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November 17, 2010

Post-Graham resentencing of juve rapist in Florida already testing meaning of Graham

This local article from Florida, which is headlined "Teenage rapist Jose Walle re-sentenced to 65 years in prison," spotlights the impact of, and enduring questions surrounding, the Supreme Court's recent Graham decision declaring unconstitutional any LWOP sentence for a nonhomicide juvenile offender. Here is how the piece starts:

Circuit Judge Chet A. Tharpe disagreed with a U.S. Supreme Court decision forcing him to re-sentence teenage rapist Jose Walle, who was only 13 when he terrorized two Apollo Beach waitresses at gunpoint.  But on Wednesday, he obeyed the high court, which deemed life sentences unconstitutional for juveniles who didn't kill.

Walle hung his head as Tharpe sentenced him to 65 years in prison, which he will begin to serve after completing the 27 years he got in Pinellas for another rape.  Taking into consideration credits prisoners get, he would be about 91 years old when he gets a chance at freedom.

The defense, which had asked for 27 years to run concurrent to the Pinellas sentence, plans to appeal.  The Supreme Court ruling requires a meaningful opportunity for release.

Prosecutors said even a 75-year sentence would have guaranteed that, taking into consideration Walle's life expectancy and the multiple life felonies he committed. Assistant State Attorney Rita Peters argues that the ruling applies to each crime, not the cumulative years of the sentences for multiple crimes.

But Robert Batey, a criminal law professor at Stetson University College of Law, thinks the Supreme Court was most concerned about the total sentence in comparison to the juvenile's age.  He believes the defense can make a good argument that Tharpe's sentence violates the ruling.

An appellate court may have to decide how consecutive sentences weigh into the math.

Tharpe adhered to the spirit of his original sentence, when he said he needed to protect the public from Walle, whom Tharpe was certain would one day kill.  "Jose Walle knew the difference between right and wrong," Tharpe said Wednesday.  "He has forfeited his right to live in a free society."

November 17, 2010 at 10:46 PM | Permalink


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Another sign that Graham was too vague to be applied. I expect it to be appealed and maybe this time they'll explain what they meant by a 'reasonable chance at parole'.

Posted by: MikeinCT | Nov 18, 2010 11:05:44 PM

If you read the full article, they quote the way the judge went off on a tirade at the possibility of anything short of guaranteed death in prison as "coddling." Way to follow Supreme Court precedent in good faith, judge!

This kind of hang-em-high judge is the reason the Court did the right thing by adopting a categorical rule, rather than CJ Roberts's suggested case-by-case evaluation of Graham claims. That would just have perpetuated the current system, where these extreme sentences come mostly from a small group of outlier judges who aren't interested in the Supreme Court's nuanced views of culpability. Of course, as MikeinCT notes, until the remedy in Graham is clarified, we will have the same problem.

Posted by: NC Atty | Nov 19, 2010 5:47:54 PM

@NC Atty
How is barring LWOP for all juvenile non-homicide crimes but allowing it for lesser crimes when you're a day past your 18th birthday nuanced? It's arbitrary.

Posted by: MikeinCT | Nov 20, 2010 5:01:22 PM

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