KHAMSONE KHAM NAOVARATH, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 18872
SUPREME COURT OF NEVADA
September 7, 1989
525 | 779 P.2d 944
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Robert Teuton, Deputy District Attorney, Clark County, for Respondent.
OPINION
By the Court, SPRINGER, J.:
We have before us a thirteen-year-old seventh grader who stands convicted of an unspecified degree of murder by reason of his plea of guilty to an amended information charging “murder.” Rejecting a pre-sentence recommendation of life with possibility of parole, the trial court sentenced appellant Naovarath to imprisonment for the rest of his life without possibility of parole.
Before proceeding we pause first to contemplate the meaning of a sentence “without possibility of parole,” especially as it bears
This child committed a serious crime; he killed a man who had been molesting him sexually and then stole the man‘s belongings. Homosexual pornographic movies were found at the crime scene, and there is little doubt that if the homosexual child molester had not died from his injuries, he would be facing a possible life sentence himself and Naovarath would in all probability be free. All this aside, we do have before us a murder convict, and we must decide the issue presented by this appeal, namely, whether Naovarath‘s sentence of life imprisonment without possibility of parole is cruel or unusual under the prohibition of the state and federal constitutions.2
The department of probation and parole recommended a life sentence with possibility of parole. The sentencing judge, based on the record before her, concluded that Naovarath was “someone who had made it clear through his actions, his statements,
ing judge is apparently saying that, in her judgment, the killing, taken together with the mental and moral status of the boy, render Naovarath, at thirteen, permanently unregenerate and an un-reclaimable danger to society who must be caged until he dies. A reading of the very limited record before us suggests that the boy‘s acts do not necessarily “speak for themselves.” Let us examine as closely as we can these acts and, more importantly, the thirteen-year-old who committed them:
Naovarath had known the man who was the object of his wrath for over a year and had been a visitor in his home, apparently for the purpose of indulging the sexual perversions of the deceased. On the day of the killing the deceased had, for reasons unknown, refused to admit Naovarath into his home. Naovarath entered the deceased‘s home on that day without permission. After gaining entry, by Naovarath‘s own account, the boy treated the man in a very cruel and degrading manner. Naovarath tipped over the man‘s wheelchair, threw a variety of objects at his head, taunted the man to kill himself and generally treated this helpless man in a most merciless fashion.
Let it not be thought that we are underestimating the gravity of this or other crimes committed by children. The undeniable increase in crimes by younger children has made it necessary for the criminal justice system to deal severely with young offenders. Our legislature has removed youthful murderers, whatever their age, from the grace of the juvenile court act, thus making the most severe adult penalties available, where appropriate, in the case of youthful murderers. Because, by statute, homicides committed by children even younger than Naovarath, for instance, ten or eleven year olds, are punishable by adult standards, careful judicial attention must be given to the subject of fair and constitutional treatment of children who find themselves caught up in the adult criminal justice system.
Certainly there must be some age at which a sentence of this severity must be judged to be unarguably cruel and unusual. Had Naovarath been only nine or ten years old, few would argue that this kind of sentence could be properly allowed. Most agree that it would be excessive to sentence a nine or ten year old to life imprisonment without possibility of parole. Children of this age simply cannot be said to deserve this kind of severe punishment, nor can it be said that a child of such tender years is so unalterably bad that no parole release should ever be considered.
When a child reaches twelve or thirteen, it may not be universally agreed that a life sentence without parole should never be imposed, but surely all agree that such a severe and hopeless sentence should be imposed on prepubescent children, if at all, only in the most exceptional of circumstances. Children are and should be judged by different standards from those imposed upon mature adults. To say that a thirteen-year-old deserves a fifty or sixty year long sentence, imprisonment until he dies, is a grave judgment indeed if not Draconian. To make the judgment that a thirteen-year-old must be punished with this severity and that he can never be reformed, is the kind of judgment that, if it can be made at all, must be made rarely and only on the surest and soundest of grounds. Looking at the case before us from this perspective, we conclude that the sentence of life imprisonment without possibility of parole imposed upon Naovarath was cruel and unusual under the Nevada Constitution and the United States Constitution.
What means cruel and unusual punishment is not spelled out in either state or federal constitutions. Recently the United States Supreme Court in Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 2691 (1988), noted that
[t]he authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishments, but they made no attempt to define the contours of that category. They delegated that task to future generations of judges who have been guided by the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958) (plurality opinion) (Warren, C.J.).
Former United States Supreme Court Justice Frank Murphy, in an unpublished draft opinion, put the matter very well:
More than any other provision in the Constitution the prohibition of cruel and unusual punishment depends largely, if
not entirely, upon the humanitarian instincts of the judiciary. We have nothing to guide us in defining what is cruel and unusual apart from our consciences. A punishment which is considered fair today may be considered cruel tomorrow. And so we are not dealing here with a set of absolutes. Our decision must necessarily spring from the mosaic of our beliefs, our backgrounds and the degree of our faith in the dignity of the human personality.4
What constitutes cruel and unusual punishment for a child presents an especially difficult question. Under Nevada statutory law, since 1985, a child may be charged, convicted and sentenced for murder. For all other purposes the defendant in this case, a child, a seventh grader at the time of the incident, is almost entirely legally incapacitated. A child may not vote; a child may not serve on a jury. A child may not drink or gamble; a child of Naovarath‘s age may not even drive an automobile. We may possibly have in the child before us the beginning of an irremediably dangerous adult human being, but we certainly cannot know that fact with any degree of certainty now. If putting this child away until his death is not cruel, it is certainly unusual. To adjudicate a thirteen-year-old to be forever irredeemable and to subject a child of this age to hopeless, lifelong punishment and segregation is not a usual or acceptable response to childhood criminality, even when the criminality amounts to murder.
As said, hopelessness or near hopelessness is the hallmark of Naovarath‘s punishment. It is questionable as to whether a thirteen-year-old can even imagine or comprehend what it means to be imprisoned for sixty years or more. It is questionable whether a sentence of virtually hopeless lifetime incarceration for this seventh grader “measurably contributes” to the social purposes that are intended to be served by this next-to-maximum penalty. Enmund v. Florida, 458 U.S. 782, 798 (1982).
Punishment by imprisonment is generally accepted as serving three moral and social purposes: retribution, deterrence of prospective offenders, and segregation of offenders from society.
Retribution has been characterized by the Supreme Court as being “an expression of society‘s outrage” at criminal conduct and as not being “inconsistent with our respect for the dignity of men.” Gregg v. Georgia, 428 U.S. 153, 183 (1976). We do not question the right of society to some retribution against a child murderer, but given the undeniably lesser culpability of children for their bad actions, their capacity for growth and society‘s
Deterrence also has a rational and historically accepted legitimacy in determining the degree of punishment called for in a given criminal conviction. However, it is hard to claim that children of under fourteen years are really capable of being very much deterred by threatened punishment of this magnitude. Twelve and thirteen-year-olds just do not make the “kind of cost-benefit analysis that attaches any weight to the possibility” of future punishment. Thompson, 108 S.Ct. at 2700. Still, given the increase in capital crimes being engaged in by young people of Naovarath‘s age and even younger, very serious penalties may be properly invoked for crimes such as this.5 One cannot help but wonder, however, if any thirteen-year-old children will be deterred from homicidal conduct by an appreciation of the difference between sentences of life with and life without the possibility of parole. Although general deterrence—sending out the word to a young but still sometimes dangerous population that homicides committed even by the very young are subject to very severe punishment—is certainly a legitimate purpose, it is highly doubtful that any twelve or thirteen-year-olds would be more deterred by the penalty imposed on this boy than by a life sentence which is reviewable by the parole board.
Segregation is not a frequently discussed aspect of the social purpose of imprisonment, but imprisonment, like the death sentence, does “get them off the streets“—it quarantines criminals, so to speak. Perhaps it is justifiable for courts to decree that thirteen-year-olds stay in prison until they die; probably not. It does not seem to us, from the record, that the trial judge had enough information to make the predictive judgment that this particular thirteen-year-old boy should never again see the light of freedom. A strong argument exists for the proposition that the parole board is best suited to make this kind of judgment at some future time. The need to segregate dangerous criminals does not justify locking this boy up for his whole life.
Naovarath‘s counsel is not here seeking a light sentence. His
Guided by the “humanitarian instincts” mentioned by Justice Murphy, we conclude that the kind of penalty imposed in this case is cruel and unusual punishment for this mentally and emotionally disordered thirteen-year-old child.6 We therefore grant Naovarath‘s appeal and order that sentence be imposed against him for a term of life imprisonment with possibility of parole.
ROSE, J., concurs.
MOWBRAY, J., concurring:
I concur.
I agree that appellant Naovarath‘s sentence should be modified from life without the possibility of parole to life with the possibility of parole.
Thirteen-year-old Naovarath pleaded guilty to murdering thirty-eight-year-old David Foote and threw himself on the mercy of the court. While the facts are in dispute, Naovarath‘s statement, attached to the Pre-Sentencing Report prepared by the Department of Parole and Probation which was submitted to the sentencing judge prior to formal sentencing, states in part:
The last time when I went over to his [Foote‘s] house to jack him off he told me to give him a blow job so I said no because I think it is desgusting [sic] we argue for a few minuties [sic]. Then I told him that I have to go home and he say no don‘t go so I got up and walk then he follow me and hit me with a stick. So I grabbed the back of the wheelchair and tipped it over and he fell down on the ground got up grabe [sic] his knife and came after me. So I took a glass jar and throw [sic] it at him and hit him in the head he strated [sic] to bleed I got so scared I diden‘t [sic] want to leave I was to [sic] scared to leave....
The Pre-Sentencing Report in its final recommendation to the sentencing judge stated:
RECOMMENDATION
In addition to the $20 administrative assessment, it is recommended by the Department of Parole and Probation that the defendant, KHAMSONE KHAM NAOVARATH, be sentenced to a term of Life in the Nevada Department of Prisons, with the possibility of parole. (Emphasis added.)
The sentencing judge, however, chose to sentence Naovarath to a term of life without the possibility of parole.
Writing, of course, only for myself, it strikes me that such a sentence imposed on a thirteen year old boy under the facts presented reads like a sentence from a Charles Dickens’ nineteenth century novel. Let me make myself crystal clear: I do not in any way approve of the boy‘s condemnable conduct nor of the crime he committed. But the boy is still a child of God and rather than being assigned to oblivion, a flicker of light should be kept alive in the hope that he may some time in the future be rehabilitated and become an acceptable member of society.
For these reasons I would reverse and remand the case with instructions to modify the sentence to life with the possibility of parole.
YOUNG, C. J., with whom STEFFEN, J., agrees, dissenting:
The district court imposed a sentence of life imprisonment without possibility of parole on a convicted murderer. The defendant, now age fifteen, was thirteen years old at the time of the crime.1 We find that the sentence was constitutional, and did not evidence an abuse of discretion by the district court. Therefore, we would affirm.
During the morning of January 1, 1987, appellant, Khamsone Kham Naovarath, a thirteen year old native of Laos, decided to visit his neighbor, David Foote. Foote, a thirty-eight year old paraplegic confined to a wheelchair, refused to allow Naovarath to enter his home. However, Naovarath forced his way into the house, and during the next hour, slowly and brutally murdered the helpless David Foote.
Naovarath knocked Foote out of his wheelchair and tied him to a bench. He hit Foote on the head with glass bottles and jars
On January 6, 1987, Las Vegas police arrested Naovarath for Foote‘s murder. The following day, he confessed to the killing. Naovarath stated that he did not know why he killed Foote since the decedent had done nothing to harm him.
The majority opinion makes a number of unfounded and unsupported references to sexual abuse supposedly inflicted upon Naovarath by his wheelchair-bound victim. With little legal authority and scant factual underpinning to support his position, the appellant apparently feels compelled to cast aspersions upon a helpless victim. The appellant‘s descriptions of David Foote as a “homosexual child molester” and a “sexual assailant” are gross distortions of the record.
At his sentencing hearing, approximately one year after his confession, Naovarath‘s counsel for the first time claimed that, on several occasions, David Foote had shown pornographic films to Naovarath, then paid Naovarath to ejaculate him.2 Moreover, on the day of the murder, Foote allegedly requested Naovarath to perform fellatio upon him. When Naovarath refused, Foote allegedly struck him. In retaliation, Naovarath knocked over Foote‘s wheelchair, sending Foote to the floor. Realizing he was in trouble, Naovarath decided to kill Foote. Naovarath stated that he omitted these incidents from his prior statements because he was ashamed of his homosexual acts.
However, although pornographic videotapes were found in the victim‘s home, the evidence does not demonstrate that Naovarath was the victim of sexual molestation. At the time of his confession, Naovarath told police that on the morning of the crime, he forced his way into David Foote‘s home,3 unlikely conduct for one now raising the spectre of sexual abuse. By irresponsibly depicting David Foote as the villain in this case, instead of the victim, the majority opinion asserts as fact inferences which are, at best, highly speculative.4
Moreover, when Naovarath finally broached the subject of David Foote‘s alleged sexual misconduct, he described the paraplegic Foote getting up from the ground after being knocked out of his wheelchair, grabbing a knife and coming after Naovarath. Neither Naovarath nor his counsel ever explained how a severely handicapped man could display such physical dexterity. The victim‘s brother described David Foote as completely unable to defend himself. Therefore, we believe that Naovarath‘s belated self-serving explanation of the events surrounding David Foote‘s death invites disbelief.
Furthermore, Naovarath‘s unsupported claim of sexual abuse, made approximately one year after his confession and just before his penalty hearing, presented a question of credibility. It was within the district court‘s discretion whether to accept Naovarath‘s late-arriving defense or to discount it.5 See Renard v. State, 94 Nev. 368, 369, 580 P.2d 470, 471 (1978) (vesting district courts with wide discretion regarding sentencing and probation). The credibility issue was understandably resolved against Naovarath. We should not overrule, as here, a district court‘s reasonable interpretation of the evidence presented at sentencing.
Finally, in view of the majority‘s great sympathy for the perpetrator of one of the most brutal murders in recent memory, and its unfounded and indefensible portrayal of the helpless victim, we feel compelled to remind the reader that paraplegic David Foote was the victim in this case, and Khamsone Naovarath the offender. For approximately an hour, Naovarath tortured David Foote to death. That much, at least, is clear from the record.
However, the majority ignores the fact that the State originally charged Naovarath with murder with the use of a deadly weapon. Thus, Naovarath faced a sentence of two consecutive life terms with or without possibility of parole.
For two reasons, the majority claims that Naovarath lacked the capacity to enter into his plea bargain. First, because Naovarath was thirteen-years-old at the time of the murder, it suggests that Naovarath presumptively lacked the legal capacity to commit a crime. We find the majority‘s argument unsupportable in light of
Second, the majority contends that Naovarath was psychotic and delusional, and therefore incapable of voluntarily and intelligently pleading guilty. In Nevada, in order to competently enter a plea, a defendant must be of sufficient mentality to understand the nature of the criminal charges against him, and must be able to assist his counsel in his defense.
The record indicates that Naovarath possesses “superior intelligence.” Moreover, in a letter addressed to the district court judge before his sentencing hearing, Naovarath indicated his understanding that, because he took David Foote‘s life, he faced a sentence of life imprisonment either with or without the possibility of parole. Thus, the evidence before us demonstrates that
Additionally, the majority contends that Naovarath‘s “language difficulty” prevented him from understanding his plea negotiation. However, as part of our review of the record, we viewed a videotape of Naovarath‘s confession to Las Vegas police investigators. We were impressed by Naovarath‘s dispassionate and articulate recitation of his killing of David Foote. The taped confession indicates that Naovarath possessed ample communication skills during his arrest and plea negotiation (and little remorse for his actions). Furthermore, at no time did the district court judge find cause to question Naovarath‘s competence. Therefore, the record belies the majority‘s contention that Naovarath was not competent to enter into his plea bargain. Moreover, if the majority truly believed their conclusions of incompetence on the part of Naovarath to enter a plea, it is logically and legally inconsistent to impose any degree of punishment pursuant to a plea entered by a mentally incompetent defendant.
After consideration of all of the evidence, including the results of a psychological examination, the district court sentenced Naovarath to life in prison without possibility of parole. On appeal, Naovarath seeks a reduction of his sentence to life imprisonment with possibility of parole.
First, Naovarath argues that the prosecutor‘s closing remarks at the sentencing hearing were inaccurate and improperly influenced the district court. The prosecutor cited statistics showing that most crimes are committed by males between the ages of nineteen and twenty-eight. He noted that with a sentence of life imprisonment with possibility of parole, Naovarath would be parole eligible at age twenty-three.7 In comparison, the prosecutor observed that under a sentence of life imprisonment without possibility of parole, Naovarath could not anticipate release from prison until age thirty-four at the earliest.8
Naovarath contends that the prosecutor‘s argument placed undue pressure upon the sentencer and did not accurately reflect the sentencing statutes. We disagree. The prosecutor merely integrated the facts of the instant case with the statutory provisions for parole. Under a sentence of life imprisonment with possibility of parole, Naovarath would be eligible for release at age twenty-three, after ten years incarceration.
No evidence exists to support Naovarath‘s contention that the prosecutor‘s comments unduly influenced the district court. We have faith that the district court judge was familiar with the possible penalties for first degree murder, as well as the pardon process and its effect on prison terms. When the sentence is within the statutory limits and there has been no proof of judicial reliance upon “impalpable or highly suspect evidence,” this court will not interfere with the district court‘s imposition of sentence. Lloyd v. State, 94 Nev. 167, 170, 576 P.2d 740, 742 (1978).
Next, Naovarath argues that the sentence of life imprisonment without parole was disproportionate, and violated the Eighth Amendment‘s ban on cruel and unusual punishment. Again, we disagree.
Aside from capital cases, successful challenges to the proportionality of particular sentences are extremely rare. Solem v. Helm, 463 U.S. 277, 289-90 (1983). Reviewing courts should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punish-
Solem defined three objective factors for Eighth Amendment proportionality analysis. Id. at 290-292. First, courts must consider the gravity of the offense and the harshness of the penalty. In the instant case, Naovarath committed the gravest of all crimes, murder, in an extraordinarily brutal manner. For his conduct, Naovarath received the most severe penalty constitutionally permitted by our legal system. See Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687 (1988) (holding that courts may not impose the death penalty on murderers who commit their crimes while under the age of sixteen).
Second, we must compare the sentences imposed on other criminals in the same jurisdiction. In Harvey v. State, 100 Nev. 340, 682 P.2d 1384 (1984), a jury sentenced a sixteen year old murderer to death for the fatal shooting of a security guard. The defendant shot the guard in a panic while fleeing a robbery. Id. at 343, 682 P.2d at 1386.
Holding that capital punishment was disproportionate to the penalty imposed in Nevada in similar cases, this court substituted Harvey‘s death sentence with a penalty of life imprisonment without possibility of parole. Id. at 344, 682 P.2d at 1387. We held that because Harvey shot the guard in a panic, his crime lacked the degree of heinousness and brutality evidenced in many cases in which the death penalty was imposed. Id. at 342, 682 P.2d at 1385. Moreover, we noted that Harvey suffered from extreme mental or emotional problems when he committed the murder. Id. at 343, 682 P.2d at 1386.
In the case at hand, Naovarath was thirteen years old when he killed David Foote. Although younger than the defendant in Harvey, Naovarath‘s crime was notable for its cruelty. Naovarath always had the option to leave Foote‘s house. Instead, he chose to stay and inflict horrible suffering upon his helpless victim. Like Harvey, Naovarath also labored under psychological problems. Thus, in accordance with our decision in Harvey, it seems reasonable to sentence Naovarath to life imprisonment without possibility of parole.
Third, we must compare sentences imposed for commission of the same crime in other jurisdictions. In a number of states, courts may try and punish juveniles as adults for certain offenses.9
For example, in New Jersey, if convicted of murder in criminal court, a juvenile receives a minimum sentence of thirty years without parole.
In Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687 (1988), the Supreme Court vacated the death sentence imposed upon an Oklahoma juvenile who committed first degree murder at the age of fifteen. According to Oklahoma law, a person convicted of first degree murder shall be punished by death or life imprisonment.
In Postell v. State, 383 So.2d 1159 (Fla.Dist.Ct.App. 1980), a thirteen year old girl was convicted of second degree murder, burglary and robbery. The court imposed concurrent ninety-nine-year terms for the murder and burglary and a consecutive fifteen-year term for the robbery. Id. at 1160 n. 1.10
In Whitehead v. State, 511 N.E.2d 284 (Ind. 1987), the Indiana Supreme Court upheld a fifty-four year sentence imposed
Thus, a number of states besides Nevada now enforce severe penalties on youthful murderers.11 Consequently, we believe that Naovarath‘s sentence of life imprisonment without possibility of parole was not disproportionate to his offense. Moreover, the Solem decision left intact the authority pronounced but three years earlier by the same Court in the case of Rummel v. Estelle, 445 U.S. 263 (1980). In Rummel, the Court declared:
[g]iven the unique nature of the punishments considered in Weems [Weems v. United States, 217 U.S. 349 (1910) involving the unique punishment of cadena temporal imposed by the Philippine Code] and in the death penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.
Id. at 274. Naovarath‘s sentence was within the limits specified by the Nevada legislature and should not be overturned by this court.
Lastly, Naovarath argues that his sentence is cruel and unusual punishment and therefore violates the Eighth Amendment. He contends that the murder victim, David Foote, provoked his own demise by subjecting the thirteen year old Naovarath to sexual abuse. Furthermore, Naovarath argues that the wartime violence he witnessed as a small child in Laos and Vietnam should mitigate his sentence.
Again, Naovarath‘s claims lack merit. Three basic tests exist for evaluating whether a punishment is cruel or unusual:
(1) In view of all the circumstances, is the punishment of such character as to shock the conscience and to violate principles of fundamental fairness? (2) Is the punishment greatly disproportionate to the offense? (3) Does the punish-
ment go beyond what is necessary to achieve the aim of the public interest as expressed by the legislative act?
Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky.Ct.App. 1968).
After consideration of all of the circumstances of this case, we do not find that the sentence imposed shocks the conscience or violates principles of fairness. Although Naovarath was only thirteen at the time of the murder, the psychiatrist who examined him estimated that Naovarath had a mental age of seventeen. Naovarath understood the difference between right and wrong, yet, after the brutal killing, he expressed no remorse for his actions other than how this crime will affect the remainder of his life.
As stated above, the district court‘s sentence of life imprisonment without possibility of parole was not disproportionate to Naovarath‘s offense. Therefore, our final question is whether this punishment serves any of the goals of our penal legislation.
Our legislature implemented tough penalties for first degree murderers as a means of dealing with dangerous and incorrigible individuals who would be a constant threat to society. The psychiatrist who examined Naovarath stated that his conscience is “non-developed, if not amoral.” Moreover, the physician observed evidence of a developing psychosis. The rage and randomness of Naovarath‘s conduct during the murder is tragic evidence of the danger which he poses to society.
Nothing in Naovarath‘s background serves to mitigate this impression or indicates a potential for rehabilitation. He admitted to drug and alcohol abuse, as well as involvement with street gangs. Juvenile records indicate that he is an habitual liar, had a poor school attendance record, and took part in no constructive activities at home or in the community.
We are unmoved by Naovarath‘s contention that his tender years entitle him to special consideration at sentencing. As described above, we appear to be witnessing a national trend toward the reduction of the age of juvenile criminal liability. Persons under eighteen commit approximately twenty percent of violent crimes and forty-four percent of serious property crimes. Hearings on S. 829 before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary. 98th Cong., 1st Sess., 551 (1983).
In 1979, children under the age of fifteen committed 206 homicides, over 1,000 forcible rapes, and more than 10,000 robberies and 10,000 cases of aggravated assault. Id. at 554 (citing the United States Department of Justice, Sourcebook of Criminal Justice Statistics 1981). Many of these juveniles are
Traditionally, our juvenile system followed the premise that rehabilitation should be its primary function. However, when applied to the most serious youthful offenders of today, that vision fails to adequately protect the public interest. Id. at 543. We recognize that juvenile offenders have special needs. However, we also recognize our responsibility to protect the public from violent crime and to hold young people accountable for their actions when, as in the case at hand, they engage in particularly heinous conduct.
In the instant case, the sentence of life imprisonment without possibility of parole was necessary to accomplish the objective of protecting society and to achieve the related goals of deterrence, rehabilitation and retribution. Thus, it was clearly within the purposes envisioned by the Nevada legislature.
The sentence imposed on Naovarath by the district court was within the statutory limits. Moreover, the penalty was not disproportionate to his offense, nor was it cruel and unusual punishment. Accordingly, we would affirm the decision of the district court.
Notes
Our putting “murder” in quotes prompts mention of another serious weakness in the proceedings in this case. As stated in the body of this opinion, Naovarath was convicted of an unspecified degree of murder. As far as the record before us is concerned, no mention is made of murder in the first degree, which is necessary in order to support the sentence of life without possibility of parole. The question is not raised by Naovarath‘s counsel in this appeal.
Further doubts about this conviction are created by Naovarath‘s presumed lack of capacity to commit a crime. When the legislature removed the crime of murder from the Juvenile Court Act, the common law of infancy was automatically restored. At common law a child under fourteen years is presumed to be incapable of committing a crime. Naovarath, at thirteen, is entitled to a presumption of incapacity. See LaFave and Scott, Handbook of Criminal Law, 351 (1972). According to
In light of all this, and of the undisputed mental condition of Naovarath, it is hard to reconcile sound advocacy with the bargain struck here—a plea of guilty in exchange for the severest possible sentence. As stated, we are not in a position to deal with these matters now because the appeal does not raise them, and the record does not support further appellate inquiry at this time.
A reading of this record raises some additional troublesome questions that probably will have to be answered in a fact-finding, post-conviction proceeding.
The first question relates to the guilty plea. Expert opinion in the record tells us that Naovarath was psychotic, delusional, unable to “distinguish
The state of the record on the conviction itself is also of some concern. As stated above, the judgment of conviction makes no mention of the degree of the murder (except for citation of
We are simply unwilling to be perceived, along with the sentencing judge, as jurists who are so calloused as to permit a thirteen-year-old who killed his “sexual assailant” to be consigned to life in prison. If the majority‘s characterization could be supported in the record, in our opinion the penalty sought by the majority (life with possibility of parole) would be unacceptably harsh. But facts are stubborn, and the good intentions and impassioned arguments of the majority cannot change them.
Every person convicted of murder of the first degree shall be punished:
. . . .
(b) . . . by imprisonment in the state prison for life with or without possibility of parole. If the penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a minimum of 10 years has been served.
Except as otherwise provided in
(a) Recent misconduct in the institution, and that he has been recommended for parole by the director of the department of prisons;
(b) Repetitive criminal conduct;
(c) Criminal conduct related to the use of alcohol or drugs;
(d) Repetitive sexual deviance, violence or aggression; or
(e) Failure in parole, probation, work release or similar programs.
Although Naovarath was fourteen at the time of sentencing, the district court granted him 374 days credit for time already served. Thus, the prosecutor miscalculated. Assuming that he received a commutation, a sentence of life imprisonment without possibility of parole would make Naovarath parole eligible at age thirty-three.
Furthermore, federal law now holds that juveniles above the age of fifteen who are charged with violent felonies or certain drug offenses may be transferred from the jurisdiction of the juvenile court to an appropriate district court of the United States for criminal prosecution.