Eighth Circuit Strands Missouri Prisoners Sentenced to Life Without Parole as Juveniles in ‘Opaque’ Review Process
by Douglas Ankney
On August 30, 2022, the U.S. Court of Appeals for the Eighth Circuit held that Missouri’s parole review process does not violate the constitutional rights of prisoners who were sentenced to life without parole (LWOP) as juveniles. The decision came after a rehearing of the full Court en banc, overruling an earlier finding by a three-judge panel and drawing a sharp dissent from two of those three.
In Roper v. Simmons, 543 U.S. 551 (2005), the U.S. Supreme Court decided that the Eighth Amendment’s prohibition against cruel and unusual punishment bars the death penalty for juvenile offenders. Since that decision,the high court has thrice extended its reasoning that a lack of maturity and an underdeveloped sense of responsibility means juveniles may not reliably be “classified among the worst offenders,” for whom the harshest penalties are reserved.
First the high court banned LWOP sentences for juveniles for non-homicide offenses in Graham v. Florida, 560 U.S. (2010). LWOP assumes someone will forever be a danger to society, the justices said, which cannot be true for juveniles because “incorrigibility is inconsistent with youth.”
Next, in Miller v. Alabama, 567 U.S. 460 (2012), the court banned mandatory LWOP for juveniles convicted of homicide. To pass constitutional muster, they said, sentencing schemes must distinguish “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”
That decision was then made retroactive the next year in Montgomery v. Louisiana, 577 U.S. 190 (2016). Prisoners who were juveniles when sentenced to LWOP are now entitled to a new sentencing hearing, where their youth will be considered. Alternatively, a state may simply permit them to be considered for parole. But “some meaningful opportunity” must be provided “to obtain release based on demonstrated maturity and rehabilitation.”
In response, Missouri enacted Mo. Rev. Stat. §§ 558.047, 565.020, et seq. in 2016. It provided that anyone sentenced to LWOP before August 28, 2016, who was under 18 at the time of offense, may petition for parole after serving 25 years in prison. The state Board of Probation and Parole (BPP) must then hold a hearing where it considers 15 factors, including efforts made toward rehabilitation; growth and increased maturity since the offense occurred; and just how culpable the offender was, given his age and role in the offense.
On behalf of themselves and a class of similarly situated state prisoners serving LWOP for homicides committed as juveniles, Norman Brown, Ralph McElroy, Sidney C. Roberts, and Theron Roland filed suit in federal court for the Western District of Missouri against the state Department of Corrections and BPP. They claimed their constitutional rights were violated because they were prohibited from reviewing their parole files in preparation for parole hearings. They also objected to a BPP rule allowing only one “delegate” to appear for them and limiting him or her to speaking about plans to transition into the community, while victims and their supporters and even the prosecuting attorney may attend the hearings in any number and speak as long as they want on any subject. In addition, they decried BPP’s “barebones, boilerplate form” for failing to provide any detail about its reasons for denying parole.
In October 2018, the district court dismissed the claim as to BPP’s form but otherwise agreed with Plaintiffs and granted them summary judgment. An injunction was issued requiring Defendants to implement a 23-part plan that the court designed to remedy the constitutional deficiencies. Over Defendants’ objection, it prohibited use of the Ohio Risk Assessment System (ORAS) or any similar tool that wasn’t specifically developed to address prisoners convicted as juveniles. And over Plaintiffs’ objection, it said that Defendants were not required to provide counsel in parole proceedings. Both parties appealed.
In September 2021, a three-judge panel of the Eighth Circuit saw no dispute that Defendants “acted under color of state law.” So the only question was whether the “alleged wrongful conduct deprived [Plaintiffs] of a constitutionally protected federal right,” as provided in Green v. Byrd, 972 F.3d 997 (8th Cir. 2020).
In answer, the panel said yes. But on rehearing, the full Court said no.
Full Court Overrules Its Panel
The panel faulted BPP for keeping Plaintiffs from accessing their parole records, saying this made it “nearly impossible for them to identify and address errors.” There was also no chance to respond to “adverse evidence” that might influence “BPP’s determination whether they have ‘demonstrated maturity and rehabilitation,’” quoting Miller and Montgomery.
But the full Court disagreed. It said the “meaningful opportunity” for release of juvenile offenders that the Supreme Court anticipated occurs at sentencing. Not at a parole hearing.
“By operation of Missouri law,” the Court said, “the inmates here were resentenced to life with the possibility of parole” by the passage of the 2016 Missouri statute. That was enough to satisfy the requirements of the Supreme Court.
The panel also objected that limiting a Plaintiff’s delegate to testimony about post-release housing and employment plans prohibited evidence showing maturity and rehabilitation — which would show the offense reflected what the Montgomery court called “the transient immaturity of youth.” The full Court disagreed with this, too. A review of four parole hearings it selected showed “no undisputed ‘practice’ in Missouri that directs an inmate’s delegate at a parole hearing to discuss only an inmate’s home plan.” The Court also found no evidence an attorney was prohibited from serving as a delegate, defeating Plaintiffs’ demand for counsel.
As for the district court’s prohibition on using ORAS, the Court again sided with Defendants and sustained their objection. The lower court erred in considering this a due-process matter, the Court said. Because Plaintiffs sought parole, not release, they had no protected liberty interest at stake that might trigger a due-process claim.
Though Plaintiffs had not appealed dismissal of their objection to BPP’s form — the one used to communicate its decisions — the panel faulted it for not indicating whether there had been any consideration of any factor enumerated by the Supreme Court in Roper, Graham, Miller, and Montgomery. The full Court, however, found “no constitutional flaw.” In fact, based on a more recent high court decision, it noted that “the Eighth Amendment does not require [a] judge to make a factual finding of permanent incorrigibility” when sentencing a juvenile to LWOP, citing Jones v. Mississippi, 141 S. Ct. 1307 (2021).
In a lengthy dissent, two judges from the earlier panel, Jane L. Kelly and Morris S. Arnold, joined Chief Judge Lavenski R. Smith to accuse the majority of letting the state play word games with prisoners’ lives. That is, the state now may “simply declare that all inmates whose sentences violate Miller are ‘eligible’ for parole,” without having to “implement procedures that … allow consideration of age-related mitigation or that otherwise make it impossible for anyone, as a practical matter, to receive a grant of parole.”
In practice, Kelly said, BPP focuses on past events and the heinousness of Plaintiffs’ crimes. Its policies are not structured to meet the Missouri law’s requirement that “efforts made toward rehabilitation” and “subsequent growth and increased maturity” are considered. In fact, the process “obstructs [BPP’s] ability to hear and consider evidence reflecting those factors.”
“Missouri’s parole review process also obfuscates whether [BPP] has truly given consideration to the ‘distinctive attributes of youth,’” Kelly lamented. Lacking “access to the recordings of their hearings,” offenders are expected “to get additional information about a denial from their parole officers.” But those officers “have no knowledge of the Board’s reasoning since they do not attend parole hearings.” As a result, the offenders’ “ability to understand the basis for [BPP’s] decision and prepare accordingly for a future parole hearing” is “greatly impede[d]” by “this opaque process,” the judge concluded.
Plaintiffs were represented by attorneys from the Roderick and Solange MacArthur Justice Center in Washington, DC, and Husch Blackwell LLP in St. Louis and Austin. See: Brown v. Precythe, 2022 U.S. App. LEXIS 24384 (8th Cir.).
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Related legal case
Brown v. Precythe
|Cite||2022 U.S. App. LEXIS 24384 (8th Cir.)|
|Level||Court of Appeals|