Petition for Writ of Certiorari — Shawn Labarron Davis, aka Shawn Davis, aka Shawn L. Davis, aka Shawn Labarren Davis, aka Shawn Labarum Davis, Petitioner v. Mississippi
Supreme Court briefMar 23, 2018
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No.
IN THE
Supreme Court of the United States
_________
SHAWN LABARRON DAVIS,
Petitioner,
v.
STATE OF MISSISSIPPI,
Respondent.
________
On Petition for a Writ of Certiorari to the
Supreme Court of Mississippi
________
PETITION FOR A WRIT OF CERTIORARI
________
JACOB HOWARD
DAVID M. SHAPIRO
RODERICK & SOLANGE
Counsel of Record
MACARTHUR JUSTICE CENTER RODERICK & SOLANGE
UNIVERSITY OF MISSISSIPPI
MACARTHUR JUSTICE CENTER
SCHOOL OF LAW
NORTHWESTERN PRITZKER
SCHOOL OF LAW
P.O. Box 1848
375 E. Chicago Ave.
University, MS 38677
Chicago, IL 60611
(312) 503-0711
JOSHUA FREIMAN
RODERICK & SOLANGE
david.shapiro@
MACARTHUR JUSTICE CENTER
law.northwestern.edu
718 7th St. NW
Washington, DC 20001
Attorneys for Petitioner
i
QUESTIONS PRESENTED
The Court stated in Montgomery v. Louisiana that
the Eighth Amendment prohibits life without parole
sentences “for all but the rarest of juvenile offenders,
those whose crimes reflect permanent incorrigibility.”
136 S. Ct. 718, 734 (2016). Nonetheless, state courts
of last resort are divided 7-4 on whether the Eighth
Amendment authorizes a juvenile to be sentenced to
life without parole absent a finding of permanent
incorrigibility.
The first question presented is:
1. Whether the Eighth Amendment requires the
sentencing authority to make a finding that a juvenile
is permanently incorrigible in order to impose a
sentence of life in prison without the possibility of
parole.
The second question presented is:
2. Whether the Eighth Amendment prohibits a
life without parole sentence for a crime committed by
a juvenile.
ii
TABLE OF CONTENTS
Questions Presented ............................................................. i
Table Of Authorities ........................................................... iv
Petition For A Writ Of Certiorari ....................................... 1
Opinions And Orders Below................................................ 1
Jurisdiction .......................................................................... 1
Constitutional Provisions Involved .................................... 1
Introduction ......................................................................... 2
Statement Of The Case ....................................................... 2
Reasons For Granting The Petition.................................... 8
I. This Court should decide whether a juvenile lifewithout-parole sentence requires a finding of
permanent incorrigibility. ........................................... 10
A. The question divides state supreme courts. ......... 10
B. The question is important. .................................... 18
C. This case is an excellent vehicle to decide the
question. ................................................................. 22
D. Now is the ideal moment to decide the question.. 23
II. In the alternative, the Court should grant review to
decide whether the Eighth Amendment prohibits
sentencing juveniles to life without parole................. 24
Conclusion .......................................................................... 28
iii
Appendix A
Order, Davis v. State,
No. 2016-CT-00638 (Miss. Jan. 11, 2018)...................... 1a
Appendix B
Order, Davis v. State,
No. 2016-CT-00638 (Miss. Ct. App. Oct. 10, 2017) ....... 2a
Appendix C
Opinion, Davis v. State,
234 So. 3d 440, (Miss. Ct. App. 2017) ............................ 4a
Appendix D
Transcript of Proceedings [excerpt], State v. Davis,
No. 2003-10,660 (Miss. Cir. Ct. Aug. 3, 2015) ............. 10a
iv
TABLE OF AUTHORITIES
Cases
Campbell v. Ohio, 538 U.S. ___,
2017 WL 4409905 (U.S. Mar. 19, 2018) ................... 19-20
Chandler v. State, No. 2015–KA–01636–SCT,
2018 WL 1193479 (Miss. Mar. 8, 2018) ....... 10, 17, 22, 23
Commonwealth v. Batts,
163 A.3d 410 (Pa. 2017) ...................................... 10, 15-16
Diatchenko v. District Attorney for Suffolk Dist.,
1 N.E.3d 270 (Mass. 2013) ............................................. 26
Ford v. Wainwright, 477 U.S. 399 (1986) ......................... 12
Graham v. Florida, 560 U.S. 48 (2010) ................ 16, 25, 27
Hudspeth v. State,
179 So. 3d 1226 (Miss. App. 2015) ............................... 7, 8
Johnson v. State, 395 P.3d 1246 (Idaho 2017) ...... 10, 17-18
Jurek v. Texas, 428 U.S. 262 (1976) ................................. 19
Landrum v. State, 192 So. 3d 459 (Fla. 2016) ............ 10, 14
Lowenfield v. Phelps, 484 U.S. 231 (1988) ....................... 19
Luna v. State,
387 P.3d 956 (Okla. Crim. App. 2016) ......... 10, 13, 14, 24
Michigan v. Long, 463 U.S. 1032 (1983) .......................... 21
Miller v. Alabama, 132 S. Ct. 2455 (2012) ............... passim
Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ..... passim
People v. Holman, 91 N.E.3d 849 (Ill. 2017) .............. 10, 14
People v. Padilla,
4 Cal. App. 5th 656 (2016),
rev. granted 387 P.3d 741 (Cal. 2017) ..................... 18, 24
Roper v. Simmons, 543 U.S. 551 (2005) ....................... 5, 27
Scarborough v. State,
956 So. 2d 382 (Miss. Ct. App. 2007) ........................... 4, 5
Sen v. State, 301 P.3d 106 (Wyo. 2013) ................ 10, 14, 15
State v. Ramos, 387 P.3d 650 (Wash. 2017) ............... 10, 17
State v. Seats, 865 N.W.2d 545 (Iowa 2015) ............... 10, 15
v
State v. Sweet, 879 N.W.2d 811 (Iowa 2016) ......... 15, 26-27
State v. Valencia, 386 P.3d 392 (Ariz. 2016) .............. 10, 16
Teague v. Lane, 489 U.S. 288 (1989) ................................ 23
Tuilaepa v. California, 512 U.S. 967 (1994)............... 18, 19
Veal v. State, 784 S.E.2d 403 (Ga. 2016) ........ 10, 12, 13, 24
Constitutional Provisions
U.S. Const. amend. VIII ...................................................... 1
Statutes
28 U.S.C. § 1257 .................................................................. 1
Alaska Stat. § 12.55.125.................................................... 25
Colo. Rev. Stat. § 17-22.5-104(IV) ..................................... 25
Colo. Rev. Stat. § 18-1.3-401(4)(b)(1) ................................ 25
Kan. Stat. Ann. § 21-6618 ................................................. 25
Ky. Rev. Stat. Ann. § 640.040(1) ....................................... 25
Miss. Code Ann. § 47-7-3(1)(f) ............................................. 5
Miss. Code Ann. § 47-7-3(1)(g)(i) ........................................ 5
Legislative Materials
S.B. 294, 91st Gen. Assemb., Reg. Sess. (Ark. 2017) ....... 25
S.B. 394, Reg. Sess. (Cal. 2017) ........................................ 26
S.B. 796, Jan. Sess. (Conn. 2015) ..................................... 26
S.B. 9, 147th Gen. Assemb., Reg. Sess. (Del. 2013) ......... 26
B21-0683, D.C. Act 21-568 (D.C. 2016) ............................ 26
H.B. 2116, 27th Leg. Sess. (Haw. 2014) ........................... 26
A. 373, 217th Leg. (N.J. 2017) .......................................... 26
A.B. 267, 78th Reg. Sess. (Nev. 2015) .............................. 26
H.B. 1195, 65th Leg. Assemb. (N.D. 2017) ....................... 26
S.B. 140, 2016 S.D. Sess. Laws ch. 121 (S.D. 2016)......... 26
S.B. 2, 83rd Leg., Special Sess. (Tex. 2013) ..................... 26
H.B. 405, 61st Leg., Gen. Sess. (Utah 2016) .................... 26
H. 62, 73rd Sess. (Vt. 2015)............................................... 26
5 H.B. 4210, 81st Leg., 2d Sess. (W.Va. 2014) ................. 26
H.B. 23, 62nd Leg., Gen. Sess. (Wyo. 2013) ..................... 26
vi
Other Authorities
Associated Press, 50-State Examination, Jul. 31, 2017 .. 23
Dov Fox & Alex Stein, Constitutional Retroactivity in
Criminal Procedure, 91 WASH. L. REV. 463 (2016) ....... 23
Juvenile Sentencing Project, Juvenile Life Without
Parole Sentences in the United States, November
2017 Snapshot (Nov. 20, 2017) ................................ 25, 27
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Shawn Davis respectfully petitions this
Court for a writ of certiorari to review the judgment of
the Supreme Court of Mississippi in this case.
OPINIONS AND ORDERS BELOW
The trial court’s pronouncement of a life without
parole sentence (Pet. App. 10a–16a) is unpublished.
The opinion of the Court of Appeals of Mississippi
(Pet. App. 4a–9a) is published at 234 So. 3d 440. The
order of the Supreme Court of Mississippi denying
certiorari (Pet. App. 1a) is unpublished.
JURISDICTION
The Supreme Court of Mississippi’s denial of
certiorari was entered on January 11, 2018. This
Court has jurisdiction pursuant to 28 U.S.C. § 1257.
CONSTITUTIONAL PROVISION INVOLVED
The Eighth Amendment to the U.S. Constitution
states: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.”
2
INTRODUCTION
Shawn Davis was sentenced to life in prison
without the possibility of parole for a crime he
committed soon after his sixteenth birthday. The
sentencing court did not mention Davis’s age in
explaining the sentence, focusing instead on the crime
itself. The judge never made a finding of permanent
incorrigibility, an error that would have been grounds
for reversal under the Eighth Amendment in the
highest courts of Georgia, Florida, Oklahoma, Illinois,
Pennsylvania, Iowa, and Wyoming.
Not so in Mississippi. No court has ever found
Davis to be permanently incorrigible. Nevertheless,
for a crime he committed as a boy, Davis is condemned
to age and die without any “hope for some years of life
outside prison walls.” Montgomery v. Louisiana, 136
S. Ct. 718, 737 (2016).
The incorrigibility finding is crucial and warrants
this Court’s consideration. If such a finding is not
required, “States [will be] free to sentence a child
whose crime reflects transient immaturity to life
without parole.” Id. at 735. That result would vitiate
the special protection that the Eighth Amendment
affords to juvenile offenders.
The Court should grant certiorari.
STATEMENT OF THE CASE
1. Petitioner. When Shawn Davis was growing up,
his mother took drugs and alcohol every day to the
point of slurring her speech. Tr. 61–62, 71–72.1 His
All references to “R.,” “Tr.,”and “Ex. ___” are to the record,
record transcript, and record exhibits on file with the Mississippi
Court of Appeals, No. 2016-CA-00638.
1
3
father was not around. Id. at 80. His uncle would beat
him with an extension cord. Ex. S-1.10 at 2. His
mother encouraged the whipping. Id.
Davis and his mother were eventually evicted from
their home. Tr. 62. They moved to a building infested
with drugs and notorious for prostitutes and heroin
dealers. Id. at 64, 79.
Davis did not like himself or have many friends,
and he was picked on at school. Id. at 71; Ex. S-1.10
at 4. In the afternoon, family members would see him
in tears as he got off the bus. Tr. 71. He told a
psychologist, “Sometimes I want to kill myself because
I don’t like my life.” Ex. S-1.10 at 2. He acted out,
bringing some sort of knife to school on one occasion,
and threatening a teacher on another. Id. at 1, 5. At
school, other children berated him because of his
clothing, shoes, and hygiene. Tr. 71.
His mother might have done something about that,
but she was spending their money on drugs and
alcohol instead. Id. She sold their food stamps on the
street. Id. She used the money to buy more drugs. Id.
The refrigerator was always empty. Id.
In the hope of making friends, Davis would do
what other kids told him. Id. at 95. At thirteen, after
Davis was charged with stealing a car and referred for
an examination by a state court, the psychologist
reported that he was susceptible to “negative peer
influence.” Ex. S-1.10 at 2, 5. He feared alienating
people on whom he depended. Id. at 3. He was “driven
by immediate impulses rather than concerned about
the consequences of his actions,” exhibited “problems
in impulse control,” and tended to “act and speak
without thinking things through.” Id. at 3–4.
4
Amid all the difficulty, there were glimpses of joy
and hope. At his cousin’s wedding, Davis smiled
broadly and embraced the groom. Tr. 87-88, Exs. D-1,
D-3. He played football; a family photo shows him
kneeling in his Gautier Middle School uniform and
trying to look tough at the age of 12. Tr. 86, Ex. D-2.
He loved his grandmother and lay in bed with her
when she passed away. Tr. 85–86. He was an usher in
church, and tried to keep attending even when his
mother stopped. Id. at 93–94.
2. The crime. Davis turned sixteen in November of
2004. Id. at 59. Six weeks later, he participated in the
brutal homicide of a man named Dorian Johnson. Id.
Though Davis did not have many friends, id. at 95,
he was friends with Mary Scarborough, who also
participated in the murder, id. at 127–30. The victim,
Johnson, was a man in his fifties who had sex with
Scarborough, a seventeen-year-old girl, in exchange
for giving her money and paying her bills.
Scarborough v. State, 956 So. 2d 382, 383 (Miss. Ct.
App. 2007). Johnson would take Scarborough and
petitioner riding in his car and give them cigarillos
and drugs. Tr. 79–80. Others commented that it was
improper or unseemly for Johnson to be riding around
with two young kids. Id. at 80–81. Davis’s older cousin
tried to get Johnson to stay away. Id. at 80.
Johnson became aggressive with Scarborough, and
she tried to end their relationship. Scarborough, 956
So. 2d at 383. Scarborough’s ex-boyfriend, Anthony
Booker, told Johnson to leave her alone. Id. Johnson
refused to end the relationship, and instead started
stalking Scarborough. Id.
Davis, Scarborough, and Booker made a plan to
scare Johnson into leaving Scarborough alone, which
5
evolved into a plan to kill Johnson. Id. While Davis
and Scarborough smoked marijuana in Johnson’s car
with him, Scarborough flashed the interior lights, a
signal for Booker to come over. Id. at 384. The three
beat and stabbed Johnson, loaded him into a car, and
drove first in the direction of an alligator habitat that
was closed, and then to a different location. Id. At the
second location, they continued to beat and stab
Johnson, with Davis stabbing his face. Id. Johnson
died from these injuries. Id. at 384–85.
3. Original proceedings. Less than nine months
before this Court declared the death penalty
unconstitutional for juveniles, see Roper v. Simmons,
543 U.S. 551 (2005), Davis pleaded guilty in the
Circuit Court of Jackson County, Mississippi to
simple murder, in order to avoid possibly being
sentenced to death. R. 42; Tr. 4. He assisted the State
by testifying against Scarborough, who was also
convicted of murder. Ex. S-1.3; Scarborough, 956 So.
2d at 385.
The court sentenced Davis to life in prison. R. 42.
The parties agree that Mississippi law, both now and
at the time of the sentence, prohibits parole for
defendants convicted of murder. Resp. Miss. Ct. App.
Br. 5.2
4. Resentencing. Following this Court’s decision in
Miller v. Alabama, 132 S. Ct. 2455 (2012), which held
that
mandatory
life-without-parole
sentences
imposed on juveniles violate the Eighth Amendment,
the state circuit court ordered Davis to be
2 Mississippi Code Ann. § 47-7-3(1)(f), which applies to this case,
prohibits parole for crimes of violence committed between June
30, 1995 and July 1, 2014. Section 47-7-3(1)(g)(i) prohibits parole
for crimes of violence committed after July 1, 2014.
6
resentenced. R. 73–74. Davis requested a sentence of
life in prison with the possibility of parole. Id. at 78.
The same judge who originally took Davis’s plea
and sentenced him to life without parole presided over
the resentencing. Tr. 1, 30. Six witnesses testified for
Davis about the circumstances of his childhood. Id. at
60-95. The State did not call witnesses. Id. at 60. The
court sentenced Davis to life in prison without the
possibility of parole. Pet. App. 16a.
The court did not make a finding that Davis was
permanently incorrigible. Although Davis had just
turned sixteen at the time of the murder, the court did
not mention his age in its statement of reasons for the
sentence. See id. at 11a–16a. The court referred to him
as a “wild animal” rather than a teenage boy. Id. at
15a. The court stated that the crime suggested
“depravity” and that such depravity was common to
Davis’s generation: “[A]s to the depravity of this
murderous scheme, I could not help but despair an
entire generation of our youth was possibly being
raised without any vestige of human kindness
whatsoever.” Id. at 13a. The court opined that Davis
lacked remorse and posed a danger to the public, and
alluded to his prison disciplinary history, which
included fighting and possession of homemade knives.
Id. at 12a-13a, 15a. The court also described Davis’s
“difficult and dysfunctional family life,” and his
upbringing amid the “unseemly life of public housing.”
Id. at 11a.
In the main, however, the Court’s rationale for the
sentence consisted of a description of the crime. See
id. at 13a–16a. The Court recounted the murder in
painstaking, graphic detail. Id. at 13a–15a. It devoted
7
one-half of its rationale for the sentence to the crime
itself and Davis’s role in it. See id. at 13a–16a.
5. Court of Appeals of Mississippi. Davis appealed
his sentence to the Court of Appeals of Mississippi. Id.
at 5a. He made two arguments that remain relevant
at this stage of the proceedings. He asserted that the
life without parole sentence violated the Eighth
Amendment because the trial court did not find
permanent incorrigibility: “The court’s analysis does
not include any finding [that] with Davis,
rehabilitation was impossible.” Pet. Miss. Ct. App. Br.
19. He also argued that juvenile life without parole
sentences
categorically
violate
the
Eighth
Amendment. Id. at 21–22.
The court of appeals rejected Davis’s arguments
and affirmed the trial court. Pet. App. 8a–9a. The
court of appeals’ analysis of the sentence consisted of
one paragraph:
We do not find the trial court abused its
discretion in applying the Miller sentencing
factors to conclude that Davis should be
sentenced to life without the possibility of
parole. The circumstances of this case are not
meaningfully distinguishable from those of
[Hudspeth v. State, 179 So. 3d 1226, 1227 (Miss.
Ct. App. 2015)], in which this Court affirmed
the trial court’s imposition of a life sentence
without parole after consideration of the Miller
factors. Id. In particular, the circumstances of
the crime and Davis’s level of participation are
not in his favor. It was Davis’s premeditated
idea to kill the victim in addition to robbing
him, and it was Davis who slashed the victim
more than thirty times with a knife. No
8
evidence was presented that Davis “succumbed
to any peer pressure in committing the crime.”
Id. at 8a (quoting Hudspeth, 179 So. 3d at 1228).
The court of appeals also rejected Davis’s
argument that the Eighth Amendment prohibits life
without parole sentences for juveniles. Id. The court
of appeals denied rehearing, with one judge voting to
grant rehearing. Id. at 2a.
6. Supreme Court of Mississippi. Davis petitioned
for certiorari in the Supreme Court of Mississippi. Id.
at 1a. As relevant here, Davis argued that his
sentence violates the Eighth Amendment because (1)
the trial court did not make a finding of irreparable
corruption, and (2) juvenile life without parole
sentences are categorically impermissible. Miss. Cert.
Pet. 1.
The Supreme Court of Mississippi denied the
petition, with three justices voting to grant certiorari.
Pet. App. 1a.
7. This petition followed.
REASONS FOR GRANTING THE PETITION
There is a deep split of authority on whether the
Eighth Amendment permits a juvenile to be sentenced
to life without parole in the absence of a finding that
the juvenile is permanently incorrigible. Among state
courts of last resort, the issue has resulted in at least
eleven majority opinions, split 7-4, and three dissents.
Because the division of authority results from
differing interpretations of this Court’s decision in
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), only
this Court can resolve the disagreement.
9
The issue is important because without an
incorrigibility finding, there is no way to know if a
sentencing court determined, as this Court’s
jurisprudence demands, that a particular juvenile
defendant is in fact among the “rarest of juvenile
offenders, those whose crimes reflect permanent
incorrigibility.” Id. at 734. In practical terms, if a
finding of permanent incorrigibility is not required,
States will remain “free to sentence a child whose
crime reflects transient immaturity to life without
parole.” Id. at 735.
This case presents the question cleanly and
illustrates the danger of dispensing with the
incorrigibility finding. The sentencing court might
have viewed Davis as “rare” and permanently
incorrigible, id. at 734, or it may have ignored his age
and given too much weight to the facts of the crime
itself. The appellate court discussed nothing but the
crime. Pet. App. 8a.
This case also presents the question whether the
Eighth Amendment categorically forbids a life
without parole sentence for a juvenile—a punishment
that American society has come to reject. In the six
years since Miller, States have moved decisively to
prohibit life without parole sentences for juveniles. All
told, the sentence is extinct, or nearly so, in 34
jurisdictions.
10
I.
This Court should decide whether a
juvenile
life-without-parole
sentence
requires
a
finding
of
permanent
incorrigibility.
A.
The question divides state supreme
courts.
State supreme courts are intractably divided on
whether the Eighth Amendment requires a
sentencing judge to make a finding that a juvenile is
permanently incorrigible before imposing a sentence
of life without parole. At least seven state courts of
last resort hold that such a finding is required. See
Veal v. State, 784 S.E.2d 403, 412 (Ga. 2016); People
v. Holman, 91 N.E.3d 849, 863 (Ill. 2017); Luna v.
State, 387 P.3d 956, 961 (Okla. Crim. App. 2016);
Landrum v. State, 192 So. 3d 459, 469 (Fla. 2016); Sen
v. State, 301 P.3d 106, 127 (Wyo. 2013);
Commonwealth v. Batts, 163 A.3d 410, 435 (Pa. 2017);
State v. Seats, 865 N.W.2d 545, 555–56 (Iowa 2015).
Four hold that it is not required. State v. Valencia,
386 P.3d 392, 396 (Ariz. 2016); Chandler v. State, No.
2015–KA–01636–SCT, 2018 WL 1193479, at *3 (Miss.
Mar. 8, 2018); State v. Ramos, 387 P.3d 650, 663
(Wash. 2017); Johnson v. State, 395 P.3d 1246, 1258
(Idaho 2017).
The issue has also prompted three dissents by
justices who sit on state courts of last resort.
Chandler, 2018 WL 1193479, at *4 (Waller, C.J.,
dissenting); Luna, 387 P.3d at 965 (Hudson, J.,
concurring in part and dissenting in part); Luna, 387
P.3d at 963 (Lumpkin, J., concurring in part and
dissenting in part).
11
1. The disagreement among courts flows directly
from an ambiguity in this Court’s decision in
Montgomery.
Montgomery’s logic strongly implies that a juvenile
life without parole sentence cannot be imposed
without a finding of permanent incorrigibility.
Montgomery holds that the Eighth Amendment bars
life without parole sentences “for all but the rarest of
juvenile offenders, those whose crimes reflect
permanent incorrigibility.” 136 S. Ct. at 733–34.
Montgomery therefore charges sentencing authorities
with the duty of separating juveniles who commit
homicides into two categories—a small group that
cannot be redeemed, and a much larger group that
can. Id. at 733–34. It would seem that a conclusion
that a juvenile is permanently incorrigible, and
therefore belongs to the class who can be sentenced to
life without parole, could take no form other than a
finding, whether oral or written.
However, the following statement in Montgomery
complicates the issue:
Louisiana suggests that Miller cannot have
made a constitutional distinction between
children whose crimes reflect transient
immaturity and those whose crimes reflect
irreparable corruption because Miller did not
require trial courts to make a finding of fact
regarding a child's incorrigibility. That this
finding is not required, however, speaks only to
the degree of procedure Miller mandated in
order to implement its substantive guarantee.
When a new substantive rule of constitutional
law is established, this Court is careful to limit
the scope of any attendant procedural
12
requirement to avoid intruding more than
necessary upon the States’ sovereign
administration of their criminal justice
systems. See Ford v. Wainwright, 477 U.S. 399,
416–417 (1986) (“[W]e leave to the State[s] the
task of developing appropriate ways to enforce
the constitutional restriction upon [their]
execution of sentences”).
Id. at 735.
As we show below, most courts consider any
ambiguity introduced by this dictum (the
“Montgomery fact-finding dictum”) to be secondary to
Montgomery’s central logic. These courts require a
finding of permanent incorrigibility. Other courts,
however, rely on the dictum to conclude that
sentencing authorities may impose life without parole
sentences on juveniles without finding permanent
incorrigibility.
2. Six state courts of last resort hold that the
Eighth Amendment requires a finding of permanent
incorrigibility before a juvenile may be sentenced to
life without parole.
a. Supreme Court of Georgia: In Veal v. State, the
trial court sentenced a defendant to life without parole
during the interval between Miller and Montgomery.
784 S.E.2d 403, 410 (Ga. 2016). The trial court failed
to make an explicit finding of permanent
incorrigibility. Id. at 412. The Supreme Court of
Georgia stated that it might have affirmed the trial
court under Miller, “[b]ut then came Montgomery.” Id.
at 410. Under Montgomery’s “explication of Miller,”
the sentencer must “determine whether a particular
defendant falls into this almost-all juvenile murderer
category for which [life without parole] sentences are
13
banned.” Id. at 411 (citing Montgomery, 136 S. Ct. at
736). To impose life without parole, the court must
make a “specific determination that [the defendant] is
irreparably corrupt.” Id. at 411. The supreme court
remanded the case for a new sentencing because “[t]he
trial court did not . . . make any sort of distinct
determination on the record that Appellant is
irreparably corrupt or permanently incorrigible.” Id at
412.
b. Court of Criminal Appeals of Oklahoma: In
Oklahoma, the court of last resort in criminal cases
requires a finding of permanent incorrigibility. Luna
v. State, 387 P.3d 956 (Okla. Crim. App. 2016). In
Luna, the court vacated a juvenile life without parole
sentence and remanded the case “for resentencing to
determine whether the crime reflects Luna’s transient
immaturity, or an irreparable corruption and
permanent incorrigibility warranting the extreme
sanction of life imprisonment without parole.” Id. at
963. The court noted that the fact-finder at sentencing
(which in Oklahoma is a jury) “made no factual
findings of permanent incorrigibility and irreparable
corruption.” Id. at 961.
Two judges filed partial concurrences and dissents,
disagreeing with the majority’s holding that
Montgomery requires a finding of permanent
incorrigibility. Judge Lumpkin cited Montgomery’s
fact-finding dictum and opined that the Court of
Criminal Appeals “wrongly expands upon the
requirements of [Montgomery].” Luna, 387 P.3d at 963
(Lumpkin, J., concurring in part and dissenting in
part). Judge Hudson also concluded that Montgomery
does not require a finding that a defendant “is
irreparably corrupt and permanently incorrigible.”
14
Luna, 387 P.3d at 965 (Hudson, J., concurring in part
and dissenting in part).
c. Supreme Court of Florida: In Landrum v. State,
the Supreme Court of Florida ordered a new
sentencing where the trial court’s statement of
reasons for a life without parole sentence indicated
that it “did not consider whether the crime itself
reflected ‘transient immaturity’ rather than
‘irreparable corruption.’” 192 So. 3d 459, 468 (Fla.
2016). The supreme court held that “the Eighth
Amendment requires that sentencing of juvenile
offenders be individualized in order to separate the
‘rare’ juvenile offender whose crime reflects
‘irreparable corruption,’ from the juvenile offender
whose crime reflects ‘transient immaturity.’” Id. at
466 (citing Montgomery, 136 S. Ct. at 734).
d. Supreme Court of Illinois: The Supreme Court
of Illinois holds that “[u]nder Miller and Montgomery,
a juvenile defendant may be sentenced to life
imprisonment without parole, but only if the trial
court determines that the defendant’s conduct showed
irretrievable depravity, permanent incorrigibility, or
irreparable corruption beyond the possibility of
rehabilitation.” People v. Holman, 91 N.E. 3d 849, 863
(Ill. 2017). In Holman, the findings were sufficient to
authorize a life without parole sentence because the
trial court “concluded that the defendant’s conduct
placed him beyond rehabilitation.” Id. at 865.
e. Supreme Court of Wyoming: Even prior to
Montgomery, the Supreme Court of Wyoming held
that the Eighth Amendment requires a finding of
permanent incorrigibility. The trial court held that
under Miller, “the district court must set forth specific
findings supporting a distinction between ‘the
15
juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’” Sen v.
State, 301 P.3d 106, 127 (Wyo. 2013).
f. Supreme Court of Iowa: In its pre-Montgomery
decision in State v. Seats, the Supreme Court of Iowa
vacated a life without parole sentence. 865 N.W.2d
545, 555–56 (Iowa 2015). The supreme court stated
that the trial court could impose life without parole
again on remand only if it “finds this is the rare and
uncommon case requiring it to sentence Seats to life
in prison without the possibility of parole[.]” Id. at
558. The court later reiterated the need for such a
finding in its post-Montgomery decision in State v.
Sweet, 879 N.W.2d 811, 833 (Iowa 2016).3
g. Supreme Court of Pennsylvania: The Supreme
Court of Pennsylvania requires a finding of
permanent incorrigibility, although it is unclear
whether the court derives the requirement from state
procedural law or federal constitutional law. See
Commonwealth v. Batts, 163 A.3d 410, 433, 435 (Pa.
2017). At one point, Batts states that Montgomery
does not impose a formal fact-finding requirement:
Although the Montgomery Court acknowledged
that Miller contains no “formal factfinding
requirement” prior to a sentencing court
imposing a sentence of life without the
possibility of parole on a juvenile, the Court
stated that this omission was purposeful so as
to permit the States to sovereignly administer
their criminal justice systems and establish a
3 In Sweet, the Supreme Court of Iowa went on to hold that the
Iowa constitution categorically prohibits juvenile life without
parole. Id. at 839.
16
procedure for the proper implementation of
Miller's holding.
Id. at 433 (quoting Montgomery, 136 S. Ct. at 735).
On the other hand, a later portion of the decision
states just the opposite—this Court’s jurisprudence
requires a finding of permanent incorrigibility:
“Under Miller and Montgomery, a sentencing court
has no discretion to sentence a juvenile offender to life
without parole unless it finds that the defendant is
one of the ‘rare’ and ‘uncommon’ children possessing
the above-stated characteristics, permitting its
imposition.” Id. at 435 (emphasis added) (citing
Montgomery, 136 S. Ct. at 726, 734; Miller, 567 U.S.
at 479; Graham v. Florida, 560 U.S. 48, 73 (2010);
Roper, 543 U.S. at 572–73).
3. Four state supreme courts hold that the Eighth
Amendment does not require a trial court to make a
finding of permanent incorrigibility to sentence a
juvenile to life without parole.
a. Supreme Court of Arizona: In State v. Valencia,
two juveniles had been sentenced to life in prison
without the possibility of parole for homicides
committed in the 1990s. 386 P.3d 392, 393 (Ariz.
2016). The intermediate appellate court vacated the
sentences because the trial judge did not make a
finding of permanent incorrigibility. Id. The Supreme
Court of Arizona reversed and reinstated the
sentences, concluding that Miller and Montgomery do
not require a finding of permanent incorrigibility. Id.
at 396. The Court derived that conclusion from
Montgomery’s fact-finding dictum. Id. at 395–96
(quoting Montgomery, 136 S. Ct. at 736).
17
b. Supreme Court of Mississippi: The Supreme
Court of Mississippi held in Chandler v. State, No.
2015–KA–01636–SCT, 2018 WL 1193479, at *3 (Miss.
Mar. 8, 2018) (pending), that Miller and Montgomery
do not require a finding of permanent incorrigibility.
Relying solely on the Montgomery fact-finding dictum,
the court stated, “Miller does not require trial courts
to make a finding of fact regarding a child’s
incorrigibility.” Id. (citing Montgomery, 136 S. Ct. at
735).
Chief Justice Waller dissented, joined by three
other justices. Id. at *4 (Waller, C.J., dissenting). They
concluded that “the trial court’s resentencing of
Chandler was insufficient as a matter of law” because
the trial court “did not articulate that Chandler is
among ‘the rarest of juvenile offenders, those whose
crimes reflect permanent incorrigibility.’” Id. (quoting
Montgomery, 136 S. Ct. at 734).
c. Supreme Court of Washington: The Supreme
Court of Washington rejects the view that “the
sentencing court must make an explicit finding that
the juvenile’s homicide offenses reflect irreparable
corruption before imposing life without parole.” State
v. Ramos, 387 P.3d 650, 663 (Wash. 2017). The court
grounded this conclusion on Montgomery’s factfinding dictum: “[T]he Supreme Court has expressly
acknowledged that ‘Miller did not require trial courts
to make a finding of fact regarding a child's
incorrigibility.’” Id. at 665 (quoting Montgomery, 136
S. Ct. at 735).
d. Supreme Court of Idaho: The Supreme Court of
Idaho also holds that a finding of permanent
incorrigibility is not required. Johnson v. State, 395
P.3d 1246, 1258 (Idaho 2017). Relying on the
18
Montgomery fact-finding dictum, the supreme court
found the argument that such a finding is required to
be “without merit.” Id.4
B.
The question is important.
1. The issue this case raises is important because
Montgomery’s command cannot be meaningfully
enforced except through a required finding.
Montgomery instructs sentencing authorities to limit
life without parole to “the rarest of juvenile offenders,
those whose crimes reflect permanent incorrigibility.”
136 S. Ct. at 734. That function necessarily requires a
finding of permanent incorrigibility. Indeed, even the
dissent in Montgomery stated that the decision
requires sentencing authorities to “resolve” the
question of incorrigibility. Id. at 744 (Scalia, J.,
dissenting). Trial courts resolve questions by making
findings.
2. Findings are crucial to juvenile life without
parole sentences just as they are crucial to death
sentences. In the same way that an aggravator must
be found to sentence a defendant to death, permanent
incorrigibility must be found to sentence a juvenile to
life without parole. These are the only punishments
that the Eighth Amendment limits to “a subclass of
defendants convicted of murder.” See Tuilaepa v.
California, 512 U.S. 967, 972 (1994). Like capital
4 The California Supreme Court is currently considering whether
the Eighth Amendment requires an incorrigibility finding. See
People v. Padilla, 4 Cal. App. 5th 656 (2016), rev. granted 387
P.3d 741 (Cal. 2017) (“Montgomery cannot be satisfied unless the
trial court, in imposing [a life without parole] term, determines
that in light of all the Miller factors, the juvenile offender’s crime
reflects irreparable corruption resulting in permanent
incorrigibility, rather than transient immaturity”).
19
punishment, juvenile life without parole calls for “a
distinctive set of legal rules” because this Court
“view[s] this ultimate penalty for juveniles as akin to
the death penalty.” Miller, 567 U.S. at 475; see also id.
at 481 (“if . . . ‘death is different,’ children are different
too.”).
A required finding in the juvenile life without
parole context would limit the extraordinary
punishment to the eligible group of offenders. In
capital punishment cases, the Court has stated “that
the trier of fact must convict the defendant of murder
and find one ‘aggravating circumstance’ (or its
equivalent) at either the guilt or penalty phase.”
Tuilaepa, 512 U.S. at 971–72 (1994) (emphasis
added).5 The same logic applies to juvenile life without
parole sentences and requires a finding to ensure that
the punishment is restricted to the eligible group.
Without a finding that a given juvenile is irreparably
corrupt, there remains “a grave risk” that corrigible
juveniles will be sentenced to life without parole and
thereby “held in violation of the Constitution.”
Montgomery, 132 S. Ct. at 736.
3. The finding is necessary for appellate review as
well. As Justice Sotomayor recently wrote, life
without parole sentences—perhaps even for adults—
may require an appellate court to determine whether
a trial court’s sentence “properly took account of [the
defendant’s] circumstances, was imposed as a result
5 See also Lowenfield v. Phelps, 484 U.S. 231, 246 (1988) (holding
that a death sentence satisfied the Eighth Amendment because
the jury at the guilt phase “found” an aggravating factor); Jurek
v. Texas, 428 U.S. 262, 273 (1976) (plurality opinion) (upholding
Texas capital murder law that “essentially requires that one of
five aggravating circumstances be found before a defendant can
be found guilty of capital murder . . .”).
20
of bias, or was otherwise imposed in a ‘freakish
manner.’” Campbell v. Ohio, 538 U.S. ___, 2017 WL
4409905, at *2 (Mar. 19, 2018) (statement of
Sotomayor, J., respecting the denial of certiorari). An
appellate court left to guess what a sentencing
authority might have been thinking cannot
adequately review whether a sentence complies with
the Eighth Amendment.
4. This case itself illustrates why the holdings of
Miller and Montgomery become impossible to enforce
if sentencing authorities can dispense with the
incorrigibility finding. Not only did the trial and
appellate courts fail to find incorrigibility, but it is
unclear whether they actually believed Davis to be
permanently incorrigible, the key determination
required by the Eighth Amendment.
The trial court may have considered Davis
irreparably corrupt, or it may have fixated on the
crime and dismissed him as a “wild animal.” Pet. App.
15a. The trial court devoted half of its justification for
the sentence to a description of the crime. See id. at
13a–16a. While the court stated that Davis’s “release
into society through parole would constitute a danger
to the public in general and especially to vulnerable
citizens in particular,” it based that view entirely on
the crime itself—“the nature of this offense, pitiless,
prolonged agony of the victim, the family, caused as a
result of [Davis’s] planning.” Id. at 15a–16a.
The trial court did not consider Davis’s age in
explaining the sentence. Nor did it consider Davis to
be “rare.” Montgomery, 136 S. Ct. at 734. On the
contrary, the court stated that Davis’s “depravity”
reflected “an entire generation of our youth . . . possibly
21
being raised without any vestige of human kindness
whatsoever.” Pet. App. 13a (emphasis added).
While the trial court did not have the benefit of this
Court’s ruling in Montgomery, the Mississippi Court
of Appeals did. The court of appeals nonetheless failed
to mention Montgomery, and its assessment of Davis’s
incorrigibility is even less scrutable than the trial
court’s. See id. at 7a–8a. The court of appeals devoted
only a single paragraph to the appropriateness of the
sentence. Id. at 8a. That paragraph consisted entirely
of a description of the crime and neither noted Davis’s
age nor opined on his capacity for reform. Id. Without
a finding of permanent incorrigibility, there is no way
to tell if the state courts believed Davis to fit into the
narrow category of irreparably corrupt juveniles.
5. The question presented is one of federal
constitutional law, not mere state procedural
implementation of a federal constitutional rule. The
state supreme courts that have imposed a fact-finding
requirement derive that requirement from the Eighth
Amendment, as interpreted by this Court. See supra
at 12–16. The one possible exception is the Supreme
Court of Pennsylvania, which appears to base a factfinding requirement on both state procedural
implementation and federal Eighth Amendment law.
See supra at 15–16. Because state supreme courts
have split on a question of federal law, it is the
province of this Court to resolve the issue. See
Michigan v. Long, 463 U.S. 1032, 1040–41 (1983)
(“[W]hen . . . a state court decision fairly appears to
rest primarily on federal law, . . . we will accept as the
most reasonable explanation that the state court
decided the case the way it did because it believed that
federal law required it to do so.”).
22
C.
This case is an excellent vehicle to
decide the question.
1. This case provides a clean vehicle to decide
whether the Eighth Amendment forbids juvenile life
without parole sentences unaccompanied by a finding
of permanent incorrigibility. Because this petition
arises from a direct appeal of Davis’s resentencing,
the legal issue is not complicated by retroactivity
principles or other doctrines that limit collateral
review. The record is clear that neither the trial court
nor the state court of appeals found Davis irreparably
corrupt. The question whether the Eighth
Amendment requires a finding of permanent
incorrigibility is not obscured by other issues in this
case. For example, in some cases, the parties dispute
whether a given juvenile sentence constitutes “life
without parole” within the meaning of Miller and
Montgomery, but in this case, the parties agree that
Davis was sentenced to life without parole. Pet. Miss.
Ct. App. Br. 4-5; Resp. Miss. Ct. App. Br. 5–6.
2. While the Court generally may prefer to grant
review in cases that include a written opinion by a
state court of last resort, the Supreme Court of
Mississippi considered and rejected the argument
that Montgomery requires an incorrigibility finding in
Chandler. See Chandler, 2018 WL 1193479, at *3. The
court filed a reasoned opinion on the issue, and four
justices joined a reasoned dissent. This Court
therefore has the benefit of the considered views of the
Supreme Court of Mississippi on the first question
presented, notwithstanding that court’s decision not
to hear this case.6
6 The majority in Chandler consisted of the same justices who
voted to deny certiorari in this case. The same justices who
23
D.
Now is the ideal moment to decide
the question.
1. Resolution of the required finding question is
time-sensitive, as the wave of resentencings triggered
by Montgomery’s retroactivity holding continue to
progress through state judicial systems.7 If sentencing
a juvenile to life without parole requires a finding of
permanent incorrigibility, then defendants in the
current wave of resentencing hearings should receive
the benefit of that rule. A finding requirement would
almost certainly not apply retroactively.8 Prompt
resolution is critical because juveniles being
sentenced (or resentenced after Montgomery) will get
one bite at the apple. If this Court recognizes a finding
requirement after their sentences become final, the
new rule will not help them.
dissented in Chandler voted to grant Davis’s petition for
certiorari, with the exception of Justice Ishee. Justice Ishee did
not participate in Davis’s case. Pet. App. 1a; Chandler, 2018 WL
1193479.
7 See Associated Press, 50-State Examination, Jul. 31, 2017,
https://www.ap.org/explore/locked-up-for-life/50-states
8 The plurality opinion in Teague v. Lane, 489 U.S. 288 (1989),
establishes that only two types of new rules apply retroactively
on federal habeas review: substantive rules and watershed rules
of procedure. Teague, 489 U.S. at 311; Montgomery, 136 S. Ct. at
728. A required finding surely would not qualify as a substantive
rule—it would be a procedural rule necessary to effectuate the
substantive holding of Miller and Montgomery that the Eighth
Amendment does not permit life without parole sentences for
juveniles who are not permanently corrupt. As for watershed
procedural rules, “the doctrine is highly exceptional.” Dov Fox &
Alex Stein, Constitutional Retroactivity in Criminal Procedure,
91 WASH. L. REV. 463, 466 (2016). The Court has not recognized
a watershed rule in the three decades since Teague. Id.
24
On the other hand, if the Eighth Amendment does
not require a finding of permanent incorrigibility, this
Court’s timely clarification could conserve the
resources of busy state prosecutors and trial judges.
In that case, state appellate courts should stop
throwing out life-without-parole sentences (and often
requiring yet a third sentencing hearing after a
defendant has already been resentenced under Miller
or Montgomery) on the ground that the Eighth
Amendment requires a finding of permanent
incorrigibility. See, e.g., Veal, 784 S.E.2d at 412; Luna,
387 P.3d at 961, 963; People v. Padilla, 4 Cal. App. 5th
656 ,672 (Cal. Ct. App. 2016). Whatever the answer is,
there is benefit to knowing it soon.
2. The division of authority is mature, having
occasioned at least eleven majority opinions and three
dissents by jurists on state courts of last resort. See
supra at 12–18. Further percolation will not help to
resolve the question because the disagreement focuses
on what this Court intended in Montgomery. See
supra at 11–18. Only the Court itself can answer that
question.
II.
In the alternative, the Court should grant
review to decide whether the Eighth
Amendment
prohibits
sentencing
juveniles to life without parole.
Miller reserved the question whether “the Eighth
Amendment requires a categorical bar on life without
parole for juveniles.” 567 U.S. at 479. That question is
ripe for consideration today. In the six years since
Miller, State legislatures have moved decisively to
prohibit the sentence. In other jurisdictions, it hangs
on as matter of law but is dead as a matter of fact. All
told, 34 jurisdictions have eliminated juvenile life
25
without parole entirely or limited the sentence to five
or fewer incarcerated offenders. Meanwhile, cases like
this one—where the sentencing judge failed to
mention Davis’s age and capacity for rehabilitation in
explaining the sentence, and focused almost entirely
on the crime itself—typify the arbitrary manner in
which the sentence is imposed. To send a juvenile to
prison with no hope of getting out alive violates the
Cruel and Unusual Punishments Clause of the Eighth
Amendment.
1. Thirty-four jurisdictions in the United States
have eliminated, or nearly eliminated, juvenile life
without parole. This clear trend toward abolition
demonstrates that our society has come to reject this
extreme punishment. See Graham, 560 U.S. at 62
(stating that legislative enactments and “[a]ctual
sentencing practices” provide objective indicia of
societal consensus); see also Miller, 567 U.S. at 482.
Spurred
by
Miller,
legislatures
have
unambiguously addressed juvenile life without parole
sentences—and rejected their imposition. Prior to
Miller, only four states prohibited the practice.9 Six
years later, the landscape has changed. Seventeen
more jurisdictions now bar the practice by statute or
court ruling, for a total of twenty-one.10 Another six
See Alaska Stat. § 12.55.125; Colo. Rev. Stat. §§ 17-22.5104(IV), 18-1.3-401(4)(b)(1); Kan. Stat. Ann. § 21-6618; Ky. Rev.
Stat. Ann. § 640.040(1).
10 See Juvenile Sentencing Project, Juvenile Life Without Parole
Sentences in the United States, November 2017 Snapshot (Nov.
20, 2017), https://www.juvenilelwop.org/wp-content/uploads/
November%202017%20Snapshot%20of%20JLWOP%20Sentenc
es%2011.20.17.pdf. See also S.B. 294, 91st Gen. Assemb., Reg.
Sess. (Ark. 2017) (amending Ark. Code §§ 5-4-104(b), 5-4-108, 54-602(3), 5-10-101(c), 5-10-102(c), 16-80-104, 16-93-612(e), 16-939
26
613, 16-93-614, 16-93-618, and enacting new sections),
http://www.arkleg.state.ar.us/assembly/2017/2017R/Bills/SB294
.pdf; S.B. 394, Reg. Sess. (Cal. 2017) (amending Cal. Penal Code
§§ 3051, 4801), https://leginfo.legislature.ca.gov/faces/billNav
Client.xhtml?bill_id=201720180SB394; S.B. 796, Jan. Sess.
(Conn. 2015) (amending Conn. Gen. Stat. §§ 54-125a, 46b-127,
46b-133c, 46b-133d, 53a-46a, 53a-54b, 53a-54d, 53a-54a),
https://www.cga.ct.gov/2015/ACT/pa/pdf/2015PA-00084-R00SB00796-PA.pdf; S.B. 9, 147th Gen. Assemb., Reg. Sess. (Del. 2013)
(amending Del. Code Ann. tit. 11, §§ 636(b), 4209(a), 4209A,
4204A),
http://delcode.delaware.gov/sessionlaws/ga147/chp
037.pdf; B21-0683, D.C. Act 21-568 (D.C. 2016) (amending, in
relevant part, D.C. Code §§ 24-403 et seq.); H.B. 2116, 27th Leg.
Sess. (Haw. 2014) (amending Haw. Rev. Stat. §§ 706-656(1), 706657 (2014)); A. 373, 217th Leg. (N.J. 2017) (amending N.J. Stat.
2C:11-3),
http://www.njleg.state.nj.us/2016/Bills/AL17/
150_.PDF; A.B. 267, 78th Reg. Sess. (Nev. 2015) (enacting Nev.
Rev.
Stat.
§§ 176,
176.025,
213,
213.107),
https://www.leg.state.nv.us/Session/78th2015/Bills/AB/AB267_
EN.pdf; H.B. 1195, 65th Leg. Assemb. (N.D. 2017) (amending
N.D. Cent. Code § 12.1-20-03 and enacting § 12.1-32),
http://www.legis.nd.gov/assembly/65-2017/documents/17-058304000.pdf; S.B. 140, 2016 S.D. Sess. Laws ch. 121 (S.D. 2016)
(amending S.D. Codified Laws § 22-6-1 and enacting a new
section),
http://sdlegislature.gov/docs/legsession/2016/Bills/
SB140ENR.pdf; S.B. 2, 83rd Leg., Special Sess. (Tex. 2013)
(amending Tex. Penal Code Ann. § 12.31, Tex. Code Crim. Proc.
Ann. art. 37.071); H.B. 405, 61st Leg., Gen. Sess. (Utah 2016)
(amending Utah Code Ann. §§ 76-3-203.6, 76-3-206, 73-6-207, 736-207.5, 73-6-207.7 and enacting § 76-3-209); H. 62, 73rd Sess.
(Vt. 2015) (enacting Vt. Stat. Ann. tit. 13, § 7045); 5 H.B. 4210,
81st Leg., 2d Sess. (W.Va. 2014) (amending and enacting W. Va.
Code §§ 61-2-2, 61-2-14a, 62-3-15, 62-3-22, 62-3-23, 62-12-13b),
http://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=
HB4210%20SUB%20ENR.htm&yr=2014&sesstype=RS&billtyp
e=B&houseorig=H&i=4210; H.B. 23, 62nd Leg., Gen. Sess. (Wyo.
2013) (amending Wyo. Stat. Ann. §§ 6-2-101, 6-2-306, 6-10-201,
6-10-301, 7-13-402); See also Diatchenko v. District Attorney for
Suffolk Dist., 1 N.E.3d 270 (Mass. 2013) (juvenile life without
parole sentences violate the Massachusetts Constitution); State
27
states appear to have zero juvenile offenders serving
life without parole sentences.11 In seven other states,
five or fewer individuals remain incarcerated
pursuant to such sentences.12 In total, thirty-four
jurisdictions have abandoned juvenile life without
parole sentences or curtailed them to the point of near
elimination.
2. Moreover, only a categorical bar to juvenile life
without parole sentences can prevent the
“‘unacceptable likelihood . . . that the brutality or coldblooded nature of any particular crime [will]
overpower mitigating arguments based on youth as a
matter of course, even where the juvenile offender’s
objective immaturity, vulnerability, and lack of true
depravity
should
require
a
[lesser]
sentence[.]” Graham, 560 U.S. at 77–78 (quoting
Roper, 543 U.S. at 573).
This case provides a troubling illustration of the
very risk that a brutal crime will blind a sentencing
court to the individual defendant before it. The trial
court focused principally on the crime itself,
recounting it in graphic terms. Pet. App. 13a–15a. The
court ignored Davis’s age, in violation of Miller. See id.
at 11a–16a. It failed to address incorrigibility. See id.
The appellate court, in turn, affirmed the sentence in
a cursory opinion that described only the crime and
v. Sweet, 879 N.W.2d 811 (Iowa 2016) (juvenile life without
parole sentences violate the Iowa Constitution).
These are: Maine, Minnesota, Missouri, New Mexico, New
York, and Rhode Island. November 2017 Snapshot, supra, at 8,
9, 10, 11, 14.
11
12 These are: Idaho (4), Indiana (5), Montana (1), Nebraska (4),
New Hampshire (5), Ohio (no more than 3), and Oregon (5). Id.
at 6, 10, 11, 12, 13.
28
totally ignored Davis’s individual circumstances. Id.
at 7a–8a.
3. This case provides an excellent vehicle to
address the question whether the Eighth Amendment
categorically bars life without parole for juveniles.
The posture of the case—direct appeal rather than
collateral review—simplifies the issue. The case
presents the question cleanly, on a complete record,
with the issue fully preserved in the lower courts.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
DAVID M. SHAPIRO
Counsel of Record
RODERICK & SOLANGE MACARTHUR JUSTICE CENTER
NORTHWESTERN PRITZKER SCHOOL OF LAW
375 E. Chicago Ave.
Chicago, IL 60611
(312) 503-0711
david.shapiro@law.northwestern.edu
JACOB HOWARD
RODERICK & SOLANGE MACARTHUR JUSTICE CENTER
UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW
P.O. Box 1848
University, MS 38677
JOSHUA FREIMAN
RODERICK & SOLANGE MACARTHUR JUSTICE CENTER
718 7th St. NW
Washington, DC 20001
Attorneys for Petitioner
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