Bringing our Children Back from the Land of Nod: Why the Eighth Amendment Forbids Condemning Juveniles to Die in Prison for Accessorial Felony Murder

Over 2,589 individuals sit in prison, where they have been condemned to die for crimes they committed before their eighteenth birthday. At least a quarter of these individuals received this sentence for accessorial felony murder, or a crime in which they did not kill or intend to kill the victim. Beginning with Roper v. Simmons in 2005 and continuing with Graham v. Florida in 2010, recent Eighth Amendment jurisprudence has recognized that juveniles are fundamentally different from adults in ways that limit the constitutionality of imposing adult punishment on them. In June 2012, the Supreme Court held that sentencing juveniles to mandatory life without parole constitutes cruel and unusual punishment in another landmark ruling, Miller v. Alabama. Miller did not extend Graham’s categorical rule against life without parole to those convicted of homicide, including accessorial felony murder. However, it gives at least 2,000 individuals currently serving life without parole for crimes they committed as juveniles a chance at resentencing, and requires that the sentencer take into account their child status and any other mitigating circumstances surrounding their offense in meting out a new sentence. This Note focuses on juvenile life without parole and current Eighth Amendment jurisprudence in the context of felony murder and makes two arguments. First, it argues that the Eighth Amendment as interpreted by Graham categorically prohibits sentencing those juveniles who do not kill or intend to kill to life without parole. Second, it argues that even without a categorical rule, lower courts properly applying Miller should resentence those who do not kill or intend to kill to something less than life without parole. ∗ J.D. Candidate 2013, University of Florida Levin College of Law. My deepest appreciation goes to Professor Michael L. Seigel for helping me to distill my ideas into a worthwhile Note topic, and for his support and advice since my very first semester of law school. Thank you also to the members of the Florida Law Review for their companionship and hard work, and to Professor Dennis A. Calfee for encouraging us all to reach high. Finally, I am thankful to my family and Nicholas Outman for their love, support, and input while writing this Note. 1 Shitama: Bringing our Children Back from the Land of Nod: Why the Eighth A Published by UF Law Scholarship Repository, 2013 814 FLORIDA LAW REVIEW [Vol. 65 INTRODUCTION 815 I. KUNTRELL JACKSON AND THE CASE FOR REDEMPTION ......... 821 II. REDEMPTION OR RETRIBUTION? THE EVOLUTION OF JUVENILE PUNISHMENT 824 A. Recognizing that Juveniles are Different: Reform in the Progressive Era 825 B. Return to Retribution 826 1. Gault, the Implementation of Due Process, and the Return to an Adult Model of Retributive Justice 826 2. The 1980s and the Myth of the Juvenile Super-Predator 828 C. Beyond Redemption: Sending “Throwaway” Children into the Adult Criminal Justice System 829 1. Adjudicating Children in Adult Court 829 2. A Misguided Approach 831 III. JUVENILE PUNISHMENT AND CURRENT EIGHTH AMENDMENT JURISPRUDENCE 833 A. The Eighth Amendment Framework 833 B. Roper v. Simmons and Graham v. Florida: Death is Different, But Children Are Too 836 C. Miller v. Alabama: Child-Status and the Death of Mandatory Death-in-Prison Sentences for Children .... 838 IV. PUNISHING JUVENILES FOR ACCESSORIAL FELONY MURDER 840 A. Twice Diminished Culpability 840 B. The Doctrine of Felony Murder 842 1. Homicide Without the Necessary Mental State ..... 842 2. Perversion of the Justifications for Punishment ..... 843 C. Cruel and Unusual: Sentencing Juveniles Convicted of Felony Murder to Life Without Parole 845 V. ATONING FOR OUR SINS AND THEIRS—GIVING OUR CHILDREN A SECOND CHANCE WITH MILLER V. ALABAMA 848 CONCLUSION 853 2 Florida Law Review, Vol. 65, Iss. 3 [2013], Art. 4 http://scholarship.law.ufl.edu/flr/vol65/iss3/4 2013] BRINGING OUR CHILDREN BACK FROM THE LAND OF NOD 815