M. did not have any close friends and seemed alienated
from his classmates, Mrs. Wilson, J.M.’s English teacher, suggested that he make an
3
appointment with the school’s Peer Mentors. The Peer Mentors were other students who
volunteered to help struggling students resolve problems constructively and creatively. J.M. went
to the office to make an appointment, but the counselors were backlogged due to a huge riot that
occurred in the cafeteria on October 15. Twenty students had been suspended for fighting. After
returning to school, they had been directed to complete five appointments with the Peer Mentors
program before they would be allowed to participate in any after-school activities, including
prom. Because of the backlog, J.M.’s appointment was not until December 3.
As the bullying continued, J.M. felt desperate and confused. He wanted to earn his peers’
respect, but getting into fights did not seem to help. On the morning of November 1, he broke
into his brother’s safe and stole the gun that Marc kept there for protection. J.M. wore a large
coat to school that day so that no one could tell he had the gun with him. On his way into school,
J.M. saw Mrs. Wilson unloading materials for class from the trunk of her car, so he offered to
help her bring them into the classroom. Because he was with a teacher, J.M. was permitted to
enter through a side entrance to the school and avoid the metal detectors.
During lunch, as J.M. walked into the cafeteria, one of the seniors shouted out, “Hey
foreigner! Why don’t you go back to your homeland already!” For J.M., this insult was the last
straw. He took out the gun and pointed it at the student, intending to scare him. As the other
students saw what was happening, many screamed and took cover under tables. In the chaos,
J.M. panicked and started to run from the scene, but he was tackled by Officer Warren, who was
a police officer stationed at Middleton High. To get away, J.M. elbowed the officer in the ribs
and punched him in the face, breaking his nose. Although Officer Warren was eventually able to
subdue him, during the scuffle J.M.’s gun fired twice and hit Renee, a freshman girl. Renee died
from gunshot wounds on the way to the hospital.
4
Following the shooting, the community where J.M. lived was up in arms. People wrote
stories in the newspapers and held protests insisting the school district take measures to improve
school safety and protect the children. State Representative John Weber introduced the “School
Safety Act of 2011” in the state legislature to increase mandatory sentencing for any person who
attempted to bring a weapon on school property. School superintendent Rachel Johnson held a
press conference and said, “What has happened is a huge tragedy that has opened all of our eyes.
Our schools must do a better job of identifying troubled youth, and we must enforce tough laws
to deter students from bringing or using weapons in the vicinity of any school.” When J.M.’s
trial began, it was closely watched by the entire community.
At trial, J.M. was charged with possession of a weapon in the proximity of a school (a
third degree felony), violently resisting a police officer (a first degree felony), and felony
murder. He was tried in an adult court, pursuant to state law that requires the prosecutor to try a
juvenile charged with an offense carrying a life sentence as an adult. During the trial, evidence
was presented that J.M. had come to the United States after his parents were killed during intense
ethnic tensions and violence in his home country. After his parents’ death, J.M. lived with his
uncle for a short time. J.M.’s uncle was extremely abusive and often hit his wife and children.
J.M. once saw his uncle hit his cousin until she became unconscious, and J.M. had to get a taxi to
help her get to the hospital. Finally, J.M. had written to his brother in the United States, who had
helped him obtain a visa to come and live with him. A psychologist testified that J.M.’s troubled
past explained his violent outbursts and behavioral problems in school, and that the abrupt
transition to the United States right before the school year began had also been very challenging.
Sara, J.M.’s classmate, also testified that she overheard J.M. saying that life would be
better if he could really teach a lesson to the students who gave him a hard time. Sara said she
5
felt frightened once when J.M. had gotten a question wrong in math class and then sat in the back
of the classroom fuming and repeatedly stabbing his pencil into the desk. Sara said that she often
felt uncomfortable around J.M., because he always seemed ready to burst into a fit of anger.
At the end of the trial, the prosecutor gave a closing statement to the jury arguing that,
while his past was sad, J.M. was a young man who only understood how to solve problems with
violence, and he would be a danger as long as he was in mainstream society. After two days of
deliberation, the jury sentenced J.M. to life in prison without the possibility of parole. The State
Supreme Court affirmed. J.M. appealed this decision to the U.S. Supreme Court, arguing that
the Eighth Amendment forbids life in prison without the possibility of parole for juveniles who
commit felony murder because it is a cruel and unusual punishment.
6
ARGUMENT
Juvenile life in prison without the possibility of parole (JLWOP) for felony murder
violates the Eighth Amendment’s prohibition on cruel and unusual punishment because 1) it does
not align with national and international standards for juvenile punishment; and 2) it is
disproportionate to culpability and legitimate penological goals.1 Finally, even if there is no
categorical ban on JLWOP, the punishment is disproportionate to this crime and this petitioner.2
I.
Juvenile life in prison without the possibility of parole for felony murder is
unusual because it does not align with national and international standards.
A. JLWOP for felony murder does not align with national standards.
To determine whether a punishment is unusual, the court uses an “evolving standard of
decency” test to decide whether society today would accept the punishment as legitimate.3
Society’s standards can be objectively determined by the laws of various states or the decisions
that juries make when confronted with a certain set of facts.4 Since JLWOP is declining in both
use and acceptance as punishment for felony murder, it is no longer deemed appropriate by
society and should not continue as a form of punishment.5
In Roper v. Simmons, the Supreme Court invalidated the death penalty for juveniles
because it was prohibited in sixty percent of the states, and only three of the states that allowed it
had sentenced a juvenile to death in the preceding ten years.6 In Graham v. Florida, the court
found a consensus against JLWOP for non-homicide crimes because even though thirty-seven
states, Washington, DC, and the federal government allowed the punishment, only eleven states
1
See Graham v. Florida, 130 S. Ct. 2011 (2010); Roper v. Simmons, 543 U.S. 551 (2005); Thompson v. Oklahoma,
487 U.S. 815 (1988).
2
See Weems v. United States, 217 U.S. 349, 367 (1910).
3
Trop v. Dulles, 356 U.S. 86, 101 (1958).
4
Atkins v. Virginia, 536 U.S. 304, 312 (2002).
5
See Statistics about JLWOP, Record at 25.
6
543 U.S. at 565.
7
actually enforced it and only 123 juveniles in the country were serving life sentences for nonhomicide offenses.7 Most importantly, the Court noted a clear trend towards its abolishment.8
These cases show a natural progression towards more humane punishments for juveniles,
which now requires the Court to ban JLWOP for felony murder. Since 2005, four states have
abolished JLWOP for any crime.9 Currently, only six states allow JLWOP for felony murder
where the death was unintentional.10 Juries are also hesitant to impose JLWOP for felony
murder, as approximately seventy-five percent of juveniles serving the sentence committed first
degree murder.11 The decline in use and the hesitancy of juries to impose JLWOP for felony
murder proves that JLWOP is out of touch with today’s standards of decency. As such, the
Eighth Amendment requires the court to ban JLWOP for felony murder.
B. JLWOP for felony murder does not align with international norms.
In Roper, the Court relied on evidence that the United States was the only country in the
world that allowed the death penalty for juveniles to reach its conclusion that the juvenile death
penalty violated the Eighth Amendment.12 The international community has also established a
consensus against JLWOP. The United States and Somalia are the only two countries in the
world that have not signed the Convention on the Rights of the Child, which states that JLWOP
violates international human rights norms.13 The United States is the only country in the world
that has anyone serving JLWOP.14 Just as in Roper, the United States’ departure from
7
130 S. Ct. at 2024.
Id.
9
Statistics about JLWOP, Record at 25.
10
A comprehensive study of state laws as of 2011 has not been performed in a published report. This number is
based on a review of state legislation by the Juvenile Law Center. See Statistics about JLWOP, Record at 25.
11
Id.
12
543 U.S. at 577.
13
Statistics about JLWOP, Record at 25.
14
Id.
8
8
international standards violates the “evolving sense of decency” of today’s global community,
making it cruel and unusual under the Eighth Amendment.
II.
JLWOP for felony murder is cruel because it is disproportionate to culpability
and does not further legitimate penological purposes.
In addition to evidence of consensus, the Court exercises its independent judgment to
determine if the punishment is cruel and unusual.15 To do this, it considers the offender’s
culpability and whether the punishment furthers legitimate penological purposes.16
A. JLWOP is disproportionate to culpability for juveniles who commit felony
murder.
Because felony murder does not require intent to kill, all persons who commit felony
murder are less criminally responsible for their actions.17 When the offender is a juvenile, he is
even less culpable because juveniles are psychologically and neurologically less developed than
adults.18 This reduced culpability makes JLWOP a disproportionate punishment for felony
murder.
i. The categorical ban on JLWOP for non-homicides in Graham extends to
felony murder because felony murder does not require intent to kill.
Graham determined that juveniles who “do not kill, intend to kill, or foresee that a life
will be taken are categorically less deserving of the most serious forms of punishment.”19 This
reasoning applies to felony murder because, unlike first-degree murder, felony murder does not
require the offender to “intend to kill” the victim, or potentially even cause the victim harm.20
Those who commit felony murder are therefore categorically less culpable than those who intend
to kill.
15
See Graham, 130 S. Ct. at 2023.
Id.
17
Id. at 2027.
18
See Graham, 130 S. Ct. at 2026; Roper, 543 U.S. at 569-70; Thompson, 485 U.S. at 834.
19
130 S. Ct. at 2027.
20
Id.
16
9
J.M. never intended to kill anyone and has expressed remorse to his brother for the
victim’s death.21 J.M. is exactly the person that Graham envisions because he is categorically
less culpable for his crime than an adult or juvenile who intentionally murders another human
being. To align with Graham, the Supreme Court should clarify that felony murder lies within
this reasoning and that JLWOP is prohibited for juveniles who commit felony murder.
ii. Juveniles are mentally less developed than adults, making them less
culpable for their crimes.
Not only is felony murder a less serious offense than first degree murder, all juveniles
have reduced culpability for their crimes because they are less psychologically and
neurologically developed than adults.22 This essential difference makes juveniles less culpable
for their crimes and makes JLWOP a disproportionate and cruel punishment for juveniles that
commit felony murder.
In Thompson v. Oklahoma and Roper, the juvenile offenders participated in brutal
murders.23 In Graham, the petitioner was a sixteen year old repeat offender who was involved in
multiple armed robberies.24 Despite the reprehensible crimes they committed, the Supreme Court
recognized in all of these cases that juveniles are less psychologically developed than adults,
making them more impulsive and less able to rationally consider the long-term consequences of
their actions.25 Because Americans understand these differences, juveniles are not allowed to
drive until a certain age, vote until they are eighteen, or buy alcohol until they are twenty-one.26
Juveniles are also more vulnerable to outside influences and peer pressure, and may act in ways
21
Testimony by Marc, Record at 18.
See Graham, 130 S. Ct. at 2026; Roper, 543 U.S. at 573-74; Thompson, 487 U.S. at 835.
23
See Roper, 543 U.S. at 556; Thompson, 485 U.S. at 819.
24
130 S. Ct. at 2018.
25
See Graham, 130 S. Ct. at 2026; Roper, 543 U.S. at 569-70; Thompson, 485 U.S. at 834.
26
See Thompson, 485 U.S. at 836-37.
22
10
that are inconsistent with the character they will develop as adults.27 Accordingly, psychologists
do not diagnose individuals with anti-social behavior, meaning that the individuals are incapable
of rehabilitation, until after age eighteen.28 Relying upon this evidence, the Supreme Court has
found that the Eighth Amendment requires a categorical ban on the death penalty and LWOP for
non-homicide crimes committed by juvenile offenders.29
In addition to psychological development, juveniles should be treated differently than
adults because their brains are less fully formed. Neurologists have concluded that juveniles have
extremely active amygdalas that cause them to be hyper-emotional and prone to rash decisions.30
During the transition to adulthood, the amygdala tends to stabilize at the same time the prefrontal cortex, which controls rational thought processes and decision making, becomes more
active.31 Because they are still developing neurologically, juveniles cannot be considered fully
culpable for the crimes they commit and should not be held to the same standard as adults.32
J.M. is a developing juvenile who made an unwise choice while struggling to adjust to a
new high school. When he brought a gun to school, J.M. was not able to understand that
circumstances could escalate beyond what he envisioned, and he did not have the adult maturity
to consider all the possible outcomes of his initial action. Further, although he was unable to get
a timely appointment, J.M. did show maturity by seeking help from the Peer Mentoring program.
As he develops into an adult, J.M.’s rationality will develop further. If he is not given the
possibility of parole, J.M. will be denied the opportunity to develop his character in a more
positive way.
27
Testimony by Dr. Stuart Greene, Record at 20.
Roper, 543 U.S. at 573.
29
See Graham, 130 S. Ct. at 2018-19; Roper, 543 U.S. at 578; Thompson, 485 U.S. at 839.
30
Testimony by Dr. Stuart Greene, Record at 20.
31
Id.
32
Id.
28
11
B. JLWOP for felony murder does not serve the purposes of
punishment.
For a punishment to be fair, it must serve one of the established purposes of punishment:
retribution, rehabilitation, incapacitation, or deterrence.33 Since JLWOP for felony murder
convictions does not adequately serve any of these purposes, it is a disproportionate punishment
for juveniles.34
Retribution exacts a punishment that fits the severity of the crime. In Roper, the Court
found that “the case for retribution is not as strong with a minor as with an adult.”35 Graham
agreed that retribution does not justify JLWOP for those who do not commit homicides.36 It also
noted that LWOP is an especially severe punishment for juveniles because juveniles will live
longer and spend a larger portion of their lives in jail than convicted adults.37
Roper and Graham also concur that deterrence is a weak justification for impulsive
juveniles, especially for sentences like JLWOP that are rarely imposed.38 Similarly,
incapacitation that denies any possibility of rehabilitation is not justified for juveniles because
their character is not fully formed and it is impossible to predict their future behavior.39 Applying
this reasoning, retribution is not legitimate for felony murder because those who do not intend to
kill have reduced culpability.
In terms of rehabilitation, which is the primary goal for juvenile offenders, locking
someone up for his entire life for a crime without the possibility of ever getting out precludes any
possibility of rehabilitation and successful reintegration into society. The purpose of
rehabilitation would be frustrated if J.M. spent the next eighty or ninety years in prison for a rash
33
Graham, 130 S. Ct. at 2028-30.
Id.
35
543 U.S. at 571.
36
130 S. Ct. at 2028.
37
Id. at 2028-30.
38
Graham, 130 S. Ct. at 2028-29; Roper, 543 U.S. at 571.
39
Graham, 130 S. Ct. at 2029; Roper, 543 U.S. at 572.
34
12
decision he made as a teenager. Even if he shows growth and maturity, J.M. will face perpetual
punishment for a death that he never intended to cause.
Admittedly, the goal of incapacitation may be met, but at a great cost. It is not in
society’s best interest to incapacitate someone like J.M. who is young and shows the potential to
achieve if given more support. Further, it is impossible to deter felony murder because it is a
strict liability crime in which the offender never intended to kill. For juveniles, the potential for
deterrence is even more unlikely.
III.
Even if there is no categorical ban on JLWOP for felony murder, it would be a
cruel and unusual punishment for J.M.
Even if the Court were to determine that some juveniles are as culpable as adults and that
there is no nationwide consensus against JLWOP, J.M. is not a juvenile who deserves this harsh
punishment. In sentencing any criminal offender, a court must consider the totality of the
circumstances and look at both aggravating and mitigating factors.40 Considering these factors, a
punishment is cruel and unusual if it is not “graduated and proportioned to the offense.”41
In Weems v. U.S., the petitioner was sentenced to fifteen years in prison, was not allowed
to vote for the rest of his life, and was put under lifelong surveillance for falsifying documents. 42
Reviewing this punishment in comparison to the crime, the Supreme Court found that the
sentence was disproportionate to his crime and therefore prohibited by the Eighth Amendment.43
As in Weems, it is disproportionate to sentence J.M. to JLWOP for a death he never
intended to cause. As a sixteen year-old, J.M. is simply a confused, frightened boy trying to
adjust to a new culture, language, and community. High school is difficult for all teenagers, and
it is common for teens to lash out due to angst and confusion. For J.M., his recent transition to
40
Roper, 543 U.S. at 568.
Weems v. U.S., 217 U.S. 349, 267 (1910).
42
Id. at 357.
43
Id. at 359.
41
13
the United States exacerbated this difficulty because he was not able to deal with his adjustments
in peace; instead, he was targeted by bullies who were also not emotionally mature enough to
comprehend the damage they were causing by constantly harassing him. When J.M. came to
school with a gun, he was frustrated, confused, and only intended to use it to protect himself
from bullies or to scare them. While this was irresponsible, he never intended to kill anyone.
Not only was J.M. a target for bullies at school, he had a difficult home life where he was
denied the support, love, and guidance that all children deserve and require. As a young boy,
J.M. witnessed atrocities in his home country, including the loss of his own parents. Instead of
receiving proper psychological support and counseling, J.M. was placed into a dysfunctional
home where he witnessed his family members being abused and mistreated. When J.M. arrived
in the United States, he finally had the love of his brother, but still lacked strong guidance and
support. While Marc certainly wanted the best for J.M., he was an inexperienced and illequipped guardian who did not intervene or know how to appropriately respond when teachers
sent home notes or when he found alcohol in J.M.’s room. Without the guidance of a parent to
help make good decisions, J.M. was extremely disadvantaged in comparison to his peers.
Even with all these disadvantages, J.M. knew he needed outside help. The school system
failed J.M. by denying him an appointment for weeks, even though he needed immediate help.
While a more mature adult may have been able to wait a few weeks or a month without
counseling, this time seemed like an eternity to J.M. Lacking maturity, the support of parents, or
the advice of a professional, J.M. took matters into his own hands and made a tragic mistake by
bringing a weapon to school. Unlike an adult offender who has already been given ample time to
develop his or her character, J.M. is a child who tried to get help, but was unable to find it.
14
J.M. committed felony murder, but did not intend for anyone to die. His crime is not the
most reprehensible in society, and although his actions unintentionally led to a tragedy, if he is
denied the opportunity to be rehabilitated and to learn and recover from his mistake, his will be
the second life lost as a result of this tragedy. Imposing a life sentence on a boy who did not
intend to kill, who was transitioning to a new school and country, and who was denied timely
help when he reached out to his peers, contradicts Weems’ direction that punishments must be
proportional to the offense committed. Therefore, it would violate the Eighth Amendment to
sentence J.M. to JLWOP.
IV.
Conclusion
JLWOP is reserved for the most severe crimes committed by the most hardened offenders
that the criminal justice system determines are incapable of being productive members of
society. By definition, juveniles can never meet this definition because they are not fully
developed and can still be rehabilitated. Because of the lack of intent associated with felony
murder, a national and international consensus against JLWOP for felony murder has emerged.
Even if a court does not find that a categorical ban is warranted, J.M. is neither one of the most
severe offenders in society nor incapable of rehabilitation, and therefore, it is a violation of the
Eighth Amendment’s prohibition on cruel and unusual punishment to sentence him to life in
prison without the possibility of parole. To align with the demands of the Eighth Amendment,
this Court must reverse the ruling of the lower court and remand this case for a new sentencing
hearing.
15
APPENDIX I: CASE SUMMARIES
Graham v. Florida, 130 S. Ct. 2011 (2010)
When Terrance Graham was sixteen, he was involved in an armed burglary. Since it was his
first offense, he agreed to a plea bargain and was sentenced to three years of parole, with the first
year in the county jail. Six months after he was released, Graham participated in a home invasion
robbery with two twenty-year olds. He and his accomplices knocked on the door of a home, forced
their way in, and held a pistol to the chest of the man who opened the door. After searching for
money, the three barricaded the man and his friend into a closet and left. Later in the evening, they
attempted a second robbery. After separating from the other two, one of whom had been injured,
Graham was caught and arrested by the police, and sentenced to life in prison without parole.
The Supreme Court considered whether life in prison without parole was cruel and unusual
for juveniles who had not killed. The Court relied on psychological evidence that teenagers have a
harder time resisting their impulses than adults, and neurological evidence that teenagers have less
developed brains. It also noted that life without parole does not further deterrence, retribution, or
rehabilitation. Looking to the states, the majority recognized that although most states allow JLWOP,
only eleven states actually enforced the law and only 123 juveniles in the country were serving life
sentences for non-homicide crimes. This data was enough for the Supreme Court to find a national
consensus against JLWOP for non-homicide crimes. Using this consensus, psychological evidence,
and the lack of penological justifications for the punishment, the Supreme Court decided that JLWOP
was a cruel and unusual punishment for non-homicide crimes, in violation of the Eighth Amendment.
Roper v. Simmons, 125 S.Ct. 1183 (2005)
When Christopher Simmons was seventeen, he told his friends he wanted to murder
someone. He talked about his plan with his two teenage friends and told them that because of their
age, they could “get away with it.” On the night of the murder, they met at about 2 a.m., and broke
into the victim’s home. Simmons and his friend drove the victim to a state park, and threw her over a
bridge, where she drowned. Later, Simmons bragged to friend that he had killed a woman “because
[she] seen my face.” The next day, he was arrested, confessed, and was sentenced to death.
The Court considered whether “evolving standards of decency” made it cruel and unusual to
sentence a juvenile under the age of eighteen to death. The Court noted that much had changed since
it upheld the death penalty for sixteen year olds in 1989, and that its recent decision in Atkins
demonstrated a change in opinion about the death penalty. It noted that like in Atkins, the death
penalty is prohibited for juveniles in 30 states, and that those who still technically have it on the
books use it infrequently. Furthermore, it found that juveniles under eighteen have “an
underdeveloped sense of responsibility” which results in “impetuous and ill-considered actions” and
that the death penalty does not seem to be much of a deterrent. Looking to international standards,
“the United States now stands alone in a world that has turned its face against the juvenile death
penalty.” Because of this, the Court found that the Eighth Amendment prohibits the death penalty for
anyone under the age of eighteen.
Atkins v. Virginia, 536 U.S. 304 (2002)
Around midnight on August 16, 1996, Daryl Atkins and William Jones abducted Eric
Nesbitt, robbed him of the money on his person, drove him to an ATM to withdraw more cash, and
took him to an isolated location where they shot him eight times and killed him. In the penalty phase
16
of the trial, the defense relied on testimony by Dr. Evan Nelson, a forensic psychologist who had
evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” Despite this,
Atkins was convicted of abduction, armed robbery, and murder, and sentenced to death.
The Court considered whether it was cruel and unusual under the Eighth Amendment to
sentence a mentally retarded offender to the death penalty using the “evolving standards of decency”
test. The majority found that although mental deficiencies do not mean that an offender should be
exempt from criminal penalties, they do diminish personal culpability. Specifically, mentallyhandicapped individuals have “disabilities in areas of reasoning, judgment, and control of their
impulses” which makes them less able to understand their actions. As such, the Court concluded that
sentencing a mentally-retarded offender to death is excessive and violates the Eight Amendment.
Thompson v. Oklahoma, 487 U.S. 815 (1988)
With three older persons, Thompson, age 15, actively participated in his former brother-inlaw’s murder. The victim’s injuries included two gun shots, cuts to his throat, chest, and abdomen,
multiple bruises, and a broken leg. His body had been chained to a concrete block and thrown into a
river where it remained for almost four weeks. Each of the four participants was tried separately and
sentenced to death.
The Supreme Court considered whether the execution of offenders under 16 was cruel and
unusual under the Eighth Amendment. It focused on the ages at which different states allow the death
penalty; how willing juries were to impose the death penalty on juveniles; and opinions of other
nations. 18 of the 37 states that allowed the death penalty required the defendant to be at least 16,
which amounted to a national consensus against imposing the death penalty for offenders under 16.
Additionally, the Court noticed the infrequency with which juries sentenced offenders under 16 to the
death penalty, and that a substantial number of foreign countries expressly prohibited the death
penalty for juveniles. Using this reasoning, the Court held that executing a 15-year old offender was
unconstitutional because it was contrary to “evolving standards of decency that mark the progress of
a maturing society.”
Trop v. Dulles, 356 U.S. 86, 101 (1958)
Trop was a soldier in the U.S. military during World War II. After he deserted the army and
was dishonorably discharged, the U.S. took his citizenship away. Despite a history of revoking
citizenship rights of deserters, the Court noted that the “words of the [Eighth] Amendment are not
precise and their scope is not static.” It determined that whenever it considered challenges under the
Eighth Amendment, the Court should “draw its meaning from the evolving standards of decency that
mark the progress of a maturing society.” Applying this standard, it found that stripping citizenship
for desertion was a violation of the Eighth Amendment.
Weems v. United States, 217 U.S. 349 (1910)
In Weems, a petitioner was convicted of falsifying a public document during his tenure in the
disbursement office in the Philippines. The petitioner was sentenced to 15 years in prison, civil
interdiction, surveillance during his life, and perpetual absolute disqualification from activities
including the deprivation of office and the right to vote, acquire honors, and retirement pay. The
petitioner argued this sentence was cruel and unusual under the Philippine Bill of Rights taken from
the Eighth Amendment of the U.S. Constitution. The Supreme Court agreed the punishment was
improper because it was not proportionate to his offense, and so, was cruel and unusual.
17
APPENDIX II: TESTIMONIES
Testimony by Marc, Brother of J.M.
Examination by Petitioner
Attorney: What is your relationship with J.M.?
Marc: He is my little brother. I have been his legal guardian since July 2010 when he moved to the
United States after our parents died.
Attorney: Can you tell me a little bit about what it was like to raise J.M. for the time he lived
with you?
Marc: I mean, I’ve never raised a kid before, so it was hard. J.M. was also going through a lot after
our parents’ deaths. He had a tough time living with our relatives afterwards, and then trying to
adjust to life in a new place. But, we had a lot of good times while he lived with me. One night in
October, he told me that he hoped to open a restaurant one day, and was asking me about the steps he
would need to do that. We talked about college, the SATs, all of those things. J.M. really wanted to
do the right thing—he has dreams and goals, like anyone else. Those moments, when I saw his
potential and when he came to me for advice, were really encouraging. I think if we had more time, I
would have learned to be a better guardian, and he would have kept growing up and learning to be a
good and ambitious kid.
Attorney: Do you believe that J.M. is sorry for what happened?
Marc: God, yes. We spoke about it a few days after he was arrested when I came to visit him. He was
devastated. It’s like, I know he knew carrying a gun is dangerous, but it was like he wasn’t even
thinking about any of those things. He was frustrated and angry that day, and acted without even
realizing what he was doing. I think J.M. is a little shell-shocked by what’s happened—I know he
regrets it. When I visited him in prison, he told me how he keeps thinking about the girl who died
and how he would do anything to change what happened so she would still be alive. What happened
is a tragedy, but J.M. was a good kid. He got in some trouble in school, but he had NEVER
18
committed a crime before. Now that he understands the consequences of his actions, and sees how
much he has hurt his school, his teachers, his friends, and, mostly, that girl’s family, I know he
wouldn’t ever go near a weapon again. What happened was horrible, but it changed him. I hope he
gets a chance to prove he’s changed.
Cross-Examination by Respondent
Attorney: How long were you J.M.’s guardian before he killed the student?
Marc: Well, it was only four months, but we lived together in our home country until I moved to the
U.S. for work when he was 14. And even in the two years that we didn’t live together, we talked on
the phone regularly, and saw each other at least once a year.
Attorney: Do you really believe you are the best judge of his character, considering you lived in
different countries for two years before he moved in with you?
Marc: I know our living situation was complicated, but yes. He’s my brother. Even when we weren’t
living close to each other, I spoke with him, our parents, and our other relatives all the time. I’ve
always known what he was up to and what was going on in his life. Even if it seems hard for you to
believe, he’s a good kid, even though he screwed up.
Attorney: What did J.M. say to you about the notes from the school and whether he fit in?
He said he didn’t feel respected by the other students and he wished he knew how to get them to
respect him.
19
Testimony by Dr. Stuart Greene, PhD in Psychology44
Examination by Petitioner
Attorney: Is it fair to hold juveniles to the same standards as adults for their crimes,
considering their psychological development?
Dr. Greene: Essentially, no. In my experience in practice and based on psychological research, we
know that juveniles are more likely than adults to engage in risky or criminal behavior. Kids have
difficulty considering the long-term consequences of their actions, and focus heavily on short-term
benefits. For example, cheating on a test could lead to long-term consequences like a failing grade, or
even expulsion. Many teenagers do cheat on tests though, because the short-term benefit, getting the
right answer on the paper, seems more important at the time.
Attorney: Does your experience as a psychologist and your knowledge of that field match up
with current research about brain development?
Dr. Greene: Yes. The brain’s emotion center, the amygdala, controls impulsive behavior and negative
emotions. The amygdala is more active in juvenile brains’ than in the average adult, making
impulsive decisions more likely. Contrastingly, the pre-frontal cortex governs emotional processes,
decision-making, impulse control, risk assessment, and evaluation of consequences. Brain research
shows that the prefrontal cortex is one of the last regions in the brain to mature, and it continues
developing during and after adolescence.
Attorney: How does incomplete psychological and brain development affect juveniles’
responses to negative influences and peer pressure?
Dr. Greene: Juveniles are easy to influence. Even without direct peer pressure, juveniles often act in a
way that they believe will win them approval, or help them avoid rejection.
44
Non-party brief submitted by the Wisconsin Psychiatric Association and Wisconsin Psychological Association
was relied upon in drafting this testimony. State v. Ninham, 2010 WL 5398830 (Wis.) (App. Brief) (2010).
20
Attorney: Do you believe that LWOP is an effective deterrence to prevent juvenile crime?
Dr. Greene: No. Based on the active amygdala, underdeveloped pre-frontal cortex, psychological
studies, and my own experience in practice, juveniles are just too impulsive to fully consider the
long-term consequences of their actions. Most juveniles are simply incapable of comprehending what
it means to be put in prison for their entire lives and will not reconsider their actions based on a
consequence that seems so remote.
Attorney: At what age do you believe it is fair to draw the line between juvenile and adult for
life in prison without the possibility of parole?
Dr. Greene: Obviously, each individual develops at different rates, but psychological and
neurological schools of thought say eighteen, and I agree. Psychologists have determined that it is not
scientifically sound to diagnose someone with “anti-social behavior,” basically indicating that they
are beyond reform, until after the age of eighteen. Until this can be accurately diagnosed, it would be
inappropriate to allow an individual to be placed in jail forever.
Attorney: What is your opinion about J.M.’s development?
In my professional opinion, J.M. is still developing psychologically and neurologically based on his
age and his behavior. At sixteen, most people are not fully developed. J.M.’s behavior at school and
home and his life experiences indicate a young man who is still learning who he is and how to cope
in the world. His history of getting into fights and his challenges at Middleton High can likely be
attributed to his past, including his parents’ deaths and the abuse he witnessed in his uncle’s home.
These experiences, coupled with adjusting to a new school and new culture, would be incredibly
challenging for anyone, but particularly for a teenager who has not reached full psychological
maturity or neurological development. It is extremely unlikely that J.M. is fully psychologically or
neurologically developed. Because of that, J.M. has less capacity for reasoned judgment and is more
likely to make impulsive decisions. However, this does not indicate that as an adult, he would be
equally prone to rash decisions.
21
Cross-Examination by Respondent
Attorney: Did you have the opportunity to examine J.M.?
Dr. Greene: No, but I did read his case file, and have had many clients who are his age.
Attorney: In addition to your psychology degree, are you also a neurologist?
Dr. Greene: No, but in many ways neurological evidence informs or even overlaps with
psychological evidence. In my practice every day, I rely on neurological studies to best diagnose and
treat my patients.
22
Testimony by Sara, Classmate of J.M.
Examination by Respondent
Attorney: What is your relationship with J.M.?
Sara: We both go to Middleton High and were in the same math and English classes. I met him on
the first day of 11th grade, which was his first day of school at Middleton.
Attorney: How well would you say that you know J.M.? Do you consider him a friend?
Sara: No, we weren’t friends because he isn’t the kind of person that I normally hang out with. I did
have class with him for two periods everyday though, so I spent a decent amount of time around him.
I think I am a good judge of character, and I never got a good impression from him.
Attorney: What is your opinion about J.M.?
Sara: He kind of scared me. He always seemed angry and about to burst. In math, I sat right next to
him. I think he had trouble following what was going on in class because he didn’t really speak
English well, and then he would get the answer wrong if the teacher called on him. One time, when
he got a question wrong, he just sat there, stabbing a pencil into his desk and it freaked me out.
Someone teased him about never knowing the answers, and I heard him whisper that one day he
would teach that kid a lesson he wouldn’t forget. I don’t know what that meant, but it made me really
uncomfortable. I’m still pretty shocked by what happened, but if I had to think of anyone that would
snap and bring a gun to school, it would probably be him.
Cross-Examination by Petitioner
Attorney: Did J.M. ever personally threaten you?
Sara: Well, no, I guess not. Sometimes I even felt kind of bad for him. He didn’t really have any
friends, and some of the boys were pretty mean to him. But still, if he had just reacted more calmly, I
bet people would have left him alone. Getting into fights and getting so mad all the time just put him
in a worse situation.
23
APPENDIX III: VICTIM IMPACT STATEMENT BY KATHERINE MILLER
My name is Katherine Miller. My daughter was shot by J.M. on November 1, 2010 and she
died on the way to the hospital. I understand all the psychological evidence and am sympathetic to
the difficult life that J.M. led. However, his poor life decisions are the reason I will never see my
daughter again.
Renee was just starting high school in Fall, 2010. She made the J.V. soccer team and made
the honor roll during the first advisory. If she had a chance, I know she would have graduated high
school, gotten into college, and pursued her dream of becoming a veterinarian. J.M. took those things
from her even though he had no right to do so. A lot of children have difficult pasts, and all struggle
with adolescence, but most do not bring guns to school and randomly shoot people. To me, J.M. is a
bad seed, and society will be better off if he is sent to jail for the rest of his life. Even though nothing
can bring Renee back, having J.M. off the streets so he cannot hurt another family will make me and
my family rest a little easier at night.
24
APPENDIX IV: STATISTICS ABOUT JLWOP45

Total People: As of 2008, there were 2,484 people incarcerated in the United States for the
rest of their lives for crimes they committed when they were younger than 18.46

States:
o Forty-four states and the federal government have JLWOP.
o As of 20011, six states allow juvenile life without parole for felony murder. These
states are Arkansas, Florida, Louisiana, New Jersey, Pennsylvania, and South Dakota.
o From 2005 to 2011, four states changed their laws to prohibit LWOP for felony
murder and homicides. They are Colorado, Texas, Montana, and Kansas.

Criminal History: Fifty-nine percent of juveniles received LWOP for their first-ever criminal
conviction.

Crime Committed: Twenty-six percent of juveniles sentenced to LWOP were convicted of
felony murder.

Racial Disparities: Nationwide, the estimated rate at which black youth receive life without
parole sentences is ten times greater than the rate for white youth.

International Standards: 192 countries have ratified the Convention on the Rights of the
Child, which bans JLWOP. The two that have not are the U.S. and Somalia. The U.S. is the
only country with any children serving LWOP.

International Comparisons:
o The U.S. ranks third in the world in the number of murders committed by juveniles.
o In 1998, 1,000,279 juveniles were prosecuted for crimes in the U.S. That is more than
England/Wales, Thailand, Germany, China, Canada, Turkey, and South Korea
combined.

Trends: In eleven out of the seventeen years between 1985 and 2001, youth convicted of
murder in the United States were more likely to enter prison with a life without parole
sentence than adult murder offenders. In four of those years, youth were more likely to be
sentenced to JLWOP than adults were to receive the LWOP or the death penalty.
45
The following statistics come from: Whiteside v. State, No. 10-1200, (Amicus Curie Brief by Juvenile Law
Center), available at http://jlc.org/images/uploads/Whiteside_brief.pdf; “Executive Summary”, The Rest of their
Lives: Life without Parole for Juvenile Offenders in the United States in 2008, Human Rights Watch (2008),
available at http://www.hrw.org/en/reports/2008/05/01/executive-summary-rest-their-lives; Charles D. Stimson and
Andrew M. Grossman, Adult Time for Adult Crimes: Life without Parole for Juvenile Killers and Violent Teens,
Heritage Foundation (Aug. 2009), available at http://s3.amazonaws.com/thf_media/2009/ pdf/sr0065.pdf
46
Unfortunately there are not more recent statistics since Graham that provide a more clear picture of how many
juveniles are still serving LWOP. Presumably, this number has decreased since Graham was decided in 2010.
Unless otherwise stated, all statistics described here are based on 2008 figure.
25
Juveniles Sentenced by LWOP by Year
# OF JUVENILES SENTENCED TO LWOP
YEAR
1989
1996
2003
2005
YEAR
50
152
54
About 150
Increasing Proportion of Juveniles Sentenced to LWOP by Year
YOUTH CONVICTED OF
PERCENT OF YOUTH
MURDER
SENTENCED TO LWOP
1990
2000
2234
1,006
2.9
9.1
Juvenile Crime Statistics
NUMBER OF JUVENILES ARRESTED
FROM 1980-2005
CRIME
Murder
Rape
Robbery
Aggravated Assault
STATE
43,621
109,563
818,278
1,240,199
Number of Juveniles Serving LWOP by State
TOTAL
STATE LAW
STATE
TOTAL
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
62
0
32
73
227
48
9
7
266
8
4
4
103
2
42
0
5
Louisiana
Maine
Maryland
Massachusett
s
Michigan
Minnesota
Mississippi
Missouri
Montana
STATE LAW
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
24
16
3
0
0
0
44
1
0
48
0
444
2
26
9
4
1
Mandatory
Discretionary
Mandatory
Mandatory
No JLWOP
Mandatory
Mandatory
Discretionary
Mandatory
Discretionary
No JLWOP
Mandatory
Discretionary
Mandatory
Mandatory
Discretionary
Mandatory
334
0
13
53
Mandatory
No JLWOP
Discretionary
Mandatory
JLWOP Presumption
Banned after 2005
Mandatory
Mandatory
Mandatory
Discretionary
Mandatory
Mandatory
Mandatory
Mandatory
Mandatory
No JLWOP
Ban during court
challenge
Mandatory
Discretionary
Discretionary
Mandatory
Utah
Vermont
Virginia
Washington
1
0
48
28
Discretionary
Discretionary
Mandatory
Mandatory
316
2
24
116
1
Mandatory
Mandatory
Mandatory
Mandatory
Mandatory
West Virginia
Wisconsin
Wyoming
Federal Prison
Washington DC
TOTAL
0
16
6
2
0
2484
Discretionary
Discretionary
Discretionary
Discretionary
No JLWOP
26
27