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

iii

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

1

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

2

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

3

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.