Nos. 08-7412, 08-7621

In the Supreme Court of the United States

Terrance Jamar Graham,

Petitioner,

v.

State of Florida,

Respondent.

Joe Harris Sullivan,

Petitioner,

v.

State of Florida,

Respondent.

On Writs of Certiorari tothe First District Court of Appeal of Florida

BRIEF OF DISABILITY RIGHTSLEGAL CENTER AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Paula D. PearlmanCarly J. Munson

Disability Rights LegalCenter

919 Albany St.Los Angeles, CA 90015(213) 736-1031

Neil M. SoltmanCounsel of RecordMayer Brown LLP350 South Grand Ave.Los Angeles, CA 90071(213) 229-9500

Additional counsel listed inside front cover

Donald M. FalkMayer Brown LLPTwo Palo Alto Square3000 El Camino RealPalo Alto, CA 94306(650) 331-2000

Brian J. WongMayer Brown LLP1909 K Street, N.W.Washington, DC 20006(202) 263-3000

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTEREST OF THE AMICUS CURIAE....................1

INTRODUCTION AND SUMMARY OFARGUMENT ...............................................................2

ARGUMENT ...............................................................4

A. Life Without Parole Is AnUnconstitutionally DisproportionatePunishment Because Juveniles AreLess Morally Culpable......................................6

B. The High Prevalence Of DisabilitiesAmong Juvenile Offenders MakesJudicial Assessment Of TheirCulpability Insufficiently Reliable ToSupport Irrevocable Punishment.....................8

1. Juveniles With Disabilities AreDisproportionately Affected By TheCriminal Justice System.............................9

2. Sporadic Recognition Of JuvenileDisability Further Impedes TheReliable Assessment Of JuvenileCulpability. ................................................12

3. Juveniles With Disabilities AreSystematically Disadvantaged InTheir Dealings With The CriminalJustice System...........................................15

C. The Presence Of Disability ExacerbatesThe Unconstitutional DisproportionalityOf Juvenile Life-Without-ParoleSentences. .......................................................20

CONCLUSION ..........................................................23

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TABLE OF AUTHORITIES

Page(s)

CASES

Anders v. California, 386 U.S. 738 (1967)............... 18

Atkins v. Virginia, 536 U.S. 304 (2002)............. 16, 22

Eddings v. Oklahoma, 455 U.S. 104 (1982) .............. 6

In re Gault, 387 U.S. 1 (1967) .................................. 18

Green v. Johnson,513 F. Supp. 965 (D. Mass. 1981)....................... 21

Lee v. Weisman, 505 U.S. 577 (1992)......................... 7

Roper v. Simmons, 543 U.S. 551 (2005) ...........passim

Thompson v. Oklahoma,487 U.S. 815 (1988)................................... 3, 5, 6, 7

STATUTES, RULES, AND REGULATIONS

20 U.S.C. § 1412(a)(1)(A) ......................................... 21

20 U.S.C. § 1412(a)(11)(C)........................................ 21

20 U.S.C. § 1412(a)(3) .............................................. 14

Fla. Stat. Ann. § 985.56(1) ......................................... 5

OTHER AUTHORITIES

ABA Juvenile Justice Center, Special Ed KidsIn The Justice System: How To Recognizeand Treat Young People with Disabilitiesthat Compromise Their Ability ToComprehend, Learn, and Behave (LourdesM. Rosado ed., 2000) ........................................... 11

Norman Brier, The Relationship BetweenLearning Disability and Delinquency: AReview and Reappraisal, 22 J. LearningDisabilities 546 (1989) ........................................ 11

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TABLE OF AUTHORITIES—continued

Page(s)

Margaret A. Bowring & Maria Kovacs, Diffi-culties in Diagnosing Manic DisordersAmong Children and Adolescents, 31 J.Am. Acad. Child. Adolescent Psych. 611(1992)................................................................... 13

Gabrielle A. Carlson, The Challenge of Diag-nosing Depression in Childhood and Ado-lescence, 61 J. Affective Disorders 3 (2000)........ 13

Judith Cockram, Justice or Differential Treat-ment? Sentencing of Offenders with an In-tellectual Disability, 30 J. Intell. & Dev.Disability 3 (2005)............................................... 19

Rani A. Desai et al., Mental Health Care inJuvenile Detention Facilities: A Review, 34J. Am. Acad. Psych. & Law 204 (2006) ........ 13, 20

Steven A. Drizin & Richard A. Leo, The Prob-lem of False Confessions in the Post-DNAWorld, 82 N.C. L. Rev. 891 (2004)................ 16, 17

James W. Ellis & Ruth A. Luckasson, Men-tally Retarded Criminal Defendants, 53Geo. Wash. L. Rev. 414 (1985)............................ 17

Seena Fazel et al., Mental Disorders AmongAdolescents in Juvenile Detention and Cor-rectional Facilities: A Systematic Reviewand Metaregression Analysis of 25 Surveys,47 J. Am. Acad. Child Adolescent Psych.1010 (2008) ...................................................... 9, 15

Barry C. Feld. A Slower Form of Death: Impli-cations of Roper v. Simmons for JuvenilesSentenced to Life Without Parole, 22 NDJ.L. Ethics & Pub Pol’y 9 (2008)......................... 19

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TABLE OF AUTHORITIES—continued

Page(s)

Christopher B. Forrest et al., The Health Pro-file of Incarcerated Male Youths, 105 Pedi-atrics 286 (2000).................................................... 9

Carolyn G. Grande, Delinquency: The Learn-ing Disabled Student’s Reaction to Aca-demic School Failure?, 23 Adolescence 209(1988)................................................................... 11

Paul E. Greenbaum, Service Use Among Ado-lescents With Comorbid Mental Health andSubstance Use Disorders, available athttp://www.drugabuse.gov/meetings/child-hood/Commissioned/Greenbaum/Greenbaum.pdf.................................................... 20

Thomas Grisso, Juveniles’ Capacities to WaiveMiranda Rights: An Empirical Analysis, 68Calif. L. Rev. 1134 (1980) ................................... 17

Thomas Grisso et al., Juveniles’ Competence toStand Trial: A Comparison of Adolescents’and Adults’ Capacities as TrialDefendants, 23 Law & Hum.Behav. 333 (2003).............................. 15, 16, 17, 18

Thomas Grisso, The Competence of Adolescentsas Trial Defendants, 3 Psychol. Pub. Pol’y& L. 3 (1997).................................................. 17, 19

Bonnie L. Halpern-Felsher & Elizabeth Cauff-man, Costs and Benefits of a Decision: De-cision-making Competence in Adolescentsand Adults, 22 J. Applied Dev. Psych. 257(2001)..................................................................... 6

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TABLE OF AUTHORITIES—continued

Page(s)

Lindsay M. Hayes, U.S. Dep’t of Justice, Officeof Juvenile Justice and Delinquency Pre-vention, Juvenile Suicide in Confinement:A National Survey (2009) ............................. 20, 22

Human Rights Watch, Thrown Away(2005),available at http://www.hrw.org/reports/2005/us0205/us0205.pdf .................. 21

Human Rights Watch, When I Die, They’llSend Me Home: Youth Sentenced to Lifewithout Parole in California (2008), avail-able at http://www.hrw.org/reports/2008/us0108/us0108web.pdf ................................. 19, 21

Illinois Coalition for the Fair Sentencing ofChildren, Categorically Less Culpable:Children Sentenced to Life Without Possi-bility of Parole in Illinois (2008), availableat http://www.law.northwestern.edu/cfjc/jlwop/JLWOP_Report.pdf .............. 21

Lisa H. Jaycox et al., Mental Health andMedical Problems and Service Use AmongAdolescent Substance Users, 42 J. Am.Acad. Child Adolescent Psych. 701 (2003) ......... 13

Matthew B. Johnson & Ronald C. Hunt, ThePsycholegal Interface in Juvenile Assess-ment of Miranda, 18 Am. J. Forensic Psy-chol. 17 (2000) ..................................................... 17

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TABLE OF AUTHORITIES—continued

Page(s)

Alan E. Kazdin, Adolescent Development, Men-tal Disorders, and Decision Making of De-linquent Youths, in Youth on Trial: A De-velopmental Perspective on Juvenile Justice(Thomas Grisso & Robert G. Schwartz eds.,2000) ...................................................................... 7

Reed Larson et al., Mood Variability and thePsychosocial Adjustment of Adolescents, 9J. Youth & Adolescence 469 (1980) ...................... 6

Peter E. Leone et al., Understanding the OverRepresentation of Youths with Disabilitiesin Juvenile Detention, 3 D.C.L. Rev. 389(1995)................................................................... 14

Daniel P. Mears & Laudan Y. Aron, UrbanInstitute Justice Policy Center, AddressingThe Needs of Youth With Disabilities in theJuvenile Justice System: The Current Stateof Knowledge (2003) ...................................... 11, 14

Candice L. Odgers et al., Misdiagnosing theProblem: Mental Health Profiles of Incar-cerated Juveniles, 14 Can. Child AdolescentPsych. Rev. 26 (2005) ...................................... 9, 10

Su-chin Serene Olin & Kimberly Hoagwood,The Surgeon General’s National ActionAgenda on Children’s Mental Health, 4Current Psych. Rpts. 101 (2002) ........................ 14

Joan Petersilia, California Policy ResearchCenter Report Series, Doing Justice?Criminal Offenders with DevelopmentalDisabilities (2000) ......................................... 18, 19

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TABLE OF AUTHORITIES—continued

Page(s)

Andres J. Pumariega et al., Utilization of Men-tal Health Services in a Tri-Ethnic Sampleof Adolescents, 34 Cmty. Mental Health J.145 (1998) ............................................................ 14

Mary M. Quinn et al., Youth with Disabilitiesin Juvenile Corrections: A National Survey,71 Exceptional Children 339 (2005)............. 10, 11

Allison D. Redlich & Gail S. Goodman, TakingResponsibility for an Act Not Committed:The Influence of Age and Suggestibility, 27Law & Hum. Behav. 141 (2003) ......................... 17

Eileen P. Ryan & Richard E. Redding, A Re-view of Mood Disorders Among Juvenile Of-fenders, 55 Psych. Servs. 1397 (2004) ................ 22

Jay A. Sevin et al., Psychiatric Disorders inAdolescents with Developmental Disabili-ties: Longitudinal Data on Diagnostic Dis-agreement in 150 Clients, 34 Child Psych.& Hum. Dev. 147 (2003) ..................................... 12

Laurence Steinberg & Robert G. Schwartz,Developmental Psychology Goes to Court, inYouth on Trial: A Developmental Perspec-tive on Juvenile Justice (Thomas Grisso &Robert G. Schwartz eds., 2000) ............................ 7

Deborah Shelton, Emotional Disorders inYoung Offenders, 33 J. of Nursing Scholar-ship 259 (2001).................................................... 10

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TABLE OF AUTHORITIES—continued

Page(s)

Jennie L. Shufelt & Joseph J. Cocozza, Nat’lCtr. For Mental Health And Juvenile Jus-tice, Youth With Mental Health DisordersIn The Juvenile Justice System: ResultsFrom A Multi-State Prevalence Study(2006) ............................................................ 10, 13

Linda A. Teplin et al., Psychiatric Disorders inYouth in Juvenile Detention, 59 ArchivesGen. Psych. 1133 (2002)...................................... 10

Joseph B. Tulman, Disability and Delin-quency: How Failures to Identify, Accom-modate, and Serve Youth with Education-Related Disabilities Leads to Their Dispro-portionate Representation in the Delin-quency System, 3 Whittier J. Child & Fam.Advoc. 3 (2003) ........................................ 14, 18, 19

Gail A. Wasserman et al., U.S. Dep’t of Jus-tice, Office of Justice Programs, JuvenileJustice Bulletin, Assessing the MentalHealth Status of Youth in Juvenile JusticeSettings (2004)..................................................... 15

Jennifer Wood et al., An Examination of theRelationships Between Violence Exposure,Posttraumatic Stress Symptomatology, andDelinquent Activity: An “Ecopathological”Model of Delinquent Behavior Among In-carcerated Adolescents, 6 J. Aggression,Maltreatment & Trauma 127 (2002).................. 20

Tamara Zenz & George Langelett, SpecialEducation in Wisconsin’s Juvenile Deten-tion System, 55 J. Corr. Educ. 60 (2004) ............ 11

BRIEF OF DISABILITY RIGHTSLEGAL CENTER AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS 1

INTEREST OF THE AMICUS CURIAE

The Disability Rights Legal Center (DRLC) is anon-profit organization dedicated to promoting therights of people with disabilities and to heighteningpublic awareness of those rights by providing legaland related services. DRLC accomplishes its missionthrough many programs, including the Cancer LegalResource Center (a joint program with Loyola LawSchool), the Education Advocacy Program, the Edu-cation and Outreach Program, and the Civil RightsLitigation Program. Since 1975, DRLC has handledcountless disability rights cases under state and fed-eral civil rights laws challenging discriminatorypractices by government, business, and educationalinstitutions.

DRLC has a particular interest in juvenile justiceissues. DRLC provides legal advocacy to ensure thatat-risk youth receive appropriate general and specialeducation services in their community, thereby re-ducing the likelihood that they will one day becomeinvolved in the juvenile and adult justice systems.Because early intervention is far from comprehen-sive, a large proportion of youth who do become in-

1 Pursuant to Rule 37.6, amicus affirms that no counsel for aparty authored this brief in whole or in part and that no personother than amicus and its counsel made a monetary contribu-tion to its preparation or submission. Counsel of record for allparties received notice at least 10 days before the due date ofthe intention of amicus to file this brief. The parties’ lettersconsenting to the filing of this brief are filed with the Clerk’s of-fice.

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volved in the juvenile delinquency system have un-detected learning-related disabilities. DRLC’s Juve-nile Justice Section accordingly works to ensure thatcourt-involved youth with special education needsreceive appropriate education and related services.DRLC supports criminal justice policies that recog-nize the special needs of juveniles and the factorsthat uniquely affect their culpability. It therefore op-poses the imposition of life-without-parole sentenceson juveniles whose offenses were committed beforethe age of 18.

INTRODUCTION ANDSUMMARY OF ARGUMENT

Sending children to prison for life without paroleviolates the Eighth Amendment because the practiceis both cruel and unusual. It is grossly dispropor-tionate to juvenile culpability, especially for non-homicidal crimes like those at issue here. It is excep-tionally unusual in modern society. And it is unusu-ally cruel in light of the offender’s extreme youth,which more often than not is accompanied by a de-velopmental disability.

A juvenile sentence of life without parole is as fi-nal and irrevocable as a juvenile death sentence. Itcondemns the juvenile to die in prison as surely as adeath sentence; under both sentences the juvenileenters prison as a shackled teenager and decadeslater leaves in a pine box. The sole difference is thatin life without parole the State awaits the death,rather than inflicts it. But a sentence of life withoutparole, just as certainly as a death sentence, fore-closes any prospect of personal rehabilitation or so-cietal reentry, and accordingly should be reserved forthe very worst of offenders, those whose prior culpa-bility is unquestionable and whose future rehabilita-

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tion inconceivable. The same considerations that ledthis Court to find juvenile executions unconstitu-tional in Roper v. Simmons, 543 U.S. 551 (2005), andThompson v. Oklahoma, 487 U.S. 815 (1988), renderthe sentence here beyond the scope permitted by theEighth Amendment.

Although children should be held accountable fortheir crimes, it does not follow that they should bepunished identically to adults. Society has long dis-tinguished among the rights, privileges, and burdensof adults and children. See Br. for Pet. in No. 08-7621, App. A. Children are not miniature adults butrather are fundamentally different. They are moreimpulsive and less able to assess the risks and con-sequences of their actions. Moreover, because chil-dren are not neurologically complete, they are farless likely to be truly hardened criminals. Thus,children have a greater potential for rehabilitation.The constitutional limits on their punishment shouldreflect those inherent differences.

This brief explains how juveniles’ special suscep-tibility to emotional, psychological, and learning-related disabilities affects the constitutional limitson their sentencing. Juveniles with serious emo-tional, psychiatric, and learning-related brain dis-abilities are significantly overrepresented in the in-carcerated population. Juveniles suffering from seri-ous disabilities, moreover, are likely to be particu-larly disadvantaged at every stage of their dealingswith the criminal justice system. When their dis-abilities are unrecognized, as is often the case, theseproblems intensify. The cases before this Court areillustrative—both Graham (in No. 08-7412) and Sul-livan (in No. 08-7621) have substantial disabilities,yet there is no evidence that their disabilities re-

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ceived any consideration at sentencing. And the dis-proportionality of a sentence of life without parole isespecially pronounced for juveniles with disabilities,given the realities of long-term incarceration in fa-cilities where harsh and austere conditions purposelytax the most hardened adult inmate; those sameconditions aggravate existing juvenile deficits.

The high frequency of disabilities in juveniles in-volved in the criminal justice system further impedesthe reliable assessment of juvenile culpability. Con-sequently, any irrevocable assessment of culpabilityis necessarily unsound and a lifelong sentence un-constitutionally excessive. The discredited notionthat juveniles are merely adults in training and thusshould be subject to the same punishment should belaid to rest. As this Court has recognized, juveniles,and especially juveniles with diminished capacities,present different issues of culpability entirely. Be-cause the nature and the assessment of juvenile cul-pability make final and irrevocable judgments irra-tional, a sentence to a juvenile of life without parolefor a non-homicidal offense exceeds constitutionallimits in the same way as a death sentence for a ju-venile who commits a homicide.

ARGUMENT

A wealth of psychosocial and neurological re-search shows that juveniles differ from adults innumerous ways that reduce their moral culpability.These developmental limitations and deficiencies aremagnified when disability is a factor. It is thereforeunsurprising that juveniles with disabilities areoverrepresented (and fare especially poorly) in thecriminal justice system. This fact illuminates thefundamentally mistaken assumption about juvenileculpability that underlies juvenile sentences of life

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without parole: namely, that it is possible to concludethat a juvenile—in these cases a 17-year-old and a13-year-old, in another perhaps a 10-year-old—iswholly unredeemable and should, for that reason, bepermanently banished from free society.2 To the con-trary, the defining characteristic of juvenile person-ality is its transience. All juveniles mature, and thecontrol that comes with maturity can check thetransgressive influences of disability—influencesthat are particularly pronounced on the still-formingjuvenile psyche. A sentence of life without parolepresumes irreparable corruption when in fact juve-nile offenders are immature, often have disabilities,act impulsively, and—above all—are still in the proc-ess of growing into the adults they eventually willbecome. For that reason, this Court observed, “it islikely cruel, and certainly unusual, to impose on achild a punishment that takes as its predicate the ex-istence of a fully rational, choosing agent.” Thompsonv. Oklahoma, 487 U.S. 815, 825 n.23 (1988) (pluralityop.). A punishment that imprisons a juvenile untildeath rests on an equally unsound premise, andtherefore is unconstitutionally disproportionate.

As this Court repeatedly has acknowledged, evennormal children are less culpable for their actionsthan adults and therefore less deserving of the mostsevere criminal punishments. The presence of a dis-ability further reduces the blameworthiness of juve-nile offenders. And the very nature of a disability of-ten impairs the evaluation of a juvenile’s moral cul-

2 Children as young as 10 or still younger are at risk from thesentencing practice challenged here. Under Florida law, a “childof any age who is charged with” a major crime may be “triedand handled in every respect as an adult.” Fla. Stat. Ann. §985.56(1) (emphasis added.)

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pability. Thus, the extraordinarily high prevalence ofdisability—both recognized and undiagnosed—among juvenile offenders is an additional reason thata sentence of life without parole is categorically dis-proportionate for any juvenile.

A. Life Without Parole Is An Unconstitu-tionally Disproportionate PunishmentBecause Juveniles Are Less Morally Cul-pable.

As this Court recognized over a quarter-centuryago, “[e]ven the normal 16-year-old customarily lacksthe maturity of an adult.” Eddings v. Oklahoma, 455U.S. 104, 116 (1982). More recently, in Roper v.Simmons, 543 U.S. 551 (2005), the Court identifiedthree broad differences between juveniles and adultsthat preclude the constitutional application of thedeath penalty to minors. These differences—eachsupported by substantial research—render equallyunconstitutional the imposition of sentences of lifewithout parole for non-homicidal offenses.

First, juveniles do not have the same capacity asadults for mature reasoning, risk assessment andimpulse control; therefore, “impetuous and ill-considered actions and decisions” are “more under-standable among the young.” Roper, 543 U.S. at 569(internal quotation marks omitted).3 Second, “juve-

3 See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)(plurality op.); Bonnie L. Halpern-Felsher & Elizabeth Cauff-man, Costs and Benefits of a Decision: Decision-making Compe-tence in Adolescents and Adults, 22 J. Applied Dev. Psych. 257,264-270 (2001); Reed Larson et al., Mood Variability and thePsychosocial Adjustment of Adolescents, 9 J. Youth & Adoles-cence 469, 488 (1980).

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niles are more vulnerable or susceptible to negativeinfluences and outside pressures. * * * This is ex-plained in part by the prevailing circumstance thatjuveniles have less control, or less experience withcontrol, over their own environment.”4 Ibid. Finally,“the character of a juvenile is not as well formed asthat of an adult. The personality traits of juvenilesare more transitory, less fixed.”5 Id. at 570.

These categorical developmental deficits combineto “render suspect any conclusion that a juvenile fallsamong the worst,” or most morally culpable of of-fenders. Roper, 543 U.S. at 570. For that reason, theconsensus of modern society has rejected impositionof a sentence of life without parole on a juvenile, asthe briefs for the petitioners explain. Accordingly, forthe reasons more fully explained in those briefs andin the briefs of other amici supporting the petition-

The remarks at sentencing in No. 08-7412, Graham v. Florida,reflect a contrary understanding of juveniles’ developmentalcharacteristics. In the court’s view, Graham had “decided” thatan “escalating pattern of criminal conduct” was “how [he was]going to lead [his] life” and remarked that it was “unfortunatethat [he] made that choice.” No. 08-7412, J.A. 394 (emphasisadded). By contrast, as noted above (at p. 5), this Court rejectedthe notion that a juvenile sentence may be constitutionallypredicated on the notion of “a fully rational, choosing agent.”Thompson, 487 U.S. at 825 n.23.

4 See, e.g., Lee v. Weisman, 505 U.S. 577, 593 (1992); Thompson,487 U.S. at 835; Alan E. Kazdin, Adolescent Development, Men-tal Disorders, and Decision Making of Delinquent Youths, inYouth on Trial: A Developmental Perspective on Juvenile Justice33, 47-48 (Thomas Grisso & Robert G. Schwartz eds., 2000).

5 See, e.g., Laurence Steinberg & Robert G. Schwartz, Develop-mental Psychology Goes to Court, in Youth on Trial: A Develop-mental Perspective on Juvenile Justice 9, 27 (Thomas Grisso &Robert G. Schwartz eds., 2000).

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ers, such sentences are grossly disproportionate andtherefore unconstitutional.

B. The High Prevalence Of DisabilitiesAmong Juvenile Offenders Makes Judi-cial Assessment Of Their Culpability In-sufficiently Reliable To Support Irrevo-cable Punishment.

The interplay among youth, disability, and de-linquency underscores why juvenile life-without-parole sentences cannot withstand Roper’s constitu-tional test. The high prevalence of disabilities amongthe delinquent youth population means that a largenumber of juveniles facing life without parole willhave a disability.6 Yet juveniles with disabilities aredisadvantaged at every stage of their encounterswith the criminal justice system. Indeed, disabilityoften goes unrecognized, making it impossible toadequately consider its effect on the already reducedmoral culpability of juveniles. Coupled with the in-herent unreliability of judgments about juvenile cul-pability—which, as Roper recognized, stems from thefact that juvenile character is a work in progress—the distorting effect of widespread disability makes itinappropriate to sentence a juvenile to imprisonmentuntil death.

6 For example, Graham, the petitioner in No. 08-7412, “mostlikely suffered a form of crack addiction at birth” (both parentswere long-term crack addicts), No. 08-7412, J.A. 448, had long-term depression, id. at 446, 448, and suffered from ADHD, forwhich his mother refused the prescribed treatment. id. at 447.Sullivan, the petitioner in No. 08-7621, has a mental disabilityand, at age 13, read at a first-grade level. See No. 08-7621, J.A.26 & Pet. Reply 7.

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“[T]he signature qualities of youth are transient;as individuals mature, the impetuousness and reck-lessness that may dominate in younger years cansubside.” Roper, 543 U.S. at 570 (internal quotationmarks omitted). A sentence of life without parole ir-revocably presumes the contrary, even though ex-perience and science show that the volatile mix ofyouth and disability responsible for so much delin-quent behavior among juveniles will fade in the full-ness of time.

1. Juveniles With Disabilities Are Dispro-portionately Affected By The CriminalJustice System.

Incarcerated youth are significantly more likelyto have a mental disorder than the general popula-tion of teens.7 “[T]he general consensus” is that be-tween 70 and 100 percent of “incarcerated youthmeet [the] formal [diagnostic] criteria for at least one* * * disorder,” with “approximately 20% of youthmeeting diagnostic criteria for a serious mentalhealth disorder—defined as serious emotional dis-turbance resulting in functional impairment.” Can-dice L. Odgers et al., Misdiagnosing the Problem:Mental Health Profiles of Incarcerated Juveniles, 14Can. Child Adolescent Psych. Rev. 26, 27 (2005). Bycomparison, the prevalence of any disorder in thegeneral youth population is approximately 1 in 3,

7 See Seena Fazel et al., Mental Disorders Among Adolescents inJuvenile Detention and Correctional Facilities: A SystematicReview and Metaregression Analysis of 25 Surveys, 47 J. Am.Acad. Child Adolescent Psych. 1010, 1016 (2008) (youth inprison are between 2 to 20 times more likely to have mentaldisorders than age-equivalent youth in the general population);Christopher B. Forrest et al., The Health Profile of IncarceratedMale Youths, 105 Pediatrics 286, 289 (2000).

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with only 1 in 10 youth meeting the criteria for a se-rious one. Ibid.

Three recent studies across five States providecompelling evidence of the high rate of mental dis-abilities among juveniles in the criminal justice sys-tem. Nearly 60% of male youths arrested in CookCounty, Illinois, and over two-thirds of the females,met the diagnostic criteria for a psychiatric disorder.Linda A. Teplin et al., Psychiatric Disorders in Youthin Juvenile Detention, 59 Archives Gen. Psych. 1133,1137 (2002). Similar figures were reported in a studyof over 1,400 youthful offenders from Louisiana,Texas, and Washington. Jennie L. Shufelt & JosephJ. Cocozza, Nat’l Ctr. For Mental Health And Juve-nile Justice, Youth With Mental Health Disorders InThe Juvenile Justice System: Results From A Multi-State Prevalence Study 2 (2006) (over 70%). And astudy of incarcerated juveniles in Maryland foundthat more than half met the diagnostic criteria for apsychiatric disorder. Deborah Shelton, EmotionalDisorders in Young Offenders, 33 J. of NursingScholarship 259, 262 (2001). Put simply, youth de-tained in “correctional facilities have levels of psy-chopathology similar to the levels of mental illnessfound in psychiatric hospitals.” Id. at 259. Moreover,the youngest juvenile offenders—those, like Sullivan,between the ages of 12 and 14—who met the diag-nostic criteria for more than one disability had “sig-nificantly more serious criminal behavior,” under-scoring the synergistic effects of disability and pro-nounced immaturity. Id. at 261.

There is a likewise strong relation between juve-nile incarceration and learning-related disabilities,which are relatively common in the imprisoned juve-nile population. See Mary M. Quinn et al., Youth

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with Disabilities in Juvenile Corrections: A NationalSurvey, 71 Exceptional Children 339, 342 (2005).Learning disabilities predispose youth toward in-volvement in the criminal justice system.8

“[S]tudies typically suggest that approximately10 percent of general population youth have a specialeducation disability, compared with between 30 and50 percent of incarcerated youth.” Daniel P. Mears &Laudan Y. Aron, Urban Institute Justice Policy Cen-ter, Addressing The Needs of Youth With Disabilitiesin the Juvenile Justice System: The Current State ofKnowledge § 5.3 (2003). One national study foundthat during the 2000-2001 school year, 33.4% of stu-dents in juvenile correction institutions received spe-cial education services compared to 8.8% of studentsin the general population. Quinn, supra, 71 Excep-tional Children at 342.9 Other studies have founddisparities of more than five to one. See Tamara Zenz

8 The link between academic underachievement and delin-quency is firmly established. See, e.g., Norman Brier, The Rela-tionship Between Learning Disability and Delinquency: A Re-view and Reappraisal, 22 J. Learning Disabilities 546, 546(1989); Carolyn G. Grande, Delinquency: The Learning DisabledStudent’s Reaction to Academic School Failure?, 23 Adolescence209, 212 (1988); see generally ABA Juvenile Justice Center,Special Ed Kids In The Justice System: How To Recognize andTreat Young People with Disabilities that Compromise TheirAbility To Comprehend, Learn, and Behave 2 (Lourdes M.Rosado ed., 2000) (estimating that 18% of those with an intel-lectual disability, 31% of those with a specific learning disabil-ity, and 57% of youth with a behavioral disorder will be ar-rested within five years of leaving high school).

9 These figures likely understate the actual prevalence of learn-ing disabilities because they reflect only those individuals al-ready diagnosed with a disability and being provided with ser-vices or treatment. Ibid.

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& George Langelett, Special Education in Wiscon-sin’s Juvenile Detention System, 55 J. Corr. Educ. 60,63 (2004) (61% of juveniles incarcerated in Wisconsinreceived special education services, compared to11.77% of the students in the public school system).

2. Sporadic Recognition Of Juvenile Dis-ability Further Impedes The Reliable As-sessment Of Juvenile Culpability.

Because of their developmental characteristics,the culpability of juveniles never rises to the levelthat would justify a life-without-parole sentence. Buteven if an exceedingly “rare case might arise inwhich a juvenile offender has sufficient psychologicalmaturity, and at the same time demonstrates suffi-cient depravity” (Roper, 543 U.S. at 572), to deservesuch a harsh sentence, the confounding facts of youthmake the reliable identification of such exceptionaloffenders impossible. As this Court has recognized,the professional norms of psychiatrists forbid themfrom diagnosing any patients under 18 with antiso-cial personality disorder, because even experiencedmental health professionals find it difficult to distin-guish between “unfortunate yet transient immatur-ity” and “irreparable corruption” in juveniles. Id. at573. A lay judge or lay jury cannot be expected to dobetter, and cannot constitutionally be entrusted withthat task when the stakes place a child’s life beyondredemption.

The difficulty of accurately diagnosing mentaland psychiatric disorders in juveniles further pre-cludes the constitutional imposition of an immutablepunishment. Diagnosing mental disabilities in juve-niles is difficult even for mental health professionals.See, e.g., Jay A. Sevin et al., Psychiatric Disorders inAdolescents with Developmental Disabilities: Longi-

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tudinal Data on Diagnostic Disagreement in 150 Cli-ents, 34 Child Psych. & Hum. Dev. 147, 161 (2003)(over a 10 year period, the individuals studied re-ceived an average of 5 different diagnoses and 7 dif-ferent medications). The broad variability of symp-toms is unsurprising, “given that the disorder is su-perimposed on a developing child that has yet toachieve emotional, cognitive, neuropsychological, andphysical maturity.” Margaret A. Bowring & MariaKovacs, Difficulties in Diagnosing Manic DisordersAmong Children and Adolescents, 31 J. Am. Acad.Child. Adolescent Psych. 611, 612 (1992). In addition,“the high rate of comorbidity across psychiatric diag-noses” in juveniles “poses a particularly difficultproblem” for diagnosis. Rani A. Desai et al., MentalHealth Care in Juvenile Detention Facilities: A Re-view, 34 J. Am. Acad. Psych. & Law 204, 206 (2006);see also Gabrielle A. Carlson, The Challenge of Diag-nosing Depression in Childhood and Adolescence, 61J. Affective Disorders 3, 3, 5 (2000).10

10 Juvenile disabilities have high comorbidity, meaning that themajority of youth who met the diagnostic criteria for one mentalhealth disorder also met the criteria for other, distinct, mentalhealth disorders. Shufelt & Cocozza, supra, Youth With MentalHealth Disorders at 3 (79% of juveniles with at least one disor-der met the criteria for two or more disorders, and over 60% ofjuveniles with at least one disorder were diagnosed with threeor more). Mental health disorders are also highly correlatedwith substance abuse disorders. Ibid. (among youth with amental health disorder, 61% met the criteria for a substanceuse disorder); see also Lisa H. Jaycox et al., Mental Health andMedical Problems and Service Use Among Adolescent SubstanceUsers, 42 J. Am. Acad. Child Adolescent Psych. 701, 701 (2003)(almost two-thirds of sample in substance abuse program hadat least one comorbid mental health disorder).

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Undiagnosed disabilities are substantially likelyto remain undiagnosed throughout a juvenile’s ten-ure in the criminal justice system. To begin with, inmany cases, the educational system—the first line ofdefense in identifying many juvenile disabilities—has already failed in that task. Su-chin Serene Olin& Kimberly Hoagwood, The Surgeon General’s Na-tional Action Agenda on Children’s Mental Health, 4Current Psych. Rpts. 101, 102-103 (2002); cf. 20U.S.C. § 1412(a)(3) (requiring, pursuant to the Indi-viduals with Disabilities Education Act, that everyState “identif[y], locate[], and evaluate[]” all “chil-dren with disabilities residing in the State”).11 Sec-ond, minority youth and youth of low socioeconomicstatus (who are at greater risk of involvement withthe justice system) are more likely to have unmetmental health needs. Andres J. Pumariega et al.,Utilization of Mental Health Services in a Tri-EthnicSample of Adolescents, 34 Cmty. Mental Health J.145, 146-147, 155 (1998). Third, “transfer of schoolrecords to juvenile court and correctional facilities” is“inconsistent to nominal,” making it easy for juve-niles with disabilities to fall through the cracks.Mears & Aron, supra, § 5.3; Peter E. Leone et al.,Understanding the Over Representation of Youthswith Disabilities in Juvenile Detention, 3 D.C.L. Rev.389, 397 (1995). Fourth, even though intake screen-

11 See also Joseph B. Tulman, Disability and Delinquency: HowFailures to Identify, Accommodate, and Serve Youth with Edu-cation-Related Disabilities Leads to Their Disproportionate Rep-resentation in the Delinquency System, 3 Whittier J. Child &Fam. Advoc. 3, 29-33 (2003) (recalling how “Dale,” despite fail-ing kindergarten and first, second, and third grades, was neverreferred for evaluation until he was 15 and facing an armed as-sault charge, at which point he was diagnosed with mild mentalretardation and a severe emotional disturbance).

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ing procedures have improved, “assessment practicesin juvenile justice settings remain highly variableand generally have not used evidence-based, scien-tifically sound instruments.” Gail A. Wasserman etal., U.S. Dep’t of Justice, Office of Justice Programs,Juvenile Justice Bulletin, Assessing the MentalHealth Status of Youth in Juvenile Justice Settings 1(2004).

All in all, it is unsurprising that a “[h]igh preva-lence of both undiagnosed and untreated physicaland mental health problems have been reported” forincarcerated juveniles. Seena Fazel et al., MentalDisorders Among Adolescents in Juvenile Detentionand Correctional Facilities: A Systematic Review andMetaregression Analysis of 25 Surveys, 47 J. Am.Acad. Child Adolescent Psych. 1010, 1010 (2008).The prevalence of undiagnosed disability among ju-veniles casts additional doubt on the criminal justicesystem’s ability to reliably assess juvenile culpabil-ity. Only a categorical rule precluding the impositionof life-without-parole sentences on juveniles can ac-ceptably contain the risk of permanently and dispro-portionately punishing juveniles with limited culpa-bility.

3. Juveniles With Disabilities Are System-atically Disadvantaged In Their DealingsWith The Criminal Justice System.

Juveniles face distinctive challenges in the crimi-nal justice system. Among juvenile offenders, “ap-proximately one third of 11- to 13-year olds, and * * *one fifth of 14- to 15-year olds are” so “impaired incapacities relevant to adjudicative competence” that,if they were adults, they “would likely be consideredincompetent to stand trial.” Thomas Grisso et al.,Juveniles’ Competence to Stand Trial: A Comparison

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of Adolescents’ and Adults’ Capacities as Trial De-fendants, 23 Law & Hum. Behav. 333, 356 (2003).Even juveniles who are technically competent tostand trial, however, are at a disadvantage on ac-count of the diminished decision-making abilitiescharacteristic to youth. See Roper, 543 U.S. at 569.

The high prevalence of disabilities among delin-quent juveniles makes these problems worse. Settingaside the diminished moral culpability of juveniles asa class, there is a real risk that sentences of lifewithout parole are not limited to only the “worst” ju-venile offenders. Juveniles with disabilities are at asignificant disadvantage at every stage of the crimi-nal justice system. See Roper, 543 U.S. at 569. Inholding that the death penalty could not constitu-tionally be imposed on defendants with mental re-tardation, this Court noted the increased “possibilityof false confessions” by individuals with intellectualdisabilities, and observed that those persons:

may be less able to give meaningful assis-tance to their counsel and are typically poorwitnesses, and their demeanor may create anunwarranted impression of lack of remorsefor their crime.

Atkins v. Virginia, 536 U.S. 304, 320-321 (2002). Thesame problems impair adjudication of the youth of-fender with disabilities. The effects of youth operatein synergy with the effects of disability, leaving juve-niles with disabilities critically vulnerable at everystage of the criminal justice system: interrogationand arrest, trial, and sentencing.

Juveniles generally are more prone than adultsto false confessions. See Grisso, supra, 23 Law &Hum. Behav. at 357; Steven A. Drizin & Richard A.

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Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 1005 (2004). That isbecause juveniles are both more compliant and moresuggestible in the face of pressure by perceived au-thority figures.12 The problem of false confessions notonly affects the likelihood of inappropriate guiltypleas, but also increases the risk of wrongful convic-tions at trial, which necessarily results in a dispro-portionate sentence.13 Grisso, supra, 23 Law & Hum.Behav. at 357. And juveniles with disabilities may beeven more susceptible to making false confessions.See James W. Ellis & Ruth A. Luckasson, MentallyRetarded Criminal Defendants, 53 Geo. Wash. L.Rev. 414, 446 (1985).

Similarly, when even “normal” juveniles have dif-ficulty comprehending the Miranda warnings, seeThomas Grisso, Juveniles’ Capacities to WaiveMiranda Rights: An Empirical Analysis, 68 Calif. L.Rev. 1134, 1160 (1980), “[a] child with demonstrablelanguage-based disabilities typically cannot under-

12 Allison D. Redlich & Gail S. Goodman, Taking Responsibilityfor an Act Not Committed: The Influence of Age and Suggestibil-ity, 27 Law & Hum. Behav. 141, 151 (2003); Matthew B. John-son & Ronald C. Hunt, The Psycholegal Interface in JuvenileAssessment of Miranda, 18 Am. J. Forensic Psychol. 17, 24(2000); Thomas Grisso, The Competence of Adolescents as TrialDefendants, 3 Psychol. Pub. Pol’y & L. 3, 16 (1997).

13 It is therefore unsurprising that adolescents make up a largeproportion of the known cases of false confessors. In a survey of125 defendants found guilty on the basis of a false confessionand later exonerated, the authors found that fully one-thirdwere juveniles. Steven A. Drizin & Richard A. Leo, The Problemof False Confessions in the Post-DNA World, 82 N.C. L. Rev.891, 944 (2004).

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stand the Miranda warnings * * *” at all.14 See Tul-man, supra, 3 Whittier J. Child & Fam. Advoc. at46).15

These comparative disadvantages persist intothe trial phase. In a series of simulated vignettesbased on decisions commonly encountered in thecriminal justice system, like “disclosing informationduring consultation with a defense attorney” or “re-sponding to a plea agreement for reduced conse-quences in exchange for a guilty plea and testimonyagainst other defendants,” younger juveniles sys-tematically made worse choices than their oldercounterparts.16 Grisso, supra, 23 Law & Hum. Be-

14 At 13, Sullivan read at a first-grade level (No. 08-7621, Pet.Reply 7), whereas “[t]he Miranda warning itself has been evalu-ated to be at a 7th grade level of reading and listening diffi-culty.” Joan Petersilia, California Policy Research Center Re-port Series, Doing Justice? Criminal Offenders with Develop-mental Disabilities at 13 (2000).

15 The underdiagnosis of disability in juvenile defendants canalso result in overlooked defenses. For example, a juvenile’s dis-ability “may be relevant to * * * establishing a Miranda viola-tion by police.” Tulman, supra, 3 Whittier J. Child & Fam. Ad-voc. at 44.

16 Juveniles must rely on counsel to safeguard their interests(see In re Gault, 387 U.S. 1, 38 n.65 (1967)), a faith that is un-fortunately often misplaced. Sullivan’s trial lasted a single day.No. 08-7621, J.A. 4-5. Based largely on testimony from his olderco-defendants and a suggestive voice identification by the vic-tim that trial counsel did not effectively challenge—but no vis-ual identification, physical, or DNA evidence (indeed, the DNAmaterial was destroyed by the State in 1993)—Sullivan wasconvicted of sexual assault. Id. at 24, 26; id. Pet. Reply 6 & n.9.Trial counsel filed no written pleadings following Sullivan’sconviction, and his remarks at sentencing fill less than a pageof transcript. Sullivan’s appointed appellate counsel filed anAnders [v. California, 386 U.S. 738 (1967)] brief indicating his

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hav. at 340, 351-352. Juveniles with disabilities areeven less able to participate in and make effectivedecisions regarding their own defenses. See Tulman,supra, 3 Whittier J. Child & Fam. Advoc. at 49-51;Thomas Grisso, The Competence of Adolescents asTrial Defendants, 3 Psychol. Pub. Pol’y & L. 3, 13-14(1997).

Finally, evidence suggests that trial judges per-versely have come to treat youth or disability as anaggravating factor in determining punishment.Thus, youths convicted of murder are more likelythan adults convicted of murder to be sentenced toprison for life without the possibility of parole. SeeBarry C. Feld. A Slower Form of Death: Implicationsof Roper v. Simmons for Juveniles Sentenced to LifeWithout Parole, 22 ND J.L. Ethics & Pub Pol’y 9, 52-53 (2008); Human Rights Watch, When I Die, They’llSend Me Home: Youth Sentenced to Life without Pa-role in California 36 (2008), available athttp://www.hrw.org/reports/2008/us0108/us0108web.pdf (“Respondents reported that in 56 percent ofcases in which there was an adult codefendant, theadult received a lower sentence than the juvenile.”).Individuals with disabilities also tend to receivemore severe punishments for the offenses they com-mit. Judith Cockram, Justice or Differential Treat-ment? Sentencing of Offenders with an IntellectualDisability, 30 J. Intell. & Dev. Disability 3, 9 (2005);Petersilia, supra, Doing Justice? at 23. That under-scores the disproportionality of a life-without-parolesentence for a juvenile who might well be treatedbetter if he were an adult.

view that there was not a single colorable issue to be raised inthe appeal of a 13-year-old child sentenced to die in prison. No.08-7621, Pet. 6; id. Pet. Reply 6-7.

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C. The Presence Of Disability ExacerbatesThe Unconstitutional Disproportional-ity Of Juvenile Life-Without-Parole Sen-tences.

Imprisoning any child for the rest of his or herlife without any possibility of release violates theEighth Amendment’s proportionality standard. Be-cause of their special needs and vulnerabilities, ju-veniles with disabilities serving life-without-paroleterms face atypical and significant hardships on topof those suffered by juveniles generally.

First, the quality of mental health services pro-vided to youth confined in correctional facilities ispoor. Desai, supra, 34 J. Am. Acad. Psych. & Law at208-209. Almost 20% of the nation’s facilities do nothave procedures in place for administration of psy-chotropic medication. Lindsay M. Hayes, U.S. Dep’tof Justice, Office of Juvenile Justice and DelinquencyPrevention, Juvenile Suicide in Confinement: A Na-tional Survey 4 (2009). Over 30% of facilities lackedonsite access to psychiatrists, psychologists, or mas-ter’s degree-level social workers. Ibid. In Virginia, 8-10% of the youth in that system had serious mentalhealth problems requiring immediate attention; ofthose, only 14% received any mental health services.Jennifer Wood et al., An Examination of the Rela-tionships Between Violence Exposure, PosttraumaticStress Symptomatology, and Delinquent Activity: An“Ecopathological” Model of Delinquent BehaviorAmong Incarcerated Adolescents, 6 J. Aggression,Maltreatment & Trauma 127, 129 (2002).17

17 Likewise, less than half of all juveniles who could have bene-fited from alcohol and drug counseling services actually re-ceived them. Paul E. Greenbaum, Service Use Among Adoles-

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The disparity between the needs of incarceratedjuveniles and the available services extends to edu-cational and other programs. Many juveniles servinglife-without-parole sentences lack access to servicesbecause prisoners who may someday be released aretypically given priority.18 These deficiencies may wellviolate States’ affirmative obligation under the Indi-viduals with Disabilities Education Act to provide alljuveniles with disabilities with appropriate specialeducation and support services, whether or not theyare incarcerated. See 20 U.S.C. § 1412(a)(1)(A),(a)(11)(C); Green v. Johnson, 513 F. Supp. 965, 976(D. Mass. 1981).

cents With Comorbid Mental Health and Substance Use Disor-ders 7 (commissioned for the National Institute on DrugAbuse’s May 2000 on Assessing the Impact of Childhood Inter-ventions on Subsequent Drug Use), available athttp://www.drugabuse.gov/meetings/childhood/Commissioned/Greenbaum/Greenbaum.pdf; see supra note 10.

18 See, e.g., Illinois Coalition for the Fair Sentencing of Chil-dren, Categorically Less Culpable: Children Sentenced to LifeWithout Possibility of Parole in Illinois 21 (2008), available athttp://www.law.northwestern.edu/cfjc/jlwop/JLWOP_Report.pdf(“[Educational] programs often were, and are, expressly deniedto those serving life without parole sentences. * * * The prisonpolicy gives enrollment preference to those with less time toserve * * *.”); Human Rights Watch, When I Die, They’ll SendMe Home: Youth Sentenced to Life without Parole in California56-57 (2008), available at http://www.hrw.org/reports/2008/us0108/us0108web.pdf (“[P]rison practice and regulations givepersons sentenced to life without parole the lowest priority foraccessing programs.”); Human Rights Watch, Thrown Away 32-33 (2005), available at http://www.hrw.org/reports/2005/us0205/us0205.pdf (“[C]hild offender[s] sentenced to life without parole* * * are not able to access the same variety of classes as indi-viduals who will be released from prison at some point in thefuture.”).

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Moreover, even apart from the failure of thecriminal justice system to meet the special needs ofjuveniles with disabilities, the more routine perils ofconfinement weigh especially heavily on them. Con-finement itself aggravates the conditions of juvenileswith disabilities. For example, “[i]ncarceration mayprecipitate major depression among vulnerable indi-viduals.” Eileen P. Ryan & Richard E. Redding, AReview of Mood Disorders Among Juvenile Offenders,55 Psych. Servs. 1397, 1399 (2004). “[I]f all youth areto some degree at risk for suicide, juveniles in con-finement may be at greater risk because they havelife histories that predispose them to suicide,” suchas histories of mental health disorders and substanceabuse. Hayes, supra, Juvenile Suicide in Confine-ment: A National Survey at 1-2.

* * *

As the Court recognized in a related context, thedeficiencies of individuals who have “diminished ca-pacities to understand and process information, tocommunicate, to abstract from mistakes and learnfrom experience, to engage in logical reasoning, tocontrol impulses, and to understand the reactions ofothers”—a description that aptly characterizes juve-nile defendants generally, and juveniles with dis-abilities particularly—“do not warrant an exemptionfrom criminal sanctions, but they do diminish theirpersonal culpability.” Atkins, 536 U.S. at 318. Thediminished culpability of juveniles categorically pre-cludes subjecting them to the punishment of lifewithout parole. Even a very serious crime committedby a juvenile is far from reliable evidence of irre-trievably depraved character—a circumstance ofheightened constitutional significance in light of the

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prevalence and documented effects of juvenile dis-ability.

CONCLUSION

The judgments of the Florida District Court ofAppeal should be reversed.

Respectfully submitted.

Paula D. PearlmanCarly J. Munson

Disability Rights LegalCenter

919 Albany St.Los Angeles, CA 90015(213) 736-1031

Neil M. SoltmanCounsel of RecordMayer Brown LLP350 South Grand Ave.Los Angeles, CA 90071(213) 229-9500

Donald M. FalkMayer Brown LLPTwo Palo Alto Square3000 El Camino RealPalo Alto, CA 94306(650) 331-2000

Brian J. WongMayer Brown LLP1909 K Street, N.W.Washington, DC 20006(202) 263-3000

Counsel for Amicus Curiae Disability Rights LegalCenter

July 2009