U.S. Supreme Court Relies on Orrick Amicus Brief in High-Profile Eighth Amendment Decision


Orrick’s Supreme Court & Appellate Practice Group achieved the rare feat last week of having its amicus brief cited by the United States Supreme Court in a landmark opinion, and addressed by the dissent as well.  In Graham v. Florida, 560 U.S. ___ (May 17, 2010), the Court split 6-3 to hold that the Eighth Amendment’s ban on “cruel and unusual punishment” prohibited a life without parole sentence, and in so holding struck down the laws of thirty-seven states, the District of Columbia, and the Federal Government.  The Court had never before considered a categorical challenge to a sentence other than death.

Over a dozen amicus briefs were filed in support of the juvenile offender.  Working closely with renowned researchers and scientists, an Orrick team led by litigation partner Josh Rosenkranz filed an amicus brief on behalf of the American Medical Association and the American Academy of Child and Adolescent Psychiatry.  The amicus brief described medical, psychiatric, and psychological research highly relevant to whether juveniles can be regarded as less culpable for their actions and more capable of reform.  The brief demonstrated that adolescents are less capable than adults to control behavior, and their brains are structurally immature and more active in regions associated with risky, impulsive, and sensation-seeking behavior.

In its assessment of the nature and characteristics of juvenile offenders, the Court’s opinion (written by Justice Kennedy) cited Orrick’s amicus brief in support of the proposition that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.  For example, parts of the brain involved in behavior control continue to mature through late adolescence.” Acknowledging the importance of the issue, the dissent (authored by Justice Thomas) attempted to mitigate the force of the amicus brief, by pointing to studies by one researcher that suggests there may be differences between adolescents who engage in “risky” behavior and those who commit “violent” crimes.

In addition to Josh Rosenkranz, the Orrick team consisted of Los Angeles litigation counsel Khai LeQuang, who was supported by pro bono counsel Rene Kathawala.