Brief of Roderick & Solange Macarthur Justice Center as Amicus Curiae in Support of Petitioner Lee Boyd Malvo
Roderick & Solange MacArthur Justice Center
SummaryOriginal

Summary

Maryland's rule against "cruel or unusual punishment" imposed by courts provides more protections than the Federal Eighth Amendment's rule against "cruel and unusual" punishment.

2021 | State Juristiction

Brief of Roderick & Solange Macarthur Justice Center as Amicus Curiae in Support of Petitioner Lee Boyd Malvo

Keywords incorrigible; Eighth Amendment (U.S.); JLWOP; juvenile life without parole; "cruel or unusual punishment"; "cruel and unusual punishment"; Maryland Declaration of Rights; state constitutions
Screenshot 2024-05-07 at 10.14.01 AM

Summary of Argument

Separate from the federal Eighth Amendment issues at stake, this case presents two important issues of state constitutional law: Whether Article 25 of the Maryland Declaration of Rights prohibits sentencing a juvenile to life without parole absent a finding of permanent incorrigibility; and whether Article 25 categorically bars life-without-parole sentences for juveniles. The answer to both questions is yes. The Court should hold that Article 25 categorically forbids life without parole for juveniles. Barring that, the Court should hold under Article 25 that a sentencing judge must find a juvenile permanently incorrigible before imposing life without parole.

This brief is about why the Court should reach above the minimum required by the Eighth Amendment in interpreting Maryland’s own Declaration of Rights. Article 25 forbids “cruel or unusual” punishment imposed by courts—a broader rule than the Eighth Amendment’s prohibition of “cruel and unusual” punishment. The framers of Maryland’s Declaration of Rights could easily have copied the narrower rule against judicially-imposed “cruel and unusual” punishment from any number of well-known foundational documents, including the English Bill of Rights or the Virginia Declaration of Rights. But instead, Maryland went its own way by adopting a broader rule against “cruel or unusual punishment” imposed by courts in its 1776 Declaration of Rights. Even though the framers of the federal Eighth Amendment later adopted the Virginia formulation, Maryland carried forward the distinctive language of its own Declaration of Rights, which this State has maintained across four state constitutions and for nearly 250 years.

In fact, the Maryland Declaration of Rights contains two punishment clauses—a rule against “cruel and unusual” punishments imposed by the legislature (Article 16) and a rule against “cruel or unusual punishments” imposed through the exercise of judicial discretion (Article 25). The contrasting use of the conjunctive and disjunctive in different provisions of the same document regulating different branches of state government makes it all the more clear that “cruel or unusual” and “cruel and unusual” must have different meanings. Article 25’s more sweeping limitation on sentences meted out through a judge’s discretion clearly applies to this case because the sentencing court exercised discretion in sentencing Mr. Malvo to life without parole.

This Court itself “has acknowledged that there is some textual support for finding greater protection in the Maryland provisions” limiting harsh punishment based on the use of the disjunctive “cruel or unusual.” Carter v. State, 461 Md. 295, 308 n.6, 192 A.3d 695, 702 n.6 (2018) (citing Thomas v. State, 333 Md. 84, 103 n.5, 634 A.2d 1, 10 n.5 (1993)). Other high courts in states that prohibit “cruel or unusual” punishment have decided the issue squarely, finding, for example that “the set of punishments which are either ‘cruel’ or ‘unusual’ would seem necessarily broader than the set of punishments which are both ‘cruel’ and ‘unusual.’” People v. Bullock, 485 N.W.2d 866, 872 n.11 (Mich. 1992).

This Court should hold that Article 25’s ban on “cruel or unusual” punishment meted out through judicial discretion is broader than the Eighth Amendment’s rule against “cruel and unusual” punishment. In doing so, the Court should join with other state high courts. More and more state courts across the nation are providing protections for young people facing harsh sentences—ones grounded in their own constitutions, and not the Eighth Amendment. As this Court recently underscored:

State constitutions . . . are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law— for without it, the full realization of our liberties cannot be guaranteed.

Leidig v. Maryland, 475 Md. 181, 256 A.3d 870, 904 (2021) (quoting Justice William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977)).

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Summary of Argument

In interpreting Article 25 of the Maryland Declaration of Rights, this article argues that the state constitution provides broader protection against cruel and unusual punishment for juveniles than the Eighth Amendment of the U.S. Constitution.

The Maryland Declaration of Rights prohibits "cruel or unusual" punishment imposed by courts (Article 25), while the Eighth Amendment prohibits "cruel and unusual" punishment. The use of the disjunctive "or" in Article 25 suggests a broader scope of protection than the conjunctive "and" in the Eighth Amendment.

Moreover, the Maryland Declaration of Rights contains two punishment clauses: one against "cruel and unusual" punishments imposed by the legislature (Article 16) and another against "cruel or unusual punishments" imposed by courts (Article 25). This distinction implies that the framers intended to provide greater protection against judicial discretion in sentencing.

The Maryland Court of Appeals has acknowledged the textual support for broader protection under Article 25. Other state high courts have also recognized that "cruel or unusual" punishment encompasses a wider range of punishments than "cruel and unusual" punishment.

The article advocates that the Maryland Court of Appeals should interpret Article 25 as providing a categorical ban on life without parole for juveniles. Alternatively, it argues that a finding of permanent incorrigibility should be required before imposing such a sentence.

By recognizing the broader protection afforded by Article 25, the court would align with a growing trend among state courts to provide enhanced safeguards for young people facing harsh sentences. This would also be consistent with the Maryland Court of Appeals' emphasis on the independent protective force of state law.

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Summary of Argument

Maryland's Constitution (Article 25) prohibits "cruel or unusual" punishments imposed by courts. This is different from the federal Eighth Amendment, which only prohibits "cruel and unusual" punishments.

When Maryland created its Constitution in 1776, it chose to use the phrase "cruel or unusual" instead of the narrower "cruel and unusual" language used in other documents. This suggests that Maryland intended to provide broader protection against harsh punishments.

Because Article 25 uses the disjunctive "or" instead of the conjunctive "and," it means that a punishment can be prohibited if it is either cruel or unusual. This is a broader standard than the Eighth Amendment's requirement that a punishment be both cruel and unusual.

Other state courts have also recognized that "cruel or unusual" is a broader standard than "cruel and unusual." For example, the Michigan Supreme Court has stated that the set of punishments that are either cruel or unusual is necessarily broader than the set of punishments that are both cruel and unusual.

Maryland's Constitution provides greater protection against harsh punishments than the Eighth Amendment. This Court should interpret Article 25 to prohibit life without parole sentences for juveniles, or at the very least, require a finding of permanent incorrigibility before imposing such a sentence. By doing so, the Court would be joining other state courts in recognizing the special protections that should be afforded to young people.

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Summary of Argument

In Maryland, it's against the state constitution (called the Declaration of Rights) to give juveniles life sentences without parole unless they are found to be permanently incorrigible, meaning they can't be rehabilitated. This is a stricter rule than the federal Constitution's Eighth Amendment, which only prohibits "cruel and unusual" punishment.

When Maryland wrote its Declaration of Rights in 1776, it chose to use the phrase "cruel or unusual" punishment, instead of the narrower "cruel and unusual" punishment used in the federal Constitution. This means that Maryland's rule protects juveniles from a wider range of punishments.

If the Court agrees with this interpretation of the Maryland Constitution, it would mean that:

  • Juveniles cannot be sentenced to life without parole under any circumstances.

  • If a judge wants to give a juvenile life without parole, they must first find that the juvenile is permanently incorrigible.

Other state courts have recognized that their own constitutions provide more protection for juveniles than the Eighth Amendment. This is because young people are still developing and have a greater potential for rehabilitation than adults. Giving juveniles life sentences without parole can be considered cruel and unusual punishment, as it takes away their chance to change and become productive members of society.

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Summary of Argument

In Maryland, there's a special rule that says judges can't give kids really harsh punishments, like life in prison without ever getting out. This rule is different from the one in the U.S. Constitution.

Maryland's rule says judges can't give kids punishments that are either "cruel" or "unusual." That's different from the U.S. Constitution, which only says judges can't give punishments that are both "cruel" and "unusual."

Because Maryland's rule is broader, it means that judges have to be more careful when they're sentencing kids. They can't just give them any punishment they want. They have to make sure that the punishment isn't too harsh.

Some people think the court should say that judges can never give kids life in prison without ever getting out. Others think the court should say that judges can only give this punishment if they find that the kid is so bad that they'll never be able to change.

No matter what the court decides, it's important to remember that Maryland has a special rule that protects kids from being punished too harshly.

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Footnotes and Citation

Cite

Brief of Roderick & Solange MacArthur Justice Center as Amicus Curiae in Support of Petitioner Lee Boyd Malvo, Malvo v. Maryland, No. 29 (Md. Ct. App. 2021).

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