Juveniles and Life In Prison Under the Felony Murder Rule

Arkansas’s Imposition of Life Without Parole for Juveniles who Commit Felony-Murder: Are We Giving up on Our Kids?

By Sarah Cowan

Just about anyone who sat through ninth grade Civics class can tell you that the Eighth Amendment to the Constitution of the United States prohibits cruel and unusual punishment.  But what exactly is cruel and unusual in contemporary American society?  Public executions have been outlawed since 1936. No one has been executed by hanging or firing squad since 1996 (with the exception of Ronnie Lee Gardner, who was famously executed in 2010–despite a 2004 mandate by the Utah legislature to halt firing squad executions–because of his choice to be “grandfathered” under the old system[1]), and, with a few exceptions, the comparatively humane method of lethal injection is widely used in the thirty-four states in which the death penalty has not been abolished.[2]

We know the ban on cruel and unusual punishment proscribes execution as punishment for certain types of people: minors[3], insane persons[4], and mentally retarded adults[5].  Second to the death penalty, life in prison without the possibility of parole is the harshest penalty the American judicial system imposes on offenders.  In consideration of its jurisprudence with regard to minors and the death penalty, the Supreme Court went a step further in Graham v. Florida, outlawing the possibility of life in prison without parole as a punishment for minors who commit non-homicide offenses.[6]

But what about a juvenile who is an accomplice to felony-murder, but did not participate in the killing?  Should this individual be immune to a sentence of life without parole as well?  Felony murder by its very name is a homicide offense, yet the implicated juvenile in this scenario has technically killed no one.  In such situations, should Graham’s constitutional protection extend to these young defendants, or should the state be free to impose a punishment second only to the death penalty in terms of seriousness and permanence?  In Arkansas, this is no longer an “issue to watch.” Unfortunately, the Supreme Court of Arkansas recently held that juveniles may be sentenced to life without parole for serving as accomplices to felony murder.

On September 20, 2011, the Court upheld Lemuel Session Whiteside’s conviction for felony murder and his sentence of life in prison without parole.[7]  When Whiteside was just sixteen, he and another teen, Cambrin Sain Barnes, conspired to rob James London, age thirty.  Prosecutors did not argue that Whiteside fired the shots that killed London.  Barnes freely admitted to pulling the trigger, and pleaded guilty to first-degree murder and aggravated robbery in exchange for a forty-year sentence.  Whiteside refused to strike a plea deal with prosecutors, who argued at his trial that he had provided the gun to Barnes and told him where to find London.

If the Supreme Court of the United States ruled that life without parole is only a proper punishment for juveniles who commit homicide offenses, how then should courts deal with cases of felony murder in which the accused’s participation is limited to the underlying felony? In Whiteside’s oral arguments, his attorney, Thomas Sullivan, argued that the Supreme Court’s ruling in Graham v. Florida “leaves open this middle ground.”[8]  On the one hand, aggravated robbery is a non-homicide offense, suggesting that Graham’s protections should extend to Whiteside’s sentence.  On the other, it could be argued that Whiteside’s decision to participate in the robbery subjected him to liability for any consequences that may have resulted from it, including London’s murder.  That is the logic behind the felony-murder rule, after all.

Where the nation’s highest court has explicitly outlawed the sentence of life without parole for juveniles who do not commit murder, however, the effect of the felony murder rule is that Whiteside has become tangled in an unfortunate loophole.  In the case of felony murder, juveniles lack the requisite state of intent present in true homicide offenses.  The effective result of Graham should be to impose the strictest punishment only on those juveniles who are truly dangerous to society and incapable of being rehabilitated.  Extending Graham to accomplices in felony murder is far too broad an interpretation.  As is often the case with adults charged with felony murder, juveniles in these situations are at the wrong place at the wrong time.  Incarcerating these individuals indefinitely deprives them of any opportunity to turn their lives around, while also depriving society of any benefit these juveniles may provide after serving their time.

Juveniles’ decision-making skills are not fully developed, and they lack the range of life experiences that may provide adults in similar situations with the foresight to reasonably anticipate the consequences of their decisions.  We have all heard the cliché “young, impressionable minds” at some point or another. While being young is certainly no excuse for committing armed robbery, most of us can admit that we did some things during our teenage years, often as the result of improper influences, that we now regret.   In his case, Whiteside was not even the victim of peer pressure, a feeling most of us experience at one point or another during adolescence, but was egged on by his own mother.  Whiteside’s mother phoned him on the afternoon of the robbery and resulting murder to inform him that there was a man at her residence in possession of $8,000.[9]  The opinion reveals that Whiteside asked her if “she wanted him to come over and rob someone,” to which she replied in the affirmative.[10]

Let me reiterate that there is no justification for armed robbery.  The Court’s opinion seems to suggest that Whiteside was a kid with inappropriate parental influences, access to firearms, too much time on his hands, and little, if any, regard for the law.  He was also sixteen.  This fact alone does not absolve him of guilt, nor should it allow him a reprieve from punishment.  But Whiteside’s co-defendant Barnes—the person who actually ended London’s life–received a mere forty years. Under Arkansas sentencing guidelines he could be out in as few as twenty-eight years.[11] Whiteside, meanwhile, who did not take a life, has essentially had his life ended by the state of Arkansas. He has no possibility of turning his life around or contributing something positive to society, aside from the good he may be able to do within the confines of a maximum security prison.

In December 2011, Whiteside’s counsel petitioned the Supreme Court of the United States for a writ of certiorari to hear the case.  While his case is certainly compelling, the Supreme Court receives thousands of petitions per year and is only able to hear a few hundred.  The odds of Whiteside receiving any relief from the Court do not look good.  Perhaps Whiteside is an evil individual who deserves to rot in prison.  Or perhaps he was a stupid kid who did a stupid thing. Perhaps he could have done something good with his life after serving a reasonable amount of time in prison for his crime.  It looks like we will never know.

[1]             Kirk Johnson, Double Murderer Executed by Firing Squad in Utah, N.Y. Times, June 19, 2010, at A12.

[2]             Death Penalty Information Center, http://www.deathpenaltyinfo.org/methods-execution#state (last visited Jan. 21, 2012).

[3]             In Thompson v. Oklahoma, the Supreme Court found the execution of persons under the age of 16 to be unconstitutional; and in Roper v. Simmons, the Court held that executing offenders under the age of 18 is likewise unconstitutional. 487 U.S. 815, 838 (1988); 543 U.S. 551, 578-79 (2005).

[4]             Ford v. Wainwright, 477 U.S. 399, 417-18 (1986).

[5]             Atkins v. Virginia, 536 U.S. 304, 321 (2002).

[6]             130 S.Ct 2011, 2034 (2010).

[7]             Whiteside v. State, 2011 Ark. 371, at 1, __ S.W.3d __, __.

[8]             Arkansas News, http://arkansasnews.com/2011/09/08/teen%E2%80%99s-life-sentence-unconstitutional-lawyer-argues/ (last visited Jan. 12, 2012).

[9]             Whiteside v. State, 2011 Ark 371, at 2, __ S.W.3d __, __.

[10]             Id.

[11]             See generally 2011 Ark ALS 570, 76.  Under newly-revised Arkansas sentencing guidelines, offenders of a list of crimes, including first-degree murder and aggravated robbery, must serve at least 50% of their sentences before becoming eligible for parole.

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