Naovarath v. State

• Citation: 779 P.2d 944,105 Nev. 525
• Decision Date: 07 September 1989
• Docket Number: No. 18872,18872
• Parties: Khamsone Kham NAOVARATH, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 944

779 P.2d 944

105 Nev. 525

Khamsone Kham NAOVARATH, Appellant, v. The STATE of Nevada, Respondent.

No. 18872.

Supreme Court of Nevada.

Sept. 7, 1989.

Morgan D. Harris, Public Defender, Robert H. Thompson Deputy Public Defender, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty., Robert Teuton, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

By the Court, SPRINGER, Justice:

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. ¹ 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. 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, and the testing that he is amoral, prone to aberrant behavior, and a danger to society. His acts speak for themselves." ³ The sentencing 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, 101 L.Ed.2d 702 (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, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140 (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, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976). We do not question...