Howard v. Coonrod

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ROBERT EARL HOWARD,

DAMON PETERSON, CARL

TRACY BROWN and WILLIE

WATTS,

Plaintiffs,

v. Case No: 6:21-cv-62-PGB-EJK

MELINDA N. COONROD,

RICHARD D. DAVISON and

DAVID A. WYANT,

Defendants.

/

ORDER

This cause comes before the Court on the following:

1. Defendants Melinda N. Coonrod, Richard D. Davison, and David A.

Wyant’s (the “Commissioner Defendants”) Motion for Summary

Judgment (Doc. 96), Plaintiffs Robert Earl Howard, Willie Watts,

Damon Peterson, and Carl Tracy Brown’s (the “Named Plaintiffs”)1

response in opposition (Doc. 108), and the Commissioner Defendants’

reply thereto (Doc. 110); and

1 The Court will not consider information specifically related to Named Plaintiff Willie Watts as

the Commissioner Defendants assert he is no longer a member of the Class. (Doc. 112, p. 19).

More importantly, this factual assertion went undisputed in Plaintiff’s relevant reply. (Doc.

114).

2. The Named Plaintiffs’ Amended Motion for Summary Judgment

(Doc. 104), the Commissioner Defendants’ response in opposition

(Doc. 112), and the Named Plaintiffs’ reply thereto (Doc. 114).

Upon consideration, the Commissioner Defendants’ Motion for Summary

Judgment is due to be granted.2

I. BACKGROUND

A. Procedural Background

This class action dispute stems from a constitutional challenge to Florida’s

parole procedures for juveniles sentenced for life, or a sentence tantamount to life,

with the possibility of parole. The Named Plaintiffs—along with about 170 other

individuals (the “Class Members”)—are incarcerated in the state of Florida,

serving life sentences with the possibility of parole for crimes committed when they

were under the age of eighteen years old. (Doc. 113, ¶ 45).3 The Eighth Amendment

to the United States Constitution mandates that those juveniles who commit

crimes when they are under eighteen be sentenced by someone with discretion to

consider the mitigating qualities of youth and that states affirmatively afford

juveniles serving life sentences a “meaningful opportunity to obtain release based

upon demonstrated maturity and rehabilitation.” Graham v. Florida, 560 U.S. 48

2 Plaintiffs’ Motion for Summary Judgment (Doc. 104) is accordingly due to be denied as moot.

3 Following decisions by the Florida Supreme Court, a number of juveniles sentenced to life

with the possibility of parole who would have otherwise been Class Members received

resentencing hearings and a number were released. (Doc. 113, ¶ 46).

(2010); Miller v. Alabama, 567 U.S. 460 (2012) (noting that life without parole

sentences for juvenile homicide offenders are only conditionally permissible).

In response to this line of Supreme Court cases, Florida adopted in 2014 new

sentencing procedures for juvenile offenders serving life in prison without the

possibility of parole. FLA. STAT. § 921.1401. The 2014 Juvenile Sentencing Statute

requires an individualized sentencing hearing to consider the offense committed

along with the defendant’s youth before imposing a life sentence. See FLA. STAT. §

921.1401; (Doc. 1, ¶ 6). The Named Plaintiffs allege, however, that Florida has not

yet fully remediated its parole review procedures to comply with the Eighth and

Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 4, 7–8). In

particular, the Named Plaintiffs allege that the juveniles serving life with parole

sentences “are not being afforded the right to meaningful opportunity for release

now required by the Constitution.” (Id.). Instead, the Named Plaintiffs allege that

juveniles sentenced to life with parole may only be released “in accordance with

the limited process set forth in Florida’s parole statutes” which is administered by

the Florida Commission on Offender Review (“FCOR”) and is “virtually identical

for adult and juvenile offenders.” (Id. ¶ 8). Thus, the Named Plaintiffs allege that

“Florida’s parole system . . . directly contradicts the mandates of the U.S. Supreme

Court cases that establish that juvenile lifers have a constitutional right to be

released from prison upon demonstration of maturity and rehabilitation.” (Id. ¶

8).

Consequently, the Named Plaintiffs, on behalf of themselves and all others

similarly situated, filed a five-count Complaint against the FCOR Commissioner

Defendants in their official capacity, but the Court dismissed the Equal Protection

and Sixth Amendment counts for failure to state a claim. (Docs. 1, 43). The case

proceeds on an Eighth Amendment claim pursuant to 42 U.S.C. § 1983, a

Procedural Due Process Fourteenth Amendment claim pursuant to § 1983, and a

declaratory judgment claim. (Doc. 43). The Court later certified a Rule 23(b)(2)

class defined as follows:

All persons who (i) were convicted of a crime committed when

they were under the age of eighteen; (ii) were sentenced to life

in prison or a term of years exceeding their life expectancy

(defined as greater than 470 months); (iii) are currently in the

custody of the Florida Department of Corrections; (iv) have

never been paroled; and (v) are or will become eligible for

release to parole supervision but only through the parole

process.

(Doc. 58, pp. 5–6 (the “Class”)).4

After discovery, both Plaintiffs and the Commissioner Defendants submitted

motions for summary judgment (Docs. 96, 104), response briefs in opposition

(Docs. 108, 112), and corresponding replies in support (Docs. 110, 114).

Consequently, this matter is ripe for review.

4 Upon certifying the Class, the Court noted that “the bulk of Defendants’ response” amounted

to a contention that Plaintiffs will fail on the factual merits of the case. (Doc. 58, pp. 6). The

Commissioner Defendants there argued that the state of Florida’s parole system applicable to

the Class already provides Plaintiffs “some meaningful opportunity” for early release,

adequate procedural protections, and an individualized showing of current maturity and

rehabilitation. (Docs. 52, 58). The Court noted these merits arguments were inappropriate at

the class certification stage but that it would consider them at the proper procedural juncture.

(Doc. 58). That juncture has now arrived.

B. Factual Background5

1. FCOR Parole Procedures

The Defendants serve as Commissioners of the FCOR: Melinda N. Coonrod

as Chair, Richard D. Davison as Vice Chair, and David A. Wyant as Secretary. (Doc.

96, p. 2). The FCOR and Commissioner Defendants’ operational imperative is set

by statute and regulated by rule:

No person shall be placed on parole until and unless the

commission finds that there is reasonable probability that, if

the person is placed on parole, he or she will live and conduct

himself 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.

FLA. STAT. § 947.18; see generally FLA. ADMIN. CODE 23-21.

For all parole eligible inmates within the jurisdiction of the FCOR, there are

four stages in the parole process. (Doc. 113, ¶ 2). First, there is an Initial Interview

to establish a potential parole date. (Id.). This potential parole date can be set in

the future or the past; if set in the past, inmates immediately receive an effective

parole release date—the actual scheduled parole date barring setbacks. (Id.).

Second, Subsequent Interviews take place at intervals of up to seven years to

update the potential parole date. (Id.). Third, an Effective Interview occurs near

the expiration of the potential parole date to determine whether to authorize an

effective parole release date. (Id.). Fourth and finally, an Extraordinary Review

may occur if necessary for the Commissioner Defendants to outline their reasoning

5 Unless indicated otherwise, the following facts are from either the parties’ Joint Stipulation of

Agreed Material Facts (Doc. 113) or other record evidence which is not reasonably in dispute.

behind any given decision if the FCOR declined to authorize parole. (Id.).

Additionally, the potential exists for a Special Interview providing additional

review upon request if special circumstances emerge. (Id.).

For all types of FCOR interviews, the process for Class Members is the same

as for adult offenders, with the exception of the use of a Youthful Offender Matrix

applied after 2014 at Initial Interviews and some Subsequent and/or Special

Interviews. (Id. ¶¶ 2, 17, 20). However, the FCOR has not modified its existing

manuals or training of investigators and staff to educate them on why children are

different than adults. (Id. ¶ 38). Nevertheless, the Commissioner Defendants all

testified that they consider factors relating to youth when setting or modifying the

potential parole date and that FCOR rules provide for the Commissioner

Defendants to discretionarily do so, even while there is nothing in these rules,

policies or manuals that require this. (Id. ¶ 39). The Youthful Offender Matrix

makes across the board guideline recommendations of dramatically earlier

potential parole dates. Compare FLA. ADMIN. CODE 23-21.009(5) with FLA. ADMIN.

CODE 23-21.009(6); (Doc. 113, ¶ 39). By regulation, the Youthful Offender Matrix

is “[t]o be used when the inmate is sentenced by the court under [the 2014 Youthful

Offender Act], when the inmate is classified as a youthful offender by the

Department of Corrections, or when the offender was less than eighteen years of

age when the primary offense was committed for initial interviews conducted

subsequent to the effective date of this rule.” FLA. ADMIN. CODE 23-21.009(6) n.1.

As a general matter, the Commissioner Defendants do not meet with or

speak to a Class Member throughout the parole process. (Doc. 113, ¶ 27). In

addition, no counsel, mitigation experts, or psychologists are provided at state

expense to Class Members to assist in the parole process. (Id. ¶ 28). However, Class

Members are free to secure their own counsel or experts, either at their own

expense or pro bono. (Id.). If a Class Member acquires counsel, that counsel is

limited to ten minutes, unless extended by Commissioner Defendants, to speak at

FCOR Meetings and neither side may cross-examine or rebut statements made by

others. (Id. ¶ 29). Class Members can also access their files through a public

records request. (Id. ¶ 14).

Upon incarceration, the Florida Department of Corrections makes available

a Class Member’s sentencing documents to FCOR staff who review them to

determine the Initial Interview date such that the Initial Interview is held near the

end of the mandatory minimum. (Id. ¶¶ 3, 10). On an Initial Interview or

Subsequent Interview date, an assigned Investigator meets with the Class Member

and interviews them after reviewing background information on the inmate—that

is, all the official records available since sentencing pertaining to the inmate. (See

e.g., Doc. 96-1; Doc. 113, ¶¶ 2, 4). The interviews begin with an FCOR Investigator

speaking with a classification officer at the prison and meeting with the Class

Member. (Doc. 113, ¶ 21). The Investigator is the only required FCOR employee to

ever meet with a Class Member with respect to the parole process. (Id.).

The Investigator then prepares a preliminary Salient Factor score, which is

an “indices of the offenders’ present and prior criminal behavior and related

factors found by experience to be predictive in regard to parole outcomes.” (Id. ¶

5). The total Salient Factor score includes individual point values for (1) prior

convictions, (2) prior incarcerations, (3) years sentenced, (4) parole, probation,

and other revocations, (5) prior escape and attempt conviction, and (6) whether

burglary, breaking and entering, or robbery are part of the conviction—all scored

at zero, one, or two. (Id. ¶ 6). Potential parole dates are then calculated by

determining where the Salient Factor score and the severity of the offense behavior

intersect in a matrix. (Id. ¶ 11). From that matrix, a number of months until the

potential parole date is established. (Id.).

During the Initial Interview, the Investigator explains to the inmate they are

at an Initial Interview, the Salient Factor scoring process, and the Investigator’s

preliminary Salient Factor score recommendation so that the inmate has an

opportunity to dispute any potential errors. (Id. ¶ 7). In addition, the Investigator

orally discusses with the inmate the recommendation he intends to convey to the

Commissioner Defendants on setting or amending the potential parole date after

which the inmate signs an acknowledgement of the interview. (Id. ¶ 22). In other

words, Class Members are informed how the initial offense, Salient Factor score,

mitigations, and aggravations are used alongside the applicable matrix to arrive at

the potential parole date recommendation. (Id. ¶ 8). At the same time, the primary

avenue for a Class Member to know what information is being submitted to the

Defendants is by making a public records request. (Id. ¶ 24). Costs vary for requests

from being free to costing $0.15 per page, unless extraordinary circumstances not

relevant here apply. (Id.).

FCOR Investigators then report the recommended potential parole date to

the Commissioner Defendants along with a rationale. (Id. ¶ 12). However, these

recommendations are not binding on the Commissioner Defendants. (Id.). In other

words, the Commissioner Defendants may set a potential parole date outside the

matrix guideline based on consideration of persuasive evidence relevant to a non-

exclusive list of aggravators and mitigators. (Id. ¶¶ 11, 40). This expressly includes

the following as a mitigating factor: “The inmate committing the crime was of such

a young age as to diminish his capacity to fully understand the seriousness of his

action and its direct consequences.” FLA. ADMIN. CODE. 23-21.010.

The Commissioner Defendants make these decisions at meetings open to the

public. (Doc. 96-1, 92:8–9). In order to make these adjustments, the

Commissioner Defendants also receive information leading up to and during the

FCOR Meeting, including from those associated with the Class Members, before

making their potential parole date and parole decisions. (Doc. 113, ¶¶ 14, 25). For

example, the Commissioner Defendants have access to information that

Investigators do not, including autopsy reports, pre-sentencing investigation

reports, trial transcripts, police reports, processed disciplinary records during

incarceration, and communications from citizens to the FCOR. (Id. ¶¶ 41, 44). This

ability to render a parole date decision above or beyond the recommended matrix

guideline extends after the Initial Interview as the Commissioner Defendants have

the ability to reduce or extend a potential parole date at Subsequent Interviews

based on new information. (Id. ¶ 42). The Commissioner Defendants deliberate

individually prior to FCOR Meetings based on the information received from all

relevant parties but can only discuss a case collectively with each other at their

publicly noticed FCOR Meetings. (Id. ¶ 30).

Furthermore, if a Class Member obtained counsel, that counsel can advocate

for their client for the ten-minute allotment with the potential for a discretionary

extension at these FCOR Meetings. (Id. ¶¶ 14, 29). However, Class Members are

not themselves allowed to attend those FCOR Meetings either in person, by phone,

or by video. (Id. ¶ 26). In the end, the Investigator’s potential parole date rationale

is often the primary narrative prepared by an FCOR employee describing the

underlying offense and the Class Member’s institutional conduct and program

participation. (Id. ¶ 22). However, additional FCOR Investigators may be assigned

to produce more narrative information for the Commissioner Defendants upon

request. (Id. ¶ 22).

Commissioner Defendants’ final potential parole date decisions at FCOR

Meetings are recorded on a standard form. (See e.g., Doc. 104-16; Doc. 113, ¶ 15).

Thereon, the Commissioner Defendants are required to state the number of

months based on the matrix and any additional months based on aggravating or

mitigating factors that lead to the potential parole date decision. (Doc. 113, ¶ 15).

In calculating the potential parole date, the parole rules do not mandate treating

Class Members differently from adult offenders beyond the use of the now-

required Youthful Offender Matrix and the enumeration of the potential mitigating

factor related to age. (Id. ¶ 16). Indeed, prior to 2014, the Commissioner

Defendants used the same matrix for both adult and juvenile offenders. (Id. ¶ 17).

In addition, prior to 2014 the Salient Factor score contained a provision wherein a

juvenile offender was pointed for his age at the time of the offense such that two

additional points were added for juvenile offenders that could add up to five more

years to the initial potential parole date, although this calculation was and is

subject to a later potential modification in the process. (Id.). In 2014, the extra

Salient Factor consideration was removed, concurrent with the introduction of the

Youthful Offender Matrix. (Id.). While the Commissioner Defendants never

uniformly and retroactively applied the Youthful Offender Matrix to change the

potential parole dates for those Class Members who underwent their Initial

Interview and potential parole date determination under the pre-2014 matrix, the

Youthful Offender Matrix is now available for use at Special Interviews and

Subsequent Interviews (which can occur no more than seven years after a prior

interview). (Doc. 104-5, 24:14–23; Doc. 113, ¶¶ 2, 19). Around ninety-three Class

Members’ initial potential parole dates were not set using the Youthful Offender

Matrix as their Initial Interview occurred prior to 2014. (Doc. 104, p. 5).

The Commissioner Defendants generally hold FCOR Meetings weekly and

consider over 200 cases in each meeting, of which about twenty to forty relate to

parole interviews. (Doc. 113, ¶ 31). The Commissioner Defendants review the entire

file for each parole case prior to the Commission Meeting. (Id. ¶ 32). Meeting

reviews can take hours. (Id.). At times, however, the discussion among the

Commissioner Defendants in setting the potential parole date can last only a few

minutes. (Id. ¶ 33).

After the FCOR Meetings, the only recording of these meetings is made on a

CD which is not available to a Class Member because it is considered prison

contraband. (Id. ¶ 26). Any person may request a CD recording of a Class Member’s

FCOR meeting. (Id.). If the recording is understandable, that person could later

summarize or describe the meeting to the Class Member. (Id.). The Class Member

may also have a person in the prison administration receive the CD and play it for

them, but this is not required of prison administration and the practice varies.

(Id.).

If individual Class Members seek to challenge the Commissioner

Defendants’ compliance with FCOR rules and procedure, they may seek judicial

review of the Commissioner Defendants’ determinations regarding potential

parole dates and effective parole dates. (Id. ¶ 13). Generally, this takes the form of

mandamus appellate review, though effective parole release dates are reviewed

under habeas. (Id.).

2. Other Relevant FCOR Parole Data

From a 30,000-foot view, there is a variance over time in the sentence

structures of Class Members and similarly in how the parole system interacts with

them. (Id. ¶ 1). This variance is the result of, among other factors, various

conviction rates across decades, different sentencing schemes, changes in parole

status, and amendments to the parole system. (Id.).

No new members have been added to the Class whose offenses were after

1994 due to statutory changes. (Id. ¶ 43). That is, Florida abolished parole for first

degree murder offenses occurring on or after May 25, 1994. (Id.). Prior to this

point, only two possible penalties for juvenile offenders convicted of capital

murder: the death penalty or life with the possibility of parole after a minimum of

twenty-five years. FLA. STAT. § 775.082 (1994).

However, some juvenile offenders who were incarcerated before 1994 have

been released or otherwise removed from the pool of potential class members;

FCOR has historically paroled over 246 individuals who would otherwise be

eligible for class treatment, although since Miller was decided in 2012, the

Commissioner Defendants have only paroled at least twenty-three juveniles

sentenced to life with the possibility of parole who would otherwise be members of

the class. (See Doc. 96-3; Doc. 104, p. 15; Doc. 113, ¶¶ 43, 45). Of note, however,

in its 2016 Atwell decision the Florida Supreme Court determined that the 2014

Juvenile Sentencing Statute should also apply to juveniles sentenced for life with

the possibility of parole. Atwell v. State, 197 So. 3d 1040, 1050 (Fla. 2016). Two

years later, the so-called Atwell Window closed when the Florida Supreme Court

reversed itself. See State v. Michel, 257 So. 3d 3 (Fla. 2018); Franklin v. State, 258

So. 3d 1239 (Fla. 2018).6 During the Atwell Window, many of those juveniles

sentenced for life with the possibility of parole who otherwise would have been

Class Members filed petitions for resentencing. (Doc. 104-22). Of the 125

applicable cases that were heard and decided during the Atwell Window, ninety-

eight of them were released (or seventy-eight percent), six were given a delayed

release, and only three were resentenced to life sentences. (Doc. 104, p. 16).

Finally, the Commissioner Defendants produced documentation

demonstrating several instances where they amended potential parole dates

downward for Class Members (or for individuals who would otherwise be eligible

for class treatment if they had not been paroled).7 (Doc. 96-1).

3. The Named Plaintiffs

The Named Plaintiffs are all at various stages of the FCOR parole process.

Plaintiff Robert Earl Howard (“Plaintiff Howard”) is serving a life term with the

possibility of parole due to a murder and burglary that he committed when he was

seventeen. Howard v. State, 180 So.3d 1135 (2015). He has had three subsequent

interviews since his potential parole date was set for 2062 in 2005 after the

Commissioner Defendants rejected the FCOR Investigator’s recommendation to

set it for 2015 by considering other aggravating factors. (Doc. 104-8). Plaintiff

6 In a prior Order, the Court distinguished these cases by noting that “[t]he Courts finds the

Defendants’ use of this case misplaced because the Florida Supreme Court was not tasked with

determining whether Florida’s parole system actually does provide inmates with the required

meaningful opportunity for release” or “whether the parole system is fundamentally flawed.”

(Doc. 43, p. 14 nn.8–9).

7 Those who have left prison for any other reason prior to this lawsuit are not Class Members.

(Doc. 113, ¶ 43).

Howard has completed his GED, participated in over eighteen voluntary programs,

received above satisfactory work ratings, and had not received a disciplinary report

in over thirty-five years as of 2018. Howard, 180 So.3d at 1135. Beginning in 2010,

his classification officer provided materials to the FCOR recommending he be

paroled. (Doc. 104-17). Although subject to periodic revision, Plaintiff Howard will

be ninety-one upon the arrival of his current parole release date. (See Doc. 104-8).

Plaintiff Damon Peterson (“Plaintiff Peterson”) was sentenced for first-

degree murder, along with other separate offenses, committed when he was a

minor. (Doc. 104-16). The Investigator in his case recommended a potential parole

date in 2027, but the Commissioner Defendants set the date instead for 2060. (Id.).

The increase was due to aggravating factors related to the underlying offense and

for unsatisfactory institutional conduct, but no evidence of discussion between the

Commissioner Defendants related to mitigating factors is present on the official

FCOR record for the meeting in question. (Id). Finally, the FCOR Commissioner

Meeting following Plaintiff Carl Tracy Brown’s (“Plaintiff Brown”) Initial

Interview lasted less than five minutes, and there was no discussion of his age at

the time of his offense or his disciplinary record in prison (or lack thereof). (See

Doc. 104-10, 79:13–84:15).

II. STANDARD OF REVIEW

To prevail on a summary judgment motion, the movant must show “that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is ‘material’ if, under the

applicable substantive law, it might affect the outcome of the case. An issue of fact

is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find

for the nonmoving party.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.

2014).

The Court must “view the evidence and all factual inferences therefrom in

the light most favorable to the non-moving party and resolve all reasonable doubts

about the facts in favor of the non-movant.” Davila v. Gladden, 777 F.3d 1198, 1203

(11th Cir. 2015) (quoting Carter v. City of Melbourne, 731 F.3d 1161, 1166 (11th Cir.

2013) (per curiam)). “A mere ‘scintilla’ of evidence supporting the opposing party’s

position will not suffice; there must be enough of a showing that the jury could

reasonably find for that party.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446

F.3d 1160, 1162 (11th Cir. 2006) (quoting Walker v. Darby, 911 F.2d 1573, 1577

(11th Cir. 1990)). Summary judgment should only be granted “[w]here the record

taken as a whole could not lead a rational trier of fact to find for the non-moving

party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

III. DISCUSSION

After a thorough review of the record, the Court agrees with both parties that

no dispute of material fact remains and the issues in the case are now “legal issues

for the Court to decide.” (Doc. 119, p. 7). Under this record, the Court holds the

undisputed evidence demonstrates Florida’s parole procedures as enacted through

the practices and policies of the FCOR by the Commissioner Defendants are

adequate under the Fourteenth Amendment’s Due Process Clause and the Eighth

Amendment’s prohibition against cruel and unusual punishment.8 As laid out in

the findings of fact, the FCOR’s parole procedures provide Class Members a

meaningful opportunity for release based on a consideration of demonstrated

maturity and rehabilitation.9 While the national mood may be shifting away from

a heavily punitive approach to criminal justice, the Court’s role is not to concretize

this mood into law. To do so would usurp the Florida legislature’s duty to set

criminal and penological policy for the state and bypass individualized remedies

available to individualized Class Members. Instead, the Court must ensure that

Florida’s parole system as enacted by the FCOR meets the irreducible

constitutional floor. With respect to the Class, it has done so here.10 Accordingly,

the Commissioner Defendants’ Motion for Summary Judgment is granted.

8 As a necessary consequence, the Named Plaintiff’s request for declaratory judgment also fails.

(Doc. 1, ¶¶ 175–176).

9 As the Court rules in favor of Defendants based on the record, it will assume without deciding

that Defendants are not here entitled to quasi-judicial immunity when sued in their official

capacities. (Doc. 96, p. 11). Moreover, the Court will further assume without deciding that the

plain text of 42 U.S.C. § 1983 does not bar injunctive or declaratory relief against the

Commissioner Defendants. (Id. at pp. 10–11). Finally, the Court notes that it has already

addressed and cast aside Defendants’ objection that the Heck doctrine bars the Named

Plaintiffs’ claims. (Doc. 43, pp. 6–8; Doc. 96, p. 29).

10 As the Court noted upon certification of the class, “the heart of Plaintiffs’ case is that Florida’s

procedural protections for juveniles sentenced to life with parole are wholly inadequate under

the Eighth and Fourteenth Amendments.” (Doc. 58, p. 12). While class relief ultimately is not

appropriate here, the Court takes no position on whether the procedural mechanisms in

question have been properly applied to any given Class Member; if a Class Member believes a

violation has occurred, other individualized remedies are available for them to seek on an

individualized basis. (Doc. 113, ¶ 113).

A. Eighth Amendment Claim

The Eighth Amendment prohibits the infliction of cruel and unusual

punishments. U.S. CONST. amend. VIII. Contained in the Constitution’s ban on

cruel and unusual punishments is the “precept of justice that punishment for crime

should be graduated and proportioned to [the] offense.” Weems v. United States,

217 U.S. 349 (1910). Certain punishments of offenders who committed their crimes

when they were juveniles qualify as disproportionate. Roper v. Simmons, 543 U.S.

551 (2005) (holding the Eighth Amendment forbids capital punishment for

offenders who were juveniles at the time of their capital crimes). With respect to

juvenile offenders who commit crimes when they are under eighteen sentenced for

life, the Eighth Amendment further requires they be sentenced by someone with

discretion to consider the mitigating qualities of youth and to thereby sometimes

impose a lesser punishment, Miller, 567 U.S. 460 (2012) (noting that life without

parole sentences for juvenile homicide offenders is conditionally permissible). As

part of this process, states must affirmatively afford juvenile offenders who commit

crimes when they are under eighteen a “meaningful opportunity to obtain release

based upon demonstrated maturity and rehabilitation.” Graham v. Florida, 560

U.S. 48 (2010); Montgomery v. Louisiana, 577 U.S. 190, 208–09 (2016) (finding

these new substantive constitutional rules are retroactive); Jones v. Mississippi,

141 S. Ct. 1307, 1314–15 (2021) (limiting the Graham line of cases by holding that

a factual finding of permanent incorrigibility is not required to sentence offenders

who committed crimes as juveniles, only that the mitigating qualities of youth be

considered). At bottom, the Named Plaintiffs contend that the FCOR, through the

Commissioner Defendants, has failed to adhere to this Eighth Amendment

proscription and thus made Florida’s parole system a cruel and unusual

punishment with respect to the Class. (Docs. 104, 108). The Court ultimately

disagrees.

At the outset, the Court notes it agrees with other courts that “the

constitutional protections recognized by Graham, Miller, and Montgomery apply

to parole proceedings for juvenile offenders serving” imprisonment for life because

the same logic applies with equal force even though the line of cases following

Graham primarily dealt with sentencing. See Flores v. Stanford, 18cv2468, 2019

WL 4572703, at *8 (S.D.N.Y. Sept. 20, 2019). This is a necessary extension of the

Supreme Court’s recognition in Montgomery that while “[a] State may remedy a

Miller violation by permitting juvenile homicide offenders to be considered for

parole,” the parole process must be one that “ensures that juveniles whose crimes

reflected only transient immaturity—and who have since matured—will not be

forced to serve a disproportionate sentence.” 577 U.S. at 211.

The Court likewise rejects the Commissioner Defendants’ argument that the

Class Members are in reality challenging their sentence. (Doc. 96, pp. 13–17).

Instead, the Class Members are arguing their sentences should mean what they

say: imprisonment for life with the possibility of parole. (Doc. 104, pp. 18–22)

(emphasis added). Since they were sentenced as juveniles, Class Members argue

this possibility of parole constitutionally entails meaningful procedural

consideration of their potential maturity and rehabilitation in light of their youth

when their crimes were committed. (Doc. 108, p. 7). Necessarily so; in fact, even

the Commissioner Defendants agree that the opportunity for parole release for

Class Members “cannot be utterly illusory.” (Doc. 96, p. 24).

Afterall, the “foundation stone” for Miller’s analysis was the line of

precedent holding certain punishments disproportionate when applied to

juveniles. 567 U.S. at 470 n.4. Relying on Roper and Graham, Miller recognized

that children differ from adults in their “diminished culpability and greater

prospects for reform,” and that these distinctions “diminish the penological

justifications” for imposing life without parole on juvenile offenders. 567 U.S. at

471–72. Because Miller determined that sentencing a child to life without parole is

excessive for all but “the rare juvenile offender whose crime reflects irreparable

corruption,” it rendered life without parole an unconstitutional penalty for “a class

of defendants because of their status”—i.e., juvenile offenders whose crimes reflect

the immaturity of youth. 567 U.S. at 479–80. Montgomery therefore posited that

some juvenile offenders might face “a punishment that the law cannot impose

upon [them].” 577 U.S. at 208–09 (quoting Schriro v. Summerlin, 542 U.S. 348,

352 (2004)). The same is true here. At bottom, parole systems must afford

juveniles sentenced for life with the possibility of parole at least some minimally

meaningful opportunity to demonstrate the gravamen of this line of cases—that

children who commit even heinous crimes are capable of material maturation and

change. Montgomery, 577 U.S. at 212. To find otherwise would be tantamount to

creating an exception that swallows the rule.11

With that said, a thorough review of the undisputed record counsels a

finding that the practices and policies of FCOR do provide Class Members some

meaningful opportunity for release based on demonstrated maturity and

rehabilitation as a matter of law. Mostly importantly, the Youthful Offender Matrix

is available by regulation to set a lower baseline potential parole date for the Class

Members in comparison with inmates who committed their offense as adults.

Compare FLA. ADMIN. CODE 23-21.009(5) with FLA. ADMIN. CODE 23-21.009(6);

see also FLA. ADMIN. CODE 23-21.009(6) n.1; (Doc. 113, ¶ 39). While the Youthful

Offender Matrix has not yet been uniformly and retroactively applied to the Class

Members, it is available for use in Special Interviews or Subsequent Interviews,

which must occur at least every seven years to revisit the potential parole date.12

(Doc. 104-5, 24:14–23; Doc. 113, ¶¶ 2, 17, 19, 20). Moreover, this consideration is

not a sham. The Commissioner Defendants have put forward some record

instances where they have adjusted current Class Member’s potential parole dates

downward based on demonstrated maturation and rehabilitation, and FCOR has

11 The Court notes that it read and reviewed the persuasive authority the Commissioner

Defendants cite in opposition on this issue but finds that those cases read Graham and its

progeny far too formalistically and narrowly for the Court to adhere to their guidance. (Doc.

96, p. 12).

12 The Class Members who have not yet had the Youthful Offender Matrix applied to calculate

their recommended potential parole date even their next Subsequent or Special Interview may

have a strong individual appeal, but this individualized issue is not currently before the Court.

paroled at least 246 individuals who would otherwise be eligible for class

treatment, twenty-three of which have been paroled since 2012. (Doc. 96-1; Doc.

96-3; Doc. 104, p. 15; Doc. 113, ¶¶ 43, 45).

The Named Plaintiffs repeatedly argue that records of the Commissioner

Defendants’ Meetings frequently show a focus on a Class Member’s underlying

offense much more than their progress towards rehabilitation, but the Court notes

that consideration of the seriousness of an offense does not foreclose that the

Commissioner Defendants also consider demonstrated signs of maturity and

rehabilitation. (Doc. 104, pp. 3, 9, 12, 19). Instead, as in sentencing, parole is not a

one-size-fits-all process, and it necessarily must take into the account the

seriousness of the particular offense(s) in question in order to gauge maturation

and rehabilitation from that baseline. See Jones, 141 S. Ct. at 1314–15 (noting that

when sentencing those offenders who committed crimes as juveniles the mitigating

qualities of youth must be considered but only as part of a total mix of factors).

Furthermore, while raw parole numbers, parole release percentages, and

average projected age upon release may provide some helpful context for resolving

this inquiry, alone they do not settle the issue, particularly in light of the Atwell

Window. (See Doc. 104, p. 15). The Named Plaintiffs seize upon the marked

disparity between the FCOR parole release data since 2012 and the data for those

juveniles sentenced for life with the possibility of parole but then resentenced

during the Atwell Window. (Id. at pp. 15–16). But this data might cut the other

way—that is, how is the Court to know whether the population most likely to be

paroled due to their ability to demonstrate maturation and rehabilitation were not

the ones released during the Atwell Window? In other words, it is possible that the

deflated parole release data over the last few years is due in part to a sampling error

brought about by Atwell. This is not to say this is definitively the case, only that the

data alone does not tell the whole story.

Similarly, the idiosyncratic treatment of the individual Named Plaintiffs

cannot carry the day by itself since the issue before the Court is the sufficiency of

the entire parole process. (Doc. 104, p. 14). To that end, more descriptive rationales

for parole date decisions at the FCOR Meetings and in related documentation

would probably be beneficial, but the Court cannot say the rationales given in the

record as a whole show an altogether lack of consideration of Class Members’

demonstrated maturation and rehabilitation, particularly when the Commissioner

Defendants attest they consider these factors, they have demonstrated their

application from time to time, and their consideration is provided for by Rule. FLA.

ADMIN. CODE. 23-21.010; (Doc. 96-1; see Doc. 96-4; Doc. 113, ¶ 39). Likewise, the

particular length of any given Commission Meeting does not demonstrate the

FCOR parole procedures are completely deficient when their duration is highly

variable, and the Commissioner Defendants spend time beforehand weighing

aggravating and mitigating factors individually. (Doc. 113, ¶¶ 1, 30, 32–33).

At bottom, the FCOR process as a whole meets at least the constitutional

floor for Class Members to have a meaningful opportunity for release based on

maturity and rehabilitation.

B. Fourteenth Amendment Procedural Due Process

A due process claim requires three elements: (1) the deprivation of a

constitutionally protected liberty interest; (2) state action; and (3) constitutionally

inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).

State action is not at issue here, so the Court addresses the liberty interest and

adequacy of process issues in turn.

Importantly, “juvenile offenders serving a maximum term of life have a

cognizable liberty interest in obtaining parole upon demonstrating maturity and

rehabilitation.” Flores, 2019 WL 4572703, at *10. “[A]lthough Graham stops short

of guaranteeing parole, it does provide the juvenile offender with substantially

more than a possibility of parole or a mere hope of parole, it creates a categorical

entitlement to demonstrate maturity and reform, to show that he is fit to rejoin

society, and to have a meaningful opportunity for release.” Greiman v. Hodges, 79

F. Supp. 3d 933, 945 (S.D. Iowa 2015) (emphasis in original) (citing Graham, 560

U.S. at 75 (“It bears emphasis, however, that while the Eighth Amendment

prohibits a State from imposing a life without parole sentence on a juvenile

nonhomicide offender, it does not require the State to release that offender during

his natural life.”)). This is not to say that there is a “right under the Federal

Constitution to be conditionally released before the expiration of a valid sentence,”

Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (emphasis added), but instead that

these Supreme Court cases “confer on juvenile offenders a constitutionally

protected liberty interest in meaningful parole review.” Flores, 2019 WL 4572703,

at *10 (internal quotation marks and citation omitted) (emphasis added). At the

same time, the Court is mindful that “[w]hen a new substantive rule of

constitutional law is established, [the Supreme] Court is careful to limit the scope

of any attendant procedural requirement to avoid intruding more than necessary

upon the States’ sovereign administration of their criminal justice systems.”

Montgomery, 577 U.S. at 211. As such, the Court proceeds to consider whether the

FCOR’s procedures are constitutionally adequate so as to ensure Class Members

receive such a meaningful review.

The inquiry thus becomes what process is due. Morrissey v. Brewer, 408

U.S. 471, 481 (1972). With the finding that Plaintiffs have a meaningful opportunity

to demonstrate their maturity and rehabilitation as prescribed by FCOR rules and

regulations under the Eighth Amendment, however, the concomitant availability

of state remedies to ensure compliance with these rules and regulations on an

individualized basis ensures the process available to the Class is adequate to

protect their liberty interest.13 See Ogburia v. Cleveland, 380 F. App’x. 927, 929

(11th Cir. 2010) (finding “procedural due process violations do not even exist

unless no adequate state remedies are available”) (quoting Cotton v. Jackson, 216

F.3d 1328, 1331 n.2 (11th Cir. 2000)); see also Narey v. Dean, 32 F.3d 1521, 1527

(11th Cir. 1994) (appeal to state superior courts with the power to “reverse the

13 The Court allowed this challenge to proceed because the Named Plaintiffs alleged in effect the

process provided was wholly inadequate from the outset such that the state of Florida through

the FCOR had essentially refused to provide due process. McKinney v. Pate, 20 F.3d 1550,

1557 (11th Cir. 1994) (citing Zinermon v. Burch, 494 U.S. 113, 123 (1990)); (see Docs. 1, 43).

The undisputed record shows this not to be the case.

decision or order of the board” is often an adequate procedural remedy under the

circumstances); (Doc. 113, ¶ 13). While additional post-conviction counsel, the

opportunity for Class Members to be present at FCOR Meetings, and mandatory

provision of free records related to these proceedings (among other procedural

protections) would likely be beneficial, this is not constitutionally required with

the availability of state judicial review as a remedy. Reams v. Irvin, 561 F.3d 1258,

1263 (11th Cir. 2009) (holding procedural due process does not always require the

right to be heard before a decision is made regarding a constitutionally protected

interest); Watkins v. Israel, 661 F. App’x. 608, 610 (noting a state’s fiscal and

administrative burdens in providing additional procedural guarantees may lessen

due process requirements for some inmates); (Doc. 113, ¶¶ 13, 26–28). As the

appeals remedies available to the Class ensure the FCOR procedures prescribed by

law are not utterly illusory, there can be no procedural due process violation.

IV. CONCLUSION

For the aforementioned reasons, it is ORDERED and ADJUDGED as

follows:

1. The Commissioner Defendants’ Motion for Summary Judgment (Doc.

96) is GRANTED;

2. The Named Plaintiffs’ Motion for Summary Judgment (Doc. 104) is

DENIED;

3. The Complaint (Doc. 1) is DISMISSED WITH PREJUDICE;

4. The Clerk of Court is DIRECTED to enter judgment in favor of the

Commissioner Defendants and against Plaintiffs and to thereafter

terminate any pending motions and close the file.

DONE AND ORDERED in Orlando, Florida on February 17, 2023.

<.

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

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