August 01, 2012

Juvenile Defense Attorneys Must Address Mitigating Factors in Homicide Cases

Howard Davidson

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

On June 25, 2012 the United States Supreme Court, in the cases of Miller v. Alabama, 2012 WL 2368659 (U.S.), and Jackson v. Hobbs, 2012 WL 1425277 (U.S.), held unconstitutional the 28 state laws that mandate sentences of life without parole for juveniles convicted in adult courts of homicide offenses. Previously, in Graham v. Florida, 560 U.S. ___ (2010), the Court had held unconstitutional all sentences of life without parole for juvenile nonhomicide offenders.

Noting (in footnote 5) that that the brain development science the Court applied in Graham had “become even stronger,” Justice Kagan concluded “youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole.” The state laws at issue prohibited sentencing authorities from assessing whether the life without parole penalty disproportionately punished a juvenile offender.

Kagan wrote that sentencers must be able to consider the mitigating qualities of youth, including their immaturity, impetuosity, failure to appreciate risks and consequences, and possibility of rehabilitation. She observed that the juvenile offenders in both cases had troubled backgrounds. Miller had been physically abused by a stepparent, neglected by a substance-abusing mother, and in and out of foster care, and Jackson had come from a family immersed in violence.

Significance for Legal Advocates

Trial courts must now “take into account how children are different, and how those differences counsel against (a life without parole sentence).” It will be up to juvenile defense attorneys in homicide cases to make the strongest possible case for sentence mitigation. This would likely include bringing in evidence of past child abuse and neglect, family violence, exposure to trauma more broadly, and the youth’s disabilities, including Fetal Alcohol Spectrum Disorders (FASD).

FASD and the justice system’s response to it is the focus of a policy resolution the ABA House of Delegates will consider at the ABA annual meeting in August 2012. The Center on Children and the Law is also working with the Safe Start Center to develop materials on Trauma-Informed Court-Appointed Legal Advocacy for children and youth that should be available later this year. Both may offer support when making a case for sentence mitigation.