THE GREAT DISSENTER

In Geter v, State, 38 FLW D1405 (3rd DCA June 26, 2013) a remarkable thing occurred: the 3rd DCA denied, en banc (legally: the whole bunch), Geter's request to apply retroactively the US Supreme Court's decision in Miller v. Alabama,  132 S.Ct. 2455 (2012) holding that life in prison for juveniles is unconstitutional.  Geter filed a pro se petition. There was an opinion and then a motion to reconsider en banc, which the majority denied in a paragraph. 

Then Judge Emas wrote a dissent. 

The dissent is worth reading in its entirety. Judge Emas makes a powerful argument why the opinion in Miller is retroactive. Such a result would bring a bit of humanity and dare we say justice to a criminal justice system content for over two hundred years to incarcerate juveniles for life with no hope of parole. To paraphrase the new testament, let he who is same at age fifty as he was at seventeen throw the first stone. 

There is more here, however. Sometimes when judges dissent they reach heights that they never were shooting for. Such is the dissent of Judge Emas:

Before condemning a juvenile to a sentence he can complete only upon his death, our society and our criminal justice system has a compelling interest in ensuring that the defendant have the opportunity to present, and the trial judge the discretion to consider, individual circumstances that might warrant some lesser sentence. In doing so, we provide an accurate and reliable sentencing process that gives substance to the Eighth Amendment's concept of proportionate punishment. By applying such a rule to all juvenile defendants, including those whose conviction and sentence are already final, we surely enhance society's confidence in a system that is not merely efficient or uniform, but is also fair, accurate and reliable.

The ideals of fairness, accuracy and reliability often defy measurement, but no one can reasonably question the significance of both actual fairness and society's perception of fairness in the effective administration of justice and the accuracy, reliability and integrity of the criminal sentencing process.

There is more to Emas's penultimate paragraphs than the retroactive application of Miller. There is a subtle judicial strike at the heart of minimum mandatory sentences. Re-read the portion we highlighted in red. 

In Miller, the United States joined the enlightened nations of the 20th century by refusing to incarcerate juveniles for life without chance of parole. Perhaps in the second decade of the 21st century Florida can return sentencing to judges and take life crushing minimum mandatory sentences out of the hands of prosecutors half the age of judges who sit powerless. 

Until then, Florida's citizens continue to live under the tyranny of justice meted out by prosecutors who have unfettered discretion to file charges that invoke minimum mandatories. Judges and defense attorneys remain relegated by the legislature to powerless bystanders, the fate of the defendant entirely out of their hands. One could imagine a such a situation in the Soviet gulag- a conveyor belt of humanity shipped off to Siberia, justice a distant, laughable concept, mocked by the all powerful state prosecutors. 

See you in court, derailing the conveyor belt just a bit.