The Florida Bar
www.floridabar.org
The Florida Bar News
click to print this page  click to e-mail the address for this page 
April 30, 2013
Bills rework sentencing procedures for juveniles

By Gary Blankenship
Senior Editor

Florida would get new procedures for sentencing juveniles convicted of murder and other serious crimes under proposed House and Senate bills, but critics said the measures failed to provide a review for young offenders after they have grown up.

Sen. Ron Bradley SB 1350, sponsored by Sen. Ron Bradley, R-Orange Park, passed the Senate Criminal Justice Committee on April 8. HB 7137, sponsored by Rep. Ray Pilon, R-Sarasota, passed the House Justice Appropriations Sub-committee the next day, after earlier clearing the Criminal Justice Sub-committee.

The bills address two recent U.S. Supreme Court rulings that called into question life sentences without parole that are given to juveniles tried as adults.

In 2010, the court, in Graham v. Florida, held that juveniles could not receive life sentences without the possibility of parole for non-homicide offenses. Then, last summer, the court in Miller v. Alabama ruled that juveniles convicted of murder could not automatically be sentenced to life without parole.

“They’ve said that our method of punishing juvenile offenders is unconstitutional. Therefore, we have an obligation to modify our juvenile statutes so they are consistent with the dictates of Graham and Miller,” Bradley said. “What this bill does is conform our criminal statutes to the dictates of Miller and to the dictates of Graham.

He said the bill requires that the judge in each type of case conduct a hearing after conviction and before sentencing to consider a variety of factors based on Miller and Graham. After that hearing, the judge could impose a non-life sentence in a capital murder case, but in no instance could the sentence be less than 50 years. In non-homicide cases and life felony cases, including felony murder, the judge could impose a sentence of up to 50 years.

Pilon’s bill had similar language.

Neither bill provides for any review of that sentence after a period of years to consider how the juvenile might have changed when he or she finished maturing.

“I think that the state of Florida very wisely a long time ago did away with parole. One of the reasons that policy decision was made, and I think that reason holds true today, is it’s unimaginable to lose a family member to a violent criminal act,” Bradley said.

“I consider it continued victimization to a family who has lost a loved one, or has been impacted by criminal activity, to continue to come back for hearings or to continue to relive the crime.”

In the House Committee, Rep. Darryl Rouson, D-St. Petersburg, asked Pilon why review had not been added to his bill.

“We have made progress on that,” Pilon replied. “I have spoken with the public defenders and the prosecutors. We’re still not in complete agreement, nor are they in complete agreement with the Senate version. But my commitment is to do my best to let all parties have their say and make the commitment that if an amendment is appropriate to offer it.”

He later indicated he might be more inclined to consider such a review for younger defendants than for those who were approaching adulthood when they committed their crimes.

Bradley noted that in Miller, the court did not rule that life sentences were unconstitutional in murder cases with juvenile defendants, only that a mandatory life sentence was unconstitutional.

“What this bill does is put it in the hands of the judge after considering factors and having a sentencing hearing . . . the judge decides [if the defendant] deserves life or deserves something less, but under no circumstance would the sentence be less than 50 years for a homicide,” Bradley said.

Opponents questioned the length of the sentences under the bill and also the lack of any review after the defendants had served part of their sentences. They noted that bills considered last year provided for a sentence review after seven or 25 years.

Second Circuit Public Defender Nancy Daniels, representing the Florida Public Defender Association, told the Senate panel that the Supreme Court’s rulings recognized that juveniles are not adults and that their brains are still developing. A review after a period of years would allow a fresh evaluation on whether they still posed a danger.

Robert Trammell, representing the defenders at the House committee, said the Supreme Court rulings require a “review” which implies a fresh look after a period of time. “We don’t think the present version complies with the mandate of Graham or Miller,” he said.

Rouson agreed: “I do believe we need something in place to deal with juveniles who commit serious crimes . . . but there ought to be some court review and some opportunity to determine if there has been rehabilitation.”

Pilon pledged to continue talking with all sides, but said the Legislature had to act:

“I do not wish to be back in court because we failed to pass legislation that does not meet those court standards. To this point, we are fairly confident that they do, but there are other considerations.” According to the staff analysis for the Senate bill, there are 43 inmates who have received life sentences for non-homicide crimes; 222 who have received life sentences for capital murder; and 39 who received life sentences for second degree murder who also could have received lesser sentences.

Daniels told the Senate Committee that the Graham ruling is retroactive to those older cases. Two district courts of appeal have held that the Miller ruling is not retroactive, but that issue is still being litigated, she said.

HB 7137 passed 8-5, after earlier clearing the Criminal Justice Subcommittee 10-3 and next went to the Judiciary Committee. SB 1350 passed 4-2. It next went to the Criminal and Civil Justice Appropriations Subcommittee, which is chaired by Bradley, and then the full Appropriations Committee.

At the subcommittee, Sen. Arthenia Joyner, D-Tampa, introduced an amendment that would require a sentence review in the original trial court of jurisdiction after 15 years for juveniles in Graham cases and after 25 years for those in Miller cases. She withdrew the amendment after several other subcommittee members expressed opposition, and the bill passed 8-5.

“I have full faith in the judges who hear these matters,” Joyner said of her proposal to have the sentences reviewed. “Young people do stupid things, and their brains haven’t matured to the level of ours. That’s no excuse for killing someone, but 25 years is the proper amount of time for the court to reconsider [the sentence].”

Bradley called it a variation of parole.

“This is an entirely different approach than is contemplated in my bill. You have choices here,” he said. “Sen. Joyner’s approach calls for a situation that I do not feel is consistent with how we approach criminal justice matters in this state now. It contemplates a return to parole for a certain class of people. . . . I don’t think it’s fair to the victims of these crimes.”

At the House Judiciary Committee on April 16, Pilon successfully offered a strike-all amendment to conform the bill to Bradley’s in the Senate, and the committee substitute passed 13-3.

Rep. Kionne McGhee, D-Miami, offered an amendment to reduce the 50 years to 30 years in capital cases and 25 years for non-capital cases.

In keeping with Graham’s intent, he argued, the sentence should not exceed the life expectancy of a defendant. Citing Department of Corrections information that the average defendant enters prison at age 30 and lives to be 54 to 59, a youthful offender entering prison at age 17 receiving 50 years would exceed the life expectancy.

McGhee’s amendment failed 5-12.

[Revised: 04-25-2014]