No.

08-1031

____________ ♦ ____________

IN THE

Supreme Court of the United States

SPRING TERM, 2010

____________ ♦ ____________

United States of America,

Petitioner,

v.

Arlena Hawkins and Jenna Hawkins,

Respondents.

____________ ♦ ____________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

____________ ♦ ____________

BRIEF FOR RESPONDENT

____________ ♦ ____________

Packet No. 22
919 Albany Street
Los Angeles, CA 90015
Counsel of Record for Respondent,
Arlena Hawkins and Jenna Hawkins
 QUESTIONS PRESENTED

1. Whether a lack of particularity in a warrant, issued by a magistrate, leading to a general

search subject to agent discretion is a violation of the Fourth Amendment.

2. Whether Jenna Hawkins‟s compulsory sentence, under 28 U.S.C. § 1111, of life in prison

without parole for a juvenile first-time offender for a crime of felony murder violates the

Eighth Amendment proscription of cruel and unusual punishment.

i
 TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iv

STATEMENT OF FACTS ............................................................................................................. 1

A. The Hawkins Family‟s Background ................................................................................... 1

B. Arlena‟s Plan to Get Out of Debt ........................................................................................ 1

C. The Misfortune of December 14th ...................................................................................... 2

D. The FBI Conducts an Investigation into Arlena‟s “Charity” .............................................. 2

E. Procedural History .............................................................................................................. 4

SUMMARY OF THE ARGUMENT ............................................................................................. 5

ARGUMENT .................................................................................................................................. 6

I. THE HAWKINS’ FOURTH AMENDMENT RIGHTS WERE VIOLATED IN THE

ILLEGAL SEARCH OF UNWARRANTED PREMISES AND THE SEIZURE OF
ATHLETIC ITEMS AND DOCUMENTS THAT WERE UNRELATED TO THE
CRIME. ...................................................................................................................................... 6

a. The Warrant Lacked Particularity as to What Items Should be Seized by the

Agents. .................................................................................................................................... 7

b. The Agents Exercised Flagrant Disregard for the Limitations in the Warrant,
Transforming an Otherwise Valid Search into a General One. ....................................... 8

c. The Plain View Exception is Not Applicable as the Agents Undertook Superfluous
Work to Discover Incriminating Nature........................................................................... 11

II. THE SENTENCE OF LIFE WITHOUT PAROLE FOR JENNA HAWKINS IS

DISPROPORTIONATE IN LIGHT OF HER MINIMAL PARTICIPATION IN THE
CRIME AND STATUS AS A JUVENILE. .......................................................................... 13

a. The Sentence of Juvenile Life Without Parole Is So Disproportionate According to

“Evolving Standards of Decency” That It Violates the Eighth Amendment. ................... 15

ii
 i. Objective Demonstration of the National Consensus on Juvenile Life Without Parole
15

ii. The Independent Judgment of the Court Indicates that JLWOP is Extreme ................ 18

b. Even if the Court Does Not Create a Categorical Exemption for Juveniles, it Should
Hold that the Harshness of the Sentence of Life Imprisonment Without the Possibility of
Parole Outweighs the Gravity of the Felony-Murder Committed by a First-Time
Offender, Jenna Hawkins. ...................................................................................................... 21

i. Gravity of the Offense ................................................................................................... 22

ii. The Harshness of the Penalty ....................................................................................... 24

CONCLUSION ............................................................................................................................. 25

iii
 TABLE OF AUTHORITIES

Cases

Andrade v. Attorney Gen. of Cal.,

270 F.3d 743 (9th Cir. 2001)…………………………………………………………….22

Andreson v. Maryland,
427 U.S. 463 (1976)………..……………………………………………………………...8

Arizona v. Hicks,
480 U.S. 321 (1987)………………………………………………………………….11, 13

Atkins v. Virginia,
536 U.S. 304 (2002)……………………………………………………………...14, 15, 25

Coolidge v. New Hampshire,

403 U.S. 443 (1971)……………………………………………………………………….7

Dalia v. United States,

441 U.S. 238 (1979)……………………………………………………………………….9

Enmund v. Florida,
458 U.S. 782 (1982)………………………………………………………………….23, 25

Ewing v. California,
538 U.S. 11 (2003)…………………………………………………………...15, 17, 20, 25

Harmelin v. Michigan,
501 U.S. 957 (1991)……………………………………………………...14, 21, 22, 24, 25

Harris v. Wright,
93 F.3d 581 (9th Cir. 1996)……………………………………………………………...18

Henderson v. Norris,
258 F.3d 706 (8th Cir. 2001)…………………………………………………………….22

Hussain v. United Kingdom,

22 Eur. Ct. H.R. 1 (1996)……..………………………………………………………….21

In re Gault,
387 U.S. 1(1967)………….………………………………………………………….20, 21

In re Nuñez,
173 Cal. App. 4th 709 (2009)………………………………………………………..24, 25

iv
Johnson v. United States,
333 U.S. 10 (1948)………………………………………………………………………...7

Katz v. United States,

389 U.S. 347 (1967)……………………………………………………………………….7

Marron v. United States,

275 U.S. 192 (1927)……………………………………………………………………….8

Naovarath v. State,
779 P.2d 944 (Nev. 1989)………………………………………………………………..20

People v. Miller,
781 N.E. 2d 300 (Ill. 2002)………………………………………………………….22, 23

Roper v. Simmons,
543 U.S. 551 (2005)………………………………………………………14-18, 20-22, 25

Solem v. Helm,
463 U.S. 377 (1983)………………………………………………………………….21, 22

Stanford v. Kentucky,
492 U.S. 361 (1989)……………………………………………………………………...17

Steele v. United States,

267 U.S. 498 (1925).…………………………………………..…………………………..7

Thompson v. Oklahoma,
487 U.S. 815 (1988)……………………………………………………………………...15

Tison v. Arizona,
481 U.S. 137 (1987)……………………………………………………………………...22

Trop v. Dulles,
356 U.S. 86 (1958)……………………………………………………………………….15

United States v. Am. Investors of Pittsburgh,

879 F.2d 1087 (3rd Cir. 1989)…………………………………………………………….9

United States v. Cannon,

264 F.3d 875 (9th Cir. 2001)………………………………………………………….9, 11

United States v. Carillo-Morales,

27 F.3d 1054 (5th Cir. 1994)…………………………………………………………….11

United States v. Garcia,

v
 496 F.3d 495 (6th Cir. 2007)………………………………………………………...12, 13

United States v. George,

975 F.2d 72 (2d Cir. 1992)………………………………………………………………...8

United States v. Hawkins,

No. 09-46746 F.3d 28 (9th Cir. Oct. 2, 2009)……………………………………….18, 19

United States v. Heldt,

668 F.2d 1238 (D.C. Cir. 1981)…………………………………………………...9, 10, 12

United States v. Jones,

213 F.3d 1253 (10th Cir. 2000)………………………………………………………….22

United States v. Kaplan,

895 F.2d 618 (9th Cir. 1990)……………………………………………………………...8

United States v. King,

227 F.3d 732 (6th Cir. 2000)…………………………………………………………….11

United States v. Medlin,

842 F.2d 1194 (10th Cir. 1988)……………………………………………………….9, 10

United States v. Rettig,

589 F.2d 418 (9th Cir. 1978)……………………………………………………………...9

United States v. Robbins,

21 F.3d 297 (8th Cir. 1994)……………………………………………………………...10

United States v. Schroeder,

129 F.3d 439 (8th Cir. 1997)…………………………………………………………….11

United States v. Uzenski,

434 F.3d 690 (4th Cir. 2006)……………………………………………………………...9

United States v. Young,

745 F.2d 733 (2d Cir. 1984)……………………………………………………………….8

Warden v. Hayden,
387 U.S. 294 (1967)……………………………………………………………………….8

Wilson v. Layne,
526 U.S. 603 (1999)……………………………………………………………………….9

Constitutional Provisions

vi
U.S. Const. amend. IV………………………………………………………………………….6, 7

U.S. Const. amend. VIII………………………………………………………………………….13

Statutes

28 U.S.C. § 1111…………………………………………………………………………………17

Other Authorities
Mary Beckman, Neuroscience: Crime, Culpability, and the Adolescent Brain, 305 Science 596
(2004)…………………………………………………………………………………………….19

Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why

Adolescents May Be Less Culpable Than Adults, 18 Behav. Sci. & L. 741 (2000)………...19, 20

City Crime Rankings 2009, CQ Press, http://os.cqpress.com/citycrime/2009.htm.........................1

Barry C. Feld, Competence, Culpability, and Punishment: The Implication of Atkins for
Executing and Sentencing Adolescents, 32 Hofstra L. Rev. 463 (2003)………………………...23

John Floyd and Billy Sinclair, Life Without Parole Eliminated, Criminal Jurisdiction, September
21, 2009, http://www.johntfloyd.com/blog/2009/09/21/life-without-parole-for-juveniles-
eliminated.......................................................................................................................................17

H.B. 1187, 59th Leg., Reg. Sess. (Wa. 2005)…………………………………………………….18

Adam Liptak, Serving Life, With No Chance of Redemption, N.Y. Times, Oct 5, 2005……….21

Hillary J. Massey, Disposing of Children: The Eighth Amendment and Juvenile Life Without
Parole After Roper, 46 B.C. L. Rev. 1083 (2006)……………………………………….14, 16, 19

Brianna Ogilvie, Is Life Unfair? What‟s Next for Juveniles After Roper v. Simmons, 60 Baylor L.
Rev. 293 (2008)………………………………………………………………………………….17

The Rest of Their Lives: Life Without Parole for Child Offenders in the United States, Human
Rights Watch, Amnesty Int‟l, 2005,
http://www.amnestyusa.org/countries/usa/clwop/total_LWOP.pdf...................................16,17, 21

S. Comm. on Foreign Relations, Report on the International Covenant on Civil and Political
Rights (1992)…………………………………………………………………………………….16

Jodie and Billy Sinclair, Capital Punishment: An Indictment by a Death Row Survivor, in Youth
Violence (Arcade Publishing, N.Y. 2009)……………………………………………………….18

Elizabeth R. Sowell et al., In Vivo Evidence for Post-Adolescent Brain Maturation in Frontal and
Striatal Regions, 2 Nature Neuroscience 859 (1999). …………………………………………...19

vii
 STATEMENT OF FACTS

A. The Hawkins Family‟s Background

One evening forever changed the life of a 15 year old girl. (Record “R” at 2). Jenna Hawkins is

an African American, Honor Roll student at Compton Christian High School in Compton, California, a

neighborhood notorious for its gang violence. (R at 1). In 2009, the CQ Press, using data from F.B.I.,

ranked Compton as the 12th most dangerous city in the country. City Crime Rankings 2009, CQ Press,

http://os.cqpress.com/citycrime/2009.htm. Furthermore, Jenna lives with only her mother, Arlena

Hawkins, in this menacing atmosphere. (R at 1). Arlena works at the local diner but is barely keeping

her head above water. Id. Despite this formidible environment, Jenna excelled academically by

maintaining a 3.8 grade point average while peers referred to her as “very polite, friendly, and sociable.”

(R at 27). Moreover, Jenna was consistently praised by her teachers as “very bright and a very good

student.” Id. Furthermore, Jenna was actively involved in extracurricular activities including varsity

volleyball and the Compton Christian Student Council. (R at 1); (R at 27).

However Arlena, Jenna‟s mother, was destitute and resorted to obtaining money through other

means. (R at 1). Arlena created a fake charity, The Leukemia Children‟s House, to make ends meet and

convinced Jenna to assist in these schemes. Id. Like any teen, Jenna made bad choices, but at the age of

14 realized she would rather spend time on school work and extracuriculars. Id. Yet, Arlena did not stop,

developed a gambling and an alcohol addiction, and eventually was trailed by bookies and loan sharks.

Id. One afternoon, Jenna was confronted by one of the sharks and the conversation “turned physically

violent.” Id. Fearing for the life of her daughter, Arlena purchased a gun to protect herself and Jenna. Id.

On October 1, 2008, as trouble with her creditors was not seeming to subside, Arlena began crafting a

plan to solve her financial difficulties. Id.

B. Arlena‟s Plan to Get Out of Debt

Without Jenna‟s knowledge, Arlena undertook two weeks of “casing” in Santa Monica,

California to find a home to burglarize. (R at 2). Eventually, Arlena chose a two-story home, which

1
frequently left the side gate unlocked and appeared to have expensive pieces of artwork in the living

room. Id. After deciding on the home, Arlena informed Jenna that she would “have to serve as a

„lookout‟ in order to prevent Arlena from being seen during the burglary.” Id. Jenna obliged out of fear

that something bad may happen to the only adult in her life. Id. Two days prior to the burglary, Arlena

drove past the house when, to her surprise, she spotted “two Doberman security dogs.” (R at 2). Even

though this worried her, the thought of her daughter being at risk overwhelmed her and she decided to

proceed with the plan and bring a gun along for protection. Id.

C. The Misfortune of December 14th

On the fateful evening of December 14, 2008, Arlena and Jenna Hawkins, clothed in black

outfits, black ski masks, gloves, and sports shoes, entered the premises through the unlocked gate. (R at

2). Jenna stuck her hand through an opening too small for her mother to unlock the door. Id. While

Arlena shuffled through paintings and packed the items, she handed the gun off to Jenna. (R at 27).

Jenna held the gun reluctantly and nervously. (R at 2). Suddenly, they heard a noise. Id. Jenna exclaimed,

“Mom!” as she saw movement and a figure lurking. Id. Arlena turned, snatched the gun from Jenna, and

“fired three gunshots at the figure” in a panic. Id. Instictively, “Jenna ran towards the body as it fell, but

Arlena grabbed her and pulled her out the nearby front door” and the two left the scene. Id. While

Arlena drove, as Jenna is not of age, she ordered her daughter to wipe down the gun and “use a file to

scuff off its visible serial number.” (R at 3). Jenna did as she was told and threw the gun out the window.

Id. Concurrently, the police arrived at the house at the request of several neighbors and discovered the

body of Canadian diplomat, Lawrence Macdonald. Id. The police informed the FBI, but the only lead

they had was a gun matching the bullets from the scene and they came to a dead-end. Id.

D. The FBI Conducts an Investigation into Arlena‟s “Charity”

On February 27, 2009, the Financial Crime Enforcement Network informed an FBI agent of

unusual and suspicious transactions deriving from a bank account registered under Leukemia Children‟s

House and Arlena Hawkins from June 2008 to the present. (R at 9). A federal magistrate rushed a search

2
warrant based on Agent Waldrun Skinner‟s reasonable belief that the number of transactions, large

amounts of money being deposited and withdrawn, and the numerous aliases in use would lead to crimes

of fraud, money laundering, conspiracy, racketeering, and collusion inside their residence. Id. The

warrant permitted for the search of “a single residence” located at 222 Greenville Avenue. (R at 7).

Furthermore, the search was to only include “rooms in the residence . . .” (R at 7, emphasis added).

Finally, the warrant indicated that items to be seized included those registered to “Arlena Hawkins, a.k.a.

Roberta Sanders, Evelia Lopez, Anita Smith, Patsy Rogers, Elexis Majors, Martine Harris, Sally

Brown . . .” (R at 8). Moreover, the Magistrate ordered the seizure of items relating to the crimes stated

by Agent Skinner in his affidavit as well as “other rewards, fruits, tools, medium, and evidence of other

federal crimes.” Id. According to Agent Skinner, who had twenty years of experience, the scope of the

warrant was “clear enough” and gave “pretty broad, basic guidelines”. (R at 9); (R at 4). On the other

hand, Agent Denny Samuelson does not remember if he “personally reviewed the warrant” prior to

conducting the search. (R at 17).

On March 5, 2009 through March 6, 2009, pursuant to the search warrant, thirteen agents

conducted a nineteen hour search of the premises. (R at 4). The items seized at the 222 residence

“included fake identification cards and birth certificates, financial statements, a computer hard drive,

make-up, and various articles of clothing that were located in plain sight.” Id. Due to the fact that the

house seemed to be “under control,” Agent Samuelson went into the 222 ½ residence. (R at 16).

Although Agent Samuelson received high marks at the Academy for his meticulous nature, this was his

first time conducting an actual search. (R at 17); (R at 14). As he walked to what he believed to be the

“garage,” he crossed the driveway and came upon Jenna‟s room. (R at 17). Agent Samuelson rummaged

through Jenna‟s belongs and not until the agents seized the items and left the room did he realize it was a

separate address not listed in the warrant. (R at 20).

In this building, Agent Samuelson was hasseled by the seasoned agents and reminded that

“efficiency was favored over thoroughness.” (R at 15). As he sped up his search, he collected her school

3
books and gym bag that contained her volleyball uniform and sport shoes from the night of the robbery.

(R at 4). He found stacks of papers that included “pages of completed math homework, utility bills for

the converted garage unit, and a registratioin for a handgun made out to an „Alex Davidson,‟” a name

the agents in 222 Greenville found throughout the home. Id. The registration numbers were familiar and

he ran them through the FBI database to discover that the numbers from a gun used in the murder-

burglary of the diplomat. Id. Samuelson gave the investigating agents the items he had seized in 222 ½

and they successfully matched the blood drops on Jenna‟s shoes to that of the late diplomat. (R at 5).

Based upon this small trace of the victim‟s blood, the U.S. Attorney‟s office brought charges against

both Arlena and Jenna Hawkins for felony-murder under 28 U.S.C. § 1111. (R at 27); (R at 6).

E. Procedural History

After the the District Court denied a request to suppress evidence, a jury convicted both Arlena

and Jenna Hawkins under 28 U.S.C. § 1111(c). (R at 5). During a sentencing hearing the court heard

expert testimony about juvenile life without parole and the disproportionate representation of minority

offenders receiving this punishment. Further stating that “in about 56% of these case, the adult received

a lower sentence than the juvenile.” (R at 27). However, this testimony was not enough to outweigh the

probation officer‟s view of the offense and the court sentenced both Arlena and Jenna Hawkins to life

without the possibility of parole as mandated under section 1111. (R at 5).

Dissatisfied with the District Court‟s decision, Jenna and Arlena appealed their conviction. (R at

5). On appeal, Respondents challenged the search and seizure of items in their home as well as Jenna‟s

sentence of life in prison without parole. (R at 29-30). The Ninth Circuit court concluded that the search

of the Hawkins‟ residence was an unconstitutional generalized search based on the flagrant disregard

doctrine. Id. Therefore, the evidence seized by Agent Samuelson was inadmissible. (R at 30). Moreover,

the court weighed the gravity of Jenna Hawkins‟s crime against the severity of her sentence. Id. Looking

to psychological studies found in the seminal case of Roper v. Simmons, the court concluded that the

lessened culpability of juveniles resulted in a grossly disproportionate outcome when sentenced to life

4
without parole. Id. Despite dissenting opinions about this application, the Circuit court reversed the

judgment of the District Court and remanded for review. (R 32-34).

The United States filed a petition for a writ of certioari, which was granted by the U.S. Supreme

Court on January 8, 2010. (R at 35). Arlena and Jenna Hawkins maintain that the search of their home

was a violation of their Fourth Amendment rights and because the the evidence should be suppressed

their sentences of life without parole should be dropped. Id. Moreover, even if, the search and seizure

was deemed valid, the sentence of life in prison without parole for a juvenile is an infringement on

Jenna‟s Eighth Amendment right to be free from cruel and unusual punishment. Id. Accordingly,

Respondent requests that this Court uphold the judgment.

SUMMARY OF THE ARGUMENT

A split second changed the life of Jenna Hawkins. She was a promising athlete and student, and

quite possibly one of the few to get out of Compton. But in a blink of her eyes that all changed. She

shifted from the Honor Roll to life without parole.

The Fourth Amendment protects our homes, that which we hold near and dear, our privacy. The

Hawkins‟ rights were infringed on the day their home was searched. The magistrate issued a warrant

that lacked particularity in the items to be seized leading to a fishing expedition. Thirteen agents ran

throughout their home with flagrant disregard for the warrant. The agents revered “efficiency over

thoroughness” and grossly exceeded the scope of the warrant. Due to the lack of particularity and failure

to properly execute, the suppression of the evidence seems to be inevitable. Petitioner may argue that the

plain view doctrine should allow for the admission of the items seized at 222 ½ Greenville. However,

due to the fact that Agent Samuelson was illegally in the separate dwelling and took extra steps to

determine the incriminating nature of items, suppression is the only option.

Even if the Court finds that the search was valid and the evidence is permitted to implicate

mother and daughter, the sentence of life without parole is an extreme violation of the Eighth

Amendment. The Court in Roper v. Simmons, when asserting that the death penalty for juveniles

5
violates the Eighth Amendment, notes that almost every state prohibits children younger than eighteen

from serving on juries, voting, or consuming alcohol, in acknowledgement of the irresponsibility,

susceptibility, and immaturity of juveniles. However, the justice system condemns these very children to

life in prison without parole.

The Court has the option of applying two tests to determine the constitutionality of the sentence.

Either the “evolving standards of decency” test which determines if a certain punishment should not be

applied to a certain class of offenders or the gross disproportionality test which compares the gravity of

the crime and the severity of the penalty. By looking at practice in the majority of the states, the

infrequency of use, and a trend toward abolition coupled with neurological, psychosocial, and cognitive

studies that some lessened culpability of juveniles it is clear that the sentence of juvenile life without

parole should be proscribed. Moreover, as the only country in the world with such a sentence imposed

on our children, it seems like it is time to eliminate the sentence all together and focus on rehabilitation

rather than incarceration. Moreover, the harshness of life without parole greatly outweighs the gravity of

the offense committed by Jenna Hawkins. Jenna lacked culpability as a juvenile, was simply a lookout in

the commission of a felony-murder and first-time offender with a bright future ahead of her. Instead the

court locked the door on the future and gave her the harshest punishment possibility. Due to her value to

society, the Court should uphold the decision of the Circuit court and not let a single second dictate

Jenna‟s future.

ARGUMENT

I. THE HAWKINS’ FOURTH AMENDMENT RIGHTS WERE VIOLATED IN THE

ILLEGAL SEARCH OF UNWARRANTED PREMISES AND THE SEIZURE OF
ATHLETIC ITEMS AND DOCUMENTS THAT WERE UNRELATED TO THE
CRIME.

The Fourth Amendment guarantees American citizens protections from invasive search and

seizures infringing upon their privacy. U.S. Const. amend IV. It grants “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . and

6
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” Id. In Katz v. United States,

the Supreme Court clarified that to satisfy the warrant requirement, it must be issued (1) by an impartial

magistrate who has assessed whether (2) the police have probable cause and the warrant (3) must be

particular and (4) properly executed. 389 U.S. 347, 357 (1967). Johnson v. United clearly indicates that

this is not to deny “law enforcement the support of usual inference which reasonable men draw from

evidence . . . [it instead protects] the officer engaged in the often competitive enterprise of ferreting out

crime.” 333 U.S. 10, 13-14 (1948). While the first two elements, neutral magistrate and probable cause

are met, the warrant lacked particularity and allowed for a general search while the execution of the

warrant was done with flagrant disregard for the scope of the search. (R at 3-5).

a. The Warrant Lacked Particularity as to What Items Should be Seized by the Agents.

The Fourth Amendment requires that a warrant describe with particularity the place to be search

and the things to be seized. US Const. amend IV. This requirement safeguards the individual‟s privacy

interest against fishing expeditions committed by officers in an attempt to convict. Coolidge v. New

Hampshire, 403 U.S. 443, 467 (1971). A warrant sufficiently particularizes the place to be searched if

the agents can reasonably “ascertain and identify the place intended” by relying on personal knowledge.

Steele v. United States, 267 U.S. 498, 503 (1925). The warrant expressly states the location to be

searched, 222 Greenville. (R at 7). It describes the location as a “single residence. The numbers „222‟

are located at the front of the building . . . [has] a fence around the residence [and] is an off-white color.”

Id. The warrant authorized the search of “all rooms in the residence, its attics, basements, storage areas,

carports . . . as well as any motor vehicle ”. Id. It is quite specific in the details of the residence as well

as the spaces that agents are permitted to search, not giving the slightest impression of an

unconstitutional general search. Id. Moreover, the magistrate is clear on when the search is to be

conducted as he does not indicate that a night search has been requested, which is clear by his checking

the box entitled “no”. Id. Yet, the agent conducted a 19 hour search that took place from May 5th to the

7
6th, through the night. (R at 4). This among other things implies that the execution of the warrant was

quite underwhelming. Id.

The seizure of items is a bit more complex. A warrant may authorize the seizure of an entire

class of items if the warrant is sufficiently particular. United States v. Young, 745 F.2d 733, 759-60 (2d

Cir. 1984). Moreover, a warrant may contain a catch-all phrase allowing officers to seize any item they

deem relevant to the crime under investigation as long as the phrase limits the discretion of the officers.

Andreson v. Maryland, 427 U.S. 463, 479-82 (1976). While Andreson‟s authorization of the seizure of

“fruits, instrumentalities and evidence of crime at this [time] unknown” was deemed acceptable, the

court in United States v. George stated that the phrase “any other evidence relating to the commission of

a crime” was unacceptable because it did not reference which crime items related. 975 F.2d 72, 75-76

(2d Cir. 1992). Likewise, the warrant here uses the statement “and other rewards, fruits, tools, mediums

and evidence of other crimes.” (R at 8). This leaves too much discretion up to the agents as any “other

crimes” is a large set of options. Id. The warrant‟s permissive nature allowed for Samuelson to make

leaps of faith that not only invaded the privacy of the Hawkins family but allowed for an

unconstitutional general search. (R at 4). Had the search of 222 ½ been etched in the warrant and the

catch-all phrase been written properly the evidence of the felony-murder would be admissible; however,

because the phrase was objectionable the evidence relating to the felony-murder must be suppressed.

Andreson, 427 U.S. at 482. The warrant was overbroad and vague with respect to items to be seized

allowing for interpretation by the agents handling the case and an unjustifiable intrusion.

b. The Agents Exercised Flagrant Disregard for the Limitations in the Warrant,
Transforming an Otherwise Valid Search into a General One.

A search warrant protects an individual‟s privacy interest in his or her home and possessions

against unjustified intrusions. Warden v. Hayden, 387 U.S. 294, 307 (1967). Therefore, an agent must

not exceed the terms of an authorizing warrant when conducting a search. Marron v. United States, 275

U.S. 192, 196-97 (1927); United States v. Kaplan, 895 F.2d 618, 623 (9th Cir. 1990). Furthermore, the

8
Fourth Amendment requires that police activity in the execution of a warrant be related to the objectives

of the authorized intrusion. Wilson v. Layne, 526 U.S. 603, 604 (1999). If executing agents exceed the

scope of a search warrant, pertaining to items seized or locations searched, the seized evidence may be

suppressed. United States v. Uzenski, 434 F.3d 690, 706 (4th Cir. 2006) (officers exceeded the scope of

the warrant authorizing the seizure of computer data and documents and technology related to bomb-

making by seizing marijuana, bug spray, newspapers and plaid shirts); United States v. Cannon, 264

F.3d 875, 879-80 (9th Cir. 2001) (searching a dwelling outside of the scope of the warrant).

Some courts hold that when an agent grossly exceeds the scope of a search warrant in seizing

property, the particularly is undermined and a valid warrant is transformed into a general warrant,

ultimately requiring a suppression of all evidence, both legally and illegally seized. United States v.

Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988); United States v. Rettig, 589 F.2d 418 (9th Cir. 1978)

(applying the flagrant disregard standard and suppression of all evidence to the Ninth Circuit). While

this is the standard used by the Court in which the Hawkins‟ were tried, there is the possibility of partial

suppression as well, only excluding the evidence that was not authorized by the warrant. United States v.

Heldt, 668 F.2d 1238, 1259 (D.C. Cir. 1981). The court must determine whether the officers' conduct

overreached to the extent that it rendered an otherwise valid warrant general in nature and, if so, the

court evaluates the objective reasonableness of the search from the perspective of the agent. United

States v. Am. Investors of Pittsburgh, 879 F.2d 1087, 1107 (3rd Cir. 1989).

Here, besides the fact that Agent Denny Samuelson was inexperienced, he was not adequately

prepared for the search as he never personally reviewed the warrant. Dalia v. United States, 441 U.S.

238, 257 (1979) (explaining that for a warrant‟s limitations to be effective, those conducting the search

must have read or been adequately apprised of its terms); (R at 17). He could not properly conduct a

search within the scope as he did not have complete knowledge of where the line was to be drawn. (R at

17). In other cases the lead agents made copies of the warrant and posted it throughout the premises,

9
however with only 13 agents, compared to 100 at one location in Heldt, Samuelson should have made an

effort to at least glance at the warrant. Heldt, 668 F.2d at 1261-62.

In United States v. Medlin, a warrant authorized the search and seizure of firearms. 842 F.2d at

1199. While the search was being conducted, an officer searched the premises for stolen property based

on a tip he had received and seized 660 items. Id. The court determined the actions of the officer

transformed the search from one that was particularized into an unconstitutional general search and led

to the suppression of all evidence. Id. The agents at the Hawkins‟ residence went on a similar fishing

expedition as they collected “as many items as appear[ed] to fit under the warrant and [planned on]

return[ing] the unnecessary ones later.” (R at 15). Although they were not looking for a specific item

like the officer in Medlin, they recklessly gathered all items, approximately 1,290 items in total

(including business cards, pictures, wigs, volleyball uniforms, a diary, a laptop, a digital camera, water

bottles, and a desk lamp) under a warrant that authorized “financial, business, and other personal effects

related to the operation.” 842 F.2d at 1199; (R at 8-11). Although it may be argued the warrant was

overly broad, the agents seized items, such as a volleyball uniform and water bottles that had an

extremely tenuous connection to the case at hand. Medlin, 842 F.2d at 1199. Moreover, in United States

v. Robbins, the Court found that the police disregarded the warrant permitting the seizure of

“documentary evidence of ownership of business, case receipts, trip records, radio logs, and

maintenance records of cabs” by seizing a wallet. 21 F.3d 297, 300 (8th Cir. 1994). Although each of the

authorized items could be found in a wallet, the court found the seizure of the wallet outside the scope.

Id. Similarly, Jenna‟s gym bag, that had her shoes with traces of blood on them, is an item that holds

other items and should be suppressed because it is not closely related to the authorized items in the

warrant. Id. Due to this flagrant disregard for the warrant, all of the items should be excluded.

Even if the search is absent flagrant disregard, the appropriate rule still indicates items seized

outside the scope of a valid warrant are not admissible, although those in the warrant are admissible.

Heldt, 668 F.2d at 1259. Thus, the scope of the warrant must be respected in terms of places to be

10
searched; if not, the items found in those locations can be excluded. Cannon, 264 F.3d at 880. Agent

Samuelson and the three agents who subsequently followed him across the driveway into a separate

dwelling exceeded the scope of the warrant by searching a location not authorized by the warrant. (R at

4-5). In United States v. King, the police exceeded the scope of their warrant authorizing the search of a

first-floor unit by searching the basement. 227 F.3d 732, 750-52 (6th Cir. 2000). This is a higher

threshold than the case of Hawkins as this proscribes the officers going into a space within the same

home, while Jenna‟s room was a separate entity with a different address. (R at 4). Furthermore, in

Cannon, the court decided that the police disregarded a warrant by searching rental unit in rear building

attached to main house specific in warrant. 264 F.3d at 879. This is the exact same situation as the

separate unit of 222 ½. (R at 4). Although the warrant authorized the search of a “carport” and cars

which could be located in a garage of some sort, it did not permit the search of a room outside the home.

(R at 7). Upon entering 222 ½ Agent Samuelson should have recognized this was a room and not a place

to find a motor vehicle. Id. Although courts have found that where there is similar appearance in

buildings or a common-area hallway the police did not exceed the scope, a reasonably well-trained

officer when coming upon “utility bills for the converted garage united” would have discovered the

separate address. United States v. Carillo-Morales, 27 F.3d 1054, 1063-64 (5th Cir. 1994); (R at 4). Due

to his recognition of the registration numbers, which were subsequently discovered, it is certain that he

should have noticed the different address on the bills. (R at 4). Therefore, items seized in this separate

dwelling must be excluded. United States v. Schroeder, 129 F.3d 439, 442 (8th Cir. 1997) (holding the

evidence should be suppressed because officers exceeded the scope of the warrant by searching a trailer

next to property in warrant because trailer was distinctly separate from property described in warrant).

c. The Plain View Exception is Not Applicable as the Agents Undertook Superfluous
Work to Discover Incriminating Nature.

Under certain circumstances, police may seize evidence that is in plain view with a warrant

supposing they have probable cause. Arizona v. Hicks, 480 U.S. 321, 323 (1987). Four factors must be

11
satisfied in order for the plain view doctrine to apply: (1) the object must be in plain view; (2) the officer

must be legally present in the place from which the object can be plainly seen; (3) the object‟s

incriminating nature must be immediately apparent; and (4) the officer must have a right of access.

United States v. Garcia, 496 F.3d 495, 508 (6th Cir. 2007). The first element, though it seems to be

common sense, is not met here. (R at 4). Jenna‟s volleyball uniform and sports shoes were in her gym

bag. Id. Agent Samuelson had to open the bag to find the items, meaning they were not in plain sight. Id.

Moreover, the gun registration was found when Samuelson was sifting through a stack of papers that

included math homework, utility bills, and the registration. Id. Although common law allows for the

shuffling through paperwork, the plain view doctrine does not apply. Heldt, 668 F.2d at 1267.

Second, the searching agent must lawfully be in the location where their plain viewing occurs.

Garcia, 496 F.3d at 508. As explained earlier, the agents were not lawfully in the 222 ½ residence so all

seized items from that dwelling are inadmissible. (R at 4). Third, any seized item unspecified in the

warrant must possess an incriminating character plainly and immediately apparent on its face, a

character sufficiently incriminating to establish probable cause for its seizure despite the absence of a

warrant mentioning the item. Garcia, 496 F.3d at 508. Agent Samuelson‟s discovery of the name “Alex

Davidson,” one not designated in the warrant but found in the house, on a registration permit for a gun is

not immediately incriminating because he did not have knowledge of its illegal character prior to the

search, as he would with a gun or drugs. (R at 4). This same notion goes to the volleyball uniform found

in the converted garage as he established its incriminating status from costumes found in the house for

committing fraud. Id. However, even if the court finds the gun registration and volleyball items

admissible, the gun registration may be excluded because Samuelson had to read it to determine its

incriminating nature. Garcia, 496 F.3d at 510. In Garcia, the court questioned whether a document even

though in plain view, is within the plain view exception if it must be read in order for its incriminating

nature to be determined. Id. The Court held that it is not. Id. Thus, because Agent Samuelson had to read

the registration to determine its incriminating makeup, it does not fit within the exception. Id.; (R at 4).

12
 Finally, the searching agents must come upon the unspecified items inadvertently. Garcia, 496

F.3d at 508. An agent may not “seek a warrant or conduct his search for the purpose of looking for items

not included in the warrant; rather if he finds and seizes such items he must do so truly „inadvertently.‟”

Heldt, 668 F.2d at 1268. In Hicks, an officer moved stereo components, which he had reasonable

suspicion to believe were stolen, in order to view the components' serial numbers. Hicks, 480 U.S. at

324-26. Concluding that this movement was a search, the Court held that the plain view doctrine could

not justify the seizure of the components because the police lacked probable cause to believe they were

stolen until after disturbing them. Hicks, 480 U.S. at 329. Similarly, Agent Samuelson further

investigated, despite his lack of probable cause, by both reading the registration and calling in the

registration numbers to confirm his intuition. (R at 4). Moreover, he opened the gym bag to assess what

was inside when he lacked probable cause or reasonable suspicion. Id. Because the actions of Agent

Samuelson are not exempted by the plain view doctrine, the items seized at 222 ½ must be excluded. Id.

Without these items, the Court cannot bring charges against Arlena or Jenna Hawkins for the felony-

murder of the diplomat, thus Jenna‟s sentence of juvenile life without parole would be superfluous.

II. THE SENTENCE OF LIFE WITHOUT PAROLE FOR JENNA HAWKINS IS

DISPROPORTIONATE IN LIGHT OF HER MINIMAL PARTICIPATION IN THE
CRIME AND STATUS AS A JUVENILE.

Even if the Court finds that the search was valid implicating the Hawkins, the Court should find

that the sentence of life without parole imposed upon Jenna Hawkins violates the Eighth Amendment of

the Constitution. U.S. Const. amend. VIII. The United States leads the world with the number of

juveniles serving a sentence of life without parole, with 2387 juveniles serving their sentence at this

moment. (R at 25). The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The

proscription against "cruel and unusual punishments," like other broad language in the Constitution,

“must be interpreted according to its text, by considering history, tradition, and precedent, and with due

13
regard for its purpose and function in the constitutional design.” Roper v. Simmons, 543 U.S. 551, 560

(2005). Precedent acknowledge that the Eighth Amendment‟s right not to be subjected to excessive

sanctions stems from the old adage that the punishment should fit the crime. Atkins v. Virginia, 536 U.S.

304, 311 (2002). Logically, it follows that the Eighth Amendment prohibits both disproportionate

punishments and sentences to the crime committed. Harmelin v. Michigan, 501 U.S. 957, 997 (1991)

(Kennedy, J., concurring).

The reduced culpability of juveniles and the sentence of JLWOP does not attain policy ambitions

as it does with adults. Hillary J. Massey, Disposing of Children: The Eighth Amendment and Juvenile

Life Without Parole After Roper, 46 B.C. L. Rev. 1083, 1118 (2006). Like Roper, the Court should look

to the principle of proportionality in determining the constitutionality of juvenile life without parole. 543

U.S. at 566. There are two tests that at their core are rooted in the proportionality school of thought. Id.

at 561. First, the Court evaluates the sentence prima facie by determining whether, when applied to the

specific class of offenders, it is so disproportionate according to “evolving standards of decency” that it

violates the Eighth Amendment. Id. (explaining the standard to be used). If this is the case, the class of

offenders deserves a categorical exemption from the punishment. Id. Alternatively, other courts have

applied a gross proportionality test to discern if the sentence as applied to the individual offender for the

particular offense violates the Constitution. Harmelin, 501 U.S. at 1001.

For the reasons below the Court should abolish juvenile life without parole under the Eighth

Amendment because (1) the reality of death behind bars for the juvenile class is disproportionate

according to “evolving standards of decency”; (2) the seriousness of the knowledge of felony-murder is

substantially outweighed by a life sentence without parole for a fifteen year old first time offender; and

(3) juvenile life without parole is not attaining the policy considerations for which it was implemented.

Harmelin, 501 U.S. at 1001. Therefore, the Court should sustain the decision of the United States Court

of Appeals, Ninth Circuit, that sentence of JLWOP is categorically disproportionate, accordingly lower

the sentence rendered upon Jenna Hawkins.

14
 a. The Sentence of Juvenile Life Without Parole Is So Disproportionate According to
“Evolving Standards of Decency” That It Violates the Eighth Amendment.

Juvenile life without parole was the fallback plan of the Roper Court when they prohibited the

death penalty as applied to juveniles, however JLWOP leads to the same result as the proscribed

punishment . . . prison walls are the last vision the offenders see before they take their final breath.

Roper, 543 U.S. at 572. In Roper v. Simmons, the Court abolished the juvenile death penalty through the

implementation of a framework that “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.” Id. at 561 (citing Trop v. Dulles, 356

U.S. 86, 100-101 (1958) (plurality opinion)). Plainly, this “evolving standards of decency” test examines

a certain punishment on its face to exempt a specific group of offenders. Id. at 561. The Court evaluates

objective indicia, including legislative enactments and societal attitudes, to identify a national consensus

with respect to the particular mode of punishment. Id. Furthermore, the Court scrutinizes the culpability

of the specific class of offenders and considers whether the application of the particular punishment to

that class actually furthers the policy reasons intended by the punishment, taking into consideration the

opinion of independent associations and the practices of other countries. Thompson v. Oklahoma, 487

U.S. 815, 833 (1988); Ewing v. California, 538 U.S. 11, 24-25 (2003) (stating the punishment must

further at least one of the policy considerations, including rehabilitation, deterrence, incapacitation or

retribution).

i. Objective Demonstration of the National Consensus on Juvenile Life Without

Parole

The Supreme Court and Legislature has recognized a categorical exemption for the death penalty

for certain offenders, including juveniles, the mentally retarded, and pregnant women. Roper, 543 U.S.

at 551 (expanding on Thompson, increasing the abolition of death penalty from the age of 16 to those

under 18); Atkins, 536 U.S. at 320-21 (holding that the death penalty was unconstitutional for the

15
mentally retarded); S. Comm. on Foreign Relations, Report on the International Covenant on Civil and

Political Rights (1992), reprinted in 31 I.L.M. 645, 651 (1992) (requesting that the U.S. reserved the

right to impose capital punishment on any person other than a pregnant woman). Because of the limited

precedent on JLWOP, comparison will be found in the Supreme Court‟s Roper decision. Massey, 46

B.C. at 1094. That Court determined that a national consensus must be identified to meet the objective

standard. Roper, 543 U.S. at 561. This threshold is met by identifying a rejection of the practice in the

majority of the states, the infrequency of its use where it remains, and a trend toward abolition. Id. at

564-65.

The national consensus of the death penalty at the time of Roper was an overall rejection, with

thirty states prohibiting the juvenile death penalty and the other twenty rarely imposed it. The Rest of

Their Lives: Life Without Parole for Child Offenders in the United States, Human Rights Watch,

Amnesty Int‟l, 2005, http://www.amnestyusa.org/countries/usa/clwop/total_LWOP.pdf. The practice of

JLWOP is technically legislatively active in forty-two states. Id. While, Arkansas, New Mexico, Kansas,

West Virginia, and Maine do not have the sentence of life without parole (for anyone, adult or child) and

Oregon, Kentucky, and New York do not sentence children to life without parole. Id. Of the forty-two

states that permit the practice there are several states that have below ten actual JLWOP offenders

serving such a sentence. Id. Moreover, the federal system only has one (1) with Utah and Vermont

having no children serving such a sentence, indicating a trend toward infrequency of use. Id. Jenna

would be only the second juvenile at the federal level to receive the sentence of life without parole,

when the federal District of Columbia prohibits such a sentence. (R at 23). The overall numbers tell an

even greater story with the total number of youths sentenced to life without parole per year decreasing

from 152 in 1996 to only 54 in 2004, exemplifying a shift in the general consensus, as well as opinion of

judges. The Rest of Their Lives. (noting an overall decrease in major crimes as well).

A frightening statistic indicates that 1,943 of the children sentenced to life in prison receive this

punishment as a result of a law mandate compared to 281 having the sentence rendered by a judge. The

16
Rest of Their Lives. In Jenna‟s case, 28 U.S.C. § 1111 did not acknowledge her status as a juvenile

under The Federal Delinquency Act and mandated a life sentence regardless of age, without subjective

analysis of her as an individual. (R at 6). Without judges mandating such a sentence, children are being

forced into life imprisonment solely by legislative bodies without consideration of the severity of their

crime or character, when they are children that can easily be rehabilitated. Ewing, 538 U.S. at 24. While

some may argue that a general abolition of JLWOP would lead to lessened punishment for true

offenders, that theory is completely untrue because the Court could still have the freedom to assess the

individual and determine a proportional sentence. Roper, 543 U.S. at 572.

While, the current use of the sentence is decreasing, the Court must further look for a trend

toward abolition of the punishment among the states. Roper, 543 U.S. at 565. The Court in Roper was

not concerned with the number of states that had outlawed the death penalty, but looked at “the

consistency of the direction of change” in order to form its opinion. Id. at 566. Although there was not a

rapid shift, the abolition of the practice in five states in the fifteen years between Stanford and Roper

was satisfactory to find a consistent change. Stanford v. Kentucky, 492 U.S. 361 (1989), overruled by

Roper, 543 U.S. 551 (2005). The Court took this fluctuation in national consensus into consideration in

coming to their decision. Roper, 543 U.S. at 566 (explaining that in the past the Court had been swayed

by the fact that no State had prohibited a particular mode of punishment and subsequently reinstating the

practice). Similarly, with respect to JLWOP the states are not drastically changing, however Texas took

a small step toward change by eliminating life without parole for juvenile offenders who are certified as

adults under Texas Penal Code § 54.02. John Floyd and Billy Sinclair, Life Without Parole Eliminated,

Criminal Jurisdiction, September 21, 2009, http://www.johntfloyd.com/blog/2009/09/21/life-without-

parole-for-juveniles-eliminated. The Legislature amended the statute to permit for the possibility of

parole for juveniles. Id. Moreover, Colorado passed a law in 2006, allowing parole hearings after forty

years for juveniles over thirteen convicted of first-degree murder and sentenced to life in prison. Brianna

Ogilvie, Is Life Unfair? What‟s Next for Juveniles After Roper v. Simmons, 60 Baylor L. Rev. 293, 309

17
(2008). Furthermore, in Washington, the legislature passed HB 1187 in 2005 to eliminate mandatory

minimum sentences for juveniles tried as adults. H.B. 1187, 59th Leg., Reg. Sess. (Wa. 2005). The bill

itself acknowledges research on brain development of juveniles, resulting in lessened culpability. Id.

Along with these legislative progressions, Illinois, which was first to enact its kid-lifer law twenty years

ago, has recently joined with California, Florida, Michigan, and Nebraska in trying to abolish JLWOP.

Jodie and Billy Sinclair, Capital Punishment: An Indictment by a Death Row Survivor, in Youth

Violence (Arcade Publishing, N.Y. 2009). This indicates that although there has not been a large shift at

this time that states are leaning toward the abolition of the punishment. Id.

Prior to Roper, the Ninth Circuit held in Harris v. Wright that it was not cruel and unusual within

the meaning of the Eighth Amendment to sentence a fifteen year old first-time offender convicted of

felony to murder to life without parole, even though his co-defendant fired the gun. 93 F.3d 581, 585

(9th Cir. 1996). The Ninth Circuit Court came to its decision based on the fact that defendant was unable

to exhibit evolving standards of decency. Id. With the changes at the state level and the Roper decision,

that same court found Jenna Hawkins‟s sentence of life without parole to be disproportionate. U.S. v.

Hawkins, No. 09-46746 F.3d 28, 32 (9th Cir. Oct. 2, 2009). Jenna is a fifteen year old first-time offender

convicted of felony-murder exactly like the Harris v. Wright defendant, and with the changes that have

occurred since the Roper holding the Ninth Circuit has also changed their view as to the culpability of

juveniles. Id. Moreover, the Roper decision came down less than five years ago meaning that the

grassroots movements are just getting started and could lead to more change. Roper, 543 U.S. at 568-72.

ii. The Independent Judgment of the Court Indicates that JLWOP is Extreme

The Court in Roper exercised its independent judgment to determine that the death penalty was a

disproportionate penalty when applied to the class of juveniles. 543 U.S. at 570. To give juveniles a

sentence a longer sentence than adults is unreasonable leading the Court in Roper to recognize that

juveniles, as a class, differ from adults. Hawkins at 31. Furthermore the Court noted three general

difference between juveniles and adults that diminish the culpability of the child, they: “(1) have „a lack

18
of maturity and an underdeveloped sense of responsibility‟ that can result „in impetuous and ill-

considered actions and decisions‟; (2) „are more vulnerable or susceptible to negative influences and

outside pressures, including peer pressure‟; and (3) have personalities that are not as well formed as that

of an adult.” Id. These judgments are consistently confirmed by neurological, psychosocial, and

cognitive studies. Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence:

Why Adolescents May Be Less Culpable Than Adults, 18 Behav. Sci. & L. 741 (2000).

Neurological research shows that the human brain continues to develop after adolescence,

growing in volume and becoming more organized into a person's twenties. Elizabeth R. Sowell et al., In

Vivo Evidence for Post-Adolescent Brain Maturation in Frontal and Striatal Regions, 2 Nature

Neuroscience 859, 861 (1999). In particular, the frontal lobe, the area responsible for impulse control,

judgment, problem solving, and behavior, undergoes substantial growth during adolescence. Id.

Therefore, “instead of using the frontal lobe to make decisions, adolescents rely more heavily on the

amygdala, the emotional center of the brain . . .” causing adolescents to be more prone to erratic

behavior. Mary Beckman, Neuroscience: Crime, Culpability, and the Adolescent Brain, 305 Science 596,

596 (2004).

Moreover, research on “psychological development attributes adolescent immaturity to two types

of deficiencies: cognitive and psychosocial.” Cauffman & Steinberg, supra note 7, 18 Behav. Sci. & L.

at 742-43. Cognitive development explains the decision-making ability of adolescents. Id. While,

psychosocial development refers to the values and preferences that dictate juveniles‟ decision making

skills. Id. “Although researchers disagree on the extent to which adolescents and adults differ in

cognitive reasoning, studies have identified strong psychosocial differences that may affect

determinations of culpability.” Massey, 46 B.C. L. Rev. at 1092. Researchers have identified four

psychosocial factors that affect the way adolescents make decisions, including whether to commit a

crime or an antisocial act: peer influence, attitude toward risk, future orientation, and capacity for self-

management. Cauffman & Steinberg, 18 Behav. Sci. & L. at 745. In one study, adolescents on average

19
scored significantly lower than adults on these factors and displayed less sophistication in decision

making. Id. at 756. Further, researchers found that the period between ages sixteen and nineteen is an

important transition point in psychosocial development. Id. at 756-57. Adolescents are more focused on

short-term consequences and less sensitive to future outcomes, a combination that can lead to risky

behavior. Id. at 745. When faced with a stressful situation, adolescents fail to see more than one option

due to their lack of experiences and ineffective information-processing abilities. Id. These attributes lead

many adolescents to experiment with criminal conduct. Id. For most children, antisocial conduct is

"adolescence-limited"; in other words, they can be rehabilitated. Id.; Ewing, 538 U.S. at 25.

Because juveniles are less culpable based on their early stages of development, the Court decided

that the policy considerations, retribution and deterrence, could not apply as strongly to children. Roper,

543 U.S. at 571. This notion easily pertains to life without parole as none of the penological

justifications are applicable and at least one has to be for the penalty to be reasonable. Ewing, 538 U.S.

at 24-25. First, rehabilitation by definition is not a purpose of life without parole because the opportunity

for release into society as a better person is not an option. Id. In reality, adolescents are more likely to

respond to rehabilitation than an adult making this penological justification of the utmost important to

juveniles and society. Id. Second, deterrence fails given the inability of children to consider the

consequences of their actions. Naovarath v. State, 779 P.2d 944, 948 (Nev. 1989) (emphasizing that

adolescents place more value on short-term consequences since they are less aware to future results).

Third, incapacitation by definition obtains its goal, but the lessened culpability of children does not

warrant life in prison without the possibility of parole. Id. Finally, retribution fails as children do not

deserve the degree of retribution represented by life without parole given their decreased culpability,

their capacity for growth, and society‟s obligation to children. Id. Furthermore, juveniles as a class are a

discreet and insular minority that lacks political representation. In re Gault, 387 U.S. 1, 18-20 (1967).

They do not have the right to serve on a jury or vote to change their circumstance, yet can be sentenced

to a lifetime in prison because of mandatory laws and juries that find them guilty of their crimes. Id. It is

20
unfair to sentence such a class to when they have no representation or ability to be heard, this court

should acknowledge this injustice, act accordingly and eradicate JLWOP. Id. at 33, 36-37, 55-56

(granting juveniles protection under the Bill of Rights with the right to counsel, the privilege against

self-incrimination, and the right to cross-examination of witnesses).

Lastly, the Court should look to international standards to confirm its judgment through general

consensus on human rights and in understanding the disproportionality of the mode of punishment.

Roper, 543 U.S. 578. As wholeheartedly as the international community distastes the death penalty, they

reject juvenile life without parole. Id. at 575. Only three other countries have children serving life in

prison without parole. They include Israel (with seven), South Africa (with four), and Tanzania (with

one). Adam Liptak, Serving Life, With No Chance of Redemption, N.Y. Times, Oct 5, 2005, at A1. The

United Kingdom, with whom the U.S. maintains political relations and values, prohibited juvenile life

without parole in 1996. Hussain v. United Kingdom, 22 Eur. Ct. H.R. 1, 27 (1996). Furthermore, in the

United Nations Convention on the Rights of the Child, which proscribes JLWOP, was ratified by every

country in the world except the United States and Somalia. The Rest of Their Lives. In light of the

reality that the U.S. stands alone in its high number of juvenile offenders serving life in prison and that

this same notion, of international law proscribing both juvenile death penalty and life without parole,

affected the Roper Court in its elimination of the death penalty. Roper, 543 U.S. at 575.

b. Even if the Court Does Not Create a Categorical Exemption for Juveniles, it Should
Hold that the Harshness of the Sentence of Life Imprisonment Without the
Possibility of Parole Outweighs the Gravity of the Felony-Murder Committed by a
First-Time Offender, Jenna Hawkins.

If the Court does not find the categorical analysis convincing to create an exemption for

juveniles from life imprisonment without parole, it should still hold that the punishment violates the

Eighth Amendment. Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring). Solem v. Helm created a

three-part test that was altered by the Harmelin Court into the simple test of individual analysis of the

particular offense weighed against the harshness of the penalty. Id. at 1005; Solem v. Helm, 463 U.S.

21
377, 292 (1983) (looking at the three factors of “(i) the gravity of the offense and the harshness of the

penalty; (ii) the sentences imposed on other criminal in the same jurisdiction . . .; and (iii) the sentences

imposed on for the same crime in other jurisdictions.”). Despite disagreement among the justices, Justice

Kennedy, joined by Justices O‟Connor and Souter, recognized that a non-capital sentence could violate

the Eighth Amendment as applied if it was grossly disproportionate to the crime. Harmelin, 501 U.S. at

1005. Justice Kennedy rejected the idea of Solem‟s formulaic test, and instead concluded that looking to

intrajuridictional and interjurisdictional opinions was only appropriate when the threshold comparison

led to an inference of gross disproportionality. Id. Here, based on the presumption of gross

disproportionality, such analysis will be combined within the prongs of the Kennedy test. Id. At least

three circuit courts regard Kennedy‟s test as the rule of Harmelin because it is the position taken by the

plurality and of those who concurred in the judgment on the narrowest grounds. See Andrade v.

Attorney Gen. of Cal., 270 F.3d 743, 754 (9th Cir. 2001); Henderson v. Norris, 258 F.3d 706, 709 (8th

Cir. 2001); U.S. v. Jones, 213 F.3d 1253, 1261 (10th Cir. 2000); The Court comes to this decision by

considering the gravity of the offense and the harshness of the penalty. Harmelin, 501 U.S. at 1005.

Although success is rare, the Court should find dispropotionality in juvenile life without parole cases. Id.

i. Gravity of the Offense

The gravity of the offense is determined by the culpability of the offender and the harm caused to

the victim or society. Solem, 463 U.S. 292, 296-97. In Roper v. Simmons, the Supreme Court decided

that children are less culpable than adults based on the neurological and psychological differences as

well as susceptibility to peer influence. Roper, 543 U.S. at 570. Therefore, when reviewing a sentence,

such as Jenna‟s, the Court should assign less weight to crimes committed by juveniles. Id.

Moreover, lower courts have regarded felony-murder convictions as applied to the party lacking

intent to kill as the lowest level of culpability. See Tison v. Arizona, 481 U.S. 137, 158 (1987) (holding

that the culpability requirement is only satisfied by major participation in a felony combined with

reckless indifference to human life). In People v. Miller, the court affirmed a decision to reduce a

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mandatory sentence of life without parole imposed on a fifteen year old who acted as a lookout in the

murder of two gang members. 781 N.E. 2d 300, 310 (Ill. 2002). The court reduced his mandatory

sentence of life without parole stating that such a sentence imposed on a child who had one minute to

contemplate his involvement violates the constitution. Id. at 308-310 (citing Ill. Const. art. I, § 11).

Similarly, Jenna Hawkins sentence was mandated by law and she lacked major participation in the

felony as she was simply the lookout for her mother. (R at 2). Furthermore, she only had a second to

contemplate the situation as her mother grabbed the gun away from her and quickly fired at the diplomat.

(R at 2-3). Although Leon Miller never held the gun, he was aware that potential violence would ensue

as his gang encountered a rival gang, while Jenna‟s felony-murder was in the commission of a burglary

where violence was not necessarily inevitable. Miller, 781 N.E. 2d at 302; (R at 2).

Furthermore, the definition generally means there is a lack of intent to participate in or

knowledge that a murder would occur. Enmund v. Florida, 458 U.S. 782, 788 (1982) (holding that the

death penalty is unconstitutional when imposed on robbery-felony murderers). Given, this is the exact

case for Jenna Hawkins, the Court should find that her crimes are less grave, especially when committed

by a juvenile who lacks the psychological growth and is easily influenced by her environment. Id.

Children depend upon adults to care for them, to nurture their growth as individuals, and enable them to

develop the capacity for positive behavior and moral action. Barry C. Feld, Competence, Culpability,

and Punishment: The Implication of Atkins for Executing and Sentencing Adolescents, 32 Hofstra L.

Rev. 463, 514 (2003). The family and community is the ultimate source of this ethical education. Id.

“Neighborhoods characterized by weak informal social controls provide greater” exposure to criminal

activity and risk. Id. Unlike adults, juveniles‟ dependency limits their ability to escape this environment.

Id. at 515. Despite Jenna‟s Christian education, her mother committed crimes in front of her and forced

her inclusion, giving the impression that such behavior was acceptable. (R at 1-3). Moreover, she was

surrounded by violence and criminal activity as she lived in one of the most dangerous neighborhoods,

in the U.S. (R at 1). Although, she tried her best to escape through Student Council, volleyball and a

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high GPA, she was held back by Arlena and the community that surrounded her. (R at 27). In the 2009

case of In re Nuñez, a court vacated the defendant‟s life without parole sentence based on his

vulnerability as a result of his environment. 173 Cal. App. 4th 709, 736 (2009). Nuñez, attempted to

leave his hometown and start anew but when he was forced back to California his peers and violent

neighborhood pushed him into his old ways. Id. at 720 (“After his recovery, Nuñez left California and

stopped associating with the gang, covered his tattoos, and became an obedient and helpful middle

schooler . . .”). His coperpetrator, who was almost twice his age, in this South Central Los Angeles

neighborhood led to his perpetration of his non-homicide offense. Id. at 736. Similarly, Jenna‟s mother

was a bad influence and out of fear for her mother and livelihood, she obliged to committing a non-

homicide offense. (R at 2). As stated in the expert testimony, 70% of JLWOP cases have an adult

accomplice and often this perpetrator is making the calls. (R at 23). Moreover, the South Central LA

communities, including Compton, are inhabited by Latinos and African Americans, making these

children more vulnerable to a criminal lifestyle. Id. This is unnerving, when research reveals that Blacks

and Latinos, such as Hawkins and Nuñez, are convicted and sentence to life without parole ten times

more often than whites. (R at 24). Given a different environment, Jenna would have never gotten

involved in crime based on her rejection of the lifestyle in her school life. (R at 27). Thus, the gravity of

her offense cannot justifiably result in a life without parole sentence.

ii. The Harshness of the Penalty

When determining the harshness of the penalty, the court looks to the criminal record of the

offender followed by analysis of intrajurisdictional and interjurisdictional norms. Harmelin, 501 U.S. at

1005. In Nuñez, the court looked to offender‟s history of crime to establish whether the penalty would

be acceptable. In re Nuñez, 173 Cal. App. 4th at 736. However, unlike his adult counterparts Nuñez did

not have a history of violent crime. Id. Yet, he did have a history of committing burglary, possessing

stolen property, drug possession and was charged and sent to juvenile camp for possessing a concealed

weapon. Id. at 736-37. Despite these indiscretions, the court found he was undeserving of the harsh

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sentence of JLWOP. Id. at 737. Although Jenna admitted to aiding her mother in her fake charity, she

left that life behind at fourteen when she realized it was wrong and no charges were ever filed. (R at 27).

She is, for all purposes, a first-time offender and the penalty of JLWOP is extremely harsh for such an

offender. Harmelin, 501 U.S. at 1005.

The gravity of her offense, felony-murder for which she was only present and did not have the

requisite mens rea, weighed against death behind bars . . . the gross disproportionality is clear. Harmelin,

501 U.S. at 1005. As was the case in Enmund v. Florida, where the Court held that the death penalty

generally was unconstitutional when imposed on robbery-felony, Jenna had a limited participation in the

murder committed. 458 U.S. at 788. To punish so greatly for a crime out of the hands of the offender is

the prototype of gross proportionality. Id. Therefore, this Court lower Jenna Hawkins‟ sentence. Id.

People say that the punishment should fit the crime, but the penalty should also further some

penological purpose for the betterment of society. Atkins v. Virginia, 536 U.S. at 311; Ewing, 538 U.S.

at 24-25. Juvenile life without parole does little to further these justifications because children lack

culpability. Ewing, 538 U.S. at 24-25. This practice is limited to the United States and is easily remedied

through the possibility of parole. Roper, 543 U.S. at 572. Although it is simpler to have a bright line rule,

our children are suffering and the use of individual assessment to determine proper sentences for the

crime committed is thorough rather than efficient.

CONCLUSION

The Court should affirm the decision of the Court of Appeals that the search of the Hawkins‟

residence was improperly conducted leading to the seizure of items not covered by the warrant. In the

event this Court determines that the search of the home and seizure of incriminating items is legitimate,

Respondent requests that this Court sustain the decision of the District Court, finding that the sentence

of juvenile life without parole is unconstitutional, as it imposes a death sentence on children behind bars

while they lack culpability and remand the case for further review.

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Packet No. 22
Attorney for Respondents, Arlena & Jenna Hawkins

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