Petition for Writ of Certiorari — Hunter Fussell, Petitioner v. Louisiana

Supreme Court briefMay 8, 2020

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No. 19IN THE

6uprente Court of tbe Iluiteb €tate5

HUNTER FUSSELL, an individual,

Petitioner,

STATE OF LOUISIANA,

Respondent.

On Petition For A Writ Of Certiorari

To The Louisiana Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Shannon Christian

22nd JDC Public

Defender's Office

402 North Jefferson

Avenue

Covington, LA 70433

(985) 809-1498

Adam Pierson

Counsel of Record

Kenneth Schmetterer

Trumon Phillips

Virginia Weeks

Dante Alessandri

DLA Piper LLP (US)

1900 N. Pearl Street

Suite 2200

Dallas, Texas 75201

(214) 743-4512

adam.pierson@dlapiper.com

Counsel for Petitioner

QUESTIONS PRESENTED

The transfer of a child from juvenile court to a

criminal court is a "critically important action." Kent

v. United States, 383 U.S. 541, 556 (1966). It exposes

children to increased prison sentences, placement in

an adult prison system, and criminal proceedings for

which they are at a "significant disadvantage [.]" Graham v. Florida, 560 U.S. 48, 78 (2010). Multiple

courts have held that the Due Process Clause

protects children from an arbitrary transfer. Others

will give a child due process protections only if a

state statute creates a liberty interest for the child to

remain in juvenile court. Those courts, however,

disagree over when a state creates a liberty interest.

The decision below places Louisiana squarely on the

most restrictive end of this range by allowing the

automatic and irrevocable transfer of a 15-year-old

child from the jurisdiction of a juvenile court to a

criminal court without due process.

The questions presented are:

1. Whether the Due Process Clause requires that

a child receive an individualized hearing before being placed in criminal court to be tried as an adult.

2. Whether a state statute that places children

in the exclusive jurisdiction of its juvenile courts creates a liberty interest that is protected by the Due

Process Clause.

PARTIES TO THE PROCEEDING

Petitioner Hunter Fussell is the defendantappellee below.

Respondent the State of Louisiana is the plaintiffappellant below.

111

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

iii

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

INTRODUCTION

STATEMENT

REASONS FOR GRANTING THE PETITION .... 10

THE COURT SHOULD RESOLVE THE

CONFUSION REGARDING THE DUE

PROCESS RIGHTS GRANTED TO

CHILDREN CHARGED WITH CRIMINAL

CONDUCT.

II. THIS CASE PRESENTS AN IDEAL

OPPORTUNITY TO RESOLVE THE ISSUE

OF DUE PROCESS RIGHTS FOR

CHILDREN.

A. The decision below ignored the liberty

interest created for children by the Due

Process Clause.

B. The decision below ignored the liberty

interest created by the Louisiana

Children's Code.

III. A CHILD'S DUE PROCESS RIGHT IS AN

IMPORTANT ISSUE.

A. Several jurisdictions allow the automatic

children

criminal

transfer

jurisdiction, often from a juvenile court's

jurisdiction

B. Treating children as adults harms the

child and harms society

CONCLUSION

APPENDIX INDEX

APPENDIX A—December 11, 2019 Louisiana

Supreme Court Opinion

APPENDIX B—April 24, 2019 Louisiana

22nd Judicial District Court Reasons for Judgement Granting Motion to Quash

31a

TABLE OF AUTHORITIES

Page(s)

CASES

In re Boot,

925 P.2d 964 (Wash. 1996)

Bouge v. Reed,

459 P.2d 869 (Or. 1969)

15, 16

Breed v. Jones,

421 U.S. 519 (1975)

i, 7, 31

C.D. v. State,

458 P.3d 81 (Alaska 2020)

Flakes v. People,

153 P.3d 427 (Colo. 2007), as modified

on denial of reh'g (Mar. 19, 2007) (en

bane)

15, 16

Gagnon v. Scarpelli,

411 U.S. 778 (1973)

In re Gault,

387 U.S. 1 (1967)

Gingerich v. State,

979 N.E.2d 694 (Ind. Ct. App. 2012)

18, 33

Graham v. Florida,

560 U.S. 48 (2010), as modified (July 6,

2010)

passim

J.D.B. v. North Carolina,

564 U.S. 261 (2011)

24, 25

Kent v. United States,

383 U.S. 541 (1966)

passim

Miller v. Alabama,

567 U.S. 460 (2012)

passim

Morrissey v. Brewer,

408 U.S. 471 (1972)

28, 29

People v. Patterson,

25 N.E.3d 526 (III. 2014)

Rapier v. Harris,

172 F.3d 999 (7th Cir. 1999)

Roper v. Simmons,

543 U.S. 551 (2005)

passim

Smith v. Sullivan,

1 F. Supp. 2d 206 (W.D.N.Y. 1998)

17, 32

State ex rel. S.D., 832 So. 2d 415 (La. App. 4

Cir. 2002)

State v. Brown,

879 So. 2d 1276 (La. 2004)

State v. Grigsby,

818 N.W.2d 511 (Minn. 2012)

17, 32, 33

State v. Watkins,

423 P.3d 830 (Wash. 2018)

16, 17, 18

vii

Thompson v. Oklahoma,

487 U.S. 815 (1988)........................................24, 26

United States v. Bland,

472 F.2d 1329 (D.C. Cir. 1972) ............................18

Vitek v. Jones,

445 U.S. 480 (1980).................................. 22, 23, 28

Washington v. Glucksberg,

521 U.S. 702 (1997)..............................................22

Wilkinson v. Austin,

545 U.S. 209 (2005)........................................14, 22

Woodard v. Wainwright,

556 F.2d 781 (5th Cir. 1977)................................15

Youngberg v. Romeo,

457 U.S. 307 (1982)..............................................22

CONSTITUTIONAL PROVISION

U.S. Const. amend. XIV ................................ 2, 28, 29

STATUTES

28 U.S.C. § 1257 ..........................................................2

34 U.S.C. § 30301 ......................................................26

42 U.S.C. § 15601 ......................................................26

Ala. Code § 12-15-204 ................................... 34, 35, 36

Alaska Stat. § 47.12.030 ...........................................37

viii

Alaska Stat. § 47.12.100

34, 35, 36

Ariz. Rev. Stat. § 13-501

34, 35

Ark. Code § 9-27-318

34, 35

Cal. Welf. & Inst. Code §§ 602, 707

34, 35

Colo. Rev. Stat. § 19-2-517

34, 35

Conn. Gen. Stat. § 46b-127

D.C. Code § 16-2301

Del. Code tit. 11, § 1447A

Fla. Stat. § 985.557

34, 35, 36

Ga. Code § 15-11-560

Idaho Code § 20-509

34, 35, 36

Ill. Comp. Stat. 405/5-130

34, 35, 36

Ind. Code § 31-30-1-4

34, 35, 36

Iowa Code § 232.8

34, 35

La. Child. Code art. 102

La. Child. Code art. 305

passim

La. Child. Code art. 404

La. Child. Code art. 801

La. Child. Code art. 877

La. Child. Code art. 884

La. Child. Code art. 897

La. Child. Code art. 897.1

6, 31

La. Child. Code art. 901

La. Child. Code art. 917

La. Child. Code art. 918

19, 39

La. Code Crim. Proc. art. 578

La. Code Crim. Proc. art. 977

La. Rev. Stat. § 15:574.4

7, 9, 21, 32

La. Rev. Stat. § 15:828

9, 39

La. Rev. Stat. § 15:906

La. Rev. Stat. § 17:10.9

9, 19

La. Rev. Stat. § 17:3911

La. Rev. Stat. § 42:1701

Mass. Gen. Laws ch. 119, § 54

Mass. Gen. Laws ch. 119, § 74

34, 36

Md. Code, Cts. & Jud. Proc. § 3-8A-03

34, 35

Mich. Comp. Laws § 600.606

34, 35

Minn. Stat. § 260B.007

34, 35, 36

Miss. Code § 43-21-151

34, 35

Mont. Code § 41-5-206

34, 35

N.C. Gen. Stat. § 7B-2200

N.D. Cent. Code § 27-20-34

N.J. Stat. § 2A:4A-26

N.M. Stat. § 32A-1-8

34, 35, 36

N.Y. Crim. Proc. Law. § 1.20

34, 35

N.Y. Penal Law § 30.00

34, 35

Nev. Rev. Stat. § 62B.330

34, 35

Ohio Rev. Code § 2152.10

Okla. Stat. tit. 10A, § 2-5-204

34, 35

Or. Rev. Stat. § 137.707

34, 36

Pa. Cons. Stat. § 6302

Pa. Cons. Stat. § 6321

S.C. Code § 63-3-510

S.C. Code § 63-19-20

S.D. Codified Laws § 26-11-3.1

Utah Code § 78A-6-701

Va. Code § 16.1-269.1

35, 36

Vt. Stat. tit. 33 § 5201

W. Va. Code § 49-4-710

35, 36

W. Va. Code § 49-4-710(j)

Wash. Rev. Code § 13.40.110

Wash. Rev. Code § 13.0430

Wis. Stat. § 938.183

35, 36

Wyo. Stat. § 14-6-203

35, 36

Wyo. Stat. § 14-6-237

Other Authorities

David L. Myers, The Recidivism of Violent

Youth in Juvenile and Adult Court: A

Consideration of Selection Bias

Ian M. Kysel, Banishing Solitary:

Litigating an End to the Solitary

Confinement of Children in Jails and

Prisons, 40 N.Y.U. REV. L. & SOC.

CHANGE 675, 688-90 (2016)

Justice System, CAMPAIGN FOR YOUTH

JUSTICE (April 2012),

http://www.campaignforyouthjustice.org/

images/presskit/KeyYouthCrimeFacts.p

xii

Robert Hahn, et al., Effects on Violence of

Laws and Policies Facilitating the

Transfer of Youth from the Juvenile to

the Adult Justice System: A Report on

Recommendations of the Task Force on

Community Preventive Services

IN THE

*nine= court of tbe 6 niteb *tates'

HUNTER FUSSELL, an individual,

Petitioner,

STATE OF LOUISIANA,

Respondent.

On Petition For A Writ Of Certiorari

To The Louisiana Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Hunter Fussell respectfully petitions for a writ

of certiorari to review the judgment of the Louisiana Supreme Court in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Louisiana,

in a 4-3 decision, reversing the district court opinion

and finding the automatic transfer provision of Louisiana Children's Code Article 305(A) constitutional

is included at App. la. The opinion of the Louisiana

Twenty-Second Judicial District Court, Parish of St.

Tammany, declaring Article 305(A) unconstitutional, is not reported and is included at App. 31a.

STATEMENT OF JURISDICTION

The Louisiana Supreme Court entered its judgment in this case on December 11, 2019. On March

3, 2020, Justice Alito extended the time within which

to file a petition for a writ of certiorari to and including April 9, 2020. Subsequently, on March 19, 2020,

due to public health concerns relating to COVID-19,

the Court extended the deadline for all petitions due

on or after that date to 150 days from the date of the

lower court judgment. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth

Amendment provides: "No state shall. . . deprive any

person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1.

Louisiana Children's Code, Article 305 provides

that:

A.(1) When a child is fifteen years of age or

older at the time of the commission of first degree murder, second degree murder, aggravated or first degree rape, or aggravated kidnapping, he is subject to the exclusive jurisdiction of the juvenile court until either:

(a) An indictment charging one of these offenses

is returned.

(b) The juvenile court holds a continued custody

hearing pursuant to Articles 819 and 820 and

finds probable cause that he committed one of

these offenses, whichever occurs first. During

this hearing, when the child is charged with aggravated or first degree rape, the court shall inform him that if convicted he shall register as a

sex offender for life, pursuant to Chapter 3-B of

Title 15 of the Louisiana Revised Statutes of

1950.

(2) Thereafter, the child is subject to the exclusive jurisdiction of the appropriate court exercising criminal jurisdiction for all subsequent

procedures, including the review of bail applications, and the court exercising criminal jurisdiction may order that the child be transferred to the appropriate adult facility for detention prior to his trial as an adult.

* * *

D. The court exercising criminal jurisdiction

shall retain jurisdiction over the child's case,

even though he pleads guilty to or is convicted

of a lesser included offense. A plea to or conviction of a lesser included offense shall not revest

jurisdiction in the court exercising juvenile jurisdiction over such a child.

La. Child. Code art. 305(A)(1), (D).

INTRODUCTION

More than fifty years ago, this Court explained

the due process requirements for the transfer of a

child to criminal court: "There is no place in our system of law for reaching a result of such tremendous

consequence without ceremony—without hearing,

without effective assistance of counsel, without a

statement of reasons." Kent, 383 U.S. at 554. Since

then, however, courts have struggled to interpret

Kent's holding, and there is now broad disagreement

regarding what due process protections apply to protect a child from an arbitrary placement in or transfer to adult criminal court. This confusion results in

wildly different levels of protection for children, depending on the jurisdiction in which they are detained.

This case presents an ideal opportunity for the

Court to resolve this issue. In a 4-3 decision below,

the Louisiana Supreme Court upheld a statute that

permits the state to remove children as young as 15

years old from a juvenile court's exclusive jurisdiction and to place them in a court of general criminal

jurisdiction to be treated as an adult. The majority

below held that the state can do this without providing the child with due process because a child faced

with such a situation has no liberty interest at stake

that warrants protection. That holding is wrong for

at least two reasons.

First, the decision below ignores the liberty interest granted to children by the Due Process Clause itself. Some courts historically have refused to recognize such an interest because they found that children are just as culpable for their delinquent actions

as adults were for their criminal actions. See, e.g., In

re Boot, 925 P.2d 964, 973-74 (Wash. 1996) (rejecting

argument that children are less culpable for "crimes

not calling for the death penalty"). As a result, there

was no constitutional requirement to treat children

differently. But science and this Court have now refuted that assumption: "[D]evelopments in psychology and brain science continue to show fundamental

differences between juvenile and adult minds." Graham, 560 U.S. 68. As compared to adults, children

have "diminished culpability and greater prospects

for reform[.]" Miller v. Alabama, 567 U.S. 460, 471

(2012). As the dissent below found, because children

are categorically different from adults—in their culpability and in their ability to reform—a state should

not be permitted to remove that distinction without

adhering to due process.

Second, when a state places a child within the jurisdiction of its juvenile courts, it grants that child a

liberty interest to remain there. While in juvenile

court, a child benefits from a proceeding that accounts for his unique nature and that focuses on rehabilitation, treatment, and confidentiality. When a

child is transferred away from that court, those protections are taken away by the state. Petitioner, for

example, while he was under the juvenile court's jurisdiction, was statutorily protected from any sentence that would extend beyond his 21st birthday.

La. Child. Code art. 897.1(B)). After his transfer,

however, he faces an adversarial criminal proceeding, and, if convicted, he will be subject to a mandatory life sentence with a potential for parole after 25

years. La. Rev. Stat. § 15:574.4. It is therefore not

surprising that this Court has noted that such a

transfer is "a matter of great significance to the juvenile[.]" Breed v. Jones, 421 U.S. 519, 535 (1975). As

a result, "[t]here is no place in our system of law for

reaching a result of such tremendous consequence

without ceremony" and without due process. Kent,

383 U.S. at 554.

The decision below illustrates the need for this

Court's intervention. Because Petitioner resides in

and was detained in Louisiana, he was transferred

from juvenile proceedings to criminal court without

due process. It may be that a state has a sufficient

interest in prosecuting and sentencing children as

adults in certain instances, but the state should be

required to adhere to due process before doing so.

Louisiana did not do that here. And because other

children throughout the country similarly are having

their rights taken away without due process, this

Court's review is warranted.

STATEMENT

1. Petitioner is a 15-year-old boy that was detained for an alleged rape on December 13, 2018.

App. 31a. Because of his age, Petitioner was detained

at a juvenile detention center and was, as required

by Louisiana statute, placed in the "exclusive jurisdiction" of Louisiana's juvenile courts. App. 31a-32a;

La. Child. Code art 305(A).

More than two months later, on February 27,

2019, a grand jury returned an indictment charging

Petitioner with first-degree rape. App. 32a. Due to

the indicted offense and Petitioner's age, Article 305

of Louisiana's Children's Code mandated Petitioner's

automatic transfer from juvenile court to "the exclusive jurisdiction of the appropriate court exercising

criminal jurisdiction for all subsequent procedures[.]" La. Child. Code art. 305(A)(1)(a), (A)(2).

More specifically, Petitioner was transferred to Louisiana's 22nd Judicial District Court. App. 32a. If a

child like Petitioner is transferred under Article

305(A), he also faces the immediate risk of being

transferred to an adult jail "facility for detention

prior to his trial as an adult." La. Child. Code art.

305(A)(2).

Petitioner's transfer to be tried as an adult is irrevocable under Louisiana law: "[a] plea to or conviction of a lesser included offense shall not revest jurisdiction in the court exercising juvenile jurisdiction

over such a child." La. Child. Code art. 305(D). Moreover, as an adult offender, Petitioner faces a mandatory sentence of life in prison with the potential for

parole after 25 years. La. Rev. Stat. § 15:574.4. While

he is in an adult prison, his educational resources

and requirements will fall short of those provided in

youth facilities. Compare La. Rev. Stat. § 17:10.9,

with La. Rev. Stat. § 15:828(A)(1). His confidentiality

protections are weakened, and any subsequent expungement becomes more difficult than if he was

tried in a juvenile proceeding. Compare La. Child.

Code arts. 917-22, with La. Code Crim. Proc. art. 977.

2. Petitioner filed a motion to quash his transfer,

contending that Louisiana's automatic transfer provision, Article 305(A), violates both the United

States and Louisiana Constitutions. App. 31a. On

April 24, 2019, the District Court granted Petitioner's motion to quash because it found that Article

305(A) "violates the Due Process Clauses of the

United States and Louisiana State Constitutions."

App. 33a. The court explained that Louisiana remained free to transfer a child to adult court, but

that "prior to transfer, a child must receive a hearing

. . . for a determination of whether that particular

child can be rehabilitated with the facilities available in the juvenile system, prior to transfer." App.

33a.

The district court cited this Court's holdings in

Roper, Graham, and Miller in concluding that

"[j]uveniles have a right not to be automatically

treated as adults," App. 37a, but "[m]andatory transfer statutes . . . require certain accused juvenile offenders to be treated as adults based solely on their

alleged crimes, without any opportunity for a judicial

determination that the particular juvenile at issue

should, in fact, be treated as an adult." App. 37a. Addressing Petitioner's age, the court concluded:

It does not follow, and no research supports,

that a child three days into his 15th birthday

is dissimilarly situated as a child that is four

days younger. It may very well be that an individual is beyond rehabilitation at 15 years

and three days. At a bare minimum the state

and defense should have a forum to present

evidence of, or contradicting that proposition.

App. 38a.

3. In a 4-3 decision, the Louisiana Supreme Court

reversed the district court's decision. There was no

dispute that Petitioner did not receive due process

prior to his transfer. Instead, relying heavily on its

precedent from 1983, the majority found that Petitioner was not entitled to due process before his

transfer because children in Louisiana do not possess

a liberty interest under the United States or Louisiana Constitutions. App. 9a-10a. The court distinguished this Court's decisions in Roper, Graham, and

Miller as irrelevant to Petitioner's arguments because those holdings "are based on the Eighth

Amendment's prohibition against cruel and unusual

punishments[.]" App. 9a. The majority also held that

"the Louisiana legislature has not provided certain

juvenile offenders with a statutorily protected liberty

interest in juvenile adjudication[.]" App. 10a.

Three justices dissented, finding a liberty interest

in being adjudicated as a child created by state statute and supported implicitly in the Constitution and

this Court's prior holdings. App. 16a.

The dissent relied first on the "comprehensive juvenile system . . . established by the Louisiana Legislature to protect and rehabilitate juvenile offenders" designed with a "focus on rehabilitation and individual treatment rather than retribution." App.

17a-18a. More specifically, the dissent observed,

"[j]uveniles who are forced into the adult criminal

justice system lose a plethora of benefits that come

with adjudicating the alleged crime in the juvenile

court." App. 27a.

The dissent concluded that Kent and In re Gault,

387 U.S. 1 (1967), "together make it clear that juvenile court proceedings affecting a juvenile's substantial rights must measure up to the essentials of due

process and fair treatment . . . . Procedural due process mandates that juvenile offenders are entitled to

a meaningful hearing before they can be removed

from the jurisdiction of the juvenile court and subjected to adult court jurisdiction pursuant to Article

305(A)." App. 20a.

The dissent also recognized that a required

transfer to adult jurisdictions exposed juveniles to

more severe punishment and longer sentences without recognizing the "host of characteristics and circumstances attendant to the juvenile's age" recognized by this Court in Roper, Graham, and Miller.

App. 26a. The dissent found that Louisiana Article

305(A) violates the United States and Louisiana

Constitutions because it allows for a child's automatic transfer to criminal court without due process:

[It] is more significant than a simple

change of venue. Juveniles who are

forced into the adult criminal justice

system lose a plethora of benefits that

come with adjudicating the alleged

crime in the juvenile justice system, and

they are saddled with an adult criminal

record. . . . Our understanding of juvenile culpability has changed dramatically over the last twenty years, shifting

the way we treat accused juvenile offenders . . . . [The transfer decision]

should be made on an individual basis.

A mandated automatic transfer provision, based on age and offense alone, is

constitutionally flawed.

App. 27a.

REASONS FOR GRANTING THE PETITION

I. THE COURT SHOULD RESOLVE THE

CONFUSION REGARDING THE DUE PROCESS RIGHTS GRANTED TO CHILDREN

CHARGED WITH CRIMINAL CONDUCT.

The Fourteenth Amendment's Due Process

Clause protects liberty interests that "may arise

from the Constitution itself, by reason of guarantees

implicit in the word `liberty,' or [that] may arise from

an expectation or interest created by state laws or

policies[.]" Wilkinson v. Austin, 545 U.S. 209, 221

(2005) (internal citations omitted). Accordingly, this

Court has held that a child can possess a protected

liberty interest to be tried in juvenile court and cannot be deprived of that interest without a hearing.

Kent, 383 U.S. at 554. But the question of when a

child possesses such an interest remains disputed by

courts.

In Kent, a 16-year-old boy in the District of Columbia was arrested and, as required by statute,

placed within the "exclusive jurisdiction" of the juvenile court for the District. Id. at 543. Subsequently,

the juvenile court "waived" its jurisdiction over the

child and remitted him to the criminal jurisdiction of

the U.S. District Court for the District of Columbia.

Because the juvenile court transferred the child

without a hearing or record of findings, however, this

Court held that the transfer was unconstitutional.

Id. at 554. "[T]here is no place in our system of law

for reaching a result of such tremendous consequence without ceremony—without hearing, without

effective assistance of counsel, without a statement

of reasons." Id.

Despite the Court's plain language, courts have

struggled to apply Kent's holding. See Woodard v.

Wainwright, 556 F.2d 781, 784 (5th Cir. 1977) ("[I]t

remains unclear whether the hearing required in

Kent was constitutionally mandated[.]"). Some have

interpreted it broadly to find that the Due Process

Clause grants to children a liberty interest in juvenile adjudication such that the state must give each

child a hearing before a transfer to criminal jurisdiction. See, e.g., Flakes v. People, 153 P.3d 427, 436-37

(Colo. 2007), as modified on denial of reh'g (Mar. 19,

2007) (en banc) (holding state statute, "amended in

response to Kent," requires explanation of reasons

before juvenile may be subjected to adult sentencing); Bouge v. Reed, 459 P.2d 869, 870 (Or. 1969)

("We conclude that the intent of the United States

Supreme Court, as expressed in [Kent and In re

Gault] is that the due process clause of the Constitution of the United States requires states to accord a

hearing before a juvenile can be remanded to the

adult criminal process.").

In Flakes, a juvenile was charged with first degree murder and thus automatically tried in adult

court under Colorado's juvenile transfer law. 153

P.3d at 430-31. The first-degree murder charge was

rejected, but the juvenile was ultimately convicted of

lesser charges. Id. The juvenile was still sentenced

as an adult, even though the adult court lacked jurisdiction over the lesser charges. Id. Upon review,

the Colorado Supreme Court rejected the sentence

because it failed to comply with Kent. Id. at 436-37.

The court found that Kent requires courts to give reasons for why a juvenile is subject to adult treatment.

Id.

Other courts have declined to find a constitutionally provided interest and have instead held that

Kent's holding applies only if the state in question

grants a liberty interest in juvenile court. See, e.g.,

State v. Watkins, 423 P.3d 830, 833-34 (Wash. 2018)

("There is no constitutional right to be tried in juvenile court and, hence, no constitutional right to a

Kent hearing before being tried in adult court.").

Even among these holdings, courts disagree over

what is needed for a state to confer such a right.

Some have held that a protected interest exists only

if a state statute allows for a discretionary transfer

to a juvenile court, as was the case in Kent. See, e.g.,

Watkins, 423 P.3d at 834 (citation omitted) ("[T]he

right [to a Kent hearing] attaches only if a court is

given statutory discretion to assign juvenile or adult

court jurisdiction."); People v. Patterson, 25 N.E.3d

526, 548-49, 553 (Ill. 2014) (upholding transfer statute that required "all 15- and 16-year-olds charged

with the listed offenses to be transferred").

Other courts have found that the relevant question is one of jurisdiction; if the state statute grants

jurisdiction to the juvenile court, like in Kent, then

the juvenile possesses an interest to remain in that

court. See, e.g., Smith v. Sullivan, 1 F. Supp. 2d 206,

222-23 (W.D.N.Y. 1998) ("The family court did not

waive jurisdiction; it had none to begin with. . . . The

due process concerns that were implicated in Kent,

then, were not present here."); C.D. v. State, 458 P.3d

81, 86 (Alaska 2020) ("When a statute vests the right

to have a minor's case heard in the juvenile justice

system, that right constitutes a liberty interest that

cannot be denied without due process."); State v.

Grigsby, 818 N.W.2d 511, 517 (Minn. 2012) (citation

omitted) ("If the Legislature provides a juvenile with

a statutory right to `exclusive' juvenile court jurisdiction, however, the juvenile does have a protectable

liberty interest in a juvenile adjudication, which attaches when the juvenile court attains jurisdiction.");

Gingerich v. State, 979 N.E.2d 694, 710-11 (Ind. Ct.

App. 2012) (citation omitted) ("Thus, at the outset of

the filing of the delinquency petition Gingerich enjoyed the panoply of protections associated with being tried in the juvenile system, and he was entitled

to a full investigation and hearing prior to the court

ordering waiver. Accordingly, Gingerich's liberty

was at stake when the State moved to waive Gingerich into adult court."); see also United States v.

Bland, 472 F.2d 1329, 1336-37 (D.C. Cir. 1972) (stating due process rights implicated in Kent were

caused by "initial juvenile court jurisdiction"). In

these cases, once a child is placed in the jurisdiction

of the juvenile court, the child obtains a liberty interest to remain there.

The interests and corresponding risk that Petitioner faces under the Louisiana statute at issue

here are more striking and severe than in other cases

in which the statutes were upheld. For example, the

court in Watkins rejected a constitutional challenge

to Washington's transfer statute because adult criminal courts would have the discretion to ignore mandatory minimum sentences if the child was convicted. 423 P.3d at 833-34.

Petitioner is entitled to no such protection in Louisiana's district court. See, e.g., La. Child. Code arts.

102, 404, 897(d), 901, 918; La. Rev. Stat. §§ 17:10.9,

17:3911. Moreover, even if he is found not guilty, Petitioner immediately faces a longer period of detention—Louisiana's district courts lack the expedited

procedures required in Louisiana's juvenile courts.

More specifically, a juvenile detained for a charge involving violence is required to be given an adjudication hearing within 60 days of the appearance to answer the petition, while the same person tried in an

adult criminal court could be forced to wait up to two

years to be tried on a felony charge and three years

for a capital offense. Compare La. Child. Code art.

877(A)), with La. Code Crim. Proc. art. 578. Nor can

Petitioner's transfer be reversed—Louisiana does

not allow for a "reverse transfer" back to juvenile

court, even if the child's more serious charges are

withdrawn or if they result in an acquittal.

II. THIS CASE PRESENTS AN IDEAL OPPORTUNITY TO RESOLVE THE ISSUE OF DUE

PROCESS RIGHTS FOR CHILDREN.

Louisiana's transfer statute is particularly devastating in its treatment of detained children. Louisiana's Children's Code guarantees that every detained child will be placed within "the exclusive jurisdiction of the juvenile court." La. Child. Code art.

305(A)(1). That court has express goals to further the

care and rehabilitation of children and to provide an

array of protections in its approach to sentencing, education, and other opportunities. La. Child. Code art.

801 (declaring purpose of Louisiana Children's Code

as "ensur[ing] that [each child] shall receive, preferably in his own home, the care, guidance, and control

that will be conducive to his welfare[.]"). If the child

is at least 15 years old and is subsequently indicted

for a specified offense, or upon a finding of probable

cause for that offense, the child is automatically removed without a due process hearing from juvenile

court and transferred to the criminal jurisdiction of

Louisiana's district courts to be tried as an adult. See

La. Child. Code art. 305(A). One immediate implication of this transfer is that the child may be pulled

from a youth detention center and placed in jail with

adults. See La. Child. Code art. 305(A)(2).

Petitioner was first detained and placed within a

youth detention center because he was only a few

days past his 15th birthday at the time. He remained

under the "exclusive jurisdiction" of Louisiana's juvenile courts for nearly two months. But after prosecutors obtained an indictment from a grand jury for

an offense that mandated an automatic transfer under Article 305(A), Petitioner immediately was

moved to the jurisdiction of the 22nd Judicial District without an individualized hearing. That transfer also meant that Petitioner will be tried as an

adult and, if convicted, faces a "mandatory penalty"

of "life imprisonment" with his first opportunity for

a parole hearing after 25 years. La. Rev. Stat. §

15:574.4.

Even though Louisiana's statutory scheme

placed Petitioner in the "exclusive jurisdiction" of juvenile court for months while he awaited his fate, the

Louisiana Supreme Court found that he never possessed a liberty interest to remain in that jurisdiction, despite its many protections. This decision was

wrong for two reasons. First, this Court should affirm what was implied in Kent—that children are

granted a liberty interest directly under the Due Process Clause and cannot be placed in adult criminal

jurisdiction without an individualized hearing. Second, at the very least, Louisiana's statute created a

liberty interest for Petitioner by guaranteeing that

he would first be placed in the "exclusive jurisdiction," and subject to the protections, of Louisiana's

juvenile courts.

A. The decision below ignored the liberty

interest created for children by the Due

Process Clause.

The Due Process Clause "specially protects those

fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty,

such that neither liberty nor justice would exist if

they were sacrificed[.]" Washington v. Glucksberg,

521 U.S. 702, 720-21 (1997) (internal citations and

quotations omitted); see also Wilkinson, 545 U.S. at

221 ("A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the

word `liberty[.]"'). Such liberty interests include the

"right to freedom from bodily restraint" and to "personal security[.]" Youngberg v. Romeo, 457 U.S. 307,

315-16 (1982).

In Vitek v. Jones, this Court held that implicit in

the Due Process Clause is a liberty interest of convicted prisoners to not be transferred to a mental

hospital without appropriate procedures. 445 U.S.

480, 491-92 (1980). The Court noted that "the commitment to a mental hospital can engender adverse

social consequences to the individual . . . and that it

can have a very significant impact on the individual."

Id. at 492 (internal quotations and citation omitted).

"Also, `[a]mong the historic liberties' protected by the

Due Process Clause is the `right to be free from, and

to obtain judicial relief for, unjustified intrusions on

personal security."' Id. (quoting Ingraham v. Wright,

430 U.S. 651, 673 (1977)). The Court concluded "that

a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he

is . . . transferred to a mental hospital" because such

a transfer "amount[s] to a `grievous loss.'" Id. at 488,

492-93.

In short, convicted adults are entitled to due process before they are transferred from a prison to a

mental hospital. But courts disagree over whether

similar protections exist for children facing a transfer to criminal court. This is despite the fact that the

due process concerns are even greater. Pretrial confinees, for example, have greater liberty interests

than convicted prisoners that are under a sentence

of confinement like in Vitek. See Rapier v. Harris,

172 F.3d 999, 1004-05 (7th Cir. 1999) ("[P]retrial confinees are not similarly situated [with convicted prisoners]; they are not under a sentence of confinement,

and therefore it cannot be said that they ought to expect whatever deprivation can be considered incident

to serving such a sentence.").

More fundamentally, however, this issue presents unique due process concerns because children

categorically are less culpable for their behavior than

adults. See, e.g., Roper v. Simmons, 543 U.S. 551,

569-70 (2005) (citation omitted) (holding due to a

child's neurological development, "juveniles have a

greater claim than adults to be forgiven for failing to

escape negative influences in their whole environment"). "A child's age is far `more than a chronological fact.' It is a fact that `generates commonsense

conclusions about behavior and perception.' J.D.B.

v. North Carolina, 564 U.S. 261, 272 (2011) (internal

citations omitted). "'Our history is replete with laws

and judicial recognition' that children cannot be

viewed simply as miniature adults." Id. at 274 (quoting Eddings v. Oklahoma, 455 U.S. 104, 115-16

(1982)). In short, "children are different[.]" Miller,

567 U.S. at 481. "[T]he normal 15-year-old is not prepared to assume the full responsibilities of an adult."

Thompson v. Oklahoma, 487 U.S. 815, 825 (1988).

A decade of holdings from this Court have made

this point clear. See, e.g., Roper, 543 U.S. at 553 ("[I]t

is less supportable to conclude a heinous crime committed by a juvenile is evidence of irretrievably depraved character."). Children, as compared to adults,

are less mature, more reckless and impulsive, more

susceptible to peer pressure, and possess character

that is less fixed. Id. at 569-70. "[D]evelopments in

psychology and brain science continue to show fundamental differences between juvenile and adult

minds. For example, parts of the brain involved in

behavior control continue to mature through late adolescence." Graham, 560 U.S. at 68. Accordingly,

children are more capable of rehabilitation as compared to adults, and even serious crimes committed

by children do not necessarily evidence "irretrievable

depravity," making children less deserving of some

sentences commonly imposed on adults. Roper, 543

U.S. at 553.

The Louisiana Supreme Court cast this Court's

decisions aside by noting they "are based on the

Eighth Amendment's prohibition against cruel and

unusual punishments[.]" App. 9a. But a child's decreased culpability and unique characteristics are

constitutionally relevant to a criminal proceeding

well before sentencing. Indeed, the differences of a

child and adult come into play at the earliest stages

of the criminal justice process. See, e.g., J.D.B., 564

U.S. at 277 (holding distinction of child's age is "a

reality that courts cannot simply ignore" for Miranda analysis). And this Court has explained "the

long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared

with those of adults." Thompson, 487 U.S. at 823

(emphasis in original).

Because children are categorically less culpable,

removing that distinction and treating a child like an

adult for a criminal prosecution causes a "grievous

loss" that should be protected by due process. Beyond

this, "the features that distinguish juveniles from

adults also put them at a significant disadvantage in

criminal proceedings." Graham, 560 U.S. at 78. A

child's defense will more likely be impaired by

"[d]ifficulty in weighing long-term consequences; a

corresponding impulsiveness; and reluctance to trust

defense counsel, seen as part of the adult world a

rebellious youth rejects[.]" Id.

The harms do not end there. Transfer to Louisiana's criminal jurisdiction also exposes a child to the

risk of imminent placement in an adult jail. When

placed in an adult jail, children are much more likely

to be subject to sexual and other physical abuse.

They also face substantial risks to their safety.

Children in adult jails are five times more likely to be

sexually abused—a risk so severe that Congress enacted the Prison Rape Elimination Act. 34 U.S.C. §

30301 (formerly cited as 42 U.S.C. § 15601) (finding

that "[j]uveniles are 5 times more likely to be sexually

assaulted in adult rather than juvenile facilities—often within the first 48 hours of incarceration"). Children often are also placed in solitary confinement,

which is intended as a safety measure that comes

with devastating consequences to mental health.'

Moreover, children in adult jails are a staggering 36

1 See Ian M. Kysel, Banishing Solitary: Litigating an End to the

Solitary Confinement of Children in Jails and Prisons, 40

N.Y.U. REV. L. & SOC. CHANGE 675, 688-90 (2016) (summarizing broad consensus regarding damaging impact of juvenile solitary confinement).

times more likely than adult inmates to commit suicide.2

In other words, as the dissent below held, placing

a child in adult criminal court is "more significant

than a simple change in venue," App. 27a—it is a

punishment. As a result, the Due Process Clause entitles a child to procedural protections before a state

can impose that punishment. The holding below

ignored Petitioner's rights and allowed his transfer

to Louisiana's criminal jurisdiction without any

opportunity to be heard. It should therefore be

reversed.

B. The decision below ignored the liberty

interest created by the Louisiana Children's Code.

The decision below also was incorrect because it

ignored the liberty interest that is created by the

Louisiana Children's Code. By first placing all children, including Petitioner, within the exclusive jurisdiction and protections of the juvenile court, Louisiana created a protected liberty interest for a child to

remain in that court.

"[S]tate statutes may create liberty interests that

are entitled to the procedural protections of the Due

Process Clause of the Fourteenth Amendment." Vitek, 445 U.S. at 488. In the context of convicted prisoners, for example, this Court has recognized and

2 See Key Facts: Youth in the Justice System, CAMPAIGN FOR

YOUTH JUSTICE (April 2012), http://www.campaignforyouthjustice.org/images/presskit/KeyYouthCrimeFacts.pdf.

protected interests in the revocation of parole, Morrissey v. Brewer, 408 U.S. 471 (1972), and the revocation of probation, Gagnon v. Scarpelli, 411 U.S.

778 (1973). The test for a state-created liberty interest does not turn on whether it is a "right or a "privilege," but "on the extent to which an individual will

be condemned to suffer grievous loss." Morrissey, 408

U.S. at 481.

In Morrissey, the Court considered whether a

state created a protected liberty interest for prisoners by affording them parole, even though it could be

revoked at any time. 408 U.S. at 472-73. Despite the

fact that "the liberty of a parolee [is] indeterminate,

. . . its termination inflicts a `grievous loss' on the parolee[.]" Id. at 482. The Court also recognized societal

interests in the liberty at stake, including in the parolee's "normal and useful life within the law" and

"in treating the parolee with basic fairness" by promoting rehabilitation. Id. at 484. "By whatever

name, the liberty is valuable and must be seen as

within the protection of the Fourteenth Amendment.

Its termination calls for some orderly process, however informal." Id. at 482.

States may similarly grant a liberty interest for a

child to remain in juvenile court. As the Court noted

in Kent, it would be "inconceivable" and "extraordinary" that a child would have fewer liberty interests

than those possessed by adults, in light of "society's

special concern for children[.]" 383 U.S. at 554. The

question then is when does a child's "liberty become[

] valuable" such that losing it would cause the holder

a "grievous loss." See Morrissey, 408 U.S. at 482.

Louisiana's Children's Code Article 305(A) meets

this standard by placing each detained child within

the "exclusive jurisdiction" of the juvenile court. A

critical fact in Kent was that the juvenile court first

possessed jurisdiction over the child before the transfer in question and that jurisdiction afforded certain

privileges:

The Juvenile Court is vested with `original and

exclusive jurisdiction' of the child. This jurisdiction confers special rights and immunities.

He is, as specified by the statute, shielded

from publicity. He may be confined, but with

rare exceptions he may not be jailed along

with adults. He may be detained, but only until he is 21 years of age.

383 U.S. at 556.

Just as in Kent, Louisiana's statute gave Petitioner special rights and immunities by placing him

first in the "exclusive jurisdiction" of the juvenile

court. App. 17a. As noted by the dissent below, Louisiana's Constitution allows the state legislature to

decide whether the state's "special juvenile procedures shall not apply to juveniles arrested for having

committed" certain offenses. App. 16a-17a. But that

is not what the legislature did. Instead, it created a

process where Petitioner was first placed in the "exclusive jurisdiction" of Louisiana's juvenile courts.

This distinction is critical because the statutory

scheme gave Petitioner unique statutory protections

intended to further the statute's goals of rehabilitation. Indeed, Louisiana courts have recognized that

the statutory mandate to rehabilitate youth constitutionally requires that children within the jurisdiction of a juvenile court must be given certain educational programming and support, and mental health

services, among other protections. State ex rel. S.D.,

832 So. 2d 415, 434-35 (La. App. 4 Cir. 2002). A

transfer that removes those benefits must adhere to

the requirements of due process.

This Court has recognized the significance and

immediate effects of transferring a child to be tried

as an adult. Breed, 421 U.S. at 535 (describing

transfer as "a matter of great significance"); Kent,

383 U.S. at 556 ("critically important action"). In

juvenile court, Petitioner faced a proceeding that

would focus on his needs and the needs of "society

rather than adjudicating criminal conduct." Kent,

383 U.S. at 554. If found deliquent in this proceeding,

any sentence would be statutorily limited to his 21st

birthday. La. Child. Code art. 897.1(B).

The transfer, however, changed that and

Petitioner now must defend himself in a criminal

prosecution where the state's focus is to punish him

as an adult offender. Compare La. Child. Code. arts.

102, 901, with La. Rev. Stat. § 15:906. In this proceeding, he faces a mandatory sentence of life in

prison with the potential for parole after 25 years for

the exact same crime. La. Rev. Stat. § 15:574.4. Importantly, after the transfer, Petitioner can have no

hope that it will later be undone. Even if he is acquitted of the triggering offense or if that charge is dismissed, Article 305 requires that he remain in criminal court for any other charges that otherwise would

have been adjudicated by the juvenile court. La.

Child. Code art. 305(D).

Numerous courts have recognized that a liberty

interest is created once the child falls within a juvenile court's jurisdiction and therefore can only reach

criminal jurisdiction through a transfer. See, e.g.,

Smith, 1 F. Supp. 2d at 222-23 ("The family court did

not waive jurisdiction; it had none to begin with. . . .

The due process concerns that were implicated in

Kent, then, were not present here."); Grigsby, 818

N.W.2d at 517 ("Absent a statutory right to `exclusive' juvenile court jurisdiction, a child does not have

any recognized protectable liberty interest in a juvenile adjudication."). In Grigsby, for example, the

Minnesota Supreme Court explained that "[i]f the

Legislature provides a juvenile with a statutory right

to `exclusive' juvenile court jurisdiction, . . . the juvenile does have a protectible liberty interest in a juvenile adjudication, which attaches when the juvenile

court attains jurisdiction." 818 N.W.2d at 517; see

also Gingerich, 979 N.E.2d at 711 ("Thus, at the outset of the filing of the delinquency petition Gingerich

enjoyed the panoply of protections associated with

being tried in the juvenile system, and he was entitled to a full investigation and hearing prior to the

court ordering waiver. Accordingly, Gingerich's liberty was at stake when the State moved to waive

Gingerich into adult court.").

The decision below illustrates the split among

courts and the reluctance among some to recognize a

liberty interest even in the statutory protections provided by juvenile court jurisdictions. This Court

should make clear that all children obtain a liberty

interest once they are placed within a juvenile court's

jurisdiction and provided statutory protections. Although the State can remove that interest and transfer the child to criminal jurisdiction, the State must

comply with due process requirements in doing so.

Because the decision below ignored the interest that

Petitioner possessed to remain in juvenile court, that

decision was wrong.

III. A CHILD'S DUE PROCESS RIGHT IS AN

IMPORTANT ISSUE.

A. Several jurisdictions allow the automatic

transfer of children to criminal jurisdiction, often from a juvenile court's jurisdiction.

Clarifying the liberty interests of detained children is a critical and unresolved constitutional issue.

Forty-two states allow for children to be automatically placed in adult criminal jurisdiction without any

form of process or individualized hearing.3 These pro-

3 Ala. Code § 12-15-204; Alaska Stat. § 47.12.100; Ariz. Rev. Stat.

§ 13-501(B); Ark. Code § 9-27-318; Cal. Welf. & Inst. Code §§ 602,

707; Colo. Rev. Stat. § 19-2-517; Conn. Gen. Stat. § 46b-127; Del.

Code tit. 11, § 1447A; D.C. Code § 16-2301(3); Fla. Stat. §

985.557; Ga. Code § 15-11-560; Idaho Code § 20-509; 705 Ill.

Comp. Stat. 405/5-130; Ind. Code § 31-30-1-4; Iowa Code § 232.8;

La. Child. Code art. 305; Md. Code, Cts. & Jud. Proc. § 3-8A-03;

Mass. Gen. Laws ch. 119, § 74; Mich. Comp. Laws §§ 712A.2,

600.606; Minn. Stat. §§ 260B.007, 260B.101; Miss. Code § 43-21151; Mont. Code § 41-5-206; Nev. Rev. Stat. § 62B.330; N.J. Stat.

§ 2A:4A-26; N.M. Stat. §§ 32A-1-8, 32A-2-3; N.Y. Penal Law §§

30.00, 70.05; N.Y. Crim. Proc. Law. §§ 1.20, 180.75; N.C. Gen.

Stat. § 7B-2200; N.D. Cent. Code § 27-20-34; Ohio Rev. Code §§

2152.10, 2152.12; Okla. Stat. tit. 10A, §§ 2-5-204 — 2-5-206; Or.

Rev. Stat. § 137.707; 42 Pa. Cons. Stat. §§ 6302, 6355; R.I. Gen.

Laws Ann. § 14-1-3; S.C. Code § 63-19-20; S.D. Codified Laws §

26-11-3.1; Utah Code § 78A-6-701; Va. Code § 16.1-269.1(D); Vt.

cedures violate basic principles of due process for children in each of these states, and those violations will

continue unless this Court affirmatively recognizes

the rights possessed by those children.

Among those forty-two states, thirty (including

Louisiana) have created an independent liberty interest by placing detained children within the jurisdiction of the state's juvenile courts, but each allows children to be transferred to adult criminal court without

a due process hearing to consider a child's age or potential for rehabilitation.4 Recognizing that statutory

schemes like this cannot withstand constitutional

scrutiny is critical to protecting the due process rights

of children in each of these states.

Even among these states, Louisiana is one of the

most harmful to children. It is one of only fourteen

Stat. tit. 33 § 5201; Wash. Rev. Code § 13.0430; W. Va. Code §

49-4-710; Wis. Stat. §§ 938.183, 938.12; Wyo. Stat. § 14-6-203.

4 Ala. Code § 12-15-204; Alaska Stat. § 47.12.100; Ariz. Rev. Stat.

§ 13-501(B); Ark. Code § 9-27-318; Cal. Welf. & Inst. Code §§ 602,

707; Colo. Rev. Stat. § 19-2-517; D.C. Code § 16-2301(3); Fla.

Stat. § 985.557; Ga. C. § 15-11-560; Idaho Code § 20-509; 705 Ill.

Comp. Stat. 405/5-130; Ind. Code § 31-30-1-4; Iowa Code § 232.8;

La. Child. Code art. 305; Md. Code, Cts. & Jud. Proc. § 3-8A-03;

Mass. Gen. Laws ch. 119, § 54; Mich. Comp. Laws §§ 712A.2,

600.606; Minn. Stat. §§ 260B.007, 260B.101; Miss. Code § 43-21151; Mont. Code § 41-5-206; Nev. Rev. Stat. § 62B.330; N.M.

Stat. §§ 32A-1-8, 32A-2-3; N.Y. Penal Law §§ 30.00, 70.05; N.Y.

Crim. Proc. Law. §§ 1.20, 180.75; Okla. Stat. tit. 10A, §§ 2-5-204

— 2-5-206; Or. Rev. Stat. § 137.707; 42 Pa. Cons. Stat. § 6321;

S.C. Code §§ 63-3-510; 63-19-20; Utah Code § 78A-6-701; Wis.

Stat. §§ 938.183, 938.12; Wyo. § 14-6-203.

states that allows a child to be placed into adult court

without due process, but then prohibits that child

from ever returning to juvenile court, even if the triggering charge is dropped (also known as a "reverse

waiver" provision).5 Conversely, other states, while

not expressly authorizing "reverse waivers," allow

children other forms of review in an attempt to mitigate the harms that stem from a transfer to adult

court. Alaska, for example, allows a child convicted of

a lesser offense in adult court to show their amenability to treatment as a delinquent. Alaska Stat. §

47.12.030. Other states grant appellate courts the

ability to review juvenile transfers6 or allow district

courts to return cases to juvenile court upon a finding

that the case is "more properly suited to disposition"

there.?

The variety of state approaches reflects the unsettled state of juvenile due process rights. Clarifying

this issue will ensure children—for whom society has

a special concern, Kent, 383 U.S. at 554—are appropriately protected in the criminal justice process.

5 Ala. Code § 12-15-204; Alaska Stat. § 47.12.100; D.C. Code §

16-2301(3); Fla. Stat. § 985.557; Idaho Code § 20-509; 705 Ill.

Comp. Stat. 405/5-130; Ind. Code § 31-30-1-4; La. Child. Code

art. 305; Mass. Gen. Laws ch. 119, § 74; Minn. Stat. §§ 260B.007,

260B.101; N.M. Stat. §§ 32A-1-8, 32A-2-3; Utah Code § 78A-6701; Wash. Rev. Code. Ann. § 13.40.110; W. Va. Code § 49-4-710.

6 W. Va. Code § 49-4-710(j).

7 Wyo. Stat. § 14-6-237.

B. Treating children as adults harms the

child and harms society.

Prosecuting children in adult criminal court also

does not serve society's interests. Studies show that

juvenile transfer laws are not effective means of reducing crime.8 Youth transferred from the juvenile to

the adult system, even if they are not convicted, are

34% more likely to recidivate—and recidivate with

more violent offenses—than their juvenile counterparts that remain in the juvenile system.9

The disadvantages continue even after release

from adult prisons. In Louisiana, an adult criminal

conviction can be used as a predicate offense to enhance sentences for future wrongdoing, but a juvenile

court adjudication—because it is not a conviction of a

crime—cannot. La. Child. Code art. 884; State v.

Brown, 879 So. 2d 1276, 1289-90 (La. 2004). For the

same reason, youth with criminal records (but not

8 See, e.g., David L. Myers, The Recidivism of Violent

Youth in

Juvenile and Adult Court: A Consideration of Selection Bias,

Youth Violence and Juv. Just., Jan. 2003, at 9-11; Jeffrey Fagan, The Comparative Advantage of Juvenile Versus Criminal

Court Sanctions on Recidivism among Adolescent Felony Offenders, Law & Policy, Jan. 1996, at 77-114.

9 Robert Hahn, et al., Effects on Violence of Laws and Policies

Facilitating the Transfer of Youth from the Juvenile to the Adult

Justice System: A Report on Recommendations of the Task

Force on Community Preventive Services, Center for Disease

Control and Prevention, Morbidity and Mortality Wkly. Rep.,

Nov. 30, 2007, at 7-8; see also id. at 9 ("To the extent that transfer policies are implemented to reduce violent or other criminal

behavior, available evidence indicates that they do more harm

than good.").

those adjudicated delinquent in juvenile court) can be

denied employment opportunities due to their criminal histories, creating a substantial roadblock very

early in a person's life for future opportunities. See,

e.g., La. Rev. Stat. § 42:1701(B) (allowing state employers to consider criminal histories of prospective

employees in making hiring decisions). Additionally,

juvenile records are subject to enhanced confidentiality protections and have the potential for expungement, including for murder and rape adjudications.

La. Child. Code arts. 404, 918. These heightened protections give a young person, uniquely capable of

growth and change, a more meaningful chance to live

a productive life. Further, while juvenile detention

centers provide high school and college education, not

all adult facilities do. See La. Rev. Stat. § 15:828(A)(1)

(requiring prisons to establish education programming only when resources permit). Thus, by the time

a child is released from adult jail, he may be years

behind his peers academically and with significantly

more limited opportunities.

These consequences of a transfer from juvenile to

adult criminal court revolve around a central fact: age

matters. Article 305, however, contravenes the very

purpose of Louisiana's juvenile justice system and

this Court's jurisprudence by depriving children capable of rehabilitation of a hearing to determine if a

transfer to the adult system is appropriate. The consequences of a transfer are disproportionately grave

and dangerous, stopping a child's greater possibility

for reform dead in its tracks.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Shannon Christian

22nd JDC Public

Defender's Office

402 North Jefferson

Avenue

Covington, LA 70433

(985) 809-1498

Adam Pierson

Counsel of Record

Kenneth Schmetterer

Trumon Phillips

Virginia Weeks

Dante Alessandri

DLA Piper LLP (US)

1900 N. Pearl Street

Suite 2200

Dallas, Texas 75201

(214) 743-4512

adam.pierson@dlapiper.com

Counsel for Petitioner

MAY 8, 2020

APPENDIX

APPENDIX A

SUPREME COURT OF LOUISIANA

[Filed Dec. 11, 2019]

No. 2019-KA-01061

STATE OF LOUISIANA

versus

HUNTER FUSSELL

ON APPEAL FROM THE TWENTY-SECOND

JUDICIAL DISTRICT COURT, PARISH OF

ST. TAMMANY

PER CURIAM:*

Children's Code article 305(A), pertaining to divestiture of juvenile court jurisdiction and original criminal

court jurisdiction over children, provides:

A. (1) When a child is fifteen years of age

or older at the time of the commission of

first degree murder, second degree murder,

aggravated or first degree rape, or aggravated

kidnapping, he is subject to the exclusive

jurisdiction of the juvenile court until either:

Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth

Circuit, heard this case as Justice pro tempore, sitting in the

vacant seat for District 1 of the Supreme Court. She is now

appearing as an ad hoc for Justice William J. Crain. Retired

Judge James Boddie Jr., appointed Justice ad hoc, sitting for

Justice Marcus R. Clark.

(a) An indictment charging one of these

offenses is returned.

(b) The juvenile court holds a continued custody hearing pursuant to Articles 819 and 820

and finds probable cause that he committed

one of these offenses, whichever occurs first.

During this hearing, when the child is charged

with aggravated or first degree rape, the

court shall inform him that if convicted

he shall register as a sex offender for life,

pursuant to Chapter 3-B of Title 15 of the

Louisiana Revised Statutes of 1950.

(2) Thereafter, the child is subject to the

exclusive jurisdiction of the appropriate court

exercising criminal jurisdiction for all subsequent procedures, including the review of bail

applications, and the court exercising criminal

jurisdiction may order that the child be transferred to the appropriate adult facility for

detention prior to his trial as an adult.

Defendant Hunter Fussell was indicted for a first

degree rape of a victim under the age of thirteen,

La.R.S. 14:42(A)(4), that he was alleged to have

committed on or shortly after his fifteenth birthday. At

that point, pursuant to Article 305(A), defendant

became subject to the exclusive jurisdiction of the

Twenty-Second Judicial District Court exercising its

criminal jurisdiction.

Defendant filed motions contending that the automatic transfer provision of Article 305(A) violates

several constitutional provisions, both state and

federal, as well as evolving United States Supreme

Court jurisprudence recognizing the special characteristics of juveniles that can affect their capabilities and

culpability. In response, the district court ultimately

ruled that this automatic transfer provision violates

due process and that a transfer hearing, comparable

to the one provided in Children's Code art. 862,1 is

1 Children's Code art. 862 provides:

A. In order for a motion to transfer a child to he

granted, the burden shall be upon the state to prove all

of the following:

(1) Probable cause exists that the child meets the

requirements of Article 857.

(2) By clear and convincing proof, there is no substantial opportunity for the child's rehabilitation through

facilities available to the court, based upon the following criteria:

(a) The age, maturity, both mental and physical, and

sophistication of the child.

(b) The nature and seriousness of the alleged offense

to the community and whether the protection of the

community requires transfer.

their nature and seriousness.

(d) Past efforts at rehabilitation and treatment, if any,

and the child's response.

(e) Whether the child's behavior might be related to

physical or mental problems.

(f) Techniques, programs, personnel, and facilities

available to the juvenile court which might be competent to deal with the child's particular problems.

B. The court shall state for the record its reasons for

judgment.

C. (1) The court shall transmit the order rendered after

the hearing or a certified copy thereof, without delay,

to the clerk of court having jurisdiction of the offense.

(2) Any party may request the court to provide a

complete or partial transcript of the testimony of the

witnesses; however, neither the record of the hearing

constitutionally required before a juvenile can be

transferred to a district court exercising criminal

jurisdiction. In reaching those conclusions, the district

court relied on United States Supreme Court jurisprudence holding that juveniles are constitutionally different

from adults for purposes of sentencing.2 The district

court also relied heavily on Kent v. United States, 383

U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), for the

propositions that transfer from juvenile court imposes

a significant deprivation of liberty and therefore

warrants protection under the due process clause, and

that a transfer from juvenile court should not occur

unless the due process protections provided to juveniles are satisfied. A probable cause determination

based solely on the nature of the offense alleged and

evidence defendant committed the offense is inadequate to satisfy due process, the district court found,

without a judicial determination that the juvenile will

not benefit from the special protections and opportunities for rehabilitation offered by the juvenile court. The

district court also found that a juvenile who is subject

to the automatic transfer provision is denied the equal

nor the reasons for the transfer shall be admissible in

evidence in any subsequent criminal proceedings, except

for the purpose of impeachment of a witness.

2 See generally Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183,

161 L.Ed.2d 1, 29 (2005) (holding the Eighth and Fourteenth

Amendments forbid imposition of the death penalty on offenders

who were under the age of 18 when their crimes were committed.);

Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825

(2010) (holding the Constitution prohibits the imposition of life

without parole sentences on juvenile offenders convicted of a nonhomicide offense); Miller v. Alabama, 567 U.S. 460, 132 S.Ct.

2455, 183 L.Ed.2d 407 (2012) (holding that mandatory life imprisonment without parole for juvenile homicide offenders violates Eighth

Amendment prohibition against cruel and unusual punishment).

protection of law. Thus, the district court quashed the

transfer of defendant from the juvenile to district court.

Because the district court declared the automatic

transfer provision of Article 305(A) to be unconstitutional, that declaration is appealable to this court

pursuant to La. Const. Art. V, § 5(D). Before determining the correctness of the trial court's declaration,

this court must first decide whether the issue of

constitutionality was properly raised below. "[A]

constitutional challenge may not be considered by an

appellate court unless it was properly pleaded and

raised in the trial court below." State v. Hatton, 072377, p. 13 (La. 7/1/08), 985 So.2d 709, 718. In Hatton,

the court described the proper procedure for challenging the constitutionality of a statute, expressing the

challenger's burden as a three-step analysis. "First, a

party must raise the unconstitutionality in the trial

court; second, the unconstitutionality of a statute

must be specially pleaded; and third, the grounds

outlining the basis of unconstitutionality must be

particularized." Id., 072377, p. 14, 985 So.2d at 719.

In the present case, a review of the record shows

that defendant properly raised, pleaded, and particularized his challenge under the Due Process Clause,

and its state constitution counterpart, and the district

court's declaration of unconstitutionality on that

ground is properly before this court on appeal.

Defendant's equal protection challenge, however, was

not specially pleaded.3 Nonetheless, we will briefly

3 Defendant contended in his motion filed in the district court

(which is nearly identical to his motion filed earlier in the juvenile

court) that "Louisiana's Children's Code Art. 305 violates the Fourteenth Amendment Due Process Clause and the Eighth Amendment

address equal protection for the sake of completeness

and expediency.

This court held that when a statute classifies persons

on the basis of any of the six enumerated grounds in

La. Const. Art. I § 3, including age, the statute is

unconstitutional unless the proponents are able to

prove that the legislative classification "substantially

furthers an appropriate state purpose." Manuel v.

State, 95-2189, p. 4 (La. 3/8/96), 692 So.2d 320, 323,

quoting Sibley v. Board of Supervisors of Louisiana

State University, 477 So.2d 1094, 1108 (La. 1985).

Defendant here contends that the automatic transfer

provision draws a suspect age-based distinction

between juveniles that not only fails to further an

appropriate state purpose but defeats one—i.e., the

rehabilitative purpose of having a separate juvenile

court system—because the transfer is automatic

without regard to whether the juvenile could benefit

from the rehabilitative opportunities afforded by a

juvenile court. However, in scrutinizing La.R.S.

13:1570(A)(5),4 which was a predecessor to Article

of the United States Constitution, Article I, Section 2, 16, 19, 20

and 22 of the Louisiana State Constitution, . . . and goes against

the spirit of United States Supreme Court Case law . . . ." Nowhere

in that filing does defendant mention the Equal Protection Clause

(or its state counterpart in La. Const. Art. I § 3). Defendant's first

mention of equal protection is during argument at the hearing on

his motion.

4 This statute, which pertained to the jurisdiction of the juvenile courts and became effective September 12, 1980, provided:

Except as otherwise provided herein, the [juvenile] court

shall have exclusive original jurisdiction in proceedings:

A. Concerning any child whose domicile is within the

parish or who is found within the parish:

305(A), this court found that provision furthered the

state's interest in protecting the public from serious,

violent felonies. State v. Perque, 439 So.2d 1060, 1064

(La. 1983); see also State v. Leach, 425 So.2d 1232,

1236-37 (La. 1983) ("In the instant case the classifications embodied are not arbitrary and bear a rational

relationship to a legitimate state interest, the protection of its citizens by exposing older minors who are

accused of committing serious and violent felonies to

the usual procedures and sanctions of the state's

criminal law system."). Defendant fails to persuade

the court erred there (even if this claim was properly

before the court now). The automatic transfer provision

is the product of the balancing of policy considerations

involving not only those relating to the special treatment of juveniles but also public safety. It is the

prerogative of the legislature to engage in this

balancing calculus.

The Perque decision also informs our analysis of due

process. In Perque, this court discussed Kent v. United

States, which figures prominently in defendant's

arguments and the district court's reasons here. The

(5) Who violates any law or ordinance, except a child

who, after having become fifteen years of age or older

is charged with having committed first degree murder,

second degree murder, manslaughter, aggravated rape,

or a person who, after becoming sixteen years of age or

older, is charged with having committed armed robbery,

aggravated burglary, or aggravated kidnapping. Once

such a child has been charged with having committed

any offense listed in this Paragraph, the district court

shall retain jurisdiction over his case, even though the

child pleads guilty to, or is convicted of, a lesser

included offense, and a plea to, or conviction of, a lesser

included offense shall not revest the court exercising

juvenile jurisdiction of such a child.

juvenile court in Kent opted to waive its jurisdiction

over a 16-year-old child without holding a hearing,

making any findings, or providing any reason for the

waiver. The United States Supreme Court found the

waiver invalid because it violated the procedures

established by statute in that jurisdiction. Kent, 383

U.S. at 557, 86 S.Ct. at 1055. The Supreme Court's

statutory interpretation was informed by "constitutional

principles relating to due process and assistance of

counsel." Id. The Supreme Court noted that the

juvenile's right to assistance of counsel in conjunction

with the waiver would be "meaningless—an illusion, a

mockery—unless counsel is given the opportunity to

function" at a waiver hearing. Kent, 383 U.S. at 561,

86 S.Ct. at 1057. In addition, the Supreme Court found

the waiver hearing "must measure up to the essentials

of due process and fair treatment." Kent, 383 U.S. at

562, 86 S.Ct. at 1057; see also Application of Gault,

387 U.S. 1, 12-13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d

527 (1967). In Perque, we distinguished the statutory

framework in Kent from that under the predecessor to

Article 305(A):

The situation in the case at bar, however, is

easily distinguishable from that in Kent. In

this case, there are no statutory rights of

which defendants are being deprived. Once

a sixteen-year-old is charged with armed

robbery, the question is not one of "transfer"

of jurisdiction. Rather, the juvenile court is

automatically divested of jurisdiction. This

divestiture is not a matter of discretion on

the part of the juvenile court or the district

attorney, but is controlled by the statute

defining the jurisdiction of the juvenile courts,

La.R.S. 13:1570 A(5).

Since the defendants are not being deprived

of "important statutory rights," the question

is not one of due process, but of whether

La.R.S. 13:1570 A(5) is a valid exercise of the

State's police powers. We have already held

that classifications by age and seriousness of

the offense are not arbitrary or capricious,

and that the classifications bear a rational

relationship to the legitimate state interest of

protecting the public from serious, violent

felonies. State v. Leach, supra. Further, since

the legislative intent is clearly that those

fifteen and sixteen year olds charged with the

enumerated offenses be treated in all respects

as adults, we see no reason to depart from the

rule that the district attorney has "entire

charge and control of every criminal prosecution instituted and pending in his district,

and determines whom, when and how he

shall prosecute."

Perque, 439 So.2d at 1064 (citations omitted).

Defendant here contends our analysis in Perque is

rendered obsolete by more recent United States Supreme

Court jurisprudence, such as Roper v. Simmons,

Graham v. Florida, and Miller v. Alabama, which

recognizes that juveniles are developmentally different

from adults and therefore must be treated differently

from adults. Those decisions, however, are based on

the Eighth Amendment's prohibition against cruel and

unusual punishments and address the importance of

considering the unique characteristics of juveniles in

sentencing.5 None have declared that a juvenile has a

5 Defendant also cites J.D.B. v. North Carolina, 564 U.S. 261,

131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), which (while not grounded

in the Eighth Amendment) held that "so long as the child's age

10a

liberty interest in juvenile court adjudication that

requires certain procedural due process before the

juvenile can be tried as an adult. While we recognize

the importance and necessity that juveniles receive

individualized sentencing determinations, we do not

agree with the district court that the same principles

also apply pretrial to require a waiver hearing focused

on a juvenile's potential for rehabilitation,6 which

overrides the legislature's decision as to how to

structure the jurisdiction of the juvenile courts.

Unlike in Kent, the Louisiana legislature has not

provided certain juvenile offenders with a statutorily

protected liberty interest in juvenile court adjudication but instead has specifically denied such when

the juvenile is accused of a violent and serious felony.

Therefore, defendant, as a 15-year-old charged with

first degree rape, does not have the same statutorily

protected liberty interest in juvenile court adjudication as the juvenile in Kent, which would entitle him

to procedural due process through a transfer hearing

before he could be subjected to adult court jurisdiction.

The juvenile court here is not vested with the discretion to retain or waive jurisdiction. Instead, the Louisiana

was known to the officer at the time of police questioning, or

would have been objectively apparent to a reasonable officer, its

inclusion in the [Miranda] custody analysis is consistent with the

objective nature of that test." J.D.B., 564 U.S. at 277, 131 S.Ct.

at 2406.

6 In fact, in Miller v. Alabama the Supreme Court appeared

somewhat skeptical of a judge's ability to determine a juvenile's

potential for rehabilitation at the pretrial transfer-stage: "Even

when States give transfer-stage discretion to judges, it has

limited utility. . . . [The decisionmaker typically will have only

partial information at this early, pretrial stage about either the

child or the circumstances of the offense." Miller, 567 U.S. at 488,

132 S.Ct. at 2474.

1la

legislature has made the divesture of jurisdiction

mandatory, and defendant is now "subject to the exclusive jurisdiction of the appropriate court exercising

criminal jurisdiction for all subsequent procedures [.1"

La.Ch.C. art. 305(A)(2).

Finally, we note that the state constitution specifically authorizes the legislature to create a provision

like Article 305(A):

The determination of guilt or innocence, the

detention, and the custody of a person who is

alleged to have committed a crime prior to his

seventeenth birthday shall be pursuant to

special juvenile procedures which shall be

provided by law. However, the legislature

may (1) by a two-thirds vote of the elected

members of each house provide that special

juvenile procedures shall not apply to juveniles arrested for having committed first or

second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary,

aggravated kidnapping, attempted first degree

murder, attempted second degree murder,

forcible rape, simple rape, second degree

kidnapping, a second or subsequent aggravated

battery, a second or subsequent aggravated

burglary, a second or subsequent offense of

burglary of an inhabited dwelling, or a second

or subsequent felony-grade violation of Part X

or X-B of Chapter 4 of Title 40 of the

Louisiana Revised Statutes of 1950, involving

the manufacture, distribution, or possession

with intent to distribute controlled dangerous

substances, and (2) by two-thirds vote of the

elected members of each house lower the

maximum ages of persons to whom juvenile

12a

procedures shall apply, and (3) by two-thirds

vote of the elected members of each house

establish a procedure by which the court of

original jurisdiction may waive special juvenile procedures in order that adult procedures

shall apply in individual cases. The legislature,

by a majority of the elected members of each

house, shall make special provisions for

detention and custody of juveniles who are

subject to the jurisdiction of the district court

pending determination of guilt or innocence.

La. Const. Art. V § 19. Article 305 was originally

enacted as part of Acts 1991, No. 235, which originated

as HB 939. By passing Article 305, the legislature

"provide [d] that special juvenile procedures shall not

apply to" persons who have been arrested and subsequently indicted for aggravated (now first degree)

rape, among other enumerated crimes. Given that the

state constitution contains an explicit grant of authority, it is difficult to conclude the legislature violated

the state constitution when it exercised that authority.

Statutes are presumed constitutional, and any

doubt is to be resolved in the statute's favor. State v.

Fleury, 01-0871, p. 5 (La. 10/16/01), 799 So.2d 468,

472; State v. Brenner, 486 So.2d 101, 103 (La. 1986);

Theriot v. Terrebonne Parish Police Jury, 436 So.2d

515, 520 (La. 1983). This court has consistently held

that such presumptively constitutional legislative

enactments should be upheld when possible. State v.

Caruso, 98-1415, p. 1 (La. 3/2/99), 733 So.2d 1169,

1170. The party challenging the constitutionality of a

statute bears a heavy burden in proving that statute

unconstitutional. State v. Brooks, 541 So.2d 801, 811

(La. 1989). The constitutionality of the predecessor to

Article 305 has been repeatedly upheld by this Court.

13a

See State v. Foley, 456 So.2d 979, 981 (La. 1984); State

v. Perique, supra; State v. Leach, supra. Likewise, for

the reasons above, we find defendant here failed to

carry that burden of showing that Article 305(A) is

unconstitutional.

Accordingly, we vacate the district court's ruling,

which declared Children's Code art. 305(A) unconstitutional and quashed defendant's transfer to the

district court, and we remand to the district court

for further proceedings consistent with the views

expressed here.

VACATED AND REMANDED

14a

SUPREME COURT OF LOUISIANA

No. 2019-KA-01061

STATE OF LOUISIANA

vs.

HUNTER FUSSELL

ON APPEAL FROM THE 22ND JUDICIAL

DISTRICT COURT, PARISH OF ST. TAMMANY

JOHNSON, Chief Justice, dissents and assigns reasons.

Because I agree with the district court that Louisiana

Children's Code article 305(A) is unconstitutional, I

must respectfully dissent.

La. Ch. C. art. 305(A) provides, in relevant part

(emphasis added):

A. (1) When a child is fifteen years of age or

older at the time of the commission of first

degree murder, second degree murder, aggravated or first degree rape, or aggravated

kidnapping, he is subject to the exclusive

jurisdiction of the juvenile court until either:

(a) An indictment charging one of these

offenses is returned.

(b) The juvenile court holds a continued

custody hearing pursuant to Articles 819

and 820 and finds probable cause that he

committed one of these offenses, whichever

occurs first. During this hearing, when the

15a

child is charged with aggravated or first

degree rape, the court shall inform him that

if convicted he shall register as a sex offender

for life, pursuant to Chapter 3-B of Title 15 of

the Louisiana Revised Statutes of 1950.

(2) Thereafter, the child is subject to the

exclusive jurisdiction of the appropriate court

exercising criminal jurisdiction for all

subsequent procedures, including the review

of bail applications, and the court exercising

criminal jurisdiction may order that the child

be transferred to the appropriate adult

facility for detention prior to his trial as an

adult.

Hunter Fussell was 15 years and four days old when

he was arrested and charged with first degree rape,

indecent behavior with a juvenile, and sexual battery.

He was therefore subject to the exclusive jurisdiction

of the juvenile court pursuant to Article 305(A)(1).

However, because a grand jury subsequently returned

an indictment charging Hunter with one count of first

degree rape, Article 305(A)(2) mandated that he was

thereafter automatically subject to the jurisdiction of

the district court (referred to as "adult court" herein).

In my view, this statutory mandate violates the Fourteenth Amendment Due Process Clause and violates

the fundamental principles underlying United States

Supreme Court jurisprudence set forth in Roper v.

Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed. 2d

1 (2005), Graham v. Florida, 560 U.S. 48, 130 S.Ct.

2011, 176 L.Ed. 2d 825 (2010), J.D.B. v. North Carolina,

564 U.S. 261, 131 S.Ct. 2394, 180 L.Ed. 2d 310 (2011),

and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455,

183 L.Ed. 2d 407 (2012).

16a

Under the Fourteenth Amendment of the United

States Constitution and Article I, §2 of the Louisiana

Constitution, a citizen is protected against deprivations of life, liberty, or property without "due process

of law." Procedural due process requires that before an

individual is deprived of a property or liberty right,

the individual must be provided with notice and an

opportunity to be heard. State v. Golston, 10-2804

(La. 7/1/11); 67 So. 3d 452, 463. This court has held

"[Ole fundamental requirement of due process is

the opportunity to be heard at a meaningful time and

in a meaningful manner." State v. Bazile, 12-2243 (La.

5/7/13), 144 So. 3d 719, 732.

La. Const. art. V, § 19 provides special procedures

for juveniles alleged to have committed crimes before

the age of 17, yet also sets forth a procedure to allow

the legislature to provide that such special procedures

will not apply in certain circumstances. La. Const. art.

V, § 19 states (emphasis added):

The determination of guilt or innocence, the

detention, and the custody of a person who is

alleged to have committed a crime prior to his

seventeenth birthday shall be pursuant to

special juvenile procedures which shall be

provided by law. However, the legislature

may (1) by a two-thirds vote of the elected

members of each house provide that special

juvenile procedures shall not apply to juveniles arrested for having committed . . .

aggravated rape . . . and (2) by two-thirds

vote of the elected members of each house

lower the maximum ages of persons to whom

juvenile procedures shall apply, and (3) by

two-thirds vote of the elected members of

each house establish a procedure by which

17a

the court Of original jurisdiction may waive

special juvenile procedures in order that

adult procedures shall apply in individual

cases. The legislature, by a majority of the

elected members of each house, shall make

special provisions for detention and custody of

juveniles who are subject to the jurisdiction of

the district court pending determination of

guilt or innocence.

Article 305(A) was enacted by the legislature pursuant

to this constitutional authority. Notably and elevant

to this case, Article 305(A) did not track the language

of Article V, § 19 in that it does not provide that

special juvenile procedures shall not apply to juveniles

arrested for first degree (aggravated) rape. Rather,

Article 305(A) specifically Mandates such juveniles

are subject to juvenile court jurisdiction (making

special juvenile procedures applicable) until an indictment is returned, or until the court holds a continued

custody hearing and finds probable cause. Thus,

although the legislature provided for the divestiture of

juvenile court jurisdiction in certain situations, it also

chose to vest jurisdiction initially in the juvenile court

in those same situations.

A comprehensive juvenile system was established

by the Louisiana Legislature to protect and rehabilitate

juvenile offenders and to "insure that he shall receive

. . . the care, guidance, and control that will be

conducive to his welfare and the best interests of the

state . . . ." In re State ex rel. A.J., 09-0477 (La. 12/1/09),

27 So. 3d 247, 267; La. Ch. C. art. 801. This court has

recognized that "the hallmark of the juvenile system

was its disposition, individually tailored to address the

needs and abilities of the juvenile in question, and the

unique nature of the juvenile system is manifested in

18a

its non-criminal or `civil,' nature, its focus on

rehabilitation and individual treatment rather than

retribution, and the state's role as parens patriae in

managing the welfare of the juvenile in state custody."

A.J., 27 So. 3d at 267 (internal quotations and

citations removed). The special procedures applicable

to juvenile adjudication proceedings confer special

rights and immunities. For instance, juvenile records

are confidential (regrettably, Hunter has already lost

this right); juveniles are typically not jailed with

adults; juveniles are not confined past the age of 21;

and juveniles are protected from the stigma of a

permanent criminal record. These special rights

necessarily emphasize rehabilitation over punishment,

and provide a far better opportunity for rehabilitation

at a much lower cost to the state than a convicted

adult. In this case, Hunter was arrested on December

14, 2018, and was initially subject to the exclusive

jurisdiction of the juvenile court. Thus, he was statutorily vested with all of the attendant benefits and rights

to special procedures and had a liberty interest in his

status as a juvenile, subject to juvenile court jurisdiction. To take away these rights and benefits by

mandating an automatic divestiture of juvenile court

jurisdiction after the grand jury handed down the

indictment on February 27, 2019, implicates due

process concerns.

The lack of a hearing vitiates the due process

standards mandated by the Supreme Court in Kent v.

United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed. 2d

84 (1966). In Kent, the Court recognized the import of

transferring juveniles to the adult system:

[T]here is no place in our system of law for

reaching a result of such tremendous consequences without ceremony-without hearing,

19a

without effective assistance of counsel, without

a statement of reasons. It is inconceivable

that a court of justice dealing with adults,

with respect to a similar issue, would proceed

in this manner. It would be extraordinary if

society's special concern for children, as

reflected in the District of Columbia's Juvenile

Court Act, permitted this procedure. We hold

that it does not.

383 U.S. at 554. While the majority essentially limits

application of Kent based on the specific language of

the D.C. statute involved, I do not find it should be

read so narrowly. Kent, especially when read in

conjunction with the Court's subsequent opinion in

Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18

L.Ed. 2d 527 (1967), prescribes constitutional duties

by finding that a determination by a juvenile court on

the issue of whether it should waive jurisdiction over

a juvenile is a critical stage in a criminal proceeding,

and therefore requires a hearing conforming to the

basic requirements of due process. As stated by the

Court in Gault, "In Kent v. United States . . . we

considered the requirements for a valid waiver of the

`exclusive' jurisdiction of the Juvenile Court of the

District of Columbia so that a juvenile could be tried

in the adult criminal court of the District. Although

our decision turned upon the language of the statute,

we emphasized the necessity that the basic requirements of due process and fairness' be satisfied in such

proceedings." 387 U.S. at 12. The decision in Kent

rested on the crucially important distinction between

the treatment afforded children in an adult court and

that granted them in juvenile court. Although the Kent

decision was partially based on the particular statute,

it is clear to me the Court did not intend to limit the

protections solely based on the procedural aspects of

20a

that case. Here, the majority contends Hunter "does

not have the same statutorily protected liberty

interest in juvenile court adjudication as the juvenile

in Kent. . .," but the relevant due process concerns do

not disappear simply because Article 305(A) does not

provide for a hearing as did the statute at issue in

Kent. The fact that our legislature made the divestiture of jurisdiction mandatory does not eliminate

due process concerns, and the impact on the juvenile

remains the same. Kent and Gault considered together

make it clear that juvenile court proceedings affecting

a juvenile's substantial rights must measure up to the

essentials of due process and fair treatment. I find that

juvenile offenders have a constitutionally protected

liberty interest in their status as a juvenile, subject to

juvenile court jurisdiction. As a result, procedural due

process mandates that juvenile offenders are entitled

to a meaningful hearing before they can be removed

from the jurisdiction of the juvenile court and

subjected to adult court jurisdiction pursuant to

Article 305(A).

I recognize this court has previously upheld the

constitutionality of Louisiana's juvenile jurisdiction

statutory scheme in both State v. Leach, 425 So. 2d

1232 (La. 1983) and State v. Perique, 439 So. 2d 1060

(La. 1983). However, I find it relevant that these cases

directly addressed La. R.S. 13:1570(A)(5), the

predecessor to Article 305(A). That statute established

adult court jurisdiction for juveniles fifteen years or

older who were charged with certain enumerated

offenses.' Thus, this case is the first wherein our court

1 La. R.S. 13:1570(A)(5) provided:

Except as otherwise provided herein, the court shall

have exclusive original jurisdiction in proceedings:

21a

has addressed the constitutionality of Article 305(A),

which establishes juvenile court jurisdiction at the

time a juvenile is arrested and charged until an

indictment is returned or the juvenile court makes a

finding of probable cause. Unfortunately, the majority

erroneously finds Article 305(A) constitutional.

Moreover, even if our earlier decisions in Leach and

Perique are directly relevant to our analysis of the

constitutionality of Article 305(A), the district court

correctly noted those decisions should be revisited in

light of subsequent developments in case law, science,

and policy. Most importantly, our understanding of

juvenile behavior has evolved over time since those

decisions were issued. In recent years, the United

States Supreme Court has recognized and reinforced

the special status of juveniles in a series of cases

discussing the culpability of juvenile offenders.

In Roper v. Simmons, supra, the Court held the

Constitution bars capital punishment for juvenile

offenders. Noting that the death penalty is reserved

A. Concerning any child whose domicile is within the

parish or who is found within the parish:

(5) Who violates any law or ordinance, except a child

who, after having become fifteen years of age or older

is charged with having committed first degree murder,

second degree murder, manslaughter, aggravated rape,

or a person who, after becoming sixteen years of age or

older, is charged with having committed armed robbery,

aggravated burglary, or aggravated kidnapping. Once

such a child has been charged with having committed

any offense listed in this Paragraph, the district court

shall retain jurisdiction over his case, even though the

child pleads guilty to, or is convicted of, a lesser

included offense, and a plea to, or conviction of, a lesser

included offense shall not revest the court exercising

juvenile jurisdiction of such a child.

22a

for a narrow category of crimes and offenders, the

Court recognized three general differences between

juveniles and adults which demonstrate that juvenile

offenders cannot reliably be classified among the worst

offenders:

First, . . . [a] lack of maturity and an underdeveloped sense of responsibility are found

in youth more often than in adults and are

more understandable among the young. These

qualities often result in impetuous and illconsidered actions and decisions. * * * In

recognition of the comparative immaturity

and irresponsibility of juveniles, almost every

State prohibits those under 18 years of age

from voting, serving on juries, or marrying

without parental consent.

The second area of difference is that juveniles

are more vulnerable or susceptible to negative

influences and outside pressures, including

peer pressure. * * * This is explained in part

by the prevailing circumstance that juveniles

have less control, or less experience with

control, over their own environment.

The third broad difference is that the

character of a juvenile is not as well formed

as that of an adult. The personality traits of

juveniles are more transitory, less fixed.

543 U.S. at 569-70 (internal quotations and citations

omitted). Further, the Roper Court explained:

The susceptibility of juveniles to immature

and irresponsible behavior means their

irresponsible conduct is not as morally

reprehensible as that of an adult. Their own

vulnerability and comparative lack of control

23a

over their immediate surroundings mean

juveniles have a greater claim than adults to

be forgiven for failing to escape negative

influences in their whole environment . . . .

The reality that juveniles still struggle to

define their identity means it is less supportable to conclude that even a heinous crime

committed by a juvenile is evidence of irretrievably depraved character. From a moral

standpoint it would be misguided to equate

the failings of a minor with those of an adult,

for a greater possibility exists that a minor's

character deficiencies will be reformed. Indeed,

the 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.

Id. at 570 (internal quotations and citations omitted).

Subsequently, in Graham v. Florida, supra, the

Court held the Eighth Amendment does not permit a

juvenile offender to be sentenced to life in prison

without parole for a nonhomicide crime. In so holding,

the Court recognized "developments in psychology

and brain science continue to show fundamental

differences between juvenile and adult minds." 560

U.S. at 68. The Court reasoned:

Juveniles are more capable of change than

are adults, and their actions are less likely to

be evidence of irretrievably depraved character than are the actions of adults. It remains

true that from a moral standpoint it would be

misguided to equate the failings of a minor

with those of an adult, for a greater possibility

24a

exists that a minor's character deficiencies

will be reformed. These matters relate to the

status of the offenders in question; and it is

relevant to consider next the nature of the

offenses to which this harsh penalty might

apply.

560 U.S. at 68-69 (internal quotations and citations

omitted).

In J.D.B. v. North Carolina, supra, the Court held

that a child's age properly informs the Miranda

custody analysis, so long as the child's age was known

to the officer at the time of police questioning, or would

have been objectively apparent to a reasonable officer.

The Court explained:

A child's age is far more than a chronological

fact. It is a fact that generates commonsense

conclusions about behavior and perception.

Such conclusions apply broadly to children as

a class. And, they are self-evident to anyone

who was a child once himself, including any

police officer or judge.

Time and again, this Court has drawn these

commonsense conclusions for itself. We have

observed that children generally are less

mature and responsible than adults, that

they often lack the experience, perspective,

and judgment to recognize and avoid choices

that could be detrimental to them; that they

are more vulnerable or susceptible to . . .

outside pressures than adults, and so on.

25a

Our various statements to this effect are far

from unique. The law has historically

reflected the same assumption that children

characteristically lack the capacity to exercise

mature judgment and possess only an

incomplete ability to understand the world

around them.

Like this Court's own generalizations, the

legal disqualifications placed on children as a

class e.g., limitations on their ability to

alienate property, enter a binding contract

enforceable against them, and marry without

parental

consent—exhibit

the

settled

understanding that the differentiating

characteristics of youth are universal.

As this discussion establishes, our history is

replete with laws and judicial recognition

that children cannot be viewed simply as

miniature adults.

564 U.S. at 272-74 (internal quotations and citations

omitted).

Additionally, in Miller v. Alabama, supra, the Court

held the Eighth Amendment forbids a sentencing

scheme that mandates life without parole for juvenile

offenders. The Court noted that Roper and Graham

emphasized "that the distinctive attributes of youth

diminish the penological justifications for imposing

the harshest sentence on juvenile offenders, even

when they commit terrible crimes." 567 U.S. at 472.

The Court further explained that the mandatory

penalty scheme at issue prevented the sentencer from

26a

taking into account these considerations. "By removing

youth from the balance—by subjecting a juvenile to

the same life-without-parole sentence applicable to an

adult—these laws prohibit a sentencing authority

from assessing whether the law's harshest term of

imprisonment proportionately punishes a juvenile

offender." 567 U.S. at 474.

The majority finds these decisions inapplicable

because they involve sentencing issues under the

Eighth Amendment. The majority fails to acknowledge

that a law mandating adult court jurisdiction, such

as Article 305(A), necessarily exposes juveniles to

more severe punishment and longer sentences, thus

implicating Eighth Amendment concerns and making

these Supreme Court decisions directly relevant.

Moreover, while Roper, Graham and Miller concern

Eighth Amendment issues, these decisions, as well as

J.D.B, supra, are rooted in the Court's acknowledgment of the special status of juveniles based on

documented differences between children and adults.

The mandatory nature of the Article 305(A) precludes

consideration of a host of characteristics and circumstances attendant to the juvenile's age. The need to

recognize the unique characteristics of youthful

offenders is inconsistent with a statute that mandates

a transfer of jurisdiction to adult court—based solely

on age and the offense charged—without giving

the juvenile a right to a hearing. In my view, these

incremental cases from the Supreme Court have

prompted the need to reevaluate the constitutionality

of Article 305(A). It would be nonsensical to recognize

the significance and necessity of considering juvenile

characteristics solely in the context of sentencing.

Moreover, it is troubling to me that Article 305(A)

provides no judicial safeguard to juveniles alleged to

27a

have committed the enumerated offenses—no judicial

counterweight to any arbitrary charging authority by

the state. The state has full control and discretion to

seek an indictment on a particular charge, and this

unilateral charging decision can effectively establish

the jurisdiction over the juvenile. There is no provision

to transfer the juvenile back to juvenile court if

warranted by a particular situation, such as where a

charge is eventually reduced or when a juvenile is

convicted of a lesser crime that would not have

subjected him to adult court jurisdiction initially.

A meaningful hearing, informed by specific criteria to

determine whether a juvenile is suitable to the

rehabilitative processes available in juvenile court,

prior to removing the juvenile from juvenile court

jurisdiction is essential to withstand constitutional

scrutiny.

Whether a defendant is tried in juvenile or adult

court is not merely a matter of procedure. As the state

admitted at oral argument before this court, subjecting a juvenile to trial in adult court has tremendous

consequences and is more significant than a simple

change of venue. Juveniles who are forced into the

adult criminal justice system lose a plethora of

benefits that come with adjudicating the alleged crime

in the juvenile justice system, and they are saddled

with an adult criminal record. Our understanding of

juvenile culpability has changed dramatically over the

last twenty years, shifting the way we treat accused

juvenile offenders. I do not suggest that a juvenile

offender should never be subject to the jurisdiction of

adult court. But, that determination should be made

on an individual basis. A mandated automatic transfer

provision, based on age and offense alone, is constitutionally flawed. Considering the import and ramifications

involved with subjecting a juvenile to adult court

28a

jurisdiction, I would hold that a juvenile is first

entitled to a hearing to comport with due process

requirements to determine whether that juvenile is

amenable to treatment or rehabilitation based on a

careful review of relevant considerations. Because

Article 305(A) does not allow for a hearing before the

juvenile court is divested of jurisdiction, I find it is

unconstitutional.

29a

SUPREME COURT OF LOUISIANA

No. 2019-KA-01061

STATE OF LOUISIANA

vs.

HUNTER FUSSELL

On Appeal from the 22nd Judicial District Court,

Parish of St. Tammany

Hughes, J., dissents for the reasons assigned by

Johnson, C.J.

30a

SUPREME COURT OF LOUISIANA

No. 2019-KA-01061

STATE OF LOUISIANA

vs.

HUNTER FUSSELL

On Appeal from the 22nd Judicial District Court,

Parish of St. Tammany

CHEHARDY, J., dissents for the reasons assigned by

Johnson, C.J.

31a

APPENDIX B

Parish of St. Tammany State of Louisiana

[FILED: April 24, 2019]

Docket Number 613874 G

STATE OF LOUISIANA,

Versus

H.F.

/s/ [Illegible]

DEPUTY CLERK

REASONS FOR JUDGMENT

This matter came before the court on April 9, 2019

on a Motion to Quash a Bill of Indictment due to the

unconstitutionality of La. Ch. C. Art 305A. The court

granted the Motion to Quash and these reasons support

that ruling.

H. F. (or "Hunter" or the "Child" DOB 12/10/2003)

was taken into custody on December 13, 2018 for

allegedly having committed a delinquent act, namely,

First Degree Rape as defined by La. R.S. 14:42, on or

between December 10, 2018 to December 13, 2018.

H.F. was fifteen years and three days old at the time

of the delinquent acts alleged, and therefore is a

"Child" under La. Ch. C. Art 804(1). Absent any specific statutory exceptions, in delinquency proceedings,

such as the one at bar, exclusive jurisdiction is vested

in the court exercising juvenile jurisdiction under

La. Ch. C. Art 303A(1).

32a

On December 18, 2018, the Child was brought before

the Juvenile Court for a continued custody hearing for

the determination of probable cause. After finding

good cause, and waiver by counsel of any delays associated with a finding of probable cause, the continued

custody hearing was continued. Although the court

was not privy to the exchanges between counsel in

the intervening months, it is possible that the State

and counsel for the Child were exploring a negotiated

plea in juvenile court. During this time period the

Child continued to be detained at the Florida Parishes

Juvenile Detention Center.

On February 27, 2019, the grand jury returned an

indictment charging H. F. with the crime of First

Degree Rape of a victim under the age of 13. The

mandatory penalty for an adult found guilty of that

offense is life imprisonment at hard labor without

benefit of probation, parole or suspension of sentence.

Because of the Child's age and the crime alleged,

jurisdiction of Hunter's case was automatically vested

in the district court pursuant to La. Ch. C. Art 305A.

By virtue of random allotment, the matter was

assigned to this division of the court, which coincidentally, also handles all juvenile matters in the 22nd

Judicial District and therefore, handled the proceedings

while the Child was subject to juvenile jurisdiction.

La. Ch. C. Art. 305 provides, in pertinent part, as

follows:

A. (1) When a child is fifteen years of age

or older at the time of the commission of

first degree murder, second degree murder,

aggravated or first degree rape, or aggravated

kidnapping, he is subject to the exclusive

jurisdiction of the juvenile court until either:

33a

(a) An indictment charging one of these

offenses is returned.

(b) The juvenile court holds a continued

custody hearing pursuant to Articles 819 and

820 and finds probable cause that he committed one of these offenses, whichever occurs

first . . .

(2) Thereafter, the child is subject to the

exclusive jurisdiction of the appropriate court

exercising criminal jurisdiction for all subsequent procedures, including the review of bail

applications, and the court exercising criminal jurisdiction may order that the child be

transferred to the appropriate adult facility

for detention prior to his trial as an adult.

It is the finding of this court that Louisiana's

mandatory transfer law violates the Due Process

Clauses of the United States and Louisiana State

Constitutions. In its ruling, this Court does not find

that a delinquent child should never be transferred to

the punishment focused jurisdiction of an adult

criminal court, merely that, prior to transfer, a child

must receive a hearing similar to the one set out in

La. Ch. C. Art. 862 for a determination of whether that

particular child can be rehabilitated with the facilities

available in the juvenile system, prior to transfer.

While the Louisiana Supreme Court has previously

upheld the constitutionality of mandatory transfer in

cases such as State v. Perow, 616 So. 2d 1336 (La.

1993) and State v. Leach, 425 So. 2d 1232 (La. 1983),

this case presents the opportunity to revisit those

holdings based on developments in the law, science

and policy.

34a

"[T]he Due Process Clause provides that certain

substantive rights—life, liberty, and property—cannot

be deprived except pursuant to constitutionally

adequate procedures." Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L.

Ed. 2d 494 (1985). The Supreme Court has affirmed

the proposition that juveniles charged with crimes also

have the right to procedural due process. In re Gault,

387 U.S. 1, 30-31, 87 S. Ct. 1428, 18 L. Ed. 2d 527

(1967). That esteemed body has also held that as a

matter of constitutional law, juveniles must be treated

differently than adults in sentencing, as well as being

entitled to special procedural protections. Miller v.

Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2459, 183 L.

Ed. 2d 407 (2012), Roper v. Simmons, 543 U.S. 551,

551, 125 S. Ct. 1183, 1184, 161 L. Ed. 2d 1 (2005) and

Graham v. Fla., 560 U.S. 48, 130 S. Ct. 2011, 2014-15,

176 L. Ed. 2d 825 (2010), as modified (July 6, 2010).

Over fifty years ago, the United States Supreme

Court held that the transfer from juvenile court to

adult court imposed a significant deprivation of liberty

and, therefore, warranted protection under the Due

Process Clause of the 14th Amendment. Kent v. United

States, 383 U.S. 541, 544-45, 86 S. Ct. 1045, 1049, 16

L. Ed. 2d 84 (1966). The Kent court found that transfer

was a critically important action determining vitally

important statutory rights of the juvenile. In that

case, the trial court's failure to follow the statutory

procedures, state the reasons for the transfer, and,

specifically to the case at bar, to hold a hearing,

required reversal of the juvenile's court's transfer

order. "There is no place in our system of law for

reaching a result of such tremendous consequences

without ceremony — without hearing, without effective

assistance of counsel, without a statement of reasons."

Id. at 554. The ruling in Kent makes it clear that

35a

because of the critical nature of the proceedings, a

transfer to adult court should not occur unless and

until the due process protections specifically provided

to juveniles are satisfied.

In addition to the enhanced protection of individual

rights afforded juveniles through Louisiana's due process

clause, La. Const. Art. V, § 19 provides juveniles

alleged to have committed crimes prior to age seventeen,

the constitutional right to special juvenile procedures.

The Louisiana Supreme Court has read the provisions

of Art. V, § 19, to dictate a general rule of non-criminal

treatment of juveniles. State ex rel. S.D., 2002-0672

(La. App. 4 Cir. 11/6/02), 832 So. 2d 415.

In a discretionary (or judicial) transfer hearing

authorized by La Ch. C. Art. 857 and set out in Art.

862, the juvenile court alone must decide, based on all

the facts and circumstances involved in each case,

whether a child facing transfer can be rehabilitated

within the juvenile court system. The burden falls

upon the state to prove, by clear and convincing

evidence, that "there is no substantial opportunity for

the child's rehabilitation through facilities available to

the court." In mandatory transfer cases, like Hunter's,

the juvenile court is prohibited from considering any

of these factors and is only asked to consider if there is

probable cause for the offense alleged. A hearing to

determine probable cause alone, without a probable

cause hearing similar to that provided for in La Ch. C.

Art. 862, is not an adequate safeguard, as it does not

protect a child's individual rights by virtue of his

status as a juvenile, before the deprivation of his

liberty interest by transfer. In mandatory transfer

cases, there is no meaningful determination of an

individual child's amenability to rehabilitation. Thus,

36a

Louisiana's transfer statute lacks the core requirements of Kent.

On several occasions in the last several decades, the

Supreme Court has considered the primacy of the

principals of the culpability of young people and the

legal processes due them. These include Miller v.

Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2458, 183 L.

Ed. 2d 407 (2012), holding that mandatory sentence of

life without possibility of parole for minors violates the

Eighth Amendment; Graham v. Fla., 560 U.S. 48, 130

S. Ct. 2011, 2015, 176 L. Ed. 2d 825 (2010), as modified

(July 6, 2010), ruling that imposition of life without

the possibility of parole for non-homicide crimes committed by juveniles violates the Eighth Amendment;

J.D.B. v. North Carolina, 564 U.S. 261, 272, 131 S. Ct.

2394, 2403, 180 L. Ed. 2d 310 (2011), holding that

age is a significant factor in determining whether a

youth is "in custody" for Miranda purposes; Roper v.

Simmons, 543 U.S. 551, 551, 125 S. Ct. 1183, 1184-85,

161 L. Ed. 2d 1 (2005), holding that imposition of

the death penalty on minors violates the Eighth

Amendment; and Montgomery v. Louisiana, 136 S. Ct.

718, 724, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27,

2016), holding that the ruling in Miller v. Alabama

should be applied retroactively.

This line of cases emphasizes the principle that

juveniles are developmentally different from adults

and that these differences are relevant to juvenile

defendants' constitutional rights. These principals are

supported by a substantial body of developmental

research and neuroscience demonstrating significant

psychological differences between juveniles and

adults. See, e.g., Graham, 560 U.S. at 68 ("developments in psychology and brain science continue to

37a

show fundamental differences between juvenile and

adult minds.")

In all of these decisions, the Court has relied on

three abundant scientifically supported categorical

distinctions between juveniles and adults, in order to

conclude that children must be treated differently

than adults under the law. "First, children have a lack

of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless

risk-taking." Miller, supra at 2464. Second, the high

court recognized that children differ from adults in

constitutionally relevant ways because of their susceptibility to outside pressures. Finally, in Miller, 132

S. Ct. at 2464 (quoting Roper, 545 U.S. at 570), the

Court recognized that children and adults differ

because adolescence is a transitional phase. "[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 irretrievabl[e] deprav[ity]." As a result,

"a greater possibility exists that a minor's character

deficiencies will be reformed." Id.

It is the status of being a juvenile, and not the

specific offending behavior at issue, that triggers

differing protections for youth. Mandatory transfer

statutes, however, require certain accused juvenile

offenders to be treated as adults based solely on their

alleged crimes, without any opportunity for a judicial

determination that the particular juvenile at issue

should, in fact, be treated as an adult.

Juveniles have a right not to be automatically

treated as adults. This mandates that a juvenile court

conduct a hearing to consider the individual juvenile

in order to determine whether adult criminal court

is the right place for that particular individual.

Louisiana's own equal protection standard is based

38a

upon the guarantee that state laws generally "affect

alike all persons and interests similarly situated."

State v. Petrovich, 396 So. 2d 1318, 1322 (La. 1981).

Nevertheless, Louisiana's legislature is allowed great

latitude to create classifications under its laws, "so

long as those classifications can withstand constitutional muster." State v. Fleury, 799 So. 2d 468 at 472,

(La. 2001); see also Burmaster v. Gravity Drainage

Dist. No. 2 of the Parish of St. Charles, 366 So. 2d 1381,

1388 (La. 1978).

It is clear that juveniles who have committed a

delinquent act and adults who have committed the

same offense are not groups that are similarly situated. It does not follow, and no research supports, that

a child three days into his 15th birthday is dissimilarly

situated as a child that is four days younger. It may

very well be that an individual child is beyond

rehabilitation at 15 years and three days. At a bare

minimum the state and defense should have a forum

to present evidence of, or contradicting that proposition.

It is because the courts have repeatedly found that

children are different than adults that this court must

find that all children, regardless of the charge they are

accused of committing, should be provided with the

same rights and protections. The existence of the juvenile court system itself is a recognition of the validity

of the separate classification of juveniles for correctional

purposes. State in the Interest of Banks, 402 So.2d 690,

695 (La. 1981). Currently, children who fall under

Louisiana's mandatory transfer law do not get the

same rights and protections as other juveniles. They

are denied the protection of a statutorily created juvenile court and denied equal protection under the law.

Over the last 20 years, our understanding of

juvenile culpability has changed dramatically. Courts

39a

now recognize that "parts of the brain involved in

behavior control continue to develop well into a

person's 20s, and so juveniles differ from adults in

their risk and consequence assessment, impulse control,

tendency toward antisocial behaviors, and [their]

susceptibility to peer pressure." State v. O'Dell, 183

Wn. 2d 680, 691-92, 358 P.3d 359 (2015) (footnotes and

internal quotation marks omitted, quoting Miller

supra). This new knowledge has resulted in a shift in

the way courts treat accused juvenile offenders. When

asked whether juveniles should be treated differently

than adults, both the United States and Louisiana

Supreme Courts have consistently answered in the

affirmative and now "it is the odd legal rule that does

not have some form of exception for children." Miller,

supra at 481, and J.D.B., supra.

Legislation enacted in Louisiana in the last three

years confirms that state policy has begun to embrace

the understanding that adolescent brain development

must inform how juveniles are treated in the justice

system. In 2016, the legislature enacted the "Raise the

Age Louisiana Act," that amended La. Ch. C. Arts. 305

and 306 so as to allow a court discretion in whether to

transfer a child charged as an adult to an adult facility

or to remain in a juvenile detention facility prior to

trial as an adult. More importantly, the Act took the

extraordinary step of amending La. Ch. C. Art. 804 to

gradually include all 17 year olds in the juvenile court

system. (See SB 324.)

La. Ch. C. Art. 897.1, enacted in 1993 required

children adjudicated of certain offenses to serve until

their 21st birthday in secure care without the_benefit

of parole, probation, suspension of imposition or

execution of sentence, or modification of sentence. In

2018, the legislature amended that article to allow for

40a

modification of a juvenile's sentence in certain cases

after a juvenile serves a minimum of thirty-six

months. See La. Ch. C. Art. 897.1 (D). Courts should

view those recent amendments as consistent with the

growing body of law and science that affirms the

fundamental principle that "children are different."

Miller, supra. at 481.

This court acknowledges that the state's interest,

the protection of its citizens, is legitimate. However,

this interest is served and protected by a transfer

hearing. If a particular child is more dangerous, more

culpable, and less subject to rehabilitation than other

juveniles, a transfer hearing allows for the court to

make that determination.

Years of juvenile justice jurisprudence has recognized that a child is not as culpable as an adult who

commits the same offense. The differences between

children and adults have resulted in the Supreme

Court's drawing a bright-line distinction between the

punishments available for children who commit

criminal offenses, even after they are transferred to

criminal court prosecution. (See generally, Graham,

and Miller, supra.) Accordingly, the presumption that

all 15 year olds who commit First Degree Rape are as

culpable as their adult counterparts is not true. In

light of recent Supreme Court jurisprudence that

recognizes that children are different than adults, this

Court must find that Louisiana's mandatory transfer

law La. Ch. C. Art. 305 A, is unconstitutional on its

face, and as applied to Hunter.

41a

THUS DONE AND SIGNED this 24 day of April,

2019, at Covington, La.

/s/ Scott Gardner

JUDGE SCOTT GARDNER, DIVISION G

PLEASE MAIL A COPY TO ALL PARTIES

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.