Petition for Writ of Certiorari — William Dustin Poole, Petitioner v. Florida

Supreme Court briefDec 1, 2022

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No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

WILLIAM DUSTIN POOLE,

Petitioner,

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari

to the Florida Second District Court of Appeal

PETITION FOR WRIT OF CERTIORARI

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

A. QUESTION PRESENTED FOR REVIEW

Whether a sentence of life imprisonment without the possibility of parole on an

eighteen-year-old defendant convicted of a non-homicide offense violates the

prohibition of cruel and unusual punishment of the Eighth Amendment to the

Constitution.

B. PARTIES INVOLVED

The parties involved are identified in the style of the case.

iii

C. TABLE OF CONTENTS AND TABLE OF AUTHORITIES

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PARTIES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS AND TABLE OF AUTHORITIES . . . . . . . . . . . . . iv

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

CITATION TO OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BASIS FOR JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISION INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND STATEMENT OF THE FACTS . . . . . . 1

REASON FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The question presented is important . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX

TABLE OF CITED AUTHORITIES

Cases

Bear Cloud v. State, 294 P.3d 36 (Wyo. 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Eddings v. Oklahoma, 455 U.S. 104 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Graham v. Florida, 560 U.S. 48 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

In re Personal Restraint of Monschke, 482 P.3d 276 (Wash. 2021) . . . . . . . . . . . 13-14

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Miller v. Alabama, 567 U.S. 460 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-9

People v. House, 185 N.E.3d 1234 (Ill. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. House, 2015 WL 9428803 (Ill. App. Ct. Dec. 24, 2015) . . . . . . . . . . . passim

People v. Miller, 781 N.E.2d 300 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Parks, 2022 WL 3008548 (Mich. Jul. 28, 2022). . . . . . . . . . . . . . . . . . . 13-14

Poole v. State, 343 So. 3d 1200 (Fla. 2d DCA 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Roper v. Simmons, 543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

State v. Null, 836 N.W.2d 41 (Iowa 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Thompson v. Oklahoma, 487 U.S. 815 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statutes

§ 921.1401, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authority

American Medical Association et al. as Amicia Curiae, Brief for Petitioner

Graham, No. 08–7412, 2009 WL 2247127 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

Elkhonon Goldberg, The Executive Brain: Frontal Lobes and the Civilized

Mind (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fla. R. Crim. P. 3.800(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Jay N. Giedd et al., Brain Development During Childhood and Adolescence:

A Longitudinal MRI Study, 2 Nature Neurosci. 861 (1999) . . . . . . . . . . . . . . 5

Kanako Ishida, Young Adults in Conflict with the Law: Opportunities

for Diversion, Juvenile Justice Initiative (Feb. 2015), available

at jjustice.org/wordpress/wp-content/uploads/Young-Adults-in-Conflictwith-the-Law-Opportunities-for-Diversion.pdf. . . . . . . . . . . . . . . . . . . . . . . . 10

Lawrence Steinberg & Elizabeth Scott, Less Guilty by Reason of

Adolescence: Developmental Immaturity, Diminished Responsibility,

and the Juvenile Death Penalty, 58 Am. Psychologist 1009 (2003). . . . . . . . 7-8

Mark Hanson, What’s the Matter with Kids Today, ABA Journal, July 2010. . . . . . 5

Maureen Dowling, Note Juvenile Sentencing in Illinois: Addressing the

Supreme Court Trend Away From Harsh Punishments for Juvenile

Offenders, 35 N. Ill. U. L. Rev. 611 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 8-9, 11

Pub. Act. 98–61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-105(3)

(West 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

Richard Knox, The Teen Brain: It’s Just Not grown Up Yet,

Nat’l Pub. Radio (March 1, 2010), available at http://www.npr.

org/templates/story/story.php?story ID= 124119468 . . . . . . . . . . . . . . . . . . . . 5

705 ILCS 405/5-105(3) (West 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

720 ILCS 5/9-1 (West 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

730 ILCS 5/5-8-1(a) (West 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Vincent Schiraldi & Bruce Western, Why 21 year-old offenders should be

tried in family court, Wash. Post (Oct. 2, 2015), available at www.

washingtonpost.com/opinions/time-to-raise-the-juvenile-age-limit/

2015/10/02/948e317c-6862-11e5–-9ef3-fde182507eacstory.html . . . . . . . . 9-10

William J. Hudspeth & Karl H. Pribram, Psychophysiological Indices of

Cerebral Maturation, 21 Int’l J. Psychophysiology 19 (1992) . . . . . . . . . . . . . 5

vii

The Petitioner, WILLIAM DUSTIN POOLE, requests the Court to issue a writ

of certiorari to review the judgment of the Florida Second District Court of Appeal

entered in this case on August 3, 2022. (A-3).1

D. CITATION TO ORDER BELOW

Poole v. State, 343 So. 3d 1200 (Fla. 2d DCA 2022).2

E. BASIS FOR JURISDICTION

The jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1257 to review

the final judgment of the Florida Second District Court of Appeal.

F. CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment to the Constitution states: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

G. STATEMENT OF THE CASE

In 2008, the Petitioner was sentenced to life imprisonment without the

possibility of parole after he was convicted of kidnapping. (A-6-7, A-10). At the time

References to the appendix to this petition will be made by the designation “A”

followed by the appropriate page number.

Because the state appellate court did not issue a written opinion, the Petitioner

was not entitled to seek review in the Florida Supreme Court. See Jenkins v. State,

385 So. 2d 1356, 1359 (Fla. 1980).

of the offenses, the Petitioner was only eighteen years old. (A-10).

In 2021, the Petitioner filed a Florida Rule of Criminal Procedure 3.800(a)

motion asserting that a sentence of life imprisonment without the possibility of parole

on an eighteen-year-old defendant convicted of a non-homicide offense violates the

prohibition of cruel and unusual punishment of the Eighth Amendment to the

Constitution.

On November 17, 2021, the state postconviction court denied the

Petitioner’s rule 3.800(a) motion.

(A-4).

The Petitioner appealed the state

postconviction court’s denial of his rule 3.800(a) motion and the Florida Second District

Court of Appeal affirmed the denial of the rule 3.800(a) motion without any

explanation. (A-3).

H. REASON FOR GRANTING THE WRIT

The question presented is important.

The Petitioner was convicted of kidnapping and the Petitioner was sentenced to

life imprisonment without the possibility of parole. At the time of the offense, the

Petitioner was only eighteen years old. (A-10). The Petitioner submits that his

sentence of life imprisonment without the possibility of parole on an eighteen-year-old

defendant violates the prohibition of cruel and unusual punishment of the Eighth

Amendment to the Constitution.

This Court’s decision in Graham v. Florida, 560 U.S. 48 (2010), highlighted the

differences between an adult with a fully-developed brain and a person who has yet to

achieve adulthood – whose brain has not fully developed. In Graham, the Court held

that a sentence of life imprisonment without the possibility of parole for juvenile

offenders who did not commit homicide is categorically barred by the Eighth

Amendment. To support this holding, the Court relied on the data demonstrating

differences between the adult brain and the non-adult brain:

Roper [v. Simmons, 543 U.S. 551 (2005),] established that because

juveniles have lessened culpability they are less deserving of the most

severe punishments. 543 U.S., at 569. As compared to adults, juveniles

have a “‘lack of maturity and an underdeveloped sense of responsibility’”;

they “are more vulnerable or susceptible to negative influences and

outside pressures, including peer pressure”; and their characters are “not

as well formed.” Id., at 569-570. These salient characteristics mean that

“[i]t is difficult even for expert psychologists to differentiate between the

juvenile offender whose crime reflects unfortunate yet transient

immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders

cannot with reliability be classified among the worst offenders.” Id., at

569. A juvenile is not absolved of responsibility for his actions, but his

transgression “is not as morally reprehensible as that of an adult.”

Thompson [v. Oklahoma, 487 U.S. 815,] 835 [(1988)] (plurality opinion).

No recent data provide reason to reconsider the Court’s

observations in Roper about the nature of juveniles. As petitioner’s amici

point out, developments 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. See Brief for American Medical Association et

al. as Amici Curiae 16-24; Brief for American Psychological Association

et al. as Amici Curiae 22-27. 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. Roper, 543 U.S., at

570. It remains true that “[f]rom 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.” Ibid. 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.

Graham, 560 U.S. at 68-69. Undersigned counsel acknowledges that in Graham, the

Court was focusing on juveniles (i.e., those defendants who had not yet achieved the

age of eighteen). However, in one of the amicus briefs considered by the Court in

Graham, it was pointed out that the human brain does not fully develop until the age

of twenty-five. Specifically, in the amicus brief submitted by the American Medical

Association (No. 08–7412, 2009 WL 2247127 at *13-31 – hereinafter “Graham AMA

Brief”), it was explained that structural differences between adolescent and adult

brains, confirmed by recently developed brain imagery technology, demonstrate that

critical regions of the brain responsible for controlling thoughts, emotions, impulsivity,

and actions continue to develop through age twenty-five.3

There are two ways in which the adolescent’s prefrontal cortex is physically

underdeveloped, affecting brain functioning: pruning and myelination. See Graham

AMA Brief at 18-19. Pruning refers to the process of decreasing gray matter in the

As explained above, the criminal incident in the instant case occurred when the

Petitioner was just eighteen years old. The human brain development research relied

brain as it matures. Id. at 19 (“[P]runing of excess neurons and connections which

make up the gray matter leads to greater efficiency of neural processing and

strengthens the brain’s ability to reason and consistently exercise good judgment.

Thus, pruning establishes some pathways and extinguishes others, enhancing overall

brain functions.”). MRI technology has allowed for a better understanding of the

pruning process and its impact on brain maturation:

Gray matter volumes peak during the ages from 10-20 years, and

the prefrontal cortex is one of the places where gray matter increases –

before adolescence – and then gets pruned over time, beyond adolescence.

The prefrontal cortex is also one of the last regions where pruning is

complete and this region continues to thin past adolescence.

Graham AMA Brief at 20-21. Pruning is one measure of brain maturity. One of the

last regions of the brain to reach full maturity in the pruning process in the pre-frontal

cortex – “the region most closely associated with risk assessment, impulse control,

emotional regulation, decision-making, and planning . . . .” Id. at 21. During

adolescence, “white matter” in the brain increases by a process called “myelination.”

“The presence of myelin makes communication between different parts of the brain

faster and more reliable.” Elkhonon Goldberg, The Executive Brain: Frontal Lobes and

the Civilized Mind 144 (2001). The increase in “white matter” or myelination

“continues through adolescence into adulthood.” Graham AMA Brief at 22, n.68. A

longitudinal MRI study at the National Institute of Mental Health documented an

increase in white matter continuing through the teenage years to at least age 22. See

Jay N. Giedd et al., Brain Development During Childhood and Adolescence: A

Longitudinal MRI Study, 2 Nature Neurosci. 861, 861-62 (1999). Late maturation of

the frontal lobes is also consistent with electroencephalogram (EEG) research showing

that the frontal executive region matures from ages 17-21 – after maturation appears

to cease in other brain regions. William J. Hudspeth & Karl H. Pribram,

Psychophysiological Indices of Cerebral Maturation, 21 Int’l J. Psychophysiology 19, 2627 (1992). See also Mark Hanson, What’s the Matter with Kids Today, ABA Journal,

July 2010, at 50 (discussing scientific research that suggests psychosocial development

continues into early adulthood resulting in shortsighted decisions, poor impulse

control, and increased vulnerability to peer pressure during adolescence); Richard

Knox, The Teen Brain: It’s Just Not grown Up Yet, Nat’l Pub. Radio (March 1, 2010),

http://www. npr.org/ templates/story/story.php?story ID= 124119468 (interview of

Harvard University scientists and expert on epilepsy, Frances Jensen) (“Recent studies

show that neural insulation [which connects the frontal lobes to the rest of the brain]

isn’t complete until the mid–20’s.”).

upon by the Court in Graham applies equally to the Petitioner’s case.

In support of his argument that it is unconstitutional (both facially and as

applied to the Petitioner) to impose a sentence of life imprisonment without the

possibility of parole on a eighteen-year-old defendant, the Petitioner relies on the

Illinois appellate court’s decision in People v. House, 2015 WL 9428803 (Ill. App. Ct.

Dec. 24, 2015).4 In House, the court held that the imposition of a mandatory natural

life sentence on a nineteen-year-old defendant convicted of murder and aggravated

kidnapping violated the Eighth Amendment:

While defendant was not a juvenile at the time of the offense, his

young age of 19 is relevant in consideration under the circumstances of

this case. As in [People v.] Miller[, 781 N.E.2d 300 (2002)], defendant’s

sentence involved the convergence of the accountability statute and the

mandatory natural life sentence. We acknowledge that the offender in

Miller was 15, never handled a firearm, and had less than a minute to

consider the implications of his participation. In the present case, the

State’s evidence at trial established that defendant was not present at the

scene of the murder, but merely acted as a lookout near the railroad

tracks. There was no evidence that defendant helped to plan the

commission, but instead took orders from higher ranking UVL members.

While defendant had a greater involvement in the commission of the

offenses than the defendant in Miller, after considering the evidence and

defendant’s relevant culpability, we question the propriety of mandatory

natural life for a 19 year old defendant convicted under a theory of

accountability. Although defendant acted as a lookout during the

commission of the crime and was not the actual shooter, he received a

mandatory natural life sentence, the same sentence applicable to the

person who pulled the trigger.

We also observe that the Supreme Court in Miller [v. Alabama, 567

U.S. 460 (2012)], Graham and Roper considered the continuing brain

development in adolescents.

The Illinois appellate court’s decision in House is still being reviewed. See

People v. House, 185 N.E.3d 1234 (Ill. 2021).

“Because juveniles have diminished culpability and

greater prospects for reform, we explained, ‘they are less

deserving of the most severe punishments.’ Graham, 560

U.S. at 68. Those cases relied on three significant gaps

between juveniles and adults. First, children have a ‘“lack

of maturity and an underdeveloped sense of responsibility,”

‘leading to recklessness, impulsivity, and heedless

risk-taking. 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,

crime-producing settings. Ibid. 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

irretrievabl[e] deprav[ity].’ Id. at 570.

Our decisions rested not only on common sense – on

what ‘any parent knows’ – but on science and social science

as well. Id. at 569. In Roper, we cited studies showing that

‘“[o]nly a relatively small proportion of adolescents”’ who

engage in illegal activity ‘“develop entrenched patterns of

problem behavior.”’ Id. at 570 (quoting Steinberg & Scott,

Less Guilty by Reason of Adolescence: Developmental

Immaturity, Diminished Responsibility, and the Juvenile

Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)). And

in Graham, we 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.’ 560 U.S. at 68 .

. . . We reasoned that those findings – of transient

rashness, proclivity for risk, and inability to assess

consequences – both lessened a child’s ‘moral culpability’

and enhanced the prospect that, as the years go by and

neurological development occurs, his ‘“deficiencies will be

reformed.”’ Id. at 68 (quoting Roper, 543 U.S. at 570).

Miller, 567 U.S. at 471-472.

As the Graham Court noted, “[e]ven if the punishment has some

connection to a valid penological goal, it must be shown that the

punishment is not grossly disproportionate in light of the justification

offered.” Graham, 560 U.S. at 72. The Roper Court stated, “it is difficult

even for expert psychologists to differentiate between the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable corruption.”

Roper, 543 U.S. at 573 (citing Lawrence Steinberg & Elizabeth Scott, Less

Guilty by Reason of Adolescence: Developmental Immaturity, Diminished

Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009,

1014-16 (2003)).

“It is widely recognized by many legal scholars that the United

States Supreme Court is moving rather quickly towards abolishing life

without parole sentences for juvenile offenders entirely.” Maureen

Dowling, Note Juvenile Sentencing in Illinois: Addressing the Supreme

Court Trend Away From Harsh Punishments for Juvenile Offenders, 35

N. Ill. U. L. Rev. 611, 619 (2015).

“There are several parts of the analyses of each case that

point to this inevitable shift. First, each case acknowledges

that the decisions are directly contrary to our historical

understanding of juvenile sentencing. The Court rejects the

notion of looking at sentencing ‘through a historical prism’

in favor of the evolving moral and ethical standards of

society. This opens up the Court to abolish life without

parole sentences for juveniles, even though traditionally it

is a widely practiced and accepted sentence. Second, each

opinion makes it clear that simply because a majority of

state sentencing statutes do not currently agree with the

decisions, this will not affect the outcome. This argument

goes hand-in-hand with the Court’s rejection of historical

sentencing standards. Again, the Court has left open the

possibility of abolishing the harshest sentence available to

juveniles. Finally, the Court repeatedly emphasizes the

differences between juveniles and adults as an explanation

for why each should be sentenced differently. The continued

focus on these differences further bolsters the argument for

abolishing life sentences without the possibility of parole for

juveniles.”

Id. at 619-20.

“The Supreme Court has followed a clear path away from life

without parole sentences. Following the reasoning laid out by the Court

in these three cases, it can easily be seen how the Court would deal with

abolishing the sentence entirely.” Id. at 627. As this note observes,

several states have responded to Miller by imposing “de facto” life

sentences through lengthy term-of-years sentences. Id. at 620. However,

“These de-facto life sentences are not consistent with the language or

analysis found in both Miller and Graham. A prison sentence that will

last sixty or more years does not allow courts to show juvenile offenders

any clemency. Furthermore, despite the lengthy discussion about the

differences between adults and juveniles, de-facto life sentences do not

give courts any opportunity to take the differences into account when

determining a sentence.” Id. at 621. We also observe that the Iowa

Supreme Court in State v. Null, 836 N.W.2d 41 (Iowa 2013) expanded the

principles of Miller to hold mandatory minimum sentences for juvenile

offenders to be unconstitutional. The Null court believed that

“while 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. Even if lesser sentences than life

without parole might be less problematic, we do not regard

the juvenile’s potential future release in his or her late

sixties after a half century of incarceration sufficient to

escape the rationales of Graham or Miller. The prospect of

geriatric release, if one is to be afforded the opportunity for

release at all, does not provide a ‘meaningful opportunity’ to

demonstrate the ‘maturity and rehabilitation’ required to

obtain release and reenter society as required by Graham,

560 U.S. at 75.”

Id. at 71.

Although the Court in Roper delineated the division between

juvenile and adult at 18, we do not believe that this demarcation has

created a bright line rule. See Roper, 543 U.S. at 574 (“Drawing the line

at 18 years of age is subject, of course, to the objections always raised

against categorical rules. The qualities that distinguish juveniles from

adults do not disappear when an individual turns 18. By the same token,

some under 18 have already attained a level of maturity some adults will

never reach. For the reasons we have discussed, however, a line must be

drawn. . . . The age of 18 is the point where society draws the line for

many purposes between childhood and adulthood. It is, we conclude, the

age at which the line for death eligibility ought to rest.”).

Rather, we find the designation that after age 18 an individual is

a mature adult appears to be somewhat arbitrary, especially in the case

at bar. Recent research and articles have discussed the differences

between young adults, like defendant, and a fully mature adult.

“Research in neurobiology and developmental psychology has shown that

the brain doesn’t finish developing until the mid-20s, far later than was

previously thought. Young adults are more similar to adolescents than

fully mature adults in important ways. They are more susceptible to peer

pressure, less future-oriented and more volatile in emotionally charged

settings.” Vincent Schiraldi & Bruce Western, Why 21 year-old offenders

should be tried in family court, Wash. Post (Oct. 2, 2015), available at

www.washingtonpost.com/opinions/time-to-raise-the-juvenile-agelimit/2015/10/02/948e317c-6862-11e5–-9ef3-fde182507eacstory.html .

“The young adult brain is still developing, and young adults

are in transition from adolescence to adulthood. Further,

the ongoing development of their brains means they have a

high capacity for reform and rehabilitation. Young adults

are, neurologically and developmentally, closer to

adolescents than they are to adults. Prosecuting and

sentencing young adults in the adult criminal justice system

deprives them of their chance to become productive

members of society, leads to high recidivism rates, and high

jail and prison populations, and increased costs to society

through subsequent incarceration and unemployment.”

Kanako Ishida, Young Adults in Conflict with the Law: Opportunities for

Diversion, Juvenile Justice Initiative, at 1 (Feb. 2015), available at

jjustice.org/wordpress/wp-content/uploads/Young-Adults-in-Conflict-wi

th-the-Law-Opportunities-for-Diversion.pdf.

The thesis of these articles is to illustrate the need to expand

juvenile sentencing provisions for young adult offenders. Both articles

noted that several European countries have already extended juvenile

justice to include young adults. In Germany, all young adults ages 18 to

21 have been tried in juvenile court and the judges have an option to

sentence them as a juvenile, if a consideration of the offender’s

personality and environment indicate that his psychological development

was as a juvenile. Id. at 2. Sweden allows for young adults to be tried in

juvenile court until their 25th birthday, and young adults 18 to 24 receive

different treatment than adults. “For instance, statutory minimum

sentences cannot be applied for young people age 20 or under.” Id. at 3.

The Netherlands has extended juvenile alternatives for young adults ages

18 to 21. Id.

We also point out that Illinois raised the age for a delinquent

minor. Prior to January 1, 2014, a person who committed a felony prior

to his or her 17th birthday was considered a delinquent minor. See 705

ILCS 405/5–105(3) (West 2012). However, Public Act 98-61 changed the

definition of a delinquent minor to be, “any minor who prior to his or her

18th birthday has violated or attempted to violate, regardless of where

the act occurred, any federal, State, county or municipal law or

ordinance.” Pub. Act. 98–61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS

405/5-105(3) (West 2012)).

As discussed in the Northern Illinois University Law Review note,

the Supreme Court of Wyoming compiled a list of factors taken from

Miller to consider in sentencing juveniles.

“During a postconviction sentencing hearing, a trial court

should scrutinize the following factors before sentencing a

juvenile offender: (a) the character and history of the

juvenile offender and the specific circumstances of the

crime; (b) the background and emotional and mental

development of the juvenile offender; (c) the offender’s age

and characteristics that go along with it including

immaturity and ability to appreciate risks; (d) the juvenile’s

family and home environment; (e) the circumstances of the

crime, the extent to which the juvenile was involved, and

the extent to which peer or familial pressure may have

factored into the juvenile’s participation; (f) ‘the juvenile’s

relative inability to deal with police and prosecutors or to

assist his own attorney’; and (g) the offender’s potential for

rehabilitation.”

Dowling, supra at 634 (citing Bear Cloud v. State, 2013 WY 18, ¶ 42, 294

P.3d 36, 47 (Wyo. 2013), quoting Miller, 567 U.S. at 475-477).

“‘[J]ust as the chronological age of a minor is itself a relevant

mitigating factor of great weight, so must the background and mental and

emotional development of a youthful defendant be duly considered’ in

assessing his culpability.” Miller, 567 U.S. at 476 (quoting Eddings v.

Oklahoma, 455 U.S. 104, 116 (1982)). As the Supreme Court observed in

Graham, “Life without parole is an especially harsh punishment for a

juvenile. Under this sentence a juvenile offender will on average serve

more years and a greater percentage of his life in prison than an adult

offender. A 16-year-old and a 75-year-old each sentenced to life without

parole receive the same punishment in name only.” Graham, 560 U.S. at

70.

“By making youth (and all that accompanies it) irrelevant to

imposition of that harshest prison sentence, such a scheme poses too

great a risk of disproportionate punishment.” Miller, 567 U.S. at 479.

Under Illinois law, the harshest form of punishment is a mandatory life

sentence. See 730 ILCS 5/5-8-1(a) (West 2014). The trial court is not

afforded any discretion if an offender is found guilty of triggering

offenses, such as, the death of more than one person. See 730 ILCS 5/5-81(a)(1)(c)(ii) (West 2014). However, when the death penalty still existed

in Illinois, there were several statutory guidelines that had to be met

before such a sentence could be imposed. See 720 ILCS 5/9-1 (West 2010).

The lack of discretion afforded the trial court for the imposition of a

mandatory life sentence is especially relevant when the defendant is a

young adult, over 18, but still not considered a fully mature adult.

These considerations are significant in the instant case and

support defendant’s argument that the mandatory natural life sentencing

statute is unconstitutional as applied to him. Turning to the case at bar,

while clearly no longer a juvenile, defendant, at age 19 years and 2

months, was barely a legal adult and still a teenager. His youthfulness

is relevant when considered alongside his participation in the actual

shootings. Defendant’s presentence investigation report showed that his

only prior offenses were possession of a controlled substance with intent

to deliver. Defendant did not have a criminal history of violent crimes.

The sentencing hearing also disclosed that defendant never knew his

father, he was raised by his maternal grandmother, and that his mother

died when he was 18. Defendant attended high school through the

twelfth grade, however, he never graduated. At the time defendant was

sentenced, the death penalty was still in place in Illinois. Although the

trial judge found defendant eligible for the death penalty, he concluded

that there were “sufficient mitigating factors to preclude the imposition

of the death penalty.” While some of these mitigating factors were before

the trial court when it declined to impose the death penalty, they were

not available to be considered before imposing a mandatory natural life

sentence. The court’s ability to take any factors into consideration was

negated by the mandatory nature of defendant’s sentence. The trial court

was also precluded from considering the goal of rehabilitation in imposing

the life sentence, which is especially relevant in defendant’s case. Given

defendant’s age, his family background, his actions as a lookout as

opposed to being the actual shooter, and lack of any prior violent

convictions, we find that defendant’s mandatory sentence of natural life

shocks the moral sense of the community.

Our conclusion is not meant to diminish in any way of the

seriousness of the crimes, specifically two convictions for murder and two

convictions for aggravated kidnapping. We recognize defendant remains

culpable for his participation. However, we believe that defendant is

entitled to a new sentencing hearing in which the trial court has the

ability to consider the relevant mitigating factors prior to imposing a

sentence of such magnitude. Accordingly, we hold that defendant’s

sentence violates the proportionate penalties clause of the constitution as

applied to him. We vacate defendant’s sentence of natural life and

remand for a new sentencing hearing.

House, 2015 WL 9428803 at *22-28.

The Petitioner requests the Court to adopt the Illinois court’s well-reasoned

opinion in House and thereafter conclude that the life without parole sentence in this

case is unconstitutional. As explained in House, excluding the Petitioner from the

reasoning of the Court’s opinion in Graham simply because the offense in this case

occurred shortly after he turned eighteen years old is arbitrary. And as explained

above, recent research and studies into the human brain has now clearly established

that young adults are more similar to adolescents than fully mature adults.

Like House, there are mitigating circumstances in this case. The Petitioner has

a history of mental health ailments (ADHD and bipolar disorder), he was an accomplice

to the offense and was the youngest of four defendants in this case, and the victim’s

injuries were minor. Finally, a proportionality analysis establishes that the sentence

is disproportionate to the both the offense itself and other sentences received by similar

defendants with the Petitioner’s background.

Recently, courts in other states have expanded the rationale behind the Graham

decision and applied it to teenagers above the age of seventeen (defendants who were

“teenagers” – i.e., eighteen or nineteen years old). Most notably, last year, the

Washington Supreme Court extended the reasoning in Graham to all defendants under

the age of twenty-one. See In re Personal Restraint of Monschke, 482 P.3d 276 (Wash.

2021).5 And earlier this year, the Michigan Supreme Court held that the Michigan

In Monschke, two petitioners who were nineteen and twenty years old each

were convicted of aggravated first-degree murder and given mandatory life without

parole sentences. The Washington Supreme Court held that mandatory life sentences

Constitution bars “automatic” life without parole sentences for eighteen-year-old

defendants convicted of first-degree murder. See People v. Parks, 2022 WL 3008548

(Mich. Jul. 28, 2022).

Based on these decisions from Illinois, Washington, and

Michigan, there appears to be an emerging trend in this country to extend the Graham

rationale to teenagers older than seventeen.

In 2014, the Florida Legislature responded to the Court’s decision in Graham

and the Florida Legislature adopted criteria for a sentencing court to consider when

sentencing a defendant with a less-than fully formed brain. See § 921.1401, Fla. Stat.

Section 921.1401 states in relevant part

(2)

In determining whether life imprisonment or a term of years

equal to life imprisonment is an appropriate sentence, the court shall

consider factors relevant to the offense and the defendant’s youth and

attendant circumstances, including, but not limited to:

(a)

The nature and circumstances of the offense committed by

the defendant.

(b)

The effect of the crime on the victim’s family and on the

community.

(c)

The defendant’s age, maturity, intellectual capacity, and

mental and emotional health at the time of the offense.

(d)

The defendant’s background, including his or her family,

home, and community environment.

(e)

The effect, if any, of immaturity, impetuosity, or failure to

appreciate risks and consequences on the defendant’s participation in the

offense.

(f)

The extent of the defendant’s participation in the offense.

(g)

The effect, if any, of familial pressure or peer pressure on the

defendant’s actions.

(h)

The nature and extent of the defendant’s prior criminal

history.

for eighteen-, nineteen-, or twenty-year-old offenders are unconstitutional. The court

remanded each case “for a new sentencing hearing at which the trial court must

consider whether each defendant was subject to the mitigating qualities of youth.”

(i)

The effect, if any, of characteristics attributable to the

defendant’s youth on the defendant’s judgment.

(j)

The possibility of rehabilitating the defendant.

However, none of the factors set forth in section 921.1401 were considered by the

sentencing court in the Petitioner’s case. Undersigned counsel submits that the

appropriate remedy in this case is to remand with directions that the state trial court

conduct a resentencing hearing so that the state trial court can properly apply the

factors set forth in section 921.1401 in order to determine an appropriate sentence in

this case – a sentence that takes into consideration the Petitioner’s age, maturity,

intellectual capacity, and mental and emotional health at the time of the offense.

By granting the petition for writ of certiorari in the instant case, the Court will

have the opportunity to consider the question of whether a sentence of life

imprisonment without the possibility of parole on an eighteen-year-old defendant

convicted of a non-homicide offense violates the prohibition of cruel and unusual

punishment of the Eighth Amendment to the Constitution. The question in this case

has the potential to impact hundreds – if not thousands – of cases nationwide. The

Petitioner urges the Court to exercise its discretion to hear this important question.

I. CONCLUSION

The Petitioner requests the Court to grant his petition for writ of certiorari.

Respectfully Submitted,

/s/ Michael Ufferman