KHAMSONE KHAM NAOVARATH, Appellant, v. THE STATE OF NEVADA, Respondent
Naovarath v. State
Rose, J., concurs.
KHAMSONE KHAM NAOVARATH, Appellant, v. THE STATE OF NEVADA, Respondent.
KHAMSONE KHAM NAOVARATH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18872
September 7, 1989
779 P.2d 944
Morgan D. Harris, Public Defender, Robert H. Thompson, Deputy Public Defender, Clark County, for Appellant.
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 upon a seventh grader. All but the deadliest and most unsalvageable of prisoners have the right to appear before the board of parole to try and show that they have behaved well in prison confines and that their moral and spiritual betterment merits consideration of some adjustment of their sentences. Denial of this vital opportunity means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of Khamsone Kham Naovarath, he will remain in prison for the rest of his days. This is a severe penalty indeed to impose on a thirteen-year-old. The question is whether under the constitutions of Nevada and the United States this penalty is excessive, cruel or unusual.
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.
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, and the testing that he is amoral, prone to aberrant behavior, and a danger to society. His acts speak for themselves." The sentenc 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 unreclaimable 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.
In deciding whether the sentence in this case exceeds constitutional bounds it is necessary to look at both the age of the convict and at his probable mental state at the time of the offense.
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.
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 special obligation to children, almost anyone will be prompted to ask whether Naovarath deserves the degree of retribution represented by the hopelessness of a life sentence without possibility of parole, even for the crime of murder. We conclude that as "just deserts," for killing his sexual assailant, life without possibility of parole is excessive punishment for this thirteen-year-old boy.
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. One cannot help but wonder, however, if any thirteen-year-old children will be deterred from homicidal conduct by an appreciation of the deference 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 oif 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 counsel stipulates that life imprisonment is the minimum punishment that can be imposed in this case if the appeal is granted. The only question is whether it is necessary in order to punish Naovarath enough, or to deter others enough, or to segregate Naovarath long enough, that he must be kept behind bars with no hope, never to be free again. Probably some lesser degree of punishment, probably less fearful deterrence than hopeless lifetime incarceration, probably segregation for less than a lifetime would, in Naovarath's case, "contribute measurably" to the mentioned moral and social purposes of criminal sanctions without necessitating the horrific maximum sentence levied here.
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. 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.
The prosecutor pointed out to the sentencing judge that, if Naovarath were sentenced to life without the possibility of parole, he could still be free on parole someday if his sentence were to be commuted. It is true that if some unknown, future governor can garner the ratifying votes of a majority of the newly constituted board of pardons commissioners, it is possible that by an act of executive clemency Naovarath may not spend the rest of his days in a prison cell. We suppose that in light of this remote possibility Dante's fancied inscription on the gates of hell, "Abandon Hope All Ye Who Enter Here," may not be properly fastened above this boy's cell; nevertheless, for now, the sentence is unequivocal: life imprisonment, without parole — life ends in prison.
In addition to this issue Naovarath has also assigned as error improper argument on the part of the prosecutor. Had Naovarath's sentence been the result of a jury verdict, we might be more inclined to be persuaded by this point. Naovarath claims that certain remarks of the prosecutor relative to parole eligibility improperly influenced the sentencing judge. It does not seem reasonable to suppose that the sentencing judge could have been influenced in any appreciable degree by the prosecutor's discussion of the subject of parole eligibility. We must and do assume that the sentencing judge was well aware of the consequences of her sentencing, and we decline to go into this matter any further.
One of the persuasive reasons why Naovarath's acts may not "speak for themselves" is that, in addition to Naovarath's being only thirteen years old and probably not yet in puberty (the record is silent on this) at the time of this event, his mental condition is brought into serious question by the psychologist's report found in the record. That Naovarath should not be completely removed from the possibility of future parole consideration and that he have an opportunity at some time in the future to be evaluated by a parole board, then, is supported by two considerations: first, Naovarath was at the time of the killing a child with the mind of a child, and second, Naovarath, insofar as the present state of the record is concerned, was psychotic, delusional and unable to "distinguish reality and fantasy." We, of course, do not know just how psychotic or delusional Naovarath was or is; we have in this record only the court-appointed psychologist's uncontradicted written opinion. It seems that little heed was paid by anyone to the psychologist's opinion and that no one ever sought a hearing on Naovarath's competency at the time of the killing or at the time of the plea of guilty of "murder."
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 NRS 194.010 "[c]hildren between eight years and fourteen years are presumed incapable of committing crimes unless there is clear proof that they knew of the act's wrongfulness at the time it was committed." The trial court apparently never considered this presumption of incapacity nor does it appear that counsel could have considered it while evaluating possible defenses or when judging Naovarath's capacity to enter a voluntary plea. The dissent does point out that Naovarath wrote a letter to his counsel and that, therefore, he must have been competent to plead; but, then, the dissent also maintains that Naovarath got a terrific deal when he pleaded guilty to the crime of murder because if he had not made a deal, he could very well have ended up with two life sentences without possibility of parole; whereas, now he enjoys the benefit of only having to serve one term of life imprisonment without possibility of parole.
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 reality and fantasy" and suffering from a "substantial impairment of judgment." The plea canvass is not in the record, but one wonders whether such a child could possibly be capable, given his language difficulty and the apparent absence of his parents at critical stages of the proceedings, of understanding a plea negotiation which required him to plead guilty to murder, with the only issue being whether he should get a life sentence with or without possibility of parole.
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 NRS 200.030, which merely recites that there are two degrees of murder, first degree and second degree). The judgment does not adjudicate Naovarath to be guilty of first degree murder and states only that the "Court did adjudge Defendant guilty" apparently referring to the "plea of guilty to the crime of murder between December 31, 1986 and January 7, 1987, committed in violation of NRS 200.010, 200.030."
Unpublished draft opinion, Box 171, Harold Hitz Burton Papers, Library of Congress, quoted in D. Danelski, "The Riddle of Frank Murphy's Personality and Jurisprudence," 13 Law & Social Inquiry 196 (1988).
As far back as 1979, for example, children fourteen and under "committed a total of 206 homicides nationwide, more than 1,000 forcible rapes, 10,000 robberies and 10,000 aggravated assaults." Thompson, above, dissent of Scalia, J., 108 S.Ct. at 2715 (citing Hearings on S. 829 before the Subcommittee on the Criminal Law of the Senate Committee on the Judiciary, 98th Cong., 1st Sess., 551 (1983)).
We relate this decision to the eighth amendment of the Constitution of the United States and article 1, section 6 of the Constitution of the State of Nevada, both of which proscribe cruel and unusual punishment.