Legislator Wants to Allow Sentencing Discretion by Margie Menzel

Posted: July 6, 2012 in News and politics

TALLAHASSEE | Florida’s criminal justice system is scrambling to close what could be a massive gap between judicial discretion and the state’s mandatory minimum sentence laws in cases involving juveniles in the wake of a recent court decision.

In two cases, the U.S. Supreme Court last week said laws in 28 states — including Florida — that require mandatory life sentences for juveniles convicted of homicide were unconstitutional.

That opens up a can of worms, said state Rep. Mike Weinstein, R-Jacksonville, and a prosecutor.

“The (Florida) judges are in a box,” he said, “because if they sentence the way our statutes require them to, the Supreme Court has said that’s unconstitutional. If they sentence the way the Supreme Court wants them to, it violates the statutes.”

Weinstein said he’ll sponsor legislation next year to try to allow judicial discretion for juvenile killers, but acknowledged it may be hard to pass.

The court ruling, handed down Monday, still allows judges to give juvenile murderers life sentences without parole. But they must now consider a juvenile’s age and the nature of the crime before deciding on such a sentence. That means, it can’t just be given automatically. In Florida, however, murders involving guns require a minimum life term.

“It’s clear that the judges are required to do individualized assessment” of the circumstances before handing down a sentence to a juvenile, said Paolo Annino, a Florida State University law professor specializing in children’s legal issues. “Is this a 14-year-old or a 17-year-old? Is this a kid with a learning disability? Is this kid mature for his age or immature? Was he with a group of kids when the crime occurred and he was the follower, or was he the leader? Was he the trigger person, or just a wrong-place-wrong-time kid?”

And that individual approach, Annino said, means the ruling will unshackle Florida judges, who will recover their discretion in cases involving juveniles who commit murder.

“What was happening before (the ruling) was the judges had blinders on,” he said. “And these were not self-imposed blinders. Judges around the state, from the most conservative to the most liberal, were all in agreement that they wanted to judge. They wanted to make an assessment whether the person before them deserves the most severe penalty or the most lenient penalty.”

Florida’s judiciary is bound by the state’s 10-20-Life law, passed in 1999, which mandates that possessing a gun while committing some felonies brings a 10-year minimum sentence, that when a gun is fired in the commission of a crime, the minimum sentence is 20 years, and if a shot hits someone who is hurt or killed, the sentence goes up to life.

Most observers put the total number of state prisoners affected by the Supreme Court ruling at about 250, but the data are not all in.

Students at FSU’s Public Interest Law Center and Barry University’s Juvenile Life Without Parole Defense Resource Center are working to calculate how many prisoners qualify for resentencing.

The Orlando-based Juvenile Life Without Parole Defense Resource Center was created after another U.S. Supreme Court decision in 2010, brought by Terrance Graham of Jacksonville, who was sentenced to probation for a robbery but then arrested for another robbery and sentenced to life in prison. In his case, the justices ruled that life without parole for juveniles who did not commit murder amounted to cruel and unusual punishment. The Alabama and Arkansas cases decided by the U.S. Supreme Court last week expand that to murderers who were sentenced under automatic minimum sentence laws that didn’t allow the judge any discretion.

According to a 2009 Florida State University study, 77 out of 109 juveniles in the country facing life without parole for nonhomicidal crimes were from Florida. The study found that Florida’s laws were “out of step with the nation,” but state officials argued that Florida has the right to set its own criminal penalties.

“The states have sovereign responsibility over their own criminal justice systems, and their legislatures decide the appropriate mix of punishment, deterrence, incapacitation, and rehabilitation in determining appropriate prison sentences,” Florida officials wrote at the time.

The Graham decision prompted Weinstein, now running for the state Senate, to sponsor a bill to allow juveniles convicted of non-homicides and sentenced to life to be re-sentenced after serving 25 years. He sponsored it two years running, and last year it passed the House but died in the Senate.

He said he’ll bring the measure back in the 2013 session, along with a second bill addressing juveniles who kill.

“It’s going to be a little harder, but we don’t have a choice,” Weinstein said.

According to State Attorney Bill Eddins of the First Judicial Circuit, president of the Florida Prosecuting Attorneys Association, the state has several options in the wake of the Miller ruling.

One is for the prisoner to have a resentencing hearing before a judge.

“The second option is to pass legislation that grants the right to parole to these juvenile homicides that are serving mandatory life,” Eddins said. “When the Graham case came down, our association encouraged the Legislature to do that.”

Eddins said he personally supports Weinstein’s past proposals, as do some other prosecutors, but the Florida Prosecuting Attorneys Association hasn’t taken a position.

Copyright © 2012 TheLedger.com — All rights reserved. Restricted use only.

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