On The Cover
Prime Minister Laurent Lamothe '96
concludes his official visit to Vietnam
on Dec. 18, 2012.
2012 Distinguished Alumni Awards
The Success of the Barry Athletics Model
Campus Democracy Project
Spring 2013, Volume 18, Number 1
In Defense of Hope
School of Law creates a resource to fight to protect the constitutional rights of juvenile offenders
By Travis Reed
In the summer of 1993, a skinny teen and his friend from Orlando pulled a BB gun on a former classmate, stole his car, forced him into the trunk and took off on a joyride. They drove around for several hours with him in the trunk and outside temperatures exceeding 90 degrees. When the teens checked on him they removed him from the trunk of the car and left him. As a result, the victim suffered irreversible brain damage. Seventeen-year-old Terrence Jenkins and his accomplice confessed and were convicted of attempted second-degree murder, armed kidnapping and robbery with a weapon. In 1994, the Court sentenced them to the harshest possible punishment: life in prison without the possibility of parole. “This was a pretty significant case in the 1990s in Orlando. It probably got more publicity than any case I’d ever seen at the time,” said veteran defense attorney and former public defender Daniel Tumarkin, who was then just another interested observer. Seventeen years later, an unexpected call from Ilona Prieto Vila, director of Barry’s The Youth Defense Institute, dropped Tumarkin squarely in the middle of that very case. Today, Terrence Jenkins has been released from prison, thanks to Tumarkin, Vila, Dwayne O. Andreas School of Law graduate Jessica M. Smith ’12 and the United States Supreme Court’s decision in Graham v. Florida, abolishing life without parole sentences for juveniles who did not commit murder. “Those people are special, they pushed the envelope for us,” Jenkins said. “Special to me because I probably had the most publicized case. Them taking on people like that, for me? They did a tremendous job.”
Case by Case
Barry University School of Law created The The Youth Defense Institute with a grant from the Florida Bar Foundation to develop a statewide response to the Supreme Court’s mandate in Graham v. Florida. In its ruling, the Court abolished life without parole for juvenile offenders such as Terrance — who were not convicted of murder — finding it to be cruel and unusual punishment. Accordingly, it mandated states to provide a meaningful opportunity for release based on an individual review of each case. Since Florida has no parole system, the state can’t simply make the cases eligible for parole review in response to Graham. Every offender must have a new hearing before the Florida courts. The juvenile resource center tracks those who are potentially eligible for relief under Graham. It’s also an information hub for best practices, and has cultivated a network of all public defender offices, private counsel and, in collaboration with the Florida Association of Criminal Defense Attorneys, has identified more than 30 pro bono attorneys, including Tumarkin, to represent people in court. Dwayne O. Andreas School of Law students participate on a voluntary basis, but many say they choose to get involved to gain experience while simultaneously fulfilling the school’s pro bono service requirements, thereby, carrying out the school’s mission of service to the larger community as part of the legal education it provides. The students help with case research, collect family information for mitigation to be used at re-sentencing and try to answer any questions families may have about the center. Those with the time and inclination can be assigned a case to work with a private attorney.
The Problem with Florida
Tumarkin said he first expected Jenkins’ case to be a huge undertaking, but it turned out to be fairly simple. The process took about four months and somewhere between 500-1000 hours of work, he estimated. At the time of the offense, the maximum sentence for each of Jenkins’ counts was 40 years, but the sentencing guidelines gave credit for early release after 17 years. Tumarkin said the judge in 2011 had no choice but to release Jenkins, because he had already served 17 ½ years. In this case, Smith and Tumarkin say, the “law” was on Jenkins’ side, but Jenkins likely never would’ve been released if the resentencing judge had any room for discretion. Hope Ionf Defense They say that for a couple of reasons. Florida is far and away the harshest sentencing state when it comes to juveniles. The Graham case originated in Jacksonville, and a staggering 77 of the 129 inmates eligible for resentencing nationwide were imprisoned here, Vila said — 60 percent of the total. The life-without-parole reversal was based in substantial part on scientific evidence that adolescents are developmentally distinct from adults. Teenagers aren’t entirely capable of recognizing the consequences of their actions or extracting themselves from dangerous situations, the justices determined.
“They’re not fully developed physically, emotionally, psychologically,” Tumarkin said. “Teenagers do a lot of stupid stuff without thinking about the consequences.” Both Tumarkin and Smith came away from jailhouse meetings with Jenkins feeling as though he had changed. Smith said she “truly felt for him.” “Just because the facts of the case may not have been the greatest in our favor, that doesn’t mean Terrence wasn’t worthy of rehabilitation and release, and moving forward, and being a productive member of society,” Smith said. Besides Jenkins, 10 others assisted by the juvenile resource center have been completely released from prison through Graham resentencings. However, most hearings haven’t gone so well, from the defense perspective. The Supreme Court didn’t issue specific guidelines in Graham, so Vila said it’s difficult to determine what constitutes an acceptable term. “In the majority of cases, the most common sentence has been 80 years,” she said. “We’ve had 170 years, 130, 100, 99 and 92 years. Those are called ‘virtual,’ or ‘de-facto,’ life sentences, because the reality is they won’t get out at all because they won’t live that long.” Since Graham, Florida has had an unconstitutional juvenile sentencing structure on the books for two years, but the state legislature has made little progress toward replacing it. Former Rep. Mike Weinstein (R-Jacksonville), a veteran prosecutor, has twice proposed a “Graham Compliance Act,” which would give juveniles a parole hearing after 25 years. If parole is denied, an additional review would be triggered every seven years. It went nowhere in 2011. It passed the House in 2012, but died in a Senate committee at the end of session. Weinstein vowed to resurrect the legislation in 2013, but lost a bid for the Senate in the Republican primary.
Giving Back, and Getting
Tumarkin has already done another pro bono Graham case — for a friend of a friend — and says he is open to doing more through the center. “I’ve been doing this for 30 years, and I might not have the same idealism and enthusiasm as I started with, but you could say it still exists,” he said. “This case here, in all honesty, the night I got to know Terrence, the more I felt he really was worthy of help and really did deserve help. It ended up being very rewarding to me.” Meanwhile, Smith, who graduated in May, is working as an intern for the U.S. House of Representatives Committee on Veterans Affairs. She hopes to parlay her degree and experience at the center into a job as a juvenile defense attorney, where she believes the system is best equipped for change. “I think there’s a lot that can be done in terms of rehabilitating juveniles because once adults get into the system they’re hardened and jaded, and it’s not as easy to turn them around as when they’re juveniles,” she said.
Bills, Bills, Bills
Barry created the center in 2010 after the Graham decision, with $100,000 from the Florida Bar Foundation. Increasingly, however, it’s being required to do more with less. The foundation added $91,000 in 2011, but couldn’t contribute further in 2012, Vila said. The center supplemented in 2011 with a $95,000 grant for trial experts from the Criminal Justice Fund of the George Soros-founded Open Society Foundation, but that funding ran out. The center would’ve had to cease operations on October 1 without an emergency $90,000 grant from the Criminal Justice Fund of the Open Society Foundation, and faces the same situation in July 2013 if no new donors are secured. They’re roughly 2 ½ years into a caseload that began at 77 but eventually grew to 115 (after Graham was expanded to attempted homicides). Most of the cases that were handled initially were similar to Jenkins’, and settled relatively quickly. However, Vila expects the remaining Graham cases to take much longer because they will have to be litigated, with defense attorneys relying on experts to testify about the psychological immaturity of juveniles. Though that was a bedrock principle of the high court decision, it remains a tough sell in some courtrooms. And, as hard as things have been for the center, they may be about to get much worse. Before the Supreme Court’s 2012 summer recess, justices essentially extended Graham sentencing guidelines to homicides, holding that states cannot sentence a juvenile convicted of a homicide to mandatory life without parole. The courts must take into consideration the Graham factors before sentencing them to life without parole on a case-by-case basis. The ruling gives courts in Florida discretion to give a sentence less than life, which they could not do before Miller v. Alabama and Jackson v. Hobbs came down. Early estimates suggest around 200 additional juvenile offenders may be affected in Florida, though there may be more. Vila and Barry law student volunteers are still counting. However, there’s already a problem. A Florida inmate appealed his case under the ruling and lost, because the 3rd District Court of Appeals determined in Geter v. State that the Supreme Court ruling is not retroactive. The man filed the motion himself, pro se, and the court never appointed the public defender’s office to secure representation. Defense advocates say Geter had a right to counsel because his sentence is illegal. Since Miller, second-year law student Paul Brill, the center’s Public Service Fellow, has been corresponding with inmates that are affected by the Supreme Court’s decision. He also corresponds with people who are not Miller-eligible, such as parole-eligible and second-degree murder inmates. He sends case information from Florida courts and policies related to adolescent development, to keep them updated as new information becomes available. Brill is now including the Geter decision as part of his outreach. “We’re not their lawyers; we’re not giving them legal advice, and we don’t correspond with them without their attorneys’ permission. At the same time, we’re monitoring the Florida cases through the statewide network of defense attorneys, both at the trial and appellate levels that could hopefully be taken to the Florida and United States Supreme Court,” he said. “We’re kind of in flux right now. We’re offering some hope, but not a lot. Hopefully that will change.”
‘What You Make of it’
Hope went a long way for Terrence Jenkins, but he’s emerged to find a changed world — cell phones, the Internet — not that he’s complaining. Jenkins was arrested in 1993, when Beanie Babies were invented, Bill Clinton took the oath for his first term and world wide web terminals existed almost exclusively in physics labs. He’s been out of prison for a year, but Jenkins still has trouble with crowds. In prison, they always meant something bad was about to happen. He also has problems sleeping — often muttering things about shackles being too tight — and only recently stopped wearing sandals in the shower. Like the juvenile defense center, he, too, worries about money. Despite submitting a flurry of applications, he hasn’t gotten anywhere in his job search. Because Jenkins was serving a life term, he couldn’t study electrical wiring or get a commercial driver’s license, as he wanted. Inmates with longer sentences are last in line for those programs. There is one other thing that’s been gnawing at him. Jenkins has been desperate to reach out to the victim, not just since his release, but even while he was incarcerated. “It’s constantly pulling at my heart,” Jenkins said. He was advised to write a letter instead, but he says that feels like a hollow gesture. “Just to show my remorse, to show I am a human, that I do care for real,” he said. “I don’t want you to think I don’t have a care in the world. I am free, but I’m trying to be productive with it. I want to make sure Terrence does the right thing.” In the meantime, he writes fiction and speaks with teens about gang prevention. He’s engaged to be married, and says he thanks God several times a week for the Barry resource center — for Vila, Tumarkin, Smith and the additional help he received.
“Prison can make you smarter and wiser, and want to do the right thing, or it’s going to make you hateful and deceitful,” Jenkins said. “It’s a school, that’s all it is. It’s a school for criminals. It can teach you to how to be a better person, or it can teach you how to be a better criminal. It is what you make it.”