1

STATE OF LOUISIANA : 14TH JUDICIAL DISTRICT COURT

VS. NO. 39465-11 DIV. E : PARISH OF CALCASIEU

JEFFREY STEVEN DOISE : STATE OF LOUISIANA

FILED: _________________________ : _______________________________

DEPUTY CLERK OF COURT

MOTION CHALLENGING THE CONSTITUTIONALITY OF C. Cr.P

ARTICLE 871.1 WITH INCORPORATED MEMORANDUM

JEFFREY STEVEN DOISE, through undersigned counsel, respectfully moves this Court,

pursuant to the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United

States, to find the applicable sentencing statute, La. C.Cr.P. art. 878.1, unconstitutional.

FACTS

1. In 2012, the Supreme Court unequivocally held that juveniles may not be sentenced to

mandatory life without parole. Miller v. Alabama, 132 S.Ct. 2455 (2012). Life without

parole, the ultimate punishment for juvenile offenders, may only be imposed on children

whom a sentencing authority, in separate hearing, determine to be the worst of the

worstchildren of irretrievabl[e] deprav[ity]. Id. at 2458. Considering that the Miller

court considered persons under age 18 as juveniles, this filing shall use that definition

despite Louisiana law treating 17 year olds as minors, but not as juveniles.

2. In 2013, the Louisiana Legislature enacted La. C.Cr.P. art. 878.1 in an effort to bring the

Louisiana juvenile sentencing statute into accord with the Constitutional requirements

clarified in Miller. The statute applies to all juvenile offenders convicted of first and

second degree homicide.

3. Under La. C.Cr.P. art. 878.1, a young offender convicted of homicide must be sentenced

to life in prison. The only individualized determination made at the trial level is whether

or not the juvenile is sentenced to life with the possibility of parole or life without the

possibility of parole.

4. On October 27, 2011, Jeffrey Doise was indicted for second degree murder.

5. If convicted, Jeffrey Doise would face sentencing under La. C.Cr.P. art. 878.1.

ARGUMENT

La. C.Cr.P. art. 878.1, the post-Miller state sentencing statute for youth homicide offenders,

2

is unconstitutional because it exposes youth to the ultimate penaltylife without the possibility

of parolewithout the necessary safeguards guaranteed by the Eighth, Sixth, and Fourteenth

Amendments to the U.S. Constitution, and La. Const. art. I, 2, 16, 20, 22, 24. At best, La.

C.Cr.P. art. 878.1 is a vague approximation of the constitutional requirements Miller mandates.

The law demands more than approximations. The provisions of La. C.Cr.P. art. 878.1 fail to

provide constitutionally required procedural safeguards mandated by the United States Supreme

Court and the statute must, therefore, be declared unconstitutional. Every sentencing hearing that

proceeds under its terms (1) deprives children of their rights against cruel and unusual

punishment as guaranteed by the Eighth Amendment; (2) deprives children of their Sixth

Amendment right to a jury finding, beyond a reasonable doubt, of any fact that exposes an

offender to an enhanced sentence; and (3) violates the separation of powers doctrine as an

unconstitutional (legislative) encroachment on powers well within the sphere reserved

exclusively to the judiciary.

La. C.Cr.P art. 878.1 violates the Eighth Amendment because it lacks procedural

safeguards to ensure a reasoned, non-arbitrary sentencing determination for youth offenders.

Because life without the possibility of parole is the ultimate penalty for a young offender, the

hearings under which these sentences are imposed on juveniles must afford increased procedural

protections to ensure reliability. The hearing must ensure that only the most culpable youth

offenders are sentenced to the ultimate penalty. La. C.Cr.P. art. 878.1 does not ensure these

protections, and it is therefore unconstitutional.

Life without parole is the ultimate penalty for juvenile defendants. Minors facing the

possibility of this ultimate penalty are due the same procedural safeguards as adults facing the

death penalty. Just as the ultimate punishment for adults is the death penalty, the ultimate

punishment for juveniles is life without parole. The Supreme Court has made clear that the two

ultimate penalt[ies], life without parole for minors, and death for adults, should be treated

analogously. Miller 132 S. Ct. at 2466 ([B]ecause we view this ultimate penalty for juveniles

akin to the death penalty, we treat it similarly to that most severe punishment.). The Courts

decision in Miller further signaled that courts and legislatures should treat life without parole for

juveniles like this Courts cases treat the death penalty. Id. at 2459 (citing with approval the

Courts earlier approach to life without parole sentences for juvenile offenders). Where state

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legislatures provide differing procedural safeguards, or fail to bring protections for children up to

the level of those provided to adults, they are inconsistent with the Supreme Courts

jurisprudence, and all prosecutions which occur in the absence of those safeguards represent

unconstitutional infringements upon the young offenders rights.

The Supreme Courts edict that juvenile defendants facing the possibility of life without

parole be awarded the same procedural safeguards as adults facing capital punishment stems

from the notion that youth matters for purposes of meting out the law's most serious

punishments. Miller, 132 S.Ct at 2471. Youth matters because children have an

underdeveloped sense of responsibility leading to recklessness, impulsivity, and headless

risktaking, [because] children are more vulnerable to negative influences and outside

pressures, [and because] a childs character is not as well formed as an adults. Id at 2459.

Youthfulness diminishes the penological justifications for imposing the harshest

punishment on juvenile offenders, even when they commit terrible crimes. Id. at 2465. See also

Roper v. Simmons, 543 U.S. 551, 571 (Once the diminished culpability of juveniles is

recognized, it is evident that the penological justifications for the death penalty apply to them

with lesser force than to adults.).

Like the death penalty, life without parole is an irrevocable forfeiture that deprives the

convict of the most basic liberties without giving hope of restoration. Graham v. Florida, 560

U.S. 48, 69-70 (2010). Life without parole means denial of hope; it means that good behavior

and character improvement are immaterial; it means that whatever future might be held in store

for the mind and spirit of [the young offender], he will remain in prison for the rest of his days.

Graham, 560 U.S. at 70 (quoting Naovarath v. State, 779 P.2d 944 (Nev. 1989) (internal

quotations omitted)). Because life without parole is at odds with how the law sees and science

assesses youth, the Supreme Court makes clear that it may only be imposed upon juveniles who

commit the worst types of murder. Miller, 132 S.Ct. at 2481. The Constitution allows only one

method for identifying the the worst offenders facing sentencing in the shadow of the ultimate

penalty: juveniles facing the ultimate penalty must be afforded the same strict protections

required for adults facing the ultimate penalty.

A. The Eighth Amendment requires that offenders facing the ultimate penalty be

afforded enhanced procedural protections; La. C.Cr.P. art. 878.1 lacks these

protections and therefore is unconstitutional.

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The Eighth and Fourteenth Amendments require that the ultimate penaltythe death

penalty for adult offenders, and life without parole for youth offendersbe imposed only under

the strictest of procedural due process protections. See, e.g., Roper v. Simmons, 543 U.S. 551,

568 (2005) (Because the death penalty is the most severe punishment, the Eighth Amendment

applies to it with special force.). The Eighth Amendment requirement of enhanced due process

stems from the constitutional imperative that any punishment conforms to evolving standards of

decency and reflect the heightened need for reliability in capital sentencing. See e.g., Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (finding that the qualitative difference between death and other

penalties calls for a greater degree of reliability when the death sentence is imposed); Woodson

v. N. Carolina, 428 U.S. 280, 305 (plurality opinion) ([B]ecause of th[e] qualitative difference

[of the death sentence,] there is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment in a specific case.).

The United States Supreme Court affords this same level of procedural protection to

juveniles who are facing a possible sentence of life without the possibility of parole. See Miller,

132 S. Ct. at 2466 ([B]ecause we viewed this ultimate penalty for juveniles as akin to the death

penalty, we treat it similarly to that most severe punishment.). These enhanced procedural

protections are paramount because they help to ensure that the sentencing decision is based on

facts and reason and is not tainted by arbitrary factors such as race or emotion. See Godfrey v.

Georgia, 446 U.S. 420, 433 (1980) (ruling that it is of vital importance to the defendant and to

the community that any decision to impose the death sentence be, and appear to be, based on

reason rather than caprice or emotion); State v. James, 431 So. 2d 399, 408 (La. 1983) ([T]he

legislature is under a constitutional mandate to provide clear and objective standards for

channeling a jury's discretion so as to prevent the arbitrary and capricious imposition of the death

penalty.).

Indeed, the absence of clear standards and legislative direction specifying the

circumstances under which a convicted defendant may be sentenced to death led the Court to

invalidate state capital sentencing regimes in Furman v. Georgia, 408 U.S. 238, 239 (1972).

While Furman itself was a splintered decision, later Supreme Court decisions have clarified the

manner in which capital punishment regimes must operate in accordance with the Eighth

Amendment. For example, the Court explained that channeling the sentencers discretion through

5

clear standards was of utmost constitutional importance:

Furman held that Georgia's then-standardless capital punishment statute was being

applied in an arbitrary and capricious manner; there was no principled means

provided to distinguish those that received the penalty from those that did

not. . . . Since Furman, our cases have insisted that the channeling and limiting of

the sentencer's discretion in imposing the death penalty is a fundamental

constitutional requirement for sufficiently minimizing the risk of wholly arbitrary

and capricious action.

Maynard v. Cartwright, 486 U.S. 356, 362 (1988) (emphasis added). See also Gregg v. Georgia,

428 U.S. 153, 189 (1976) (judgment of the court and opinion of Justices Stewart, Powell,

Stevens) (finding that the sentencing authoritys discretion must be suitably directed and limited

so as to minimize the risk of wholly arbitrary and capricious action); Tuilaepa v. California, 512

U.S. 967, 973 (1994) (The State must ensure that the process is neutral and principled so as to

guard against bias or caprice in the sentencing decision.).

One of the most important ways capital regimes limit sentencing discretion for this

ultimate penalty is through limiting its applicability to those offenders who commit a narrow

category of the most serious crimes and whose extreme culpability makes them the most

deserving of execution. Roper, 543 U.S. at 568. The Court has accordingly found that the

ultimate penalty violates the Eighth Amendments prohibition against cruel and unusual

punishment as applied to certain categories of offenses and offenders. See Coker v. Georgia, 433

U.S. 584, 586 (1977) (capital punishment may not be imposed for non-homicide offenses such as

rape of an adult woman); Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (capital punishment

may not be imposed for non-homicide offenses such as rape of a child); Atkins v. Virginia, 536

U.S. 304, 321 (2002) (capital punishment may not be imposed on offenders with intellectual

disability/mental retardation); Roper, 543 U.S. at 575 (capital punishment may not be imposed

on youth offenders).

Louisiana has brought its capital punishment regime into accordance with these standards

by tailoring the sentencing process to limit the potential for bias and emotion to influence the

ultimate sentencing decision. See La. C.Cr.P. art 905 et seq. Statutory provisions limiting the

application of the ultimate penalty to the worst offenders with the worst cases further protect the

constitutionality of Louisianas capital punishment regime. Only first degree murders expose

their perpetrators to a possible death sentence. See La. R.S. 14:30. States further channel

sentencing discretion by limiting the ultimate penalty to murders in which a jury finds beyond a

6

reasonable doubt that at least one statutorily enumerated aggravating circumstance applies. See

La. C. Cr. P. art. 905.4. Louisianas capital sentencing regime remains constitutional because it

provides nearly unlimited opportunities for presenting mitigating evidence. See La. C. Cr. P. art.

905.5. Finally, Louisianas capital regime has one last safety valve to ensure against cruel and

unusual imposition of the death penalty: the Louisiana Supreme Court, in addition to ruling on a

capitally-sentenced offenders direct appeal, also performs a proportionality review to ensure that

the sentence is appropriate given the circumstances of the offense and the character of the

offender. See La. C.Cr.P. art 905.9, La. S. Ct. R. XXVIII.

For youth offenders, a sentence of life without the possibility of parole is the equivalent

of capital punishment for adults (See Miller, supra). Therefore, the sentencing procedure for

juveniles facing life without parole must provide all the same procedural safeguards as against

the arbitrary and capricious imposition of capital punishment. See Miller, 132 S. Ct. at 2466. La.

C.Cr.P. art. 878.1, falls far short of these Eighth and Fourteenth Amendment heightened due

process requirements. The statute, which provides just two paragraphs of undetailed, nonspecific

information about what a sentencing hearing should entail, amounts to a

standardlesspunishment statute which is applied in an arbitrary and capricious manner and

which provides no principled means to distinguish those that receive the penalty from those

that [do] not. See Cartwright, 486 U.S. at 362.

La. C.Cr.P. art. 878.1 is unconstitutional because it fails to conform in important and

specific ways to the Eighth and Fourteenth Amendment due process requirements for the

ultimate punishment for the following reasons:

1. First, young offenders convicted of second degree murder, categorically not the

worst of the worst murders or offenders, are exposed to the ultimate

punishment;

2. La. C.Cr.P. art. 878.1 fails to enumerate statutory aggravating circumstances to

channel sentencing discretion; neither does it require the sentencing authority to

find beyond a reasonable doubt that any such aggravating circumstances apply

before it may sentence a youth offender to life without parole;

3 The statute neither ensures sufficient opportunity to present mitigating evidence

nor does it inform the decision-maker how properly to weigh such evidence; and

4 The statute fails to provide for proportionality review to further ensure that the

ultimate penalty for young offenders is not inflicted on the basis of arbitrary

factors. Therefore, La. C.Cr.P. art. 878.1 is unconstitutional.

B. The legislature has failed to give the sentencing authority sufficient guidance in

narrowing the pool of young offenders who are constitutionally deserving of the

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ultimate penalty to the worst of the worst.

La. C.Cr.P. art. 878.1, violates the Eighth Amendment because it fails to give judges and

juries critical guidance in narrowing the pool of young offenders who, because they have been

convicted of murder, are at risk of receiving a sentence of life without the possibility parole and

providing a principled way of distinguishing those who actually receive the penalty from those

who do not. See Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980).

To pass constitutional muster, a states capital sentencing regime must genuinely narrow

the class of persons eligible for the death penalty. Lowenfield v. Phelps, 484 U.S. 231, 244

(1988) quoting Zant v. Stephens, 462 U.S. 862, 877 (1983). This requires state legislatures to

provide clear guidance and a meaningful basis for distinguishing the few cases in which the

penalty is imposed from the many cases in which it is not. Godfrey, 446 U.S. at 427-28, quoting

Gregg v. Georgia, 428 U.S. 153, 187 (1976) quoting Furman, 408 U.S. at 313 (White, J.,

concurring). That means that in each case where an offender is sentenced to the ultimate penalty,

the state sentencing scheme must reasonably justify the imposition of a more severe sentence on

the defendant compared to others found guilty of murder. Lowenfield, 484 U.S. at 244 (1988);

see also State v. David, 468 So. 2d 1126, 1129 (La. 1984) supplemented, 468 So. 2d 1133 (La.

1985) ([T]he jury's discretion must be circumscribed by legislative guidelines which genuinely

narrow the class of persons eligible for the death penalty and which reasonably justify the

imposition of the ultimate sentence on a particular defendant as compared to a lesser penalty for

others found guilty of murder.).

Louisianas capital sentencing scheme accomplishes this constitutionally-required

narrowing in two ways: first, only a small subsection of murders, first degree murders, render

their perpetrator eligible for the death penalty. See La. R.S. 14:30; Lowenfield, 484 U.S. at 246

(finding that the Louisiana legislatures narrow definition of capital offenses narrows the pool

of death-eligible offenders). The legislature conforms to constitutional requirements by further

narrowing the pool of death-eligible offenders by requiring sentencing phase-jurors additionally

to find, both unanimously and beyond a reasonable doubt, that at least one statutory aggravating

circumstance applies before they may sentence an offender to death. See La. C.Cr.P. art 905.41;

1 La. C.Cr.P. art 905.4 provides as follows:

A. The following shall be considered aggravating circumstances:

(1) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape,

aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault

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La. C.Cr.P. 905.3; Lowenfield, 484 U.S. at 244 ([S]tatutory aggravating circumstances play a

constitutionally necessary function at the stage of legislative definition: they circumscribe the

class of persons eligible for the death penalty.). Such aggravating circumstances must not be too

broad or too vague so as to encompass all murders. See Godfrey, 446 U.S. at 428-29 (1980)

(invalidating Georgias outrageously or wantonly vile, horrible and inhuman aggravating

circumstance because a person of ordinary sensibility could fairly characterize almost every

murder in such a way); Arave v. Creech, 507 U.S. 463, 474 (1993) citing Cartwright, 486 U.S.

at 364 (If the sentencer fairly could conclude that an aggravating circumstance applies to every

defendant eligible for the death penalty, the circumstance is constitutionally infirm.).

La. C.Cr.P. art. 878.1 is unconstitutional because it provides no guidance to the sentencing

authority about which facts and circumstances can be aggravating, and in fact allows the

decision-maker to consider any aggravating evidence. La. C.Cr.P. art. 878.1(B). This is in

direct violation of the Eighth Amendment and the Supreme Courts jurisprudence requiring

narrow, clearly-defined, statutorily enumerated aggravating circumstances to channel sentencing

discretion and to protect against arbitrary infliction of the ultimate penalty. See Godfrey, 446

U.S. at 427.

For these reasons, discussed below, and for any other reason that may occur to this Honorable

Court, undersigned counsel respectfully requests that this Court declare La. C.Cr.P. art. 878.1

by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to

juveniles, second degree cruelty to juveniles, or terrorism.

(2) The victim was a fireman or peace officer engaged in his lawful duties.

(3) The offender has been previously convicted of an unrelated murder, aggravated rape, aggravated burglary,

aggravated arson, aggravated escape, armed robbery, or aggravated kidnapping.

(4) The offender knowingly created a risk of death or great bodily harm to more than one person.

(5) The offender offered or has been offered or has given or received anything of value for the commission of the

offense.

(6) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an

unrelated forcible felony.

(7) The offense was committed in an especially heinous, atrocious or cruel manner.

(8) The victim was a witness in a prosecution against the defendant, gave material assistance to the state in any

investigation or prosecution of the defendant, or was an eye witness to a crime alleged to have been committed by

the defendant or possessed other material evidence against the defendant.

(9) The victim was a correctional officer or any employee of the Department of Public Safety and Corrections who,

in the normal course of his employment was required to come in close contact with persons incarcerated in a state

prison facility, and the victim was engaged in his lawful duties at the time of the offense.

(10) The victim was under the age of twelve years or sixty-five years of age or older.

(11) The offender was engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a

controlled dangerous substance listed in Schedule I, II, III, IV, or V of the Uniform Controlled Dangerous

Substances Law.1

(12) The offender was engaged in the activities prohibited by R.S. 14:107.1(C)(1).

(13) The offender has knowingly killed two or more persons in a series of separate incidents.

B. For the purposes of Paragraph A(2) herein, the term peace officer is defined to include any constable, marshal,

deputy marshal, sheriff, deputy sheriff, local or state policeman, commissioned wildlife enforcement agent, federal

law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant

attorney general, attorney general's investigator, district attorney, assistant district attorney, or district attorney's

investigator.

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unconstitutional and, in the absence of a constitutional sentencing scheme, hold that the accused

may not be sentenced to life without the possibility of parole.

C. La. C.Cr.P art. 878.1 violates the Eighth Amendment because it lacks procedural

safeguards to ensure a reasoned, non-arbitrary sentencing determination for youth

offenders.

Because life without the possibility of parole is the ultimate penalty for a youth offender,

the hearings in which these sentences are imposed on juveniles must afford increased procedural

protections to ensure reliability; that is, the hearing must ensure that only the most culpable youth

offenders are sentenced to the ultimate penalty. La. C.Cr.P. art. 878.1 does not ensure these

protections, and it is therefore unconstitutional.

1. Life without parole is the ultimate penalty for juvenile defendants; juveniles

facing the possibility of this ultimate penalty are due the same procedural

safeguards as adults facing the death penalty

Just as the ultimate punishment for adults is the death penalty, the ultimate punishment

for juveniles is life without parole. The Supreme Court has made clear that the two ultimate

penalt[ies], life without parole for juveniles, and death for adults, should be treated analogously.

Miller 132 S. Ct. at 2466 ([B]ecause we view this ultimate penalty for juveniles akin to the

death penalty, we treat it similarly to that most severe punishment.). The Courts decision in

Miller further signaled that courts and legislatures should treat life without parole for juveniles

like this Courts cases treat the death penalty. Id. at 2459 (citing with approval the Courts prior

approach to life without parole sentences for juvenile offenders). Where state legislatures provide

differing procedural safeguards, or fail to bring protections for children up to the level of those

provided to adults, they are out of step with the Supreme Courts jurisprudence, and all

prosecutions which occur in the absence of those safeguards represent unconstitutional

infringements upon the youth offenders rights.

In large part, the Supreme Courts edict that juvenile defendants facing the possibility of

life without parole be awarded the same procedural safeguards as adults facing capital

punishment stems from the notion that youth matters for purposes of meting out the law's most

serious punishments. Miller, 132 S.Ct at 2471. Youth matters because children have an

underdeveloped sense of responsibility leading to recklessness, impulsivity, and headless risk-

taking, [because] children are more vulnerable to negative influences and outside pressures,

[and because] a childs character is not as well formed as an adults. Id at 2459.

10

For these significant reasons, youthfulness diminishes the penological justifications for

imposing the harshest punishment on juvenile offenders, even when they commit terrible

crimes. Id. at 2465. See also Roper v. Simmons, 543 U.S. 551, 571 (Once the diminished

culpability of juveniles is recognized, it is evident that the penological justifications for the death

penalty apply to them with lesser force than to adults.).

Like the death penalty, life without parole is an irrevocable forfeiture that deprives the

convict of the most basic liberties without giving hope of restoration. Graham v. Florida, 560

U.S. 48, 69-70 (2010). Life without parole means denial of hope; it means that good behavior

and character improvement are immaterial; it means that whatever future might be held in store

for the mind and spirit of [the youth offender], he will remain in prison for the rest of his days.

Graham, 560 U.S. at 70 (quoting Naovarath v. State, 779 P.2d 944 (Nev. 1989) (internal

quotations omitted)). Because life without parole is at odds with how the law sees and science

assesses youth, the Court makes clear that it may only be imposed upon juveniles who commit

the worst types of murder. Miller, 132 S.Ct. at 2481. The Constitution allows only one method

for identifying the the worst defendants facing sentencing in the shadow of the ultimate

penalty: juveniles facing the ultimate penalty must be afforded the same strict protections

required for adults facing the ultimate penalty.

2. The Eighth Amendment requires that offenders facing the ultimate penalty

be afforded enhanced procedural protections; La. C.Cr.P. art. 878.1 lacks

these protections and therefore is unconstitutional.

The Eighth and Fourteenth Amendments require that the ultimate penaltythe death

penalty for adult offenders, and life without parole for youth offendersbe imposed only under

the strictest of procedural due process protections. See, e.g. Roper v. Simmons, 543 U.S. 551,

568 (2005) (Because the death penalty is the most severe punishment, the Eighth Amendment

applies to it with special force.). The Eighth Amendment requirement of enhanced due process

stems from the constitutional imperative that punishments conform to evolving standards of

decency and reflect the heightened need for reliability in capital sentencing. See e.g., Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (finding that the qualitative difference between death and other

penalties calls for a greater degree of reliability when the death sentence is imposed); Woodson

v. N. Carolina, 428 U.S. 280, 305 (plurality opinion) ([B]ecause of th[e] qualitative difference

11

[of the death sentence,] there is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment in a specific case.).

The United States Supreme Court affords this same level of procedural protection to

juveniles who are facing a possible sentence of life without the possibility of parole. See Miller,

132 S. Ct. at 2466 ([B]ecause we viewed this ultimate penalty for juveniles as akin to the death

penalty, we treat it similarly to that most severe punishment.). These enhanced procedural

protections are paramount because they help to ensure that the sentencing decision is based on

facts and reason and is not tainted by arbitrary factors such as race or emotion. See Godfrey v.

Georgia, 446 U.S. 420, 433 (1980) (ruling that it is of vital importance to the defendant and to

the community that any decision to impose the death sentence be, and appear to be, based on

reason rather than caprice or emotion); State v. James, 431 So. 2d 399, 408 (La. 1983) ([T]he

legislature is under a constitutional mandate to provide clear and objective standards for

channeling a jury's discretion so as to prevent the arbitrary and capricious imposition of the death

penalty.).

The absence of clear standards and legislative direction specifying the circumstances

under which a convicted defendant may be sentenced to death led the Court to invalidate state

capital sentencing regimes in Furman v. Georgia, 408 U.S. 238, 239 (1972). While Furman itself

was a splintered decision, later Supreme Court decisions have clarified the manner in which

capital punishment regimes must operate in accordance with the Eighth Amendment. For

example, the Court explained that channeling the sentencers discretion through clear standards

was of utmost constitutional importance:

Furman held that Georgia's then-standardless capital punishment statute was being

applied in an arbitrary and capricious manner; there was no principled means

provided to distinguish those that received the penalty from those that did

not. . . . Since Furman, our cases have insisted that the channeling and limiting of

the sentencer's discretion in imposing the death penalty is a fundamental

constitutional requirement for sufficiently minimizing the risk of wholly arbitrary

and capricious action.

Maynard v. Cartwright, 486 U.S. 356, 362 (1988) (emphasis added). See also Gregg v. Georgia,

428 U.S. 153, 189 (1976) (judgment of the court and opinion of Justices Stewart, Powell,

Stevens) (finding that the sentencing authoritys discretion must be suitably directed and limited

so as to minimize the risk of wholly arbitrary and capricious action); Tuilaepa v. California, 512

U.S. 967, 973 (1994) (The State must ensure that the process is neutral and principled so as to

12

guard against bias or caprice in the sentencing decision.).

One of the most important ways capital regimes limit sentencing discretion for this

ultimate penalty is through limiting its applicability to those offenders who commit a narrow

category of the most serious crimes and whose extreme culpability makes them the most

deserving of execution. Roper, 543 U.S. at 568. The Court has accordingly found that the

ultimate penalty violates the Eighth Amendments prohibition against cruel and unusual

punishment as applied to certain categories of offenses and offenders. See Coker v. Georgia, 433

U.S. 584, 586 (1977) (capital punishment may not be imposed for non-homicide offenses such as

rape of an adult woman); Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (capital punishment

may not be imposed for non-homicide offenses such as rape of a child); Atkins v. Virginia, 536

U.S. 304, 321 (2002) (capital punishment may not be imposed on offenders with intellectual

disability/mental retardation); Roper, 543 U.S. at 575 (capital punishment may not be imposed

on youth offenders).

Louisiana brought its capital punishment regime in accordance with these standards by

tailoring the sentencing process to limit the potential for bias and emotion to influence the

ultimate sentencing decision. See La. C.Cr.P. art 905 et seq. Statutory provisions limiting the

application of the ultimate penalty to the worst offenders with the worst cases further protect the

constitutionality of Louisianas capital punishment regime. Only first degree murders expose

their perpetrators to a possible death sentence. See La. R.S. 14:30. States further channel

sentencing discretion by limiting the ultimate penalty to murders in which a jury finds beyond a

reasonable doubt that at least one statutorily enumerated aggravating circumstance applies. See

La. C. Cr. P. art. 905.4. Louisianas capital sentencing regime remains constitutional because it

provides nearly unlimited opportunities for presenting mitigating evidence. See La. C. Cr. P. art.

905.5. Finally, Louisianas capital regime has one last safety valve to ensure against cruel and

unusual imposition of the death penalty: the Louisiana Supreme Court, in addition to ruling on a

capitally-sentenced offenders direct appeal, also performs a proportionality review to ensure that

the sentence is appropriate given the circumstances of the offense and the character of the

offender. See La. C.Cr.P. art 905.9, La. S. Ct. R. XXVIII.

For youth offenders, a sentence of life without the possibility of parole is the equivalent

of capital punishment for adults (see Miller, supra); therefore, the sentencing procedure for

13

juveniles facing life without parole must provide all the same procedural safeguards against

arbitrary and capricious imposition of capital punishment. See Miller, 132 S. Ct. at 2466. La.

C.Cr.P. art. 878.1, falls far short of these Eighth and Fourteenth Amendment heightened due

process requirements. The statute, which provides just two paragraphs of undetailed, nonspecific

information about what a sentencing hearing should entail, amounts to a standardless . . .

punishment statute which is applied in an arbitrary and capricious manner and which provides

no principled means . . . to distinguish those that receive the penalty from those that [do] not.

See Cartwright, 486 U.S. at 362.

3. The legislature has failed to give the sentencing authority sufficient guidance

in narrowing the pool of youth offenders who are constitutionally deserving

of the ultimate penalty to the worst of the worst.

La. C.Cr.P. art. 878.1, violates the Eighth Amendment because it fails to give judges and

juries critical guidance in narrowing the pool of youth offenders who, because they have been

convicted of murder, are at risk of receiving a sentence of life without the possibility parole and

providing a principled way of distinguishing those who actually receive the penalty from those

who do not. See Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980).

To pass constitutional muster, a states capital sentencing regime must genuinely narrow

the class of persons eligible for the death penalty. Lowenfield v. Phelps, 484 U.S. 231, 244

(1988) quoting Zant v. Stephens, 462 U.S. 862, 877 (1983). This requires state legislatures to

provide clear guidance and a meaningful basis for distinguishing the few cases in which the

penalty is imposed from the many cases in which it is not. Godfrey, 446 U.S. at 427-28, quoting

Gregg v. Georgia, 428 U.S. 153, 187 (1976) quoting Furman, 408 U.S. at 313 (White, J.,

concurring). That means that in each case where an offender is sentenced to the ultimate penalty,

the state sentencing scheme must reasonably justify the imposition of a more severe sentence on

the defendant compared to others found guilty of murder. Lowenfield, 484 U.S. at, 244 (1988);

see also State v. David, 468 So. 2d 1126, 1129 (La. 1984) supplemented, 468 So. 2d 1133 (La.

1985) ([T]he jury's discretion must be circumscribed by legislative guidelines which genuinely

narrow the class of persons eligible for the death penalty and which reasonably justify the

imposition of the ultimate sentence on a particular defendant as compared to a lesser penalty for

others found guilty of murder.).

Louisianas capital sentencing scheme accomplishes this constitutionally-required

14

narrowing in two ways: first, only a small subsection of murders, first degree murders, render

their perpetrator eligible for the death penalty. See La. R.S. 14:30; Lowenfield, 484 U.S. at 246

(finding that the Louisiana legislatures narrow definition of capital offenses narrows the pool

of death-eligible offenders). The legislature conforms to constitutional requirements by further

narrowing the pool of death-eligible offenders by requiring sentencing phase-jurors additionally

to find, unanimously, and beyond a reasonable doubt, that at least one statutory aggravating

circumstance applies before they may sentence an offender to death. See La. C.Cr.P. art 905.41;

La. C.Cr.P. 905.3; Lowenfield, 484 U.S. at 244 ([S]tatutory aggravating circumstances play a

constitutionally necessary function at the stage of legislative definition: they circumscribe the

class of persons eligible for the death penalty.). Such aggravating circumstances must not be too

broad or too vague so as to encompass all murders. See Godfrey, 446 U.S. at 428-29 (1980)

(invalidating Georgias outrageously or wantonly vile, horrible and inhuman aggravating

circumstance because a person of ordinary sensibility could fairly characterize almost every

murder in such a way); Arave v. Creech, 507 U.S. 463, 474 (1993) citing Cartwright, 486 U.S.

at 364 (If the sentencer fairly could conclude that an aggravating circumstance applies to every

defendant eligible for the death penalty, the circumstance is constitutionally infirm.).

1 La. C.Cr.P. art 905.4 provides as follows:

A. The following shall be considered aggravating circumstances:

(1) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape,

aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault

by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to

juveniles, second degree cruelty to juveniles, or terrorism.

(2) The victim was a fireman or peace officer engaged in his lawful duties.

(3) The offender has been previously convicted of an unrelated murder, aggravated rape, aggravated burglary,

aggravated arson, aggravated escape, armed robbery, or aggravated kidnapping.

(4) The offender knowingly created a risk of death or great bodily harm to more than one person.

(5) The offender offered or has been offered or has given or received anything of value for the commission of the

offense.

(6) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an

unrelated forcible felony.

(7) The offense was committed in an especially heinous, atrocious or cruel manner.

(8) The victim was a witness in a prosecution against the defendant, gave material assistance to the state in any

investigation or prosecution of the defendant, or was an eye witness to a crime alleged to have been committed by

the defendant or possessed other material evidence against the defendant.

(9) The victim was a correctional officer or any employee of the Department of Public Safety and Corrections who,

in the normal course of his employment was required to come in close contact with persons incarcerated in a state

prison facility, and the victim was engaged in his lawful duties at the time of the offense.

(10) The victim was under the age of twelve years or sixty-five years of age or older.

(11) The offender was engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a

controlled dangerous substance listed in Schedule I, II, III, IV, or V of the Uniform Controlled Dangerous

Substances Law.1

(12) The offender was engaged in the activities prohibited by R.S. 14:107.1(C)(1).

(13) The offender has knowingly killed two or more persons in a series of separate incidents.

B. For the purposes of Paragraph A(2) herein, the term peace officer is defined to include any constable, marshal,

deputy marshal, sheriff, deputy sheriff, local or state policeman, commissioned wildlife enforcement agent, federal

law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant

attorney general, attorney general's investigator, district attorney, assistant district attorney, or district attorney's

investigator.

15

La. C.Cr.P. art. 878.1 is unconstitutional because it provides no guidance to the

sentencing authority about which facts and circumstances can be aggravating, and in fact allows

the decision-maker to consider any aggravating evidence. This is in direct violation of the

Eighth Amendment and the Supreme Courts jurisprudence requiring narrow, clearly-defined,

statutorily enumerated aggravating circumstances to channel sentencing discretion and to ensure

against arbitrary infliction of the ultimate penalty. See Godfrey, 446 U.S. at 428 (state capital

sentencing schemes must channel the sentencer's discretion by clear and objective standards that

provide specific and detailed guidance and that make rationally reviewable the process for

imposing a sentence of death).

Further, the statute is unconstitutional because it allows youth offenders who are

convicted of second degree murder, by definition not among the most serious murders, to be

sentenced to the ultimate penalty for a juvenile. This failing is not cured at the sentencing phase

because the sentencing statute fails to require the decision-maker to find beyond a reasonable

doubt that a youth offender had specific intent to kill.

La. C.Cr.P. art. 878.1 provides in pertinent part:

At the hearing, the prosecution and defense shall be allowed to introduce any

aggravating and mitigating evidence that is relevant to the charged offense or the

character of the offender, including but not limited to the facts and circumstances

of the crime, the criminal history of the offender, the offender's level of family

support, social history, and such other factors as the court may deem relevant.

Sentences imposed without parole eligibility should normally be reserved for the

worst offenders and the worst cases.

Perhaps most problematic, the statute allows the state to introduce, and the sentencing

authority to consider, any aggravating evidence. This broad allowance directly violates the

Eighth Amendment. The Amendment requires specific and detailed guidance that makes

rationally reviewable the process for imposing the harshest available penalty. See Godfrey, 446

U.S. at 428. In Godfrey, the Supreme Court rejected as unconstitutionally vague Georgias

outrageously or wantonly vile, horrible and inhuman aggravating circumstance. Id. Because a

statute that provides insufficient or vague guidance in making the ultimate decision on

punishment is unconstitutional. La. C.Cr.P. art. 878.1, which provides absolutely no guidance to

channel sentencing discretion, is a fortiori unconstitutional, and this Court must invalidate it.

Gregg and Godfrey mandate that this Court declare La. C.Cr.P. art. 878.1 unconstitutional

because without a clearly defined list of aggravating circumstances that narrow the pool of

16

juveniles convicted of murder who are eligible for the harshest sentence, the statute violates the

Eighth Amendment. Without such enumerated factors, and without a requirement that the State

specify which factors it will attempt to prove, and that jurors specify which they find apply

beyond a reasonable doubt, the statutes sentencing scheme violates the Eighth Amendment. See

Gregg v. Georgia, 428 U.S. at 195 (judgment of the Court and opinion of Justices Stewart,

Powell, Stevens) (Where the sentencing authority is required to specify the factors it relied upon

in reaching its decision, the further safeguard of meaningful appellate review is available to

ensure that death sentences are not imposed capriciously or in a freakish manner.).

Finally, La. C.Cr.P. art. 878.1 fails because it does not require that the sentencing

authority find that a young offender had the specific intent to kill. The Eighth Amendment

forbids a youth offender from being sentenced to life without parole unless a jury finds he killed

or intended to kill the decedentthe Eighth Amendment as interpreted in Graham forbids [a life

without parole sentence] regardless of whether its application is mandatory or discretionary under

state law. Miller, 132 S. Ct. at 2475 (Breyer, J., concurring). Youth offenders who did not have

the specific intent to kill are not among the worst offenders with the worst cases.

The bare-bones sentencing procedure outlined in La. C.Cr.P. art. 878.1 is in violation of

the Eighth and Fourteenth Amendments. Applying it allows, and in fact requires, standardless

sentencing discretion to impose the harshest available punishments, which the Louisiana and

United States Supreme Courts have repeatedly found antithetical to a reasoned, non-arbitrary

decision. As in the capital context, a state wishing to impose life without the possibility of parole

sentences on youth offenders have a constitutional responsibility to tailor and apply its law in a

manner that avoids the arbitrary and capricious infliction of that penalty. See Godfrey, 446 U.S.

at 428. La. C.Cr.P. art. 878.1 amounts to standards so vague that theyfail adequately to

channel the sentencing decision patterns of juries; as a result, a pattern of arbitrary and

capricious sentencing like that found unconstitutional in Furman has occurred and will continue

to occur until the statute is declared unconstitutional. Id. Therefore, this court must declare La.

C.Cr.P. art. 878.1 unconstitutional.

4. The young offender sentencing statute is unconstitutional because it does not

provide for proportionality review.

While its not an absolute requirement, proportionality review has played an important

17

role in insulating some states capital punishment schemes from constitutional attack. For

example, in Gregg, the Court upheld Georgias sentencing regime because it properly narrowed

the pool of death-eligible crimes and offenders, and, importantly, required that the state supreme

court examine each sentence for excessiveness and influence from arbitrary factors. The

provision for appellate review in the Georgia capital-sentencing system serves as a check against

the random or arbitrary imposition of the death penalty, the Court held. In particular, the

proportionality review substantially eliminates the possibility that a person will be sentenced to

die by the action of an aberrant jury. Gregg, 428 U.S. 153, 206 (1976) (plurality opinion).

Similarly, in Louisiana, comparative proportionality review remains a relevant

consideration in determining the issue of excessiveness. State v. Davis, 637 So. 2d 1012, 1030-

31 (La. 1994). In capital cases, the Louisiana Supreme Court reviews every death sentence to

determine if it is excessive. La. C.Cr.P. art. 905.9. The procedure for this review process is set

out in Louisiana Supreme Court Rule XXVIII 1,which provides in relevant part:

In determining whether the sentence is excessive the court shall determine:

(a) whether the sentence was imposed under the influence of passion, prejudice or

any other arbitrary factors, and

(b) whether the evidence supports the jury's finding of a statutory aggravating

circumstance, and

(c) whether the sentence is disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant

La. C.Cr.P. art. 878.1 provides no parallel proportionality review process for the ultimate

penalty for youth offenders. Indeed, the prior cases resulting in life without parole sentences for

offenders who were under the age of eighteen at the time of the offense involved second degree

murders. See Brooks, 139 So. 3d at 577; State v. Smoot, 134 So. 3d at 2. Second degree

murders, and those who perpetrate them, by definition, do not present the worst cases with the

most culpable offenders. The lack of a safety valve to examine these disproportionate penalties

reveals a critical constitutional error in Art. 878.1. This court must accordingly declare the statute

unconstitutional.

La. C.Cr.P. art. 878.1 fails to provide adequate guidance to channel the decision makers

sentencing discretion, fails to adequately provide for full individualization of the sentence

imposed, and lacks the safety valve of proportionality review. As in the pre-Furman/Gregg era of

the death penalty, Louisianas post-Miller youth offender sentencing statute provides no

18

principled means . . . to distinguish those that receive[d] the penalty from those that d[o] not.

See Cartwright, 486 U.S. at 362. The sentencing scheme lacks entirely the channeling and

limiting of the sentencer's discretion which is a fundamental constitutional requirement for

sufficiently minimizing the risk of wholly arbitrary and capricious action. Id. Because the statute

lacks the necessary hallmarks of heightened procedural reliability required by the Eighth and

Fourteenth Amendments, this court must declare it unconstitutional.

5. The Statute is Unconstitutional Because There is a National Consensus

Against Sentencing Youth Offenders to Life Without the Possibility of

Parole.

La. C.Cr.P.art. 878.1 violates the Eighth and Fourteenth Amendments ban on cruel and

unusual punishment because there is a national consensus that youth who were under the age of

18 at the time of the alleged offense should not receive a sentence that allows no possible hope

for future release. The U.S. Supreme Court cautioned that appropriate occasions for sentencing

juveniles to this harshest possible penalty [of life without the possibility of parole] will be

uncommon. Miller, 132 S. Ct. at 2469. As Justice Douglas observed in Furman, and as the

Courts majority has ruled time and time again when it placed categorical limits on the types of

offenses and offenders that may be sentenced to death, the Eighth Amendment must draw its

meaning from the evolving standards of decency that mark the progress of a maturing society.

Furman, 408 U.S. at 242 (Douglas, J., concurring). Since Miller, states have reconsidered their

youth offender sentencing schemes, and the evidence shows a pattern of rejection of juvenile life

without the possibility of parole sentences. It is not so much the number of these States that is

significant, but the consistency of the direction of change that demonstrates that life without the

possibility of parole sentences for juveniles violate the Eighth Amendment. See Atkins, 536 U.S.

at 315.

When the U.S. Supreme Court considers the constitutionality of categorical sentencing

rules under the Eighth Amendment, it looks to objective indicia of consensus to inform the

Courts interpretation of the evolving standards of decency:

The prohibition against cruel and unusual punishmentsmust be interpreted

according to its text, by considering history, tradition, and precedent, and with due

regard for its purpose and function in the constitutional design. To implement this

framework we have established the propriety and affirmed the necessity of

referring to the evolving standards of decency that mark the progress of a

maturing society to determine which punishments are so disproportionate as to be

cruel and unusual.

19

The beginning point is a review of objective indicia of consensus, as expressed in

particular by the enactments of legislatures that have addressed the question.

These data give us essential instruction.

Roper, 543 U.S. at 563-64.

The Supreme Court followed this standard in Roper when it found the death penalty for

juveniles unconstitutional: The objective indicia of national consensus here; the rejection of the

juvenile death penalty in the majority of States; the infrequency of its use even where it remains

on the books; and the consistency in the trend toward abolition of the practice;provide[d]

sufficient evidence that today society views juveniles as categorically less culpable than the

average criminal[.] Roper, 543 U.S. at 552 (relying on Atkins, 536 U.S. at 36).

This information, it held, demonstrated the evolving standards of decency that mark the

progress of a maturing society. Roper, 543 U.S. at 561 (quoting Trop v. Dulles, 356 U.S. 86,

100101 (1958) (plurality opinion) (internal quotations omitted)).

It considered the same in Graham, reaffirming that [t]he clearest and most reliable

objective evidence of contemporary values is the legislation enacted by the countrys

legislatures. 560 U.S. at 62 (quoting Atkins, 536 U.S. at 312) (internal citations omitted). That

said, the Court did not go so far as to assume that legislatures who had failed to ban sentencing

juveniles to life without parole for non-homicide offenses condoned such practices. Although

the State in Graham argued that no national consensus existed against the juvenile life without

parole sentencing practice, the Court found such an argument incomplete and unavailing.

Graham, 560 U.S. at 62. At the time, it noted, only 123 juveniles in the entire country were

sentenced to life without parole for non-homicide offenses, 77 of which came from Florida, and

the rest of which came from only 10 other states. Graham, 560 U.S. at 64. In turn, the fact that

many jurisdictions did not prohibit the State from sentencing juveniles to life without parole for

non-homicide offenses did not undermine the evidence of consensus. Id. at 66. See also, e.g.,

Atkins, 536 U.S. at 311-12 (A claim that punishment is excessive is judged not by the standards

... when the Bill of Rights was adopted, but rather by those that currently prevail The basic

concept underlying the Eighth Amendment is nothing less than the dignity of man.); Kennedy

v. Louisiana, 554 U.S. 407, 438 opinion modified on denial of reh'g, 554 U.S. 945, 129 (2008).

The same holds here. La. C.Cr.P. art. 878.1 violates the Eighth and Fourteenth

20

Amendments ban on cruel and unusual punishment because there is a national consensus that

youth who were under the age of eighteen at the time of the alleged offense should not receive a

sentence that allows no possible hope for future release. The U.S. Supreme Court cautioned that

juveniles will rarely be deserving of life without the possibility of parole sentences. Miller, 132

S. Ct. at 2469. Since Miller, states have reconsidered their youth offender sentencing schemes,

and the evidence shows a pattern of rejection of juvenile life without the possibility of parole

sentences. Five states have eliminated juvenile life without parole sentences for certain

categories of children, and Colorado, Delaware, Hawaii, Massachusetts, Texas, West Virginia

and Wyoming responded to Miller by barring courts from sentencing juveniles to life without

parole. Whats more, 15 states and the District of Columbia do not have a single prisoner

serving a juvenile life without parole sentence. Of the remaining states, all but five of those

states have fewer than 100 juveniles incarcerated in the first place.

Even considering this overwhelming response to Miller, [i]t is not so much the number

of these States that is significant, but the consistency of the direction of change that

demonstrates that life without the possibility of parole sentences for juveniles violate the Eighth

Amendment. See Atkins, 536 U.S. at 315. After all, the Court has made clear that a legislatures

failure to outlaw an adult sentence for juveniles charged as adults does not justify a judgment

that many States intended to subject such offenders to life without parole sentences. Graham,

560 U.S. at 67. For example, the Graham Court said, under Florida law a child of any age can

be prosecuted as an adult for certain crimes and can be sentenced to life without parole.

[E]ven a 5-year-old, theoretically, could receive such a sentence under the letter of the law. All

would concede this to be unrealistic, but the example underscores that the statutory eligibility for

a juvenile offender for life without parole does not indicate that the penalty has been endorsed

through deliberate, express, and full legislative consideration. Id. at 67. See also Thompson v.

Oklahoma, 487 U.S. 815, 826 (1988) (Stevens, J., concurring) (When a legislature provides for

some 15-year-olds to be processed through the adult criminal justice system, and capital

punishment is available for adults in that jurisdiction, the death penalty becomes at least

theoretically applicable to such defendants [H]owever, it does not necessarily follow that the

legislatures in those jurisdictions have deliberately concluded that it would be appropriate.).

At the time that the Court decided Roper, this nation was the only one in the world

21

sentencing juveniles to the death penalty. Rather than ignoring the practices used across the

globe, the Court instead recognized that [i]t does not lessen fidelity to the Constitution or pride

in its origins to acknowledge that the express affirmation of certain fundamental rights by other

nations and peoples underscores the centrality of those same rights within our own heritage of

freedom. Roper, 543 U.S. at 554. We find our country now at the same crossroads. The United

States is the only country in the world sentencing young juveniles to life without parole

sentences. See Life Goes On: The Historic Rise of Life Sentences in America, The Sentencing

Project, September 2013, at 11.1 This, coupled with the national consensus, makes it even

clearer that sentencing juveniles to life without parole is a violation of the Eighth Amendment.

Therefore, this court must declare La. C.Cr.P. art. 878.1, a law that authorizes subjecting young

offenders to the sentence of life without the possibility of parole, unconstitutional.

D. The Court Has Insufficient Sentencing Discretion Under La. C.Cr.P. art. 878.1. and

Children Sentenced Under the Statute are not Provided with a Meaningful

Opportunity for Release

As previously discussed, sentencing a juvenile to life without parole is the equivalent to

sentencing an adult to capital punishment. Such a severe judicial determination must be

individualized within strict constitutional parameters, as discussed above, and should be made

within the judiciary; however, the statute gives the trial court insufficient discretion to sentence

juvenile offenders to an appropriate sentence that provides a meaningful opportunity for release.

1. La. C.Cr.P. art. 878.1 forces trial courts to consider juveniles in a context

that violates Roper, Graham, and Miller.

Since Ropers landmark ruling, the Supreme Court has continued to demonstrate its belief

that, particularly when it comes to juvenile offenders, the Eighth Amendment reaffirms the duty

of the government to respect the dignity of all[.] Roper, 543 U.S. at 560. It has continued to

demonstrate that a fundamental difference exists between juveniles and adults, and it has

continued to demonstrate that trial courts should consider that individual differences exist in each

child that comes before the court for sentencing. Ultimately, the Court in Miller held that

sentences of life without the opportunity for parole failed to provide the meaningful opportunity

for release mandated by its previous decision in Graham. Miller, 132 S. Ct. at 2469 (citing

Graham, 130 S. Ct. 2011). However, La. C.Cr.P. art. 878.1 accounts for none of these individual

1 For more information, see http://sentencingproject.org/doc/publications/inc_Life%20Goes%20On%202013.pdf.

22

differences at the trial level. To the contrary, the statute asks trial courts to write off all juveniles

convicted of murder as one class of irretrievable youth and simply distinguish which of those

youth should be allowed to hold on to a glimmer of hope in the form of potential parole after

thirty five years. This legislative mandate that juveniles convicted of murder must serve a life

sentence, with or without the possibility parole, denies the court the discretion to fully consider

the mitigating qualities of youth, and youth offenders potential for rehabilitation. Further, the

thirty-five year minimum sentence is, for all intents and purposes, a sentence of death in prison

for many youth. That is a not a meaningful opportunity for release, and is not constitutional.

2. Juveniles cannot be considered the worst offenders and therefore a sentence

of life without the possibility of parole is never appropriate.

Children are different. The Court in Roper agreed, deeming capital punishment for

children who committed offenses before they were 18 years old unconstitutional. The reality

that juveniles still struggle to define their identity, the Court said, 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. Roper, 543 U.S. at 570. In its wake, proponents of capital punishment, and

even its most zealous enemies across the aisle began to recognize that kids are, in fact, different.

La. C.Cr.P. art. 878.1 instructs trial courts in Louisiana that [s]entences imposed without

parole eligibility should normally be reserved for the worst offenders and the worst cases.

However, the Supreme Court has repeatedly held that juveniles are not and should not be

considered the worst of the worst. Not only, then, is this statute internally inconsistent, but it also

violates the very basis upon which Roper, Graham, and Miller were held: that juvenile offenders

cannot with reliability be classified among the worst offenders. Roper, 543 U.S. at 569.

In Roper, Graham, and Miller, the Supreme Court deemed certain burdens

unconstitutional for children under 18 years old because juveniles have diminished culpability

and greater prospects for reform. Miller, 132 S.Ct. at 2464. Additionally, the Court in Roper

outlined three factors that render suspect any conclusion that a juvenile falls among the worst

offenders. Id. at 570. These factors have been repeatedly reaffirmed in the decade since Roper:

First, children have a lack of maturity and an underdeveloped sense of

responsibility, leading to recklessness, impulsivity, and heedless risk-taking.

Second, children are more vulnerable ... to negative influences and outside

23

pressures, including from their family and peers; they have limited contro[l] over

their own environment and lack the ability to extricate themselves from horrific,

crime-producing settings. And third, a child's character is not as well formed as an

adult's; his traits are less fixed and his actions less likely to be evidence of

irretrievabl[e] deprav[ity].

Miller, 132 S.Ct. at 2464 (citing Roper, 543 U.S. at 569-70 (internal quotations omitted)).

Absent the ability to render a juvenile the worst type of offender, the trial court cannot

sentence any youth to life without the possibility of parole under La. C.Cr.P. art. 878.1.

3. Juveniles should not be handed harsher sentences than adults convicted of

similar crimes.

Both Graham and Roper held that since juveniles cannot be considered the worst

offenders, they are less deserving of the most severe punishments. Graham, 560 U.S. at 68

(relying on Roper, 543 U.S. at 569). Yet, the two punishments to which the trial court is

permitted to sentence a juvenile are the second and third most severe punishments available to an

adult defendant. See La. Rev. Stat. Ann. 14:30.1 Moreover, life without parole is also the most

severe punishment available to adults convicted of non-capital murder. Id. This is particularly

problematic since life without parole is an especially harsh punishment for a juvenile. Graham,

560 U.S. at 70. Unlike adults sentenced to life without parole, a child facing this will on average

serve more years and a greater percentage of his life in prison than an adult offender. Id. In fact,

the Court has said, [a] 16-year-old and a 75-year-old each sentenced to life without parole

receive the same punishment in name only. Id. Life without parole, therefore, should not be

eligible for juvenile offenders since [a juveniles] transgression is not as morally reprehensible

as that of an adult. Id. at 68 (quoting Thompson, 487 U.S. at 835).

4. Juvenile offenders cannot and should not be deemed irretrievable before they

are given the opportunity to mature and develop.

As previously stated, denying a child convicted of homicide the possibility of parole

means the denial of hope; it means that good behavior and character improvement are

immaterial; it means that whatever the future might hold in store for the mind and spirit of the

juvenile will not be enough to render that child worthy of a normal existence. Graham, 560 U.S.

1 Regarding the penalty phase for first degree murder:

(1) If the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at

hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of

the jury. The provisions of C.Cr.P. Art 782 relative to cases in which punishment may be capital shall apply.

(2) If the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard

labor without benefit of parole, probation or suspension of sentence. The provisions of C. Cr.P. Art 782 relative to

cases in which punishment is necessarily confinement at hard labor shall apply.

24

at 70 (quoting Naovarath v. State, 779 P.2d 944 (Nev. 1989) (internal quotations omitted)). Such

a harsh and irrevocable determination cannot be made before a child has even had a chance to

reform his or her behavior. Graham, 560 U.S. at 69.

Just as the Supreme Court has decided that juveniles cannot be deemed the worst of the

worst, the Court also warned against deeming juvenile offenders irreparable: 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. Id. at 72-73. And even if a juveniles behavior in

jail ultimately corroborated that initial judgment made at the time of sentencing, the Court said,

the sentence was still disproportionate because that judgment was made at the outset. Id. at 73.

Whats more, juveniles lack of maturity and susceptibility to negative influences, among

other characteristics, make it difficult even for expert psychologists to differentiate between the

juvenile offender whose crime reflects unfortunate yet transient immaturity, and the juvenile

offenders whose crime reflects irreparable corruption. Graham, 560 U.S. at 68 (relying on

Roper, 543 U.S. at 573). If an expert cannot make this distinction with reliability, a court absent

such expertise certainly should not be able to sentence a child to death in prison based on a gut

feeling. In order to deprive [the young offender] of the most basic liberties without giving hope

of restoration, the juvenile surely deserves more than a trial judges potentially emotionally-

charged reaction to what is likely to be emotionally-charged evidence. Graham, 560 U.S. at 69-

70 (relying on Solem, 463 U.S. at 300-301).

5. There is no valid penological purpose for sentencing a youth offender to life

without the possibility of parole.

The sole social purposes associated with capital punishment are twofold: (1) deterrence of

crimes by prospective offenders; and (2) retribution. Roper, 543 U.S. at 571 (citing Atkins, 536

U.S. at 319) (internal quotations omitted). The same standards apply to a juvenile sentence of

life without parole; as stated above, the Supreme Court has determined juvenile life without

parole to be equivalent to capital punishment for adults. However, the courts have found that

children cannot be held as responsible for their actions as adults can beand therefore, children

likely cannot be as easily, if at all, deterred, from their behaviors since peer pressure and factors

beyond their control can contribute so significantly to the youths criminal activity:

Deterrence does not suffice to justify the sentence [of juvenile life without

25

parole]. Roper noted that the same characteristics that render juveniles less

culpable than adults suggest that juveniles will be less susceptible to

deterrence.

Graham, 560 U.S. at 72 (quoting Roper, 543 U.S. at 571).

If a child cannot be held fully responsible for his or her actions, it is directly

counterintuitive to then say the childs behavior should have been deterred by the possibility of

life without parole. To the contrary, the Court has already determined that juveniles are less

likely to take a possible punishment into consideration when making decisions. Graham, 560

U.S. at 72. See also Miller, 132 S.Ct. at 2476 (Breyer, J., concurring) ([T]he ability to consider

the full consequences of a course of action and to adjust ones conduct accordingly is precisely

what we know juveniles lack to capacity to do effectively.).

As for retribution, the Court in Roper determined that [r]etribution is not proportional if

the law's most severe penalty is imposed on one whose culpability or blameworthiness is

diminished, to a substantial degree, by reason of youth and immaturity. Roper, 543 U.S. at 571.

Therefore, to sentence a juvenile to life without parole for retributive purposes is counter to

continuous determinations made by the Supreme Court since Roper. Because [t]he heart of the

retribution rationale relates to an offender's blameworthiness, the Court has said, the case for

retribution is not as strong with a minor as with an adult. Miller, 132 S.Ct. at 2466 (citing

Graham, 560 U.S. at 71) (internal quotations omitted).

Absent deterrence and retribution, the sentencing options provided to the trial court

through La. C.Cr.P. art. 878.1 fulfill neither purpose of sentencing a juvenile to life without

parole. The sentencing statute, therefore, is plainly unconstitutional.

6. Parole after Thirty-Five Years is not a Meaningful Opportunity for

Release

In Miller, the Supreme Court reaffirmed that the Constitution requires that a sentencing

statute for juveniles provide a meaningful opportunity for release. Miller, 132 S. Ct. at 2469.

La. C. Cr. P. art. 878.1 does not provide that opportunity. An opportunity for release can only be

meaningful if there is a reasonable likelihood that the child will live to have the opportunity.

Parole review after thirty-five years for a seventeen year old means that review first comes, at the

earliest, at age fifty-two. A sentencing hearing pursuant to La. C.Cr.P. art. 878.1 violates the

Separation of Powers Clause of the Constitution.

26

Under the Louisiana State Constitution, [e]xcept as otherwise provided by this

Constitution, no one of these branches, nor any person holding office in one of them, shall

exercise power belonging to either of the others. La. Const. art. II, 2. However, the legislature

has manipulated the sentencing of juvenile defendants in such a way that the judiciary is virtually

without power to consider the appropriate sentence for a child convicted of homicide when, as is

likely, a sentence less than life with the possibility of parole is appropriate. Rather, the fate of

juveniles sentenced under La. C.Cr.P. art. 878.1 is determined almost entirely by the legislature.

Under Louisiana law, as written by the Legislature, juveniles charged with first- or second degree

homicide undergo a direct transfer to adult court. See La. Child. Code Ann. art. 305.1 Unlike

children charged with other crimes, see id. at (B), a child charged with such an offense does not

have a right to a continued custody hearing. The statute, as written by the legislature, takes all

power away from the judiciary to find that juvenile court and juvenile sentencing are the most

appropriate forum for a particular child charged with homicide; the case automatically moves

into adult court. As such, the statute ensures that the child cannot be sentenced to juvenile life

(incarceration until age 21) if convicted, but instead, is solely eligible for adult sentencing if

convicted.2

If such a situation occurs and the child is convicted of homicide, the legislature has

dictated that the only available choices for the sentence are life without parole or life with the

possibility of parole after thirty-five years. The trial judge cannot decide that five, ten, or even

twenty years of incarceration might be the appropriate sentence for a particular child. Rather, La.

C.Cr.P. art. 878.1 requires that the judge sentence the juvenile to life and merely decide whether

or not that life sentence comes with or without parole after thirty-five years. The judges hands

are effectively tied.

This situation presents a clear violation of the Separation of Powers Clause. While the

1 Under La. Child. Code Ann. art. 305, A. (1) When a child is fifteen years of age or older at the time of the

commission of first degree murder, second degree murder, aggravated rape, or aggravated kidnapping, he is subject

to the exclusive jurisdiction of the juvenile court until either:

(a) An indictment charging one of these offenses is returned.

(b) The juvenile court holds a continued custody hearing pursuant to Articles 819 and 820 and finds probable cause

that he committed one of these offenses, whichever occurs first. During this hearing, when the child is charged with

aggravated rape, the court shall inform him that if convicted he shall register as a sex offender for life, pursuant to

Chapter 3-B of Title 15 of the Louisiana Revised Statutes of 1950.

(2) Thereafter, the child is subject to the exclusive jurisdiction of the appropriate court exercising criminal

jurisdiction for all subsequent procedures, including the review of bail applications, and the child shall be transferred

forthwith to the appropriate adult facility for detention prior to his trial as an adult. 2 This problem was recognized in Graham: Once in adult court, a juvenile offender ay receive the same sentence as

would be given to an adult offender, including a life without parole sentence. 560 U.S. at 66-67.

27

judicial branch will cooperate with the legislative and executive branches of government, it

will only do so until it interferes with the effective administration of justice. State v. Cooper,

50 So. 3d 115, 136 (La. 2010). The legislatures decision to prevent the judiciary from

considering a childs personal background, development, opportunities to improve or mature, and

level of culpability before sentencing that child to a life sentence in prison, let alone one without

parole, is the epitome of interfering with the effective administration of justice.

CONCLUSION

La. C.Cr.P.art. 878.1, the statute under which Jeffrey Doise would be sentenced to either

life with or life without parole if convicted of homicide, is unconstitutional. The U.S. Supreme

Court has clearly deemed life without parole for juveniles is equivalent to capital punishment for

adults; yet the statute fails to provide constitutionally required procedural safeguards to these

children facing the ultimate punishment. This violates his Eighth Amendment right against cruel

and unusual punishment. Moreover, the hearing at which a sentence of life or life without parole

will be made will deprive him of his Sixth Amendment right to have a jury determine whether or

not he will be sentenced to die in prison. The trial court lacks much of the authority it would

need to alter this outcome. The statute simply cannot stand.

WHEREFORE, for the foregoing reasons and for any other reasons that may appear to

this Honorable Court, Jeffrey Steven Doise respectfully requests that this Motion be granted and

that this Court find La. C.Cr.P. art. 878.1 Unconstitutional.

Respectfully submitted by his attorney:

CALCASIEU DISTRICT DEFENDER

By:__________________________________

Andrew M. Casanave

Bar Roll Number 1290

P.O. Box 3757 / 1032 Ryan Street

Lake Charles, Louisiana 70602-3757

Tel.: (337) 436-1718

28

STATE OF LOUISIANA : 14TH JUDICIAL DISTRICT COURT

VS. NO. 39465-11 DIV. E : PARISH OF CALCASIEU

JEFFREY STEVEN DOISE : STATE OF LOUISIANA

FILED: _________________________ : _______________________________

DEPUTY CLERK OF COURT

ORDER

Considering the foregoing motion, it is hereby ORDERED that contradictory hearing is

set for the ____ day of ___________, 2015 at 9:00 AM.

Thus done and signed in chambers at Lake Charles, Louisiana on this ___ day of February

2015.

_____________________________________

JUDGE

PLEASE SERVE:

Calcasieu Parish District Attorney, Attn: ADA R. Rick Bryant, and

Louisiana Attorney General, 1885 N. Third Street, Baton Rouge, LA 70802