Petition for Writ of Certiorari — Caed Brawner, Petitioner v. Florida

Supreme Court briefMar 5, 2025

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No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

CAED BRAWNER,

Petitioner,

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari

to the Florida First 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 mandatory life imprisonment without the possibility of

parole on a teenager 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

APPENDIX

TABLE OF CITED AUTHORITIES

Cases

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

Brawner v. State, 395 So. 3d 1079 (Fla. 1st DCA 2024) . . . . . . . . . . . . . . . . . . . . . . . 1

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) . . . . . . . . . . . . . 14

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

Miller v. Alabama, 567 U.S. 460 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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). . . . . . . . . . . . . . . . . . . . . 14

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, 15

United States v. Cruz, 2021 WL 1326851 (D. Conn. Apr. 9, 2021) . . . . . . . . . passim

Statutes

§ 921.1401, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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

Other Authority

Alexandra Cohen et al., When Does a Juvenile Become an Adult?

Implications for Law and Policy, 88 Temple L. Rev. 769 (2016) . . . . . . . . . . 16

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, 13, 18

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

Laurence Steinberg et al., Around the World, Adolescence is a Time of

Heightened Sensation Seeking and Immature Self-Regulation,

Developmental Science (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

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, 17

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

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

(West 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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

730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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

U.S. SENTENCING COMMISSION, FEDERAL SENTENCING

STATISTICS: SECOND CIRCUIT tbl. 7 (2011-2020) (annual reports),

available at https://www.ussc.gov/topic/data-reports . . . . . . . . . . . . . . . . . . 18

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 . . . . 9-10

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

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

vii

The Petitioner, CAED BRAWNER, requests the Court to issue a writ of

certiorari to review the judgment of the Florida First District Court of Appeal entered

in this case on November 5, 2024. (A-3). 1

D. CITATION TO ORDER BELOW

Brawner v. State, 395 So. 3d 1079 (Fla. 1st DCA 2024).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 First 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 2003, the Petitioner was sentenced to mandatory life imprisonment without

the possibility of parole after he was convicted of murder and armed robbery. At the

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).

time of the offense, the Petitioner was a teenager – he was only nineteen years old.

In 2023, the Petitioner filed a Florida Rule of Criminal Procedure 3.800(a)

motion arguing that a sentence of mandatory life imprisonment without the possibility

of parole on a teenager violates the prohibition of cruel and unusual punishment of the

Eighth Amendment of the Constitution. On January 3, 2024, the state postconviction

court denied the Petitioner’s rule 3.800(a) motion. (A-5). In the order, the state

postconviction court said, “Further, the Supreme Court’s categorical punishment

jurisprudence, which began in death penalty cases and expanded to age-based

punishments in Graham3, is wrongly decided and due for a correction soon.” (A-5). The

Petitioner appealed the state postconviction court’s denial of his rule 3.800(a) motion

and the Florida First District Court of Appeal affirmed the denial of the rule 3.800(a)

motion without any explanation. (A-3).

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

H. REASON FOR GRANTING THE WRIT

The question presented is important.

The Petitioner was convicted of murder and armed robbery and the Petitioner

was sentenced to mandatory life imprisonment without the possibility of parole. At the

time of the offense, the Petitioner was only nineteen years old. The Petitioner submits

that his sentence of mandatory life imprisonment without the possibility of parole on

a teenager 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.4

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

In Miller v. Alabama, 567 U.S. 460 (2012), the Court extended the reasoning in

Graham and held that mandatory life imprisonment without parole for a juvenile

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.”).

convicted of murder violates the Eighth Amendment’s prohibition on cruel and unusual

punishments.

As explained above, the offenses in the instant case occurred when the Petitioner

was only nineteen years old. The human brain development research relied upon by

the Court in Graham and Miller 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 mandatory sentence of life imprisonment without

the possibility of parole on any teenager, the Petitioner relies on the Illinois appellate

court’s decision in People v. House, 2015 WL 9428803 (Ill. App. Ct. Dec. 24, 2015). 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.

“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 mandatory life without parole

sentence in this case is unconstitutional. As explained in House, excluding the

Petitioner from the reasoning of the Court’s opinions in Graham and Miller simply

because the offenses in this case occurred after the Petitioner turned nineteen 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.

And like House, there are mitigating circumstances in this case. Specifically, the

following mitigators apply to this case. At the time of the offenses, the Petitioner was

in college and he had no criminal history. Additionally, since being incarcerated as a

teenager, the Petitioner has been a model inmate. The Petitioner is now forty-four

years old (i.e., he has spent the majority of his life in prison). While in prison, the

Petitioner has become a certified Institutional Tutor Aid (for which he helps other

inmates obtain their GEDs), he is a prison law clerk, he has completed numerous

programs (including a victim impact course), and he is the assistant senior coordinator

for the Peer-to-Peer program. Attached to the Petitioner’s state court rule 3.800(a)

motion were letters and certificates demonstrating the Petitioner’s rehabilitation since

he has been incarcerated. (A-32).

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

and Miller decisions and applied them to teenagers above the age of seventeen

(defendants who were “teenagers” – i.e., eighteen or nineteen years old). Most notably,

in 2021, 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 in 2022, the Michigan Supreme Court held that the

Michigan 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 and Miller rationales to teenagers older than seventeen.

To further support his argument, the Petitioner relies on United States v. Cruz,

2021 WL 1326851 (D. Conn. Apr. 9, 2021), where a federal district judge (the

Honorable Janet C. Hall) granted a motion for compassionate release under the First

Step Act for a defendant who committed murder when he was eighteen years old. In

the order, Judge Hall stated the following:

At Cruz’s sentencing in 1996, the Sentencing Guidelines were

mandatory and called for a life sentence. The court was not permitted to

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

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.”

Monschke, 482 P.3d at 288.

consider age as a basis for imposing a sentence outside of the guideline

range. The Guidelines are now an advisory factor under section 3553(a),

and age is a permissible characteristic for the sentencing court to

consider.

It is uncontroversial that age, specifically youth, bears on an

individual’s blameworthiness in committing a criminal offense. “The

basis for this conclusion is too obvious to require extended explanation.”

Thompson v. Oklahoma, 487 U.S. 815, 835 (1988). Because of their

reduced cognitive, interpersonal, and emotional capabilities, children and

adolescents are less blameworthy than mature adults when they engage

in criminal behavior.

The Supreme Court has discussed these distinguishing

characteristics of youth on several occasions. In Roper v. Simmons, 543

U.S. 551 (2005), the Court identified “[t]hree general differences” that

separate juveniles under 18 and adults in terms of blameworthiness.

First, juveniles tend to lack both maturity and a sense of responsibility,

“often result[ing] in impetuous and ill-considered actions and decisions.”

Roper, 543 U.S. at 569. Second, “juveniles are more vulnerable or

susceptible to negative influences and outside pressures, including peer

pressure.” Id. Third, “the character of a juvenile is not as well formed as

that of an adult.” Id. at 570. Based upon these differences, the Court

held that the death penalty is unconstitutional for offenders under the

age of 18. See id. at 575. Subsequently, in Miller v. Alabama, the Court

again recognized these “three significant gaps between juveniles and

adults,” 567 U.S. at 471, in its holding that “mandatory life without

parole for those under the age of 18 at the time of their crimes violates

the Eighth Amendment’s prohibition on cruel and unusual punishments,”

id. at 465 (internal quotation marks omitted).

Of course, the Court’s holding in Miller does not apply to Cruz, who

was 20 weeks past his eighteenth birthday when he committed his

offenses. That holding under the Eighth Amendment is “explicitly

limited” to defendants “under the age of 18.”

All the same, the distinguishing characteristics of youth

acknowledged in Roper and Miller “do not disappear when an individual

turns 18.” Roper, 543 U.S. at 574. The line simply “must be drawn”

somewhere. Id. However, that the Supreme Court has drawn this line

at age 18 for purposes of the Eighth Amendment does not extinguish the

relevance of these characteristics in assessing, as a general matter, an

18-year-old’s blameworthiness in committing a crime. Certainly, it does

not require that this court ignore, in the context of the instant section

3582(c) motion for a sentence reduction, what is plain: a person 20 weeks

past his eighteenth birthday exhibits the same hallmark characteristics of

youth that make those under 18 less blameworthy for criminal conduct

than adults.

The record developed in Cruz’s habeas action amply supports this

conclusion. As to the first characteristic identified by the Roper Court –

“lack of maturity and an underdeveloped sense of responsibility” as

manifest in “impetuous and ill-considered actions and decisions” – the

scientific evidence before the court clearly established that the same

traits are present in 18-year-olds. See Roper, 543 U.S. at 569. Cruz’s

evidence consisted of the expert testimony of Dr. Laurence Steinberg and

scientific articles offered as exhibits. See, e.g., Alexandra Cohen et al.,

When Does a Juvenile Become an Adult? Implications for Law and Policy,

88 Temple L. Rev. 769 (2016); Laurence Steinberg et al., Around the

World, Adolescence is a Time of Heightened Sensation Seeking and

Immature Self-Regulation, Developmental Science (2017).

In his testimony, Dr. Steinberg defined early adolescence as

occurring between the ages of 10 and 13, middle adolescence between the

ages of 14 and 17, and late adolescence between the ages of 18 and 21.

Steinberg Tr. at 11:5-11. He distinguished between two different

decision-making processes: cold cognition, which occurs when an

individual is calm and emotionally neutral, and hot cognition, which

occurs when an individual is emotionally aroused, such as in anger or

excitement. Id. at 9:13-10:15. Cold cognition relies mainly on basic

thinking abilities while hot cognition also requires the individual to

regulate and control his emotions. Id. at 10:16-21. While the abilities

required for cold cognition are mature by around the age of 16, the

emotional regulation required for hot cognition is not fully mature until

the early- or mid-20s. See id. at 10:18-11:4, 69:20-70:7; see also Cohen et

al., When Does a Juvenile Become an Adult?, at 786 (finding that,

“relative to adults over twenty-one, young adults show diminished

cognitive capacity, similar to that of adolescents, under brief and

prolonged negative emotional arousal”).

Dr. Steinberg also testified that late adolescents “still show

problems with impulse control and self-regulation and heightened

sensation-seeking, which would make them in those respects more

similar to somewhat younger people than to older people.” Steinberg Tr.

at 19:21-25. For example, he testified that impulse control is still

developing during the late adolescent years from age 10 to the early- or

mid-20s. Id. at 20:16-21; see also Cohen et al., When Does a Juvenile

Become an Adult?, at 780. Additionally, late adolescents are more likely

to take risks than either adults or middle or early adolescents. See

Steinberg Tr. at 20:1-15. According to Dr. Steinberg, risk-seeking

behavior peaks around ages 17 to 19 and then declines into adulthood.

Id.; see also Steinberg et al., Around the World, at 10 (graphing the

trajectory of sensation-seeking behavior, as related to age, as an

upside-down “U” with the peak at age 19). The scientific evidence

therefore demonstrates that 18-year-olds display similar characteristics

of immaturity and impulsivity as juveniles under the age of 18.

The same conclusion can be drawn for susceptibility of 18-year-olds

to outside influences and peer pressure, the second characteristic of youth

identified in Roper. Dr. Steinberg testified that the ability to resist peer

pressure is still developing during late adolescence. Steinberg Tr. at

20:22-21:3. Therefore, susceptibility to peer pressure is higher in late

adolescence than in adulthood, but slightly lower in late adolescence than

in middle adolescence. Id. Dr. Steinberg testified that, according to his

research, up until the age of 24, people exhibit greater risk-taking and

reward-sensitive behavior when in the presence of their peers. Id. at

24:14-25:15. Adults after the age of 24 do not exhibit this behavior, but

rather perform the same whether they are by themselves or with their

peers. Id. Therefore, like juveniles under the age of 18, 18-year-olds also

experience similar susceptibility to negative outside influences.

Finally, on the third characteristic of youth identified in Roper –

that a juvenile’s character is not as well-formed as that of an adult – Dr.

Steinberg testified that people in late adolescence are, like 17-year-olds,

more capable of change than are adults. Id. at 21:4-12.

In sum, Dr. Steinberg testified that he is “absolutely confident” that

a person’s development along these lines is still ongoing in late

adolescence, i.e., between the ages of 18 and 21. See id. at 61:3-62:4. In

2003, Dr. Steinberg co-wrote an article, the central point of which was

that adolescents were more impetuous, were more susceptible to peer

pressure, and had less fully formed personalities than adults. Id. at

22:2-11; see also Laurence Steinberg & Elizabeth Scott, Less Guilty by

Reason of Adolescence: Developmental Immaturity, Diminished

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

(2003). The article focused on people younger than 18. However, given

the developments in scientific knowledge about late adolescence, Dr.

Steinberg testified that, if he were to rewrite the article, he would say

“the same things are true about people who are younger than 21.” See

Steinberg Tr. at 22:12-24; see also id. at 13:18-14:25.

The court finds the scientific evidence just discussed to be

persuasive and well-founded and concludes that, because 18-year-olds are

still developing in terms of maturity, impulse control, ability to resist

peer pressure, and character, they are less than fully blameworthy for

criminal conduct.

Against this backdrop, the length of Cruz’s sentence is striking. In

custody since he was 18 years old, Cruz, now 45, has spent roughly 60

percent of his entire life in prison. Should he reach age 72, he will have

spent 75 percent of his life behind bars, having served 54 years in prison.

The court views this as an unusually long sentence in light of Cruz’s

lessened blameworthiness due to his age at the time of his crimes. That

this is an unusually long sentence is further supported by the fact that

the national average length of a federal sentence for murder over the past

decade is approximately 22 years, far less than half of what Cruz will

serve should he live to age 72. See U.S. SENTENCING COMMISSION,

FEDERAL SENTENCING STATISTICS: SECOND CIRCUIT tbl. 7

(2011-2020)

(annual

reports),

available

https://www.ussc.gov/topic/data-reports. The effect is that Cruz, who was

less than fully blameworthy for his crimes given his age when he

committed them, will end up serving significantly more time than adults

who, fully blameworthy for their conduct, have committed the same

crimes. “This reality cannot be ignored.” Graham v. Florida, 560 U.S.

48, 70-71 (2010) (“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.”).

The court concludes that the tremendous length of Cruz’s life

sentence supports a reduction.

Cruz, 2021 WL 1326851 at *5-7 (emphasis added) (some citations omitted). As in Cruz,

the Petitioner has also obtained an affidavit from Dr. Laurence Steinberg, a professor

of psychology who specializes in adolescent psychological development – and Dr.

Steinberg’s affidavit was attached to the state court rule 3.800(a) motion. (A-7).6 The

scientific evidence set forth in Dr. Steinberg’s affidavit establishes that because

nineteen-year-olds are still developing in terms of maturity, impulse control, ability to

resist peer pressure, and character, they are less than fully blameworthy for criminal

conduct. Thus, a sentence of mandatory life imprisonment is unconstitutional in light

of the Petitioner’s lessened blameworthiness due to his age at the time of his crimes.

See also (A-29) (letter from Dr. James Garbarino).

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

and Miller 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.

(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 mandatory life

imprisonment without the possibility of parole on a teenager 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