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July 16, 2013

When are very long juvenile sentences really LWOP sentences under the Eighth Amendment?

The question in the title of this post, which has been lurking in lower courts for years since the Supreme Court's landmark Graham ruling in 2010, is now before the Florida Supreme Court in a set of cases.  This recent South Florida Sun Sentinel article, headlined "Lengthy prison sentences for juveniles under scrutiny," discusses the issue effectively. (Hat tip: How Appealing.)  Here are excerpts:

The 2007 gang rape of a mother and torture of her son by as many as 10 masked assailants at a West Palm Beach public housing complex resulted in four convictions two years later.  But the horrific Dunbar Village case still continues through the Florida court system, as justices reconsider the rules on the sentencing of juveniles for serious crimes.

Jakaris Taylor, initially given a life term, and later 60 years in prison, for the attack committed when he was 15, now has a chance of winning his freedom well before a target release at age 66 through gain time.  The 4th District Court of Appeal, while affirming Taylor's conviction and sentence, this month asked the Florida Supreme Court to decide the constitutionality of such lengthy sentences for teenage defendants on non-murder raps.

But it turns out the state's highest court already plans to explore similar issues in the case of a Jacksonville man sentenced to 70 years for committing attempted murder when he was 14.  The Supreme Court has scheduled Sept. 17 oral arguments in the case of Shimeeka Daquiel Gridine v. Florida.

The outcome ultimately could shorten the prison terms for numerous young felons from across the state, including Taylor, said Gerard F. Glynn, who formerly led Barry University's Juvenile Justice Center. "The U.S. Supreme Court made it clear that sentencing of children is different, and long sentences that are equivalent to life require constitutional scrutiny," said Glynn, an Orlando-based attorney who has long advocated for juvenile sentence reforms.  "At some point, a multiple-year sentence is a life sentence."...

The Graham ruling led to reduced sentences for dozens of Florida inmates convicted of violent crimes, including rape, kidnapping and armed robbery.   But the U.S. Supreme Court did not specify an appropriate length of time for such sentences, apparently prompting the state appellate court questions in the Gridine and Taylor cases, among others.

In 2011, a Palm Beach County Circuit Court judge reduced life terms to 60-year terms for Nathan Walker Jr. and Taylor, who were 16 and 15 when they participated in the brutal Dunbar attack of the 35-year-old woman and her 12-year-old son.  A jury had convicted them of multiple charges, including kidnapping and sexual battery.

Walker's appeal is pending.  But in its Taylor opinion, the 4th District Court of Appeal questioned whether the Graham ruling applies "to lengthy term-of-years sentences that amount to de facto life sentences."

"If so, at what point does a term-of-years sentence become a de facto life sentence?" the appellate court asked.

Bernard Fernandez, the attorney who fought Taylor's appeal, says the 60-year sentence for his client is unconstitutional under Graham because it has all the force of a life sentence. Parole is not available in Florida's criminal justice system.  "Isn't it tantamount to a life spent in prison?" Fernandez asked.

Moreover, Fernandez argues that Taylor, who is now 21, "cannot be expected to survive until his possible release at age 66, much less age 75."  In an appellate court brief, Fernandez cited a 2010 report from the Centers for Disease Control concerning life expectancy for black males.  The report found that in 2006, then 14-year-olds like Taylor would live only another 50 years.  This clearly violates the Supreme Court's intention for juvenile defendants to gain release from prison based on "demonstrated maturity and rehabilitation," Fernandez argued.

But Assistant Attorney General Celia A. Terenzio, in a response, wrote Taylor's 60-year sentence didn't violate the Supreme Court decision simply because it's not a life term. The state also contends Taylor would be released "well before his life expectancy age of 71 years."

State prosecutors, in asking for the sentence to be upheld, also argued Taylor was a willing perpetrator who stuck around during the entire nearly three-hour attack.  "Whatever mitigating factors must be considered regarding the shortcomings of adolescence and how those should impact a juvenile's culpability, the facts of this case do not support any finding that such mitigation was at play in Appellant's participation in these thirteen horrific and sadistic crimes," Terenzio wrote.

July 16, 2013 at 08:52 AM | Permalink


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Michigan has long held that it is okay to make people serve prison sentences into their late 80's and early 90's before becoming eligible for parole, as they have a "reasonable" possibility of meeting with the parole board at sometime in their lives, even though those ages are beyond their normal life expectancy, and being imprisoned lowers life expectancy. The cases took into consideration time off for good behavior, no longer available in Michigan. People v. Rushlow, 437 Mich. 149, 468 N.W.2d 467 (1991)(26-year-old defendant, 75-150 year sentence, parolable at age 87 with time off for good behavior), People v. Weaver, 192 Mich. App. 231, 480 N.W.2d 607 (1991) (same, early 90's), People v. LeMarbe, 201 Mich. App. 45, 505 N.W.2d 879 (1993) (54-year-old defendant, 40-80 year sentence, time off for good behavior possible)

Posted by: Greg Jones | Jul 16, 2013 10:21:49 AM

Whenever/whereat a "living constitutionalist" says it is.

"So a living Constitution becomes not the Constitution at all; in fact it is not even law any more. It is just some gauzy ideas
that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us ...

[A]n unchanging Constitution [should thus be] ignored ... a hindrance, a relic that keeps us from making progress
and prevents our society from working in the way it should."
--David A. Strauss, 2010, U. of Chicago The Record Online.

Posted by: Adamakis | Jul 16, 2013 10:34:11 AM

That question is the one giving state legislators difficulties in dealing with Miller. Miller (and Graham) require a reasonable opportunity for eventual release, but do not define how long a period of parole ineligibility makes the opportunity unreasonable.

Whether a good reason or not, most legislators felt that for the offenses covered by LWOPs, that there was a good reason why those convicted of these offenses should serve long sentences. In devising Graham and Miller fixes, they still want as long a sentence as allowed by law. The problem is that in considering alternatives, nobody knows what is legally too long.

Posted by: tmm | Jul 16, 2013 10:36:58 AM

Graham and Miller pose some hard questions re. implementation, but this isn't one of them. Graham requires a "realistic" or "meaningful" opportunity for release. At the very least, if a sentence is such that the first opportunity for parole will occur after a defendant's actuarial life expectancy, that is not "realistic" or "meaningful."

Posted by: HGD | Jul 16, 2013 11:08:42 AM

HGD. So 60 years before parole eligible is too long, what about 50? 40? 30? 20? The Supreme Court put no content into the term "meaningful" and "realistic" opportunity at parole. If the definition is based on current life expectancies, do we go at the same level of generality (current life expectancy in the US is over 75) or are their different maximim sentences based on race and gender (since different races and genders have different life expectancies)? And is it enough to just have a defendant parole eligible before they reach their life expectancy or do they need a set period of time (e.g. no more than half remaining life expectancy before parole eligible)?
Legislators are having to answer these questions with minimal guidance, and that lack of guidance is contributing to gridlock.

Posted by: tmm | Jul 16, 2013 2:16:31 PM

well tmm. guess it means the judges will finaly have to get off their lazy asses and do some work. You know! individual sentences based on the individual in front of them!

you know ...not give a 50-60 year old a 50 or 60 year sentence!

Posted by: rodsmith | Jul 16, 2013 8:28:07 PM

rod, Miller and Graham only apply to juveniles; so there is no constitutional problem currently with de facto lwops for someone over 50.

And you are evading the questions which is posed to the legislative side. Miller and Graham invalidated certain state statutes. State legislatures are having to re-write the statutes -- de jure mandatory LWOP is out, what legally qualifies as de facto mandatory LWOP. Is imposing a mandatory minimum of thirty years without parole for a 15 year-old who is convicted of cold-blooded murder or forcible rape 50 cruel and unusual punishment for the purposes of the Eighth Amendment?

Posted by: tmm | Jul 17, 2013 9:53:12 AM

Graham and Miller leave some play in the joints for states to experiment with different approaches, but a few principles come through clearly:

- Actuarial life expectancy should be assessed individually, i.e., considering a defendant's race, sex, health, etc. The Ct's 8A jurisprudence has consistently required individualized consideration, as Miller itself does.
- How much of the defendant's life expectancy must remain at the time of his parole hearing is open, but the obvious thrust of Graham and Miller is that assessments of culpability, the need for incapacitation and specific deterrence, etc., made early in life may prove wrong. Accordingly, a parole hearing should occur as soon as such a determination is apparent. Graham and Miller don't require release, just a hearing. Because it is generally open to a parole board to deny release based on the severity of the crime alone, there is no harm in an early hearing.

Posted by: HGD | Jul 17, 2013 1:40:00 PM

I think this is easier than it's being made to appear. Graham and Miller would be satisfied by replacing juvenile LWOP sentences with sentences of 45 years with no parole, and the possibility of parole thereafter. This would mean the possibility of release in the prisoner's early 60's. That is adequate under the Court's precedents.

Posted by: Bill Otis | Jul 17, 2013 2:34:37 PM


"rod, Miller and Graham only apply to juveniles; so there is no constitutional problem currently with de facto lwops for someone over 50. "

so far! any bets that it won't soon be attacked for adults as well?

Posted by: rodsmith | Jul 18, 2013 3:53:50 AM

rod, those of us who work with prosecutions have no doubt that if the death penalty is ever struck down, everybody who is saying that lwop is an adequate alternative will soon start arguing that lwop is also unconstitutional (as well as spending as much time and effort against lwop sentences as they currently do lwop -- thereby showing that the cost saving argument are also false).

Until the death penalty is struck down, I am doubtful that we will see any serious traction on the argument that lwop for adults is unconstitutional. Stretching it to cover adults would undermine the essential reasoning of Miller, Graham, and Roper -- that juveniles are different. That doesn't mean that those who think that the Eighth Amendment is malleable and can be used to toss out long-standing traditional punishments will not try, but doing so would be contrary to current Eighth Amendment jurisprudence.

Posted by: tmm | Jul 18, 2013 9:25:02 AM

tmm --

Please post more often.

Posted by: Bill Otis | Jul 18, 2013 2:32:16 PM

LOL that's true tmm! Of course you do realize that hasn't stopped them on any of the other amendments either!

Posted by: rodsmith | Jul 18, 2013 5:10:49 PM

True, Rod, but my original post was based on the legislative perspective, and the drafting of laws. At the state level, giving advice as a member of the bar on what laws should be adopted, predicting when a court is going to make a dramatic change of its constitutional analysis is a fool's errand that would prevent any law from ever being adopted.

My issue (and I know from the past legislative session in my state that this is one of the problems that left legislators at an impass) is what period of mandatory parole ineligibility is too long under Graham and Miller. The opinions use semantically vague terms to describe what must be available to the normal violent juvenile offender. Putting to the side the policy issue of what would be a good law and assuming that the legislature has decided that it wants the maximum allowable period of mandatory parole ineligibility, what is that maximum allowable period.

I have always seen judicial opinions as part of a dialogue between the branches of government (as well as guidance to problem actors). The current standards in Graham and Miller leave the other branches in a quandry as to what options are still on the table.

Posted by: tmm | Jul 19, 2013 10:30:09 AM

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