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August 9, 2012

Graham crackers?: Florida judge "reduces" juve LWOP sentence to 100 years

The bad play on words in the title of this post is prompted by this fascinating local article from Florida headlined "Hillsborough judge gives 'juvenile' offender 100-year-sentence." Here are the details:

For a day of terror 24 years ago that started with near-murder and ended with rape, Jere Walker will not leave prison at least until he is an old man — even though the five life sentences he got when he was 17 have been ruled unconstitutional by the U.S. Supreme Court.

Walker, now 41, came before Hillsborough Circuit Judge Debra Behnke on Wednesday, asking her to let him put behind him the crimes he committed as a youth that he now realizes were "life-shattering" and "soul-crushing."  His victims included a former state attorney who went on to become an appellate judge, his wife and their widowed friend, and a Texas tourist who said rape ruined her life.

Behnke took only minutes to resentence. She said Walker's crimes occurred in the same year she became a judge — 1988.  Since then, she said, "I've seen thousands of cases, very few with facts like this. That's the only speech I have." She then gave Walker 100 years....

Because of a 2010 Supreme Court ruling that said juveniles who don't commit murder can't be given life sentences with no hope of parole, Walker had a chance of a new sentence and possible release.  His attorney argued that Walker already has served the equivalent of a 47-year sentence, factoring in gain time.  The attorney asked the judge to sentence Walker to two years of community control and allow him to live with his family. They would provide work for him at a pressure-cleaning business.

The prosecutor sought an 80-year sentence that he said would keep Walker in prison until at least his early 60s. Behnke's sentences Wednesday went beyond what the prosecutor sought.  She gave Walker two consecutive 30-year sentences for robbery and attempted first-degree murder.  She added to those a 40-year sentence for two counts of sexual battery.  They added up to 100 years.

To determine a release date, the state Department of Corrections now has to calculate how much gain time Walker has earned.  At the time of his convictions, the state allowed prisoners to earn up to 20 days per month in gain time, but he had disciplinary problems that could affect that. He also would have to behave for decades to come to earn more gain time.   Assistant State Attorney Douglas Covington said he could only estimate that Walker will remain imprisoned into his elder years.

Whether such long sentencings meet the Supreme Court's guidelines is being debated throughout the country.  "It's an evolving area of the law," said Tampa defense attorney John Fitzgibbons.  "Where is the line drawn between a sentence that conforms to the Supreme Court's holding that there must be a possibility of parole versus a sentence of years so lengthy that the defendant will die in prison?"  He predicted that question will be battled in courts for years to come.

August 9, 2012 at 09:20 AM | Permalink

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Comments

One of the unanswered questions in Miller is whether consecutive sentences that add up to an effective life sentence are unconstitutional. I don't see how they could be--since consecutive sentencing cannot be an issue. But the Court is willing to make stuff up in this arena.

Posted by: federalist | Aug 9, 2012 10:03:57 AM

"since consecutive sentencing cannot be an issue"

explain please.

Posted by: justme | Aug 9, 2012 10:08:00 AM

\\ Walker was 17 when he went on a rampage with three other youths, robbing and stabbing former State Attorney and retired judge E.J. Salcines and
raping a mother in front of her family at a motel. \\

\\--\\ Judge Debra Behnke, on bench since 1988: "I've seen thousands of cases, very few with facts like this." {so evil, so guilty}

\\--\\ You can see Jere Walker enjoying himself in court at this link:
http://www.abcactionnews.com/dpp/news/region_tampa/convicted-rapist-jere-walker-sentenced-to-life-at-17-hopes-for-release-under-juvenile-law

The obviousness of the evil is why rape was formerly a capital offence throughout the civilized world.

Posted by: Adamakis | Aug 9, 2012 10:29:49 AM

-- Walker stuck a pistol in his face and tried to fire, except the gun jammed.

-- He credited Salcines with saving his life by grabbing Walker's hand.

-- Salcines fended off slashes from a box cutter's knife, saying his wedding band saved the tendons in his ring finger. He broke his thumb...

-- stole another woman's purse…...
Robbery
Two counts of sexual battery
Attempted first-degree murder

-- Walker and the others accosted a couple on vacation from Texas, forcing them into their motel room on Busch Boulevard.

-- Walker raped a 31-year-old mother of two while her children were kept in a bathroom and her husband was held at gunpoint.

Posted by: Adamakis | Aug 9, 2012 10:32:30 AM

just me, how can the Constitution possibly be violated by consecutive sentences? If a 30 year sentence is constitutional, then by definition, stacked sentences for different crimes (I could see a possible transactional rule) have to be constitutional. Here, these were completely separate crimes. How does this fall under the Miller juvie rule? Is there a constitutional right to individualized determination of consecutive sentencing????

Posted by: federalist | Aug 9, 2012 11:34:50 AM

Now what would really be funny and might finaly get though the thick empty heads of these judges. Is if the USSC saw this article and issued a BENCH WARRANT for the arrest and confinment on Criminal Contempt Charges for this judge!


Maybe THEN they would learn to follow instructions!

Posted by: rodsmith | Aug 9, 2012 10:07:17 PM

Under Graham the judge still have the option to sentence a juvenile to LWOP based on the facts of the case, right? Graham just held that LWOP can't be automatic.

Posted by: Bryan | Aug 10, 2012 12:51:16 PM

Bryan,

The ruling in Graham was that juvenile offenders cannot be given life sentences for non-homicide offenses. The later ruling in Miller was that even in the case of homicide offenses juvenile offenders can not be subject to a mandatory life sentence, that the sentencing judge must be able to take circumstances into account before imposing an LWOP sentence.

I do, unfortunately, think an honest reading of Graham would preclude the sort of sentence imposed here, that Graham does in fact require that a juvenile offender who does not take part in a killing be given an a real opportunity at release.

Posted by: Soronel Haetir | Aug 10, 2012 2:20:36 PM

BINGO!

and since the judge has IGNORED a court order! He is LEGALLY in CONTEMPT! last time i looked if i walked into a court room and basically told a judge to go to hell! i'd be going out the side door in chains!

Why isn't this two-faced ass!

Posted by: rodsmith | Aug 10, 2012 5:13:10 PM

Rod,

Because SCOTUS doesn't have enough bailiffs to police the entire US for such contempts. Besides which, this particular action will getfixed long before Mr. Walker would suffer a legally cognizable injury, that being held longer than the law would allow.

The law as pronounced by SCOTUS might not allow a life or even 100 year sentence, but I would expect 45 or 50 years to be more than acceptable in these cases and so there is more than ample opportunity remaining for this case to wend its slow way through the courts.

Posted by: Soronel Haetir | Aug 10, 2012 6:02:03 PM

Rod,

I have to disagree with you. Graham contemplated a single sentence. Oregon v. Ice clearly indicates that consecutive v. concurrent sentences is purely judge discretion. You don't look at the aggregate just the individual sentences for the purposes of the constitution. As long as each sentence would conform with Graham they can be run consecutively and the aggregate is of no consequence.

Posted by: Matt | Aug 10, 2012 6:16:25 PM

I should also point out that even in the aggregate the 100 year sentence doesn't necessarilly violate Graham.

Per Florida sentencing rules a person can earn 20days/month in gain time. The judge knows this at the time of sentencing. If the person fails to take advantage of this by misconduct that is on him, not the judge or the sentence so should have no bearing on whether the sentence gives a meaningful chance of release. So we do some quick math

1200(months in sentence)= x(months served) + (2/3)x(months in gain time). This will tell us his minimum sentence which is x. Here x=720 months or 60 years. That puts his minimum release date at age 77. The current life expectancy I believe is about 76 for males. Life expectancy, importantly, is essentially an average so about 50% of people live longer than the life expectancy. So he has about a 50% chance at release. Meaningful is less than probable so there is no question a 50% chance of release is meaningful. And a meaningful chance of release, doesn't mean a chance of release at an age when you can still do x,y, and z.

So there is a really good argument that even in the aggregate this sentence complies with Graham.

Posted by: Matt | Aug 10, 2012 7:00:35 PM

Matt,

Unfortunately I do think a court willing to first say that no juvenile can be executed then say that no juvenile can be subject to mandatory LWOP would be more than happy to say that no juvenile not convicted of a homicide offense can be subject to a sentence that would put that offender at any but the most remote risk of death due to age related complications while still serving that sentence. I do think they will simply not care how criminal a particular juvenile was, spread over how many different acts, that it will simply all be deemed to be irrelevant.

Posted by: Soronel Haetir | Aug 10, 2012 8:57:04 PM

Oregon v. Ice clearly indicates...
the purposes of the constitution....
As long as each sentence would conform with Graham
they can be run consecutively and the aggregate is of no consequence.....

Matt, don't you know that facts matter not with a true liberal?

Posted by: Adamakis | Aug 11, 2012 7:23:13 PM

>>> since the judge has IGNORED a court order! He is LEGALLY in CONTEMPT!
>>> last time i looked if i walked into a court room and basically told a judge to go to hell! i'd be going out the side door in chains!

>>> Why isn't this two-faced ass!

Rodsmith, seriously? Ignored a court order? Hmmnn. The Darwin awards are calling you.

By the way, lest you are not as morally degraded as you are intellectually so, have you ever met a rapist-attempted murderer-burglar?

Constitution as it was written.
Compassion to whom it is due.

Posted by: Adamakis | Aug 11, 2012 7:32:39 PM

sorry matt but florida went to a 95% mandatory minimum DECADES ago. Anything you earn over that 5% is just waste product!

as for the ideal that by stacking you can get around a requirment to give someone a meaniful chance at a life OUTSIDE prison all i can say is

BULLSHIT!

and Adamakis no i have not. since you haven't seen me on the paper with my foot on the deadbody in a photo! Since if i caught someone like that in the act...they would simply be DEAD!

Posted by: rodsmith | Aug 12, 2012 9:40:17 PM

"Rod,

Because SCOTUS doesn't have enough bailiffs to police the entire US for such contempts. Besides which, this particular action will getfixed long before Mr. Walker would suffer a legally cognizable injury, that being held longer than the law would allow."


True but when it's plastered in a NATIONAL if not world wide forum can't tell me they don't know! but that is beside the point!

If the LAW requires I GO TO JAIL if i do the same in this ass holes court! then that SAME law says he ALSO MUST BE JAILED!

Or the law is targeted therefor ILLEGAL!

"The law as pronounced by SCOTUS might not allow a life or even 100 year sentence, but I would expect 45 or 50 years to be more than acceptable in these cases and so there is more than ample opportunity remaining for this case to wend its slow way through the courts."

and if dumb shit had senteced him to 50 years i'd not have said a word

that sentence would give almost anyone under the age of 30 a SHOT at a life out of prison.

Posted by: rodsmith | Aug 12, 2012 9:46:00 PM

I know Jere personally,he always was in good spirits and loves to smile. I wasn't aware of the crimes he had committed in his adolescent years. I was shocked beyond belief. He did have (5) consecutive life sentences that have been overturned.Florida inmates started doing 85% October 1,1995 anyone sentenced prior to that receives 20 days a month with a third off his sentence. His gain time award doesn't changed unless he has disiplinary issues.He didn't have an end of sentence date now he does. My prayers are for the victims and Jere Walker parents they love him so much and didn't raise him that way.

Posted by: Tanya Lopez | May 24, 2014 1:25:52 AM

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