1. Opinion

Column: Florida should restore option of parole

Published Nov. 29, 2013

For 20 years, parole has been little more than an afterthought in Florida's criminal justice system, and it was abolished altogether for crimes committed after Oct. 1, 1995. But that bright line is now under scrutiny thanks to the U.S. Supreme Court's recent rulings that life without parole sentences for juvenile homicide offenders are disproportionate.

Florida's Legislature now needs to respond, but it should also consider restoring the option of parole in other circumstances as well, especially for sick and elderly inmates who are not a risk to reoffend or a threat to public safety.

Parole is the discretionary release of an inmate from a prison sentence — an "act of grace" from the state. Though once a prominent feature of Florida's criminal justice system, parole's phaseout began in 1983 when the Florida Supreme Court established sentencing guidelines that applied to all felonies, except capital felonies, committed after Oct. 1, 1983. Parole sentencing remained in effect for certain capital felonies until Oct. 1, 1995, when it was abolished for all capital felonies.

Now just 5,107 of Florida's more than 100,000 inmates will have a chance at parole. Many received life sentences and are required to serve a minimum of 25 years before becoming parole-eligible.

Why should we even consider parole? Some inmates are innocent and were wrongfully convicted; others had minor roles in the crimes they committed and obtained long sentences that were disproportionate to those of their co-defendants. The omission of parole is more egregious for young offenders who have also been model inmates but have no opportunity for rehabilitation. In some cases, the victim's family shows compassion and supports the inmate's release.

The Florida Parole Commission has to make an affirmative finding that "there is reasonable probability that, if the person is placed on parole, he or she will live and conduct him or herself as a respectable and law-abiding person and that the person's release will be compatible with his or her own welfare and the welfare of society."

The problem, however, is that most prisoners have no hope of even being judged on that standard — a fact that even some tough-on-crime conservatives are starting to question as financially unsustainable. Between January 2010 and December 2012, only 135 inmates were granted parole after 629 were considered. And parole sentencing is also re-emerging as a key legal and policy issue in Florida, triggered by questions surrounding juvenile felony sentencing and constitutional rights under the Eighth Amendment.

In Graham vs. Florida in 2010, the U.S. Supreme Court held that the Eighth Amendment prohibits life without parole sentences for juvenile offenders who do not commit homicides. The court ruled that a state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime, but it must give these types of defendants "some meaningful opportunity to obtain release after demonstrated maturity and rehabilitation."

In 2012, petitioners in Alabama and Arkansas challenged their life sentences without the possibility of parole following convictions for capital felonies. The U.S. Supreme Court in Miller vs. Alabama concluded that mandatory life without parole sentences for juvenile homicide offenders preclude the sentencer from taking into account the offenders' ages and related characteristics, so the practice violates the principles of proportionality and is unconstitutional under the Eighth Amendment.

Miller immediately created a predicament in the Florida legal system. Since October 1995, mandatory sentencing provides just two options for persons convicted of a capital felony: death or life imprisonment without parole.

Cases brought before Florida's 1st, 2nd and 3rd district courts of appeal challenged the incongruity between Florida law and the Supreme Court's decisions. But majority opinions failed to provide definitive direction for available alternatives in sentencing of juveniles convicted of capital felonies. In several recent cases, Florida courts have addressed this issue directly, placing focus on parole sentencing as a viable alternative.

The cleanest way to comply with federal court decisions is by legislative action. Florida lawmakers returning to Tallahassee in March for the annual session should not leave until they address this issue. Since the Graham decision, lawmakers in both political parties have worked on this issue, but no consensus has emerged — mainly because Florida's 20 elected state attorneys have opposed most proposals. Past debates focused on how many years certain juveniles had already served and when they could go back to the trial courts to argue for a sentence reduction. That good approach is not mutually exclusive or better than allowing the three parole commissioners — appointed by the governor and Cabinet and confirmed by the Senate — to review the cases every five years. Citizens and taxpayers should voice their support for such a balanced approach.

Reginald Garcia is a lawyer and state government lobbyist in Tallahassee. He represents clients in parole, executive clemency and other criminal justice matters before Florida's executive and legislative branches. He is a 1985 graduate of the University of Florida College of Law. He wrote this exclusively for the Tampa Bay Times.