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Extending Graham v Florida: Is death foreseeable through a juvenile’s eyes?

February 9, 2012

1. History, 2. Law, 7. Post-Trial

Extending Graham v Florida: Is death foreseeable through a juvenile’s eyes?

I’m working through my thoughts on an appeal.  Juvenile got life without parole.  He was an accessory to a robbery.  The principal shot and killed a store clerk.  Client went down on Felony-Murder as an accessory to an enumerated felony.  Interestingly, the shooter got Murder 1 based on planning the murder.  It’s interesting because my client had no clue about the bad blood.  The shooting was as much a shock to him as, well, to the victim.  Yeah, OK, maybe less than to the victim, but kinda sorta comparable.

Graham v. Florida descended from the SCOTUS heavens in May 2010.  It’s not a great case.  The 6-3 majority is fractured by Roberts’ Concurring Opinion and crucified by Thomas’ Dissenting Opinion.  Read here for a good review of the murky waters created by this opinion. Regardless, Graham does set the rule going forward.  The upshot is that it is generally no longer allowed to give a juvenile a life sentence without parole for a non-homicide crime.

Briefly, here’s our facts.  A group of four or so youths are behind a convenience store.  They agree to rob the place of the cash in the register.  One guy goes in to case it. He comes back – clean.  All four walk to the front door.  Two enter; my guy and another stay outside.  My guy looks through the window – the leader has a gun in his hand.  My guy doesn’t like the direction it’s taking.  He turns to walk away having never entered the store.  The gun goes off.  The clerk is dead.

Now, here’s the gem from Graham:  “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of such punishments than are murderers.”  Those phrases were parlayed out of Kennedy v. Louisiana (SCOTUS – 2008).

My client did not kill.  My client did not intend to kill.  My client did not foresee … well, let’s hold onto that declarative statement for a bit.

The Felony-Murder Rule goes back to the 13th Century.  It’s not complicated; it’s actually nothing more than transferred intent.  Assume that I take a swing at you.  You duck.  I hit the person standing next to you.  My intent to commit assault against you transfers to the person I actually hit.  Make sense.  I shouldn’t be able to walk away without culpability just because I missed your head – I intended to assault someone.

Over the years, transferred intent assigned liability to consequences of crime, even if those consequences were not intended.  The concept further expanded to include consequences that were not foreseeable.  Ah ha!  There it is!  Maybe …

Now let’s address the death of a person resulting from a crime.  At one time we had both the Felony-Murder Rule and Misdemeanor-Manslaughter Rule:  If you intended to commit the underlying crime and someone died as a result of it, then the mens rea was transferred to a Homicide charge – either Murder or Manslaughter depending upon the severity of the underlying crime.

Drop down to Section 2502:

(b)  Murder of the second degree.–A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

“Perpetration of a felony.”  The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

And therein lies the issue.  The law has for plenty of years sentenced Accessories as equally culpable to Principals.  The Accessory could have been a lookout, yet he is equally responsible for the crime and its consequences.  My guy was outside the store – a traditional Accessory.

So humor me – assume he was told to stand outside as a lookout.  Assume that he had no knowledge of a gun.  Did he foresee the killing?  Is Pennsylvania’s Murder 2 statute premised at all upon foreseeability – or merely consequences?  We have centuries of law telling us that inherently violent felonies, of which robbery is one, inculcate the foreseeability of the taking of life.  Yet we also have centuries of law telling us that juveniles are but a distinction without a difference from non compos mentis – a person not of sound mind regardless of age.

Can a juvenile comprehend the secondary consequences of a felony within which he is an accessory?  If not, then we can argue that this crime is perhaps a non-homicide crime in that the homicide component resulted from transference of the intent from a true non-homicide crime, i.e., Robbery.  And if we can find that the assignation of Murder 2 does not include any finding whatsoever of foreseeability, then we can run to the protective skirt of Graham and try to expand the holding in the face of a generally hostile SCOTUS.

The importance of digging through to this end is that the client from age 16 through death will be in prison if nothing is done.  Even if this is successful, Graham has no issue with sentencing a juvenile to a term of years of, say, 40 – still a substantial whack.  All SCOTUS did in Graham was require a meaningful opportunity to leave prison at some time during their natural life.

The research continues …

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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