STATE OF LOUISIANA

14TH JUDICIAL DISTRICT COURT

VS. NO. 39465-11

PARISH OF CALCASIEU

JEFFREY STEVEN DOISE

STATE OF LOUISIANA

FILED: _________________________

_______________________________
DEPUTY CLERK OF COURT

DIV. E

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,

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
2

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.
3

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
4

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
5

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

sentencing

hearing

should

entail,

amounts

to

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:

B.

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;

The statute neither ensures sufficient opportunity to present mitigating evidence

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

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.

The legislature has failed to give the sentencing authority sufficient guidance in
narrowing the pool of young offenders who are constitutionally deserving of the
6

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
7

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.
8

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 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.
9

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

10

[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
11

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
12

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
13

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.).

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.
14

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
15

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

16

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, 103031 (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

17

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.
18

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

19

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
20

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.

21

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
22

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.

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.
23

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 emotionallycharged reaction to what is likely to be emotionally-charged evidence. Graham, 560 U.S. at 6970 (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
24

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.
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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

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.
26
1

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

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STATE OF LOUISIANA

14TH JUDICIAL DISTRICT COURT

VS. NO. 39465-11

PARISH OF CALCASIEU

JEFFREY STEVEN DOISE

STATE OF LOUISIANA

FILED: _________________________

_______________________________
DEPUTY CLERK OF COURT

DIV. E

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

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