# Howard v. Coonrod

> District Court, M.D. Florida · February 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10112148

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112148

## How later opinions describe it (automated extraction)

- noting that life without parole sentences for juvenile homicide offenders are only conditionally permissible
- noting that life without parole sentences for juvenile homicide offenders is conditionally permissible
- holding the Eighth Amendment forbids capital punishment for offenders who were juveniles at the time of their capital crimes

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112148. Public record. Not legal advice.