Florida

Clemency Denied and a Pardon Granted: Equal Justice in America?

Florida Sends More Children To Adult Prison Than All Other States Combined

When I was a law student I worked on a clemency petition for a child who was sent to an adult prison in Florida for 9 years for her first offense.  At 12 years old, she entered prison as the youngest inmate in the Florida Department of Corrections. It is worth noting that Florida sends more children to adult prison than all other states in the country combined.  As I worked on her clemency petition I learned that in the weeks leading up to her committing the crime, robbery of her grandmother’s home, she had been examined by two psychologists who both recommended that she be given immediate in-patient care.  I also found out that the source of her distress was that she was being abandoned by her mother who had run off with a man she had met, dumping the young girl on a grandmother who didn’t want her and who communicated this to her by getting rid of the twin bed the child was sleeping on, forcing the child to sleep on the floor.  The state of Florida wasn’t there to help this child.  A prosecutor later told me there was no money for the mental health treatment she needed. Instead, the state provided her with a much more expensive 9-year prison sentence as an adult.

I argued the clemency petition before Governor Jeb Bush at the Florida State Capitol

I argued her clemency petition at the state capitol before then Governor Jeb Bush and his cabinet.  I told Jeb Bush about her history of abuse and abandonment.  How her Mother had left the country and had never once visited her in prison.  I told him about how she had earned a GED in prison and showed him her nearly flawless behavior record.  I shared with him her statement of regret.  I asked him to let her out of the prison where she had been for the past 5 years and showed him the plan for treatment and recovery that we had put in place.  As I spoke, Governor  Jeb Bush played with the pencils on his desk and rocked back and forth in his giant power chair. He didn’t seem to take much interest.  I don’t remember him asking me any questions.  When I had finished he politely thanked me for my presentation and nearly a year later sent a notice that he denied her request for clemency.

“Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors.”

One tyrant taking care of another

As I read the newspaper reports of Donald Trump’s granting a pardon to an unrepentant former Sheriff Joe Arpaio, I think back to asking for clemency for that young woman.  Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors.  A shift towards a more compassionate criminal justice system in our nation is long-overdue, but that’s not what this is.  Instead, it’s a move away from a more compassionate system. It’s nothing more than one tyrant protecting another.  Trump didn’t pardon Arpaio  because Arpaio made a regretted mistake or because Arpaio has shown himself to be a man deserving of mercy.  Arpaio, a man who swore an oath to uphold the law, willfully defied that law and elevated himself to the role of judge, jury, and executioner when he defied an order from a federal Judge.  Trump pardoned Arpaio as a way of weakening Judicial authority and letting everyone know that, for those who are on Trump’s team, the Courts and the laws of our nation are not a factor.

“It’s nothing more than one tyrant protecting another.”

I wish that I could say that this is an anomaly in our legal system, but it’s not.  Too many times I’ve seen the well-connected and privileged protected by the system while people like the young girl whose clemency was denied by Jeb Bush are eaten alive by the system.  It really depresses me sometimes to work in a system that so often seems unfair.  I recall the words of a cynical law professor who said that the legal system exists to maintain the class structure in all but the most extreme cases.  I fear that soon, even extreme cases of injustice will no longer find a remedy in our legal system.

Adult Prison Is No Place For A Child

This week National Public Radio reported that, following a mass trial, Egypt sentenced a 3-year-old boy to life in prison in what is now being called a case of mistaken identity.  It may surprise many of my readers to learn that sentencing children to prison for life is not only also practiced here in the United States, but that we lead the world in such sentences.  Furthermore, when it comes to sending children to adult prison, my home state of Florida prosecutes and sentences more children as adults than all other states in the nation combined.

The issue of children in prison has been one that has interested me since my days as a law student.  At that time the case of Lionel Tate, a 12-year-old black child here in Florida who was convicted of murder with a mandatory life sentence, was in the news.  My interest in Lionel Tate’s case led me to a law journal article about children in prison by FSU Law Professor Paolo Annino. During my second year of law school I actually left City University of New York School of Law for two semesters to come to Florida State as a visiting student in order to work with Professor Annino, who remains in my life as a friend and mentor to this day.  A few years ago PBS has made a documentary film called “15 to life” on Professor Annino’s work and research that was used to successfully argue before the United States Supreme Court that life-without-parole sentences for juveniles who commit crimes other than murder is unconstitutional.

My first job after graduating from law school was as a juvenile public defender.  I spent 2 years defending children accused of crimes ranging from stealing cookies from school lunch lines to sex crimes and murder. I never got to represent the children accused of murder for very long because, regardless of age or their level of involvement, they were always removed to adult court almost instantly. Transferring a child to adult Court in Florida is not a decision made by the Judge after a hearing. Instead, it’s entirely up to the prosecutor and no judicial review is available.  I often witnessed this authority being used to try to force children to plead guilty when the State’s case was weak.  The threat was, fine, go to trial, but you’ll do it in adult court and risk prison rather than a juvenile facility if you do.  

The United States Supreme Court has said that, for crimes other than murder, life without parole sentences for children are cruel and unusual and therefore unconstitutional. However, this doesn’t mean that children who have never killed anyone aren’t being sent to adult prison for life with no possibility for release.  Understand, a murder charge doesn’t mean the child actually killed someone, just that they were part of a crime in which someone was killed.  This is the felony murder rule, which has been severely limited, done away with, or ruled unconstitutional throughout much of the developed world. However, the felony murder rule remains in full force in the State of Florida and in force to varying degrees in 45 other states.  If you are a child and you accompany an adult to commit a crime such as a burglary or to buy drugs, and that adult then kills someone, the child can be found to be as legally guilty of murder as the adult who pulled the trigger.  A murder conviction in Florida carries with it a mandatory life sentence without parole. This means that children, often with no prior legal history, who have never actually killed anyone, are sent to adult prison with no possibility of ever leaving – an outcome that, according to Amnesty International, happens in no other nation in the world.

Imprisoned man, looking down, seized to a few barsMy experience working with juvenile defendants left me deeply impressed with the idea that juvenile crimes do not occur in a vacuum.  I have yet to meet a child who committed a serious crime who was not also a victim of untreated trauma, abuse, or mental illness that was either untreated or inadequately treated.  This harm is further compounded when you send a child to prison.  Adult prisons are not equipped to handle the needs of children.  Consider what happened to 13-year-old, Jessica Robinson, whose clemency petition I worked on with Professor Annino. Her story of abuse and neglect while in state custody was profiled by This American Life and is worth listening to.  I, along with other law students, drafted and argued her clemency petition before then-governor Jeb Bush who denied the petition after a year. 

It is fine and noble that we Americans condemn the human-rights violations of other nations such as the life sentence given to the Egyptian child, but we lack any real integrity or moral authority when we do.  As a nation we have refused to give even the most basic legal protections to the status of childhood. Of the United Nations member states, only the United States and Somalia have refused to sign onto the Convention onto the Rights of the Child, the most widely accepted civil rights treaty in the world.  Consider that for a moment, the legal rights of children in the State of Florida are among the lowest in the nation that brings up the rear in the developed world when it comes to providing legal protections for its children.  Until we remedy this situation it will be very difficult for Floridians or Americans to speak with any authority or integrity to try to advance the lives of children in the larger world.  It is long past time for us to get our own house in order. 

In closing, I’m left with a questions, but no answers.  America was once a place of renewal where we believed that people could evolve and change.  What happened that made us give up on our children?  When did we become the people of the developed world whose version of justice for children is only found in the parts of the world with the most questionable of human-rights practices?  Lastly, how do we redeem ourselves from this place?

 

Mass Murder in America – Looking Beyond Legal Solutions

Until a couple of days ago, I wasn’t sure what I was going to write about this week. However, the tragic gun deaths of nine students, and wounding of nine others, at an Oregon college is a topic that deserves attention. Predictably, this event has reignited political debates regarding issues such as gun control and allowing students to carry firearms on campus. While I think these are important discussions, and I support gun control legislation, I’m not convinced that either gun control or further proliferation of firearms will resolve the problem of mass shootings.   I say this because on many levels these events are more than simply legal problems and failure of legislation.

I recognize that law has its limits. We cannot seek to resolve our social problems solely through criminalization and regulation. I believe we need to take a closer look at what social forces are driving these events and consider how we can create change that stops the creation of people who are driven to commit mass murder.

When one looks back that the majority of mass shootings in our nation we see a recurring profile of the individuals who commit these violent acts. The group is exclusively male, most often white, alienated, unemployed or underemployed, and exhibiting symptoms of untreated mental illness. These are not professional criminals, gang members, or individuals with histories of long-term involvement in radical organizations, although they may take up a cause to justify their actions.

I would like to focus upon the issues of alienation and untreated mental illness because I feel that these two areas are ignored in most discussions. Human beings have a strong drive for connection. We are not solitary creatures. In fact, social isolation has been compared to smoking and obesity in terms of the magnitude of its impact upon our health. Yet we live in a society where the social fabric is decaying, and with it, opportunities to find social connection. More and more of our professional and personal lives have moved into the digital realm. I was recently talking with some young people about job hunting and I was encouraging them to go to the employer and talk with someone in person whenever possible as part of their job hunting strategy. I was surprised when they told me that this was no longer possible with most employers and that for grocery stores and other retail entities all job seekers are directed to the Internet. As I wrote in an earlier posting, social institutions of all sorts are declining in membership. I would argue that even where membership is steady, the social life of many institutions has declined tremendously in the past two decades. I remember years ago when the holidays of Chanukkah and Sukkot in my local Jewish community meant multiple invitations to parties and dinners. In recent years such invitations have become increasingly rare to the degree that I am surprised when one is extended.

Alienation creates worse health outcomes, not just physically, but also for mental health. We are not prepared to respond to  the increased mental health needs arising from increased alienation. The United States’ mental health infrastructure is completely inadequate and  is getting worse by the day. We do not have the providers and we  haven’t funded the research needed to deliver effective evidence based treatments. Even for those who have the financial resources to pay for care, it’s often simply not available or the quality of care is poor due to inadequate training of the provider.

Untreated mental illness often brings people into the criminal justice system. I remember when I was doing contract nursing and I was sent to work in a local prison. I was stunned at how a majority of the inmates’ medical records showed the same profile of untreated mental illness; a history of childhood abuse or neglect; low IQ; and untreated addiction. Is it any wonder that the largest provider of mental health services in the State of Florida is the Department of Corrections? However, this also says that, as a society, we’re not committed to the prevention of crime and destroyed lives, only to reacting to the damage they cause.

One last story and I’ll close. When I was a law student I worked on a clemency petition for a young woman who, at age 13, was sent to adult prison in Florida for 9 years following the home invasion robbery of her Grandparents’ house. This child, and she was a child until the state of Florida stripped her of that status, had been evaluated by two mental health experts a few weeks earlier following a violent outburst. The mental health experts both recommended immediate inpatient treatment for her. Nothing was done, her behavior continued to escalate, and the State of Florida decided that rather than mental health treatment she was a criminal and made her the youngest person in the Florida adult prison system. It should be noted that her escalating violence was associated with her mother’s abandonment of her. During her 9-year prison sentence, neither her mother nor her grandparents ever visited her once. The recommended mental health treatment was never provided to her. I argued her clemency petition to then Governor Jeb Bush, who denied it. I guess he just figured that stuff like this happens.

In closing, I don’t believe that we’re helpless in the face of this problem.  As individuals, we can work to decrease alienation in our communities by simply going out into the world.  I know some will disagree with me, but a digital connection is not the same as being in the presence of a live person.  We can lobby for mental health research and treatment funding, not simply because of this issue, but because it creates justice in the world.   If we can do these things, our lives will all improve.