Graham v. Florida
In May 2010 the Supreme Court of the United States ruled 6-3 that Graham’s sentence was unconstitutional, but 5-4 that the ruling applied to anyone else but Mr. Graham. The ruling applied only to teens sentenced to life without parole for NON-murder cases, despite petitioners’ attempts to have the court rule broadly that all JLWOP sentences were unconstitutional. The Supreme Court specifically stated in the ruling that life sentences for teen killers were fully constitutional.
We recognize that life without parole is a very serious sentence for ANY age offender and believe that it should be reserved for that proverbial worst of the worst offender. We are an organization of families of those KILLED by teens and do not have an organizational position on the specific sentencing of these offenders, as victim family positions vary widely. We are here in SUPPORT of those victims of any violent crime by a teen and are only concerned of the impact of this ruling on their lives. Some of our members do not believe life sentences are appropriate for any non-murder case, no matter the age of the offender. Some of our members support the death penalty for extremely aggravated crimes. Our views are diverse. We are united in our views on victims’ rights to be notified of and heard in all matters in their cases. See below for our specific analysis of this ruling.
Download the amicus brief that NOVJL submitted, along with other victims organizations nationally, to the United States Supreme Court in the Graham and Sullivan v. Florida cases. It summarizes the very serious concerns crime victims legal experts have about some of the arguments advanced by the attorneys for offenders Graham and Sullivan.
We are very grateful to the Southwestern Legal Foundation for their service to crime victims all over the nation in writing this brief for us.
We also highly commend the work of the National District Attorneys’ Association (NDAA) and recommend the reading their amicus brief to the Supreme Court on the Graham and Sullivan cases.
The State of Florida issued the following statement after the ruling:
In response to the U.S. Supreme Court’s ruling today in the Graham v. Florida case, Florida Attorney General Bill McCollum issued the following statement: “Today, the United States Supreme Court declared unconstitutional life sentences without parole for juvenile offenders who have committed non-homicide crimes. The Court’s ruling does not prohibit stern sentences for juveniles who commit violent crimes, and I fully expect the offender in this case be resentenced to a very long term in prison. This ruling will have a significant impact on our state’s juvenile justice and corrections systems both going forward and for current inmates, and Florida will need to make provisions to address these issues. I will work closely with the Legislature to identify and implement solutions that can better protect Florida’s citizens, families and guests.”
NOVJL’s founder was present in the court for the oral argument, and we followed the case closely, though it did not apply to our cases, as we are all homicide victim family members. Read our press releases on the cases.
Our Analysis of the Graham ruling:
1. We are very gratified that the Supreme Court affirmed the constitutionality of Life Without Parole sentences (JLWOP) for some of the nation’s worst teen murderers. The plaintiffs in the Graham and Sullivan cases asked the Supreme Court to overturn all LWOP sentences nationally as unconstitutional, which the court declined to do. Given the stunningly large, well-funded, and often misguided effort on behalf of the juvenile offenders to propagandize about JLWOP sentences nationally, it is indeed a victory for public safety and victims’ rights that the vast majority of JLWOP cases nationally are still deemed fully constitutional.
2. Some members of NOVJL supported the court’s finding that JLWOP is unconstitutional for non-murder cases. Natural life is an extremely serious sentence, and it seems at least reasonable to argue that it may be too harsh of a sentence for an offender of any age, if they did not kill their victims. Given the diverse views of our members, we stand for a just and fair process that respects victims’ rights. The process must include victims’ voices in the public policy discussions about any such reforms. So our main concern is that the victims of these cases were heard in the process to decide it. Given what little we know about the 129 cases of non-murder JLWOP nationally, we do not know that victims’ rights to be notified of, and heard in, this process were followed. In fact the state of Florida shared with us the difficulties they were having finding victims of cases that were sometimes decades old.
We note that the Court strongly affirmed that teen offenders could still be given and serve long or life sentences, but that they must be given a chance at parole at some point. We will watch with interest as the 7 states that have JLWOP for non-murder battle out how to comply with this ruling. We are concerned that parole boards are entirely too politically appointed and error-prone, nationally. And we know how re-traumatizing the parole process is for victims. Moving from life without parole to life with parole sentences simply transfers the life sentence from offender to victim.
3. We are very concerned that the victims and their families of these few 129 non-murder cases sentenced to JLWOP in the 7 states that have JLWOP for non-murder, be notified of this ruling that these sentences are now found to be unconstitutional in this ruling. They must be supported and attention must be brought to their cases as they will now face re-sentencing and an agonizing and perhaps life long process of having to re-open these tragic episodes in their lives before parole boards. No dangerous offender should be released. Full restitution must be made to all their victims. And victims’ families must be immediately notified and fully supported to participate meaningfully in these re-traumatizing re-sentencing hearings granted them by the Supreme Court in the Graham ruling.
4. We are concerned in this ruling with the erosion of states’ rights to choose penalties for crimes committed in their borders and with the activist interpretation into the constitution of a prohibition in the 8th amendment that is not in there.
5. We are concerned with some of the reasoning that the Supreme Court majority used in their decision. For one, they actually cited the rarity of the sentence in defense of this ruling. What they are actually doing is punishing prosecutors, legislators, courts, and judges, as well as victims, for using the life sentence for extremely violent teens only very rarely. Judicious use of a serious sentence should be rewarded, not punished. This reasoning will not sit well with the public. The whole purpose of harsh sentences is that they should be reserved for those most rare and horrific of crimes.
Additionally, the Supreme Court majority cited international practices that are not at all legal or relevant when analyzing Constitutionality in the United States. We are a sovereign nation. There is broad concern in the American legal community that any Supreme Court ruling looks outside our nation to determine standards for our Constitution’s interpretation. The court also did not examine all the far more horrific treatment of juveniles that occur worldwide.
The real problem with the Graham ruling
Most amazingly, this is the first time in history that the 8th amendment prohibitions against cruel and unusual punishment, which have always only ever been applied to torture and the death penalty in three centuries of American jurisprudence, have been applied to mere incarceration. Incarceration in and of itself has never ever been viewed as cruel and unusual punishment. There is a legitimate and serious concern already being expressed by constitutional scholars and those concerned with the rule of law and public safety that this newly invented right “discovered” inside the 8th amendment that says nothing about youthful offenders or incarceration, will lead to a dangerous legal slippery slope in our criminal justice system.
The court could have solved most of the concerns raised in the Graham and Sullivan cases by a finding that PROPORTIONALITY reviews should be allowed in all such cases. Proportionality is a constitutional principle that says that the punishment must be proportional given all the facts relevant to the individual case, the crime, and the criminal. Basically, it means that the punishment should fit the crime.
Proportionality is also a phase of the sentencing process that is not considered if the sentence is mandatory. So in the cases where the JLWOP sentence was mandatory, those cases could have been granted a new sentencing hearing to review the principles of proportionality in their individual case.
Little Has Changed
Now that some years have passed since this ruling, we also note with interest that most of the offenders re-sentenced to date in Florida under the Graham ruling have been given terms of years for their serious crimes that are so long that they are still serving effective life sentences. Some have received sentences near 100 years in prison. We are not sure what benefit to these offenders all this effort has served – we await more analysis. However, we DO know that all this new legal wrangling for changes in their sentences has been significantly costly to the taxpayers, while at the same time providing no real net change in the actual prison time served by those offenders affected by the Graham ruling, as far as we can see.
We support reforms to the criminal justice system, for the most part, where needed, and we support sentencing reforms where there is a miscarriage of justice. We know that there are innocent people in prison, wrongfully convicted, and that there are offenders who are over-sentenced in relation to their actual culpability. We know this is wrong. In fact, we as an organization have shown far more sympathy and support for convicted inmates than the offender advocacy movement has shown to ANY murder victim family member of a teen killer.
Other fallacies in arguments made before the Court
Offender advocates have been lying about international law and standard, reporting frequently that the USA is the only nation in the world to incarcerate violent teens for life. This is not true. 11 countries, including Australia, do. And some do far worse – they allow children and teens to be sold into prostitution and slavery, and they allow torture and other horrible forms of mutilation to children. The U.S. record on treatment of juvenile offenders is actually a generally good one, giving more support and protections, and less incarceration time overall than other nations of the world.
Offender advocates argue we should comply with an international treaty that the USA has never been a signatory to – the International Treaty on the Rights of the Child. We cannot be held to be in violation of a treaty we never signed. And again, our human rights record is far better for treatment of juvenile offenders overall than many nations.
Lives in prison still allow offenders to have a life of potential meaning and contribution. They can mature, learn, offer service to others, and make restitution to their victims, all from their prison cells. Many states allow them to marry, some to have conjugal visits. Many offer advanced educational opportunities. They can write and publish books and art. They can be creative. They can mentor other troubled youth and offenders. They can be rehabilitated. They can worship. They can redeem themselves. And all these things, they should do. While serving their life sentences, they are getting far more opportunities than they ever gave their victims.
We hope that this ruling in the Graham case supporting LWOP for murderers, while rejecting the no-parole option for non-murder violent offenses, will help the nation’s policy makers to understand the difference between appropriately just sentences for the most heinous and violent murderers, and the lesser sentences called for with lesser serious offenses.
UPDATE on What Florida Did to Comply With the Graham Ruling
Read the full article on how the Florida legislature will be complying with the Graham ruling. Here are highlights of compliance legislation:
“Florida’s current laws, sections 985.556 through 985.57 of the Florida
Statutes, provide for the transfer of juvenile cases to adult court. Depending
on the circumstances surrounding the particular case, a variety of juvenile
offenses can be transferred to adult criminal court. Although certain offenses
require the transfer of the juvenile to adult court for trial and sentencing,
the transfer of many juvenile cases is discretionary.
Discretionary cases involving the transfer of a juvenile to adult court
largely depend on the age of the alleged offender, whether the offender has
previously been adjudicated or convicted of any offense, the number of offenses the juvenile has previously been charged with, and the type of offense that resulted in the most recent charges.
Under section 985.56 of the Florida Statutes, any child who is charged with
violating a state law that is punishable by death or life imprisonment must be
tried and sentenced as an adult. Additionally, juveniles are required to be
tried as an adult if they commit carjacking or auto theft offenses that resulted
in serious injury.
“Other penalties currently exist in Florida’s juvenile justice system that
are better alternatives to juvenile life sentences without parole. These
repercussions can include shorter jail or prison terms than if the juvenile
offender is sentenced as an adult, confinement in a Juvenile Detention Center,
confinement to house arrest, loss of a driver’s license, imposition of a curfew,
community service requirements, probation, payment of fines, and/or payment of restitution,” stated Morris, a juvenile justice attorney.
If SB 212 is passed, juvenile offenders that have been sentenced to life
imprisonment without parole would be allowed to a resentencing hearing to
determine if their sentence should be reduced.
In order to be granted a resentencing hearing, the juvenile offender must
meet the three preliminary requirements and also have served 25 years of
incarceration for the underlying offense. Additionally, the juvenile offender is
only eligible if they have not received any disciplinary reports while in prison
for at least three years before the scheduled resentencing hearing.
Resentencing is not mandatory if the juvenile offender is granted a hearing.
The court must also look at the following factors at the resentencing hearing to
determine whether or not to give the alleged offender a new sentence:
- The level of risk the juvenile offender imposes on society;
- The wishes of the victim or the opinions of the victim’s family;
- The level of the juvenile’s participation in the underlying offense and
if duress was involved in the commission of the offense;
- The juvenile offender’s sincere and sustained remorse for the criminal
- The juvenile’s age, maturity, and psychological development at the time
of the offense;
- Assistance to others or prevention of risk to others while in
- Completion of GED requirements or other educational, technical, work,
vocational or self-rehabilitation programs while in prison;
- The amount of sexual, physical, or emotional abuse imposed on the
juvenile before they committed the offense;
- The results of any mental health assessment, risk assessment or
evaluation of the juvenile offender;
- The facts and circumstances of the offense for which the life sentence
was imposed, including the severity of the offense; and/or
- Any other factor the sentencing court deems necessary.
If the court determines the juvenile is fit to re-enter society, the court
may issue an order modifying the sentence and place the offender on probation for a period of 5 years. If the juvenile offender violates the conditions of their program, the court may revoke the probation and impose any sentence that could have originally imposed and the juvenile will no longer be eligible for resentencing. However, if a juvenile is not initially permitted to resentencing, they are eligible for a resentencing hearing every seven years after the date of the denial.
The Florida House of Representatives has proposed a similar bill, House Bill
5, which is also currently pending before the legislature.”
Letter to the Editor Re: Graham v. Florida Supreme Court Case
When the Los Angeles Times writer David Savage wrote, and the Chicago Tribune published on 9-29-09 one column commenting on the Graham v. Florida ruling that contained errors in fact and reasoning, we posted the following on the on-line commentary section of their website;
“While we commend the high profile attention that the Chicago Tribune continues to give to this issue, Mr. Savage’s article missed some basic fact checks.
“First, the United States is NOT the only nation to sentence juveniles in rare and very violent crimes to long term or life sentences. It is one of 11, including Australia.
“Second, there are not 2500 JLWOP cases in the USA. This original estimate from a human rights group has since been discredited by an actual count done by the Heritage Foundation after talking to the nation’s Attorneys General. The number is more likely around 1300. The sentence remains extremely rare and used, with little exception, in the ‘worst of the worst’ cases.
“Finally, this one-sided article takes up the propaganda line of the defense attorneys for Sullivan and Graham, who are asking the Supreme Court in their briefs to break firm and long standing precedents. The 8th Amendment prohibitions against cruel and unusual punishment have never been applied to mere incarceration. And it is the pervue of states to define crimes and their associated punishments. To broach these principles legally could have potentially chaotic impact on the nation’s legal system. Regardless of what the Court decides on the Sullivan and Graham cases, we believe they should not rule broadly.
“Your article is supposed to be objective and researched. It clearly is not. It is impossible, not improbable and not unusual …. impossible, for Terrance Graham to be given a life without parole sentence for a robbery followed by a ‘home break in’. There is no law in Florida or anywhere in the United States that allows for such a penalty.
“You can check with Roy Black (Kennedy-Smith’s lawyer) in Florida or any of the criminal defense lawyers there, they will verify this.
“A review of the briefs in the case show that there was a lot more to the Graham crimes than you wrote.
“Graham’s first conviction was for an ‘armed burglary’ that included an ‘assault’ (threat to harm) or ‘battery’ (actual harm). He was given a one year sentence for this even though it carried a potential life sentence.
“Upon release his next crime was planned against a vulnerable family. The State of Florida brief reads:
‘A month shy of his eighteenth birthday, Graham led older accomplices in planning and then committing an armed robbery at the home of Carlos Rodriguez Lopez, a recent war refugee from Colombia who worked as a construction laborer and lived with his wife and stepson.’
“The crime was a home invasion robbery not a ‘home break in’ as your wrote. Three men forced their way into the Rodriguez-Lopez house with guns. They held guns to Mr. Rodriguez’ head and demanded money. They stayed in the house for half an hour before leaving.
“The person who planned this robbery and executed it was Mr. Graham.
“After this robbery the group attempted yet another armed robbery. In this robbery, one of Mr. Graham’s crime partners was shot. Graham fled from police after dropping his partner off at the hospital. He sped through residential streets at speeds up to 90 miles per hour.
“When he was apprehended, Graham confessed to engaging in other robberies as well.
“Contrary to what your article claims, Graham did not receive Life Without Parole following a one day hearing. There was a series of hearings to determine whether Graham had violated the conditions of his release on the original charges. His sentencing exposure for violating this conditions ranged from 66.75 months of incarceration up to a life sentence. He refused to admit guilt to any crime other than eluding the police, showed no remorse and received the maximum sentence. The judge cited his danger to society as the main motivating factor.
“Contrary to the implication in your article, ‘Incorrigible’ was not the legal basis for the sentence.
“It is certainly appropriate to debate the reasonableness of Mr. Graham’s sentence. In fact, the Supreme Court is entertaining just such a debate. However the public debate needs to be informed by facts. We rely upon the LA Times and reporters to be accurate and complete.
“I am sorry but your story reads like an advertisement for one side. Even the appellate briefs of Mr. Graham are more balanced.