Juvenile Brain Development, M11 and Rodriguez-Buck
by: Ryan • February 13, 2011 • no comments
This topic could fill up a book or two. This post - which is not going to be substantive - is intended only to remind people of this issue, stuff most of you probably already know.
The decision to write this post occurred this morning after I saw this description of a case out of California at the Law and Biosciences blog.
Adolescent Developing Brain Theory and Sentencing People v. Chappell, 2011 WL 105652 (Cal. App. 2 Dist. 2011) The use of neurological evidence to justify lesser sentencing for juvenile offenders was popularized by the dropping of a footnote to the APA amicus brief on the adolescent developing brain theory in Roper v. Simmons (2005). In this case, a fourteen-year-old defendant was found guilty of first-degree murder under the theory of felony-murder with special circumstance and was sentenced to 50 years to life. On appeal, defendant claims (among other things) that his sentence constitutes cruel and unusual punishment because of his age. Defendant cited several Supreme Court opinions (including Roper) to the effect that juveniles should be treated differently than adults in sentencing, arguing that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds." The court of appeals recognizes that "the sentence is very severe for a crime committed by one so young." It nevertheless affirmed the judgment because the defendant's age was taken into account already when he was given a sentence less than life without possibility of parole.
In Oregon, M11 applies to certain crimes committed by those 15 years old and older. Further, it applies to accomplices, as well as principals. Some of the crimes that are designated Measure11 involve no physical injury and sometimes even little or no emotional trauma. Robbery in the First Degree is a crime that carries a mandatory 90-month prison sentence but in fact can - in some circumstances - be far less traumatic than a non-M11 assault. I don't want to be taken out of context so let me stress this: a Rob I can be very scary, and the risk of harm can be great, but there are specific cases where neither is true.
Under current law, the only way to get out of a M11 sentence for a Robbery I conviction would be a finding by the trial court that the sentence was constitutionally disproportionate to the crime, relying on the Supreme Court decisions known as Rodriguez/Buck.
Defense attorneys who have a juvenile client who played a minimal role in a Robbery I will often get a non-M11 offer from the prosecution. But if the defense doesn't get that offer, or chooses not to take the offer, the defense should strongly consider mounting a Rodriguez/Buck proportionality challenge and offer at the hearing on defendant's motion some of the substantial research on juvenile brain development. (OCDLA has put on numerous presentations on this topic.)
There is no question that this type of argument would take a lot of work by the defense attorney. Experts may be required to evaluate the defendant and/or testify. It might make sense to get the victim on board, if that's at all possible. A thorough record needs to be made, because - win or lose - the issue would almost certainly go up to the Court of Appeals. But there's an opportunity there, in the right case.
