IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, )
)
Appellee, ) Knox County Criminal 108568
)
v. ) C.C.A. No. E2018-01439-CCA-R3-CD
)
TYSHON BOOKER, ) S. Ct. No. E2018-01439-SC-R11-CD
)
Appellant. )

BRIEF OF AMICI CURIAE

THE FOUNDATION FOR JUSTICE, FREEDOM AND MERCY,
AND CYNTOIA BROWN LONG

Charles W. Bone (BPR No. 002366)

BONE McALLESTER NORTON PLLC
Nashville City Center
511 Union Street, Suite 1600
Nashville, TN 37219
Phone: (615)238-6300
Email: cbone@bonelaw.com

J. Houston Gordon (BPR No. 007523)

LAW OFFICE OF J. HOUSTON GORDON, PLLC
114 W. Liberty Avenue, Suite 300
P. O. Box 846
Covington, TN 38019
Phone: (901) 476-4401
Email: kmcmahan@lawjhg.com

This brief is lodged pending disposition of the motion for leave filed
contemporaneously herewith.
 TABLE OF CONTENTS
Page
TABLE OF CONTENTS ........................................................................... ii
TABLE OF AUTHORITIES .....................................................................iii
INTEREST OF AMICI CURIAE............................................................... 1
ARGUMENT ............................................................................................. 7
I. The Life Sentence as Applied to Juveniles Violates the Cruel
and Unusual Punishment Provisions of the Federal
Constitution and the Tennessee Constitution........................ 8
II. The Tennessee Life Sentence as Applied to Juveniles Violates
8th Amendment Proportionality Principles. ........................ 10
A. Imposition of the State’s most severe penalties on
juveniles serves no real penological goal, violating the
8th Amendment. .......................................................... 16
B. Because the Tennessee statute draws no distinction
between adult offenders and child offenders, the statute
is unconstitutional. ...................................................... 17
C. Because a sentencer cannot account for a juvenile
offender’s ability to be rehabilitated, the Tennessee
mandatory sentencing scheme is unconstitutional. .... 19
D. Because the Tennessee mandatory minimum sentencing
scheme restricts the sentencer from considering a
juvenile’s immaturity, the life sentence is
unconstitutional. .......................................................... 21
E. Because the Tennessee mandatory sentencing scheme
does not provide a juvenile offender with any
meaningful opportunity to show rehabilitation, the life
sentence is unconstitutional. ....................................... 23

CONCLUSION ........................................................................................ 26

ii
 TABLE OF AUTHORITIES
Page(s)
Cases
Ayotte v. Planned Parenthood of Northern New England,
546 U.S. 320 (2006) ....................................................................... 18

Boddie v. Connecticut,
401 U.S. 371 (1971) ....................................................................... 18

Brown v. Jordan,
563 S.W.3d 196 (Tenn. 2018) .............................................. 3, 16, 17

Brown v. Jordan,
744 F.App’x 918 (6th Cir. 2018) .......................................... 3, 16, 18

Brown v. State,
2014 WL 5780718 (Tenn. Ct. of Crim. App. 2014) ........................ 20

Dahnke-Walker Milling Co. v. Bondurant,

257 U.S. 282 (1921) ........................................................................ 18

Graham v. Florida,
560 U.S. 48 (2010) .................................................................. passim

J.D.B. v. North Carolina,

564 U.S. 261 (2011) ............................................................... passim

McConnell v. City of Lebanon,

314 S.W.2d (Tenn. 1958) ............................................................... 19

Miller v. Alabama,
567 U.S. 460 (2012) ............................................................... passim

Montgomery v. Louisiana,
136 S.Ct. 718 (2016) .............................................................. passim

Planned Parenthood v. Sundquist,

iii
 38 S.W.3d 1 (Tenn. 2000) ................................................................ 8

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

State v. Deuter,
839 S.W.2d 391 (Tenn. 1992) .......................................................... 9

State v. Ferguson,
2 S.W.3d 912 (Tenn. 1999) .............................................................. 9

State v. Jacumin,
778 S.W.2d 430 (Tenn. 1989) .......................................................... 9

Tennessee Small School Systems v. McWherter,

851 S.W.2d 139 (Tenn. 1993) .......................................................... 9

Statutes
Tenn. Code Ann. §39-13-202(c)(3) .................................................. 2, 3, 19
Tenn. Code Ann. §39-13-204(A) ......................................................... 7, 16
Tenn. Code Ann. §40-35-501(h)(i)(2) ......................................................... 2

Constitutional Provisions
Tenn. Const. art. I, §16 ................................................................... 7, 8, 10
Tenn. Const. art. I, §9 .......................................................................... 7, 9
U.S. Const. amend. VIII ................................................................. passim
U.S. Const. amend XIV ........................................................................ 8, 9

iv
Other Authorities

CYNTOIA BROWN LONG, FREE CYNTOIA: MY SEARCH FOR REDEMPTION IN

THE AMERICAN PRISON SYSTEM (2019) ................................................. 4, 25

v
 INTEREST OF AMICI CURIAE
The Amici Curiae are the Foundation for Justice, Freedom and
Mercy (“JFAM” or “Foundation”), Ms. Cyntoia Brown Long (“Brown
Long”), and JFAM supported by the statements of currently incarcerated,
formerly incarcerated individuals, and organizations that work with
incarcerated individuals.
JFAM is a 501(C)(3), not-for-profit, tax-exempt corporation founded
by Cyntoia Brown Long, who serves as president. The interest of JFAM
in this case is found in the specific purposes of the Foundation’s existence,
which focus on empowering incarcerated individuals, including through
community education and direct provision of services:
(a) To educate the public about sexual exploitation and trafficking
of minors, criminal justice reform, and the welfare of incarcerated
individuals, including through public events and messaging across media
platforms;
(b) To provide resources to incarcerated individuals to improve their
educational and personal wellbeing;
(c) To educate and empower individuals who are at risk of
exploitation or criminal justice system involvement;
(d) To share individual narratives that highlight themes of justice,
freedom, and mercy;
(e) To partner with nonprofit organizations that provide support
and other resources for individuals affected by neglect, abuse,
abandonment or discrimination; and
(f) For any other lawful purpose consistent with the provisions of
this Article.

1
 Ms. Brown Long is a testament to the ability of a juvenile to
overcome horrific trauma and tragic life choices to become rehabilitated
and use her experience to work for the betterment of others and society
in general. Ms. Brown Long was a victim of child abuse, sexual
exploitation, physical abuse and rape and, as a 16-year-old adolescent,
pimped out by an adult gang member, “Kut”, who physically, mentally,
emotionally, and sexually abused her. He provided her with alcohol,
marijuana and cocaine and demanded she have sex with him and his
friends. Kut forced her out onto the street to sell her body, so that he
could have enough money to pay for his drugs and hotel room.
On August 6, 2004, Kut threw Ms. Brown Long to the streets to sell
her body again. This time, she was picked up by a 43-year old man, who
agreed to pay her money to have sex with him, took her to his house,
showed her his gun collection, and told her that he was a sharpshooter.
Afterwards, while both were lying almost naked in his bed, Ms. Brown
Long became frightened and she shot and killed the adult man.
She was tried as an adult, labeled a “teenage prostitute” by the
prosecutor, and convicted of murder in the premeditated first degree, in
violation of Tenn. Code Ann. §39-13-202(c)(3). Ms. Brown Long received
the mandatory minimum sentence of life in prison by the trial judge, in
accord with Tenn. Code Ann. §40-35-501(h)(i)(2). Thus, her interest here
is that she, too, until granted clemency, was a juvenile serving the
statutory mandatory minimum sentence of life in prison. Only because
she was granted clemency by Governor Bill Haslam in 2019, is she now
in the position to help others.

2
 While incarcerated, Ms. Brown Long confronted and overcame her
adverse childhood experiences, through the support of the Lipscomb
University community and others. She matured and, as three experts
predicted she would and as the neuroscience and psychological research
shows juvenile defendants overwhelmingly do, she overcame her
immature, impulsive, and erratic behavior.
Due to the efforts of Ms. Connie Williams Seabrooks, the
Administrative Principal for the Education Department at The
Tennessee Prison for Women, Ms. Brown Long was accepted into the
Lipscomb University Initiative for Education (“Life”) Program. While
incarcerated, Ms. Brown Long was able to obtain a G.E.D., an Associate’s
Degree and her Bachelor’s Degree (with honors) from Lipscomb
University with a 4.0 GPA.
Before she was granted clemency, the United States Court of
Appeals for the Sixth Circuit, after oral argument on the question of the
constitutionality of Tenn. Code Ann. §39-13-202(c)(3), certified to this
Honorable Court the question of when, under the statute, Ms. Brown
Long would be eligible for release, and if so, after how many years. Brown
v. Jordan, 744 F.App’x 918 (6th Cir. 2018). This Honorable Court
answered the certified question in Brown v. Jordan, where it held: “A
defendant convicted of first-degree murder that occurred on or after July
1, 1995, may be released after service of at least fifty-one years if the
defendant earns the maximum allowable sentence reduction credits." 563
SW. 3d 196, 202 (Tenn. 2018)(Emphasis added).
Thus, this Court has clearly held that the earliest Ms. Brown Long
and all other juveniles sentenced to life in prison, under Tennessee’s

3
mandatory minimum sentencing scheme, could potentially be eligible for
release is after serving “at least fifty-one years” behind bars.
Ms. Brown Long joins as Amica Curiae because she believes this
mandatory sentence to be unconstitutional and contrary to the science
that shows that juveniles have great capacity for change. In Ms. Brown
Long’s case, after former Gov. Bill Haslam granted Ms. Brown Long
clemency, she wrote a book (FREE CYNTOIA: MY SEARCH FOR REDEMPTION
IN THE AMERICAN PRISON SYSTEM), married, has traveled the nation
sharing her life story, and founded JFAM. Had Ms. Brown Long been
denied clemency, she would still be sitting in a prison cell today not
eligible for release until she was 67 years old, if she lived that long.
Ms. Brown Long has dedicated herself and the rest of her life to
helping other young people avoid her fate and to advocate for other
vulnerable juvenile offenders. Attached as Appendix A are statements in
support of Mr. Booker’s challenge of the mandatory sentence, provided
by:
(1) Cyntoia Brown Long whose story is well-known across the world
today;
(2) Eric Alexander who was convicted as a juvenile and sentenced
to 25 years but paroled after 10 years;
(3) Howard Atkins who was convicted at age 16 and is an inmate
serving a 51-year life sentence. He is currently 37 and will be 67 when
released from the Tennessee prison system;
(4) Sarah Bryant Bailey who was convicted as a teenager of
facilitation to first degree murder and aggravated robbery;

4
 (5) Rahim Buford who was convicted in 1990 for crimes committed
as a teenager, who has since been released, and is now the founder of
Unheard Voices Outreach, which seeks, among other things, to facilitate
paths toward self-sufficiency for formerly incarcerated Tennesseans;
(6) Dawn Harrington with Free Hearts: a Tennessee statewide
organization led by formerly incarcerated women that provides support,
education, advocacy, and organizing families impacted by incarceration
with the ultimate goals of reuniting families and strengthening
communities;
(7) The Director and Founding Director of the LIFE Program at
Lipscomb University, who reflect on their experiences supporting
prisoners in Tennessee;
(8) Quinton Sanders who was sentenced to life at age 17 and is still
an inmate at the Tennessee Department of Corrections serving at least
51 years. Mr. Sanders has recently been recognized all through out the
State for his efforts to create PPE materials to stop the spread of the
Coronavirus;
(9) Connie Seabrooks who retired as the Administrative Principal
at the Tennessee Prison for Women after 16 years in that position and as
the Director of Education for the Department of Correction for over 24
years; and
(10) Ashlee Sellars who was convicted for crimes committed at age
17, has since been released, and is now an advocate for restorative justice.
Collectively, these statements reflect the reality that many other
juveniles within Tennessee’s criminal justice system are presently
caught up in and continuing to live with the burden of disproportionate

5
sentencing. The statements demonstrate, particularly, that juveniles
are capable of being transformed, not only from their perspectives, but
also from the perspectives of those who have observed their growth and
contributed to their maturation.
JFAM and Ms. Brown Long have an intense interest in these
proceedings because of the mission of JFAM and Ms. Brown Long’s own
personal encounter with the law. She has dedicated her life and her
Foundation to assisting juveniles and young people caught up in our
criminal justice system. She began her efforts even before her release
from prison and is doing so now through the efforts of JFAM. In
furtherance of this goal, Amici respectively submit the following
argument.

6
 ARGUMENT
Under Tennessee’s statute, neither the jury nor the court has any
discretion to sentence a juvenile to any sentence less than the mandatory
minimum of life in prison, i.e. to 51 years of absolute incarceration. Tenn.
Code Ann. §39-13-204(A). The sentence is automatically determined
when the jury finds the elements of premeditated murder and/or felony
murder are proven. Id. Assuming the jury followed the law and found
these elements were proven, the one charged with imposing the sentence
cannot simply reduce the offense to a lesser offense in order to impose a
lesser punishment. Id.
By failing to take into account a juvenile’s age, relative mental
capability, and moral culpability, the mandatory minimum 51 year
sentence is disproportionate and amounts to cruel and unusual
punishment. This is demonstrated by Ms. Brown Long who was only 16
years old at the time of the incident, and whose maturity and mental
culpability had been delayed and depreciated by adverse childhood
experiences.
Similarly, Mr. Atkins and the other juvenile offenders whose
statements are attached detail the vulnerability, trauma, exploitation,
and abuse that marked these young lives. As a result, Ms. Brown Long,
and each of them, was actually functioning at a significantly lower
cognitive level than an adult who commits First Degree Murder.
Amici urge this Honorable Court to find that the sentencing scheme
mandated by Tenn. Code Ann. §39-13-204, as applied to child offenders,
is prima facie unconstitutional and violates (I) Art. I, §§9 and 16 of the

7
Tennessee Constitution and (II) Amendments, 8, and 14 of the United
States Constitution.
I. The Life Sentence as Applied to Juveniles Violates the Cruel
and Unusual Punishment Provisions of the Federal
Constitution, and the Tennessee Constitution.

When a child is deprived of a protected right, such as freedom or

proportionality of a sentence, the Court is requested to examine the
sentencing statute to determine whether it violates the constitutional
protection to be afforded to juveniles. Both the United States
Constitution’s 8th Amendment and the Tennessee Constitution’s
Declaration of Rights, Article 1, Sec. 16 prohibit “cruel and unusual
punishment.”
The wording of Art. I, §16 of the Tennessee Constitution is virtually
identical to that of the 8th Amendment of the United States Constitution.
Juxtaposed, they read, respectively:
Art. I, §16:
Sec. 16. Restrictions on bail, fines and punishment. – That
excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
Amendment 8:
[Bail – Punishment.] – Excessive bail shall not be required nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.
As often recognized by this Court, the declared rights of Tennessee’s
Constitution often afford more protection to the individual than do the
federal counterparts. See Planned Parenthood v. Sundquist, 38 S.W.3d

8
1 (Tenn. 2000) (holding the right to privacy guaranteed by the Tennessee
Constitution is broader than that guaranteed by the federal constitution);
State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989) (holding a higher
standard is required for search warrant affidavits under our state
constitution than under the federal constitution); State v. Deuter, 839
S.W.2d 391, 395 (Tenn. 1992) (The “right of confrontation” as expressed
in Article I, §9 of the Tennessee Constitution grants an even higher right
than the Sixth Amendment of the United States Constitution); State v.
Ferguson, 2 S.W.3d 912, 915-917 (Tenn. 1999) (The due process
principles of Article I, Section 8 of the Tennessee Constitution are
broader than and provide greater protection to a defendant than the
federal constitution’s Fourteenth Amendment, which “provides for every
defendant the right to a fair trial.”); Tennessee Small School Systems v.
McWherter, 851 S.W.2d 139, 152-154 (Tenn. 1993) (Article I, §8 and
Article XI, §8, when taken together provide a broader protection for equal
treatment than does the 14th Amendment).
This Court’s repeated recognition of the heightened protections
guaranteed to individuals against the State’s power is not simply
interpretive gloss. Rather, the way and manner by which the enumerated
rights of Tennesseans are established demonstrates more than subtle
differences.
It was after the Federal Constitution was written that the framers,
at the insistence of the Founding Fathers, amended the constitution to
exempt from the already declared powers of the government, certain
enumerated individual liberties and rights.

9
 In Tennessee, however, the founders first declared the individual
rights and liberties which already existed and were the exclusive
province of the people. These rights were not grants from the
government. Instead, the government’s limited power was a grant from
the people. To further emphasize the inviolability of these already
declared rights, the founders adopted Art. XI, §16, which again declared
that the rights and liberties in the Declaration of Rights were “inviolate”
and that the government cannot violate any declared right under any
“pretense whatsoever.” Therefore, the mandate and protection of Art. I,
§16 of Tennessee’s Constitution provides that there will be no “cruel and
unusual punishment” imposed is a preexisting fundamental right that
cannot be abridged by the government for any reason whatsoever.
Therefore, Amici Curiae respectfully submit that the mandatory
life sentence not only violates the Federal Constitution, but also Art. I,
§16 of the Tennessee Constitution. Both constitutions require that every
juvenile should be afforded “hope” and a “meaningful opportunity” to
demonstrate rehabilitation, reformation, and/or transformation, and to
be provided the ability to contribute to society after demonstrating such.
II. The Tennessee Life Sentence as Applied to Juveniles Violates
8th Amendment Proportionality Principles.

In making this determination, Amici request that the observations,

holdings, instructions, analyses, and conclusions reached by the United
States Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005);
Graham v. Florida, 560 U.S. 48 (2010); J.D.B. v. North Carolina, 564 U.S.
261 (2011); Miller v. Alabama, 567 U.S. 460 (2012); and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016) be considered by this Court.

10
 These United States Supreme Court decisions found, inter alia:
Roper v. Simmons:
--The reasons why juveniles are not trusted with the privileges and
responsibilities of an adult also explain why their irresponsible
conduct is not as morally reprehensible as that of an adult. Roper
at 561. (internal citations omitted).
--A lack of maturity and an underdeveloped sense of responsibility
are found in youth more often than in adults and are more
understandable among the young. These qualities often result in
impetuous and ill-considered actions and decisions. Id. at 569.
(internal citations omitted). This is evidenced by Mr. Alexander,
who was led to take part in a crime because of the impulsivity that
is associated with a still-developing brain. (See Appendix 2).
--Adolescents are overrepresented statistically in virtually every
category of reckless behavior. Id. at 569. (internal citations
omitted).
--The differences between juvenile and adult offenders are too
marked and well understood to risk allowing a youthful person to
receive the death penalty despite insufficient culpability. Id. at
572–573.
Graham v. Florida:
--“To determine whether a punishment is cruel and unusual, courts
must look beyond historical conceptions to the “evolving standards
of decency that mark the progress of a maturing society.” Graham
at 58. (internal citations omitted).

11
--The Cruel and Unusual Punishments Clause prohibits the
imposition of inherently barbaric punishments under all
circumstances. Id. at 59.
--“The concept of proportionality is central to the Eighth
Amendment. Embodied in the Constitution’s ban on cruel and
unusual punishments is the ‘precept of justice that punishment for
crime should be graduated and proportioned to [the] offense.” Id.
--The judicial exercise of independent judgment requires
consideration of the culpability of the offenders at issue in light of
their crimes and of their characteristics, along with the severity of
the punishment in question. Id. at 68. (internal citations omitted).
In Mr. Atkins, Mr. Booker, Ms. Brown Long, and Mr. Sanders’
cases, the sentencer was precluded from accounting for their
diminished culpability.
--Where the Eighth Amendment is applied to juveniles who will die
in prison, the State must provide “some meaningful opportunity to
obtain release.” Id. at 72–74; Miller at 478-479.
--Roper established that because juveniles have lessened
culpability they are less deserving of the most severe punishments.
Id. at 67–68.
--As compared to adults, juveniles have a lack of maturity and an
underdeveloped sense of responsibility; they are more vulnerable or
susceptible to negative influences and outside pressures, including
peer pressure, and their characters are not formed. Id. Mr. Sanders
is a prime example of a juvenile who was highly susceptible to the
negative influences he was surrounded by. His neighborhood

12
 streets were riddled with violence, forcing him to align with a gang
in order to protect himself as he walked to school. (See appendix 9).
--A juvenile is not absolved of responsibility for his actions, but his
transgression is not as morally reprehensible as that of an adult.
Id.
--Juvenile offenders cannot with reliability be classified among the
worst offenders. Id.
--Juveniles are more capable of change than are adults, and their
actions are less likely to be evidence of irretrievably depraved
character than are the actions of adults. Id. As evidenced by the
statements attached, these juveniles have dedicated their lives to
being reformed: pursuing college degrees and other trade skill
courses, working multiple jobs, mentoring children, donating to
charities, becoming model prisoners. (See Appendices 1–5, 9–10).
--[T]he features that distinguish juvenile offenders from adults also
put them at a significant disadvantage in criminal proceedings.
Juveniles mistrust adults and have limited understandings of the
criminal justice system and the roles of the institutional actors
within it. Id. at 77–78. Ms. Sellars’s story illustrates the hesitation
of a child to seek out law enforcement and shows how juveniles are
unable to fully advocate for themselves in the criminal justice
system. (See Appendix 10).
J.D.B. v. North Carolina:
--A child’s age is far more than a chronological fact. J.D.B at 272.
(internal citations omitted).

13
 --Children are generally less mature and responsible than adults.
Id.
--Describing no one child in particular, these observations restate
what any parent knows - indeed, what any person knows - about
children generally. Id. (internal citations omitted).
--Even where a “reasonable person” standard otherwise applies, the
common law has reflected the reality that children are not adults.
Id. at 274.
Miller v. Alabama:
--Children are constitutionally different from adults for sentencing
purposes. Miller at 471. (internal citations omitted).
--Youth matters for purposes of meting out the law’s most serious
punishments. Id. at 483.
--These decisions rested not only on common sense - on what any
parent knows - but on science and social science as well. Id. at 471.
(internal citations omitted).
--Developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds. Id. The
statements attached all show the vulnerability of a child whose
brain development has been slowed by adverse childhood
experiences. (See Appendices 1–5, 9–10).
--An offender’s age is relevant to the Eighth Amendment and
criminal procedure laws that fail to take defendants’ youthfulness
into account at all would be flawed. Id. at 467. (internal citations
omitted).

14
 --A sentencing authority must be constitutionally allowed the right
to assess a penalty proportional to the culpability of the individual,
including juveniles. Id.
Collectively, these cases all established that juveniles possess a
diminished culpability as compared to adults. As a result, the sentences
and criminal process must be made proportionate to the level of maturity
and culpability of the juvenile defendant. Graham, 560 U.S. at 58. The
United States Supreme Court found that proportionality is to be attained
when discretion is given to the sentencing judge (or jury) to account for
the offense and the individual characteristics of the juvenile offender,
including age, past history, and mental capacity. Miller, 567 U.S. at 467.
Therefore, the United States Supreme Court has made clear that
“objective immaturity,” “diminished personal culpability,” “unfortunate
yet transient immaturity,” or “instability and emotional imbalance of
youth" can make a lengthy sentence so disproportionate that it violates
the 8th Amendment of the Federal Constitution. Roper, 543 U.S. at 573.
More specifically, the United States Supreme Court found that juvenile
sentences must be proportional to the offense and to the culpability and
characteristics of the individual sentenced. See Graham at 76 (stating,
“[a]n offender’s age is relevant to the Eighth Amendment and criminal
procedure laws that fail to take [a] defendant’s youthfulness into account
at all would be flawed.”).
Applying the United States Supreme Court findings to the
Tennessee statutory mandate, Tennessee’s mandatory minimum life
sentence, as it applies to juveniles, simply cannot pass constitutional
muster. When this Court juxtaposes Tennessee’s mandatory minimum

15
sentencing scheme with the effects the sentencing scheme had on Ms.
Brown Long (and still has on all juveniles similarly situated, specifically
including the Appellant herein Mr. Booker), this Court is requested to
find that the mandatory life sentence fails to meet the 8th Amendment
proportionality principles as set out by the United States Supreme Court.
A. Imposition of the State’s most severe penalties on
juveniles serves no real penological goal, violating the
8th Amendment.

Because penological goals like retribution are not met when

imposing a state’s most severe penalty on a child, the life sentence is not
proportional under the 8th Amendment of the Federal Constitution.
Roper at 571.
The three most “severe penalties” for any criminal offense in
Tennessee are death by execution, life imprisonment without parole and
life imprisonment. Tenn. Code Ann. § 39-13-204(A). Although the life
imprisonment sentence appears facially distinct from a life without
parole sentence, in practical terms, both sentences result in the offender
dying in prison in all probability. See Brief for Tennessee Association of
Criminal Defense Lawyers in Support of the Appellant as Amicus Curiae,
exhibit A and exhibit B, Brown v. Jordan, 744 F. App’x 918 (6th Cir.
2018). The mandatory life sentence requires the juvenile in Tennessee
serve one of the State’s most severe penalties. Brown v. Jordan, 563
S.W.3d at 197. Imposing these severe penalties on juveniles meets no
penological goal, violating proportionality principles under the 8th
Amendment. See Roper at 571; Graham at 70; Miller at 472; Montgomery
at 733.

16
 This Court is requested to, like the United States Supreme Court,
find that no real penological goal is met by Tennessee’s mandatory
minimum life sentence as applied to a juvenile offender.
B. Because the Tennessee statute draws no distinction
between adult offenders and child offenders, the statute
is unconstitutional.

This Court is requested to find the mandatory minimum sentencing

scheme is unconstitutional because the 51-year life sentence fails to draw
any distinction between adult offenders and juvenile offenders. The
Court in Miller affirmed its decision in Graham, finding that treating
adults and juveniles alike under a mandatory sentencing scheme violates
proportionality principles under the 8th Amendment. Miller at 474. The
Court, again, affirmed its decision in Montgomery, finding the sentencing
judge must be allowed to “take into account how children are different
and how these differences counsel against irrevocably sentencing them
to a lifetime in prison." Id. at 480.
The mandated minimum sentence in Tennessee not only makes no
facial distinction between adult offenders and children offenders, its
effect, in reality, is that the juvenile will actually serve longer than an
adult who is convicted and sentenced to life for the same offense. Miller
at 477. A juvenile at age 16, sentenced as Ms. Brown Long was prior to
clemency, and like Mr. Booker, Mr. Sanders, and Mr. Atkins are, will
serve time until he/she is 67 years of age before he/she can be eligible to
be considered for release, which is nearly the juvenile’s whole life. Brown
v. Jordan, 563 S.W.3d at 202. While an adult sentenced under the

17
mandated minimum sentencing scheme has already lived most his or her
life and is likely to serve significantly less of the sentence. Graham at 70.
In other words, an adult male offender convicted of the same offense
committed at age 75 years will, as a practical matter, serve a much
shorter period of incarceration than the 16 year old child who is, as the
Supreme Court of the United States has repeatedly stated, less morally
responsible for her actions. Id. When analyzing the life expectancy data,
the term of incarceration for the adult male prisoner would be less than
10% of his expected natural life, while the juvenile will be incarcerated
for more than 66% of her life, although she is clearly less culpable and
less morally responsible than he. See Brief for Tennessee Association of
Criminal Defense Lawyers in Support of the Appellant as Amicus Curiae,
exhibit A and exhibit B, Brown v. Jordan, 744 F. App’x 918 (6th Cir.
2018).
By failing to account for the differences between an adult offender
and a juvenile offender, the life sentence in Tennessee imposes a harsher
punishment on juvenile offenders. Therefore, the gross difference
between the amount of time a juvenile will serve compared to an adult
violates 8th Amendment proportionality principles.
Furthermore, a state’s statute, although facially constitutional,
may be found invalid as applied to one specific state of facts, and yet
wholly valid as applied to another. See Dahnke-Walker Milling Co. v.
Bondurant, 257 U.S. 282, 289 (1921); Ayotte v. Planned Parenthood of
Northern New England, 546 U.S. 320, 329 (2006); Boddie v. Connecticut,
401 U.S. 371, 379 (1971). This Court has previously found that a
legislative enactment may be held unconstitutional under one set of facts

18
and constitutional under another set of facts. McConnell v. City of
Lebanon, 314 S.W.2d 12, 19 (Tenn. 1958).
Here, the law prohibits the sentencer from imposing a lesser
sentence than life imprisonment for any juvenile offender tried as an
adult. Irrespective of age, the mandated minimum sentence would
appear to be evenly applied to all who are convicted of premeditated
First-Degree Murder or Felony Murder. However, the practical
application of a life sentence results in a disproportionality longer term
of incarceration for juvenile offenders than for adult offenders.
Therefore, because the life sentence as applied to juveniles is
harsher than for adults, this Court is requested to find the life sentence
to be unconstitutional as applied to juveniles, violating 8th Amendment
proportionality principles.
C. Because a sentencer cannot account for a juvenile
offender’s ability to be rehabilitated, the Tennessee
mandatory sentencing scheme is unconstitutional.

A sentencing judge in Tennessee has absolutely no discretion to

consider a juvenile offender’s possibility of rehabilitation. Tenn. Code
Ann. §39-13-202(c)(3). The Court in Miller established that a mandatory
sentencing scheme that fails to allow a sentencer to account for a juvenile
offender’s ability to be rehabilitated is unconstitutional. Miller at 477-
478. Had the sentencing judge in Ms. Brown Long’s case or Mr. Booker’s
case or Mr. Atkin’s case or Mr. Sander’s case been able to account for
his/her ability to be rehabilitated, the sentence could have taken into
account background information presented by defense counsel, including

19
underlying adverse childhood experiences that began as early as in utero.
Brown v. State, 2014 WL 5780718 (Tenn. Ct. of Crim. App. 2014).
However, the sentencing judge did not have the ability to consider
Ms. Brown Long’s, Mr. Booker’s, Mr. Atkin’s, or Mr. Sander’s extensive
traumatic upbringing as well as whether or not he/she would overcome
the adverse effects of the abuse suffered. Indeed, as predicted by the
experts during Ms. Brown Long’s postconviction hearing, she overcame
her deficits and became a model prisoner, student, and human being.
Ms. Brown Long’s rehabilitation is not unique, though, as evidenced
by the statements attached to this brief. (See Appendices 1-5; 9–10).
Miller’s finding that juveniles are very likely to be rehabilitated is
perfectly illustrated by Ms. Sellars. (See Appendix 10). She took
advantage of educational opportunities in prison and, upon her release,
served as the Restorative Justice Liaison to the Davidson County
Juvenile Court and gives talks to young people in detention facilities and
colleges. (See Appendix 10).
Similarly, Mr. Atkins is an excellent example of Miller’s finding
that a juvenile’s deficiencies will be reformed. Id. Mr. Atkins, who is
sentenced to spend his years from sixteen to 67 in prison due to his
teenage offense, has nonetheless repented, attained his GED,
volunteered in a variety of capacities including to help keep children on
the right path, and tithes 10% of his prison salary to charity. (See
Appendix 3).
Similarly, the ability to be reformed is evidenced by Mr. Alexander,
who attended ministry conferences while he was in prison and discovered
his passion for social work, which he followed to work with at risk youth

20
through AmeriCorps. (See Appendix 2). He now directs an outreach
program at the YMCA that provides direct services to dozens of students
every year that face the challenges he faced.
Ms. Bailey discovered the transformational power of education and
dedicated herself to, “use [her] scars to help others heal and to . . . help
others understand how our actions can play a significant role in life and
the lives of others.” Montgomery at 473; (See Appendix 4).
As did the Supreme Court of the United States, this Court is urged
to recognize that an immature adolescent’s brain and the underdeveloped
regions of the brain responsible for higher-order, executive functioning,
such as impulse control, planning ahead, and risk avoidance must be
considered when sentencing juveniles because they possess a greater
ability to be rehabilitated than adults. Miller at 472; Montgomery at
732–734.
D. Because the Tennessee mandatory minimum sentencing
scheme restricts the sentencer from considering a
juvenile’s immaturity, the life sentence is
unconstitutional.

Because the Tennessee mandatory minimum sentencing scheme

does not allow for the sentencing judge to consider the peer pressure and
other influences that contribute to a juvenile’s immaturity, Amici request
this Court to find the life sentence is unconstitutional. Miller at 477;
Montgomery at 732–734. In Miller, the Court found that mandatory
sentencing schemes preclude sentencers from assessing the maturity of
the offender as well as influences like peer pressure and abuse that

21
negatively impact a juvenile offender’s ability to make decisions. Miller
at 477.
In Ms. Brown Long’s case, she was physically beaten, sexually
abused, supplied with alcohol and drugs, forced to have sex with her pimp
and his friends, and then ordered out on the street, after being laced with
the drugs and alcohol, to sell her body to the adult 43 year old man who
picked her up at Sonic and took her to his home. Yet, the sentencing judge
could not consider any of these factors in assessing the life sentence, since
the statutory scheme mandated that she spend a minimum of 51 years
in incarceration.
Neither could the sentencing judge account for the peer pressure or
abuse that the appellant herein Mr. Booker endured or other juvenile
offenders in Tennessee. For instance, Mr. Sanders, who was raised by a
single mom, lacked a male mentor to lead and direct him, which resulted
in his immature decisions. Ms. Sanders writes:
I remember having to walk through different neighborhoods to get
to school; we would get jumped and beat up just because we were
not a part of that neighborhood's gang. At that age and in that
neighborhood, there were not many options for safety. I joined a
gang for protection, so I could get to school safely. I did not realize
the long term consequences this decision would have on my life.
Some may say that I should have just called the police, but when
you live in a neighborhood controlled by gangs, calling for the
support of the law is not an option and could put you and your
family's safety at risk.

(See Appendix 9). Likewise, Ms. Sellars’s story details how she was,
“[b]orn to a father who abused alcohol like he abused my mother, my life
was riddled continuously with varying levels of abuse from my earliest

22
memory.” (See Appendix 10). Mr. Alexander also suffered from immense
trauma, including witnessing his mother being knocked to the ground,
grabbed by her hair, and dragged through the mud by his alcoholic
father—the abuse was so severe that his siblings, mother, and he would
hide in his bedroom, barricading the door with furniture in hopes that
his father would never return. (See Appendix 2).
The Court in Miller clearly established that these stories of peer
pressure, childhood trauma, and other influences that contribute to
immaturity are imperative for a sentencer to account for a juvenile’s
diminished culpability and to ensure a cruel and unusual sentence is not
imposed. Miller at 477–478.
Therefore, this Court is requested to find that by restricting a
sentencer from accounting for a juvenile’s immaturity and influences like
peer pressure, the Tennessee mandatory minimum sentencing scheme
violates 8th Amendment proportionality principles.
E. Because the Tennessee mandatory sentencing scheme
does not provide a juvenile offender with any
meaningful opportunity to show rehabilitation, the life
sentence is unconstitutional.

The Tennessee mandatory sentencing scheme does not allow for

juvenile offenders to have, after serving a substantial number of years,
any “meaningful opportunity” to show that “their crime did not reflect
irreparable corruption.” Montgomery at 736-737. As a result, there is no
“hope left for some years of life outside prison walls[.]” Id.
As previously stated, a juvenile’s “parole eligibility” for a life
sentence in Tennessee means either being released from the “prison

23
walls” at age 65-68 years or, as the statistics show, dying in prison.
Neither option provides the juvenile with any “meaningful opportunity”
to demonstrate rehabilitation, reformation or transformation, and denies
him/her any opportunity to contribute to society. “Parole eligibility” after
51 years is meaningless, virtually nonexistent, and cruel. It is a fictional
“opportunity.” It is in an inhuman and unusual aberration.
This meaningless opportunity for parole is felt deeply among
juvenile offenders. As Mr. Sanders shares, “I'm predicted to die in prison.
It doesn't matter how good your health is in here. Statistics will tell you
that you lose a year of your life for every two years you do in prison. I'm
serving a death sentence.” (See Appendix 9). Mr. Buford’s experiences
before the Board of Parole allow him to share in the loss of hope
experienced among juveniles sentenced to life in prison. He writes:
“I know the challenges they face everyday behind the prison walls,
the efforts they take to overcome their wrongs, and the little hope
they have to be given a second chance. Likewise, I know the pain
they walk in knowing they may never have an opportunity to go
before the board of parole or to be declined parole if provided an
opportunity, I feel their pain, their remorse, their accountability,
and their transformation, but unlike me, they may died in prison.”
(See Appendix 5) (emphasis added).

Until clemency, Ms. Brown Long’s situation was the precise

punishment the court in Miller found to be inhuman, i.e., to even suggest
that Ms. Brown Long had a “meaningful” opportunity to live a substantial
number of years after obtaining release is an aberration that provided
her no “hope.” There are hundreds of juveniles in Tennessee who have
been offered no hope of life outside the prison walls. Ms. Brown Long, Mr.
Booker, Mr. Atkins, and Mr. Sanders all serve as a perfect example of the

24
wisdom of the United States Supreme Court's observations, foundational
principle, and those considerations set forth in Roper, Graham, Miller,
and Montgomery—juveniles can be rehabilitated. Miller at 471–472;
Montgomery at 473.
As Ms. Brown Long writes in her book, “[t]here is hope. Hope for
everyone locked in prisons physical or spiritual. Hope for everyone who
doubts they’ll ever be free. No matter how far you may have fallen, that
hope is still there for all who dare to believe their best days are not behind
them.” CYNTOIA BROWN LONG, FREE CYNTOIA: MY SEARCH FOR

REDEMPTION IN THE AMERICAN PRISON SYSTEM, at 297 (2019). Before this

Court is an opportunity to restore the hope Ms. Brown Long discusses.
Juveniles can be rehabilitated.
Thus, Amici respectfully requests this Court to restore hope to Mr.
Booker and the other juvenile offenders and find that release eligibility
after 51 years does not provide a juvenile offender with a meaningful
opportunity to show he/she has been rehabilitated. Id.

25
 CONCLUSION
For the foregoing reasons, Amici Curiae respectfully request this
Court to find that Tennessee’s mandatory life sentence as applied to
juveniles is unconstitutional under both the State Constitution and
Federal Constitution.
RESPECTFULLY SUBMITTED,

/s/ J. Houston Gordon

J. HOUSTON GORDON (BPR No. 007523)
LAW OFFICE OF J. HOUSTON GORDON, PLLC
114 W. Liberty Avenue, Suite 300
P. O. Box 846
Covington, TN 38019
Telephone: 901-476-4401
Electronic Mail: kmcmahan@lawjhg.com

/s/ Charles W. Bone

CHARLES W. BONE (BPR No. 002366)
BONE MCALLESTER NORTON PLLC
511 Union Street, Suite 1600
Nashville, TN 37219
Telephone: 615-238-6310
Electronic Mail: cbone@bonelaw.com

Attorneys for Cyntoia Brown Long

26
 CERTIFICATE OF COMPLIANCE
Pursuant to Tenn. Sup. Ct. R. 46, § the undersigned certifies that
this brief complies with the typeface and volume limitations required by
this Court. This brief was completed using Microsoft Word software,
Century Schoolbook font, in 14-point type. The Argument section
contains 4,721 words according to the word count in Microsoft Word.

/s/ Charles W. Bone

Charles W. Bone

27
 CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of December, 2020, a true copy
of the foregoing Brief of Amici Curiae was served on the following via
electronic mail at, or by first class mail, postage prepaid, addressed as
set forth below:

LUCILLE A. JEWEL DAVID ESQUIVEL

1505 W. CUMBERLAND AVENUE JEFF H. GIBSON
KNOXVILLE, TN 37996-1810 SARAH B. MILLER
ANGELA L. BERGMAN
BASS, BERRY & SIMS PLC
150 THIRD AVENUE SOUTH
SUITE 2800
NASHVILLE, TENNESSEE 37201

JONATHAN HARWELL NICHOLAS SPANGLER

ASSISTANT PUBLIC DEFENDER
1101 LIBERTY STREET
KNOXVILLE, TN 37919
ZACHARY HINKLE
ATTORNEY GENERAL’S OFFICE
CRIMINAL JUSTICE DIVISION
PO BOX 20207
NASHVILLE, TN 37202

BRADLEY A. MACLEAN WEBB CAMPBELL

LAW OFFICE OF BRADLEY A. SHERRARD ROE VOIGT & HARBISON
MACLEAN PLC
1702 VILLA PLACE 150 3RD AVENUE SOUTH, #1100
NASHVILLE, TN 37212 NASHVILLE, TN 37201

SOUMYA KADEMAKKI MARK CARVER

OFFICE OF ATTORNEY GENERAL SOUMYA KADEMAKKI
AND REPORTER OFFICE OF THE SOLICITOR GENERAL
PO BOX 20207 AT TENNESSEE ATTORNEY
NASHVILLE, TN 37201 GENERAL’S OFFICE
PO BOX 20207
NASHVILLE, TN 37201

28
RACHEL BERG GREGORY D. SMITH
POLSINELLI J. DAVID WICKER
401 COMMERCE STREET ALEXANDRA T. MACKAY
SUITE 900 STITES & HARBISON PLLC
NASHVILLE, TN 37219 401 COMMERCE STREET, SUITE 800
NASHVILLE, TENNESSEE 37219
WILLIAM IRVINE STELLA YARBROUGH
BURCH, PORTER & JOHNSON AMERICAN CIVIL LIBERTIES UNION
130 N CT. AVE. OF TENNESSEE
MEMPHIS, TN 38103 P.O. Box 120160 
Nashville, TN
37212
EDMUND SAUER BEAU CRESON
BRADLEY ARANT BOULT CUMMINGS BUTLER SNOW LLP
LLP 150 3RD AVE S STE, 1600
1600 DIVISION ST. STE 700, NASHVILLE, TN 37201
NASHVILLE, TN 37203

/s/ Charles W. Bone

Charles W. Bone

29