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September 26, 2010

Effective review of how Florida is dealing with the aftermath of SCOTUS Graham ruling

Today's Miami Herald has this effective and interesting piece discussing how the state is trying to deal with the Supreme Court's Eighth Amendment ruling in Graham concerning juve LWOP sentence for nonhomicide crimes.  The article is headlined "Ruling on young, violent lifers puts Florida justice on the spot," and here are excerpts:

Kyan Bucknor was 15 in 1999 when he shot two patrons and unleashed a volley of bullets into Broward Sheriff's Office deputy Al Hibbert outside a Lauderdale Lakes nightclub. The teen's sentence: life in prison.

But Bucknor, now 26, will get a reprieve thanks to a May U.S. Supreme Court decision banning life-without-parole sentences for juveniles who did not kill anyone.  The ruling left Florida in a quandary: For undeniably violent crimes, what is an appropriate alternative sentence in a state that has no parole system?

Bucknor is one of 23 South Florida men -- among 100-plus statewide, the most in the nation -- who must now be resentenced under the Graham v. Florida ruling.  So far, none have received new prison terms as the judicial system, case by case, county by county, struggles to comply....

Two possible fixes have emerged, from prosecutors and a lawmaker, both requiring mandatory lengthy prison terms followed by the possibility of parole.  A statewide prosecutors association has petitioned Florida's Executive Clemency Board to step in and commute the men's sentences to life with the possibility of parole after 20 years -- a move opposed by Gov. Charlie Crist.

Separately, a Jacksonville state lawmaker says he will introduce a bill next year to create a parole system for violent juvenile offenders, with eligibility after 25 years in prison. In keeping with the Supreme Court ruling, both solutions guarantee only the possibility of parole -- not that the inmates would actually get out early.

That's a key point to House Rep. Mike Weinstein, R-Jacksonville, because he wants to keep the offenders behind bars as long as possible. "They try to kill five people, and we can't seek a life sentence. They rape girls -- and they can't be given life," Weinstein said. "But we want to be able to give them a life sentence, and in my mind, they deserve a life sentence."...

In most states, the Graham ruling means simply amending a life sentence to include the possibility of parole. But Florida is in a particular bind because lawmakers abolished parole in 1983 after too many inmates released early were committing high-profile crimes. The state's Parole Commission now reviews only cases that pre-date 1983.

Statewide, there are more than 100 defendants who must be resentenced under the ruling, according to Barry University's Juvenile Justice Center, which tracks the Graham cases.  That means, for now, the onus falls on trial judges to resentence individual defendants. Judges who impose new but long terms would be violating the spirit of the Graham decision and simply spark more appeals, defense lawyers warn....

 Bill Cervone, president of the Florida Prosecuting Attorneys Association, worries that judges will impose wildly disparate sentences. "We're going to end up with a mish-mash of results all over the state," said Cervone, the Gainesville-based state attorney.

In an effort to streamline the process, last month the prosecutors group filed the petition with the governor's office, asking the clemency board to commute all Graham cases to sentences of life with the possibility of parole.  Then, the parole commission would review each case after the inmate has served 20 years in prison....

Any solution -- whether new legislation, or clemency -- will likely come after the November elections, when politicians will be more willing to tackle the hot-button issue.  Crist, in the midst of a hard-fought race for the U.S. Senate, said in a statement that he opposes the prosecutors' proposal....

Prosecutor Cervone believes the state attorneys' proposal, by eliminating the need for resentencing hearings, would be a kinder solution for victims who have struggled to cope with their experiences.

September 26, 2010 at 03:51 PM | Permalink


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Florida should just ignore Graham, or if the DOJ complains, just humor them, but do nothing, or resentence these ultra-violent predators to 150 years. Best of all, it should ask its representatives to bring articles of impeachment against those voting in favor of Graham. As the Supreme Court is viciously seeking to loose these ultraviolent predators on the public of Florida, so Florida has every justification to get rid of them by impeachment. The charge should be direct, and not for any collateral corruption. It should be that judicial review violates Article I Section 1.

Posted by: Supremacy Claus | Sep 26, 2010 4:04:22 PM

The idea that only juvenile murderers can get LWOP, but not those minors who attempt to kill is an arbitrary and unprincipled distinction. What about those minors who try to kill, with the intent to do so, perhaps with premeditation, but fail? What about those minors who hit their mark, but modern medical technology saves the now paralyzed or brain damaged victim? If we are talking about a distinction based on the actor and the conduct, isn't what they wanted to accomplish more relevant than whether they were lucky enough to acheive their objective? What about accidental killings that carry LWOP due to the felony murder rule. Are those more egregious (in order to say LWOP is constitutional), or say more about the minor's chances of rehabiltation than a 17 year who plans the murder of another person, but is caught ahead of time or misses, or due to modern medical technology does not kill.

The Supremes overreached here. They should have found at most Graham's sentence to be unconstutional as applied rather than such an arbitrary distinction.

Posted by: David | Sep 26, 2010 5:01:16 PM

I thought the same thing. What if one of Bucknor's three victims had died? What if the paramedics had been a little slower in getting there? He'll benefit because of the actions of others, not something he did or didn't.

This is far from over anyways. Inevitably the inmates will claim their new sentences, 20 or 30 years, are unconstitutional.

My sympathy goes out to the victim's of these criminals. They were kidnapped, raped, assaulted or shot and believed these guys would be locked away forever. Now they have years of parole hearings to look forward to.

Posted by: MikeinCT | Sep 26, 2010 5:19:18 PM

MikeinCT, why not fight for a Dexter Amendment to the United States Constitution to repeal the cruel and unusual clause?

Posted by: George | Sep 26, 2010 5:40:17 PM

If they did, I know what job I want. :)

Posted by: MikeinCT | Sep 26, 2010 7:14:48 PM

A truly lawless decision.

Posted by: federalist | Sep 26, 2010 8:19:01 PM

David and Mike, do you think it "arbitrary and unprincipled" that only adult murderers can get the death penalty, but not those who attempt to kill? Just curious.

Posted by: Doug B. | Sep 26, 2010 8:20:39 PM

Professor Berman,

Arguably I should not have said the distinction was arbitrary, but it was unprincipled. Now to your excellent question.

I do have serious reservations with the idea that failed, but genuine, efforts in an otherwise death elgible murder would take the death penalty off the table under a cruel and usual analysis. For example, if the Columbine massacre perpetrators had failed to kill anyone, but shot with the intent to kill the same victims, death in my view is hardly cruel and unsual when compared to the application of the felony murder rule to an accidental death during a robbery or a burglary.

My main complaint with the Supremes here is that their distinction is based in part on the potential for reformation of juveniles and that lack of brain development makes LWOP for non-murder unconstitutional, but for killers it is not. We can easily think, or even find, scenarios where lesser mental state juvenile killers are getting LWOP, but their attempted murder counterparts with a greater mental state cannot. This is unprincipled in my view and the results might very well be arbitrary. The results will lead defense counsel to raise the very questions I have and argue that the stiffer penatly their client faces is arbitrary, therefore cruel and unsual, and therefore unconstitutional. Not because it is, but because the Supremes made it that way.

Even the Supreme Court in Graham recognized "when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability," yet they categorically made unconstitutional a penalty for those who do intend to kill but fail. Is that principled?

Posted by: David | Sep 26, 2010 9:28:10 PM

As correctly stated, much of the reduction of the murder number is from advances in trauma care.

However, as an owner of the law, its failure to protect the public, especially minority victims, is abject, and totally unacceptable. The sole validation of this garbage law subject is at the point of a gun.

I would like to see the families of murder victims bring street justice to the biased, pro-criminal lawyer, the judge, and the legislator. Just beat their asses, because they are so thick headed and made so stupid by the rent,, and by their law school indoctrination. There is only a 10% risk of prosecution. If prosecuted, there is only a 10% chance of being charged with the full crime, beating the asses of these self-dealing, horrible people, criminal collaborators and running dogs. If prosecuted, they should go for the jury trial. They may get a standing ovation from the jury.

Posted by: Supremacy Claus | Sep 26, 2010 9:54:54 PM

@Doug B
In some cases, I would support the death penalty for attempted murder. If I shoot a man during a robbery, but the ER docs narrowly manage to save him I can at best serve LWOP and likely far less. Had the doctors gotten to the patient too late or failed in some other way to save him, I could face death and am more likely to get LWOP. This logic leaves the severity of punishment up to, in some part, the actions of others. It's the same reason I have a problem with a lot of Law of Parties/Felony Murder laws.

Posted by: MikeinCT | Sep 27, 2010 1:05:25 AM

As Doug pointed out, attempt has been sentenced less than a completed act for as long as I can remember, regardless of the offense. Please refer to every criminal code in the country.

In response to Dave, the rationale behind Roper and Graham is the same. Both cases stand for the proposition that juveniles are immature and not fully developed either physically or mentally and are thus less culpable (as a group) for their crimes. The distinction is in the maximum penalty. Since the maximum penalty for a non-homicide offense is LWOP, the SCOTUS bumped it down a grade in response to the age of the offender. The maximum penalty for murder is death, similarly bumped down a grade. You may disagree with the premise, but the result is internally consistent.

Posted by: Ala JD | Sep 27, 2010 12:13:59 PM

To Ala JD: It is only internally consistent if it is constiutionally compelled to have a lesser punishment for attempts than for the completed crime. How the State chooses to punish them is only marginally relevant in the Constitutional inquiry. In my view it is not internally consistent a Constitutional (8th Amendment) sense when you compare juvenile murderers who can get LWOP with a lesser mental state than juvenile attempted murderers with a greater mental state. In fact, it seems to be internally inconsistent, because those lesser mental state killers with never get parole, but those with the greater mental state MUST have that opportunity. If we believe in the rationale for the decisions in Roper and Graham as you outline them, then LWOP either should not be allowed for any juvenile or Graham should have been an as applied successful challenge, not a categorical exclusion of LWOP for all non-homicides.

Also, as a prosecutor in California I can tell you that not all attempts are punished less than the completed crime.

Posted by: David | Sep 27, 2010 3:44:14 PM

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