The Pennsylvania Law Weekly
November 27, 2012
The failure to vigorously investigate and present mitigation evidence in cases where juveniles are charged with first-degree murder may give rise to claims of ineffective assistance of counsel.
Under Strickland v. Washington, 104 S. Ct. 2052 (1984), an attorney is deemed ineffective when his or her performance falls below a reasonable standard, as defined by professional norms, and when the attorney's failure results in prejudice. The presentation of mitigation evidence in non-death penalty sentencing hearings is not universally required of defense counsel, wrote Beth Caldwell in "Appealing to Empathy: Counsel's Obligation to Present Mitigating Evidence for Juveniles in Adult Court."
However, that may no longer be the case in Pennsylvania and across the country. There are a series of U.S. Supreme Court decisions and new legislation in Pennsylvania that seems to imply in juvenile homicide cases that the presentation of a sentencing advocacy package is now necessary and the failure to do so may be ineffective assistance of counsel.
Senate Bill 850, now known as Act 204 of 2012, recently signed by Governor Tom Corbett, was enacted to address the U.S. Supreme Court decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), striking down mandatory life in prison for juveniles convicted of homicide. The new statute requires that the sentencing judge consider the age, mental capacity, maturity, degree of sophistication, prior delinquent conduct, criminal history and institutional conduct of the offender.
The U.S. Supreme Court's decisions in Roper v. Simmons, 125 S. Ct. 1183 (2005), and Graham v. Florida, 130 S. Ct. 2011 (2010), demonstrated that mitigating information about a juvenile accused of a crime is important to the court. In both cases, the court considered the tumultuous life histories of teenage defendants in conjunction with adolescent brain development research.
The high court in Roper established that because juveniles have lessened culpability, they are less deserving of the most severe punishments. As compared to adults, juveniles have a "lack of maturity and an underdeveloped sense of responsibility."
The court continued, juveniles "are more vulnerable or susceptible to negative influences and outside pressures." As a result, the court held that sentencing juvenile offenders to death violated the Eighth Amendment's prohibition against cruel and unusual punishment.
The court in Miller reasoned that the Graham and Roper decisions stood for the idea that "in imposing a state's harshest penalties, a sentencer misses too much if he treats every child as an adult."
The linchpin of the Miller decision was that "mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him."
The mitigation evidence that defense counsel is required to present during the penalty phase of a capital case is essentially the same evidence courts consider in sentencing juvenile offenders facing life in prison or some lesser sentence, establishing similarities between capital sentencing and sentencing juvenile offenders.
In the capital context, attorneys are responsible for gathering evidence about a defendant's childhood, mental capacity, health, history of substance abuse, experiences of abuse and neglect, and developmental disabilities.
"It is incompetent for counsel to fail to present this information to a judge charged with determining a young person's fate," Caldwell wrote.
In Pennsylvania, the legislature went to work quickly after the Miller decision, and the result is Act 204. The act provides an alternative to mandatory life in prison. The new law provides for juveniles convicted of first-degree murder, ages 15 and older, to be sentenced to 35 years or life in prison. For those convicted of murder under age 15, the sentence can range from 25 years to life.
More importantly, the act provides that a judge must consider age-related characteristics of the defendant. Those characteristics include, specifically: age, mental capacity, maturity, criminal sophistication, criminal history, institutional conduct and other relevant factors.
Defense counsel who fail to explore mitigation will not only fail to comply with the act, but will most assuredly fail their clients.
Interestingly, the act also provides, as in capital cases, that the district attorney must provide notice to the defendant if the commonwealth intends to seek life in prison for a juvenile offender. The notice provision further reinforces the similarities between capital sentencing and sentencing juvenile homicide offenders.
Whether the notice requirement is indicia of heightened responsibility, the reality is that 94 percent of state cases end in plea bargains. That statistic presents yet another potential pitfall for counsel representing a juvenile accused of first-degree murder.
The U.S. Supreme Court decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), extended the protections of the Sixth Amendment — the right to assistance of counsel — to plea bargaining. Defense lawyers will now be subject to scrutiny in terms of their plea-bargaining negotiation on behalf of their respective clients.
In Cooper, the court considered whether an attorney's advice to his client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Frye, the court considered whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Mitigation is not just for sentencing. The onus is on defense counsel to begin investigating mitigation at the earliest stages, so that information is available during plea negotiations. The failure to do so may open the door to ineffectiveness claims.
Some states have anticipated the collateral responsibilities that have grown out of the Miller decision. In Massachusetts, the Youth Advocacy Department recently announced the creation of a "Juvenile Life Without Parole Sentencing Advocate." The advocate will assist in the preparation of a capital "penalty phase" like a sentencing hearing. The sentencing advocate is analogous to a mitigation specialist retained to prepare for sentencing in a capital case.
With the issue of retroactivity still pending in Pennsylvania and the commonwealth having more juvenile lifers than any other state, defense attorneys would do well to start thinking about sentencing advocacy as an essential component of any competent juvenile homicide defense strategy.
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Michael Thomas Gargiulo, Pretrial Hearing 41
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