Cruel and Unusual Punishment


This week’s split U.S. Supreme Court decision may give new life to young black Floridians who were sentenced, as boys, to life without parole.

If most Floridians were asked to name the criminal justice system that has the highest rate of incarcerating children, many would name former President George W. Bush’s “axis of evil”: North Korea, Iran, or Iraq.  A few might designate so-called “failed states” like Somalia and Sudan.

Only a few would name the United States; probably no one would name Florida.

According to Human Rights Watch and Amnesty International, the United States is the only country in the world that currently sentences youth to life without parole for committing crimes. More than 135 countries have abolished the life without parole sentence for children, even when they commit homicides.

There are more than 2,500 youthful offenders serving life without parole in the United States – most for committing a homicide.

In the rest of the world, there are none. Zero.

There are 129 people in America who are serving life without parole for a non-homicide crime they committed as a child. Seventy-seven of them were sentenced in and are incarcerated in Florida. The other 52 are imprisoned among 10 other states and in the federal system.

Of the 77 locked up here in the Sunshine State, a review of records submitted to the Florida Courier from the Florida Department of Corrections indicates that 76 are black males.

Graham’s Story

Terrance Graham of Jacksonville was 16 when he committed armed burglary and another crime. Graham had a horrific upbringing as the son of crack cocaine addicts. Under a plea agreement, a Jacksonville-area judge gave him a break. Graham was sentenced to probation and the judge withheld adjudication of guilt, meaning Graham did not have a criminal conviction.

Graham later took part in an armed burglary of a home. The same judge found that Graham had violated the terms of his probation, adjudicated Graham guilty of the earlier charges, revoked his probation, criticized Graham for choosing a life of crime, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except through executive clemency – essentially, a government pardon.

Graham challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause of the U.S. Constitution, but a Florida appeals court turned him down. Graham then asked the U.S. Supreme Court to review the case.

It did. And on May 17, the court ruled 6-3 that Graham’s sentence constituted cruel and unusual punishment because he was a juvenile when a judge put him away for life. Five of the justices agreed that the ruling should be a blanket policy for all non-homicide acts committed by juveniles.

‘Die in Prison’

“By denying the defendant the right to re-enter the community, the State makes an irrevocable judgment about that person’s value and place in society,” wrote Justice Anthony Kennedy in the majority opinion. “This judgment is not appropriate in light of a juvenile non-homicide offender’s capacity for change and limited moral culpability.”

Kennedy said Graham’s life sentence means “he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes.

“Life without parole is an especially harsh punishment for a juvenile,” Kennedy wrote. “Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.”

Kennedy also cited a “global consensus” among all nations but the United States that juvenile criminals should not be locked up for life with no chance to rehabilitate themselves.

“From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult,” he wrote, quoting his opinion five years ago that rejected the death penalty for under-age murderers. That ruling in 2005 spared several dozen young murderers from a possible execution.

Kennedy’s previous invocations of international legal practice drew fire for supposedly undermining U.S. legal sovereignty, and 16 conservative members of the House of Representatives, including Florida Republican Gus Bilirakis, filed an amicus brief urging the court to shun the “increasing influence of international organizations.”

Undaunted, however, Kennedy said again on Monday that the “judgment of the world’s nations” deserves to be considered when U.S. judges decide what is cruel and unusual punishment. These international norms are not “binding or controlling,” he said, but they can “provide respected and significant confirmation for our own conclusions.”

Victory Not Clear-Cut

Monday’s ruling gives new hope — but no guarantee of release — to at least 129 prisoners nationwide who were given life terms for crimes such as robbery or assault that took place before they were 18 years old.

Graham’s case was remanded back to the lower courts and he could still face a long time in prison for his crime, though not life. The other cases involving juveniles sentenced to life without parole can now be reopened as well for revised sentencing.

Florida Attorney General Bill McCollum released a statement Monday afternoon saying that the court does not prohibit “stern” sentencing for juveniles who commit serious crimes and he expects Graham to 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,” McCollum said. “I will work closely with the legislature to identify and implement solutions that can better protect Florida’s citizens, families and guests.”

State Rep. Perry Thurston is a former Broward County assistant public defender and is a criminal defense attorney.  He called the Supreme Court decision “well-supported and well overdue.

“It saddens me that Florida is the worst of the worst when it comes to how we treat our children,” Thurston told the Florida Courier. “This decision finally brings us in line with the rest of world.”

A spokesman for Human Rights Watch agreed with Thurston, while hailing the decision for bringing U.S. law into line with international standards.

“The United States is the world’s worst human rights violator in terms of sentencing young offenders to life without parole,” said Alison Parker, U.S. director for Human Rights Watch.

The Justice Policy Institute (JPI), a Washington, D.C.-based organization dedicated to reducing society’s use of incarceration as a social policy, also praised the decision.

“The research on adolescent brain development clearly shows that youth are different from adults and should be treated differently under the law,” explained JPI Executive Director Tracy Velázquez. She added, “While this is a step in the right direction, we’d like to see more changes in sentencing practices for both youth and adults, especially those shown to unfairly and disproportionately impact communities of color.

“In the United States, we have locked up too many people for too long, without regard to the negative impact incarceration has on our country. We need to make better use of the many other evidence-based practices we have available that protect public safety, and strengthen communities at the same time. ”

Florida’s prison population has increased five-fold in the past 30 years, while its general population hasn’t even doubled.

Today, 5.4 of every 100 Floridians are incarcerated. Meanwhile, each new prison costs roughly $100 million to build and $25 million to operate annually.

Disproportionate Minority Contact

Researchers have made it clear how Florida’s criminal justice system adversely impacts African American communities, primarily by criminalizing black boys as juveniles or incarcerating them in disproportionate numbers, an effect known in social science as “Disproportionate Minority Contact,” or DMC.

The DMC effect is evident. According to Florida Department of Juvenile Justice (DJJ) statistics:

? $62 million, or 48 percent of DJJ’s $130 million detention budget, is spent to temporary confine black boys pending pretrial release, juvenile court proceedings, or disposition of their juvenile case;

? More than $141 million, or 47 percent of DJJ’s $300 million residential budget, is spent to keep Black boys in on-site in program housing away from their own homes.

? Approximately 1,500 black boys were transferred from DJJ into the adult prison system in 2007-08. That’s about 50 percent of the total number transferred. Statistically, half of them, or about 750, will eventually be imprisoned as adults.

In the adult system, more than 53,000 black men are incarcerated in Florida state prisons. That’s more than 50 percent of the 103,000 total inmate population. More than $1.2 billion of DOC’s $2.4 billion budget is spent incarcerating Black men.

Sixty percent of the DJJ’s Prevention and Victims Services’ $59 million budget is spent to provide safe places for children through shelter care within Florida’s network of contracted providers and for the PACE Center for Girls.

In many instances, African American children are not participating in these “front-end” prevention and intervention programs.  Yet, black kids make up a disproportionately high number of those in the system who are taken from their homes, placed in detention centers, sent to adult court, and subsequently sent to state prison.

Nationwide statistics show African American children represent about 15 percent of the population, but make up 26 percent of all juvenile arrests, 44 percent of detained youth, 46 percent of youth transferred to adult court, and 58 percent of the youth sent to state prisons, according to the study “Disproportionate Minority Contact: An Examination of Prevention, Diversion, Intervention, Residential and Aftercare.”

County by County

Florida statistics mirror the nation’s.  According to DJJ’s 2009 DMC Benchmark Report, every county but one – Gilchrist (west of Gainesville) –  had Black youth referred to the juvenile justice system by at least twice the rate of White youth referred.

Glades (southeast of West Palm Beach), Gadsden (west of Tallahassee), and Miami-Dade counties were the bottom three with the most serious DMC issue. black youth were 12.8 times more likely to be referred to the juvenile justice system than white youth in Glades County, and 5.7 times more likely in Gadsden and Miami-Dade.

“No one is born with a gun in his hand. Yet our kids go from home to jail,” former DJJ Assistant Secretary Greg Johnson, who recently retired after 35 years with DJJ, told the Florida Courier.

“We can lower Disproportionate Minority Contact numbers by not sending kids (into the juvenile justice system) for less than a misdemeanor,” Johnson added.

“Every referral (when a kid is placed into Florida’s juvenile justice system) costs $14.43 per child. Some counties have 1,500 referrals; that’s $21,000. We can take that same money and put it to work in prevention.”

Johnson’s greatest concern is to catch those youth most at risk before they enter the system.

“There are no exit doors all the way through the system. We want to get them before the police, before probation, before they divert them into a diversionary program, and cut them off from the beginning (of the juvenile justice system).”

Charles Cherry II is editor and publisher of The Florida Courier. This piece is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. Michael Doyle/McClatchy Newspapers, Kathleen Haughney, The News Service of Florida and David G. Savage/Tribune Washington Bureau (MCT) all contributed to this report. We thank the Harry Frank Guggenheim Foundation for their generous support of this project.



Total number: 77

Race: 76 Black, 1 White

Sex: All male

Age of youngest children arrested: 13 years old (3 total)

Average age at time crime committed: 16 years, two months

Average age as of today: 26 years, one month

Primary crime committed:

Robbery: 34

Kidnapping: 15

Sexual battery: 13

Burglary: 12

Carjacking: 2

County of conviction:

Broward, Hillsborough: 9

Miami-Dade, Orange, Polk: 7

Duval, Escambia: 6

Palm Beach: 5

Brevard, Pinellas, St. Lucie: 3

Highlands: 2

1 each: Alachua, Citrus, Gadsden, Lake, Leon, Marion, Osceola, Sumter, Volusia

Source: Florida Department of Corrections records;Florida Courier research

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