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February 1, 2014
Bill addresses issues involving sentencing juveniles as adults

By Jan Pudlow
Senior Editor

Florida’s laws for sentencing juveniles as adults for serious crimes don’t hold up in court, and the Legislature is trying to fix that problem.

Florida law is still at odds with the 2010 landmark U.S. Supreme Court ruling in Graham v. Florida that held life in prison without parole is unconstitutional for juveniles who did not kill anyone, and there should be a meaningful opportunity for review whether they’ve been rehabilitated and deserve earlier release.

Florida law also clashes with Miller v. Alabama, a 2012 Supreme Court case that expanded Graham, holding juveniles convicted of murder cannot be sentenced to life in prison without the possibility of parole.

Sen. Rob Bradley, R-Orange Park So, Sen. Rob Bradley, R-Orange Park, has once again offered a bill to conform Florida’s sentencing laws to the Eighth Amendment dictates of those decisions.

SB 384 passed the Senate Criminal Justice Committee on January 8 on a 4-1 vote.

“It’s obvious the [Florida Supreme] Court has signaled that they would like the Legislature to take up and deal with this issue,” said Bradley, an attorney.

“I think we have an obligation, a duty, and responsibility to provide clear guidance to our judges, our prosecutors, and our defense counsel on this issue. I understand it’s complicated, it’s a difficult issue.

“And I will tell you that I heard the concerns raised by my fellow senators last year, and moved this bill in the direction to try to meet some of those concerns.”

Last year, Bradley’s harsher version of the bill died on the floor. It said “Miller defendants” receiving a mandatory life sentence would allow the judge to consider 10 factors and then impose a sentence between 50 years and life.

This year’s bill makes the sentencing range 35 years to life.

For “Graham defendants” serving life sentences for non-homicide crimes, this year’s bill does provide for a hearing after 25 years for the judge to consider rehabilitation and other factors, such as the circumstances of the crime.

Sen. Audrey Gibson, D-Jacksonville, a paralegal who cast the lone “no” vote, asked about the rationale of making the law retroactive for Graham defendants, but not for Miller defendants.

Bradley responded: “Two reasons, I would suggest. One would be that in the U.S. Supreme Court decisions, Graham requires retroactivity and Miller does not. The second would be that under our criminal laws, murder is more serious than any other crime.

“So we treat murderers differently than we treat other people. So, yes, the bill contemplates Miller defendants being treated more harshly than Graham defendants.”

But David Utter, policy director of the Southern Poverty Law Center in Miami, testified that the bill has “serious problems because it doesn’t adhere to Miller and Graham.

“The primary problem really goes to the Supreme Court’s decision of how kids are different. No matter the seriousness of the offense, the Supreme Court was clear in both of those decisions that kids are different. . . . These kids can’t be thrown in prison for their whole life for what they did when they were 15,” Utter said.

“The main problem with this bill is the review occurs in much too long a fashion and there aren’t enough reviews. My understanding of the bill is that the Miller kids — those who are in for homicide — don’t get any review, if a judge decides that life is appropriate . . . .

“So rather than fixing things, this bill is going to open up a whole can of worms, in terms of future litigation.”

Second Circuit Public Defender Nancy Daniels, representing the Florida Public Defender Association, said she appreciated the changes Bradley made to his bill, compared to last year’s version, but it needs to be changed even more.

She said the retroactivity issue for Miller defendants is still in the air, and her office is handling oral arguments at the Florida Supreme Court on March 6.

“We’re waiting to see what the courts are going to do,” she said.

Regarding the non-homicide Graham defendants, Daniels said she liked that there is an opportunity for review, but the wait for review is too long.

“The brain research is there. Juvenile brains are not well-developed. A kid, 16, can do a robbery with a bad group of people, and under this bill could still get a life sentence and wouldn’t have a chance for review for 25 years. And we think that’s still too much.

“We think the bill has made progress, but needs more progress.”

Eighth Circuit State Attorney Bill Cervone, representing the Florida Prosecuting Attorneys Association, waived in support. There was no debate on the bill before the vote.

According to the Florida Department of Corrections, there are currently in custody 222 juvenile offenders who received a mandatory life sentence for murder (Miller inmates); 43 who received life sentences for non-homicide offenses (Graham inmates); and 39 who received life sentences for second degree murder, but could have been sentenced to a lesser term in prison.

[Revised: 10-13-2014]