IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT OF FLORIDA ... · IN THE DISTRICT COURT OF APPEAL...
Transcript of IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT OF FLORIDA ... · IN THE DISTRICT COURT OF APPEAL...
IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF FLORIDA
COURTNEY C. SCHULHOFF,
Appellant,
v. CASE NO. 5D10-4417
STATE OF FLORIDA,
Appellee.
_____________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE EIGHTEENTH JUDICIAL CIRCUIT,
IN AND FOR SEMINOLE COUNTY, FLORIDA
BRIEF OF AMICUS CURIAE
THE UNIVERSITY OF FLORIDA FREDRIC G. LEVIN COLLEGE OF
LAW CENTER ON CHILDREN AND FAMILIES,
IN SUPPORT OF APPELLANT COURTNEY C. SCHULHOFF
Joseph S. Jackson, Esq.
Florida Bar No. 401617
University of Florida
Fredric G. Levin College of Law
Center on Children and Families
P.O. Box 117625
Gainesville, Florida 32611-7625
Telephone: (352) 273-0882
Facsimile: (352) 392-2606
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................. iii
IDENTITY AND INTEREST OF AMICUS CURIAE ............................................ 1
SUMMARY OF ARGUMENT ............................................................................... 1
ARGUMENT ........................................................................................................... 3
I. AGE MUST BE TAKEN INTO ACCOUNT FOR DETERMINATION OF
CULPABILITY AND SENTENCING FOR JUVENILES IN THE
CRIMINAL JUSTICE SYSTEM .................................................................. 3
A. Juveniles have historically been recognized as members of a class
defined by age and attended by distinct characteristics, many of which
impact on their treatment by the criminal justice system.................... 4
B. Research in Social Science and in Neuroscience provides an
increasingly sophisticated understanding of the developmental process
in childhood, supporting the proposition that in the case of juveniles,
age must be taken into account in the criminal justice system ........... 4
C. Characteristics of juveniles identified by social scientists and
neuroscientists affect decision-making in the criminal justice system,
notably in sentencing, where they can compromise the standard
penological justifications, and therefore age must be taken into
account in trying and sentencing juveniles ......................................... 8
D. A juvenile’s age must also be taken into account to protect a
juvenile’s due process rights, which can be affected in a number of
ways, in particular in the greater likelihood of false confessions ....... 14
E. The fact that all of the 50 States and the District of Columbia with the
sole exception of Florida take age into consideration at some stage of
the criminal justice system supports taking age into account for
juveniles in the criminal justice system .............................................. 16
ii
F. Increasing legislative restrictions on the rights and responsibilities of
juveniles recognize the characteristics that make juveniles a class
worthy of separate treatment in many situations and therefore support
the proposition that age must be taken into account in criminal justice
settings, where the stakes are higher but the characteristics that
distinguish juveniles from adults are the same ................................... 16
G. Life without parole has a greater impact on juveniles than it does on
adults and therefore the age of a juvenile should be taken into account
in decisions on sentencing ................................................................... 18
CONCLUSION ........................................................................................................ 19
CERTIFICATE OF SERVICE ................................................................................ 20
CERTIFICATE OF COMPLIANCE ....................................................................... 21
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TABLE OF AUTHORITIES
U.S. SUPREME COURT CASES
Gallegos v. Colorado, 370 U.S. 49 (1962) .................................................... 14, 15
Graham v. Florida, 130 S. Ct. 2011 (2010) ................................ 5, 8, 9, 13, 14, 18
Haley v. Ohio, 332 U.S. 596 (1948) ....................................................................15
In re Gault, 387 U.S. 1 (1967) .............................................................................15
J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011)....................................... 4, 8, 17
Roper v. Simmons, 543 U.S. 551 (2005) ........................................ 6, 8, 10, 17, 18
Thompson v. Oklahoma, 487 U.S. 815 (1988) ............................................. 10, 17
OTHER FEDERAL CASES
United States v. Mathurin, No. 09-21075-Cr, 2011 WL 2580775
(S.D. Fla. June 29, 2011) .....................................................................................13
FLORIDA SUPREME COURT CASES
Crist v. Ervin, 56 So. 3d 745 (Fla. 2010) ............................................................... 3
BOOKS
Barry C. Feld, Bad Kids: Race and the Transformation of the
Juvenile Court (1999)...........................................................................................13
John H. Flavell et al., Cognitive Development (3d ed. 1993) ............................... 5
Elkhonon Goldberg, The Executive Brain: Frontal Lobes and
the Civilized Mind (2001) ...................................................................................... 7
Barbel Inhelder & Jean Piaget, The Growth of Logical Thinking from
Childhood to Adolescence (1958) ......................................................................... 5
iv
Wayne LaFave, Criminal Law (5th ed. 2010) ....................................................... 4
Richard A. Mendel, Less Hype, More Help: Reducing Juvenile Crime,
What Works -- and What Doesn’t (2000) ............................................................12
Jean Piaget, Genetic Epistemology (1970) ............................................................ 5
Elizabeth S. Scott & Laurence Steinberg, Rethinking
Juvenile Justice (2008) .............................................................................. 7, 11, 12
Robert S. Siegler, Children's Thinking (2d ed. 1991)............................................ 5
Youth on Trial: A Developmental Perspective on Juvenile Justice
(Thomas Grisso & Robert G. Schwartz eds., 2000) .............................................. 6
JOURNALS AND PERIODICALS
Jeffrey Arnett, Reckless Behavior in Adolescence: A Developmental
Perspective, 12 Developmental Rev. 339 (1992) .................................................. 5
Mary Beckman, Crime, Culpability, and the Adolescent Brain,
305 Science 596 (2004)......................................................................................7, 9
Thomas J. Berndt, Developmental Changes in Conformity to Peers
and Parents, 15 Developmental Psychol. 608 (1979) ............................................ 5
Donna M. Bishop, Juvenile Offenders in the Adult Criminal Justice
System, 27 Crime & Just. 81 (2000) ....................................................................11
David O. Brink, Immaturity, Normative Competence, and Juvenile Transfer:
How (Not) To Punish Minors for Major Crimes,
82 Tex. L. Rev. 1555 (2004) ........................................................... 6, 9, 10, 12, 13
Ronald E. Dahl, Adolescent Brain Development: A Period of Vulnerabilities
and Opportunities, 1021 Annals N.Y. Acad. Sci.1 (2004) ....................................5
v
Nitin Gogtay et al., Dynamic Mapping of Human Cortical Development
During Childhood Through Early Adulthood,
101 Proc. Nat’l Acad. Sci. 8174 (2004) ................................................................. 7
Eric L. Jensen & Linda K. Metsger, A Test of the Deterrent Effect of
Legislative Waiver on Violent Juvenile Crime,
40 Crime & Delinq. 96 (1994) .............................................................................11
Richard E. Redding & Elizabeth J. Fuller, What Do Juveniles Offenders
Know About Being Tried as Adults? Implications for Deterrence,
55 Juv. & Fam. Ct. J. 35 (2004) ...........................................................................11
Allison D. Redlich & Gail S. Goodman, Taking Responsibility for an
Act Not Committed: The Influence of Age and Suggestibility,
27 Law & Hum. Behav. 141 (2003) ................................................................... 15
Gerald Robin, Juvenile Interrogation and Confessions,
10 J. Police Sci. & Admin. 224 (1982) ................................................................15
Elizabeth S. Scott et al., Evaluating Adolescent Decision Making
in Legal Contexts, 19 Law & Hum. Behav. 221 (1995) ....................................6, 9
Elizabeth S. Scott & Laurence Steinberg, Blaming Youth,
81 Tex. L. Rev. 799 (2003) ....................................................................... 9, 12, 13
Elizabeth R. Sowell et al., In Vivo Evidence for Post-adolescent Brain
Maturation in Frontal and Striatal Regions, 2 Nature Neurosci. 859 (1999) ........ 7
L.P. Spear, The Adolescent Brain and Age-Related Behavioral
Manifestations, 24 Neurosci. & Biobehavioral Rev. 417 (2000) .......................... 7
Mark C. Stafford & Mark Warr, A Reconceptualization of General
and Specific Deterrence, 30 J. Res. Crime & Delinq. 123 (1993) .......................11
Laurence Steinberg et al., Age Differences in Sensation Seeking and
Impulsivity as Indexed by Behavior and Self-Report: Evidence
for a Dual Systems Model, 44 Developmental Psychol. 1764 (2008) .................. 5
vi
Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment
in Adolescence: Psychosocial Factors in Adolescent Decisionmaking,
20 Law & Hum. Behav. 249 (1996) ...................................................................... 5
Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of
Adolescence: Developmental Immaturity, Diminished Responsibility,
and the Juvenile Death Penalty, 58 Am. Psychologist 1009 (2003) ................9, 12
MISCELLANEOUS
Am. Bar Ass’n, Juvenile Justice Ctr., Adolescence, Brain Development and Legal
Culpability, available at
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_
newsletter/crimjust_juvjus_Adolescence.authcheckdam.pdf ...............................7
Brief for Juvenile Law Center et al. as Amici Curiae Supporting Respondent,
Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), available at
http://www.law.ufl.edu/centers/childlaw/pdf/simmons.pdf ...........................6, 17
The Child’s Developing Brain, N.Y. Times, Sept. 15, 2008, available at
http://www.nytimes.com/interactive/2008/09/15/health/20080915-brain-
development.html?scp=3&sq=September%2015,%202008&st=cse ...............7, 8
David S. Lee & Justin McCrary, Crime, Punishment, and Myopia,
(Nat’l Bureau of Econ. Research, Working Paper No. 11491, 2005) .................11
Model Penal Code § 4.10 (1962) .........................................................................16
Nat’l Inst. of Mental Health, Teenage Brain: A Work in Progress (Fact Sheet),
available at http://www.nimh.nih.gov/health/publications/teenage-brain-a-work-in-
progress-fact-sheet/index.shtml ............................................................................ 8
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IDENTITY AND INTEREST OF AMICUS CURIAE
Amicus is a center based at the University of Florida Fredric G. Levin
College of Law, with a mission to promote the highest quality teaching, research
and advocacy for children and their families. Amicus is staffed with advocates and
researchers who bring a unique perspective and a wealth of experience in
providing for the care, treatment, and rehabilitation of youth in the child welfare
and juvenile justice systems. Amicus knows from firsthand experience that youth
who enter these systems need extra protection and special care, clearly necessitated
by their status as youth. Amicus also knows from experience that adolescent
immaturity often manifests itself in numerous ways that implicate culpability,
including diminished ability to assess risks, make good decisions, and control
impulses. It is precisely for these reasons that Amicus believes that the status of
childhood and adolescence separates youth from adults in categorical and distinct
ways and that, while youth should be held accountable, youth cannot be held to the
same standards of blameworthiness and culpability as their adult counterparts.
SUMMARY OF ARGUMENT
Appellant challenges the constitutionality under the Eighth and Fourteenth
Amendment of Florida’s statutory requirement that any juvenile accused of a
capital crime be indicted and subject to the exclusive jurisdiction of the criminal
adult circuit court, and if found guilty, sentenced to a non-discretionary life in
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prison without possibility of parole, without any consideration of the juvenile’s
age. Amicus urges this Court to find this statutory requirement unconstitutional.
Amicus considers that age must be taken into account in determining the
culpability and sentencing of juveniles in the criminal justice system. Juveniles
have historically been recognized as members of a class defined by age and
attended by distinct characteristics, many of which impact on their treatment by the
criminal justice system. The Supreme Court has considered the special
characteristics of youth in its constitutional holdings, most recently in Roper v.
Simmons, holding that the Eighth and Fourteenth Amendments forbid imposition
of the death penalty on offenders who were under the age of 18 when their crimes
were committed, and Graham v. Florida, holding that the Constitution prohibits
the imposition of a life without parole sentence on a juvenile offender who did not
commit homicide. Even more recently, in J.D.B. v. North Carolina, the Court has
held that age must be considered in the Miranda custody analysis.
In holdings where the Court has considered age in reaching constitutional
conclusions relating to juveniles in the criminal justice system, it has relied inter
alia on research in social science and neuroscience that provides an increasingly
sophisticated understanding of the developmental process in childhood. This
research reveals characteristics of youth that seriously compromise the standard
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penological justifications for punishment: retribution, deterrence, incapacitation
and rehabilitation.
Reflecting a general consensus that the age of a juvenile may compromise
the justifications for punishment, as well as long-standing common law defenses
based on the age of a juvenile, all of the 50 States and the District of Columbia
with the sole exception of Florida take age into consideration at some stage of the
criminal justice system. Moreover, legislative restrictions throughout the States on
the rights and responsibilities of juveniles underscore the importance attached to
considering age in regulating the behavior of juveniles and support the proposition
that age must be taken into account in criminal justice settings, where the stakes
are higher but the characteristics that distinguish juveniles from adults are the
same.
In light of the foregoing, Amicus concludes that age must be taken into
account in determining the culpability and sentencing of juveniles in the criminal
justice system, and Amicus urges this Court to find that Florida’s statutory scheme,
in which age is not taken into account in any stage of the criminal justice system, is
unconstitutional.
ARGUMENT
I. AGE MUST BE TAKEN INTO ACCOUNT FOR DETERMINATION
OF CULPABILITY AND SENTENCING FOR JUVENILES IN THE
CRIMINAL JUSTICE SYSTEM
4
Standard of Review: ―The constitutionality of a statute is a question of law subject
to de novo review.‖ Crist v. Ervin, 56 So. 3d 745, 747 (Fla. 2010).
A. Juveniles have historically been recognized as members of a class
defined by age and attended by distinct characteristics, many of which
impact on their treatment by the criminal justice system.
As early as the 10th century, statutory law provided that no one under the age
of fifteen could be subjected to capital punishment unless he attempted to escape or
refused to give himself up. See Wayne LaFave, Criminal Law 512 (5th ed. 2010).
By the 17th century, it was firmly established that the presumption of incapacity
operated until a child was fourteen years old. Id. Modern criminal justice systems
continue to take age into account in determining the culpability of juveniles. As
elaborated below in section I(E), of the fifty states and the District of Columbia,
Florida is the only one where age is not required to be taken into account in any
stage of a criminal case involving a juvenile.
The Supreme Court has frequently noted the long-standing recognition of
the distinguishing characteristics of children in the legal system, most recently in
J.D.B v. North Carolina. ―The law has historically reflected the same assumption
that children characteristically lack the capacity to exercise mature judgment and
possess only an incomplete ability to understand the world around them.‖ J.D.B. v.
North Carolina, 131 S. Ct. 2394, 2403 (2011) (holding that age must be considered
in the Miranda custody analysis).
5
B. Research in Social Science and in Neuroscience provides an increasingly
sophisticated understanding of the developmental process in childhood,
supporting the proposition that in the case of juveniles, age must be
taken into account in the criminal justice system.
The characteristics of childhood are developmental and therefore exist on a
continuum stretching from early childhood to late adolescence. Following the
seminal work of Jean Piaget, who explored cognitive development in children in
the mid-twentieth century, Barbel Inhelder & Jean Piaget, The Growth of Logical
Thinking from Childhood to Adolescence (1958), Jean Piaget, Genetic
Epistemology (1970), et al., there has been an explosion of research in
developmental psychology. See, e.g., John H. Flavell et al., Cognitive
Development (3d ed. 1993); Robert S. Siegler, Children's Thinking 55 (2d ed.
1991) and other authorities cited below.
A large body of this research has concerned the period of adolescence. See,
e.g., Jeffrey Arnett, Reckless Behavior in Adolescence: A Developmental
Perspective, 12 Developmental Rev. 339 (1992); Thomas J. Berndt,
Developmental Changes in Conformity to Peers and Parents, 15 Developmental
Psychol. 608 (1979); Ronald E. Dahl, Adolescent Brain Development: A Period of
Vulnerabilities and Opportunities, 1021 Annals N.Y. Acad. Sci.1 (2004); Laurence
Steinberg et al., Age Differences in Sensation Seeking and Impulsivity as Indexed
by Behavior and Self-Report: Evidence for a Dual Systems Model, 44
Developmental Psychol. 1764 (2008); Laurence Steinberg & Elizabeth Cauffman,
6
Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent
Decisionmaking, 20 Law & Hum. Behav. 249 (1996). See also Graham v. Florida,
130 S. Ct. 2011 (2010); Roper v. Simmons, 543 U.S. 551 (2005); App. C to Br. for
Juvenile Law Center et al. as Amici Curiae Supporting Resp’t, Roper v. Simmons,
543 U.S. 551 (2005) (No. 03-633) (Health Professionals’ Call to Abolish the
Execution of Juvenile Offenders in the United States), available at
http://www.law.ufl.edu/centers/childlaw/pdf/simmons.pdf.
The period of adolescence has been identified as a period of significant
cognitive, physical and emotional development. David O. Brink, Immaturity,
Normative Competence, and Juvenile Transfer: How (Not) To Punish Minors for
Major Crimes, 82 Tex. L. Rev. 1555 (2004) (citing Elizabeth S. Scott et al.,
Evaluating Adolescent Decision Making in Legal Contexts, 19 Law & Hum.
Behav. 221, 229-35 (1995) and Youth on Trial: A Developmental Perspective on
Juvenile Justice (Thomas Grisso & Robert G. Schwartz eds., 2000)).
Social scientists have identified characteristics of adolescent juveniles,
including impulsiveness and lack of control over impulse, vulnerability to peer
pressure, difficulty in assessing long-term consequences, an impaired ability to
weigh costs and benefits, lack of mature judgment, risk-taking, sensation-seeking,
reckless behavior and distrust of adults.
7
Research in neuroscience supports these findings. Currently,
neuroscientists, using advanced neuro-imaging tools, can map the areas of the
brain that are developing over the years from childhood through adolescence and
into early adulthood. They have determined that in early adolescence the limbic
system, which governs emotional development, and the parietal lobes, which
produce intellectual and analytical abilities, are developing and expanding, but the
pre-frontal cortex, responsible for abstract thinking, reasoning skills and emotional
maturity, is lagging. The result is that emotional and intellectual development is
proceeding rapidly while the control that will be provided by the pre-frontal cortex
is still lacking. See The Child’s Developing Brain, N.Y. Times, Sept. 15, 2008,
available at http://www.nytimes.com/interactive/2008/09/15/health/20080915-
brain-development.html?scp=3&sq=September%2015,%202008&st=cse; see also
Elkhonon Goldberg, The Executive Brain: Frontal Lobes and the Civilized Mind
(2001). Other research into structural and chemical developments in the
adolescent brain confirms that the adolescent brain and the adult brain operate in
distinctly different ways. Mary Beckman, Crime, Culpability, and the Adolescent
Brain, 305 Science 596 (2004); L.P. Spear, The Adolescent Brain and Age-Related
Behavioral Manifestations, 24 Neurosci. & Biobehavioral Rev. 417 (2000). See
also Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile Justice 46-68
(2008); Nitin Gogtay et al., Dynamic Mapping of Human Cortical Development
8
During Childhood Through Early Adulthood, 101 Proc. Nat’l Acad. Sci. 8174
(2004); Elizabeth R. Sowell et al., In Vivo Evidence for Post-adolescent Brain
Maturation in Frontal and Striatal Regions, 2 Nature Neurosci. 859 (1999); Am.
Bar Ass’n, Juvenile Justice Ctr., Adolescence, Brain Development and Legal
Culpability, available at
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_
newsletter/crimjust_juvjus_Adolescence.authcheckdam.pdf; The Child’s
Developing Brain, N.Y. Times, supra; Nat’l Inst. of Mental Health, Teenage Brain:
A Work in Progress (Fact Sheet), available at
http://www.nimh.nih.gov/health/publications/teenage-brain-a-work-in-progress-
fact-sheet/index.shtml.
Supreme Court jurisprudence has acknowledged the differences between
juveniles and adults elaborated by this research. ―[D]evelopments in psychology
and brain science continue to show fundamental differences between juvenile and
adult minds.‖ Graham v. Florida, 130 S. Ct. 2011, 2026 (2010), also cited in J.D.B.
v. North Carolina, 131 S. Ct. 2394, 2403 n.5 (2011). See also Roper v. Simmons,
543 U.S. 551, 569-570 (2005).
C. Characteristics of juveniles identified by social scientists and
neuroscientists affect decision-making in the criminal justice system,
notably in sentencing, where they can compromise the standard
penological justifications, and therefore age must be taken into account
in trying and sentencing juveniles.
9
Characteristics identified by social scientists and neuroscientists have
significant impact on interactions of juveniles with the criminal justice system in
large part because of their affect of the standard justifications for punishment. See,
e.g., Beckman, supra, at 596-599; David O. Brink, Immaturity, Normative
Competence, and Juvenile Transfer: How (Not) To Punish Minors for Major
Crimes, 82 Tex. L. Rev. 1555 (2004); Elizabeth S. Scott et al., Evaluating
Adolescent Decision Making in Legal Contexts, 19 Law & Hum. Behav. 221, 229-
35 (1995); Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 Tex. L.
Rev. 799 (2003); Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason
of Adolescence: Developmental Immaturity, Diminished Responsibility, and the
Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003).
The classic penological justifications are retribution, deterrence,
incapacitation and rehabilitation. Graham v. Florida, 130 S. Ct. 2011, 2028 (2010).
Each of these is compromised by the developmental challenges faced by juveniles.
Retribution: Retribution is compromised because juveniles are less
responsible for their offenses than adults. ―Responsibility requires that agents
possess normative competence and capacities for normative control – they must be
able to recognize reasons for and against action and be able to regulate their
actions in accordance with this normative knowledge.‖ Brink, supra, at 1570.
10
Diminished responsibility translates into diminished culpability in
sentencing. The Supreme Court has frequently affirmed the lessened culpability of
the juvenile:
The Court has already endorsed the proposition that less culpability
should attach to a crime committed by a juvenile than to a comparable
crime committed by an adult. The basis for this conclusion is too
obvious to require extended explanation. Inexperience, less education,
and less intelligence make the teenager less able to evaluate the
consequences of his or her conduct while at the same time he or she is
much more apt to be motivated by mere emotion or peer pressure than
is an adult.
Thompson v. Oklahoma, 487 U.S. 815, 845 (1988) (footnotes omitted). ―Whether
viewed as an attempt to express the community's moral outrage or as an attempt to
right the balance for the wrong to the victim, the case for retribution is not as
strong with a minor as with an adult.‖ Roper v. Simmons, 543 U.S. 551, 571
(2005).
The reality that juveniles still struggle to define their identity means it
is less supportable to conclude that even a heinous crime committed
by a juvenile is evidence of irretrievably depraved character. From a
moral standpoint it would be misguided to equate the failings of a
minor with those of an adult, for a greater possibility exists that a
minor's character deficiencies will be reformed.
Id. at 570.
The appropriateness of a sentence justified by retribution is measured by the
standard of proportionality, which requires determining whether the ―magnitude of
the punishment [is] commensurate with the magnitude of the wrong done.‖ Brink,
supra, at 1567. In order for sentences imposed on adolescents to be fair, i.e.
11
proportional to the wrong done, there must be a means of assessing the relative
culpability of the adolescent. This requires factoring in the age of the adolescent.
A sentencing system that ignores age is not an equitable way of establishing the
proportional sentence that will serve for purposes of retribution.
Deterrence: Deterrence is compromised by the adolescent’s difficulty in
weighing costs and benefits, by impaired risk perception and greater risk
preference, by the influence of peers and by the adolescent’s lack of control over
impulses. Where an adolescent is attracted to risk and susceptible to peer pressure,
unable to foresee the longer term consequences of his or her actions and lacking
control over his or her impulsive behavior, a sentence loses its value as a means of
deterrence. See Mark C. Stafford & Mark Warr, A Reconceptualization of General
and Specific Deterrence, 30 J. Res. Crime & Delinq. 123 (1993); David S. Lee &
Justin McCrary, Crime, Punishment, and Myopia, (Nat’l Bureau of Econ.
Research, Working Paper No. 11491, 2005). See also Eric L. Jensen & Linda K.
Metsger, A Test of the Deterrent Effect of Legislative Waiver on Violent Juvenile
Crime, 40 Crime & Delinq. 96 (1994), cited in Donna M. Bishop, Juvenile
Offenders in the Adult Criminal Justice System, 27 Crime & Just. 81 (2000);
Richard E. Redding & Elizabeth J. Fuller, What Do Juveniles Offenders Know
About Being Tried as Adults? Implications for Deterrence, 55 Juv. & Fam. Ct. J.
12
35 (2004), cited in Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile
Justice 199 (2008).
Incapacitation: Adolescence is a passing phase of life, and the typical
adolescent offender does not become an adult offender. ―For most teens, [risky or
antisocial] behaviors are fleeting; they cease with maturity as individual identity
becomes settled. Only a relatively small proportion of adolescents who experiment
in risky or illegal activities develop entrenched patterns of problem behavior that
persist into adulthood.‖ Laurence Steinberg & Elizabeth S. Scott, Less Guilty by
Reason of Adolescence: Developmental Immaturity, Diminished Responsibility,
and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003). See also
Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile Justice 32 (2008).
[T]here is growing evidence that for many juveniles adolescence
involves a period of increased risk-taking and antisocial impulses that
is normally outgrown. The historically robust fact that juvenile crime
constitutes a disproportionate amount of all crime committed means
that a significant portion of juvenile crime is adolescent-specific.
Most deviant adolescents do not become deviant adults.
Brink, supra, at 1574. See also Richard A. Mendel, Less Hype, More Help:
Reducing Juvenile Crime, What Works -- and What Doesn’t 15 (2000); Elizabeth
S. Scott & Laurence Steinberg, Blaming Youth, 81 Tex. L. Rev. 799, 832 (2003)
(―[A]dolescent crime is a costly manifestation of the influences and processes that
are characteristic of a discrete stage in human development‖).
13
If a juvenile is not likely to repeat the offense as an adult, a long period of
incarceration is not justified on the basis of incapacitation.
In addition, the sentence of life without parole in particular assumes that a
juvenile offender is incorrigible, notwithstanding the transitory nature of
adolescent behavior. ―To justify life without parole on the assumption that the
juvenile offender forever will be a danger to society requires the sentencer to make
a judgment that the juvenile is incorrigible. The characteristics of juveniles make
that judgment questionable.‖ Graham v. Florida, 130 S. Ct. 2011, 2029 (2010).
Rehabilitation: Adolescents, who are in a period of intense cognitive and
emotional development and have an identity that is in the process of formation,
Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 Tex. L. Rev. 799,
819 (2003), are inherently more capable of change than adults. ―For obvious
reasons, juveniles are more corrigible and educable than adults . . . . Probation and
community service tend to be more effective alternatives with juveniles than with
adults.‖ Brink, supra, at 1558 (citing Barry C. Feld, Bad Kids: Race and the
Transformation of the Juvenile Court 13 (1999)). The amenability of juveniles to
rehabilitation argues for lighter sentencing, and the imposition of lengthy prison
sentences on juveniles robs them of the opportunity and incentive to reform. ―Life
in prison without the possibility of parole gives no chance for fulfillment outside
prison walls, no chance for reconciliation with society, no hope.‖ Graham v.
14
Florida, 130 S. Ct. 2011, 2032 (2010), also cited in United States v. Mathurin, No.
09-21075-Cr, 2011 WL 2580775, at *2 (S.D. Fla. June 29, 2011) (holding federal
statutory provision 18 U.S.C. § 924(c)(1)(D)(ii) (abolishing the federal parole
system) unconstitutional as applied to a juvenile offender convicted of non-
homicide offenses).
Maturity can lead to that considered reflection which is the foundation
for remorse, renewal, and rehabilitation. A young person who knows
that he or she has no chance to leave prison before life’s end has little
incentive to become a responsible individual. In some prisons,
moreover, the system itself becomes complicit in the lack of
development. . . . [I]t is the policy in some prisons to withhold
counseling, education, and rehabilitation programs for those who are
ineligible for parole consideration.
Graham v. Florida, 130 S. Ct. 2011, 2032-2033 (2010).
Even a lengthy term of imprisonment, if there is a possibility of parole,
represents an acknowledgment of the corrigibility of youth and provides a juvenile
with an opportunity to mature in ways that may permit him or her to rejoin the
mainstream community.
If the characteristics of youth compromise the justifications for punishment,
age must be taken into account in trying and sentencing juveniles.
D. A juvenile’s age must also be taken into account to protect a juvenile’s
due process rights, which can be affected in a number of ways, in
particular in the greater likelihood of false confessions.
15
A juvenile’s distrust of adults and other incapacities can complicate the
ability of counsel to represent him or her adequately and require that special care
be taken to protect his or her due process rights. The Supreme Court has taken into
account age and development in defining the constitutional rights of juveniles.
See, e.g., Gallegos v. Colorado, 370 U.S. 49, 54 (1962). The Supreme Court has
stated that an adolescent ―cannot be compared with an adult in full possession of
his senses and knowledgeable of the consequences of his admissions…. Without
some adult protection against this inequality, a 14-year-old boy would not be able
to know, let alone assert, such constitutional rights as he had.‖ Id. See also Haley
v. Ohio, 332 U.S. 596 (1948) (finding that because minors are generally less
mature and more vulnerable to coercive interrogation tactics than adults, they
deserve heightened protections under the Constitution).
Age 15 is a tender and difficult age for a boy of any race. He cannot
be judged by the more exacting standards of maturity. That which
would leave a man cold and unimpressed can overawe and overwhelm
a lad in his early teens. This is the period of great instability which the
crisis of adolescence produces.
Id. at 599.
More particularly, the Court has been alert to the possibility of false
confessions by juveniles. See, e.g., In re Gault, 387 U.S. 1, 48 (1967) (observing
that confessions may be particularly problematic when taken from ―children from
an early age through adolescence‖). See id. at 55 (observing that without
16
procedural protections, a confession may be ―the product of ignorance of rights or
of adolescent fantasy, fright or despair‖). Studies have found that juveniles are
more likely than adults to make false confessions. See Allison D. Redlich & Gail
S. Goodman, Taking Responsibility for an Act Not Committed: The Influence of
Age and Suggestibility, 27 Law & Hum. Behav. 141, 142 (2003); Gerald Robin,
Juvenile Interrogation and Confessions, 10 J. Police Sci. & Admin. 224, 225
(1982). Such research, the vulnerability it highlights and the attentiveness of the
Court to this problem provide further support for the necessity of considering age
in adjudicating the rights of juveniles in the criminal justice system.
E. The fact that all of the 50 States and the District of Columbia with the
sole exception of Florida take age into consideration at some stage of the
criminal justice system supports taking age into account for juveniles in
the criminal justice system.
A survey of the statutory laws of the 50 States and the District of Columbia
reveals that only Florida fails to take age into consideration at any stage of the
criminal justice system. (See App. to Appellant’s Br.) See also Model Penal Code
§ 4.10 (1962).
In Florida, any juvenile charged with a capital crime is subject to the
exclusive jurisdiction of the criminal adult circuit court without any consideration
of the juvenile’s age. Florida’s unique treatment of juveniles in the criminal justice
system flies in the face of history, science and the analysis of penological
justifications.
17
F. Increasing legislative restrictions on the rights and responsibilities of
juveniles recognize the characteristics that make juveniles a class
worthy of separate treatment in many situations and therefore support
the proposition that age must be taken into account in criminal justice
settings, where the stakes are higher but the characteristics that
distinguish juveniles from adults are the same.
Legislatures have long restricted the activities of juveniles in recognition of
their lack of maturity. This has been recognized by the Supreme Court in recent
cases. ―In recognition of the comparative immaturity and irresponsibility of
juveniles, almost every State prohibits those under 18 years of age from voting,
serving on juries, or marrying without parental consent.‖ Roper v. Simmons, 543
U.S. 551, 569 (2005); Id. at App. B-D. ―Like this Court's own generalizations, the
legal disqualifications placed on children as a class— e.g., limitations on their
ability to alienate property, enter a binding contract enforceable against them, and
marry without parental consent—exhibit the settled understanding that the
differentiating characteristics of youth are universal.‖ J.D.B. v. North Carolina,
131 S. Ct. 2394, 2403-2404 (2011). See also Thompson v. Oklahoma, 487 U.S.
815, 823-825 (1988). The range of areas in which juveniles are subject to
restrictions has expanded in recent years to include new areas of concern for
protection of juveniles and the public. See Br. for Juvenile Law Center et al. as
Amici Curiae Supporting Resp’t, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-
633), at 5-12 & App. B. The implications of these restrictions for juvenile justice
purposes are obvious: ―The reasons why juveniles are not trusted with the
18
privileges ad responsibilities of an adult also explain why their irresponsible
conduct is not as morally reprehensible as that of an adult.‖ Thompson v.
Oklahoma, 487 U.S. 815, 835 (1988). If the universal characteristics of youth are
relied on in restricting the rights and responsibilities of juveniles in expanding
areas of concern, those characteristics should also be considered when determining
how a juvenile convicted of a crime will spend the rest of his or her life.
G. Life without parole has a greater impact on juveniles than it does on
adults and therefore the age of a juvenile should be taken into account
in decisions on sentencing.
A sentence of life imprisonment without parole is a harsher sentence for a
juvenile than it is from an adult. Obviously, given such a sentence, the proportion
of life spent in prison to a juvenile’s entire life is greater than it would be for an
adult. Life in prison without parole is substantially harsher for a juvenile than it is
for the vast majority of adults. In addition, such a sentence takes away from a
juvenile a greater opportunity to be rehabilitated. A juvenile, unlike an adult, is in
the process of developing an identity, and a life without parole sentence deprives
him or her of the opportunity to establish his or her identity and ―attain a mature
understanding of his own humanity.‖ Roper v. Simmons, 543 U.S. 551, 574
(2005) (speaking in the context of the death penalty). Even if parole is only
possible after decades in prison, there is an opportunity to live part of one’s life as
19
an adult and an incentive for reform that is otherwise removed. Such a sentence
provides ―some meaningful opportunity for release based on demonstrated
maturity and rehabilitation.‖ Graham v. Florida, 130 S. Ct. 2011, 2030 (2010).
CONCLUSION
For the foregoing reasons, Amicus Curiae, Center on Children and Families,
respectfully requests that this Court hold that Florida’s statutory requirement that
any juvenile accused of a capital crime be indicted and subject to the exclusive
jurisdiction of the criminal adult circuit court, and if found guilty, sentenced to a
non-discretionary life in prison without possibility of parole, without any
consideration of the juvenile’s age, is unconstitutional.
Respectfully submitted,
____________________________
Joseph S. Jackson, Esq.
Florida Bar No. 401617
University of Florida
Fredric G. Levin College of Law
Center on Children and Families
P.O. Box 117625
Gainesville, Florida 32611-7625
Telephone: (352) 273-0882
Facsimile: (352) 392-2606
Counsel for Amicus Curiae
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CERTIFICATE OF SERVICE
I CERTIFY that a copy hereof has been furnished, by mail, on this ____ day
of September, 2011, to:
L. Charlene Matthews
Assistant Attorney General
Office of the Attorney General
444 Seabreeze Blvd, Suite 500
Daytona Beach, FL 32118
Counsel for State of Florida
Paolo G. Annino, Esq.
FSU College of Law Public Interest Law Center
425 West Jefferson Street
Tallahassee, FL 32306
Counsel for Courtney C. Schulhoff
____________________________
Joseph S. Jackson, Esq.
Florida Bar No. 401617
University of Florida
Fredric G. Levin College of Law
Center on Children and Families
P.O. Box 117625
Gainesville, Florida 32611-7625
Telephone: (352) 273-0882
Facsimile: (352) 392-2606
Counsel for Amicus Curiae
21
CERTIFICATE OF COMPLIANCE
I CERTIFY that this brief is submitted in Times New Roman 14-point font
and complies with the font requirements of Rule 9.210(a)(2), Florida Rules of
Appellate Procedure.
____________________________
Joseph S. Jackson, Esq.