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March 1, 2012
After Graham, courts look to the Legislature for help

By Jan Pudlow
Senior Editor

Because of their “diminished moral responsibility,” it is unconstitutional to sentence juveniles convicted of non-homicides to life in prison without the possibility of parole. That’s what the U.S. Supreme Court ruled in Graham v. Florida in 2010.

With clashing responses, the Legislature is still scrambling for a fix.

Sen. Arthenia Joyner With CS/SB 92, Sen. Arthenia Joyner, D-Tampa, is trying to revive the “Second Chance for Children Act” championed for years by Paolo Annino, professor at the Florida State University College of Law Public Interest Law Center. At its heart is the recognition that children are different and can be rehabilitated. It removes the current 25-year minimum mandatory on life sentences and allows the juvenile, once he or she reaches the age of 25, to file a motion to reduce the original sentence, to be heard by a circuit judge. (An identical companion HB 635 has been filed by Rep. Cynthia Stafford, D-Miami, but has not been heard in committee.)

Rep. Mike Weinstein In sharp contrast, Rep. Mike Weinstein, R-Jacksonville, a prosecutor, has the backing of other prosecutors and law enforcement groups with CS/HB 5, because it requires that the juvenile sentenced as an adult must serve 25 years before being considered for resentencing. A successful strike-all amendment takes resentencing duties away from the Parole Commission and gives it to circuit judges. (CS/SB 212, by Sen. Steve Oelrich, R-Gainesville, unanimously passed in the Senate Criminal Justice Committee on February 9.)

Each divergent approach argues it addresses the spirit of Graham. To quote the U.S. Supreme Court: “What the state must do . . . is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

Since that landmark ruling, Florida’s courts have been struggling with how to proceed, as evidenced by two December 30, 2011, opinions out of the First District Court of Appeal:

• In a dissent in Shimeek Gridine v. State of Florida, Judge James Wolf said: “The Legislature, not the judiciary, is empowered to create a provision for parole. Absent the option of parole, I am at a loss on how to apply the Graham decision to a lengthy term of years. Is a 60-year sentence lawful, but a 70-year sentence not?. . . . [A]bsent a legislative solution, I look for guidance from either the United States or Florida Supreme Courts.”

• In a per curiam decision in Daryl D. Thomas v. State of Florida addressing concurrent 50-year sentences for a juvenile prosecuted as an adult, the court said: “We acknowledge that there is little guidance on how trial courts should proceed with claims such as appellants’s, because the United States Supreme Court has yet to address the issue of whether and at what point a term-of-life sentence would violate the Eighth Amendment. . . . This court lacks the authority to craft a solution to this problem. We encourage the Legislature to consider modifying Florida’s current sentencing scheme to include a mechanism for review of juvenile offenders sentenced as adults as discussed in Graham.”

No Chance for Second Chance for Children Act?

Recognizing she did not have the votes at the Senate Judiciary Committee January 24, Sen. Joyner temporarily postponed her bill.

Then Chair Mike Fasano, R-New Port Richey, responded: “This bill will not come back up again, just so you know.”

Beforehand, there was spirited debate on the bill that would allow a youthful offender sentenced to 10 or more years, upon reaching the age of 25, to file a motion to reduce the original sentence if certain criteria are met, such as completing the general education program (GED) and being free of any disciplinary reports in prison for at least three years before filing the petition.

Professor Annino again brought up the case of Kenneth Young, the poster child for the Second Chance for Children Act, to illustrate that “80 percent of all juvenile crime is done in groups,” that the minor is often led into crime by an adult, yet both the juvenile and adult receive the same sentence.

Young was 14 when he was solicited by a 24-year-old — who had the gun and the car — to participate in a series of robberies, where no one was injured. Yet, Young received four consecutive life sentences, with the judge later admitting he did not realize a life sentence truly meant life in prison with no chance for parole.

“What this bill does is recognizes the fact that juveniles are different than adults and deserve a second look at the time of maturity,” Annino said.

But Eighth Circuit State Attorney Bill Cervone, representing the Florida Prosecuting Attorneys Association, said: “While it is tempting to think we are dealing with tow-headed little Dennis-the-Menace types, we are not. This bill would give disparate consideration to an idealized view that these are juvenile delinquents who simply have been misguided or need direction, and that is not at all the case.

“These are, for the most part, going to be people who have committed rape, who have committed violent robbery, who have tried their best to kill, and by sheer luck were not able to kill, and were convicted only of attempted murder.”

Sen. Mike Bennett, R-Bradenton, who voted favorably for the bill the first go-around on November 3, said to Cervone: “As a prosecutor, I know you work with a lot of judges. Let’s talk about those kids in Ft. Lauderdale who did those horrible things to that mother and her daughter. Have you ever met any judge ever in your career who would release those kids after five years or seven years?”

And Cervone responded: “I think the answer to that is ‘yes.’ I have several judges that I would be concerned would do so, yes.”

Bennett bounced back: “I just want to clarify: The judges make mistakes, but the prosecutors don’t? Is that what you’re saying?”

Cervone answered: “I did not say that, Senator. I said we have serious considerations to what we are dealing with, in that victims and society as a whole deserve more protection from these kinds of crimes, once they reach the point of being sentenced.”

Second Circuit Public Defender Nancy Daniels, speaking for the Florida Public Defender Association, supported the bill and said it boils down to whether you believe in rehabilitation.

“My experience is judges are not highly motivated to let violent offenders out of prison unless there is demonstrable evidence of some rehabilitation and mitigation,” Daniels said.

“The reason for this to begin with is children’s brains are not as well-developed as adults. I have a 14-year-old. I can tell you, and I’m sure everybody in the room who has teenagers can tell you, they are not all the way there yet cognitively. And yet, the criminal law makes no differentiation between an act they would commit and an act someone over 18 would commit. That is why Graham was decided. And right now in Florida law, there’s a limbo. What are circuit judges supposed to do? They have already had several re-sentencings, but there’s no guidance. This bill creates a very narrow path for some — some more deserving offenders to get a review.”

Keeping Life Sentences for Juveniles Constitutional

It was a close 6-to-5 vote in the House Criminal Justice Subcommittee when Rep. Weinstein introduced CS/HB 5 January 31.

The thrust of his bill was keeping life sentences for juveniles constitutional, in light of the Graham decision.

“Basically, the individual has to have been in prison for 25 years and has to illustrate many criteria that represent rehabilitation and reform,” Weinstein said.

“After 25 years, if they do the things that are necessary, they will be reviewed by the original court of jurisdiction . . . . where a judge will have the opportunity to keep the sentence as a life sentence. And, even so, the individual would have to come back seven years after that for another rehearing — or, let the individual go. Then they are under five years probation as a minimum.

“There is protection to the community. It’s basically an ability for the prosecutors in the state to still seek a life sentence. If somebody is 17 years old and leaves 10 people to die after raping or robbing or what have you, and none of them die, then he or she can’t be sentenced to a life sentence, even though they deserve a life sentence.”

Rep. James Grant, R-Tampa, proposed and then withdrew an amendment to change the 25 years to 10 years of time served before seeking resentencing, after Weinstein called it a “very unfriendly amendment” that would cause him to lose support of law enforcement.

“While I tend to agree with you, in order for a juvenile to have a life sentence, they have to have crossed some significant lines with respect to public safety and with respect to other persons’ privacy and humanity,” Grant told Weinstein. “But that’s not to say we should take absolute discretion away from a sentencing judge who is sitting there looking at the situation and the facts.

“I hope that as we move forward we can have a conversation. But, at this time, I will be withdrawing the amendment, in hopes that Rep. Weinstein and I can work together to ensure we can meet the purpose that he’s intending, but also resolve some of the concerns that we are taking absolute discretion away from those who are actually looking the defendant in the eye.”

[Revised: 01-01-2017]