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Felony murder, juveniles, and culpability: why the Eighth Amendment's ban on cruel and unusual punishment should preclude sentencing juveniles who do not kill, intend to kill, or attempt to kill to die in prison.

  I. Introduction
 II. How the Supreme Court has Interpreted the Eighth
     Amendment's Ban on Cruel and Unusual Punishment
        a. Generally
        b. Felony Murder and the Eighth Amendment's Ban
           on Cruel and Unusual Punishment
              i. History
             ii. Supreme Court's Treatment of Felony
                 Murder
        c. Juveniles and the Eighth Amendment's Ban on
           Cruel and Unusual Punishment
              i. History
             ii. Roper, Graham, Miller
            iii. Miller's concurrence
III. Sentencing Juveniles to Die in Prison under the Felony
     Murder Doctrine Violates the Eighth Amendment's Ban on
     Cruel and Unusual Punishment
        a. Objective Evidence--Domestic Law
        b. Persuasive Evidence--Foreign Law
        c. No Penological Justifications
              i. Deterrence
             ii. Retribution
        d. Enmund, Graham, and Miller Support
           Eliminating Felony Murder in Sentencing
           Juveniles to Mandatory Life Sentences
        e. A Juvenile's Mental State Must Be Determined
           before Their Sentencing
        f. Application of Felony Murder to Juveniles Violates
           Supreme Court Precedent
 IV. Conclusion


I. INTRODUCTION

David (fifteen years old) and Larry (thirty years old) meet at Larry's house, and Larry convinces David, his younger coconspirator, to rob a gas station. Larry insists that no one will be hurt. At the gas station, David waits in the car. Inside, Larry panics, shoots the store clerk, runs out of the store, jumps in the car with David, and they leave. The two are arrested a few blocks away and the authorities charge them both with first-degree murder. The police place David, at fifteen years old, in the adult jail. First, David confesses and tells the police that Larry concocted the plan. Larry, however, has been charged before and knows to stay quiet. Subsequently, due to a lack of evidence, the charges against Larry are dropped. David is convicted, and as a young teenager he will be sent to the state's maximum-security facility, Louisiana State Penitentiary. Should society allow criminal court judges to sentence David to life without parole in light of the United States Supreme Court's recent jurisprudence that juveniles are less culpable than adults?

This comment will argue that application of the felony murder doctrine in order to sentence juveniles to life without parole is a violation of the Supreme Court's jurisprudence on juveniles. The Supreme Court recognizes that juveniles are unique. The Court has interpreted the Eighth Amendment's ban on cruel and unusual punishment to require: (1) the elimination of the death penalty for juveniles charged as adults; (2) (2) that juveniles convicted of non-homicide crimes be offered a meaningful chance at release; (3) and (3) that juveniles convicted of homicide crimes have their age and other factors considered before being sentenced to life without parole. (4) With these requirements, the Court has acknowledged that children's brains are different than adults, that the penological (5) goals of the adult system are less applicable to juveniles, and that juveniles have unique vulnerabilities in the criminal justice system. The Eighth Amendment's ban on cruel and unusual punishment has been interpreted for many years to require proportionality (6) and this comment suggests that the application of felony murder to juveniles in order to sentence them to life without parole should be prohibited.

The first section of this comment will discuss the Supreme Court's overall treatment of the Eighth Amendment's ban on cruel and unusual punishment. This comment section outlines generally how the Court interprets the Eighth Amendment's prohibition on cruel and unusual punishment and then discusses the history and justifications of the felony murder doctrine. The first section concludes with an analysis of how the Supreme Court has interpreted the cruel and unusual punishment clause in relation to sentencing juveniles in a series of cases since 2005.

The second section of this comment argues that the cruel and unusual punishment clause of the Eighth Amendment should preclude sentencing juveniles to die in prison because of the felony murder doctrine. The second half of this comment tracks the reasoning used by the Supreme Court in its analysis of whether a punishment is cruel and unusual.

II. HOW THE SUPREME COURT HAS INTERPRETED THE EIGHTH AMENDMENT'S BAN ON CRUEL AND UNUSUAL PUNISHMENT

a. Generally

In order to understand the Supreme Court's application of the Eighth Amendment's ban on cruel and unusual punishment, specifically to felony murder and juveniles, it is imperative to understand the general analysis the court applies when interpreting this clause of the Constitution. (7) First, the Court looks to whether the practice violated "the evolving standards of decency that mark the progress of a maturing society" to determine if there is a national consensus against the sentencing practice. (8) To interpret this, the Court looks to objective standards, including legislative enactments and state practices. (9) The Court may or may not look to the laws of other countries and international opinion, which, while they acknowledge are not controlling, is instructive in their interpretation of the Eighth Amendment. (10) The Eighth Amendment applies with special force to the death penalty, and the Court has held the death penalty cannot be imposed for certain crimes or on certain offenders. (11) The category of death penalty crimes must be narrow and serious, and the offenders must be the most culpable.

Prior to 2005, the Court held the death penalty unconstitutional for juveniles under the age of 16, the insane, and the "mentally retarded." (12) (The Court previously used the term "mentally retarded" in Atkins v. Virginia, but this group is now more appropriately referred to as persons with intellectual disabilities. (13) This was the language used most recently by the Supreme Court in interpreting the Atkins decision (14) and is the term that will be used in the remainder of this comment.)

In examining a classification of persons, the Court will evaluate whether any of their characteristics make them more or less culpable. (15) The Court will take into account any unique challenges or vulnerabilities that the group may face in the criminal justice system. (16) Further, the Court examines the justifications for the punishment, and it recently noted that the Eighth Amendment requires a penological justification for a punishment to be proportional to the offense. (17) Ultimately, the Court uses its own, independent, judgment in its evaluation of whether the punishment is cruel and unusual. (18) In 1982, the Court examined whether the death penalty could be imposed for the specific crime of felony murder.

b. Felony Murder and the Eighth Amendment's Ban on Cruel and Unusual Punishment

i. History

Felony murder works simply: a felony plus a killing equals murder. (19) Unlike other crimes, the intent of the defendant is immaterial to whether a murder has been committed. The felony murder rule's origin in common law, and even its original reasoning, are far from clear. (20) Illinois was the first state to eliminate intent for certain dangerous felonies in 1827 (21) and nineteen other states followed with different kinds of felony murder laws by the end of the century. (22) Three states have abolished the rule with two specifically doing so through statute. (23) Hawaii's legislative history specifically notes that the Model Penal Code has restricted the felony murder use because the "principled argument in its defense is hard to find." (24) Another five states have eliminated felony murder's application when the defendant's co-felon is killed. (25)

In order to fully comprehend the felony murder rule one must understand the range of justifications that have been cited for its use. Commentators have differed on the justifications in English common law. It has been argued that there was little need for justification for the felony murder doctrine as all felonies traditionally meant capital execution, but the impact may have been important since execution rates varied according to the felony. (26) One modern justification for the doctrine is the deterrence of accidental or negligent deaths during the course of a felony. (27) Defenders of the felony murder doctrine have primarily focused on its alleged deterrent effect. The other primary justification is retribution, which is more rooted in its common law ancestry. (28) Originally, the concept of mens rea was less developed and the felon, by simply committing the act, exhibited an "evil mind." (29) The focus was not on the intent, but on the harm done. (30)

ii. Supreme Court's Treatment of Felony Murder

The Supreme Court previously considered the felony murder doctrine in the context of the death penalty and held that the Eighth Amendment's ban on cruel and unusual punishment requires the defendant "kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." (31) The Court focused on the culpability of the individual defendant saying that: "[t]he focus must be on his culpability...." (32) The Court noted that culpability is based on whether the action is intentional and the lack of intent under the felony murder doctrine demonstrates the reduced culpability of the defendant. (33) Persons who do not have the same criminal intent also have reduced moral guilt and criminal culpability. (34) The next line of cases dealing with the cruel and unusual punishment clause involves juveniles and therefore deals with a specific group of offenders rather than a certain type of crime. The evolution of the juvenile justice system is crucial in understanding the court's analysis.

c. Juveniles and the Eighth Amendment's Ban on Cruel and Unusual Punishment

i. History

In 1899, with the backing of social reformers, the first juvenile court was formed on the basis that children were not responsible for their behavior in the same way as adults. (35) By the end of World War II in 1945, every state in the United States had a juvenile court system. (36) At the time, juveniles under the age of fourteen were presumed to have no criminal intent and should not be punished because it would not serve as a deterrent. (37) For children under eighteen years old, until at least the 1970s, the system was based on a rehabilitative model of treating rather than punishing the wayward child. (38) The State acted like the parents of the child using the standard, embodied in most family court systems today, of working "in the best interests of the child" whenever necessary. (39)

When teen violence increased in the early 1990s the media predicted a wave of juvenile "superpredators" that never came to fruition. (40) This hype helped fuel a push for juveniles to be more easily transferred to adult courts, which began to occur with greater frequency. (41) Juveniles transferred to adult courts were exposed to the harshest punishments, including the death penalty. Indeed, in 1947 there was a failed execution by electric chair in Louisiana of a sixteen year old, Willie Francis. (42) Regardless, it was not until 1988 when the Supreme Court first held that executing juveniles under sixteen is cruel and unusual punishment under the Eight Amendment, (43) and in 2005 the Court considered the culpability of all juveniles and determined it is cruel and unusual punishment to execute children. Remarkably, in 2010, the Court struck down a non-death sentence for the first time as cruel and unusual punishment and held that juveniles that did not commit murder could not be sentenced to life without parole. (44) Finally, in 2012, the Court considered whether juveniles convicted of homicide could be sentenced to life without parole. (45)

ii. Roper, Graham, Miller

In recent years, the United States Supreme Court has examined the cruel and unusual punishment's clause of the Eighth Amendment in criminal sentencing practices of juveniles. In 2005, in Roper v. Simmons, the Court held that the Eighth Amendment's ban on cruel and unusual punishments and the Fourteenth Amendment prohibited the execution of those under the age of eighteen when they committed their crime. (46) In 2010, in Graham v. Florida, the Court considered whether impositions of life without parole sentences could be imposed on juveniles for non-homicide offenses. It concluded that states must offer, at a minimum, "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (47) Most recently, in 2012, the Court in Miller v. Alabama examined whether juveniles convicted of homicide could be sentenced to life without parole and ultimately concluded it was Constitutional, but only if age and other factors are first considered. (48)

When considering whether a sentence violates the evolving standards of decency of a maturing society, the Court first considers the objective standards of legislative enactments and state practices. In Roper, the national consensus, objectively indicated, had moved away from executing juveniles. (49) The majority of states rejected its use, the penalty was now infrequently applied, and both these trends were consistent. (50) The Court also noted that though twelve states channel children into the adult criminal justice system, there might be legitimate reasons for this apart from a desire to execute the offender. The practice of these states ultimately shows a lack of "affirmative and unequivocal legislative support for the practice." (51)

The analysis was similar in Graham when the Court felt compelled to discuss the fact that at present time 38 jurisdictions imposed life without parole for non-homicide offenses. (52) In actuality, only 123 offenders were serving life sentences for non-homicide crimes; with 77 located in Florida. (53) It should be acknowledged that legislators may have intended that juveniles be transferred to adult court without ever intending that they be forced to serve life without parole sentences. (54) The fact that juvenile non-homicide offenders can still be sentenced to life without parole in 38 states is therefore not controlling and does not prove that the states are not moving farther away from this practice. (55)

Similarly, in Miller, the Court was compelled to respond to the fact that 29 states still imposed life without parole on a mandatory basis, but, once again, found a confluence of factors did not show legislative intent. (56) Juveniles are often forced into adult court often based simply on their age and offense, either through statutory exclusion or prosecutorial discretion laws, and minimum sentencing provisions applied to juveniles lead to mandatory life without parole sentences. (57) The Court recognized in Miller that each of these provisions was passed separately, and it was far from clear whether there was ever an intention by the legislatures to sentence juveniles to life without parole. (58) The Court ultimately concluded that legislators in the United States might never have actually intended to sentence juveniles to mandatory life sentences. (59)

The Court utilized the law of other countries and international opinion to confirm their conclusions in Roper and Graham, but did not include this analysis in the most recent case on juvenile sentencing, Miller. When considering the death penalty for juveniles, international opinion confirmed the Court's conclusions (60) that the United States was the only country still executing juveniles in 2005. (61) Persuasive evidence was also found in foreign jurisdictions in Graham with only two nations, the United States and Israel, imposing life without parole in practice. (62) In fact, Israel only imposed the sentence on seven individuals; all convicted of homicide or attempted homicide; and does allow limited parole review. (63) While international law is not controlling, it does confirm the practice is cruel and unusual by showing "the judgment of the world's nations that a particular sentencing practice is inconsistent with basic principles of decency...." (64) Previously both Graham and Roper had cited international law, but, surprisingly, the Court failed to cite international law in Miller. For example, Roper noted that only one other country had sentenced a total of seven individuals to life without parole, (65) compared to almost 2,500 juveniles serving those sentences in the United States. (66)

Next, the Court looked at criminal culpability. Just as felony murder demonstrates a lack of blameworthiness, groups of offenders, such as juveniles, can also have reduced criminal culpability. Recently, the Court ruled that executing offenders who suffered from an intellectual disability was an unconstitutional cruel and unusual punishment, and counsel in Roper argued that the "reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed." (67) An important part of determining the culpability of a group of offenders is to look at any unique characteristics that reduce the individual's responsibility over their actions.

When the Court considered juveniles they found that it is nearly irrefutable that children differ from adults on some level. In this case and others, the Court has relied upon what "'any parent knows'--indeed, what any person knows--about children generally." (68) In Roper, the Court concluded that juveniles are categorically different, and therefore, less culpable than adults because of three main factors: (1) juveniles are comparatively more immature and irresponsible than adults; (2) "juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure[;]" and (3) juveniles' character and personality traits are less fixed than adults. (69) Based on these factors, the Court concluded that juveniles' lack of control over their environment gives them a greater claim to forgiveness because they cannot escape negative influences. (70) Further, their lack of a static identity shows the crime they commit is less supportive of an "irretrievably depraved character." (71)

The Court found that even expert psychologists have difficulty "differentiating] between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." (72) In Graham and Miller; the Court reaffirmed the differences between juveniles and adults that it noted in Roper (73) and found that both social science and neuroscience support these conclusions. (74) In Graham, the Court affirmatively cited an amicus brief by the American Medical Association that "parts of the brain involved in behavior control continue to mature through late adolescence." (75) In Miller, the Court found that evidence from science and social science had become even stronger and that a juvenile's brain continues to develop higher-order executive functions such as "impulse control, planning ahead, and risk avoidance" (76) well past the age of eighteen. The Court also noted that lessened culpability of juveniles is not "crime specific" and is still true "when (as in both cases here) a botched robbery turns into a killing." (77)

Any unique challenges that the group may face in the criminal justice system is another consideration affecting culpability. In Atkins, the court found that those with intellectual disabilities face unique challenges because there is a greater possibility of false confessions, an inability to give meaningful assistance to counsel, and they are typically poor witnesses. (78) Juveniles have strikingly similar unique challenges in the criminal justice system. Some juveniles mistrust adults and/or do not understand the criminal justice system or its component actors, factors which may lead them to work less effectively with their lawyers. (79) This fact, combined with a juvenile's already established recklessness and impulsiveness can lead to poor decision-making and a hampered quality of representation. (80) In Miller, the Court stated in dicta that juveniles also have difficulties interacting with police and prosecutors during interrogations and negotiating plea deals. (81) These difficulties can have significant consequences for youth because they could be charged and convicted of a higher offense due to the "incompetencies associated with youth...." (82) This comment later discusses how these problems manifest for juveniles within the adult system.

Each of these difficulties informs the Court's analysis of whether this group, juveniles, is the most morally blameworthy offenders. It is important to note that in examining culpability the Court is not focused on the offenses, as some commentators have stated juveniles share the same level of culpability of adults based on the "sickening nature" of their actions. (83) Indeed, the Court has explicitly stated that culpability is not crime specific (84) and previous Supreme Court cases have shown that groups with reduced culpability are surely still capable of committing horrific acts. For example, in Roper, although it involved a particularly brutal murder, the Court still decided to ban the execution of persons for crimes committed when they were juveniles. (85) Similarly, Atkins involved a similarly gruesome set of facts, and yet the Court held that the execution of those with intellectual disabilities is cruel and unusual. (86)

The third consideration the Court has to consider is whether the justification for the sentence could be applied to that group. (87) The justifications for sentencing in capital cases have been retribution and deterrence, (88) and the Roper Court considered whether either justification could be applied to juveniles. (89) Retribution, the Court concluded, is insufficient because it is not proportional to the "lesser culpability of the juvenile offender." (90) The Roper Court also concluded that these same characteristics make the goal of deterrence less applicable to juveniles as they are less likely to engage in the cost-benefit analysis necessary for this goal. (91) To hold this, the Court relied on previous jurisprudence banning the death penalty because of the reduced culpability of the offender with intellectual disabilities and compared that culpability to those of juveniles. (92) In Roper, the Court focused on what made juveniles, the specific group of offenders, uniquely based for reduced culpability. (93)

The Graham Court next considered the justifications for sentencing juveniles to life without parole for non-homicide crimes. (94) That Court specifically noted that the Eighth Amendment requires a penological justification for a punishment to be proportional to the offense. (95) The Court concluded that none of the justifications of retribution, deterrence, incapacitation, (96) or rehabilitation could justify life without parole sentences for juveniles convicted of non-homicide crimes. (97) The

Court found the same reasoning in Roper that made retribution and deterrence unjustified in imposing the death penalty on juveniles also did not justify an imposition of life without parole sentences. (98) In this specific context, incapacitation also cannot justify these sentences because of the unique characteristics of juveniles. (99) In the context of a non-homicide case, "[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity." (100) Finally, the sentence cannot be justified based on rehabilitation because it "forswears altogether the rehabilitative ideal" and often denies those defendants other rehabilitation services such as vocational training. (101) All the goals of sentencing juveniles to life without parole for non-homicide crimes were examined and none provided adequate justification.

Before Graham and Miller, the court had only adopted categorical rules in the context of the death penalty; however, Graham was novel for using the same jurisprudence for a term-of-years sentence. (102) The Court analogized a death sentence to a juvenile life without parole sentence, finding that they are "irrevocable" and virtually eliminate "hope." (103) The sentence is especially harsh for juveniles who, by nature of their age, will "on average serve more years and a greater percentage of his life in prison than an adult offender." (104)

Since life without parole for juveniles is similar to the death penalty, the Court in Miller relied on a second line of precedents requiring individualized sentencing before imposing death. The Miller Court relied on Graham, analogizing life without parole to juveniles to death sentences, and cited precedent regarding what lower courts must consider before a death penalty can be imposed. (105) The Miller Court reaffirmed that mandatory death penalties were unconstitutional (106) and later allowed defendants to introduce any mitigating factor such as age, background, and/or mental development. (107) The Court concluded that the mandatory nature of life without parole for juveniles violated the Eighth Amendment because it ignores their "chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate the risks and consequences. (108)

iii. Miller's Concurrence

In Graham, the Court examined the uniqueness of juveniles who do not kill, attempt to kill, or intend to kill when considering sentencing juveniles to life without parole for non-homicide crimes. Since these groups of offenders are juveniles who did not actually commit homicide, the defendant's intent to kill and his age, both separately, reduces the defendant's culpability. (109) Age diminishes culpability, and separately, intent to kill diminishes culpability. (110) Noticing this language, in a concurring opinion in Miller, Justice Breyer, joined by Justice Sotomayor, states that the imposition of life without parole should not be imposed without a finding that the defendant killed or intended to kill the victim. (111)

In one of the cases before the Court in Miller, the defendant, Quantrell Jackson, went to a store to commit a robbery but did not know one of the other boys was carrying a shotgun. (112) Mr. Jackson mainly remained outside but after he entered the store, the co-conspirator shot the store clerk. (113) Justice Breyer noted Graham s dicta that a juvenile who does not kill or intend to kill has twice diminished responsibility. (114) The Justice is in effect describing the felony murder doctrine, where any killing that occurs while a person is committing or attempts to commit a felony is murder, and intent to kill is immaterial or irrelevant to the inquiry in most jurisdictions. (115) These two Justices believe that transferred intent, where intent to kill is satisfied by intent to commit a felony, is insufficient to sentence juveniles to die in prison. (116)

The Miller concurrence first argued that this intent is insufficient for purposes of the Eighth Amendment and has already been declared unconstitutional in the context of the death penalty. (117) They next argue that transferred intent has no basis to juveniles because it is premised on an understanding of the "risk that the victim of the felony could be killed, even by a confederate. Yet the ability to consider the full consequences of a course of action and to adjust one's conduct accordingly is precisely what we know juveniles lack capacity to do effectively." (118) Felony murder's application was never considered for juveniles and "[l]egal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to a determination of a State's duty toward children." (119) Justices Breyer and Sotomayor would have held that absent a finding of killing or intent to kill, the Eighth Amendment forbids the imposition of life without parole on juveniles. (120)

III. SENTENCING JUVENILES TO DIE IN PRISON UNDER THE FELONY MURDER DOCTRINE VIOLATES THE EIGHTH AMENDMENTS BAND ON CRUEL AND UNUSUAL PUNISHMENT

In the last ten years, sentencing juveniles to be executed has been held unconstitutional. Even juveniles convicted of homicide crimes can no longer be mandatorily sentenced to life without parole. Despite these advances, the sentencing reforms for juveniles have not gone far enough. The Court should strike down all life sentences for juveniles convicted under the doctrine of felony murder on the basis of the Eighth Amendment's prohibition on cruel and unusual punishment.

a. Objective Evidence - Domestic Law

Domestic law is crucial to the analysis of whether a sentence is cruel and unusual and lends support for banning sentences where children are to die in prison. Before exercising their own independent judgment, courts must evaluate "legislative enactments and state practice" in order to give objective indicia of national consensus. (121) Since 1988, the Court has repeated that pushing juveniles into the adult system does not necessarily show legislative intent to sentence those juveniles to the harshest punishments. This notion was first noted this when considering sentencing a fifteen year old to death and has consistently been affirmed in Roper, Graham, and Miller. Felony murder, as a justification for sentencing juveniles to life without parole, should specifically not be allowed because there has been a strong trend away from its use even when applied to adults. In certain jurisdictions, felony murder has been eliminated in all courts and others have restricted its use. (122) Three states have abolished the rule all together with two specifically doing so through statute. (123) Hawaii, in the legislative history of its statute, noted that the Model Penal Code has also restricted its use because "principled argument in its [felony-murder rule's] defense is hard to find." (124) Another five states have eliminated felony murder's application when the defendant's co-felon is killed. (125)

The Court should refuse to use felony murder as the reason for the application of a life sentence for juveniles because there are strong domestic trends away from its use, even when applied to adults. A strong trend away from executing juveniles and their infrequent execution were indications of a national consensus away from executing juveniles in Roper. There is a strong trend away from felony murder as applied to adults. Hypothetically speaking, if Roper had found that there was a strong trend against executing adults it would lend strong support against executing juveniles. The same analysis should be applied in the context of the felony murder doctrine: the trend against applying the doctrine to adults should be a strong indication that it should not be applied to juveniles.

b. Persuasive Evidence--Foreign Law

Further, laws of other states and international opinion, which the Court cites in Roper and Graham in order to confirm the Court's rationale, lend support to the abolishment of felony murder as a justification for life without parole. In 1982, the Supreme Court decided to ban felony murder's justification for death sentences. (126) The Enmund Court found that a majority of common law states had either eliminated or restricted its use in common law countries where it originated and was never even instituted in others. (127) Even the countries where the felony murder doctrine originated have eliminated its use, which is further evidence that it should not be applied to juveniles. However, this analysis has been used to merely confirm the Court's conclusions, and the Court has refused to apply the law of other states and international opinion in recent Constitutional rights jurisprudence. (128) The Court need not rely on this precedent in order to strike down using felony murder to sentence a juvenile to die in prison. A penological justification is required for a sentencing practice and none can be found when applying felony murder to juveniles.

c. No Penological Justifications

i. Deterrence

The Court has held that there must be a penological justification in order for a sentence to be proportionate to the offense and therefore not a cruel and unusual punishment. (129) Defenders of the felony murder doctrine have primarily focused on its supposed deterrent effect. Felony murder has been justified as deterring accidental or negligent deaths during

felonies. (130) Others have noted the fallacy of this logic when applied to both children and adults as unintended acts cannot be deterred. (131) There is doubt that varying punishments will deter serious crimes. (132) Moreover, deterrence is inapplicable when third parties (either a co-defendant or law enforcement) kill a person because those third parties cannot be controlled. (133) The Enmund Court cited these same concerns when it banned felony murder as the basis for the death penalty. (134) The Court pointed out this doctrine simply would not deter defendants from committing the act. (135) At that time there was also a lack of evidence showing the doctrine actually deterred deaths, when the result was the death penalty or another sentence. (136)

Deterrence has little application to juveniles because it presumes characteristics that do not apply to juveniles. As juveniles under the age of fourteen are presumed to have no criminal intent, punishing them should not serve as a deterrent. (137) Deterrence is based on the presumption that the defendant will engage in a cost/benefit analysis of their actions, but juveniles do not do necessarily do that before they act. (138) Children are particularly vulnerable to peer pressure and negative influences, but in the context of felony murder, they are presumed to be able to actually prevent third parties from committing offenses. (139) Simply, deterrence cannot be justified because it has little applicability to juveniles.

Deterrence is even less justified when imposed on children because many will be released at an old age when their risk of recidivism is extremely low. (140) Consider David's case at the beginning of this comment. Without the felony murder doctrine, David could still be arrested and subject to harsh punishment in many states. In Louisiana, because he has reached fifteen years old, the prosecutor could simply file a bill of information for armed robbery, and he would be statutorily transferred to adult court. (141) As an accomplice, he would be charged as a principal to the crime. (142) If he were convicted of armed robbery his sentencing would range from 10 to 99 years. (143) David would still likely receive a harsh sentence and therefore, not be released until he is elderly when he is less likely to reoffend. The U.S. Department of Justice study concluded that 99 percent of offenders fifty years and older would never commit another crime upon release. (144) Thus, deterrence should not be the justification for sentencing juveniles to life without parole as their chances of committing another crime, if they were to be released would be almost nonexistent.

ii. Retribution

The other primary justification for the felony murder doctrine is retribution. The justification of retribution is inapplicable to juveniles because the concept requires that the offenders deserve punishment for their actions. Retribution, however, is never as strong for juveniles because as Roper notes, children are inherently less blameworthy. (145) Felony murder has been widely criticized, even by the Supreme Court, when imposed on adults. The doctrine's justifications of retribution and deterrence are not applicable when sentencing youth.

d. Enmund, Graham, and Miller Support Eliminating Felony Murder in Sentencing Juveniles to Mandatory Life Sentences

Felony murder is also inappropriate to apply to juveniles because transferred intent is not allowed in the context of the death penalty, and life without parole has been analogized by the Court to the death penalty in the context of juveniles. (146) A lack of intent to kill shows reduced culpability in the context of the death penalty. (147) The Court previously considered the felony murder doctrine in the context of the death penalty and held that the Eighth Amendment's ban on cruel and unusual punishment requires the defendant "kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." (148) The Court focused on the culpability of the individual defendant stating that "[t]he focus must be on his culpability...." (149)

Instead of focusing on group characteristics that set juveniles and persons with intellectual disabilities apart and show generally lowered culpability, the Court focused on the individual defendant's "intentions, expectations, and actions" (150) to determine his individual culpability. Separately, as noted in both Graham and Miller, supra, juveniles that do not kill, attempt to kill, or intend to kill have twice diminished responsibility. (151)

The irrevocability of a life without parole sentence for a juvenile and the resultant lack of hope makes a life sentence similar to the death penalty. (152) A juvenile, by nature of his age, will "on average serve more years and a greater percentage of his life in prison than an adult offender." (153) Sentencing juveniles to life without parole has been analogized to the death penalty and felony murder has been eliminated in order to execute someone. If felony murder has been banned for the death penalty, and life without parole is analogous to the death penalty for juveniles, then felony murder should not be allowed to send juveniles to prison for life.

e. A Juvenile's Mental State Must Be Determined before Their Sentencing

Effectively, felony murder eliminates mens rea, the mental state of the defendant, as an element of the crime. (154) In modern jurisprudence, criminal intent is crucial in determining the culpability of the offender. (155) It is also a concern for the legislature as several witnesses have recently testified to the Task Force on Overcriminalization of the House Oversight Committee on the need for adequate mens rea requirements. (156) The Supreme Court adopted this criticism of felony murder when it banned its use in death penalty cases noting that culpability is based on whether the action is intentional or unintentional, which the felony murder doctrine effectively ignores. (157) In the same way that juveniles generally have reduced culpability due to adolescent brain development, persons who do not have the same criminal intent also have reduced moral guilt and criminal culpability. (158)

Juvenile vulnerabilities can also leave additional doubt over the "evil mind" theory of felony murder's application. Juveniles, in addition to being generally less culpable, are unique in that the question of intent is harder to determine and perhaps more crucial to determine an appropriate punishment. It is important to note that felony murders occur almost exclusively when there is more than one defendant (159) and the vulnerabilities of juveniles lead them to group offenses at higher rates than adults. (160) In instances where multiple juveniles are arrested and each of them has less foresight into their actions and consequences, it is very difficult to determine which child is truly the blameworthy culprit. Contrasting instances in which there is an adult and a juvenile involved in a group offense, all things being equal, the juvenile would seem to be less culpable, but the doctrine of felony murder fails to make this differentiation. Both the high frequency of group offending among juveniles and their higher likelihood of being ensnared when they never intended to kill makes juveniles a poor fit for the felony murder doctrine.

When examining the history of punishing juveniles, intent becomes a particularly illuminating problem. As noted above, those under the age of fourteen are presumed to not possess criminal intent. The felony murder rule, then, makes little sense for those under fourteen because they are eliminating the need for intent when those youth are simply presumed to lack the capacity to form intent. (161) However, this same problem arises for juveniles between fourteen and eighteen years old. The Supreme Court has recognized that social science has shown that this group is more likely to follow negative peer pressure, is more impulsive, is shortsighted, and is reckless. Juveniles in this age group may have the necessary requisite to form intent, but these influences diminish the independence of their decisions. In other words, just as children are not the same as adults, children's intentions are not the same as adult intentions. The felony murder doctrine works on the premise that engaging in the felony shows the necessary criminal intent. This notion cannot be applied to a group that collectively, by their nature, are immature, irresponsible, and heavily influenced by others.

f. Application of Felony Murder to Juveniles Violates Supreme Court Precedent

Juveniles' unique problems in the justice system make them more likely to fall prey to the doctrine of felony murder at every stage. Statistics prove that felony murder is the main reason many youths are sentenced to life without parole. As of 2008, at least 26 percent of youths serving life without parole sentences were convicted of felony murder. (162) In California the statistic is even greater with an estimated 45 percent of youths serving life without parole sentences who did not intend to kill and were sentenced for aiding and abetting or felony murder. (163) Even more alarming, adult co-defendants were also frequently involved and frequently received lower sentences than their juvenile accomplices. A survey in California found that of those juveniles serving a sentence of felony murder, over 68 percent had an adult co-defendant, and in 56 percent of those cases the adult received a lower sentence than the juvenile. (164)

Consider the steps of a juvenile's arrest for murder under the felony murder doctrine. His first interaction is likely to be with police officers. At this point, the juvenile is uniquely vulnerable. The Court notes this in clear terms, finding that "a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go." (165) Further, juveniles, similarly to persons with intellectual disabilities, are at heightened risk for false confessions. (166) In this context, it is easy to imagine that a juvenile is more likely than an adult to confess, or even falsely confess to his involvement in the crime despite never intending to commit a killing or even being involved.

David, in the hypothetical at the beginning of this comment, at fifteen years old would be the person most likely to admit his role in the robbery. What is more egregious is the fact that Larry, the thirty year old, is more likely to be adept at dealing with law enforcement. Ultimately, because of the unique vulnerabilities of juveniles and the felony murder doctrine, the most culpable defendant may be punished the least harshly. As evidenced in the aforementioned California study, over half of adults are receiving more lenient sentences than their juvenile co-defendants in felony murder cases. From the very beginning, juveniles are uniquely vulnerable to this doctrine because they are more likely than an adult to admit their role in the alleged offense.

The next crucial players in a juvenile defendant's fate are his own counsel and the prosecutor. The Court in Miller noted that juveniles have difficulty negotiating plea deals with prosecutors. (167) Surveys show that more than a third of juvenile offered plea deals turned them down because they either did not understanding the concept of felony murder or did not accept the lengthy term that they would have had to accept. (168) Juveniles also have unique problems communicating with their own counsel which makes them particularly vulnerable to being convicted under the felony murder doctrine.

The crucial task of determining a juvenile's involvement in the alleged crime is hampered by the trouble that he has communicating with his own defense counsel. These problems may lead a defense attorney to conclude that the juvenile clients would be unable to withstand the pressure from prosecutors while on the stand. An adult defendant, on the other hand, could testify to his lack of involvement in the plan.

Returning once again to the hypothetical of David, it may be possible that he was never even aware of the plan to rob the store. He may have gone with his friends to the store and never realized that a robbery was going to take place until his friend ran out of the store. In this case, David's counsel, however, may be very likely to advise David to not take the stand and deny his involvement because of the pressure from the prosecutor.

IV. CONCLUSION

Children like David may be the most likely to be sentenced to life in prison without the possibility of parole. Nevertheless, he is likely the least culpable defendant involved in the case. He may never have intended to hurt anyone and may have been highly influenced by his older adult confederate. In 45 states, David could be sentenced to life in prison even if the only person killed was a compatriot. In order for David's sentence to be constitutional, we must conclude that despite being inherently less culpable, and never intending to kill, his culpability deserves that he be sentenced to life in prison. This line of logic directly contradicts the jurisprudence outlined in Edmund, Graham, and Miller.

The Eighth Amendment's ban on cruel and unusual punishment should prohibit sentences of life without parole for juveniles who did not kill or intend to kill. Juveniles are inherently less culpable and the Court has struck down the application of the death penalty for acts committed by those under the age of eighteen, has forbidden life sentences for non-homicide offenses, and required all juveniles to have a meaningful review of their sentences before being sentenced to die in prison. A finding that the person killed, attempted to kill, or intended to kill has been required in the context of the death penalty because the doctrine fails to focus on the individual defendant's culpability. This holding should be applied to sentencing juveniles to life without parole as this sentence has been analogized to the death penalty for juveniles. Juveniles convicted under the doctrine of felony murder are less culpable due to their age and their reduced role in the offense.

The Court noted in Graham that juveniles that do not intend to kill have twice diminished culpability. (169) The Court should recognize this lack of culpability and ban life without parole for juveniles who are convicted under the felony murder doctrine who never intend to kill. The felony murder doctrine is the reason why more than a quarter of juvenile defendants will die in prison. The Supreme Court should ban its use and live up to its statement that "appropriate occasions for sentencing juveniles to the harshest possible penalty will be uncommon." (170)

(1.) Michael T. Moore, Jr. is a third-year law student at Loyola University New Orleans College of Law. He is a criminal defense student practitioner in the Stuart H. Smith Law Clinic at Loyola. Prior to law school, he worked as a criminal defense investigator and mitigation specialist. Thank you to my wife, Annie, for her love and support as well as Clinical Professor D. Majeeda Snead for her guidance, insight, and suggestions.

(2.) Roper v. Simmons, 543 U.S. 551, 560-79 (2005).

(3.) Graham v. Florida, 560 U.S. 48, 74-75 (2010).

(4.) Miller v. Alabama, 132 S. Ct. 2455, 2463-69 (2012).

(5.) "[P]enology: The study of penal institutions, crime prevention, and the punishment and rehabilitation of criminals, including the art of fitting the right treatment to an offender." BLACK'S LAW DICTIONARY 563 (4th pocket ed., 2011).

(6.) "[P]roportionality review. Criminal law. An appellate court's analysis of whether a death sentence is arbitrary, capricious, or excessive by comparing the case in which it was imposed with similar cases in which the death penalty was approved or disapproved." BLACK'S LAW DICTIONARY 606 (4th pocket ed. 2011).

(7.) The Eighth Amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST, amend. VIII.

(8.) Roper v. Simmons, 543 U.S. 551, 561 (2005) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion)); e.g., Graham, 560 U.S. at 61.

(9.) See, e.g., Roper, 543 U.S. at 564; Graham, 560 U.S. at 61.

(10.) See, e.g., Roper, 543 U.S. at 564-67; Graham, 560 U.S. at 80-81.

(11.) Roper, 543 U.S. at 568.

(12.) Id.

(13.) Use of Mental Retardation on this Website, AMERICAN ASSOCIATION ON Intellectual and Developmental Disabilities, http://aaidd.org/intellectualdisability/historical- context#.UmKLyhD3dk (last visited Sept. 29, 2014).

(14.) Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).

(15.) Roper, 543 U.S. 569-70.

(16.) Graham v. Florida, 560 U.S. 48, 67 (2010).; Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012).

(17.) Graham, 560 U.S. at 59.

(18.) Roper, 543 U.S. at 564; Graham, 560 U.S. at 61.

(19.) James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces That Shape Our Criminal Law, 51 WASH. & LEE L. REV. 1429, 1430 (1994).

(20.) Tomkovicz, supra note 19 at 1442-43.

(21.) Leonard Birdsong, Felony Murder: A Historical Perspective by Which to Understand Today's Modern Felony Murder Rule Statutes, 32 T. MARSHALL L. REV. 1, 18 (2006).

(22.) Id. at 19.

(23.) Id. at 20.

(24.) Haw. Rev. Stat. [section] 707-701 (West 2014).

(25.) Birdsong, supra note 21, at 24.

(26.) See, e.g., Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 CORNELL L. REV. 446, 450 (1985); Birdsong, supra note 21, at 13.

(27.) Tamu Sudduth, The Dillon Dilemma: Finding Proportionate Felony-Murder Punishments, 72 CALIF. L. Rev. 1299, 1305 (1984).

(28.) Roth & Sundby, supra note 26, at 458.

(29.) Id.

(30.) Id.

(31.) Enmund v. Florida, 458 U.S. 782, 797 (1982).

(32.) Id. at 798.

(33.) See, Enmund, 458 U.S. at 798; Mariko K. Shitama, Bringing Our Children Back from the Land of Nod: Why the Eighth Amendment Forbids Condemning Juveniles to Die in Prison for Accessorial Felony Murder, 65 FLA. L. Rev. 813, 844-45 (2013).

(34.) Enmund, 458 U.S. at 800-01.

(35.) Ira M. Schwartz, Neil A. Weiner & Guy Enosh, Nine Lives and Then Some: Why the Juvenile Court Does Not Roll Over and Die, 33 Wake Forest L. Rev. 533, 534-35 (1998).

(36.) Craig Hermnens, Eric J. Fritsch & Tory J. Caeti, Developments in the United States: The Rhetoric of Juvenile Justice Reform, 18 Quinnipiac L. Rev. 661, 664 (1999).

(37.) Steven A. Drizin & Allison McGowen Keegan, Abolishing the Use of the Felony-Murder Rule When the Defendant Is a Teenager, 28 NOVA L. REV. 507, 531 (2004).

(38.) Hemmens, Fritsch & Caeti, supra note 36, at 665-67.

(39.) Id. at 665.

(40.) Clyde Haberman, When Youth Violence Spurred 'Superpredator' Fear, N.Y. Times (Apr. 6, 2014), httpyywww.nytimes.com/2014/04/07/uy'politicf/killing-on-busrecalls-superpredator-threat-of- 90s.html?_r=0.

(41.) Amy M. Thorson, From Parens Patriae to Crime Control: A Comparison of the History and Effectiveness of the Juvenile Justice Systems in the United States and Canada, 16 Ariz. J. Int'l & Comp. L. 845, 852 (1999).

(42.) See, e.g., Elizabeth Compa, Cecelia Trenticosta Kappel & Mercedes Montagnes, Litigating Civil Rights on Death Row: A Louisiana Perspective, 15 Loy. J. Pub. Int. L. 293, 296-97 (2014); State ex rel. Francis v. Resweber, 31 So. 2d 697, 698-99 (La. 1947).

(43.) Thompson v. Oklahoma, 487 U.S. 815, 829 (1988).

(44.) Graham v. Florida, 560 U.S. 48, 82, 102 (2010) (Thomas J., dissenting) ("For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone.").

(45.) Miller v. Alabama, 132 S. Ct. 2455, 2463-69 (2012).

(46.) Roper v. Simmons, 543 U.S. 551, 578 (2005).

(47.) Graham, 560 U.S. at 75.

(48.) Miller, 132 S. Ct. at 2475; for a description of the sentencing hearings required in these cases, see, for example, David Siegel, What Hath Miller Wrought: Effective Representation of Juveniles in Capital-Equivalent Proceedings, 39 New Eng. J. on Crim. & Civ. Confinement 363, 372-76 (2013).

(49.) Roper, 543 U.S. at 559-60.

(50.) Id. at 564-67.

(51.) Id. at 595-96 n*.

(52.) Graham, 560 U.S. at 62.

(53.) Id. at 64 (This analysis was done by the defendant and supplemented by the Supreme Court's own research.).

(54.) Id. at 67.

(55.) Id. at 66; Interestingly, the Court analogizes to Thompson v. Oklahoma, 487 U.S. 815, 826 (1988) where a plurality held that the death penalty for offenders under sixteen prohibited the Eighth Amendment's ban on cruel and unusual punishment. At that time, states authorized transfer of juveniles to adult court, which, as continues today, they are treated as adults and could therefore be sentenced to death. The Court quotes Thompson finding that this scheme "tells us nothing about the judgment these States have made regarding the appropriate punishment for such youthful offenders." Thompson, 487 U.S. at 829 n. 24.

(56.) Miller v. Alabama, 132 S. Ct. 2455, 2471-73 (2012).

(57.) See, e.g., Miller, 132 S. Ct. at 2473-75; Ioana Tchoukleva, Children are Different: Bridging the Gap Between Rhetoric and Reality Post Miller v. Alabama, 4 Cal. L. Rev. Circuit 92, 94 (2013).

(58.) Miller, 132 S. Ct. at 2479.

(59.) Id. at 2473.

(60.) Roper v. Simmons, 543 U.S. 551, 577 (2005).

(61.) Id. (The Court notes that seven countries had executed juvenile offenders since 1990 but since then they had all either abolished or publicly disavowed its use. "In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.").

(62.) Graham v. Florida, 560 U.S. 48, 80 (2010).

(63.) Id. at 80-81.

(64.) Graham, 560 U.S. at 82.

(65.) Id. at 80-81.

(66.) Miller, 132 S. Ct. at 2477 (Roberts J., dissenting) (The dissent compared seven individuals sentenced to life without parole in the rest of the world to nearly 2,500 prisoners serving life without parole for offenses committed before they were 18 in the United States.).

(67.) Roper, 543 U.S. at 559.

(68.) J.D.B. v. N. Carolina, 131 S. Ct. 2394, 2403 (2011) (quoting Roper, 543 U.S. at 569).

(69.) Roper, 543 U.S. at 569-70.

(70.) Roper, 543 U.S. at 569.

(71.) Id. at 570.

(72.) Id. at 573.

(73.) Graham v. Florida, 560 U.S. 48, 68-69 (2010); Miller v. Alabama, 132 S. Ct. 2455, 2465 (2012).

(74.) Graham, 560 U.S. at 68; Miller, 132 S. Ct. at 2464.

(75.) Graham, 560 U.S. at 68.

(76.) Miller, 132 S. Ct. at 2464 n. 5.

(77.) Id. at 2465.

(78.) Atkins, 536 U.S. 304, 320-21 (2002).

(79.) Graham, 560 U.S. at 78.

(80.) Id.

(81.) Miller, 132 S. Ct. at 2468. (The Supreme Court cites J.D.B. v. N. Carolina, 131 S.Ct. 2394, 2399-40 (2011), which held that a youth's age is relevant to whether a Miranda warning is required. The text also specifically states plea agreements.).

(82.) Id.

(83.) Sara L. Ochs, Miller v. Alabama: The Supreme Court's Lenient Approach to Our Nation's Juvenile Murderers, 58 LOY. L. Rev. 1073, 1093 (2012).

(84.) Miller, 132 S. Ct. at 2458.

(85.) Roper v. Simmons, 543 U.S. 551, 556-57 (2005). (Christopher Simmons, then seventeen, and another fifteen year old, abducted a woman from her home, drove her out to a state park, and threw her over a bridge while she was bound and gagged.).

(86.) Atkins v. Virginia, 536 U.S. 304, 304-07 (2011). (Atkins and his codefendant abducted a man, robbed him, and drove him to an ATM to withdraw

additional cash, and then they took him to an isolated area where they shot him eight times and killed him. Further, there was little doubt over guilt as Atkins and his co-defendant testified and corroborated the details of the incident with each blaming the other for actually shooting and killing the victim.).

(87.) See Atkins, 536 U.S. at 318-20; Roper, 543 U.S. at 571-72.

(88.) See Atkins, 536 U.S. at 318-20; Roper, 543 U.S. at 571-72.

(89.) Roper, 543 U.S. at 571-72.

(90.) Id. at 571.

(91.) Id. at 571-72.

(92.) Atkins, 536 U.S. at 320.

(93.) Roper, 543 U.S. at 569-70.

(94.) Graham v. Florida, 560 U.S. 48, 71-74 (2010).

(95.) Id. at 71. ("It does not follow, however, that the purposes and effects of penal sanctions are irrelevant to the determination of Eighth Amendment restrictions. A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.").

(96.) "incapacitation 1. The action of disabling or depriving of legal capacity. 2. The state of being disabled or lacking legal capacity." Black's Law Dictionary 563 (4th pocket ed. 2011).

(97.) Graham, 560 U.S. at 71-75.

(98.) Graham, 560 U.S. at 71-72.

(99.) Id. at 73.

(100.) Id. at 73.

(101.) Id. at 74.

(102.) Id. at 61.

(103.) Graham, 560 U.S. at 69-70.

(104.) Id. at 70.

(105.) Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012).

(106.) Id.

(107.) Miller, 132 S. Ct. at 2467.

(108.) Id. at 2468.

(109.) Graham, 560 U.S. at 69.

(110.) Id. ("It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis.").

(111.) Miller v. Alabama, 132 S. Ct. 2455, 2476 (2012) (Breyer, J., concurring).

(112.) Id. at 2477.

(113.) Id.

(114.) Id. at 2476.

(115.) See, e.g., 40 Am. Jur. 2d Homicide [section] 65. Although some jurisdictions require intent to kill as a part of their felony murder doctrine this paper is only discussing those jurisdictions in which there is no requirement of intent to kill.

(116.) Miller, 132 S. Ct. at 2476 (Breyer, J., concurring).

(117.) Id.

(118.) Id. (citation omitted).

(119.) Id. (quoting May v. Anderson, 345 U.S. 528, 536 (1953) (Frankfurter, J., concurring) (internal quotation marks omitted)).

(120.) Id. (Breyer, J., concurring).

(121.) See, e.g., Roper v. Simmons, 543 U.S. 551, 572 (2005); Graham v. Florida, 560 U.S. 48, 61 (2010).

(122.) Birdsong, supra note 21, at 24-25.

(123.) Id. at 20.

(124.) Haw. Rev. Stat. [section] 707-701 (West 2014) (commentary).

(125.) Birdsong, supra note 21, at 24.

(126.) Enmund v. Florida, 458 U.S. 782, 801 (1982).

(127.) Id. at 796.

(128.) Peter J. Spiro, Sovereigntism's Twilight, 31 Berkeley J. Int'll. 307, 32021 (2013).

(129.) Graham v. Florida, 560 U.S. 48, 71 (2010).

(130.) Sudduth, supra note 27 at 1305; People v. Washington, 402 P.2d 130, 133 (1965) ("The purpose of felony murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit.")

(131.) Roth & Sundby, supra note 26, at 451-52.

(132.) Id. at 452.

(133.) Id. at 451-52.

(134.) Enmund v. Florida, 458 U.S. 782, 798-01 (1982).

(135.) Id. at 799 (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)).

(136.) Id

(137.) Drizin & Keegan, supra note 37, at 531.

(138.) Roper v. Simmons, 543 U.S. 551, 571-72 (2005).

(139.) Id. at 569.

(140.) See, e.g., Patricia S. Corwin, Senioritis: Why Elderly Federal Inmates Are Literally Dying to Get Out of Prison, 17 J. CONTEMP. HEALTH L. & POL'Y 687, 706-07 (2001).

(141.) La. Child. Code Ann. art. 305 (2014).

(142.) Hector Linares & Derwyn Bunton, An Open Door to the Criminal Courts: Analyzing the Evolution of Louisiana's System for Juvenile Waiver, 71 LA. L. REV. 191, 218 (2010).

(143.) La. Rev. Stat. Ann. [section] 14:64 (2014); Louisiana recognizes only principals and accessories after the as parties to a crime. Linares & Bunton, supra note 142, at 217. It does not recognize those that participated in the planning or execution of the crime in a diminished level. Id. No matter how small a role the accomplice has been involved in the act he is still subject to the same charges as penalties as the main actor. Id. at 217-18.

(144.) Corwin, supra note 140, at 687-88. (At this point it would also cost the state a substantial amount to house the juvenile, now in his elderly years. The cost of keeping those 50 years and older in prison is three times more than younger inmates and costs twice that of a full service nursing home.).

(145.) See Tchoukleva, supra note 57, at 103; Roper v. Simmons, 543 U.S. 551, 567 (2005).

(146.) See Graham v. Florida, 560 U.S. 48, 69-70 (2010); Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012).

(147.) Enmund v. Florida, 458 U.S. 782, 797 (1982).

(148.) Id. at 797.

(149.) Id. at 798.

(150.) Id. at 800.

(151.) Graham, 560 U.S. at 69; Miller, 132 S. Ct. at 2476.

(152.) Graham, 560 U.S. at 70; Miller, 132 S. Ct. at 2459.

(153.) Graham, 560 U.S. at 69-70.

(154.) Roth & Sundby, supra note 26, at 459.

(155.) See, e.g., Mullaney v. Wilbur, 421 U.S. 685, 697-98 (1975); see also United States v. Bailey, 444 U.S. 394, 405 (1980) ("In certain narrow classes of crimes, however, heightened culpability has been thought to merit special attention. Thus, the statutory and common law of homicide often distinguishes, either in setting the 'degree' of the crime or in imposing punishment, between a person who knows that another person will be killed as the result of his conduct and a person who acts with the specific purpose of taking another's life.").

(156.) See, e.g., Norman L. Reimer, A Lamentable Example of Overcriminilization: HIV Criminalization, THE CHAMPION, 7-8 (Dec. 2013), http//www.nacdl.org/Champion.aspx?id=31197.

(157.) See Shitama, supra note 33, at 845; Enmund, 458 U.S. at 798.

(158.) Enmund v. Florida, 458 U.S. 782, 800 (1982).

(159.) Felony murder could also technically be applied when there is a single defendant, and the victim is killed accidentally, for example, by a responding police officer.

(160.) Linares & Bunton, supra note 142, at 218. ("[T]endency toward juvenile group offending is consistent with Roper's description of adolescents as being categorically more impulsive, short-sighted, and susceptible to peer pressure than adults.").

(161.) Drizin & Keegan, supra note 37, at 531.

(162.) See Shitama, supra note 33 at 817.

(163.) See Morgan S. Mcginnis, Sentenced to Die in Prison: Life Without Parole As an Eighth Amendment Violation for All Juveniles and Especially Those Who Have Not Killed, 11 HASTINGS RACE & POVERTY L.J. 201, 202 (2014); Human Rights Watch, When I Die, They'll Send Me Home: Youth Sentenced to Life Without Parole in California, (Jan. 2008), http://www.hrw.org/reports/2008/us0108/6.htm#_Tocl87558445 [hereinafter When I Die, They'll Send Me Home],

(164.) Id. at 202.

(165.) J.D.B. v. N. Carolina, 131 S. Ct. 2394, 2403 (2011).

(166.) Id. at 2401.

(167.) Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012).

(168.) When I Die, They'll Send Me Home, supra note 163, at 36-37.

(169). Graham v. Florida, (560) U.S. (48), (69 (2010)).

(170.) Miller, 132 S. Ct. at 2469.
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