Legislation planned to close possible massive gap between judicial discretion and state's 'mandatory minimum' laws in cases involving juveniles

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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, Miller v. Alabama and Jackson v. Arkansas, the U.S. Supreme Court earlier this 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.

Attorney General Pam Bondi, a prosecutor for 18 years, said the high court’s decision reopens the wounds of those whose loved ones have been killed by juveniles.

“I think it will have a tremendous impact on our criminal justice system,” Bondi said. “I think it’s going to be very difficult for victims’ families who have to relive this again….I’ve seen firsthand juveniles commit some of the most egregious, gruesome crimes imaginable.”

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, Graham v. Florida, 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 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 non-homicidal 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 that the Florida Prosecuting Attorneys Association hasn’t taken a position. Weinstein said his first attempt at passing his bill failed because it gave a role to the Parole Commission, which some in the Legislature want to phase out.

Several prosecutors want the state’s clemency board to consider those cases, Eddins said.

Bondi, too, said she plans to review each of the cases affected by the ruling.

“We will be looking at it closely,” she said. “It’s a personal issue to me as a prosecutor for many, many years. But hopefully, the right thing will happen and the juveniles who deserve to stay in prison for life will stay in prison. You have to remember, some of these juveniles committed very, very adult crimes in a very, very gruesome manner, and they could be out of prison when they’re younger than all of us standing here.”

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.