TACDL NACDL November Brief

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

TENNESSEE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
AMOS BROWN, AND CHARLES LOWE-KELLEY
Michael R. Working (#025118)

President, TENNESSEE
ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS
TACDL
530 Church Street, Suite 300
Nashville, TN 37219
615-329-1338
Counsel for Tennessee Association of

Criminal Defense Lawyers
Lucille A. Jewel (#032666)
1505 W. Cumberland Avenue
Knoxville, TN 37996-1810
865-974-8330
ljewel@utk.edu
Stephen Ross Johnson (#022140)

Amicus Committee,
Sixth Circuit Vice-Chair
Board of Directors
NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS
(NACDL)
Past-President, TACDL
RITCHIE, DILLARD, DAVIES, &
JOHNSON, P.C.
606 W. Main Street, Suite 300
Knoxville, TN 37902
865-637-0661
johnson@rddjlaw.com
Counsel for National Association of

David R. Esquivel (#021459)

Jeff H. Gibson (#026321)
Sarah Miller (#033441)
Angela L. Bergman (#031981)
BASS, BERRY & SIMS PLC
150 Third Avenue South, Suite 2800
Nashville, TN 37201
615-742-6200
desquivel@bassberry.com
jgibson@bassberry.com
smiller@bassberry.com
abergman@bassberry.com
2
Counsel for Charles Lowe-Kelley
Bradley A. MacLean (#009562)

LAW OFFICE OF BRADLEY A.
MACLEAN
1702 Villa Place
Nashville, TN 37212
615-943-8716
Brad.maclean9@gmail.com
Counsel for Charles Lowe-Kelley and

Amos Brown
3
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................... 6
INTERESTS OF AMICI ........................................................................... 12
ARGUMENT ............................................................................................. 14
I. THE COURT SHOULD INTERPRET AND APPLY THE TENNESSEE

CONSTITUTION IN THIS CASE BECAUSE IT PROVIDES MORE EXPANSIVE
PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENTS THAN THE U.S.
CONSTITUTION. .......................................................................................... 14
II. TENNESSEE’S JUVENILE SENTENCING SCHEME VIOLATES

TENNESSEE’S CRUEL AND UNUSUAL PUNISHMENTS CLAUSE...................... 17
A. Imposing a mandatory, 51-year sentence on a juvenile

offender no longer conforms to a contemporary standard of decency. ... 18
1. Tennessee’s standard for juvenile punishment has

shifted decisively away from a strict punitive approach. ....................... 18
2. Legislatures and state courts across the nation have

recognized that contemporary standards of decency preclude mandatory,
lifelong sentences for juveniles. ............................................................... 22
B. Mandatory sentences of fifty-plus years for juvenile

offenders are grossly disproportionate to the offense. ............................ 23
C. Tennessee’s mandatory life sentence does not align with

any valid penological purpose. ................................................................. 24
III. THE COURT SHOULD FOLLOW OTHER STATE COURTS THAT HAVE
INVALIDATED LENGTHY JUVENILE SENTENCES BECAUSE THEY CONSTITUTE
CRUEL AND UNUSUAL PUNISHMENTS UNDER THEIR STATE CONSTITUTIONS.
................................................................................................... 25
IV. TENNESSEE’S JUVENILE SENTENCING SCHEME VIOLATES THE

TENNESSEE CONSTITUTION’S UNNECESSARY RIGOR AND HUMANE
TREATMENT CLAUSES................................................................................. 31
4
CONCLUSION ......................................................................................... 33
CERTIFICATE OF COMPLIANCE ........................................................ 36
CERTIFICATE OF SERVICE.................................................................. 37
5
TABLE OF AUTHORITIES
Cases Page(s)
Adams v. Florida,
188 So.3d 849 (Fla. 2012) .................................................................... 31
Amos Brown v. State,

No. 4-CR-64 (McMinn Cnty. Cir. Ct.). ................................................ 13
Bear Cloud v. State,

334 P.3d 132 (Wyo. 2014) .................................................................... 31
California v. Fernandez,
2015 WL 1283486 (Cal. Ct. Ap. Mar. 18, 2015) .................................. 31
California v. Ramirez,
2017 WL 5824286 (Cal. Ct. App. Nov. 29, 2017) ................................ 31
Carr v. Wallace,
527 S.W.3d 55 (Mo. 2017) .................................................................... 31
Carter v. State,
192 A.3d 695 (Md. Ct. App. 2018) ................................................. 23, 31
Davis v. State,
415 P.3d 666 (Wyo. 2018) .................................................................... 31
Diatchenko v. Dist. Atty. For Suffolk,

1 N.E.3d 270 (Mass. 2013) ................................................................... 26
Graham v. Florida,
560 U.S. 48 (2010) ........................................................................ passim
Gregg v. Georgia,
428 U.S.153 (1976) ............................................................................... 25
Lowe-Kelley v. Washburn,
No. 1:16-cv-00082 (M.D. Tenn.) ........................................................... 13
Miller v. Alabama,
567 U.S. 460 (2012) ...................................................................... passim
Montgomery v. Louisiana,
136 S. Ct. 718 (2016) ................................................................ 14, 15, 19
Naovarath v. State,
779 P.2d 944 (Nev. 1989) ..................................................................... 17
People v. Buffer,
137 N.E.3d 763 (Ill. 2019) .................................................................... 30
People v. Miller,
781 N.E.2d 300 (Ill. 2002) .................................................................... 17
State v. Bassett,
428 P.3d 343 (Wash. 2018) ............................................................ 22, 26
State v. Black,
815 S.W.2d 166 (Tenn. 1991) ............................................................... 18
State v. Clinard,
No. M200700406CCAR3CD, 2008 WL 4170272 (Tenn.
Crim. App. Sept. 9, 2008)..................................................................... 15
State v. Davilla,
302 Or. App. 742 (2020) ....................................................................... 30
State v. Harris,
844 S.W.2d 601 (Tenn. 1992) ......................................................... 15, 16
State v. Kelliher,
2020 WL 5901213 (N.C. Ct. App. Oct. 6, 2020) .......................... passim
State v. Null,
836 N.W.2d 41 (Iowa 2013).......................................................... passim
State v. Sweet,
879 N.W.2d 811 (Iowa 2016).......................................................... 22, 26
State v. Zuber,
152 A.3d 197 (N.J. 2017)................................................................ 26, 31
Van Tran v. State,

66 S.W.3d 790 (Tenn. 2001) ................................................................. 21
7
Washington v. Ronquillo,
361 P.3d 779 (Wash. Ct. App. 2015).................................................... 31
Workman v. Commonwealth,
429 S.W.2d 374 (Ky. Ct. App. 1968) .................................................... 16
Statutes
13 R.I. Gen. Laws Ann. § 13-8-13 ............................................................ 23
2018 Juvenile Justice Reform Act ............................................... 18, 19, 20
Ala. Code § 13A-5-43(e) ............................................................................ 23
Alaska Code Ann. § 12.55.125(a) ....................................................... 22, 23
Ark. Code Ann. § 5-4-104(b) ..................................................................... 22
Ark. Code Ann. § 5-10-101(c)(1) ............................................................... 23
Cal. Penal Code § 3051(b)(4) .................................................................... 23
Conn. Gen. Stat. § 54-125a(f)(1)......................................................... 22, 23
D.C. Code § 22-2104(a) ....................................................................... 22, 23
Del. Code Ann. tit. 11, § 4209A ................................................................ 23
Ga. Code Ann. § 42-9-39(b) ...................................................................... 23
Haw. Rev. Stat. § 706-656(1).................................................................... 22
Idaho Code Ann. § 18-4004 ...................................................................... 23
Ill. Comp. Stat. Ann. 5/3-3-3 (a)(1)........................................................... 23
Kan. Stat. Ann. § 21-6618 ........................................................................ 22
Kan. Stat. Ann. § 21-6623 ........................................................................ 23
Ky. Rev. Stat. § 532.030(1)(d) .................................................................. 23
Ky. Rev. Stat. § 640.040 (1) ...................................................................... 22
8
La. Stat. Ann. § 15:574.4 .......................................................................... 23
Mass. Gen. Laws Ann. Ch. 119, § 72B ..................................................... 22
Mass. Gen. Laws Ann. ch. 279, § 24 ........................................................ 23
Md. Code Ann. Corr. Servs. § 7-301(d)(2) ................................................ 23
Mo. Ann. Stat. § 558.047(2) ...................................................................... 23
Mont. Code Ann. § 46-23-201 ................................................................... 23
N.C. Gen. Stat. Ann. § 15A-1340.19A...................................................... 23
N.D. Cent. Code § 12.1-31-13.1 ................................................................ 22
N.D. Cent. Code § 12.1-32-01(1)............................................................... 23
N.J. Stat. Ann. § 30:4-123.51(b) ............................................................... 23
N.M. Stat. Ann. § 31-21-10....................................................................... 23
N.Y. Penal Law § 70.00(3)(a)(i) ................................................................ 23
Nev. Rev. Stat. § 176.025 ......................................................................... 22
Nev. Rev. Stat. § 213.12135(1)(b)............................................................. 23
Or. Rev. Stat. § 137.707............................................................................ 22
Or. Rev. Stat. § 137.707(4)(B) .................................................................. 23
S.C. Code Ann. § 16-3-20(a) ..................................................................... 23
S.D. Codified Laws § 22-6-1 ..................................................................... 22
Tenn. Code Ann. § 37-1-101(a)(7) ............................................................ 19
Tenn. Code Ann. § 37-1-132(d) ................................................................. 20
Tenn. Code Ann. § 37-1-134(l).................................................................. 20
Utah Code Ann. § 76-3-209 ................................................................ 22, 23
9
Va. Code Ann. § 53.1-151(C) .................................................................... 23
Vt. Stat. Ann. tit. 13, § 7045 .................................................................... 22
W. Va. Code § 61-11-23............................................................................. 22
W. Va. Code § 61-11-23(b) ........................................................................ 23
Wash. Rev. Code § 9.95.115 ..................................................................... 23
Wyo. Stat. Ann. § 6-2-101(b) .................................................................... 22
Wyo. Stat. Ann. § 6-10-301(C) .................................................................. 23
Other Authorities
Advocates Once Praised Bill Haslam’s Juvenile Justice Bill.

Now They Say It’s Watered Down, THE TENNESSEAN,
April 17, 2018 ....................................................................................... 20
Christine Hauser, Cyntoia Brown Inspires a Push for

Juvenile Criminal Justice Reform in Tennessee, N.Y.
TIMES, Jan. 17, 2019 ............................................................................ 21
False Hope: How Parole Systems Fail Youth Serving

Extreme Sentences 161 (ACLU, Nov. 2016) ....................................... 18
Iowa Constitution, Article I, Section 17 .................................................. 27
Jeffrey Sutton, 51 IMPERFECT SOLUTIONS: STATES AND THE

MAKING OF CONSTITUTIONAL LAW 2 (Oxford Univ. Press
2018) ............................................................................................... 16, 25
John D. Bessler, A Century in the Making: The Glorious

Revolution, the American Revolution, and the Origins of
the U.S. Constitution’s Eighth Amendment
............................................................................................ 14, 15, 31, 32
Juvenile Justice Diversion Programs, TENNESSEE.GOV ......................... 21
Lewis L. Laska, A Legal and Constitutional History of

Tennessee, 6 MEM. ST. L. REV. 5653 (1976) ........................................ 29
10
Mark Denniston & Christoffer Binning, The Role of State
Constitutionalism in Determining Juvenile Life
Sentences, 17 GEO. J.L. & PUB. POL’Y 599 (2019) ............................... 25
News Release, Haslam Appoints Juvenile Justice
Implementation Council, TENNESSEE.GOV ......................................... 21
Section 55, 2018 Tennessee Laws Pub. Ch. 1052 (H.B. 2271) ............... 19
Tenn. Const. Art. I, § 13

............................................................................................ 31, 32, 33, 34
Tenn. Const. Art I, § 16 .................................................................... passim
Tenn. Const. Art. I, § 32

............................................................................................ 31, 32, 33, 34
U.S. Constitution Eighth Amendment ............................................ passim
11
Amici Curiae the Tennessee Association of Criminal Defense
Lawyers (“TACDL”), National Association of Criminal Defense Lawyers
(“NACDL”), Amos Brown, and Charles Lowe-Kelley submit this brief in
support of Appellant Tyshon Booker.
INTERESTS OF AMICI
The Amici are a state and national association of criminal defense
attorneys, and two Tennessee residents sentenced as juveniles under the
current statutory scheme. The interests of Amici are more fully described
in their Motion for Leave to File Amici Curiae Brief, filed
contemporaneously herewith, but their interests can be briefly
summarized as follows:
TACDL is the leading bar association for Tennessee criminal
defense attorneys whose mission includes working for improvement in
the criminal justice system. To fulfill this mission, TACDL submits
amicus briefs on important issues that affect the administration of
criminal justice in Tennessee, with a particular focus on constitutional
issues. TACDL members have broad experience with and deep knowledge
of protections afforded to criminal defendants by the Tennessee
Constitution.
NACDL is a nonprofit voluntary professional bar association that
works on behalf of criminal defense attorneys to ensure justice and due
process for those accused of crime or misconduct. NACDL was founded in
1958. It has a nationwide membership of many thousands of direct
members, and up to 40,000 with affiliates. NACDL’s members include
private criminal defense lawyers, public defenders, military defense
counsel, law professors, and judges. NACDL is the only nationwide
12
professional bar association for public defenders and private criminal
defense lawyers. NACDL is dedicated to advancing the proper, efficient,
and just administration of justice. NACDL files numerous amicus briefs
each year in the U.S. Supreme Court and other federal and state courts,
seeking to provide amicus assistance in cases that present issues of broad
importance to criminal defendants, criminal defense lawyers, and the
criminal justice system as a whole.
Amos Brown is serving a life sentence for felony murder for a crime
that occurred when he was 16 years old. He will not be eligible for release
until he is at least 69 years old. He is challenging the constitutionality of
his 51-year mandatory minimum life sentence in a post-conviction
proceeding that is pending in McMinn County. Amos Brown v. State, No.
4-CR-64 (McMinn Cnty. Cir. Ct.).
Charles Lowe-Kelley is currently serving two consecutive life
sentences for crimes that occurred when he was 16 years old. Under
current Tennessee law, he will not be eligible for release until he is nearly
120 years old, which means that he will die in prison. Mr. Lowe-Kelley is
challenging the constitutionality of his sentence in a pending federal
habeas corpus proceeding in the U.S. District Court for the Middle
District of Tennessee. Lowe-Kelley v. Washburn, No. 1:16-cv-00082 (M.D.
Tenn.).
The Amici previously filed an amicus brief in support of Mr.
Booker’s Rule 11 petition for review to this Court. That brief is attached
hereto for the Court’s convenience as Appendix A.
13
ARGUMENT
As set forth fully in Amici’s Rule 11 Brief, imprisonment for a
mandatory term of 51 years does not give Tennessee’s youthful offenders
“a meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” Miller v. Alabama, 567 U.S. 460, 479 (2012)
(quoting Graham v. Florida, 560 U.S. 48, 75 (2010)). Accordingly,
Tennessee’s juvenile sentencing scheme violates the Eighth Amendment,
as interpreted by the U.S. Supreme Court in Miller and Montgomery. See
Miller, 567 U.S. 460 (2012); Montgomery v. Louisiana, 136 S. Ct. 718
(2016). In addition to violating the federal constitution, Tennessee’s
sentencing statue, as applied to juveniles, also violates the Tennessee
Constitution.
I. The Court should interpret and apply the Tennessee Constitution

in this case because it provides more expansive protection against
cruel and unusual punishments than the U.S. Constitution.
Like the Eighth Amendment to the U.S. Constitution, Article I,

Section 16 of the Tennessee Constitution prohibits cruel and unusual
punishments. The Eighth Amendment and Section 16 both derive from
the English Bill of Rights enacted in 1689, in response to the excessive
and painful punishments that deposed King James II inflicted on the
British people. John D. Bessler, A Century in the Making: The Glorious
Revolution, the American Revolution, and the Origins of the U.S.
Constitution’s Eighth Amendment, 27 WILLIAM & MARY BILL OF RIGHTS
JOURNAL 989, 998 (2018-2019). In drafting the federal and state
constitutions, American colonists borrowed language from the English
Bill of Rights, remembering past British experiences with despotic
14
monarchs, but also with the aim of preventing contemporary abuse at the
hands of the British crown. Bessler, A Century in the Making, at 1049.
Despite the nearly identical wording between the federal and state
constitutions, the Tennessee Supreme Court “has consistently afforded a
more expansive interpretation to Article I, Section 16 than afforded by
the Eighth Amendment.” State v. Clinard, 2008 WL 4170272, at *6–7
(Tenn. Crim. App. Sept. 9, 2008) (citing State v. Harris, 844 S.W.2d 601,
602 (Tenn. 1992)). This Court’s expansive interpretation of Article I,
Section 16 was affirmed in State v. Harris, where the defendant argued
that he was entitled to challenge his non-capital sentence as
disproportional to his crime. 844 S.W.2d at 602. Even though U.S.
Supreme Court Eighth Amendment jurisprudence limited the right to
proportionality review to capital cases, this Court held that a defendant
is entitled to proportionality review of a non-capital sentence based on a
more expansive reading of the Tennessee Constitution. Id. (citing State
v. Black, 815 S.W.2d 166, 188 (Tenn. 1991)).
The Court in Harris reasoned that “the precise contours of the
federal proportionality guarantee” were unclear, but that the defendant
was entitled to proportionality review under the Tennessee Constitution.
Id. Likewise, the contours of federal jurisprudence on lifelong juvenile
sentences is also unclear, as evidenced by the many state court cases that
have wrestled with interpretations of Miller and Montgomery. Given this
Court’s more expansive reading of the Cruel and Unusual Punishments
Clause in the Tennessee Constitution, and the lack of clarity in federal
case law when interpreting the Eighth Amendment to juvenile
15
sentencing, it is incumbent upon the Court to analyze this case distinctly
under Article I, Section 16, as it did in Harris.
Principles of federalism support this Court’s independent
evaluation of the rights contained in the Tennessee Constitution. When
a federal right is unclear, state court decisions often influence the
evolution of the federal right. See Jeffrey Sutton, 51 IMPERFECT
SOLUTIONS: STATES AND THE MAKING OF CONSTITUTIONAL LAW 2 (Oxford
Univ. Press 2018). By drawing upon local community standards, state
constitutional decisions can provide local citizens with a more expansive
right than what is available under the federal constitution. These state
court decisions then influence the evolution of the federal right. Id. at 3-
5 (summarizing how state constitutional decisions provided citizens with
greater rights as a precursor to a federal decision or in response to federal
decisions that declined to expand a right).
These principles of federalism have been at work on the very issue
before this Court—the constitutionality of lifelong, or nearly lifelong,
sentences for juveniles. Several state courts ruled that juvenile life
without parole sentences violated their state constitutions, well before
the U.S. Supreme Court’s decision in Miller. In Workman v.
Commonwealth, the Kentucky Court of Appeals invalidated a life
without parole sentence for a fourteen-year-old convicted of rape, finding
that, under the Kentucky Constitution, the sentence was cruel and
unusual punishment. 429 S.W.2d 374, 378 (Ky. Ct. App. 1968). Noting
that the sentence appeared to equate rape offenders with incorrigibility,
the Workman court opined that “[w]e believe that incorrigibility is
inconsistent with youth; that it is impossible to make a judgment that a
16
fourteen-year-old youth, no matter how bad, will remain incorrigible for
the rest of his life.” Similarly, before the U.S. Supreme Court decided
Graham, the Supreme Courts of Nevada and Illinois held that life in
prison without parole violated their state constitutions when applied to
a thirteen-year-old and fourteen-year-old convicted of murder,
respectively. Naovarath v. State, 779 P.2d 944, 948-49 (Nev. 1989);
People v. Miller, 781 N.E.2d 300, 308-10 (Ill. 2002). In People v. Miller,
the Illinois Supreme Court explained that the youth’s sentence of life in
prison without parole for murder, even though he only acted as a lookout,
“shock[ed] the moral sense of the community.” Miller, 781 N.E.2d at 308-
09.
Because state court interpretations of the evolving standards of
decency play an important role in our decentralized, federal system of
government, this Court should apply the more expansive reach of Article
I, Section 16 in this case. When it does, the Court should find that
Tennessee’s mandatory, 51-year sentence for juvenile offenders violates
the rights guaranteed by the state constitution.
II. Tennessee’s Juvenile Sentencing Scheme Violates Tennessee’s

Cruel and Unusual Punishments Clause.
In analyzing whether a punishment violates Tennessee’s Cruel and

Unusual Punishments Clause, this Court has adopted a three-factor test:
First, does the punishment for the crime conform
to contemporary standards of decency? Second is
the punishment grossly disproportionate to the
offense? And third, does the punishment go beyond
what is necessary to accomplish any penological
purpose?
17
State v. Black, 815 S.W.2d at 189 (quoting Gregg v. Georgia, 428 U.S.153,
173 (1976)). Applying these factors requires a finding that Tennessee’s
sentencing scheme for juveniles, which is among the most extreme in the
nation,1 violates Article I, Section 16.
A. Imposing a mandatory, 51-year sentence on a juvenile
offender no longer conforms to a contemporary standard of
decency.
1. Tennessee’s standard for juvenile punishment has

shifted decisively away from a strict punitive approach.
Lengthy mandatorily imposed sentences for youthful offenders no

longer conform with an evolved sense of decency specific to Tennessee
citizens. The recently enacted 2018 Juvenile Justice Reform Act (the
“Act”) highlights that Tennessee values are shifting away from automatic
detention and incarceration of children to interventions designed to
rehabilitate children and return them to the community.2 Several
sections of the Act highlight this value shift.
First, the Tennessee legislature indicated that the overall
legislative purpose of the Act is as follows:
It is the intent of the general assembly that
improvements to the juvenile justice system and
1 See False Hope: How Parole Systems Fail Youth Serving Extreme Sentences 161
(ACLU, Nov. 2016), available at
https://www.aclu.org/sites/default/files/field_document/121416-aclu-
parolereportonlinesingle.pdf.
2 See Juvenile Justice Reform Act of 2018, Infographic PDF,
https://www.tn.gov/content/dam/tn/governorsoffice-documents/governorsoffice-
documents/sots-2018/JuvenileJusticeReform_infographic.pdf (emphasizing, in visual
terms, that the aim of the Act is to reduce incarceration of youth and make more
community services available for a child’s rehabilitation and return to the
community).
18
expansion of community-based resources for
justice-involved children be prioritized, including,
but not limited to, evidence-based programs,
informal adjustment, diversion, home placement
supervision, statewide data collection, early
intervention programs and services for children
and families, and mental health services,
especially in any county underserved with such
programs and services.
Section 55, 2018 Tennessee Laws Pub. Ch. 1052 (H.B. 2271). This
legislative purpose demonstrates Tennessee’s shift to improve juvenile
sentencing by prioritizing a rehabilitative approach over a punitive
approach.
Second, the Act specifically embraces the psychological and
neurological science that Graham, Miller, and Montgomery relied on. It
emphasizes the need to “[p]rovide developmentally appropriate
interventions based on current scientific research in related fields,
including neuroscience, psychology, sociology, and criminology.” Tenn.
Code Ann. § 37-1-101(a)(7). The General Assembly recognized that
contemporary understanding of youthful offenders should be informed by
the science that explains youth psychology and brain science––young
people lack the ability to appreciate the gravity of their actions and the
consequences that flow from their decisions; they are particularly prone
to peer influence; and they do not often perform a rational cost-benefit
analysis before deciding to embark on a course of action. The direct
adoption of the uncontested brain science regarding a child’s
psychological and neurological development demonstrates that
19
Tennessee’s approach to incarcerating children until old age or death has
shifted.
Third, the Tennessee Legislature’s implementation of more
restrictive procedures on transferring children to adult criminal court
further supports the shift in community standards. The intent behind the
stricter transfer procedures was to ensure “that children shall not be
transferred under this section due to a lack of appropriate resources for
effective treatment and rehabilitation in the juvenile justice system.”
Tenn. Code Ann. § 37-1-134(l).
As a final example, the Act modified Tennessee’s approach to
truancy to emphasize family services and other interventionist
approaches that would “address educational barriers and the root causes
of truancy.” Tenn. Code Ann. § 37-1-132(d).
Tennessee’s shift toward community interventions instead of penal
approaches embodies a growing consensus that the dangerous and
criminal impulses that afflict many youthful offenders can be overcome
and that children have a great capacity for rehabilitation and change.
Through the Act, Tennessee has rejected the antiquated premise that
imposing a mandatory 51-year sentence on a juvenile is consistent with
the evolving standards of human decency.3
3 The Act has been criticized by juvenile justice advocates for not going far enough.
See Adam Tamburin, Advocates Once Praised Bill Haslam’s Juvenile Justice Bill.
Now They Say It’s Watered Down, THE TENNESSEAN, April 17, 2018,
https://www.tennessean.com/story/news/2018/04/17/tennessee-juvenile-justice-bill-
haslam/520421002/. Nonetheless, the new law orients juvenile justice toward
rehabilitation, greatly softening the punitive approaches in older laws.
20
Executive initiatives and new government programs also point
toward a paradigm shift for juvenile justice in Tennessee. For instance,
in 2019, then-Governor Haslam appointed members to a Juvenile Justice
Reform Council, with the aim of reforming all aspects of the juvenile
justice system, including sentencing.4 The ascendance of juvenile justice
diversion programs in Tennessee also highlights the attitude that
automatic, lengthy jail sentences do not align with the goal of
rehabilitating youth in the State.5
Furthermore, in recent years, the public has become engaged on the
issue of young people serving exceedingly long sentences in Tennessee.
Broad support for juvenile sentencing reform was ignited by the
compelling story of youthful offender Cyntoia Brown. Ms. Brown had
been sentenced to a mandatory life sentence at the age of 16. She was
recently pardoned by former Governor Bill Haslam, following significant
public response to her story and calls for her release.6 In this case in
particular, a large number of local organizations with faith-based and
civil-rights missions are submitting amicus briefs in support of Mr.
Booker’s challenge to Tennessee’s juvenile sentencing scheme. See Van
4 News Release, Haslam Appoints Juvenile Justice Implementation Council,

TENNESSEE.GOV, available at https://www.tn.gov/former-governor-
haslam/news/2019/1/18/haslam-appoints-juvenile-justice-reform-implementation-
council.html.
5 See Juvenile Justice Diversion Programs, TENNESSEE.GOV, available at
https://www.tn.gov/behavioral-health/mental-health-services/mental-health-
services-for-children-and-youth/juvenile-justice-diversion-programs.html.
6 See Christine Hauser, Cyntoia Brown Inspires a Push for Juvenile Criminal Justice
Reform in Tennessee, N.Y. Times, Jan. 17, 2019,

https://www.nytimes.com/2019/01/17/us/cyntoia-brown-tennessee-criminal-
justice.html.
21
Tran v. State, 66 S.W.3d 790, 803 (Tenn. 2001) (finding the positions of
professional organizations relevant for determining the community’s
stance on the execution of mentally disabled individuals).
Attitudes toward juvenile justice and sentencing in Tennessee have
decidedly moved toward the view that a mandatory life sentence, with no
eligibility for release for 51 years, is contrary to contemporary standards
of decency.
2. Legislatures and state courts across the nation have
recognized that contemporary standards of decency
preclude mandatory, lifelong sentences for juveniles.
By statute and judicial decision, states across the nation recognize
that foreclosing any consideration of a juvenile offender’s ability to
rehabilitate and reenter society no longer comports with current
standards of decency. Nineteen states and the District of Columbia have
categorically prohibited the imposition of a life without parole (“LWOP”)
sentence for juvenile offenders, even though the U.S. Supreme Court in
Miller held open the possibility that some juvenile LWOP sentences could
survive Eighth Amendment scrutiny.7 Thirty-one jurisdictions in the
7See Alaska Code Ann. § 12.55.125(a); Ark. Code Ann. § 5-4-104(b); Conn. Gen. Stat.
§ 54-125a(f)(1); Haw. Rev. Stat. § 706-656(1); State v. Sweet, 879 N.W.2d 811 (Iowa
2016); Kan. Stat. Ann. § 21-6618; Ky. Rev. Stat. § 640.040 (1); Mass. Gen. Laws Ann.
Ch. 119, § 72B; Nev. Rev. Stat. § 176.025; State v. Kelliher, 2020 WL 5901213 (N.C.
Ct. App. Oct. 6, 2020); N.D. Cent. Code § 12.1-31-13.1; Or. Rev. Stat. § 137.707; S.D.
Codified Laws § 22-6-1; Utah Code Ann. § 76-3-209; Vt. Stat. Ann. tit. 13, § 7045;
State v. Bassett, 428 P.3d 343 (Wash. 2018); W. Va. Code § 61-11-23; Wyo. Stat. Ann.
§ 6-2-101(b); D.C. Code § 22-2104(a).
22
United States require parole eligibility after no more than 30 years when
sentencing a juvenile to life or a term-of-years sentence with the
possibility of release.8
B. Mandatory sentences of fifty-plus years for juvenile

offenders are grossly disproportionate to the offense.
When applied to juveniles, Tennessee’s mandatory 51-year

sentence violates sentence proportionality principles. In Miller, the U.S.
Supreme Court held that a de jure LWOP sentence was disproportional
for all juvenile crimes except for those rare offenders who demonstrate
“irreparable corruption.” Miller, 567 U.S. at 479–80. Likewise, when
taking into account the life expectancy of Tennessee prisoners, a de facto
life sentence, which incarcerates a youthful offender until death or
extreme old age, is unconstitutionally disproportionate. Juvenile
sentences longer than fifty years are not proportionate within the
meaning of the Cruel and Unusual Punishments Clause. See Carter v.
State, 192 A.3d 695, 728-29 (Md. Ct. App. 2018) (explaining that other
courts have coalesced around a general rule that a fifty-year sentence is
8 See Ala. Code § 13A-5-43(e); Alaska Stat. § 12.55.125(a); Ark. Code Ann. § 5-10-
101(c)(1); Cal. Penal Code § 3051(b)(4); Conn. Gen. Stat. § 54-125a(f)(1); Del. Code
Ann. tit. 11, § 4209A; D.C. Code § 22-2104(a); Ga. Code Ann. § 42-9-39(b); Idaho Code
Ann. § 18-4004; 730 Ill. Comp. Stat. Ann. 5/3-3-3 (a)(1); Kan. Stat. Ann. § 21-6623;
Ky. Rev. Stat. § 532.030(1)(d); La. Stat. Ann. § 15:574.4; Mass. Gen. Laws Ann. ch.
279, § 24; Md. Code Ann. Corr. Servs. § 7-301(d)(2); Mo. Ann. Stat. § 558.047(2); Mont.
Code Ann. § 46-23-201; Nev. Rev. Stat. § 213.12135(1)(b); N.J. Stat. Ann. § 30:4-
123.51(b); N.M. Stat. Ann. § 31-21-10; N.Y. Penal Law § 70.00(3)(a)(i); N.C. Gen. Stat.
Ann. § 15A-1340.19A; N.D. Cent. Code § 12.1-32-01(1); Or. Rev. Stat. § 137.707(4)(B);
13 R.I. Gen. Laws Ann. § 13-8-13; S.C. Code Ann. § 16-3-20(a); Utah Code Ann. § 76-
3-209; Va. Code Ann. § 53.1-151(C); Wash. Rev. Code § 9.95.115; W. Va. Code § 61-
11-23(b); Wyo. Stat. Ann. § 6-10-301(C).
23
constitutionally problematic, based on Graham’s observation that
youthful offenders are given no hope for release “even if he[/she] spends
the next half century attempting to atone for his crimes and learn from
his mistakes.”) (quoting Graham, 560 U.S. at 79 (emphasis added)).
The mandatory nature of Tennessee’s sentencing scheme also
presents insurmountable proportionality issues. “[M]aking youth (and all
that accompanies it) irrelevant to imposition of that harshest prison
sentence. . .poses too great of a risk of disproportionate punishment [to
pass constitutional muster].” Miller, 567 U.S. at 479. Miller presumes
that confining children to prison for their lifetimes will be “uncommon”
and “rare.” Id. Tennessee’s sentencing scheme turns Miller on its head:
every juvenile offender in Tennessee is deemed to be irreparably corrupt.
Statistically, only a few can be expected to live long enough to ever leave
prison. Tennessee youthful offenders are entirely foreclosed from
demonstrating the truth, recognized in Miller and Graham, that
“incorrigibility is inconsistent with youth.” Id. at 472-73 (quoting
Graham, 560 U.S. at 72-73 (quoting Workman v. Commonwealth, 429
S.W.2d at 378)). Accordingly, Tennessee’s mandatory life sentence for
juveniles of 51-years is grossly disproportionate to the offense.
C. Tennessee’s mandatory life sentence does not align with any
valid penological purpose.
Sentencing a youthful offender to live in prison until the twilight

years of her life does not accomplish any valid penological purpose. “The
distinctive attributes of youth diminish the penological justifications for
imposing the harshest sentences on juvenile offenders, even when they
commit terrible crimes.” Miller, 567 U.S. at 472.
24
Retribution, the penological concept that blameworthy criminals
must be punished to assuage the rest of society, is not as strong with
children as with adults. Id. Children are, neurologically and
psychologically, less blameworthy. They often lack the cognitive skills to
fully appreciate the moral consequences of their actions. The penological
goal of deterrence also does not work the same way in children as in
adults. Id. Children often act spontaneously and do not engage in logical,
cost-benefit analysis (the costs and risks of going to prison) before
embarking on a course of conduct. Id. Finally, a mandatory 51-year
sentence “foreswears altogether the rehabilitative ideal,” the third
penological goal considered when analyzing punishments. Id.
For these reasons, when the Court applies the three-prong test
adopted from Gregg, the Court should find Tennessee’s mandatory 51-
year sentencing scheme is cruel and unusual punishment when applied
to juveniles, in violation of Article I, Section 16 of the Tennessee
Constitution.
III. The Court Should Follow Other State Courts That Have
Invalidated Lengthy Juvenile Sentences Because They Constitute
Cruel and Unusual Punishments Under Their State Constitutions.
In construing the meaning of Tennessee’s Cruel and Unusual

Punishments Clause, decisions from sister states are especially relevant.
See Sutton, 51 IMPERFECT SOLUTIONS at 175 (explaining that if federal
decisions are persuasive on a state’s constitution, then sister state
decisions should “have the most to say about the point.”); Mark Denniston
& Christoffer Binning, The Role of State Constitutionalism in
Determining Juvenile Life Sentences, 17 GEO. J.L. & PUB. POL’Y 599, 601
25
(2019) (explaining that post-Miller, “state supreme courts look to one
another for answers” and “establish[] a dialogue” that helps resolve
larger questions left open by the U.S. Supreme Court).
Several states have held that juvenile sentences that may have
passed muster under a limited interpretation of Miller and Graham
nonetheless failed under state constitutional guarantees. Some of these
decisions categorically invalidated LWOP sentences, even though Miller
contemplates that such sentences may not violate the Eighth
Amendment. See State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016)
(discretionary LWOP sentence violated the Iowa constitution);
Diatchenko v. Dist. Atty. For Suffolk, 1 N.E.3d 270, 282-87 (Mass. 2013),
superseded by Mass. Gen. L. c. 265, § 2 (discretionary LWOP sentence
violated the Massachusetts constitution); State v. Bassett, 428 P.3d 343
(Wash. 2018) (discretionary LWOP sentence violated the Washington
constitution).
Other decisions have invalidated lengthy, de facto life sentences
under their state constitutions. State v. Null, 836 N.W.2d 41, 70-77 (Iowa
2013) (mandatory 52.5 year sentence violated the Iowa constitution);
State v. Zuber, 152 A.3d 197, 206, 211, 215 (N.J. 2017) (life sentences
without parole eligibility for 55 and 68 years violated both the federal
and New Jersey constitutions, noting the greater protections afforded
under New Jersey’s constitution); Kelliher v. State, 2020 WL 5901213
(N.C. Ct. App. Oct. 6, 2020) (consecutive life sentences without parole
eligibility for 50 years violated the North Carolina constitution).
Of the state court decisions that have found juvenile sentences to
violate state constitutional rights, two are most persuasive––State v.
26
Null (Iowa) and State v. Kelliher (North Carolina). The defendant in Null
was given a discretionary seventy-five-year sentence for second-degree
murder and first-degree robbery. Null, 836 N.W.2d 41 at 45. He was
required to serve at least 52.5 years of his sentence before being
considered for parole. Id. Null argued that his sentence violated both the
federal and Iowa constitutions.9 Id. The Null court found Miller to be
unclear with regard to lengthy term-of-years sentences, which left the
court to determine if a 52.5 year sentence provides “a meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation” under the state constitution. Id. at 67-68.
After reviewing and applying the principles from Graham and
Miller, the Null court found that the defendant’s 52.5 year sentence
violated the Iowa constitution’s prohibition on cruel and unusual
punishments. Id. at 67-68, 70. The court held that “while a minimum of
52.5 years is not technically a life-without-parole sentence, such a
lengthy sentence imposed on a juvenile is sufficient to trigger Miller-type
protections.” Id. The court in Null reasoned that “[t]he prospect of
geriatric release, if one is to be afforded the opportunity for release at all,
does not provide a ‘meaningful opportunity’ to demonstrate the ‘maturity
and rehabilitation’ required to obtain release and reenter society as
required by Graham.” Id. at 71. Thus, the court held that the defendant
9 The text of Iowa’s cruel and unusual punishments clause reads as follows:
“Excessive bail shall not be required; excessive fines shall not be imposed, and cruel
and unusual punishment shall not be inflicted.” Iowa Constitution, Article I, Section
17. For comparison, Article I, Section 16 of the Tennessee Constitution and Eighth
Amendment both provide that “[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”
27
was entitled to be re-sentenced in a way that considered Miller’s
“meaning opportunity” mandate. Id. at 77.
Null is highly analogous to Mr. Booker’s case. The Null court
invalidated a 50-year sentence because it failed to give the defendant a
“meaningful opportunity” to demonstrate rehabilitation and return to
society. Furthermore, Null is instructive because it grounded its decision
in the state constitution, with reference to the principles developed in
Miller and Graham. Id. at 70. Null provides a cogent guide for
understanding how the principles in Miller—viewed through the lens of
a state constitution—should be applied to lengthy sentences, beyond
mandatory, de jure LWOP sentences.
In framing its decision to move beyond a formulaic and narrow
reading of Miller, the Null court observed that the string of juvenile
decisions in Roper, Graham, and Miller built upon each other. When read
together, these decisions compel their extension beyond mandatory, de
jure LWOP sentences.
The notion that the reasoning of Roper was limited
to the death penalty cases was proven wrong in
Graham, and the notion that Graham’s reasoning
was limited to nonhomicide cases was proven
wrong in Miller. Further the Supreme Court in
Miller specifically declared that what it said about
juveniles in Roper, Graham, and Miller is not
“crime-specific.” As a result, it can be argued that
the diminished culpability of juveniles must
always be a factor considered in criminal
sentencing.
Id.
28
The Null decision is a blueprint for how this Court should read
Article I, Section 16 of the Tennessee Constitution to prohibit a
mandatory, 51-year sentence on a juvenile, which allows no meaningful
opportunity to demonstrate the rehabilitation required to reenter society.
The other most instructive state court decision is the North
Carolina Court of Appeals’ recent decision in Kelliher v. State, 2020 WL
5901213 (N.C. Ct. App. Oct. 6, 2020). In Kelliher, the court held that the
North Carolina constitution prohibited a discretionarily imposed juvenile
sentence that did not allow parole for fifty years. Id. at *19-22. Because
the sentence was a de facto LWOP sentence, it violated North Carolina’s
prohibition against cruel and unusual punishments. Id. 10
The defendant in Kelliher, a seventeen-year-old with a troubled
childhood, participated in a robbery with two adults that resulted in the
murder of two people. 2020 WL 5901213, at *19-22. After Miller, the
defendant sought and received a resentencing hearing that considered
his youth, his incorrigibility, and his efforts toward rehabilitation. Id. at
*3. At the hearing, the court found that he was not incorrigible nor
irredeemable and that he had made substantive efforts toward
rehabilitation, obtaining his GED, studying to become a minister from a
seminary, and expressing remorse for his actions. Id. at *3-4. After
considering these facts and the victims’ family’s statements, the court
10The court’s analysis in Kelliher should be particularly persuasive authority based

on the unique historical relationship between North Carolina and Tennessee. The
territory that eventually became Tennessee was originally part of the North Carolina
colony. Lewis L. Laska, A Legal and Constitutional History of Tennessee, 6 Mem. St.
L. Rev. 563, 582 (1976). Tennessee’s Constitution, enacted in 1796, was “largely
patterned after the North Carolina Constitution of 1776.” Id. at 566-79.
29
sentenced the defendant to two consecutive life sentences with eligibility
for parole in 50 years. Id. at *4. On appeal, the court in Kelliher held
that this minimum 50-year sentence violated both Article I, Section 27 of
the North Carolina constitution and the Eighth Amendment of the U.S.
Constitution. Id. at *4-5, 12, 19-22.
After reviewing the caselaw from sister states, the Kelliher court
noted that “a clear majority” of states have held that de facto LWOP
sentences violate the principles set forth in Miller. Id. at 12, n. 11, 12
(collecting cases). The court joined the majority of states and “decline[d]
to stand behind the simple formalism that a sufficiently lengthy term-of-
years sentence cannot be a sentence of LWOP because it does not bear
the name and terminates at a date certain.” Id. at *14. The court further
stated:
The straightforward applicability of Graham’s
reasoning to de facto LWOP sentences is clear
from the reasoning itself. Its observations about
juveniles’ immaturity, underdeveloped self-
control, and capacity for change are true
independent of any sentence. That those
characteristics undermined the punitive
justifications of LWOP is thus equally true of de
factor LWOP sentences.
Id. at *15 (internal citations omitted).

Following the reasoning in Null, Kelliher, and a number of other
state court decisions,11 this Court should hold that Mr. Booker’s
11Many other states have invalidated lengthy juvenile sentences as de facto LWOP
sentences under the Eighth Amendment’s Cruel and Unusual Punishments Clause.
See State v. Davilla, 302 Or. App. 742, 748–49 (2020) (50 year sentence required
modification); People v. Buffer, 137 N.E.3d 763, 774 (Ill. 2019) (50 year sentence);
30
mandatory, 51-year sentence violates the Tennessee Constitution’s Cruel
and Unusual Punishments Clause.
IV. Tennessee’s Juvenile Sentencing Scheme Violates the Tennessee

Constitution’s Unnecessary Rigor and Humane Treatment Clauses.
Our state’s constitution goes beyond the Eighth Amendment

prohibition on cruel and unusual punishments by also prohibiting
“unnecessary rigor” in the treatment of persons arrested and confined to
jail (Tenn. Const. Art. I, § 13) and guaranteeing prisoners “humane
treatment” (Tenn. Const. Art. I, § 32). These additional protections
demonstrate that Tennessee’s founding citizens were particularly
concerned by punishments that were excessive, inhumane, and
unnecessary.
The Tennessee Constitution’s unique prohibition against
unnecessary rigor shows that the state’s founders were specifically
concerned with excessive punishment. The framers who created the
federal bill of rights and state constitutions were heavily influenced by
enlightenment thinkers, particularly Baron de Montesquieu and Cesare
Beccaria. Bessler, A Century in the Making, at 999. Both Montesquieu
Davis v. State, 415 P.3d 666, 676 (Wyo. 2018) (45 years before eligible for parole);
Carter v. State, 192 A.3d 695, 702 (Md. Ct. App. 2018), reconsideration denied (Oct.
4, 2018) (100 year sentence with eligibility for parole in 50 years); Carr v. Wallace,
527 S.W.3d 55, 60–62 (Mo. 2017) (50 years until eligible for parole); Bear Cloud v.
State, 334 P.3d 132 (Wyo. 2014) (45 years until eligible for parole); New Jersey v.
Zuber, 152 A.3d 197, 216 (N.J. 2017) (55 year sentence); California v. Ramirez, 2017
WL 5824286 (Cal. Ct. App. Nov. 29, 2017) (40 year sentence); California v. Fernandez,
2015 WL 1283486 (Cal. Ct. Ap. Mar. 18, 2015) (50 year sentence); Washington v.
Ronquillo, 361 P.3d 779, 789 (Wash. Ct. App. 2015) (51.3 year sentence); Adams v.
Florida, 188 So.3d 849 (Fla. 2012) (50 year sentence).
31
and Beccaria wrote that any punishment not derived from “‘necessity’ (or
‘absolute necessity,’ as Beccaria put it) is ‘tyrannical.’” Id. Our
contemporary constitutional concept of proportionality stems from
Beccaria, who theorized a “scale of crimes and a corresponding scale of
punishments.” Id. at 1055. Under this ethos, necessity equates to
proportionality. Id. at 999, 1055. Article I, Section 13’s unique prohibition
on treating prisoners with unnecessary rigor points to the idea that
punishment must be necessary and strictly proportional to the crime.
Article I, Section 32’s guarantee of “humane” treatment of prisoners
adds another layer of protection against overly severe punishment. The
term “humane” requires attention to the psychological and physical
effects of punishment. A “humane” perspective requires that youthful
offenders be given meaningful opportunity for rehabilitation well before
reaching the end of one’s life. To treat children humanely when meting
out punishments requires consideration of the myriad psychological and
neuroscientific studies that show children are different, especially
children growing up in difficult life circumstances. In this context,
humane treatment means youthful offenders should not be punished for
their actions in the same manner as adults.
Tennessee’s life-sentence statute constitutes “unnecessary rigor”
and “inhumane treatment” of juvenile offenders because it is both
mandatory—the trial court has no ability to take into account the factors
required under Miller in juvenile sentencing—and requires a sentence
that will keep the juvenile in prison past an incarcerated person’s life
expectancy.
32
The decision of the North Carolina Court of Appeals in Kelliher
further supports application of the Tennessee Constitution’s
Unnecessary Rigor and Humane Treatment Clauses. In Kelliher,
although the court noted that its analysis applied to both state and
federal constitutional guarantees, the court referred to North Carolina’s
specific constitutional guarantee that all of its citizens should “enjoy the
fruits of their own labor.” Kelliher, 2020 WL 5901213, at *19-22 (citing
N.C. Const. Art. I, § I). The court relied on this provision to hold that a
juvenile sentence of fifty-years would violate both North Carolina’s
constitution and also Graham and Miller’s requirement that there be
“hope for some years of life outside prison walls.” Id. (citing Montgomery,
136 S. Ct. at 737).
Just as the North Carolina Constitution provided additional
support for finding that a 50-year sentence was a de facto life sentence
constituting cruel and unusual punishment, the Tennessee
Constitution’s prohibitions against “unnecessary rigor” in the treatment
of prisoners and the requirement that prisoners be treated “humane[ly]”
adds additional support for the conclusion that a mandatory, 51-year life
sentence for juveniles violates the Tennessee Constitution. Tenn. Const.
Art I, §§ 13, 32, 16.
CONCLUSION
For the foregoing reasons, amici curiae Amos Brown, Charles Lowe-
Kelley, the Tennessee Association of Criminal Defense Lawyers, and the
National Association of Criminal Defense Lawyers urge the Court to
reverse the judgment of the Court of Criminal Appeals and hold that Mr.
33
Booker’s mandatory, 51-year sentence violates both the Eighth
Amendment to the U.S. Constitution and Article I (Sections 13, 16, and
32) of the Tennessee Constitution.
Respectfully submitted,
/s/ Michael R. Working_________

Michael R. Working (#025118)
President, TENNESSEE
ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS
Nashville, TN 37219
615-329-1338

/s/ Lucille A. Jewel

865-974-8330
ljewel@utk.edu
/s/ Stephen Ross Johnson

Amicus Committee,
Board of Directors
NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS
(NACDL)
Past-President, TACDL
34
RITCHIE, DILLARD, DAVIES, &
JOHNSON, P.C.
Knoxville, TN 37902
865-637-0661
johnson@rddjlaw.com

/s/ Sarah B. Miller

Sarah B. Miller (#033441)
Nashville, TN 37201
Phone: 615-742-6200
desquivel@bassberry.com
Counsel for Charles Lowe-Kelley
/s/ Bradley A. MacLean

LAW OFFICE OF BRADLEY A.
MACLEAN
1702 Villa Place
Nashville, TN 37212
Phone: 615-943-8716
Brad.maclean9@gmail.com

Amos Brown
35
CERTIFICATE OF COMPLIANCE
In accordance with Tenn. Sup. Ct. R. 46, § 3.02, the total number of
words in this brief, exclusive of the Title/Cover page, Table of Contents,
Table of Authorities, and this Certificate of Compliance, is 5,808. This
word count is based on the word processing system used to prepare this
brief.
/s/ Sarah Miller

Sarah Miller
CERTIFICATE OF SERVICE
I certify that a true and exact copy of the foregoing was served electronically
this 30th day of November, 2020, on the following:
Nicholas Spangler Jonathan Harwell

Attorney General’s Office Assistant Public Defender
Criminal Justice Division 1101 Liberty Street
PO Box 20207 Knoxville, TN 37919
Nashville, TN 37202
Zachary T. Hinkle
Deputy Attorney General
Criminal Appeals Division
Office of Tennessee Attorney General
PO Box 20207
Nashville, TN 37202
/s/ Sarah Miller

Sarah Miller
37
APPENDIX A
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 NACDL, TACDL,

AMOS BROWN, AND CHARLES LOWE-KELLEY

Sarah Miller (#033441)
Document received by the TN Supreme Court.

Nashville, TN 37201
Phone: 615-742-6200
Email: desquivel@bassberry.com
Counsel for Charles E. Lowe-Kelley

Law Office of Bradley A. MacLean
1702 Villa Place
Nashville, TN 37212
1
Amos Brown

-and-

Amicus Committee of the
National Association of Criminal
Defense Lawyers
Ritchie, Dillard, Davies, & Johnson

Knoxville, TN 37902

Criminal Defense Attorneys
Jonathan D. Cooper (#016041)

President,
Tennessee Association of Criminal
Defense Lawyers
Nashville, TN 37219
(615) 329-1338

2
TABLE OF CONTENTS
Table of Authorities .................................................................................... 5
I. STATEMENT OF THE ISSUE ......................................................... 10
II. INTERESTS OF AMICI .................................................................... 10
III. REASONS TO GRANT THE APPEAL ......................................... 12
IV. STATEMENT OF THE CASE....................................................... 16
V. ARGUMENT ...................................................................................... 17
A. Juveniles are constitutionally different for sentencing purposes. ..

........................................................................................................ 17
B. Tennessee’s sentencing scheme for first-degree murder offers no

flexibility to account for the circumstances of youth as required by
Miller and its progeny. .......................................................................... 21
C. Imposition of a mandatory minimum fifty-one-year sentence on a

juvenile is unconstitutional because it deprives him of “a meaningful
rehabilitation.” ....................................................................................... 23
(1) A 51-year mandatory minimum life sentence is a de facto

LWOP sentence. ........................................................................... 23
(2) Release after 51 years offers virtually no opportunity to

meaningfully engage in free society. ........................................... 26
(3) Imposing a 51-year mandatory minimum forswears

altogether the rehabilitative ideal. .............................................. 29
3
D. Many other jurisdictions hold that similarly lengthy mandatory
minimum sentences for juveniles violate the Eighth Amendment
under Miller and Montgomery. ............................................................. 30
E. Evidencing our nation’s evolving standard of decency, a large

number of states have enacted new sentencing schemes in response to
Graham, Miller and Montgomery, leaving Tennessee as an outlier... 34
F. Tennessee’s Constitution, Art. I, §§ 13, 16 and 32, provides

greater protection than the federal constitution against the
unnecessary rigor and inhumanity of imposing a 51-year mandatory
minimum prison term on a juvenile. .................................................... 37
VI. CONCLUSION ............................................................................... 38
4
TABLE OF AUTHORITIES
Cases Page(s)
Adams v. Florida,
188 So.3d 849 (Fla. St. App. 2012) ...................................................... 33
Amos Brown v. State,

No. 4-CR-64 (McMinn Cnty. Cir. Ct.) ................................................. 11
Bear Cloud v. State,

334 P.3d 132 (Wyo. 2014) .................................................................... 33
Brown v. Jordan,
563 S.W.3d 196 (Tenn. 2018) ............................................................... 21
California v. Fernandez,
2015 WL 1283486 (Cal. Ct. Ap. Mar. 18, 2015) .................................. 32
California v. Ramirez,
2017 WL 5824286 (Cal. Ct. App. Nov. 29, 2017) ................................ 32
State ex rel. Carr v. Wallace,

527 S.W.3d 55 (Mo. 2017) .................................................................... 32

Carter v. State,
192 A.3d 695 (Md. 2018), reconsideration denied (Oct. 4,
2018) ......................................................................................... 32, 33, 36
Casiano v. Comm’r of Correction,

115 A.3d 1037 (Conn. 2015) ................................................................. 32
Davis v. State,
415 P.3d 666 (Wyo. 2018) .................................................................... 32
Graham v. Florida,
560 U.S. 48 (2010) ........................................................................ passim
Jacob Brown v. State,

2016 WL 1562981 (Tenn. Crim. App. Apr. 15, 2016), perm.
app. denied (Aug. 19, 2016), cert. denied, 137 S. Ct. 1331
(2017) .................................................................................................... 16
5
Lowe-Kelley v. Washburn,
No. 1:16-cv-00082 (M.D. Tenn.) ........................................................... 12
McKinley v. Butler,
809 F.3d 908, 914 (7th Cir. 2016) ........................................................ 30
Miller v. Alabama,
567 U.S. 460 (2012) ...................................................................... passim
Miller v. State,
584 S.W.2d 758 (Tenn. 1979), overruled by State v. Pruitt,
510 S.W. 3d 398 (Tenn. 2016) .............................................................. 37
Montgomery v. Louisiana,
136 S. Ct. 718 (2016) .................................................................... passim
Moore v. Biter,
725 F.3d 1184 (9th Cir. 2013) .............................................................. 30
People v. Buffer,
137 N.E.3d 763 (Ill. 2019) .............................................................. 25, 32
Roper v. Simmons,
543 U.S. 551 (2005) ...................................................................... passim

State v. Collins,
No. 2018 WL 1876333, at *20–21 (Tenn. Crim. App. Apr.
18, 2018), appeal denied (Aug. 8, 2018), cert. denied, 139
S. Ct. 649 (2018) (both opinions quo ................................................... 16
State v. Davilla,
462 P. 3d 748 (Or. Ct. App. 2020)........................................................ 32
State v. Ferguson,
2 S.W.3d 912 (Tenn. 1999) ................................................................... 37
State v. Henderson,
2018 WL 110972 (Tenn. Crim. App. Feb. 26, 2018) ........................... 16
State v. Moore,
76 N.E.3d 1127 (Ohio 2016) ................................................................. 26
6
State v. Null,
836 N.W.2d 41 (Iowa 2013)...................................................... 26, 30, 31
State v. Zachary Everett Davis,

No M2016-01579-CCA-R3-CD (Tenn. Crim. App. Dec. 11,
2017) ..................................................................................................... 15
State v. Zuber,
152 A.3d 197 (N.J. 2017)...................................................................... 32
United States v. Nelson,

491 F.3d 344 (7th Cir. 2007) ................................................................ 25
United States v. Taveras,

436 F. Supp.2d 493 (E.D.N.Y. 2006), vacated in part on
other grounds sub nom, United States v. Pepin, 514 F.3d
193 (2d Cir. 2008) ................................................................................. 25
Washington v. Ronquillo,
361 P.3d 779 (Wash. Ct. App. 2015).................................................... 32
White v. Premo,
443 P.3d 597 (Or. 2019), cert. dismissed sub nom. Kelly v.
White, 140 S. Ct. 993 (2020) ................................................................ 33

State Statutes
Ariz. Rev. Stat. Ann. §§ 13-751, 13-752 ................................................... 34
Ark. Code Ann. § 16-93-621(a)(2)(a) .................................................. 34, 36
Cal. Penal Code § 3051 ............................................................................. 34
Colo. Rev. Stat. Ann. § 18-1.3-401(4)(c)(I)(A) & (B) ................................ 34
Conn. Gen. Stat. Ann. § 54-125a(f)(1)...................................................... 34
D.C. Code Ann. § 24-403.03(a) ................................................................. 34
Del. Code Ann. Title 11, § 4204A(d)(2) .................................................... 34
Fla. Stat. Ann. § 921.1402(2)(b) ............................................................... 35
7
Haw. Rev. Stat. § 706-656(1).............................................................. 35, 36
Ky. Rev. Stat. Ann. § 640.040 .................................................................. 35
La. Code Crim. Proc. Ann. Article 878.1 ........................................... 35, 36
Mass. Gen. Laws Ann. Chapter 279, § 24 ............................................... 35
Mich. Comp. Laws Ann. §§ 769.25 ........................................................... 35
Mo. Ann. Stat. § 558.047(1) ...................................................................... 35
N.C. Gen. Stat. Ann. § 15A-1340.19A...................................................... 35
N.D. Cent. Code Ann. § 12.1-32-13.1 ....................................................... 35
N.J. Stat. Ann. § 2C:11-3.......................................................................... 35
Neb. Rev. Stat. Ann. § 28-105.02 ............................................................. 35
Nev. Rev. Stat. Ann. § 213.12135 ............................................................ 35
Or. Rev. Stat. Ann. § 163.115................................................................... 35
Tenn. Code Ann. § 39–13–204.................................................................. 21
Tex. Govt. Code Ann. § 508.145 ............................................................... 35

Utah Code Ann. § 76-3-206 ...................................................................... 35
W.Va. Code § 61-11-23(b) ......................................................................... 36
Wash. Rev. Code § 9.94A.730(1) .............................................................. 36
Wyo. Stat. Ann. § 6-10-301(c) ................................................................... 36
Rules
Tenn. R. App. P. 11 ............................................................................. 10, 14
Constitutional Provisions
Tenn. Const. art. I .............................................................................. 37, 38
8
U.S. Const. amend. VIII. .................................................................. passim
Other Authorities
Anthony C. Thompson, Navigating the Hidden Obstacles to

Ex-Offender Reentry, 45 Boston L. Rev. 255, 272-73
(2004) .................................................................................................... 27
Christopher J. Mumola, Bureau of Justice Statistics, No.

NCJ 216340, Medical Causes of Death in State Prisons,
2001-2004 (Jan. 2007) .......................................................................... 25
The Counsel of State Governments Justice Center, National

Inventory of the Collateral Consequences of Conviction ................... 27
Craig Haney, The Psychological Impact of Incarceration:
Implications for Post-Prison Adjustment (U.S. Dep’t of
Health & Human Servs., 2001). .......................................................... 28
Deborah LaBelle, Michigan Life Expectancy Data for Youth

Serving Natural Life Sentences 2 (2012-2015) ................................... 24
Evelyn J. Patterson, The Dose-Response of Time Served in
Prison on Mortality: New York State, 1989-2003 .............................. 25

False Hope: How Parole Systems Fail Youth Serving
Extreme Sentences, Appendix A at 160-61 (ACLU, Nov.
2016) ............................................................................................... 12, 22
U.S. Burden of Disease Collaborators, The State of US

Health, 1990-2016, J. Am. Med. Ass’n (JAMA)
2018:319(14):1444 ................................................................................ 24
United States Sentencing Commission, Life Sentences in the

Federal System (Feb. 2015) ................................................................. 25
9
Amici Curiae the National Association of Criminal Defense
Attorneys (“NACDL”), the Tennessee Association of Criminal Defense
Attorneys (“TACDL”), Amos Brown, and Charles Lowe-Kelley submit
this brief in support of Appellant Tyshon Booker’s application for
permission to appeal under Tenn. R. App. P. 11.
I. STATEMENT OF THE ISSUE
Amici urge the Court to address the following issue:
Whether a minimum 51-year term of prison confinement
mandatorily imposed on a juvenile, without consideration of the
juvenile’s youth, immaturity, or other mitigating circumstances,
violates the Cruel and Unusual Punishments Clauses and other
provisions of the federal and state constitutions, in that it deprives
the juvenile of a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.”
II. INTERESTS OF AMICI

The interests of Amici are more fully described in their Motion for
Leave to File Amici Curiae Brief, filed contemporaneously herewith.

Their interests can be briefly summarized as follows:
NACDL is the leading national bar association for criminal defense
attorneys. NACDL’s mission includes working for improvement in the
criminal justice system. To fulfill this mission, NACDL submits amicus
briefs on important criminal justice issues of national significance.
TACDL is the leading bar association for Tennessee criminal
defense attorneys whose mission includes working for improvement in
the criminal justice system. To fulfill this mission, TACDL submits
amicus briefs on important issues that affect the administration of
criminal justice in Tennessee.
10
Amos Brown is serving a life sentence for felony murder for a crime
that occurred when he was 16 years old and will not be eligible for release
until he is at least 69 years old. He is challenging the constitutionality
of his 51-year mandatory minimum life sentence in a post-conviction
proceeding that is pending in McMinn County. Amos Brown v. State, No.
4-CR-64 (McMinn Cnty. Cir. Ct.). In support of his petition, Mr. Brown
filed the Declaration of Dr. Julie A. Gallagher, a forensic psychologist
who summarized the current scientific research (as of May 2018) on
adolescent psychology and brain development that the Supreme Court
has deemed relevant in addressing issues concerning juvenile sentencing
under the Eighth Amendment. Dr. Gallagher’s Declaration is attached
hereto as Appendix A. Mr. Brown also filed the Declaration of Dr.
Michael Freeman, an epidemiologist who reviewed demographic data
from the Tennessee Department of Correction to ascertain that
Tennessee inmates confined in the Tennessee prison system have an

average life expectancy of 52 years old. Dr. Freeman’s Declaration is
attached hereto as Appendix B.
Charles Lowe-Kelley is currently serving two consecutive life
sentences for crimes that occurred when he was 16 years old. Under
current Tennessee law, he will be ineligible for release until he is well
over 100 years old, which means that he will certainly die in prison. The
sentencing judge expressly stated that Mr. Lowe-Kelley’s youth would
not be considered as a mitigating factor in his sentencing. Mr. Lowe-
Kelley is challenging the constitutionality of his sentence in a pending
federal habeas corpus proceeding in the Middle District of Tennessee.
Lowe-Kelley v. Washburn, No. 1:16-cv-00082 (M.D. Tenn.).
11
III. REASONS TO GRANT THE APPEAL
In Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), the United States Supreme Court,
declaring that juveniles are constitutionally different from adults,
invalidated mandatory life without parole (“LWOP”) sentences imposed
on juveniles convicted of murder. The Supreme Court held that, in light
of our contemporary understanding of adolescent psychology and brain
development, it is unconstitutional to mandatorily deprive a juvenile
offender of “a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Tennessee’s mandatory life
sentence for first-degree murder deprives juvenile defendants of such a
“meaningful opportunity” and is therefore unconstitutional.
Tennessee’s life sentence requires a minimum of 51 years in prison,
making it among the most extreme in the country.1 It is mandatorily
imposed on juveniles—the minimum sentence any juvenile convicted of

first-degree homicide can receive is life. This sentencing structure
entirely forecloses consideration of the characteristics of youth the
Supreme Court has dictated must be examined under the
Constitution. This sentence also exceeds the average life expectancy of
1See False Hope: How Parole Systems Fail Youth Serving Extreme
Sentences, Appendix A at 160-61 (ACLU, Nov. 2016) (listing Tennessee’s
mandatory life sentence as the most extreme among the states).
12
Tennessee juveniles serving life sentences.2 A 51 year sentence is in fact
more extreme for teens than adults, because the average teenager
sentenced to life will spend more time and a greater percentage of his life
in prison before he dies. This violates the constitutional principle that
juveniles are less culpable and more amendable to rehabilitation, and
therefore should be treated less harshly than adult offenders.3
Amici acknowledge that the Tennessee Court of Criminal Appeals
has previously rejected this claim, and on prior occasions this Court has
denied permission to appeal on this issue. But, Amici respectfully
contend that the Court of Criminal Appeals has erroneously applied a
narrow, formulaic rule that misconstrues the holdings in Miller and
Montgomery. Finding that Miller and Montgomery only apply when the
sentence is expressed as “life without parole,” the Court of Criminal
Appeals has concluded that because Tennessee’s life sentence
theoretically allows for some remote chance of release after 51 years,

Miller and Montgomery do not apply in Tennessee. This is wholly out of
step with jurisdictions across the country, which have held that even a
2According to the evidence submitted in Amos Brown’s case, average life

expectancy in prison is 52 years of age. See Freeman Declaration
attached at Appendix B, at 4. Moreover, research shows that juveniles
sentenced to life in prison have an even lower life expectancy. See id. at
5.
3 See Miller, 567 U.S. at 475 (“And this lengthiest possible incarceration
is an especially harsh punishment for a juvenile, because he will almost
inevitably serve more years and a greater percentage of his life in prison
than an adult offender.” (quoting Graham, 560 U.S. at 70)).
13
term-of-years sentence (as opposed to the life sentence at issue here)
operates as a de facto LWOP sentence, raising Miller constitutional
issues.4
The essential holding of Miller and Montgomery is that a
mandatory sentence violates the Constitution if it deprives a juvenile of
a “meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” The critical determination is: What
amounts to a “meaningful opportunity” in this context? The extremely
remote and highly unlikely possibility of a geriatric release after a half-
century of incarceration, if a person can survive that long in prison, is not
“meaningful.”
For at least four reasons, in order to secure settlement of questions
of public interest and of important questions of law, this issue is ripe for
review by this Court under Tenn. R. App. P. 11(a)(2) and (3).
First, this issue is of profound public interest because it concerns

our conception and treatment of juveniles, who have always received
protection under the law and who have been shown, by contemporary
science, to be less culpable and more capable of rehabilitation than
adults.
Second, this issue raises fundamental questions of federal and state
constitutional interpretation including how states provide the
“meaningful opportunity” guaranteed by the federal Constitution.
4 See cases cited in Section V.D., infra.
14
Third, because Tennessee’s 51 year mandatory minimum sentence
for juveniles convicted of murder is among the most extreme in the
nation,5 this Court should reconsider Tennessee’s outlier position.
Courts across the country have held that excessively long mandatory
sentences deprive juveniles of a “meaningful opportunity.” This case
offers the Court the opportunity to consider whether Tennessee should
align itself with these other jurisdictions.
And fourth, even members of the Tennessee Court of Criminal
Appeals have recently expressed concern about the severity of a 51-year
mandatory minimum sentence for a juvenile, pointing out that, in reality,
such a sentence deprives a juvenile of a “meaningful opportunity.” As
Judge Thomas explained:
[A]lthough Tennessee's sentencing scheme allows for possible
release of a defendant convicted of first degree murder after
the service of fifty-one years, it is only in the rare instance, if
ever, that a juvenile so sentenced would be released back into
society. Even if the judge or jury decides that the features of

the juvenile or the circumstances of the homicide require a
sentence other than life without parole, the effect of the
sentence is still the same. The juvenile has no meaningful
opportunity for release whether you name the sentence
imprisonment for life or imprisonment for life without the
possibility of parole, and the juvenile will likely die in prison.
“While the logical next step may be to extend protection to
these types of sentences, that is not the precedent which now
exists” in this State.
5 See section V.E., infra.
15
State v. Zachary Everett Davis, No M2016-01579-CCA-R3-CD (Tenn.
Crim. App. Dec. 11, 2017) (Thomas, J. and McMullen, J., concurring)
(quoting Floyd Lee Perry, Jr., v. State, No. W2013–00901–CCA–R3–PC,
2014 WL 1377579, at *4 (Tenn. Crim. App. Apr. 7, 2014), perm. app.
denied (Tenn. Sept. 18, 2014)) (emphasis added).6 See, also, Jacob Brown
v. State, No. W2015-00887-CCA-R3-PC, 2016 WL 1562981, at *7 (Tenn.
Crim. App. Apr. 15, 2016), perm. app. denied (Aug. 19, 2016), cert. denied,
137 S. Ct. 1331 (2017) (expressing “misgivings” about consecutive life
sentences for a juvenile).
Despite a pattern of doubt over whether a juvenile can ever have a
meaningful opportunity for release under Tennessee’s scheme, the Court
of Criminal Appeals has adhered to its narrow view. This Court should
now consider modern developments in brain science and adolescent
psychology confirming that children are less culpable and more amenable
to rehabilitation, as well as evolving community standards of

punishment, to determine whether Tennessee’s mandatory life sentence
is inconsistent with the holdings of Miller and Montgomery.
IV. STATEMENT OF THE CASE
Tyshon Booker’s case provides this Court with an ideal opportunity
to review the issue presented, because it is a textbook case of how
6See, also, State v. Henderson, No. W2016-00911-CCA-R3-CD, 2018 WL

1100972, at *6-7 (Tenn. Crim. App. Feb. 26, 2018); State v. Collins, No.
W201601819CCAR3CD, 2018 WL 1876333, at *20–21 (Tenn. Crim. App.
Apr. 18, 2018), appeal denied (Aug. 8, 2018), cert. denied, 139 S. Ct. 649
(2018) (both opinions quoting Judge Thomas’s concurring opinion at
length).
16
Tennessee’s mandatory sentencing scheme in Tennessee fails juveniles.
First, juveniles are less culpable than adults. Because of their young age,
juveniles have a developmentally limited ability to self-regulate and
resist outside peer influences. Second, for similar developmental
reasons, juveniles are more likely to rehabilitate than adults. The record
below includes expert testimony on the modern science of adolescent
psychology and brain development, mitigating circumstances concerning
Tyshon’s traumatic childhood, and reasons why Tyshon is amenable to
rehabilitation - the exact kinds of factors that the Supreme Court has
found relevant in considering the constitutionality of mandatory
sentencing for juveniles.
V. ARGUMENT
A. Juveniles are constitutionally different for sentencing purposes.
Beginning in 2005, the United States Supreme Court recognized

that the Constitution requires states to distinguish juveniles from adults

for sentencing purposes, “tak[ing] into account how children are
different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Miller, 567 U.S. at 480. Absent
a finding that a child is “irreparab[ly] corrupt[]” and incapable of
rehabilitation, a child cannot be denied “hope for some years of life
outside prison walls.” Montgomery, 136 S. Ct. at 736-37. Children must
be given “a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Miller, 567 U.S. at 479
(quoting Graham, 560 U.S. at 75.
17
The Supreme Court first ruled in Roper v. Simmons, 543 U.S. 551
(2005), that the Eighth Amendment prohibits the death penalty for
juveniles, based on advancing scientific understanding of developmental
psychology and neuroscience. The Roper Court recognized three general
differences between juveniles and adults, relevant to criminal
sentencing.
First, “[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. ... In recognition of
the comparative immaturity and irresponsibility of juveniles, almost
every State prohibits those under 18 years of age from voting, serving on
juries, or marrying without parental consent.” Id. at 569 (citations and
internal quotations omitted).
Second, “juveniles are more vulnerable or susceptible to negative

influences and outside pressures, including peer pressure….This is
explained in part by the prevailing circumstance that juveniles have less
control, or less experience with control, over their own
environment….‘[A]s legal minors, [juveniles] lack the freedom that
adults have to extricate themselves from a criminogenic setting.’” Id.
(internal citations omitted).
Third, “the character of a juvenile is not as well formed as that of
an adult. The personality traits of juveniles are more transitory, less
fixed.” Id. at 570. Accordingly, “[f]rom a moral standpoint it would be
misguided to equate the failings of a minor with those of an adult, for a
greater possibility exists that a minor's character deficiencies will be
18
reformed.” Id. Indeed, “[t]he relevance of youth as a mitigating factor
derives from the fact that the signature qualities of youth are transient;
as individuals mature, the impetuousness and recklessness that may
dominate in younger years can subside.” Id. (citation and internal
quotations omitted).
Then, in Graham v. Florida, 560 U.S. 48 (2010), the Court extended
Roper’s reasoning to invalidate mandatory LWOP sentences for juveniles
convicted of non-homicide offenses. After Graham, while a “[s]tate is not
required to guarantee eventual freedom to a offender,” it “must impose a
sentence that provides some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” Id. at 75 (emphasis
added). In Graham, the Court compared LWOP terms to “death
sentences,” because imprisoning an offender until he dies ‘alters the
offender’s life by a forfeiture that is irrevocable,” and such a sentence “is
an especially harsh punishment for a juvenile, because he will almost

inevitably serve more years and a greater percentage of his life in prison
than an adult offender.” Id. at 69-70. The Graham Court reiterated
Roper’s three “salient” characteristics that distinguish juveniles from
adults and also noted that juveniles have a reduced capacity to assist in
their own defense, which puts them “at a significant disadvantage in
criminal proceedings.” Id. at 68, 78.
In Miller, the Supreme Court invalidated mandatory LWOP
sentences for juvenile homicide offenders. The Court reiterated that
under the Eighth Amendment “children are constitutionally different
from adults for purposes of sentencing, and a system that fails to
recognize those differences, “[b]y removing youth from the balance––by
19
subjecting a juvenile to the same life-without-parole sentence applicable
to an adult…prohibit[s] a sentencing authority from assessing whether
the law's harshest term of imprisonment proportionately punishes a
juvenile offender.” Miller, 567 U.S. at 471, 474. The Court went on to
explain:
Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark
features—among them, immaturity, impetuosity, and failure
to appreciate risks and consequences. It prevents taking into
account the family and home environment that surrounds
him––and from which he cannot usually extricate himself––
no matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent of
his participation in the conduct and the way familial and peer
pressures may have affected him. Indeed, it ignores that he
might have been charged and convicted of a lesser offense if
not for incompetencies associated with youth––for example,
his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist his
own attorneys…. And finally, this mandatory punishment

disregards the possibility of rehabilitation even when the
circumstances most suggest it.
Id. at 477-78.
Finally, in Montgomery, the Supreme Court held that Miller had
announced a new “substantive rule” of constitutional law, meaning that
a conviction or sentence that violates the rule “is, by definition,
unlawful,” and that the rule must be retroactively applied in state
collateral proceedings. Montgomery v. Louisiana, 136 S. Ct. 718, 723
(2016), as revised (Jan. 27, 2016). In establishing this jurisprudence, the
Supreme Court explained that its decisions were based on common sense,
“what any parent knows,” but also on the science and social science
20
indicating that juveniles exhibit a “transient rashness, proclivity for risk,
and inability to assess consequences,” both of which lessen a child's
“moral culpability” and enhance the prospect that, as the years go by and
neurological development occurs, his/her “‘deficiencies will be reformed.’”
Miller, 567 U.S. at 472 (internal citations omitted). The science of
adolescent brain development and psychology continues to progress, as
was explained by the testimony of forensic psychologist Dr. Keith Cruise
in the instant case. Transcript of Evidence Vol. 38 at 19-45. See, also,
Declaration of forensic psychologist Dr. Gallagher, attached hereto as
Appendix A (noting that the amicus briefs filed in Miller by the American
Psychological Association and the American Medical Association “offer
good descriptions of the state of research as of that point in time.
Research in this area continues, and the most recent scientific findings
add further support to the Court’s holdings in Roper, Graham, Miller and
Montgomery.”).

B. Tennessee’s sentencing scheme for first-degree murder offers no
flexibility to account for the circumstances of youth as required by
Miller and its progeny.
Tennessee’s sentencing scheme for first-degree murder violates the
Constitution because it mandates a minimum sentence of life
imprisonment, even for juvenile offenders, and forecloses the sentencing
court from considering the characteristics of youth, which, according to
the Supreme Court, must be analyzed. For a first-degree homicide
conviction, the minimum sentence for any defendant, including a
juvenile, is life, with no possibility of release until after he has served 51
years in prison. Tenn. Code Ann. § 39–13–204; Brown v. Jordan, 563
21
S.W.3d 196, 202 (Tenn. 2018). This is among the most severe sentences
imposed in the country for homicide.7
Given juveniles’ distinctive capacity for change, such lengthy
mandatory sentences are incompatible with the penological goal of
rehabilitation. As the Supreme Court explained in Roper, “[f]or most
teens, [risky or antisocial] behaviors are fleeting; they cease with
maturity as individual identity becomes settled. Only a relatively small
proportion of adolescents who experiment in risky or illegal activities
developed entrenched patterns of problem behavior that persist into
adulthood.” 543 U.S. at 570.
In insisting that youth be treated differently than adults in
sentencing, the Supreme Court has cautioned against imposing
sentences that reflect a premature decision about a juvenile’s
incorrigibility. See Graham, 560 U.S. at 72. Instead, the Eighth
Amendment requires that any sentence imposed on a juvenile reflect the

youth’s ability to change. See id. at 73. Juveniles “must be given the
opportunity to show their crime did not reflect irreparable corruption”
before being stripped of “hope for some years of life outside prison walls.”
Montgomery, 136 S. Ct. at 736-37.
The conclusion that a child must be irretrievably depraved or
permanently incorrigible based on the crime alone, is untenable under
the reasoning of Roper, Graham, Miller, and Montgomery. A
constitutional sentence must provide some opportunity for the offender
7See False Hope: How Parole Systems Fail Youth Serving Extreme
Sentences, note 1, supra.
22
to show the potential for growth and rehabilitation with time and
maturity despite the severity of his youthful misconduct. Tennessee’s
first-degree murder sentencing scheme flies in the face of these
constitutional requirements, allowing for no consideration of youth at all.
C. Imposition of a mandatory minimum fifty-one-year sentence on a

juvenile is unconstitutional because it deprives him of “a meaningful
rehabilitation.”
The central holding of Graham, Miller, and Montgomery is that, for

the reasons outlined above, the state may not deny a juvenile offender a
“meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” The prospect of release after 51 years of
continuous prison confinement is not meaningful to any juvenile, so
Tennessee’s mandatory minimum life sentence violates the
constitutional prohibition against cruel and unusual punishment.

(1) A 51-year mandatory minimum life sentence is a de facto
LWOP sentence.
Tyshon will not be eligible for release until he is at least 67 years

old. This is well past average life expectancy in prison, and there is little
chance that he will live that long. Effectively, he has been condemned to
die in prison.
23
The average life expectancy for a Tennessee resident at birth is 76
years,8 and the “healthy life expectancy at birth”9 is 65 years. But the
average juvenile who is serving a life sentence in Tennessee will not live
nearly that long. See Dr. Michael Freeman’s Declaration attached hereto
as Appendix B. Dr. Freeman, an epidemiologist, analyzed prison
demographic statistics furnished by TDOC and concluded that
individuals serving life sentences in Tennessee have a probable life
expectancy of 52 years old. An incarcerated juvenile is likely to have an
even shorter life because of the adverse effects of lengthy imprisonment
beginning at such a young age. The chance that a juvenile serving a life
sentence in Tennessee could survive 51 years of continuous incarceration
is less than 10%.
Dr. Freeman’s conclusions are consistent with published studies
and other authorities. For example, a study conducted by Campaign for
the Fair Sentencing of Youth found that Michigan juveniles with life

sentences have average life expectancy of 50.6 years, much lower than
the general population.10 One reason for this life expectancy disparity
8See U.S. Burden of Disease Collaborators, The State of US Health,

1990-2016, J. Am. Med. Ass’n (JAMA) 2018:319(14):1444, Table 3 at
1452.
9“Healthy life expectancy” is defined as “the number years that a person
at a given age can expect to live in good health, taking into account
mortality and disability.” Id. at 1446.
10Deborah LaBelle, Michigan Life Expectancy Data for Youth Serving
Natural Life Sentences 2 (2012-2015), available at
http://www.lb7.uscourts.gov/documents/1712441.pdf.
24
may be that a large number of incarcerated defendants come from
impoverished and traumatic backgrounds that diminish longevity––
circumstances that are common among juvenile defendants. But the
harsh conditions of prison life also contribute to this discrepancy. One
study of inmate life expectancy in New York, for example, found that a
“person suffers a 2 year decline of life expectancy for every year served in
prison.”11
Additionally, the United States Sentencing Commission has
defined a life sentence as 470 months (or just over 39 years).12 “This
figure [of 470 months] reflects the average life expectancy of federal
defendants at the time of sentencing as determined by the United States
Census Bureau.” United States v. Nelson, 491 F.3d 344, 349-50 (7th Cir.
2007). Courts too have acknowledged the reduced life expectancy of the
incarcerated. See, e.g., United States v. Taveras, 436 F. Supp.2d 493,
500 (E.D.N.Y. 2006) (acknowledging that life expectancy within federal

prison is “considerably shortened”), vacated in part on other grounds sub
nom, United States v. Pepin, 514 F.3d 193 (2d Cir. 2008); People v.
Buffer, 137 N.E.3d 763, 778 (Ill. 2019) (Burke, J., specially concurring)
11Evelyn J. Patterson, The Dose-Response of Time Served in Prison on

Mortality: New York State, 1989-2003, 103 Am. J. Pub. Health 523-28
(2013). See also Christopher J. Mumola, Bureau of Justice Statistics, No.
NCJ 216340, Medical Causes of Death in State Prisons, 2001-2004 (Jan.
2007) (concluding that state prisoners age 55 to 64 had death rates 56%
higher than the general population).
12United States Sentencing Commission, Life Sentences in the Federal
System, at 10 & n. 52 (Feb. 2015).
25
(noting that “the life expectancy of a minor sentenced to a lengthy prison
term is … diminished”); State v. Null, 836 N.W.2d 41, 71 (Iowa 2013)
(acknowledging that “long-term incarceration [may present] health and
safety risks that tend to decrease life expectancy as compared to the
general population”).
Indeed, after an intensive review of the available data, undersigned
counsel are not aware of any Tennessee prisoner who has survived 51
years of continuous incarceration. Given the average life expectancy of
Tennessee prisoners, a life sentence with a 51 year mandatory minimum
is the functional equivalent of life without parole, meaning that juveniles
sentenced to life in Tennessee are effectively and almost certainly
condemned to die in prison.
(2) Release after 51 years offers virtually no opportunity to

meaningfully engage in free society.
The Miller and Graham “meaningful opportunity” standard invokes

not only an opportunity for release, but also an opportunity for a
meaningful life outside of prison. The Supreme Court intended
more than to simply allow juveniles-turned-
nonagenarians the opportunity to breath their last
breaths as free people. The intent was not to
eventually allow juvenile offenders the
opportunity to leave prison in order to die but to
live part of their lives in society.
State v. Moore, 76 N.E.3d 1127, 1137 (Ohio 2016). Assuming that a

juvenile defendant could defeat the staggering odds and survive 51 years
of continuous incarceration in Tennessee’s prison system, and assuming
that he then could obtain a release from prison in his late 60’s, he
26
nevertheless would be deprived of any opportunity to meaningfully
engage in free society for several reasons.
First, if he survives that long, his remaining life expectancy would
be quite short. He would have little time to adjust to the outside world
in order to pursue any kind of meaningful life.
Second, in all likelihood he would be suffering from the burdens of
old age and ill health, severely limiting his physical capacity to “get on
with his life.”
Third, anyone reentering society after a long incarceration finds
himself in a strange new world and faces enormous practical and legal
obstacles, and those obstacles are greater for an elderly person. It takes
time for a newly freed individual to negotiate these obstacles. In addition
to dealing with a myriad of “collateral consequences” of a conviction,
those reentering society from prison face challenges related to many of
the basic necessities of life, such as finding employment and housing and

obtaining access to healthcare and other public benefits.13 These
obstacles to meaningful reentry are compounded in the case of an elderly
person released from prison after spending 51 years, his entire adult life,
in confinement.
13See, e.g., Anthony C. Thompson, Navigating the Hidden Obstacles to

Ex-Offender Reentry, 45 Boston L. Rev. 255, 272-73 (2004). For an
inventory of legally imposed collateral consequences of conviction, see
The Counsel of State Governments Justice Center, National Inventory of
the Collateral Consequences of Conviction, available at
https://niccc.csgjusticecenter.org.
27
Fourth, spending one’s entire adult life subject to the
institutionalizing effects of the highly structured and authoritarian
prison environment makes it psychologically difficult to adjust to the
pressures and demands of living free in society, especially at such an old
age. See Craig Haney, The Psychological Impact of Incarceration:
Implications for Post-Prison Adjustment, available at
https://aspe.hhs.gov/basic-report/psychological-impact-incarceration-
implications-post-prison-adjustment (U.S. Dep’t of Health & Human
Servs., 2001). Professor Haney explains how inmates psychologically
adapt to the harsh conditions of prison life, in ways that enable them to
survive in prison but impair their capacity to adjust to the free world
upon release. It stands to reason that the adverse psychological impact
of incarceration is more pronounced (i) when the incarceration begins at
a young age, especially if it begins while the prisoner is a juvenile, and
(ii) when the incarceration is for a longer period of time. Id. at 5.

Finally, it is well known that “persons who return to the free world
lacking a network of close, personal contacts with people who know them
well” have an especially difficult time adjusting. As Professor Haney
points out, “Eventually…when severely institutionalized persons
confront complicated problems or conflicts, especially in the form of
unexpected events that cannot be planned for in advance, the myriad of
challenges that the non-institutionalized confront in their everyday lives
outside the institution may become overwhelming.” Id. at 8-9. A person
who has been continuously incarcerated for 51 years is not likely to have
any remaining connections to family or community upon release. After
28
spending half a century in prison, he will be “lost” in a foreign, complex,
and stressful environment without a stable social network for support.
By withholding release eligibility until the twilight of a juvenile
offender’s life, requiring him to spend his entire adult life undergoing the
institutionalizing and stigmatizing effects of incarceration, a 51-year
mandatory minimum sentence “gives no chance for fulfillment outside
prison walls, no chance for reconciliation with society, no hope.” Graham,
560 U.S. at 79.
(3) Imposing a 51-year mandatory minimum forswears

altogether the rehabilitative ideal.
A fundamental scientific principle underlying the constitutional

premise that “juveniles are different” is that––because a juvenile’s
mental traits and vulnerabilities are merely “transitory”––juveniles have
great potential to rehabilitate as their minds and bodies mature. Miller,
567 U.S. at 473. Fifty-one years of detention, however, extends far

beyond the period within which a juvenile will mature and rehabilitate.
Forcing a juvenile offender to wait beyond his life expectancy, until he is
a geriatric with virtually no prospect for a meaningful and productive life
in the free world, defeats the entire purpose of the requirement that
juvenile offenders be given “a meaningful opportunity for release based
upon demonstrated maturity and rehabilitation.” Such a sentence
“means a denial of hope” and “share[s]. . . characteristics with death
sentences” because it denies any chance for a maturing youthful offender
to work toward a brighter future; despite “good behavior and character
improvment,” he will remain in prison for the rest of his days.” Graham,
29
516 U.S. at 69-70 (citation and internal quotations omitted). In a word,
this kind of sentence “forswears altogether the rehabilitative ideal.”
Miller, 567 U.S. at 473 (citing Graham, 560 U.S. at 74).
D. Many other jurisdictions hold that similarly lengthy mandatory

minimum sentences for juveniles violate the Eighth Amendment
under Miller and Montgomery.
A majority of state courts have employed the principles embodied

in Roper, Miller, Graham, and Montgomery to invalidate minimum
mandatory life sentences, constituting a lengthy minimum term of years,
because they deprive juvenile offenders of a “meaningful opportunity” for
release.14 In 2013, Iowa became one of the first jurisdictions to hold that
a juvenile sentenced to a de facto LWOP sentence is constitutionally
entitled to Miller-type protections affording a “meaningful opportunity
for release based on demonstrated maturity and rehabilitation.” Null,
836 N.W.2d at 63 (quoting Graham, 560 U.S. at 75). The defendant in

Null received a mandatory minimum aggregate sentence of 52.5 years for
second-degree murder and first-degree robbery for an offense that
occurred when he was sixteen years old. Id. at 45. Under the Iowa
14 In addition, several federal courts have applied these principles to

mandatory sentences expressed as a term of years. The Seventh Circuit
has opined that courts should apply a “children are different” approach
to sentencing to both traditionally defined life sentences as well as de
facto life sentences. McKinley v. Butler, 809 F.3d 908, 914 (7th Cir. 2016)
(Posner, J.). The Ninth Circuit has adopted similar reasoning, holding
that a lengthy term of years sentence violates Miller and Graham’s
requirement that juveniles be given a meaningful opportunity to re-enter
society. Moore v. Biter, 725 F.3d 1184, 1191–92 (9th Cir. 2013).
30
sentencing scheme, he would not be eligible for parole until was sixty-
nine. Id. The court, in a thorough and well-reasoned discussion, applied
Graham and Miller to hold that this kind of punishment for a juvenile
offender violates the Eighth Amendment and the Iowa constitution. Id.
at 60-77.
The Null court based its decision in great part on the scientific
evidence discussed in Roper, reasoning that juveniles have not fully
developed cognitive structures for risk evaluation, self-management, and
impulse control. Id. at 55. The court noted that juveniles are also much
more prone to peer influence, and their development runs part and parcel
with experimentation with “risky, illegal, or dangerous activities.” Id.
And while the adolescent brain can tend toward criminal behavior, it is
also highly transformable. As the young person develops into an adult,
science confirms that the impulse control and risk assessment issues fade
away. See id. There are no strong penological justifications for lengthy

juvenile sentences, because juveniles have the ability, and indeed
proclivity, for change in a positive direction.
The Null court, and many others, have construed Graham and
Miller to require a juvenile sentence to provide more time outside of
prison than a few years of freedom at the end of one’s life. The Null court
declared that “[t]he prospect of geriatric release, if one is to be afforded
the opportunity for release at all, does not provide a ‘meaningful
opportunity’ to demonstrate the ‘maturity and rehabilitation’ required to
obtain release and reenter society as required by Graham.” Id. at 71.
Similarly, the Connecticut Supreme Court held that under Miller, a
mandatory minimum 50-year sentence for a juvenile offender was
31
unconstitutional, because it did not allow for a “meaningful opportunity”
for release, which requires a chance to engage with civic society, to be
employed, and to have a family. Casiano v. Comm’r of Correction, 115
A.3d 1037, 1046-47 (Conn. 2015). Analysis of what constitutes a
“meaningful opportunity” must also take into consideration that a
juvenile offender, released from prison at the end of his/her life will also
have a diminished quality of life, having an increased risk for age-related
health disorders, such as heart disease, hypertension, stroke, asthma,
cancer, and arthritis. Id. According to the Supreme Courts of Iowa and
Connecticut, such a degraded experience is not meaningful, under the
mandates of Graham and Miller.
A groundswell of recent decisions confirms the principle that
mandatory long-term sentences for juveniles convicted of homicide do not
pass constitutional muster. See State v. Davilla, 462 P. 3d 748, 752 (Or.
Ct. App. 2020) (50 year sentence required modification er); Buffer, 137

N.E.3d at 774 (50 year sentence); Davis v. State, 415 P.3d 666, 676 (Wyo.
2018) (homicide sentence of approximately 45 years before parole
eligibility); Carter v. State, 192 A.3d 695, 702 (Md. 2018), reconsideration
denied (Oct. 4, 2018) (100 year sentence with eligibility for parole in 50
years); State ex rel. Carr v. Wallace, 527 S.W.3d 55, 60–62 (Mo. 2017) (50
years until eligibility for parole); State v. Zuber, 152 A.3d 197, 216 (N.J.
2017) (55 year sentence); California v. Ramirez, 2017 WL 5824286 (Cal.
Ct. App. Nov. 29, 2017) (40 year sentence); California v. Fernandez, 2015
WL 1283486 (Cal. Ct. Ap. Mar. 18, 2015) (50 year sentence); Washington
v. Ronquillo, 361 P.3d 779, 789 (Wash. Ct. App. 2015) (51.3 year
sentence); Bear Cloud v. State, 334 P.3d 132 (Wyo. 2014) (homicide
32
sentence of 45 years prior to parole); Adams v. Florida, 188 So.3d 849
(Fla. St. App. 2012) (50 year sentence).
These cases reveal a pattern. For juveniles, mandatory sentences
with no eligibility for parole until after 50 years offend the teachings of
both Graham and Miller. Recently, the Maryland Supreme Court noted
that “[m]any courts have concluded that a sentence of a term of years
that precludes parole consideration for a half century or more is
equivalent to a sentence of life without parole.” Carter, 92 A.3d at 729;
see also, White v. Premo, 443 P.3d 597, 605 (Or. 2019), cert. dismissed
sub nom. Kelly v. White, 140 S. Ct. 993 (2020) (“We know of no state high
court that has held that a sentence in excess of 50 years for a single
homicide provides a juvenile with a meaningful opportunity for release.”).
The Maryland Supreme Court noted that the fifty-year benchmark likely
originated from Graham’s description, as constitutionally problematic, of
a defendant not being eligible for release “even if he spends the next half

century attempting to atone for his crimes and learn from his mistakes.”
Carter, 192 A.3d at 728-29 (quoting Graham, 560 U.S. at 79 (emphasis
added)). The “meaningful opportunity” standard “means a sentence with
parole eligibility significantly short of the 50-year mark.” Id. at 735. The
undeniable trend in the case law confirms that a term-of-years sentence
longer than 50 years does not comply with the strictures of Graham and
Miller. Based on the reasoning of these decisions, Tennessee’s
mandatory scheme does not give vulnerable and cognitively
underdeveloped juvenile offenders any hope for a rehabilitated and
productive life in civic society beyond the prison walls.
33
E. Evidencing our nation’s evolving standard of decency, a large
number of states have enacted new sentencing schemes in response
to Graham, Miller and Montgomery, leaving Tennessee as an outlier.
In addition to the many state court decisions voiding lengthy prison

terms for children, in the wake of Graham and Miller, twenty-five states
have adopted legislation limiting juvenile homicide sentences and
providing within the regulatory scheme a meaningful opportunity for the
inmate to demonstrate rehabilitation and maturity. Some states have
capped sentences for juvenile homicide while other approaches redefine
parole eligibility for juveniles previously sentenced to LWOP. See Ariz.
Rev. Stat. Ann. §§ 13-751, 13-752 (juvenile sentences for homicide limited
to 25 to 35 years); Ark. Code Ann. § 16-93-621(a)(2)(a) (juvenile homicide
offenders eligible for parole after 25 years); Cal. Penal Code § 3051
(juveniles sentenced to LWOP entitled to a parole hearing no later than
twenty-five years of incarceration); Colo. Rev. Stat. Ann. § 18-1.3-
401(4)(c)(I)(A) & (B) (juvenile offenders sentenced to LWOP for first

degree murder entitled to a re-sentencing hearing and a sentence
between 30 to 50 years); Conn. Gen. Stat. Ann. § 54-125a(f)(1) (juvenile
offenders sentenced to over 50 years eligible for parole after 30 years, and
juvenile offenders sentenced to between 10 and 50 years eligible for
parole after the greater of 12 years or 60% of the sentence); Del. Code
Ann. tit. 11, § 4204A(d)(2) (juvenile offenders convicted of first-degree
murder eligible for resentencing after 30 years); D.C. Code Ann. § 24-
403.03(a) (juvenile offenders eligible for sentence reduction after 20
years]); Fla. Stat. Ann. § 921.1402(2)(b) (juvenile offenders sentenced to
over 25 years entitled to review of sentence after 25 years); Haw. Rev.
34
Stat. § 706-656(1) (all juvenile offenders entitled to life with the
possibility of parole on a date to be established through a rehabilitation
plan); Ky. Rev. Stat. Ann. § 640.040 (statute pre-dating Graham and
Miller provides that youthful offenders convicted of a capital crime are
eligible for parole after 25 years); La. Code Crim. Proc. Ann. Art 878.1
(generally, juveniles convicted of homicide eligible for parole after serving
25 years unless a special hearing is conducted determining that LWOP
is appropriate); Mass. Gen. Laws Ann. ch. 279, § 24 (juveniles convicted
of first-degree murder are eligible for parole in 20 or 30 years, as
determined by the court); Mich. Comp. Laws Ann. §§ 769.25 (juvenile
homicide offenders limited to a sentence of 25 to 40 years); Mo. Ann. Stat.
§ 558.047(1) (juvenile offenders sentenced to LWOP eligible for review of
sentence after 25 years); Neb. Rev. Stat. Ann. § 28-105.02 (juvenile
LWOP sentences become eligible for parole after 40 years); Nev. Rev.
Stat. Ann. § 213.12135) (juvenile offenders for a homicide of [only one

victim] eligible for parole after 20 years); N.C. Gen. Stat. Ann. §15A-
1340.19A (juvenile LWOP sentences allow parole eligibility after 25
years); N.J. Stat. Ann. §2C:11-3 (juveniles convicted of first degree
murder eligible for parole within 30 years); N.D. Cent. Code Ann. § 12.1-
32-13.1 (juvenile offenders eligible for sentence reduction after 20 years);
Or. Rev. Stat. Ann. §163.115 (juveniles sentenced to a life sentence for
homicide eligible for parole in twenty-five years); Tex. Govt. Code Ann. §
508.145 (all juvenile offenders serving a life sentence are eligible for
parole in 40 years); Utah Code Ann. § 76-3-206 (juvenile homicide
sentence limited to 25 years); W.Va. Code § 61-11-23(b) (juvenile
offenders eligible for parole after 15 years); Wyo. Stat. Ann. § 6-10-301(c)
35
(juvenile offenders sentenced to life eligible for parole after 25 years);
Wash. Rev. Code § 9.94A.730(1) (juvenile offenders eligible for release
after 20 years, except for those serving sentences for aggravated first
degree murder or certain sex offenses).
The legislative history rests on the consensus that children are
different and that a lengthy sentence should not be imposed on a child in
the same way as upon adults. See, e.g., Ark. Code Revision Comm’n,
Notes on Ark. Code Ann. § 16-93-621(a)(2)(a) (“The General Assembly
acknowledges and recognizes that minors are constitutionally different
from adults and that these differences must be taken into account when
minors are sentenced for adult crimes.”); Statutory Notes for Haw. Rev.
Stat. § 706-656(1) (“The legislature acknowledges and recognizes that
children are constitutionally different from adults and that these
differences must be taken into account when children are sentenced for
adult crimes.”). See also, Conf. Comm. Rpt. La. Code Crim. Proc. Ann.

Art 878.1 (June 6, 2017) (noting that a change in Louisiana’s sentencing
law was necessary in response to Miller, Graham, and Montgomery).
These recent sentencing reforms confirm a changed community
standard recognizing that juvenile sentences of more than 50 years
without parole eligibility are not consistent with the Eighth Amendment.
See Carter, 192 A.3d at 729 n.43 (noting an emerging legislative
consensus that a fifty plus year sentence for juveniles offends the
constitution in relation to Graham and/or Miller). Tennessee’s mandatory
sentencing scheme, which treats juvenile defendants exactly the same as
adults and forecloses parole until after 51 years, is plainly an outlier
among the states. Tennessee’s mandatory sentencing approach is out-of-
36
step with prevailing community standards for what is appropriate
punishment for juvenile offenders, who do not carry the same attributes
of culpability as adult offenders.
F. Tennessee’s Constitution, Art. I, §§ 13, 16 and 32, provides greater

protection than the federal constitution against the unnecessary
rigor and inhumanity of imposing a 51-year mandatory minimum
prison term on a juvenile.
The Tennessee Constitution creates additional protections against

excessive punishment and, viewed independently from the federal
Constitution, should also be construed to invalidate a mandatory
minimum 51-year sentence for a juvenile.
This Court has long recognized that, “as the final arbiter of the
Tennessee Constitution, [it] is always free to expand the minimum level
of protection mandated by the federal constitution.” State v. Ferguson, 2
S.W.3d 912, 916 (Tenn. 1999) (citation and internal quotations omitted).
See also, Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979), overruled by

State v. Pruitt, 510 S.W. 3d 398, 416 (Tenn. 2016) (“[A]s to Tennessee’s
Constitution, we sit as a court of last resort, subject solely to the
qualification that we may not impinge upon the minimum level of
protection established by the Supreme Court interpretation of the federal
constitutional guarantees. But state supreme courts, interpreting state
constitutional provisions, may impose higher standards and stronger
protections than those set by the federal constitution.”) (emphasis
added).
Following these principles, Art. I, § 16, Tennessee’s Cruel and
Unusual Punishments Clause, should be independently construed to
37
protect juveniles against mandatory minimum 51-year sentences. The
Tennessee Constitution’s special concern about excessive punishment is
further set forth in Art. I, § 13, which provides “[t]hat no person arrested
and confined in jail shall be treated with unnecessary rigor”; and in Art.
I, 32, which provides “[t]hat the erection of safe prisons, the inspection of
prisons, and the humane treatment of prisoners, shall be provided for.”
Given these additional provisions against excessive punishments, strong
grounds exist for independently applying the Tennessee Constitution to
protect against the kind of mandatory life sentence that was imposed on
Appellant Tyshon Booker.
VI. CONCLUSION
For the foregoing reasons, amici curiae Amos Brown, Charles Lowe-
Kelley, the Tennessee Association of Criminal Defense Lawyers, and the
National Association of Criminal Defense Lawyers urge the Court to
grant Tyshon’s application for permission to appeal.

Respectfully submitted,
s/ Sarah B. Miller
Sarah B. Miller (#033441)
Nashville, TN 37201
Phone: 615-742-6200
Email: desquivel@bassberry.com
38
Counsel for Charles E. Lowe-Kelley
s/ Bradley A. MacLean
Law Office of Bradley A. MacLean
1702 Villa Place
Nashville, TN 37212

Amos Brown
s/ Lucille A. Jewel
-and-


Amicus Committee of the
National Association of Criminal
Defense Lawyers
Ritchie, Dillard, Davies, & Johnson

Knoxville, TN 37902

39
s/ Jonathan D. Cooper
Jonathan D. Cooper
President
Tennessee Association of Criminal
Defense Lawyers
Nashville, TN 37219
(615) 329-1338

CERTIFICATE OF ELECTRONIC FILING COMPLIANCE
Under Tennessee Supreme Court Rule 46, § 3.02, I hereby certify

that this brief contains 7,496 words as calculated by Microsoft Word,
and it was prepared using 14-point Century font with 1.5x line spacing.

s/ Sarah B. Miller
Sarah B. Miller
40
CERTIFICATE OF SERVICE
I certify that a true and exact copy of the foregoing motion was
served electronically or mailed via U.S. first class mail, postage prepaid,
this 9th day of June, 2020, to:
Nicholas Spangler Jonathan Harwell

Attorney General’s Office Assistant Public Defender
Criminal Justice Division 1101 Liberty Street
PO Box 20207 Knoxville, TN 37919
Nashville, TN 37202
s/ Sarah B. Miller
41
A
APPENDIX

B
APPENDIX


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IN THE SUPREME COURT OF TENNESSEE

BRIEF OF AMICI CURIAE

Michael R. Working (#025118)

Counsel for Tennessee Association of

Stephen Ross Johnson (#022140)

Counsel for National Association of

David R. Esquivel (#021459)

Bradley A. MacLean (#009562)

Counsel for Charles Lowe-Kelley and

TABLE OF AUTHORITIES ....................................................................... 6

INTERESTS OF AMICI ........................................................................... 12

I. THE COURT SHOULD INTERPRET AND APPLY THE TENNESSEE

II. TENNESSEE’S JUVENILE SENTENCING SCHEME VIOLATES

A. Imposing a mandatory, 51-year sentence on a juvenile

1. Tennessee’s standard for juvenile punishment has

2. Legislatures and state courts across the nation have

B. Mandatory sentences of fifty-plus years for juvenile

C. Tennessee’s mandatory life sentence does not align with

IV. TENNESSEE’S JUVENILE SENTENCING SCHEME VIOLATES THE

CERTIFICATE OF COMPLIANCE ........................................................ 36

Amos Brown v. State,

Bear Cloud v. State,

Diatchenko v. Dist. Atty. For Suffolk,

Van Tran v. State,

13 R.I. Gen. Laws Ann. § 13-8-13 ............................................................ 23

2018 Juvenile Justice Reform Act ............................................... 18, 19, 20

Ala. Code § 13A-5-43(e) ............................................................................ 23

Alaska Code Ann. § 12.55.125(a) ....................................................... 22, 23

Ark. Code Ann. § 5-4-104(b) ..................................................................... 22

Ark. Code Ann. § 5-10-101(c)(1) ............................................................... 23

Cal. Penal Code § 3051(b)(4) .................................................................... 23

Conn. Gen. Stat. § 54-125a(f)(1)......................................................... 22, 23

D.C. Code § 22-2104(a) ....................................................................... 22, 23

Del. Code Ann. tit. 11, § 4209A ................................................................ 23

Ga. Code Ann. § 42-9-39(b) ...................................................................... 23

Haw. Rev. Stat. § 706-656(1).................................................................... 22

Idaho Code Ann. § 18-4004 ...................................................................... 23

Ill. Comp. Stat. Ann. 5/3-3-3 (a)(1)........................................................... 23

Kan. Stat. Ann. § 21-6618 ........................................................................ 22

Kan. Stat. Ann. § 21-6623 ........................................................................ 23

Ky. Rev. Stat. § 532.030(1)(d) .................................................................. 23

Ky. Rev. Stat. § 640.040 (1) ...................................................................... 22

Mass. Gen. Laws Ann. Ch. 119, § 72B ..................................................... 22

Mass. Gen. Laws Ann. ch. 279, § 24 ........................................................ 23

Md. Code Ann. Corr. Servs. § 7-301(d)(2) ................................................ 23

Mo. Ann. Stat. § 558.047(2) ...................................................................... 23

Mont. Code Ann. § 46-23-201 ................................................................... 23

N.C. Gen. Stat. Ann. § 15A-1340.19A...................................................... 23

N.D. Cent. Code § 12.1-31-13.1 ................................................................ 22

N.D. Cent. Code § 12.1-32-01(1)............................................................... 23

N.J. Stat. Ann. § 30:4-123.51(b) ............................................................... 23

N.M. Stat. Ann. § 31-21-10....................................................................... 23

N.Y. Penal Law § 70.00(3)(a)(i) ................................................................ 23

Nev. Rev. Stat. § 176.025 ......................................................................... 22

Nev. Rev. Stat. § 213.12135(1)(b)............................................................. 23

Or. Rev. Stat. § 137.707............................................................................ 22

Or. Rev. Stat. § 137.707(4)(B) .................................................................. 23

S.C. Code Ann. § 16-3-20(a) ..................................................................... 23

S.D. Codified Laws § 22-6-1 ..................................................................... 22

Tenn. Code Ann. § 37-1-101(a)(7) ............................................................ 19

Tenn. Code Ann. § 37-1-132(d) ................................................................. 20

Tenn. Code Ann. § 37-1-134(l).................................................................. 20

Utah Code Ann. § 76-3-209 ................................................................ 22, 23

Vt. Stat. Ann. tit. 13, § 7045 .................................................................... 22