Petition for Writ of Certiorari — Rico Sanders, Petitioner v. Dylon Radtke, Warden
Supreme Court briefJun 10, 2021
Ask Donna
What actually matters in this document.
Text
No. 20-___
IN THE
Supreme Court of the United States
RICO SANDERS,
Petitioner,
v.
DYLON RADTKE, WARDEN,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
BENJAMIN C. MIZER
ARIEL N. VOLPE
LINDSAY R. FISHER
JONES DAY
51 Louisiana Ave., NW
Washington, D.C. 20001
ELIZABETH G. BENTLEY
Counsel of Record
JONES DAY
90 South Seventh Street,
Suite 4950
Minneapolis, MN 55402
(612) 217-8800
ebentley@jonesday.com
Counsel for Petitioner
i
QUESTION PRESENTED
Whether this Court’s Eighth Amendment precedent
clearly establishes that a sentencing court must
consider a defendant’s juvenile status as a mitigating
factor before imposing a life sentence with a remote
possibility of parole.
ii
PARTIES TO THE PROCEEDING
Petitioner Rico
appellant below.
Sanders
was
the
petitioner-
Respondent Dylon Radtke, Warden, was the
respondent-appellee below.*
Dylon Radtke replaced Scott Eckstein as Warden of the Green
Bay Correctional Institution, where Sanders is confined.
Petitioner has notified the Court pursuant to Rule 35.3 that
Dylon Radtke has been automatically substituted as Respondent
in this case.
*
iii
RELATED PROCEEDINGS
The proceedings directly related to this petition are:
•
State v. Sanders, No. 95CF-954600 (Cir. Ct.
Milwaukee Co.);
•
State of Wisconsin ex rel. Rico Sanders v.
William Pollard, No. 2006AP647-W (Wis.
Ct. App.);
•
State v. Sanders, No. 2007AP1469-CR (Wis.
Ct. App.);
•
State v. Sanders, No. 2009AP3190 (Wis. Ct.
App.);
•
State v. Sanders, No. 2012AP1517 (Wis.);
•
Sanders v. Baenen, No. 11-CV-00868 (E.D.
Wis.);
•
Sanders v. Eckstein, No. 19-2596 (7th Cir.).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES ..................................... vii
INTRODUCTION ....................................................... 1
OPINIONS BELOW ................................................... 3
JURISDICTION ......................................................... 3
CONSTITUTIONAL PROVISION INVOLVED ....... 4
STATEMENT OF THE CASE ................................... 4
REASONS FOR GRANTING THE PETITION....... 11
I.
THE DECISION BELOW CONFLICTS WITH THIS
COURT’S CLEARLY ESTABLISHED PRECEDENT,
AS CONFIRMED BY OTHER COURTS .................... 11
A.
A juvenile offender’s age must be
considered as a mitigating factor
when imposing a life sentence with
a remote possibility of parole ................... 11
B.
The decision below conflicts with
decisions of other courts that
recognize Miller’s mandate that
youth matters in sentencing a
juvenile to a life sentence with
the possibility of parole ............................ 16
C.
Courts that disagree read Miller too
narrowly or do not engage with
Miller’s foundational premise .................. 19
v
TABLE OF CONTENTS
(continued)
Page
D.
II.
The decision below is wrong ..................... 23
THE QUESTION PRESENTED IS IMPORTANT ........ 29
CONCLUSION ......................................................... 32
APPENDIX A: Opinion of the United States
Court of Appeals for the Seventh Circuit
(Nov. 30, 2020) .................................................. 1a
APPENDIX B: Order of the United States
District Court for the Eastern District
of Wisconsin (Oct. 2, 2020) ............................. 14a
APPENDIX C: Order of the United States
District Court for the Eastern District
of Wisconsin (Aug. 8, 2020) ............................ 17a
APPENDIX D: Decision of the Wisconsin
Court of Appeals (Aug. 5, 2014) ..................... 33a
APPENDIX E: Transcript of Sentencing,
Wisconsin Circuit Court (Apr. 25, 1997) ....... 41a
APPENDIX F: Transcript of Adjournment
Proceedings, Wisconsin Circuit Court
(June 11, 1996) ............................................... 93a
APPENDIX G: Psychological Evaluation
(Oct. 5, 2004) ................................................. 102a
APPENDIX H: Psychological Evaluation
(July 21, 1997) .............................................. 106a
APPENDIX I: Psychological Evaluation
(Oct. 2, 1995) ................................................. 110a
vi
TABLE OF CONTENTS
(continued)
Page
APPENDIX J: Brief in Support of Habeas
Corpus Petition, United States District
Court for the Eastern District of
Wisconsin (May 2, 2017) .............................. 124a
APPENDIX K: Brief of Defendant-Appellant,
Wisconsin Court of Appeals
(Mar. 31, 2013).............................................. 151a
vii
TABLE OF AUTHORITIES
Page(s)
CASES
Bowling v. Dir., Va. Dep’t of Corr.,
920 F.3d 192 (4th Cir. 2019) .......................... 20, 21
Goins v. Smith,
556 F. App’x 434 (6th Cir. 2014) .................... 20, 21
Graham v. Florida,
560 U.S. 48 (2010) .........................................passim
Hawkins v. N.Y. State Dep’t of Corr. &
Cmty. Supervision,
140 A.D.3d 34 (N.Y. App. Div. 2016) ............. 18, 19
Jones v. Mississippi,
141 S. Ct. 1307 (2021) ...................................passim
Lockyer v. Andrade,
538 U.S. 63 (2003) ................................................ 24
Matteo v. Superintendent, SCI Albion,
171 F.3d 877 (3d Cir. 1999).................................. 24
Miller v. Alabama,
567 U.S. 460 (2012) .......................................passim
Montgomery v. Louisiana,
577 U.S. 190 (2016) .............................. 3, 14, 18, 25
Panetti v. Quarterman,
551 U.S. 930 (2007) .............................................. 24
Roper v. Simmons,
543 U.S. 551 (2005) .......................................passim
State v. Davis,
880 N.W.2d 518 (Iowa Ct. App. 2016) ................. 17
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
State v. Houston-Sconiers,
391 P.3d 409 (Wash. 2017)................................... 18
State v. Link,
482 P.3d 28 (Or. 2021) (en banc) ................... 20, 22
State v. Null,
836 N.W.2d 41 (Iowa 2013) ............................ 17, 23
State v. Patrick,
-- N.E.3d --, 2020 WL 7501940
(Ohio Dec. 22, 2020) ....................................... 17, 18
United States v. Sparks,
941 F.3d 748 (5th Cir. 2019) ................................ 19
White v. Premo,
443 P.3d 597 (Or. 2019) ....................................... 22
White v. Woodall,
572 U.S. 415 (2014) .............................................. 24
Wright v. West,
505 U.S. 277 (1992) .............................................. 24
STATUTES
18 U.S.C. § 3553 .................................................. 16, 19
28 U.S.C. § 1254 .......................................................... 3
28 U.S.C. § 2254 ................................................ 3, 9, 24
Wis. Stat. § 302.11 (1995-1996) .................................. 8
Wis. Stat. § 304.06 (1993-1994) ............................ 8, 26
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
Black’s Law Dictionary (11th ed. 2019) .............. 15, 16
Nazgol Ghandnoosh, Delaying a Second
Chance: The Declining Prospects for
Parole on Life Sentences, The
Sentencing Project (Jan. 2017) .............................. 9
Human Rights Watch, Against All Odds:
Prison Conditions for Youth Offenders
Serving Life Without Parole Sentences
in the United States (2012) .................................. 31
Human Rights Watch & Amnesty Int’l,
The Rest of Their Lives: Life Without
Parole for Child Offenders in the
United States (2005) ....................................... 30, 31
Cara Lombardo, Juvenile Offenders in
Legal Limbo Despite Supreme Court
Rulings, Milwaukee Journal Sentinel
(Oct. 22, 2016) ........................................................ 8
Lawrence Steinberg et al., Psychosocial
Maturity and Desistance From Crime in
a Sample of Serious Juvenile Offenders,
U.S. Dep’t of Justice (March 2015) ...................... 30
U.S.S.G. § 5H1.1 ........................................................ 19
Virginia Parole Board Policy Manual
(Oct. 1, 2006) ........................................................ 21
1
INTRODUCTION
A sentencing court faced with the choice of sending
a juvenile to prison for most or all of his life must
consider one simple principle: “children are different.”
Miller v. Alabama, 567 U.S. 460, 480 (2012). Over and
over, from Roper to Graham to Miller to (most
recently) Jones, this Court has made clear that
children are “less deserving of the most severe
punishments.” Id. at 471 (quoting Graham v. Florida,
560 U.S. 48, 68 (2010)).
“Youth matters in sentencing” for a number of
reasons. Jones v. Mississippi, 141 S. Ct. 1307, 1316
(2021). Children lack maturity and cannot always
separate right from wrong. Miller, 567 U.S. at 471.
Additionally, children are more vulnerable to negative
influences and are unable to escape the violent and
crime-ridden circumstances they are born into. Id.
And children are more capable of reform; their traits
less fixed and their development more malleable. Id.
at 472.
As such, the Eighth Amendment requires a
sentencing court to consider youth as a mitigating
circumstance when sentencing a juvenile to life in
prison or its functional equivalent. Inherent in the
Court’s holdings is the premise that “chronological age
and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and
consequences”—must be considered at sentencing. Id.
at 477. This mandatory principle applies equally to life
sentences with the slim chance of parole near the end
of a juvenile’s life expectancy as it does to life
sentences without any possibility of parole.
2
Sanders’s case illustrates the importance of this
fundamental principle. Sanders grew up in an
extremely dysfunctional environment, was sexually
abused by a family member at a young age,
experienced repeated violence at the hands of gang
members, and watched the murder of his brother, the
only positive role model in his life. All this took place
before the age of 15, when Sanders committed nonhomicide offenses. Like most youth who commit
crimes, Sanders possessed the capacity and desire for
change. Sanders’s psychiatrist was confident that his
mental health disorders could be treated, and Sanders
himself expressed a commitment to make a better life
for himself.
Yet, rather than consider Sanders’s youth as a
mitigating circumstance, the sentencing court did the
opposite: It found that Sanders’s age made him more
dangerous and more deserving of punishment.
Disregarding the state’s requested sentence, the court
imposed a sentence of 140 years—nearly three times as
long as the prosecution’s recommended minimum
sentence and twice as long as the recommended
maximum sentence. If that was “warehousing,” the
sentencing court said, “so be it.” Pet.App.89a-90a.
On postconviction review, the Wisconsin Court of
Appeals denied relief, finding that this Court’s
decision in Miller only “concern[s] juveniles who
committed homicides and were given mandatory
sentences of life without parole.” Pet.App.34a, 38a.
The U.S. District Court for the Eastern District of
Wisconsin and the Seventh Circuit agreed. The
Seventh Circuit concluded that Miller was not
“controlling Supreme Court authority” that rendered
3
the Wisconsin Court of Appeals’ decision an
unreasonable application of federal law. Pet.App.12a.
In doing so, the Seventh Circuit ignored Miller’s
inherent holding—confirmed by Montgomery and
Jones—that youth must be considered as a mitigating
factor when sentencing juveniles to the most severe
sentences, which include life imprisonment with only
the remote possibility of parole.
The Seventh Circuit’s decision leaving Sanders’s
unconstitutional sentence in place runs contrary to
this Court’s clear guidance on juvenile sentencing and
conflicts with the decisions of other courts. This
Court’s review is needed to resolve those conflicts and
affirm the basic principles underlying Roper, Graham,
Miller, and Jones, so that individuals like Sanders,
sentenced as juveniles, do not spend their lives in
prison in contravention of this Court’s clear Eighth
Amendment jurisprudence.
OPINIONS BELOW
The District Court’s opinion denying Sanders’s
petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 (Pet.App.17a-32a) is unpublished, but is
available at 2019 WL 11505401. The Seventh Circuit’s
decision affirming the District Court (Pet.App.1a-13a)
is published at 981 F.3d 637.
JURISDICTION
The Seventh Circuit issued its decision on
November 30, 2020, and denied Sanders’s petition for
rehearing and rehearing en banc on January 11, 2021.
Sanders timely filed this petition in accordance with
the Court’s general order dated March 19, 2020, which
extended the time to file the petition to June 10, 2021.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
4
CONSTITUTIONAL PROVISION INVOLVED
Amendment VIII of the U.S. Constitution
provides:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.
STATEMENT OF THE CASE
1.
Petitioner Rico Sanders was born into
“extremely traumatic and dysfunctional family
circumstances” in the inner city of Chicago, Illinois.
Pet.App.111a. At age 7, Sanders was sexually abused
by his stepfather. Pet.App.159a. By age 8, he began
having suicidal thoughts. Pet.App.106a, 112a. From
then on, he tried to “kill himself every summer.”
Pet.App.112a.
At age 11, he witnessed the murder of his brother
Rodney, who had been one of Sanders’s only positive
role models. Pet.App.111a. At age 12, he was involved
with a street gang. Pet.App.159a. By age 14, he was
severely beaten with a baseball bat, kidnapped, and
shot multiple times. Id. At his grammar school
graduation, gang members beat him up “so bad that
he was not able to walk across the stage to receive his
diploma.” Pet.App.113a.
At the age of 15, Sanders’s mom and he thought it
would be best to leave Chicago for Wisconsin after
gang members threatened his life. Pet.App.67a, 112a113a, 115a. But Sanders had a hard time adjusting to
life in Wisconsin. Pet.App.113a. He continued to
display “irrational behaviors,” such as washing his
face with household bleach to make his skin lighter
and eating hair grease thinking it was jam.
Pet.App.113a. Sanders frequently ran away from
5
home, and was “basically transient” at the time of his
arrest. Pet.App.111a.
During the pendency of his trial, Sanders was
evaluated by multiple psychiatrists. One psychiatrist
described Sanders as “quite emotionally fragile,
impulsive, and seem[ing] to have many unfulfilled
affectional needs.” Pet.App.119a. At the time of his
arrest, Sanders had an IQ of 72. Pet.App.117a.
Sanders’s upbringing contributed to his subsequent
dependency on alcohol and marijuana in his early
teens. Pet.App.112a-15a, 119a. As one of Sanders’s
psychiatrists explained, “[i]n his futile effort to escape
negative aspects of [his] reality,” Sanders “resorted to
fantasy and other escapist behaviors,” such as
substance use. Pet.App.119a. When using drugs and
alcohol, Sanders felt “out of control.” Pet.App.115a.
Consistent with these findings, Sanders has been
diagnosed with schizophrenia, post-hallucinogenic
perceptive disorder, major depressive disorder, and
post-traumatic
stress
disorder
(“PTSD”).
Pet.App.102a-04a. Some of his hallucinations include
someone shooting at him, reminding him of when he
was dodging bullets as a child in Chicago.
Pet.App.106a-07a.
2.
When Sanders was 15 years old, he was
charged as an adult for offenses related to four
incidents that occurred between May and September
of 1995.
Sanders broke into the homes of four women and
sexually assaulted them. Pet.App.2a. During the
assaults, he suffocated, raped, and robbed the victims
of money, other valuables, and food stamps. Id. When
confronted with his actions, Sanders appeared
6
“extremely remorseful” and “willingly accepted full
responsibility.” Pet.App.114a-15a. Sanders also
indicated that he was drunk “every time [he] did it.”
Pet.App.115a.
Because of his mental health deficiencies, Sanders
was initially deemed incompetent to stand trial, and
was sent to a mental health institute for evaluation
and
treatment.
Pet.App.94a-95a,
106a-09a.
Ultimately, the trial court decided that Sanders was of
below average intelligence, but was competent to
stand trial. Pet.App.18a.
On March 11, 1997, Sanders entered Alford pleas to
five counts of sexual assault and one count of armed
robbery. Pet.App.2a. Throughout his plea hearing,
Sanders generally gave one-word responses.
Pet.App.18a. Sanders has since made clear that he did
not fully understand the nature of the charges against
him, in part because he did not understand the
vocabulary used by the court and in part because his
lawyer at the time did not adequately explain the
charges to him. Pet.App.130a-34a.
In line with Sanders’s plea agreement, the
prosecution recommended a range of 50 to 70 years’
incarceration followed by a lengthy term of probation.
Pet.App.19a. The sentencing court instead imposed a
sentence of 140 years—nearly three times as long as
the prosecution’s recommended minimum and twice as
long as the recommended maximum sentence. Id.
In explaining its severe sentence, the court made
clear that it considered Sanders’s age to be an
aggravating, not a mitigating, factor: “There are
hundreds if not thousands of children who have the
same problems in the inner city, but hundreds and not
7
thousands of children grow up to be 17, I don’t even
know if he’s grown up, to commit crimes so violent at
the age of 17. If that’s true, we would have thousands
of 17-year-olds in here.” Pet.App.87a-88a. (Sanders
was actually 15 at the time of the offenses.)
Rather than consider whether Sanders had the
capacity for rehabilitation and change, the court
equated his crimes with murder. The court found that
Sanders had “rob[bed] people of their souls” and noted
that the conduct was “one of the worst if not the worst”
the court had ever seen. Pet.App.85a, 87a. Simply, the
court viewed the prosecution’s recommended sentence
as “insufficient to punish” Sanders and insufficient to
“protect the community.” Pet.App.88a. Instead of
acknowledging youth and its attendant characteristics
as a mitigating factor, the sentencing court viewed
Sanders’s age as a reason he needed to be
“warehoused.” Pet.App.89a-90a.
The sentencing court ignored evidence that showed
how Sanders’s youth was a mitigating circumstance.
One of Sanders’s psychiatrists explained that Sanders
was a “young man” with difficulties “relate[d]
primarily to dysfunctional family circumstances,
negative environmental/peer influences, and possible
organic learning difficulties.” Pet.App.121a. These
circumstances, “in symphony,” “accounted for severe
attitudinal and behavior disorders[] including the
illegal transgressions” for which he was charged. Id.
But, Sanders was not incorrigible. The psychiatrist
thought Sanders, like most youth, could change and
his disorders could be treated. Id.
Sanders expressed both to his psychiatrist and to
the court that he was “quite motivated for change.”
8
Pet.App.122a. When asked what he wished for most,
Sanders responded that he wanted “forgiveness,” and
for his “life [to] be better.” Pet.App.116a. His
psychiatrist concluded that Sanders could achieve that
positive change if he had “positive adult and peer role
models,” as well as in-patient psychiatric care,
substance abuse assistance, and educational
programs. Pet.App.121a-23a. The sentencing court
ignored this evidence and sentenced Sanders to a life
in prison with effectively no chance of parole.
3.
In Wisconsin, inmates are generally eligible
for parole after serving one quarter of their sentence.
Wis. Stat. § 304.06(1)(b) (1993-1994). Because Sanders
was sentenced to 140 years, his first chance at release
will be in 2030, when he is 51 years old and after
serving more than two-thirds of his life in prison.
Most inmates serving time under this regime are
entitled to “mandatory release” on parole after serving
two-thirds of their sentence. Wis. Stat. § 302.11(1)
(1995-1996). But for a defendant who, like Sanders, is
serving time for a “serious felony” committed between
April 21, 1994, and December 31, 1999, this
mandatory release is converted to merely
“presumptive mandatory release.” Wis. Stat.
§ 302.11(1g)(am) (1995-1996). This “presumptive
mandatory release” affords the Parole Commission the
discretion to deny Sanders’s release again in 2089,
when he would be more than 100 years old.
For Sanders, Wisconsin’s statutory requirements
provide a bleak opportunity for parole. In practice, the
reality is even worse. Parole is rarely granted in
Wisconsin, and “release is unlikely” for juvenile
offenders in the state. Cara Lombardo, Juvenile
9
Offenders in Legal Limbo Despite Supreme Court
Rulings, Milwaukee Journal Sentinel (Oct. 22, 2016).
For juveniles, like Sanders, who are serving life
sentences, the parole grant rate was only “between 1%
and 2%” between 2011 and 2013.1 In effect, Sanders
will almost certainly spend the rest of his life in prison.
4.
Sanders
has
diligently
pursued
his
constitutional rights following his conviction. After
this Court issued its decisions in Graham v. Florida,
560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S.
460 (2012), Sanders sought postconviction relief in the
Wisconsin state courts. Pet.App.23a-24a. In the
Wisconsin Court of Appeals, Sanders argued that his
sentence violated both Graham and Miller, which
were retroactive and applied to his case.
The Wisconsin Court of Appeals held that Sanders
was not eligible for relief under Graham or Miller. The
court narrowly interpreted Miller as only
“concern[ing] juveniles who committed homicides and
were given mandatory sentences of life without
parole.” Pet.App.38a. The Supreme Court of Wisconsin
denied review.
After Sanders’s claims were exhausted in state
court, Sanders pursued relief under 28 U.S.C. § 2254
in the U.S. District Court for the Eastern District of
Wisconsin, which denied the petition. Pet.App.17a,
31a. The court held that the Wisconsin Court of
Appeals’ decision denying relief under Miller was not
unreasonable. Pet.App.31a. But the District Court
Nazgol Ghandnoosh, Delaying a Second Chance: The Declining
Prospects for Parole on Life Sentences, The Sentencing Project, at
68 (Jan. 2017), https://www.sentencingproject.org/wp-content/
uploads/2018/03/32-lifer-parole-policies.pdf.
1
10
granted a certificate of appealability, concluding that
reasonable jurists could find its assessment of the
constitutional claims at issue “debatable or wrong.”
Pet.App.14a-16a (internal quotation and citation
omitted).
The Seventh Circuit affirmed. Pet.App.13a. The
court concluded that Miller was not “controlling
Supreme Court authority” because Sanders’s sentence
“does not fall within th[e] category” of sentences
“which provide[] no possibility for parole and [are]
therefore effectively a life sentence.” Pet.App.12a. In
denying relief, the court offered “a brief reaction” to
the reality of Wisconsin’s parole system and Sanders’s
argument that the “deck is stacked against his
receiving parole in 2030.” Pet.App.12a-13a. The court
concluded that “[n]ow is not the time for Sanders to
advance this argument.” Pet.App.13a. According to
the court, should the Wisconsin Parole Board deny
parole, Sanders “will have a future opportunity to
challenge that outcome in state court, including by
raising claims grounded in Graham, Miller, or another
Supreme Court precedent that may enter the U.S.
Reports in the intervening years.” Id.
Sanders’s petition for rehearing and rehearing en
banc was denied.
11
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BELOW CONFLICTS WITH THIS
COURT’S CLEARLY ESTABLISHED PRECEDENT, AS
CONFIRMED BY OTHER COURTS.
A. A juvenile offender’s age must be
considered as a mitigating factor when
imposing a life sentence with a remote
possibility of parole.
“The Eighth Amendment’s prohibition of cruel and
unusual punishment ‘guarantees individuals the right
not to be subjected to excessive sanctions.’” Miller, 567
U.S. at 469 (quoting Roper v. Simmons, 543 U.S. 551,
560 (2005)). “That right,” as this Court has explained,
“‘flows from the basic “precept of justice that
punishment for crime should be graduated and
proportioned”’ to both the offender and the offense.” Id.
(quoting Roper, 543 U.S. at 560). Indeed, the Court has
explained that “[t]he concept of proportionality is
central to the Eighth Amendment.” Graham, 560 U.S.
at 59. In the context of juvenile offenders, this means
that the Eighth Amendment protects children from
receiving disproportionate sentences for crimes they
committed while they were children. Id. at 68, 71. To
achieve that end, this Court’s precedents make clear
that an offender’s youth must be considered as a
mitigating factor at sentencing when imposing a life
sentence with a remote possibility of parole. Jones, 141
S. Ct. at 1315-16; Miller, 567 U.S. at 476-79; Graham,
560 U.S. at 68, 77-79; Roper, 543 U.S. at 569-70.
1.
“‘[A]n offender’s age’ … ‘is relevant to the
Eighth Amendment,’ and so ‘criminal procedure laws
that fail to take defendants’ youthfulness into account
at all would be flawed.’” Miller, 567 U.S. at 473-74
12
(quoting Graham, 560 U.S. at 76). This is so because
“children are constitutionally different from adults for
purposes of sentencing.” Id. at 471. “[J]uveniles have
diminished culpability and greater prospects for
reform” making them “‘less deserving of the most
severe punishments.’” Id. (quoting Graham, 560 U.S.
at 68).
This Court’s Eighth Amendment jurisprudence—in
Roper, Graham, Miller, and Jones—clearly establishes
that “[y]outh matters in sentencing.” Jones, 141 S. Ct.
at 1316. Because children are different, courts must
consider youth as a mitigating factor in sentencing for
a number of reasons.
“First, children have a ‘lack of maturity and an
underdeveloped sense of responsibility,’ leading to
recklessness, impulsivity, and heedless risk-taking.”
Miller, 567 U.S. at 471 (quoting Roper, 543 U.S. at
569). “Second, children ‘are more vulnerable … to
negative influences and outside pressures,’ including
from their family and peers; they have limited
‘contro[l] over their own environment’ and lack the
ability to extricate themselves from horrific, crimeproducing settings.” Id. (quoting Roper, 543 U.S. at
569). “And third, a child’s character is not as ‘well
formed’ as an adult’s; his traits are ‘less fixed’ and his
actions less likely to be ‘evidence of irretrievable
depravity.’” Id. (quoting Roper, 543 U.S. at 570)
(brackets omitted).
Science and social science support these “common
sense” intuitions. Id. In Roper, this Court “cited
studies showing that ‘[o]nly a relatively small
proportion of adolescents’ who engage in illegal
activity ‘develop entrenched patterns of problem
13
behavior.’” Id. (quoting Roper, 543 U.S. at 570). In
Graham, this Court “noted that ‘developments in
psychology and brain science continue to show
fundamental differences between juvenile and adult
minds’—for example, in ‘parts of the brain involved in
behavior control.’” Id. at 471-72 (quoting Graham, 560
U.S. at 68).
Together, “those findings—of transient rashness,
proclivity for risk, and inability to assess
consequences—both lessened a child’s ‘moral
culpability’ and enhanced the prospect that, as the
years go by and neurological development occurs, his
‘deficiencies will be reformed.’” Id. at 472 (quoting
Graham, 560 U.S. at 68).
2.
Children are less culpable and more capable of
reform regardless of whether the sentence being
imposed is life without parole or a life sentence with
the slim chance that parole may be granted near the
end of a juvenile’s life expectancy. Just as “none of
what [Graham] said about children … is crimespecific,” none of what Miller said about sentencing is
limited to sentences of life-without-parole. Id. at 473.
Miller, relying on Roper and Graham, could not have
been more clear: “the distinctive attributes of youth
diminish the penological justifications for imposing
the harshest sentences on juvenile offenders, even
when they commit terrible crimes.” Id. at 472. It
necessarily follows that, in order to ensure the
sentence is proportional under the Eighth
Amendment, the sentencing court must “consider the
‘mitigating qualities of youth.’” Id. at 476.
One of the problems identified in Miller was that
“mandatory penalties, by their nature, preclude a
14
sentencer from taking account of an offender’s age and
the wealth of characteristics and circumstances
attendant to it.” Id. But the Court’s guidance stretches
farther than the precise circumstances of a homicide
offense and life sentence without any possibility of
parole.
Inherent in Miller’s holding is the premise that
“chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to
appreciate risks and consequences”—must be
considered at sentencing. Id. at 477. Otherwise, “a
sentencer misses too much if he treats every child as
an adult” when “imposing a State’s harshest
penalties,” whether it be life without parole or, like
here, 140 years in prison with a remote possibility of
parole near the end of Sanders’s life expectancy. Id.
3.
Again and again, this Court has affirmed the
principle that youth is important and must be
considered as a mitigating factor at sentencing. As this
Court has recognized, “Miller … did more than require
a sentencer to consider a juvenile offender’s youth …[;]
it established that the penological justifications for life
without parole collapse in light of ‘the distinctive
attributes of youth.’” Montgomery v. Louisiana, 577
U.S. 190, 208 (2016) (quoting Miller, 567 U.S. at 472);
see also Miller, 567 U.S. at 476 (addressing prior
rulings where the Court “insisted … that a sentencer
have the ability to consider the ‘mitigating qualities of
youth’”) (emphasis added).
Most recently, in Jones v. Mississippi, the Court
confirmed that a “series of Eighth Amendment cases
applying the Cruel and Unusual Punishments
Clause,” recognized “that youth matters in
15
sentencing.” Jones, 141 S. Ct. at 1314; see also id. at
1316 (“Miller cited Roper and Graham for a simple
proposition: Youth matters in sentencing.”).
Specifically, Jones recognized that “Miller
repeatedly described youth as a sentencing factor akin
to a mitigating circumstance.” Id. at 1315. “[T]he
Miller Court mandated” that a “‘sentencer follow a
certain process—considering an offender’s youth and
attendant characteristics—before imposing’ a lifewithout-parole sentence.” Id. at 1316. But merely
considering a juvenile offender’s age is not enough.
Miller dictates that “[i]n that process, the sentencer
will consider the [offender’s] ‘diminished culpability
and heightened capacity for change,’” i.e. the reasons
why a juvenile may be less culpable and less deserving
of harsh punishment. Id. Miller’s promise is fulfilled
by giving sentencing courts discretion because “it
would be all but impossible for a sentencer to avoid
considering [youth as a] mitigating factor.” Id. at 1319
(emphasis added).
This Court meant what it said. None of this Court’s
precedents grant the sentencing court discretion to
consider youth as an aggravating factor, as the
sentencing court did here.
Youth as a mitigating factor means the sentencer
must consider whether an offender’s youth “reduces
the degree of culpability” and “bear[s] on a court’s
possibly lessening the severity of its judgment.”
Circumstance, Black’s Law Dictionary (11th ed. 2019);
see also Miller, 567 U.S. at 472 (characteristics of
youth “render juveniles less culpable than adults”
(quoting Graham, 560 U.S. at 72)). It is only after
youth is considered as a mitigating factor that a
16
sentencing court may “deem[] the defendant’s youth to
be outweighed by other factors or deem[] the
defendant’s youth to be an insufficient reason to
support a lesser sentence under the facts of the case.”
Jones, 141 S. Ct. at 1320 n.7.
An aggravating circumstance, by contrast, is a “fact
or situation that increases the degree of liability or
culpability for a criminal act.” Circumstance, Black’s
Law Dictionary, supra. Youth, this Court has made
clear, does the opposite.
B.
The decision below conflicts with
decisions of other courts that
recognize Miller’s mandate that
youth matters in sentencing a
juvenile to a life sentence with the
possibility of parole.
The Supreme Courts of Iowa, Ohio, and
Washington—along with other state courts—
recognize this Court’s clear, constitutionally-required
rule that youth must be considered as a mitigating
factor in cases where a juvenile is sentenced to life,
even with the possibility of parole. And the Federal
Sentencing Guidelines already recognize that youth
must be considered as a mitigating circumstance as
part of the § 3553(a) sentencing factors when imposing
federal sentences.
1.
The Supreme Court of Iowa has concluded that
inherent in the Supreme Court’s decision in Miller is
the rule that a sentencing court must consider youth
as a mitigating factor when sentencing a juvenile to a
life sentence with a possibility of parole. “Miller’s
principles are fully applicable to a lengthy term-ofyears sentence … because an offender sentenced to a
17
lengthy term-of-years sentence should not be worse off
than an offender sentenced to life in prison without
parole who has the benefit of an individualized
hearing under Miller.” State v. Null, 836 N.W.2d 41,
72 (Iowa 2013).
In Null, the defendant was required to serve at least
52.5 years of his 75-year sentence before he was
eligible for release for crimes he committed when he
was 16 years old. Id. at 45. Although recognizing that
“a minimum of 52.5 years imprisonment is not
technically a life-without-parole sentence, such a
lengthy sentence imposed on a juvenile is sufficient to
trigger Miller-type protections.” Id. at 71. Thus, “youth
[as] a mitigating factor in sentencing” must be
considered. Id. at 75; see also State v. Davis, 880
N.W.2d 518 (Iowa Ct. App. 2016) (finding that “the
portion of the statutory sentencing schema requiring
a juvenile to serve seventy percent of the period of
incarceration before parole eligibility may not be
imposed without a prior determination by the district
court that the minimum period of incarceration
without parole is warranted under the factors
identified in Miller”).
The same is true in Ohio. That state’s highest court
concluded that “the severity of a sentence of life in
prison on a juvenile offender, even if parole eligibility
is part of the life sentence, is analogous to a sentence
of life in prison without the possibility of parole for the
purposes of the Eighth Amendment.” State v. Patrick,
-- N.E.3d --, 2020 WL 7501940, at *7 (Ohio Dec. 22,
2020).
There, the juvenile was sentenced to life in prison
with parole eligibility after 33 years. Id. In such
18
circumstances, “[g]iven the high likelihood of the
juvenile offender spending his or her life in prison, the
need for an individualized sentencing decision that
considers the offender’s youth and its attendant
characteristics is critical when life without parole is a
potential sentence.” Id. (emphasis added). Simply,
Miller “do[es] not absolve sentencing courts from
considering a defendant’s youth during sentencing
simply because parole eligibility is ultimately included
in the sentence.” Id.
The Washington Supreme Court agrees. “Critically,
the Eighth Amendment requires trial courts to
exercise this discretion [to consider the mitigating
qualities of youth] at the time of sentencing itself,
regardless of what opportunities for discretionary
release may occur down the line.” State v. HoustonSconiers, 391 P.3d 409, 419 (Wash. 2017). Considering
juveniles sentenced to 26 years and 31 years in prison,
the Court saw “no way to avoid the Eighth
Amendment requirement to treat children differently,
with discretion, and with consideration of mitigating
factors.” Id.
Likewise, a New York court found that this Court’s
precedent is clear: “at the sentencing stage, a
defendant who committed a crime as a juvenile is
procedurally entitled to a ‘hearing where “youth and
its attendant characteristics” are considered’ in order
to separate out those who can be punished by a life in
prison from those who cannot.” Hawkins v. N.Y. State
Dep’t of Corr. & Cmty. Supervision, 140 A.D.3d 34, 3839 (N.Y. App. Div. 2016) (quoting Montgomery, 577
U.S. at 210). This guarantee extends both to the
original sentencing court and the parole board. Id. at
39. Otherwise, “persons convicted of crimes committed
19
as juveniles who, but for a favorable parole
determination will be punished by life in prison” “in
contravention” of “the ‘foundational principle’ of the
Eighth Amendment jurisprudence … that [the]
imposition of a [s]tate’s most severe penalties on
juvenile offenders cannot proceed as though they were
not children.” Id. at 38-39 (quoting Miller, 567 U.S. at
474).
2.
The Federal Sentencing Guidelines recognize
that, at the very least, “the nature and circumstances
of the offense and the history of characteristics of the
defendant,” “including youth” should be considered as
mitigating factors. 18 U.S.C. § 3553(a)(1); U.S.S.G.
§ 5H1.1. The Fifth Circuit accordingly concluded that
the Federal Sentencing Guidelines “satisf[y] Miller’s
procedural requirement that the court consider the
defendant’s youth and its attendant characteristics”
before imposing a lengthy sentence, even one that is
not life imprisonment without parole. United States v.
Sparks, 941 F.3d 748, 755 (5th Cir. 2019) (considering
sentence of 35 years). As a result, juveniles receiving
sentences in federal court have the protections Miller
affords to them. The Constitution entitles their
counterparts in state court to the same.
C.
Courts that disagree read Miller too
narrowly or do not engage with
Miller’s foundational premise.
Other courts have found that Miller’s rule that a
sentencing court must consider juvenile status as a
mitigating factor at sentencing only applies to cases
involving actual or de facto life sentences without any
possibility of parole. But these decisions fail to
recognize that the same foundational principles that
20
underlie Miller’s holding establish that a defendant’s
youth must be considered as a mitigating factor when
imposing any severe sentence, such as life with the
possibility of parole or a severe term-of-years sentence.
See, e.g., Bowling v. Dir., Va. Dep’t of Corr., 920 F.3d
192, 198 (4th Cir. 2019) (“the application of the
protections announced in Miller … have not yet
reached a juvenile offender who has and will continue
to receive parole consideration”); Goins v. Smith, 556
F. App’x 434, 435, 440 (6th Cir. 2014) (holding that
Miller “does not clearly require [individualized
sentencing] where a juvenile faces an aggregate termof-years sentence” of 74 years); State v. Link, 482 P.3d
28, 47 (Or. 2021) (en banc) (“Miller’s individualizedsentencing requirement is limited to life-withoutparole sentences or the functional equivalent.”). These
decisions are flawed.
First, neither the Fourth Circuit decision nor the
unpublished Sixth Circuit decision engaged with the
reasoning underlying this Court’s precedent that
youth matters in sentencing. The decisions merely
note that, in their view, there is “disagreement about
the application of the protections announced in Miller
and its lineage to sentences that are practically
equivalent to life without parole.” Bowling, 920 F.3d
at 198; Goins, 556 F. App’x at 440. The decisions do
not discuss the key language in Miller establishing
that “children are different” and are “less deserving of
the most severe punishments,” even though those
observations are necessary to its holding and apply
equally to an assessment of proportionality of
sentences that span nearly an entire lifetime before
the juvenile offender would become eligible for parole.
Miller, 567 U.S. at 471, 480; see also supra at 11-16.
21
In Bowling, such an inquiry was not central to the
court’s decision. The appellant had served 17 years
when he first became eligible for parole. 920 F.3d at
194. The Fourth Circuit read Graham and Miller in
that context to require only that a “parole
board[] … consider a juvenile’s eligibility for parole
within the juvenile’s lifetime,” which the Virginia
parole board had done every year since the petitioner
became eligible. Id. at 194-95, 198 (emphasis in
original). Even if the sentencing court did not consider
youth as a mitigating factor at sentencing, the
appellant did not have to spend most of his life in
prison before another body considered the juvenile’s
maturity and rehabilitation, as the Virginia Parole
Board was required to do. Virginia Parole Board Policy
Manual (Oct. 1, 2006), https://vpb.virginia.gov/files/
1107/vpb-policy-manual.pdf (requiring the parole
board to consider “the individual’s history,” “the
individual’s
conduct,
employment,
education,
vocational training, and other developmental
activities during incarceration,” the “facts and
circumstances of the offense” and “changes in attitude
toward self and others” (cleaned up)).
And in Goins, the Sixth Circuit, without
explanation, found that Miller “certainly counsels in
favor of considering juveniles’ diminished culpability
in imposing consecutive term-of-years sentences,” but
“does not clearly require such an approach where a
juvenile faces an aggregate term-of-years sentence.”
556 F. App’x at 440. The Sixth Circuit did not explain
the difference between the two sentences, even though
both may subject a juvenile to prison for the entirety
of his life or close to it. It is hard to glean much from
the court’s silence.
22
Second, the Oregon Supreme Court in Link read
Miller too narrowly and even narrowed its own prior
precedent. The Court previously held that “‘a sentence
in excess of 50 years’ was ‘sufficiently lengthy’ to
require a Miller individualized-sentencing analysis.”
482 P.3d at 42 (quoting White v. Premo, 443 P.3d 597,
605 (Or. 2019)). But in Link, the court reversed course
and held that “when the Court in Miller referred to the
‘most severe’ or ‘harshest penalties,’ it meant the
death penalty and true-life sentences.” Id. at 653. The
Oregon Supreme Court was right the first time and
does not offer a sufficient explanation to distinguish
Miller’s application between those different
circumstances.
Nothing in Miller expressly limits its foundational
premises to the factual context of sentences of life
without any possibility of parole. Instead, this Court
based its holding on principles espoused in Graham
and Roper establishing that the individualized
sentencing requirement applies to a broad range of “a
State’s most severe penalties,” including “the harshest
possible penalty for juveniles.” Miller, 567 U.S. at 474,
489. The range of severe penalties also includes the
functional equivalent of life sentences with the chance
of parole only after the juvenile has spent significant
time in prison.
If youth as a mitigating factor was not required in
sentences of life with the possibility of parole, the
inherent holding of Miller would be undermined and
juvenile sentencing would lead to inconsistent and
absurd results. For example, a juvenile like Sanders
who commits a non-homicide offense and faces a life
sentence with only a remote opportunity for parole is
worse off than a juvenile who commits a homicide
23
offense and faces a sentence of life without any
possibility of parole. Null, 836 N.W.2d at 72. Both face
a significant chance of spending their entire life
behind bars; yet only the latter receives the benefit of
a constitutional sentencing proceeding.
D.
The decision below is wrong.
Like the Oregon Supreme Court, the Seventh
Circuit read a restriction into Miller that is not there.
And like the Fourth and Sixth Circuits, the Seventh
Circuit incorrectly asserted that Miller was not
“controlling Supreme Court authority” that rendered
the Wisconsin court’s decision an unreasonable
application of federal law. Pet.App.12a. Because the
Seventh
Circuit
erred,
the
state
court’s
unconstitutional sentence stands and the sentencing
court’s decision considering youth as an aggravating
factor rather than a mitigating factor remains on the
books. This outcome runs afoul of this Court’s
precedent and the Constitution.
1.
The Seventh Circuit improperly held that
Sanders was not entitled to habeas relief because
Miller does not clearly apply to sentences that provide
for even a mere possibility of parole. According to the
court, “[a]bsent controlling Supreme Court authority
that Miller requires a sentencing judge to consider a
juvenile offender’s youth and its attendant
circumstances before imposing a sentence other than
a de jure or de facto life-without-parole sentence,” no
such consideration is required. Id. The Seventh
Circuit exacted too demanding a standard.
A petitioner is entitled to habeas relief if the state
court decision “involved an unreasonable application
of, clearly established Federal law, as determined by
24
the Supreme Court.” 28 U.S.C. § 2254(d)(1). “If a
proffered factual distinction between the case under
consideration and pre-existing precedent does not
change the force with which the precedent’s
underlying principle applies, the distinction is not
meaningful, and any deviation from precedent is not
reasonable.” Wright v. West, 505 U.S. 277, 304 (1992)
(O’Connor, J., concurring in the judgment); see also
Panetti v. Quarterman, 551 U.S. 930, 953 (2007)
(AEDPA does not “prohibit a federal court from finding
an application of a principle unreasonable when it
involves a set of facts ‘different from those of the case
in which the principle was announced’” (quoting
Lockyer v. Andrade, 538 U.S. 63, 76 (2003))); White v.
Woodall, 572 U.S. 415, 427 (2014) (AEDPA does not
“requir[e] an identical factual pattern before a legal
rule must be applied,” and “state courts must
reasonably apply the rules ‘squarely established’ by
this Court’s holdings to the facts of each case”). That
is, “[a] petitioner need not point a habeas court to a
factually identical precedent. Oftentimes, Supreme
Court holdings are ‘general’ in the sense that they
erect a framework specifically intended for application
to
variant
factual
situations.”
Matteo
v.
Superintendent, SCI Albion, 171 F.3d 877, 886 (3d Cir.
1999).
Consideration of youth as a mitigating factor does
not turn on the factual distinction of whether the
juvenile nominally has a chance at parole after
spending most of his life in prison. There is no
meaningful distinction between life sentences with
and without the possibility of parole. Both sentences
are severe. Both require the juvenile to spend most of
his life in prison. And in both, the underlying crimes
25
may “reflect[] … transient immaturity.” Miller, 567
U.S. at 479 (quoting Roper, 543 U.S. at 573). But under
the Seventh Circuit’s reasoning, only in one is a court
required to follow this Court’s guidance that “children
are different” and to consider how “the characteristics
of youth … weaken rationales for punishment.” Id. at
473, 480. That makes little sense and is inconsistent
with how this Court views juvenile sentencing.
A lifetime sentence, with or without the possibility
of parole, “still violates the Eighth Amendment for a
child whose crime reflects ‘unfortunate yet transient
immaturity.’” Montgomery, 577 U.S. at 208 (quoting
Miller, 567 U.S. at 479). In both scenarios, “‘[a]n
offender’s age’ … ‘is relevant to the Eighth
Amendment.’” Miller, 567 U.S. at 473-74 (quoting
Graham, 560 U.S. at 76). By refusing to consider youth
as a mitigating circumstance for life sentences with
the remote possibility of parole after the juvenile has
spent two-thirds of his life in prison, the Seventh
Circuit permitted precisely what this Court has
cautioned against: a “flawed” procedure that failed to
take into account the “central consideration” of the
“characteristics of youth, and the way they weaken
rationales for punishment.” Id.
Considering youth as a mitigating factor at the
outset can prevent the court from rendering an
unconstitutional sentence. Not only does it protect a
juvenile’s constitutional rights, it is a more efficient
process.
2.
The Seventh Circuit’s decision improperly
allows Sanders’s unconstitutional sentence to stand.
Sanders was sentenced to a de facto life sentence of
140 years with the remote possibility of parole after he
26
has served 35 years in prison. Wis. Stat. § 304.06(1)(b)
(1993-1994). This means that Sanders, who was 15
when he committed the crimes and 17 when he was
sentenced, is not even eligible for release until he is
roughly 51 years old. Due to the severity of his
sentence, Sanders’s youth should have been
considered as a mitigating factor at sentencing.
Sanders’s traumatic childhood made him “‘more
vulnerable … to negative influences and outside
pressures,’” and Sanders had “limited ‘contro[l] over
[his] own environment’ and lack[ed] the ability to
extricate [himself] from horrific, crime-producing
settings” both in Chicago and in Wisconsin. Miller, 567
U.S. at 471 (quoting Roper, 543 U.S. at 569). Given
Sanders’s background and age, a psychiatrist
concluded that he was “quite emotionally fragile,
impulsive, and seem[ed] to have many unfulfilled
affectional needs.” Pet.App.119a. Sanders had “severe
intellectual, academic, emotional[,] and substance
abuse difficulties which relate[d] primarily to
dysfunctional
family
circumstances,
negative
environmental/peer influences, and possible organic
learning difficulties.” Pet.App.121a. At age 15, he was
at “a moment” and in a “condition of life when a person
may be most susceptible to influence and to
psychological damage.” Miller, 567 U.S. at 476
(internal quotation marks omitted). But, these
“signature qualities” of youth were “all transient.” Id.
(internal quotation marks omitted). His psychiatrist
still believed that his “affective and dependency
disorders [could] be successfully treated within a
relatively short period of time.” Pet.App.122a. Indeed,
before sentencing, Sanders was “quite motivated for
change,” and wanted to “get up out of here” and to
27
make his life better. Pet.App.116a, 122a. Sanders’s
psychiatrist’s assurance that he could “be successfully
treated” and Sanders’s own desire to change
demonstrate that his “character [was] not as ‘well
formed’ …; [and] his traits [were] ‘less fixed.”’ Miller,
567 U.S. at 471 (quoting Roper, 543 U.S. at 570). He
was youthful, not “incorrigible.” Id. at 473.
Instead of considering whether Sanders’s youth
made him less blameworthy, the sentencing court
found that Sanders’s age made him more deserving of
a harsh punishment. The court discounted the idea
that Sanders’s age or background could mitigate his
culpability for his crimes. According to the sentencing
court: “There are hundreds if not thousands of
children who have the same problems in the inner city,
but hundreds and not thousands of children grow up
to be 17, I don’t even know if he’s grown up, to commit
crimes so violent at the age of 17. If that’s true, we
would have thousands of 17-year-olds in here.”
Pet.App.87a-88a. (Sanders was actually 15 years old
when the crimes were committed.)
Far from treating Sanders’s age as reason to think
he might be less culpable or more capable of
rehabilitation, the sentencing court saw Sanders’s
youth as an aggravating circumstance. According to
the sentencing court, Sanders’s age made him more
dangerous, not less, and drove the court to impose a
sentence of 140 years—a sentence that was twice as
long as the state’s proposed upper limit. Pet.App.19a.
Disregarding the state’s recommendation, the
sentencing court concluded that if its extreme
sentence was “warehousing, so be it.” Pet.App.90a.
28
By sentencing Sanders to 140 years in prison with
the remote possibility of parole, the sentencing court
did just what this Court has said it may not do: allow
the “brutality or cold-blooded nature of [a] particular
crime [to] overpower mitigating arguments based on
youth.” Graham, 560 U.S. at 78. Unlike Jones, where
the sentencing court at least “consider[ed] the factors
‘relevant to the child’s culpability,’” even if it did not
make an express finding of permanent incorrigibility,
141 S. Ct. at 1313, the sentencing court here broke
with this Court’s “foundational principle: that
imposition of a State’s most severe penalties on
juvenile offenders cannot proceed as though they were
not children,” Miller, 567 US. at 474. Even if the
Eighth Amendment does not require a separate
factual finding as to incorrigibility, Jones, 141 S. Ct. at
1318-19, the sentencing court’s express consideration
of Sanders’s youth as an aggravating—not
mitigating—factor violated this Court’s clearly
established precedent. Jones, 141 S. Ct. at 1315-16;
Miller, 567 U.S. at 476-79; Graham, 560 U.S. at 68, 7779; Roper, 543 U.S. at 569-70. Sanders was 15 years
old when he committed his crimes. Because of the
sentencing court’s error, he will spend most, if not all,
of his adult life in prison.
Sanders should not have to wait to rectify the
sentencing court’s mistake until 2030 when he is first
eligible for parole. Pet.App.11a-12a. Had the Seventh
Circuit properly invoked Miller’s framework, it would
have been clear that the sentencing court’s Miller
violation occurred at the moment of sentencing. As a
result, Sanders has been subjected to a prison term
that is longer than he otherwise might have served
had the sentencing court considered whether his
29
crimes reflected his “unfortunate yet transient
immaturity.’” Miller, 567 U.S. at 479. Sanders should
not have to spend one more day—let alone nine more
years—in prison before a reviewing body properly
takes his youth into account at sentencing.
II. THE QUESTION PRESENTED IS IMPORTANT
It is imperative that this Court step in and affirm
the basic principles underlying its decisions in Roper,
Graham, Miller, and Jones, so that individuals like
Sanders do not languish in prison under sentences
imposed in violation of this Court’s clear Eighth
Amendment precedent. This Court has made clear:
“youth matters for purposes of meting out the law’s
most serious punishments.” Miller, 567 U.S. at 483
(emphasis added). “[C]hildren are different” and are
“less deserving of the most severe punishments.” Id. at
471, 480. When courts refuse to consider youth as a
mitigating factor before imposing a sentence of life
imprisonment with the remote possibility of parole,
this Court’s fundamental guarantee is rendered
meaningless.
By refusing to recognize youth as a mitigating
circumstance when sentencing a juvenile to life
imprisonment, a court fails to account for the transient
nature of youth and effectively presumes that the
juvenile is incorrigible. As this Court has stated, the
“characteristics of juveniles make that judgment
questionable” because “incorrigibility is inconsistent
with youth.” Graham, 560 U.S. at 72-73. Since Roper
and Graham, the social science supporting these
conclusions “ha[s] become even stronger.” Miller, 568
U.S. at 472 n.5.
30
According to a United States Department of Justice
report, “[t]he vast majority of juvenile offenders, even
those who commit serious crimes, grow out of
antisocial
activity
as
they
transition
to
adulthood. … [T]he process of maturing out of crime is
linked to the process of maturing more generally,
including the development of impulse control and
future orientation.” 2 “New research on brain
development … shows that there is continued
maturation of brain systems that support selfregulation—well into the midtwenties.” 3 When a
juvenile is allowed to mature, “the result may well be
desistance from crime.”4
Research also has shown, however, that harshly
sanctioning youth and depriving them of the
opportunity for release can “slow the process of
psychosocial maturation,” which may “in the long
run … do more harm than good.” 5 Rather than
maturing out of crime, juvenile offenders who know
they will spend most of their lives in prison remain
stagnant. Many suffer from untreated mental
illnesses that inhibit their ability to mature
emotionally and behaviorally. 6 And many “wrestle
Lawrence Steinberg et al., Psychosocial Maturity and
Desistance From Crime in a Sample of Serious Juvenile Offenders,
U.S.
Dep’t
of
Justice,
at
1
(March
2015),
https://www.courts.ca.gov/documents/BTB24-2M-5.pdf.
2
3
Id. at 8.
4
Id. at 9.
5
Id.
6 See Human Rights Watch & Amnesty Int’l, The Rest of Their
Lives: Life Without Parole for Child Offenders in the United States
(2005), https://www.hrw.org/report/2005/10/11/rest-their-lives/
31
with the anger and emotional turmoil of coming to
grips with the knowledge they will die in prison,” and
suffer from depression and intense loneliness. 7 For
these offenders, the sentence “means denial of hope; it
means that good behavior and character improvement
are immaterial; it means that whatever the future
might hold in store for the mind and spirit of [the
convict], he will remain in prison for the rest of his
days.” Graham, 560 U.S. at 70 (internal quotations
and citations omitted).
A life sentence with only a remote possibility of
parole is fundamentally at odds with the
characteristics of youth and the capacity for change
and maturity. This Court has made clear that
juveniles “should not be deprived of the opportunity to
achieve maturity of judgment and self-recognition of
human worth and potential.” Id. at 79.
By failing to consider youth as a mitigating
circumstance, Sanders was denied such an
opportunity. He exemplifies a juvenile who displayed
a capacity for change. Psychiatrists who examined
Sanders during a tumultuous and traumatic part of
his childhood concluded as much. According to one,
Sanders’s “intellectual, academic, emotional[,] and
substance
abuse”
problems,
“in
symphony,”
“accounted for severe attitudinal and behavior
life-without-parole-child-offenders-united-states; Human Rights
Watch, Against All Odds: Prison Conditions for Youth Offenders
Serving Life Without Parole Sentences in the United States (2012),
https://www.ojp.gov/ncjrs/virtual-library/abstracts/against-allodds-prison-conditions-youth-offenders-serving-life.
Human Rights Watch & Amnesty Int’l, The Rest of Their
Lives, supra.
7
32
disorders[] including the illegal transgressions” he
committed. Pet.App.121a. But he was not incorrigible.
Sanders accepted responsibility for his actions,
showed remorse, and expressed a desire to make his
life better. Pet.App.114a-15a, 116a. Even while
incarcerated, and against all odds, Sanders has taken
advantage of every opportunity to grow, develop,
mature, and gain skills. Many similarly situated
offenders cannot be expected to have the same
perseverance.
Social science does not treat juveniles sentenced to
life imprisonment without parole differently from
juveniles sentenced to life in prison with the remote
possibility of parole. Nor should sentencing courts.
This Court must step in to affirm what is inherent in
prior holdings—youth must be considered as a
mitigating factor when sentencing a juvenile to a
severe sentence, including life imprisonment with a
remote possibility of parole.
CONCLUSION
The petition for a writ of certiorari should be
granted.
33
June 10, 2021
Respectfully submitted,
BENJAMIN C. MIZER
ARIEL N. VOLPE
LINDSAY R. FISHER
JONES DAY
51 Louisiana Ave., NW
Washington, D.C. 20001
ELIZABETH G. BENTLEY
Counsel of Record
JONES DAY
90 South Seventh Street,
Suite 4950
Minneapolis, MN 55402
(612) 217-8800
ebentley@jonesday.com
Counsel for Petitioner
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.