Petition for Writ of Certiorari — Tina Odom, Petitioner v. California
Supreme Court briefDec 4, 2017
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No. __________
IN THE SUPREME COURT OF THE UNITED STATES
TINA ODOM,
Petitioner
v.
STATE OF CALIFORNIA,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
PETITION FOR WRIT OF CERTIORARI
L. RICHARD BRAUCHER*
Staff Attorney
First District Appellate Project
475 Fourteenth Street, Suite 650
Oakland, California 94612
(415) 495-3119
E-mail: rbraucher@fdap.org
COUNSEL FOR PETITIONER
*Counsel of Record
QUESTION PRESENTED
Does a mandatory sentence of life in prison without parole for a crime
committed when a person was 18 years old violate the Eighth
Amendment, given that an 18-year-old shares the same characteristics
of juveniles relied upon in Miller v. Alabama, 567 U.S. 460 (2012), which
requires individualized consideration of a young person under 18
before imposing a life-without-parole sentence?
PARTIES TO THE PROCEEDINGS
Petitioner, Defendant-Appellant below, is Tina Odom.
Respondent, Plaintiff-Appellee below, is the State of California.
i
TABLE OF CONTENTS
QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
PETITION FOR WRIT OF CERTIORARI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RELEVANT CONSTITUTIONAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE WHETHER A
MANDATORY SENTENCE OF LIFE IN PRISON WITHOUT PAROLE FOR A
CRIME COMMITTED WHEN A PERSON WAS 18 YEARS OLD VIOLATES THE
EIGHTH AMENDMENT, GIVEN THAT AN 18-YEAR-OLD SHARES THE SAME
CHARACTERISTICS OF JUVENILES RELIED UPON IN MILLER V. ALABAMA, 567
U.S. 460 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A.
Introduction and Background. . . . . . . . . . . . . . . . . . . . . . 5
B.
Eighth Amendment Protection of Youthful Offenders Is
Expanding as Standards of Decency Evolve. . . . . . . . . . 6
C.
An 18-Year-Old Shares the Characteristics of Juveniles
Relied upon in Miller to Require Individualized
Consideration of the Defendant Before Imposing a Life
Without Parole Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . 14
ii
1.
Until Their Mid-Twenties, Youth Act Differently
Than Older Adults Because Their Brains Are Different
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
a.
Changes in the brain change behavior
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
b.
Neurological development explains young
people’s observable behaviors and in
appropriate circumstances mitigates their
culpability. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
c.
Neurological development continues far
beyond a person’s eighteenth birthday.. . 21
D.
Since Petitioner Shares the Characteristics Relied upon in
Miller, She Is Entitled to Individual Consideration Before
a Life Without Parole Sentence Is Imposed. . . . . . . . . . 23
E.
Under the Principles Declared in Miller, Petitioner’s
Sentence Violates the Eighth Amendment, Because it Was
Imposed Without Individualized Consideration.. . . . . 29
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iii
TABLE OF AUTHORITIES
FEDERAL CASES
Atkins v. Virginia, 536 U.S. 304 (2002). . . . . . . . . . . . . . . . . . . . . . 7, 24, 25
Ford v. Wainwright, 477 U.S. 399 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 25
Roper v. Simmons, 543 U.S. 551 (2005). . . . . . . . . . . . . . . . . . . . . . . passim
Furman v. Georgia, 408 U.S. 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Graham v. Florida, 560 U.S. 48 (2010). . . . . . . . . . . . . . . . . . . . . . . . passim
Miller v. Alabama, 567 U.S. 460 (2012). . . . . . . . . . . . . . . . . . . . . . . passim
Penry v. Lynaugh, 492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stanford v. Kentucky, 492 U.S. 361 (1989). . . . . . . . . . . . . . . . . . . . . . . . 26
Thompson v. Oklahoma, 487 U.S. 815 (1988). . . . . . . . . . . . . . . . . . . . . . 26
Trop v. Dulles, 356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATE CASES
People v. Argeta, 210 Cal.App.4th 1478 (2012). . . . . . . . . . . . . . . . . . . . 27
People v. Abundio, 221 Cal.App.4th 1211 (2013).. . . . . . . . . . . . . . . . . . 27
People v. House, 410 Ill. Dec. 971 [72 N.E.3d 357, 388] (Ill. App. 2015)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
People v. Perez, 3 Cal.App.5th 612 (2016). . . . . . . . . . . . . . . . . . . . . . . . 27
People v. Young, 11 Cal.App.4th 1299 (1992). . . . . . . . . . . . . . . . . . . . . . 6
State v. O’Dell, 183 Wn.2d 680, 695-696 [358 P.3d 359] (2015).. . . 27, 28
iv
FEDERAL CONSTITUTIONAL PROVISIONS
AND STATUTES
United States Constitution
Eighth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States Code
28 U.S.C. § 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATE STATUTES
California Penal Code
§ 190.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
§ 190.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
OTHER AUTHORITIES
Abigail A. Baird et al., Functional Magnetic Resonance Imaging of Facial
Affect Recognition in Children and Adolescents, 38 J. Am. Acad.
Child & Adolescent Psychiatry 1 ( 1999). . . . . . . . . . . . . . . . . . 16
Alexandra O. Cohen & B.J. Casey, Rewiring Juvenile Justice: The
Intersection of Developmental Neuroscience and Legal Policy, 18
Trends in Cog. Sci. 63 (Feb. 2014). . . . . . . . . . . . . . . . . . . . . . . . 16
B.J. Casey & Kristina Caudle, The Teenage Brain: Self Control, 22(2)
Current Direct. In Psych. Sci. 82 (2013).. . . . . . . . . . . . . 16, 17, 20
Bonnie Halpern-Felsher & Elizabeth Cauffman, Costs and Benefits of a
Decision: Decision-Making Competence in Adolescents and Adults,
22 J. Applied Developmental Psychol., 264 (2001). . . . . . . . . . 18
Brief for the American Medical Association et al., as Amici Curiae in
Support of Neither Party, Miller v. Alabama (2012) 567 U.S. 460
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19
v
Daniel Keating, Cognitive and Brain Development, in Handbook of
Adolescent Psychology 45 (Richard Lerner & Laurence Steinberg
eds., 2d ed. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment
in Adolescence, 18 Behav. Sci. & L. 741 (2000). . . . . . . . . . . 18, 19
Elizabeth Sowell et al., In Vivo Evidence for Post-Adolescent Brain
Maturation in Frontal and Striatal Regions, 2 Nature Neurosci.
859 (1999 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent
Brain, 1021 Ann. N.Y. Acad. Sci. 77 (2004). . . . . . . . . . . . . . 14, 21
Kathryn Modecki, Addressing Gaps in the Maturity of Judgment
Literature: Age Differences and Delinquency, 32 Law & Hum.
Behav. 78 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Kelsey B. Shust, Extending Sentencing Mitigation for Deserving Young
Adults, 104 J. Crim. L. & Criminology 667 (2014.). . . . . . . . 22, 23
Laurence Steinberg, Adolescent Development and Juvenile Justice, 5
Ann. Rev. Clinical Psychol. 47 (2008). . . . . . . . . . . . . . . . . . 18, 19
Laurence Steinberg et al., Age Differences in Sensation Seeking and
Impulsivity as Indexed in Behavior and Self-Report, 44
Developmental Psychol. 1764 (2008).. . . . . . . . . . . . . . . . . . . . . 19
Lucy Wallis, Is 25 the New Cut-Off Point for Adulthood, BBC News
Magazine (September 23, 2013) found at http://www.bbc.com/
news/magazine-24173 l 94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
MIT Young Adult Development Project, Brain Changes
http://hrweb.mit.edu/worklife/youngadult/brain.html (2008)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
vi
National Public Radio, Brain Maturity Extends Well Beyond Teen
Years (2011) found at http://www.npr.org/templates/story/
story.php?storyld=l41164708. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Neir Eshel et al., Neural Substrates of Choice Selection in Adults and
Adolescents, 45 Neuropsychologia 1270 (2007). . . . . . . . . . . . . 17
Nitin Gogtay et al., Dynamic Mapping of the Human Cortical
Development During Childhood Through Early Adulthood, 101
Proc. Nat'l Acad. Sci. 8174 (2004).. . . . . . . . . . . . . . . . . . . . . 14, 21
Sarah Durston et al., Anatomical MRI of the Developing Human Brain:
What Have We Learned? 40 Am. Acad. Child & Adolescent
Psychiatry 1012 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Thomas Grisso et al., Juveniles’ Competence to Stand Trial, 27 Law &
Hum. Behav. 333 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
vii
No. __________
IN THE SUPREME COURT OF THE UNITED STATES
______________
TINA ODOM,
Petitioner
v.
STATE OF CALIFORNIA,
Respondent.
______________
On Petition for Writ of Certiorari
to the Supreme Court of the State of California
______________
PETITION FOR WRIT OF CERTIORARI
Petitioner Tina Odom respectfully petitions this Court for a writ
of certiorari to review the judgment of the California Court of Appeal,
from which review was denied by the Supreme Court of California.
OPINIONS BELOW
The opinion of the California Court of Appeal is unreported.
App. A. The order of the Supreme Court of California denying review
is also unreported. App. B.
1
JURISDICTION
The Court of Appeal entered judgment on May 30, 2017. App. A.
On September 13, 2017, the Supreme Court of California denied
Odom’s petition for review. App. B. This Court has jurisdiction from
a final decision of the highest court in the State of California under 28
U.S.C. § 1254(1).
RELEVANT CONSTITUTIONAL PROVISIONS
The Eighth Amendment provides: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”
STATEMENT OF THE CASE AND FACTS
In 2013, a jury found petitioner Tina Odom guilty of first degree
murder and torture, and found true kidnapping and torture special
circumstances. Petitioner was 18 years old in 2011 when she committed
the offenses and was among several older adults who participated in
them at a house in Fairfield, California. Chief among them was her
mother Ryan Odom who was very strict and was dangerous to
disobey.
2
Petitioner was born in Los Angeles in 1992. Having never known
her biological parents, she lived with her uncle and his various girl
friends until she was five years old. It was then that her uncle adopted
her, and she moved to Solano County for the first time. There, her
father became involved in a long-term relationship with Ryan, who
used her father’s last name, “Odom,” although they were never
married. Due to her father’s itinerant work at various oil refineries, for
the
next decade petitioner moved frequently between her
grandmother’s residence in Los Angeles and Solano County.
When petitioner was 16, her father and Ryan Odom broke up,
and Odom obtained custody of her and her sister. Petitioner suffered
from bipolar disorder and schizophrenia, resulting in auditory
hallucinations that expressed to her thoughts of self-doubt and suicide.
Consequently, petitioner attempted suicide at least ten times.
At age 13, petitioner began cutting herself, which resulted in
visible scars on her arms and legs. Around this time, she began
drinking alcohol in great quantities. However, she stopped drinking
alcohol as a result of one of her suicide attempts when she was 17 years
old—having attempted to consume a gallon of alcohol along with
3
medications. She used ecstasy on a daily basis at age 15 or 16 until she
was 18, taking four to five pills throughout the day.
Petitioner dropped out of high school at the beginning of her
senior year because she could not get out of bed—brought on by
depression and her other mental health difficulties. After dropping
out, she was unemployed but made extra money by braiding hair, baby
sitting, and selling her body. However, until this case, petitioner had
no criminal record whatsoever.
In 2015, a judge imposed a mandatory life-without-parole
sentence upon petitioner. Petitioner appealed.
In an unpublished opinion, the California Court of Appeal
rejected petitioner’s assignments of error, including, relevantly, the
argument that a mandatory sentence of life in prison without parole for
a crime committed when a person was 18 years old violates the Eighth
Amendment, because an 18-year-old shares the same characteristics of
juveniles relied upon in Miller v. Alabama, 567 U.S. 460 (2012), which
requires individualized consideration of a young person under 18
before imposing a life-without-parole sentence. App. A at p. 22. The
California Supreme Court denied review on September 13, 2017. App.
B.
4
REASONS FOR GRANTING THE WRIT
THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE WHETHER A
MANDATORY SENTENCE OF LIFE IN PRISON WITHOUT PAROLE FOR A
CRIME COMMITTED WHEN A PERSON WAS 18 YEARS OLD VIOLATES THE
EIGHTH AMENDMENT, GIVEN THAT AN 18-YEAR-OLD SHARES THE
SAME CHARACTERISTICS OF JUVENILES RELIED UPON IN MILLER V.
ALABAMA, 567 U.S. 460 (2012)
A.
Introduction and Background
Petitioner was 18 at the time of the offense. She was ineligible for
sentencing under California Penal Code section 190.5, which permits
a sentence of 25 to life or life without parole for youth 16 and 17 years
old. California law requires that a minimum sentence of life without
parole be imposed upon a finding of a special circumstance for an
adult. Next to death, it is the most extreme punishment the state may
visit on an offender, and in many ways it is a fate worse than death. For
an 18-year-old offender, California brooks no exceptions to imposition
of that punishment.
California Penal Code section 190.2, subdivision (a) states that
the penalty for first degree murder “is death or imprisonment in the
state prison for life without the possibility of parole” if one or more
special circumstances is found. Where, as here, the State does not seek
the death penalty in a special circumstances case and the jury finds true
the special circumstance alleged, the punishment is life without the
5
possibility of parole and the court had no discretion to impose anything
else. See People v. Young, 11 Cal.App.4th 1299, 1308 (1992).
In Miller v. Alabama, 567 U.S. 460 (2012), this Court held that a life
without parole sentence may not be imposed on a defendant who
committed murder when he was under the age of 18 without first
giving individualized consideration to the defendant. As petitioner will
discuss, the characteristics of juveniles that motivate the decision in
Miller are also characteristics of 18-year-olds like petitioner. Under the
principles discussed in Miller, petitioner is entitled to individualized
consideration before she is sentenced to die in prison. Therefore,
petitioner’s sentence should be reversed, and the matter should be
remanded to the trial court for resentencing in accordance with the
Eighth Amendment.
B.
Eighth Amendment Protection of Youthful Offenders Is
Expanding as Standards of Decency Evolve
The Eighth Amendment provides: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” The provision is applicable to the states
through the Fourteenth Amendment. Roper v. Simmons, 543 U.S. 551,
560 (2005); Furman v. Georgia, 408 U.S. 238, 239 (1972). The Eighth
Amendment guarantees individuals the right not to be subjected to
6
excessive sanctions. Roper v. Simmons, supra, 543 U.S. at 560. The right
flows from the basic “‘precept of justice that punishment for crime
should be graduated and proportioned to [the] offense.’” Atkins v.
Virginia, 536 U.S. 304, 311 (2002). “By protecting even those convicted
of heinous crimes, the Eighth Amendment reaffirms the duty of the
government to respect the dignity of all persons.” Roper v. Simmons,
supra, 543 U.S. at 560.
This Court has held that the prohibition against “cruel and
unusual punishments” must be interpreted in light of, among other
things, “the evolving standards of decency that mark the progress of a
maturing society.” Roper, at 561, citing Trop v. Dulles, 356 U.S. 86,
100–101 (plurality opn.) (1958). The court has found meaningful
evolution of standards of decency over a brief period of time. Compare
Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (Eighth Amendment did not
mandate a categorical exemption from the death penalty for the
mentally retarded) and Atkins v. Virginia, supra, 536 U.S. at
321(execution of the mentally retarded is cruel and unusual
punishment).
Several recent Eighth Amendment cases have specially focused
on youthful offenders, because of their lesser culpability. Miller v.
7
Alabama, supra, 567 U.S. 470. Roper v. Simmons, supra, 543 U.S. at 562,
holds that offenders under 18 at the time of the crime may not be
executed. Graham v. Florida, 560 U.S. 48, 60-61 (2010) holds that a life
without parole sentence may not be imposed on a juvenile offender
who did not commit homicide. Miller holds that the Eighth
Amendment bars mandatory life without parole for a defendant who
was under the age of 18 when he committed murder. Miller v. Alabama,
supra, 567 U.S. at 479.
Miller explained that the issues before it “implicate two strands
of precedent reflecting our concern with proportionate punishment.
The first strand [including Roper and Graham] has adopted categorical
bans on sentencing practices based on mismatches between the
culpability of a class of offenders and the severity of a penalty.
(Citation.)” Id. at 470. And, “Graham … likened life without parole for
juveniles to the death penalty itself, thereby evoking a second line of
our precedents. In those cases, we have prohibited mandatory
imposition of capital punishment, requiring that sentencing authorities
consider the characteristics of a defendant and the details of his offense
before sentencing him to death. (Citations.) Here, the confluence of
these two lines of precedent leads to the conclusion that mandatory
8
life-without-parole sentences for juveniles violate the Eighth
Amendment.” Ibid, fn. omitted.
Miller discussed that Roper and Graham “establish that children
are constitutionally different from adults for purposes of sentencing.
Because juveniles have diminished culpability and greater prospects
for reform, … they are less deserving of the most severe punishments.
(Citation.) Those cases relied on three significant gaps between
juveniles and adults. First, children have a lack of maturity and an
underdeveloped sense of responsibility, leading to recklessness,
impulsivity, and heedless risk-taking. (Citation.) Second, children are
more vulnerable ... to negative influences and outside pressures,
including from their family and peers; they have limited control over
their own environment and lack the ability to extricate themselves from
horrific, crime-producing settings. (Citation.) And third, a child’s
character is not as well formed as an adult's; his traits are less fixed and
his actions less likely to be evidence of irretrievable depravity.
(Citation.)” Id. at 471, interior quotation marks and brackets omitted.
The court rested these findings concerning juveniles on common
sense and also on “science and social science.” Ibid. Graham noted that
“developments in psychology and brain science continue to show
9
fundamental differences between juvenile and adult minds”—for
example, in “parts of the brain involved in behavior control.” Graham
v. Florida, supra, 560 U.S. at 68. Graham “reasoned that those
findings—of transient rashness, proclivity for risk, and inability to
assess consequences—both lessened a child's moral culpability and
enhanced the prospect that, as the years go by and neurological
development occurs, his deficiencies will be reformed.” Miller v.
Alabama, supra, 567 U.S. at 472, interior quotation marks omitted.)
Miller also discussed that “Roper and Graham emphasized that the
distinctive attributes of youth diminish the penological justifications for
imposing the harshest sentences on juvenile offenders, even when they
commit terrible crimes. Because the heart of the retribution rationale
relates to an offender's blameworthiness, the case for retribution is not
as strong with a minor as with an adult. (Citations.) Nor can deterrence
do the work in this context, because the same characteristics that render
juveniles less culpable than adults—their immaturity, recklessness, and
impetuosity—make them less likely to consider potential punishment.
(Citation.) Similarly, incapacitation could not support the life-withoutparole sentence because deciding that a juvenile offender forever will
be a danger to society would require “making a judgment that he is
10
incorrigible—but incorrigibility is inconsistent with youth. (Citation.)
And for the same reason, rehabilitation could not justify that sentence.
Life without parole forswears altogether the rehabilitative ideal.
(Citation.) It reflects an irrevocable judgment about [an offender's]
value and place in society, at odds with a child's capacity for change.
(Citation.)” Id. at 472-473, interior quotation marks and brackets
omitted.
Miller acknowledged that “Graham’s flat ban on life without
parole applied only to nonhomicide crimes …. But none of what it said
about children—about their distinctive (and transitory) mental traits
and environmental vulnerabilities—is crime-specific. …. So Graham’s
reasoning implicates any life-without-parole sentence imposed on a
juvenile ….” Miller, at 473, interior quotation marks and brackets
omitted.
Having described the gaps between juveniles and adults, Miller
next considered Graham’s comparison of life-without-parole sentences
imposed on juveniles to the death penalty itself. “Life-without-parole
terms share some characteristics with death sentences that are shared
by no other sentences. (Citation.) Imprisoning an offender until he dies
alters the remainder of his life by a forfeiture that is irrevocable.
11
(Citation.) And this lengthiest possible incarceration is an especially
harsh punishment for a juvenile, because he will almost inevitably
serve more years and a greater percentage of his life in prison than an
adult offender. (Citation.) The penalty when imposed on a teenager, as
compared with an older person, is therefore the same ... in name only.
(Citation.).” Miller, at 474-475, interior quotation marks omitted.
Since imposing a life without parole sentence on a defendant
who was under 18 at the time of his crime is like imposing a death
sentence, procedures similar to those used in imposing the death
penalty are required. Miller declined to extend Graham’s categorical ban
on life without parole sentences for juveniles who do not commit
murder to those who do. Miller held, however, that the sentencing
court must “take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a
lifetime in prison.” Id. at 480. Miller did not foreclose a life without
parole sentence in homicide cases, but it stated,”[G]iven all we have
said in Roper, Graham, and this decision about children’s diminished
culpability and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will
be uncommon. That is especially so because of the great difficulty we
12
noted in Roper and Graham of distinguishing at this early age between
the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption. (Citation.)” Id. at 479-480, fn. and interior
quotation marks omitted. Miller concluded, “Graham, Roper, and our
individualized sentencing decisions make clear that a judge or jury
must have the opportunity to consider mitigating circumstances before
imposing the harshest possible penalty for juveniles. By requiring that
all children convicted of homicide receive lifetime incarceration
without possibility of parole, regardless of their age and age-related
characteristics and the nature of their crimes, the mandatory sentencing
schemes before us violate this principle of proportionality, and so the
Eighth Amendment's ban on cruel and unusual punishment. We
accordingly reverse the judgments … and remand the cases for further
proceedings not inconsistent with this opinion.” Id. at 489.
As petitioner will discuss below, the principles enunciated in
Miller require reversal of her sentence and remand for resentencing.
13
C.
An 18-Year-Old Shares the Characteristics of Juveniles Relied
upon in Miller to Require Individualized Consideration of the
Defendant Before Imposing a Life Without Parole Sentence
1.
Until Their Mid-Twenties, Youth Act Differently Than
Older Adults Because Their Brains Are Different
The developing structures and processes within the adolescent
brain explain what every parent knows: young people are more
reckless and more susceptible to negative social pressures than they
will be when they reach full adulthood. Magnetic resonance imaging
and other modern technologies that allow neuroscientists to explore
the inner workings of the human brain have proven that
neurological development continues well into a person’s twenties.1
While the rate at which this natural developmental occurs and
the impact it has varies from young person to young person, this ongoing development changes youth as a group from foolhardy, riskseeking teenagers into mature, more centered adults. As explained by
the
American Medical Association: “Adolescents' behavioral
immaturity mirrors the anatomical immaturity of their brains. To a
1
Jay N. Giedd, Structural Magnetic Resonance Imaging of the
Adolescent Brain, 1021 Ann. N.Y. Acad. Sci. 77 (2004); Nitin Gogtay et
al., Dynamic Mapping of the Human Cortical Development During
Childhood Through Early Adulthood, 101 Proc. Nat'l Acad. Sci. 8174, 8177
(2004); cf , Roper, 543 U.S. at 574.
14
degree never before understood, scientists can now demonstrate that
adolescents are immature not only to the observer's naked eye, but in
the very fiber of their brains.” Brief for the American Medical
Association et al., as Amici Curiae in Support of Respondent at p. 10,
Roper v. Simmons, supra, 543 U.S. 551.
a.
Changes in the brain change behavior
Neurological maturity requires the normal development of a
number of different regions and systems within the human brain.2 Two
structures have particular relevance to questions of criminal
culpability, the limbic system and the prefrontal cortex. The limbic
system, which includes the amygdala and the nucleus accumbens, is
associated with emotional and motivational processes and the “fight
2
The American Medical Association and the American
Psychological Association both filed amici curiae briefs in the United
States Supreme Court during the pendency of the Miller decision. These
two briefs discuss the relevant psychosocial research and the science of
juvenile brain development in significant detail. See Brief for the
American Psychological Association et al., as Amici Curiae in Support
of Petitioners, Miller v. Alabama, 567 U.S. 460 (hereinafter “APA Brief”);
also, Brief for the American Medical Association et al., as Amici Curiae
in Support of Neither Party, Miller v. Alabama, 567 U.S. 460 (hereinafter
“AMA Brief”).
15
or flight” response.3 The prefrontal cortex controls the “executive
functions,” including emotional regulation, impulse control, working
memory, risk assessment and the ability to evaluate future
consequences.4 When fully developed, it modulates impulsive
behavioral urges emanating from the amygdala and other structures of
the limbic system.5 The structures of the limbic system lie deep within
the brain and develop earlier and at a faster rate than does the prefrontal cortex.6
Through adolescence and into early adulthood, the brain
undergoes a thinning process or "pruning''. Redundant and
cumbersome neural connections within the brain's gray matter begin
to close down, channeling electrical brain activity into fewer and
3
Abigail A. Baird et al., Functional Magnetic Resonance Imaging of
Facial Affect Recognition in Children and Adolescents, 38 J. Am. Acad.
Child & Adolescent Psychiatry 1, 1 ( 1999).
4
Elizabeth Sowell et al., In Vivo Evidence for Post-Adolescent Brain
Maturation in Frontal and Striatal Regions, 2 Nature Neurosci. 859, 860
(1999).
5
B.J. Casey & Kristina Caudle, The Teenage Brain: Self Control,
22(2) Current Direct. In Psych. Sci. 82-87, 84 (2013).
6
Alexandra 0. Cohen & B.J. Casey, Rewiring Juvenile Justice: The
Intersection of Developmental Neuroscience and Legal Policy, 18 Trends in
Cog. Sci. 63, 63 (Feb. 2014).
16
stronger neural pathways.7 Fatty, white matter called myelin begins to
surround these developing pathways insulating them and allowing
electrical impulses to accelerate and flow more smoothly between
regions of the brain.8 As these processes of pruning and myelination
continue through adolescence and into adulthood, the prefrontal cortex
exercises more control over the earlier developing, lower level regions
of the brain.
The dynamic nature of this development accounts for a great
deal of the behavioral changes youth exhibit as they age.9 Until fully
reaching mature adulthood, young people’s behavior and decision
making are more heavily influenced by the amygdala and other more
primitive neurological regions.10 A youth’s reliance on these earlier
developing regions results in an imbalance of the neurotransmitters
7
Sarah Durston et al., Anatomical MRI of the Developing Human
Brain: What Have We Learned? 40 Am. Acad. Child & Adolescent
Psychiatry 1012, 1014 (2001).
8
Cohen & Casey, supra, fn. 6.
9
See Neir Eshel et al., Neural Substrates of Choice Selection in
Adults and Adolescents, 45 Neuropsychologia 1270, 1270-1271 (2007);
Kathryn Modecki, Addressing Gaps in the Maturity of Judgment Literature:
Age Differences and Delinquency, 32 Law & Hum. Behav. 78, 79-80 (2008).
10
Cohen & Casey, supra, fn.6.
17
that regulate pleasure and the desire for rewards, dopamine and
serotonin.11 Higher dopamine levels produce correspondingly stronger
desires for immediate pleasure and gratification, while their less
developed neurological structures make youth less able to resist these
heightened urges.
The areas of the brain that regulate cognition and logic develop
relatively early in adolescence.12 However, social and emotional
maturity continue to develop well into early adulthood with the
developing pre-frontal cortex.13 In other words, teenagers have the
neurological foundation to support logical, rational thinking, but lack
self-restraint and the ability to fully comprehend consequences,
especially in emotionally- charged settings.14
11
Laurence Steinberg, Adolescent Development and Juvenile Justice,
5 Ann. Rev. Clinical Psychol. 47, 54 (2008).
12
See Thomas Grisso et al., Juveniles’ Competence to Stand Trial,
27 Law & Hum. Behav. 333-334 (2003); Daniel Keating, Cognitive and
Brain Development, in Handbook of Adolescent Psychology 45, 64 (Richard
Lerner & Laurence Steinberg eds., 2d ed. 2004).
13
See Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of
Judgment in Adolescence, 18 Behav. Sci. & L. 741, 756, 758. (2000).
14
Id. at pp. 743-745; Bonnie Halpern-Felsher & Elizabeth
Cauffman, Costs and Benefits of a Decision: Decision-Making Competence
in Adolescents and Adults, 22 J. Applied Developmental Psychol., 264-271
(2001).
18
Until full neurological maturity, young people in general have
less ability to control their emotions, clearly identify consequences, and
make reasoned decisions than they will when they enter their late
twenties and beyond.
b.
Neurological development explains young
people’s observable behaviors and in appropriate
circumstances mitigates their culpability
Psychological studies and controlled observations of young
people's behavior demonstrate that the same impulses to explore and
experiment that allow youth to learn also compel them towards risky,
sensation-seeking behaviors. Adolescents score significantly lower
than adults on assessments measuring “impulse control” and
“suppression of aggression.”15 Even youth who have developed
cognitive abilities similar to adults do not have the same ability to selfregulate their behaviors, modulate their emotions or weigh the
consequences of their actions.16 The science proves that youth reduces
15
Cauffman & Steinberg, supra, fn.13 at p. 748-49, 754 & tbl. 4; see
also, Laurence Steinberg et al., Age Differences in Sensation Seeking and
Impulsivity as Indexed in Behavior and Self-Report, 44 Developmental
Psychol. 1764, 1774-76 (2008).
16
APA Brief at p. 8; also, Laurence Steinberg, Adolescent
Development and Juvenile Justice , 5 Ann. Rev. Clinical Psychol. 47, 55-56
(2008).
19
culpability and is therefore relevant to the sentence imposed upon an
individual defendant. “[T]he relevance of youth as a mitigating factor
derives from the fact that the signature qualities of youth are transient;
as individuals mature, the impetuousness and recklessness that may
dominate in younger years can subside.” Roper, 543 U.S. at 570. And so,
young people must be treated differently in some circumstances. “An
offender’s age is relevant to the Eighth Amendment, and criminal
procedure laws that fail to take defendants' youthfulness into account
at all would be flawed.” Graham, 560 U.S. at 76. However, these
transitory characteristics do not require that all young people be treated
differently in all circumstances.
Rather, this Court has acknowledged that the relevance of a
defendant’s age to a crime will vary by crime and by individual. Cf
Miller, at 475. (requiring courts to consider “the character and record of
the individual offender or the circumstances of the offense,” and “the
possibility of compassionate or mitigating factors,” including a
defendant’s age, before sentencing a youth to life without parole). This
is a stance supported by the science.17 However, the science also
17
B.J. Casey & Kristina Caudle, The Teenage Brain: Self Control,
22(2) Current Direct. In Psych. Sci. 82-87, 83 (2013) (noting that though
as a group adolescents show poor self-control, there exist "striking
20
justifies allowing a court to grant a young person an exceptional
sentence downward when it is warranted, even for an 18 year old or
older defendant.
c.
Neurological development continues far beyond a
person’s eighteenth birthday
Eighteen does not represent a neurological milestone of any
consequence. The pruning and myelination processes continue well
into a young person’s mid-twenties.18 As this Court has recognized, a
young person like Tina Odom who was 18 on the day of her crime is no
more neurologically developed than a young person one year short of
her 18th birthday.
differences" between individual adolescents in emotional regulation
and decision-making).
18
Jay N. Giedd, Structural Magnetic Resonance Imaging of the
Adolescent Brain, 1021 Ann. N.Y. Acad. Sci. 77 (2004); Nitin Gogtay et
al., Dynamic Mapping of the Human Cortical Development During
Childhood Through Early Adulthood, 101 Proc. Nat'l Acad. Sci. 8174,
8177 (2004); see generally, Brain Changes, MIT Young Adult
D e v e l o p m e n t
P r o j e c t ,
http://hrweb.mit.edu/worklife/youngadult/brain.html (2008); National
Public Radio, Brain Maturity Extends Well Beyond Teen Years (2011)
f
o
u
n
d
a
t
https://www.npr.org/templates/story/story.php?storyId=141164708;
Lucy Wallis, Is 25 the New Cut-Off Point for Adulthood, BBC News
Magazine
(September 23, 2013) found
at
http://www.bbc.com/news/magazine-24173 l 94
21
Drawing the line at 18 years of age is subject, of course, to
the objections always raised against categorical rules. The
qualities that distinguish juveniles from adults do not
disappear when an individual turns 18. By the same
token, some under 18 have already attained a level of
maturity some adults will never reach.
Roper, 543 U.S. at 574.
Long standing legal and societal views of early adulthood track these
biological facts.
According to recent findings, the human brain does not
reach full maturity until at least the mid-20s .. .[T]he rental
car companies have it right. The brain isn't fully mature at
16, when we are allowed to drive, or at 18, when we are
allowed to vote, or at 21, when we are allowed to drink,
but closer to 25, when we are allowed to rent a car.19
Until a person reaches his mid-twenties, neurological immaturity limits
a young person's ability to control his emotions, consider consequences
and make reasoned decisions. And though brain development plays
out in different ways with different people, the biological facts support
a 25-to-life sentence in some instances.
Indeed, scientific research continues to demonstrate that a bright
line at 18 is untenable. (Kelsey B. Shust, Extending Sentencing Mitigation
19
MIT Young Adult Development Project, Brain Changes,
http://hrweb.mit.edu/worklife/youngadult/brain.html (2008).
22
for Deserving Young Adults, 104 J. Crim. L. & Criminology 667, 685-689
(2014.)
D.
Since Petitioner Shares the Characteristics Relied upon in
Miller, She Is Entitled to Individual Consideration Before a
Life Without Parole Sentence Is Imposed
The results in Graham and Miller are driven by the incomplete
mental development of persons of the age of the defendants in those
cases, as a class, as documented in scientific literature. They are less
deserving of the harshest sentences, even when they commit terrible
crimes, due to “the distinctive attributes of youth.” (Miller, at 472;
Graham, 560 U.S., at 71.
And, as discussed above, scientific literature demonstrates that
the mental development of persons of age 18—petitioner’s age at the
time of the offenses—continues to be incomplete in ways relevant to
behavior control. Under Graham and Miller, this fact is relevant to
petitioner’s punishment and must be considered before imposing a life
without parole sentence. Miller did not protect the defendant murderer
because he was under age 18, but because the likely circumstances of
his mental development were such that our evolving standards of
decency require that his characteristics receive individualized attention
before a sentence as extreme as life without parole may be imposed.
23
Common sense and scientific literature indicate that the circumstances
of petitioner’s mental development are not materially distinguishable
from those of a 17-year-old, who is automatically entitled to the benefit
of Miller. That the offenses were committed when she was past 18 is
insufficient reason to deny her the rights she would now receive under
Miller if she had been months younger.
As we have pointed out, Roper acknowledged that a clear line
between adults and children would produce anomalies: “Drawing the
line at 18 years of age is subject, of course, to the objections always
raised against categorical rules. The qualities that distinguish juveniles
from adults do not disappear when an individual turns 18.” Roper v.
Simmons, supra, 543 U.S. at 574. But Roper says, “[A] line must be
drawn.” Ibid. This is true if the decision is made to define the protected
class by age.
But the protected class may also be defined by
characteristics. That is the way persons with mental impairments are
protected. Under Atkins, mentally retarded persons may not be
executed. Atkins v. Virginia, supra, 536 U.S. at 321. As to who is mentally
retarded and who is not, Atkins quotes a typical definition, as follows:
“Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage intellectual
24
functioning, existing concurrently with related limitations in two or
more of the following applicable adaptive skill areas: communication,
self-care, home living, social skills, community use, self-direction,
health and safety, functional academics, leisure, and work.” Mental
retardation manifests before age 18. (Citation.)” Id., at 309 & fn. 3, 317
& fn. 22. Application of this definition requires case by case analysis,
but this Court found that was no obstacle to granting protection to the
class of mentally retarded persons: “To the extent there is serious
disagreement about the execution of mentally retarded offenders, it is
in determining which offenders are in fact retarded. …. Not all people
who claim to be mentally retarded will be so impaired as to fall within
the range of mentally retarded offenders about whom there is a
national consensus. As was our approach in Ford v. Wainwright, 477
U.S. 399 (1986) with regard to insanity, ‘we leave to the State[s] the task
of developing appropriate ways to enforce the constitutional restriction
upon [their] execution of sentences.’ (Citation.)” Atkins v. Virginia,
supra, 536 U.S. at 317, fn. omitted. In the same way Atkins applies to
those who exhibit the characteristics on which it relies, Miller should
extend to young persons who scientific literature show to have the
same characteristics as those discussed in Miller and Graham. Roper
25
says, “The age of 18 is the point where society draws the line for many
purposes between childhood and adulthood.” Roper v. Simmons, supra,
543 U.S. at 574. However, the age of 21 is also a common age for social
advancement. As a definition of exposure to the most serious penalties
for crimes committed, 21 would be more reflective of physiological
development affecting moral culpability and possibility of change.
Adolescence, supra. Eighth Amendment law concerning youthful
offenders has developed quickly, as the following overview shows:
Thompson v. Oklahoma, 487 U.S. 815 (1988) held by a plurality that
our standards of decency do not permit the execution of any offender
under the age of 16 at the time of the crime. (Id., at 818–838.) Stanford
v. Kentucky, 492 U.S. 361 (1989) held that our standards of decency do
not proscribe the execution of juvenile offenders of age 16 and 17. Id.,
at 380. Roper v. Simmons, supra, 543 U.S. at 562, held that offenders
under 18 at the time of the crime may not be executed. Graham v.
Florida, supra, 560 U.S. at 60-61, held that a life without parole sentence
may not be imposed on a juvenile offender who did not commit
homicide. Miller v. Alabama, supra, 567 U.S. at 479 held that a sentence
of life imprisonment without the possibility of parole may not be
26
imposed on a juvenile murderer without individualized consideration
of the offender.
This summary shows that the law in this area is undergoing
rapid expansion. Extending Miller, requiring individual attention
before imposing a life without parole sentence on a defendant who was
under 18 when the homicide occurred, to petitioner, who was 18 years
old at the time of the homicides is, at most, a minimal expansion,
because Miller reaches its result based on the defendants’
characteristics, and, as an 18-year-old, petitioner shares those
characteristics.
The Court of Appeal in this case perfunctorily rejected
petitioner’s claim, stating, “No case, however, has adopted defendant's
proposed expansion of Miller, and several California cases have
rejected it.” (App. A at p. 22., citing People v. Argeta, 210 Cal.App.4th
1478 (2012), People v. Perez, 3 Cal.App.5th 612 (2016), People v. Abundio,
221 Cal.App.4th 1211 (2013).) The rationale, drawn from Argeta at 482,
posits: “Such arguments would have no logical end, and so a line must
be drawn at some point.” Of course, this is not a rationale at all.
And it is untrue that other courts have never extended Miller’s
rationale beyond age 17. The Washington Supreme Court in State v.
27
O’Dell, 183 Wn.2d 680, 695-696 [358 P.3d 359] (2015) (O’Dell), applied
Miller and its antecedents to an 18-year-old, observing that, given “the
benefit of [] advances in the scientific literature [,...] we now know that
age may well mitigate a defendant’s culpability, even if that defendant
is over the age of 18.” The O’Dell court went on to hold that, as “a
substantial and compelling factor, in particular cases,” a court may
consider a defendant’s youth as a mitigating factor justifying an
exceptional sentence below the sentencing guidelines under
Washington’s Sentencing Reform Act. O’Dell, at 695-696.
In People v. House, 410 Ill. Dec. 971 [72 N.E.3d 357, 388] (Ill. App.
2015), the Illinois Court of Appeal held that Illinois’s mandatory
natural life sentencing statute unconstitutional as applied to the 19year-old in that case. “[W]e find the designation that after age 18 an
individual is a mature adult appears to be somewhat arbitrary,
especially in the case at bar.
Recent research and articles have
discussed the differences between young adults, like defendant, and a
fully mature adult. ‘Research in neurobiology and developmental
psychology has shown that the brain doesn't finish developing until the
mid-20s, far later than was previously thought. Young adults are more
similar to adolescents than fully mature adults in important ways. They
28
are more susceptible to peer pressure, less future-oriented and more
volatile in emotionally charged settings.’” People v. House, supra, 72
N.E.3d 357, 387.
This Court therefore should apply the principles of Miller to
petitioner’s case and reverse petitioner’s sentence.
E.
Under the Principles Declared in Miller, Petitioner’s Sentence
Violates the Eighth Amendment, Because it Was Imposed
Without Individualized Consideration
Miller requires individual consideration before a life without
parole sentence may be imposed on a juvenile who committed murder.
Miller, 567 U.S., at 480. The sentencing court must “take into account
how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” Ibid. “A judge or
jury must have the opportunity to consider mitigating circumstances
before imposing the harshest possible penalty for juveniles” and must
consider
the
youth’s
“chronological age
and its hallmark
features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences,” “the family and home
environment that surrounds him—and from which he cannot usually
extricate himself—no matter how brutal or dysfunctional,” “the
circumstances of the homicide offense, including the extent of his
29
participation in the conduct and the way familial and peer pressures
may have affected him,” “that he might have been charged and
convicted of a lesser offense if not for incompetencies associated with
youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to assist
his own attorneys,” and “the possibility of rehabilitation.” Miller, at
477-478.
Petitioner received no individualized consideration of the kind
contemplated by Miller.
Yet petitioner’s case cried out for this
consideration. By all accounts, petitioner was not provided with a
stable home. Having never known her biological parents, she lived
with her uncle then with Odom. 2 RT 564. Petitioner suffered from
bipolar
disorder
and
schizophrenia,
resulting
in
auditory
hallucinations, and at least ten suicide attempts. 2 CT 331. Petitioner
used ecstasy on a daily basis at age 15 or 16 until she was 18, taking
four to five pills throughout the day. 2 CT 334. Petitioner dropped out
of high school at the beginning of her senior year because she could not
get out of bed—brought on by depression and her other mental health
difficulties.
30
It is self-evident that the family and home environment that
surrounded petitioner, from which she could not extricate herself, was
brutal and dysfunctional. Odom was very strict, and it was dangerous
to disobey her. 1 RT 190; 2 RT 523; 3 RT 676. As an example, Odom
punched Jennifer Whittington in the face while she was sleeping. 2 RT
523. She beat the children for disobeying and was very controlling.
Everyone, including petitioner, obeyed her to avoid conflict. 2 RT 564.
The extent of petitioner’s participation in the offenses was
markedly less than that of Odom or Armstrong.
Much familial
pressure was in evidence. There is abundant evidence that petitioner’s
deeds were done at Odom’s behest.
This was pivotal to the
prosecutor’s theory of the case, in which Odom was a “general” who
planned everything, and petitioner was a “good soldier” who assisted
her. 3 RT 868.
Accordingly, this court should grant the petition for a writ of
certiorari, and vacate and remand the matter remanded for
resentencing in accordance with the Eighth Amendment.
31
CONCLUSION
For all the reasons set forth above, Tina Odom respectfully
asks this Court to grant certiorari.
Dated: December 4, 2017
Respectfully submitted,
L. RICHARD BRAUCHER
Staff Attorney
Counsel of Record for Petitioner
32
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.