By Elana Bildner

Brown v. Precythe, No. 2:17-cv-04082-NKL, 2018 WL 4956519 (W.D. Mo. Oct. 12, 2018)

Update: There’s further good news in the Missouri case challenging parole procedures for juvenile lifers: A year after they defeated a motion to dismiss, plaintiffs were granted summary judgment on their claim that the state’s policies, procedures, and customs for parole review for Miller-impacted inmates violates the Eighth Amendment. In particular, the court took issue with the parole board’s use of “circumstances of the offense” as a basis for parole denials—something it concluded “is directly at odds with the requirement that maturity and rehabilitation be considered” and improperly “authorizes the Board to disregard evidence of the inmate’s subsequent rehabilitation and maturity.” 

As discussed in our previous post, each of the four plaintiffs in this case received a mandatory life-without-parole sentence for a homicide crime committed as a juvenile and had been denied parole. After the court denied defendants’ motion to dismiss, both sides sought summary judgment on their claims.

In finding for the plaintiffs on the constitutional count, the court found “that a number of defendants’ policies, practices, and customs combine to deprive those serving JLWOP sentences who receive parole hearings of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  These included:

• limiting inmate access to information and opportunities to advocate consideration of the Miller factors;
• prohibiting inmates from viewing their parole files, including the prehearing report that largely guides the format and content of the hearings;
• permitting only one “delegate” at a hearing to speak on the inmate’s behalf, and only about reentry (not, for example, legal issues);
• preventing access to victim presentations, and permitting victim representatives to argue issues of law;
• focusing parole hearings not on the Miller factors but on the circumstances of the offense; and
• denying parole for reasons not specific to Miller-impacted individuals and with inadequate explanations or guidance on next steps. 

While summarizing the relevant parole processes and procedures, the court noted that nearly 85 percent of those eligible for a hearing under Missouri’s juvenile parole statute did not receive a release date. It observed that while the plaintiffs’ parole denials were “barebones” and “boilerplate” (and do not provide any guidance about steps to take to become better suited for parole), the four plaintiffs were all denied at least partly because of the circumstances of the underlying offense. Further, the Board did not provide any explanation for imposing a five-year setback before the next hearing.

Reasoning that the Board lacks “objective tools, matrices, or criteria to evaluate those serving JLWOP sentences,” and uses wholly subjective standards that fail to ensure due consideration to the required factors, the Court held that these deficiencies combine to “deprive the Miller-impacted inmate of a meaningful and realistic opportunity to demonstrate maturity and rehabilitation.” 

Of note to advocates: The court emphasized that to determine whether there has been a  constitutional violation, it must consider not only the relevant statutes and regulations as written, but as applied. In addition, it held that although “Graham and its progeny place the burden of demonstrating maturity and rehabilitation on the juvenile offender…the cases also place on the state the obligation to ensure that those offenders have a meaningful and realistic opportunity to make that showing”—that is, even if it does not affirmatively elicit relevant evidence, the state must allow parole-eligible inmates to bring such evidence to its attention. 

After a mediation, the parties are now in the process of submitting plans for compliance to the court. The defendants’ current iteration would allow counsel at hearings, mandate that the Board assist with pre-hearing record collection, and impose an across-the-board bar on the Board’s ability to deny parole to class members on the basis of seriousness of the offense. With luck, this decision will pave the way for similar parole challenges in other jurisdictions.

By Elana Bildner

Brown v. Precythe, No. 2:17-CV-04082-NKL, 2017 WL 4980872 (W.D. Mo. Oct. 31, 2017)

A quartet of juvenile lifers challenging the implementation of Missouri’s juvenile parole legislation cleared a substantial hurdle in late October, when a federal district judge ruling on a motion to dismiss concluded that the plaintiffs had stated viable Eighth Amendment and due process claims.

Missouri’s juvenile parole legislation gives juveniles who were previously sentenced to life without parole an opportunity to seek parole after serving 25 years, and directs the parole board to consider post-offense rehabilitation, growth and maturity, accountability for the offense, and institutional record, among other considerations. The plaintiffs—all serving life without parole for first-degree murder committed when they were under the age of 18—were denied parole in recent hearings conducted under the legislation. In their § 1983 suit, they allege that they have been “denied a meaningful opportunity for release, in violation of their constitutional rights, because of the policies, procedures, and customs of the defendants—the Missouri Director of Corrections and each of the members of the [Parole] Board.”

In concluding that the plaintiffs stated a plausible claim to relief under the Eighth Amendment, the court referenced allegations that the parole board routinely failed to take any of the statutory factors into account. As the court noted, the board “invariably cites only one reason for denial of parole: the seriousness of the offense.” The court paid particular attention to allegations that offenders were “severely limited” in the material they were allowed to present at hearings, and that they and their advocates were frequently barred from discussing their youth at the time of the crime or subsequent rehabilitation. In addition, the court noted allegations that parole board members never read offenders’ files; “frequently treat the hearings as games”; and “frequently just ‘don’t believe in parole for people like [the plaintiffs].’”

Finally, the court noted the plaintiffs’ allegation that of the 20 juvenile offenders eligible to receive a hearing since the passage of the legislation—a quarter of those eligible—only two had been granted parole. Most of the 18 who were denied parole were deemed ineligible for parole for another five years—the maximum setback period permitted under Board rules. The remaining offenders were, without explanation, deemed ineligible for even longer terms.

Importantly, in reviewing the contours of the “meaningful opportunity to obtain release” standard, the court cited other federal courts’ inquiries into the sufficiency of state parole procedures, and explicitly disagreed with the defendants’ arguments that the Supreme Court’s opinion in Virginia v. LeBlanc, 137 S. Ct. 1726 (2017), constituted a substantive statement “that the Eighth Amendment does not require more than normal parole procedures.” Instead, the court concluded that “the constitutional prohibition against cruel and unusual punishment, as interpreted in Graham, Miller, and Montgomery, requires states to provide juvenile offenders with a meaningful and realistic opportunity for release—an opportunity that permits the offenders to demonstrate maturity and rehabilitation.” The court further found that plaintiffs have a liberty interest in meaningful parole review, and that denial of a meaningful opportunity for release could constitute a denial of due process.

The favorable ruling in this case is one of several recent positive developments in cases across the country challenging parole procedures and practices as failing to provide the requisite meaningful opportunity for release based on demonstrated maturity and rehabilitation. See Maryland Restorative Justice Initiative v. Hogan, No. ELH-16-1021, 2017 WL 467731 (D. Md. Feb. 3, 2017) (denying in part motion to dismiss concluding that plaintiffs had sufficiently alleged that Maryland’s parole system operates as a system of executive clemency with remote opportunity for release only); Hayden v. Keller, 134 F. Supp. 3d 1000 (E.D.N.C. 2015) (concluding that North Carolina’s parole process does not provide a meaningful opportunity for release because, inter alia, it does not distinguish between juvenile and youth offenders or include specific information about maturity and rehabilitation); Greiman v. Hodges, 79 F. Supp. 3d 933 (S.D. Iowa 2015) (denying motion to dismiss in challenge to Iowa’s parole system as failing to provide meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation). For more on these decisions, see our memo “Criteria and Procedures for a ‘Meaningful Opportunity to Obtain Release’ Under Graham, Miller, and Montgomery.”

Since the ruling here, plaintiffs have amended their complaint and pushed forward with discovery, buoyed by the court’s favorable rulings on several discovery challenges (including the defendants’ efforts to provide only a redacted version of a report by the Missouri DOC’s Office of Inspector General into abuses in the parole process).

By Elana Bildner

In June, the Pennsylvania Supreme Court held that “a faithful application of the holding in Miller, as clarified in Montgomery,” requires a presumption against life-without-parole sentences for juvenile offenders, which may be overcome only if the Commonwealth proves a child’s incorrigibility by “competent evidence” and beyond a reasonable doubt.

The Court specifically noted its “intention that adherence to these procedures will curtail the imposition of illegal sentences of life without parole by sentencing courts.” This is an especially important statement in Pennsylvania, one of four states with the largest populations of juveniles serving life without parole. Pennsylvania now joins a broader chorus of states moving to either end juvenile life-without-parole sentences entirely, or severely curtail their use.

Qu’eed Batts had initially received a mandatory life-without-parole sentence for a crime that occurred when he was 14 years old. Miller was decided during the direct appeal of his case. In 2013, the Pennsylvania Supreme Court remanded his case for resentencing, holding that the sentencing court could, after evaluating the Miller criteria, impose either life without parole or life with parole. At resentencing, Batts was resentenced to life without parole.

On appeal of Batts’ sentence, the Pennsylvania Supreme Court re-examined the Commonwealth’s sentencing procedures in the wake of Montgomery. In its June 26, 2017 decision, it concluded that the General Assembly’s failure to implement a scheme to bring sentences in compliance with Miller and Montgomery warranted that the court exercise its “constitutional power of judicial administration to devise a procedure” to implement the decisions in the state. It explained:

More than a year has passed since the Montgomery decision, and it has been five years since the High Court decided Miller. The General Assembly has not taken any appreciable steps to create a separate sentencing statute or to revise the existing law so that it applies to juveniles convicted of first-degree murder prior to Miller. In the meantime, several hundred individuals remain in Pennsylvania prisons serving illegal life-without-parole sentences for crimes committed when they were juveniles. . . . It is abundantly clear that the exercise of our constitutional authority is required to set forth the manner in which resentencing will proceed in the courts of this Commonwealth.

Citing the “unambiguous[]” mandate of Roper, Graham, Miller, and Montgomery, the Pennsylvania Supreme Court concluded that before imposing life without parole on a child:

the sentencing court must first find, based on competent evidence, that the offender is entirely unable to change. It must find that there is no possibility that the offender could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives, and that the crime committed reflects the juvenile’s true and unchangeable personality and character. Under Miller and Montgomery, a sentencing court has no discretion to sentence a juvenile offender to life without parole unless it finds that the defendant is one of the ‘rare’ and ‘uncommon’ children possessing the above-stated characteristics, permitting its imposition. A sentence of life in prison without the possibility of parole for a murder committed when the defendant was a juvenile is otherwise disproportionate and unconstitutional under the Eighth Amendment.

The court outlined procedures to ensure that such sentences would in fact be reserved for the most exceptional cases: a formal presumption against life without parole such that, for a child to be constitutionally eligible for the sentence, the government must prove his or her incorrigibility beyond a reasonable doubt. To satisfy that burden, prosecutors may present evidence relating both to the Miller factors and the factors appearing in Pennsylvania’s murder sentencing statute for juveniles. Rejecting the government’s suggestion that an offender must prove his own capacity for rehabilitation, the court held that any suggestion of placing the burden on the juvenile offender “is belied by the central premise of Roper, Graham, Miller, and Montgomery—that as a matter of law, juveniles are categorically less culpable than adults.” It emphasized, again, that placing a presumption against life without parole, with the burden on the prosecution to overcome it, was necessary to comply with both due process concerns and “the definitive language” used by the Supreme Court.

Before remanding the case for what it noted would be Batts’ third sentencing proceeding, the court concluded: “The procedures we have established provide juveniles facing a potential sentence of life without parole with heightened due process protections. . . . We expect that the proper employment of these procedures will result in courts sentencing juveniles to life without parole in only the rarest of circumstances, as contemplated and prescribed by the United States Supreme Court.”

Read the case here: Comm. v. Batts, No. 45 MAP 2016, 2017 WL 2735411 (Pa. June 26, 2017)

State Supreme Courts in New Jersey, Ohio, and Washington Confirm that Lengthy, Aggregate Term-of-Years Sentences May Violate Graham and Miller

By Tessa Bialek

In Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the U.S. Supreme Court placed constitutional limits on the sentences that may be imposed on children. Together, the decisions require that sentences for children provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”—except in the rarest of homicide cases where the sentencer determines, after giving mitigating effect to the characteristics and circumstances of youth, that the child is irreparably corrupt and rehabilitation is impossible. These decisions are offender-focused, grounded in an understanding of children’s reduced culpability and greater potential for reform, as well as acknowledgement of the particular hardship of a lifetime in prison for a juvenile offender. Therefore, as courts across the country have recognized, the protections of these cases extend to any child facing a sentence that denies a meaningful opportunity for release—whether for a single crime or multiple offenses.

Indeed, many courts nationwide have recognized that lengthy, aggregate sentences imposed for multiple offenses fall within the ambit of Graham, Miller, and Montgomery.  In recent weeks, several state supreme courts joined this growing chorus.  Recent positive cases include:

• State v. Moore, 2014-0120, — N.E.3d —, 2016 WL 7448751 (Ohio Dec. 22, 2016) – The Ohio Supreme Court determined that the defendant’s aggregate sentence of 112 years’ imprisonment, with eligibility for judicial release after 77 years, for non-homicide crimes violated Graham’s categorical prohibition against JLWOP sentences. The defendant would not become eligible for release until age 92, well beyond his life expectancy.  The Ohio Supreme Court explained that although Graham did not establish a limit to how long a juvenile can remain imprisoned before getting the chance to demonstrate maturity and rehabilitation, “it is clear that the court intended more than to simply allow juveniles-turned-nonagenarians the opportunity to breathe their last breaths as free people.”  Instead, Graham sought to permit juvenile nonhomicide offenders the opportunity to leave prison and live part of their lives in society.  As the Ohio Supreme Court explained: “it does not take an entire lifetime for a juvenile offender to earn a first chance to demonstrate that he is not irredeemable.” The court further emphasized that Graham applies with equal force to an aggregate sentence imposed for multiple offenses: “To suggest that a life-without-parole sentence would be permissible for a juvenile who committed multiple offenses would be to ignore the categorical restriction against that penalty for juveniles who do not commit homicide. A court cannot impose a sentence that is barred because of the identity of the offender on the ground that the offender committed multiple crimes.”

• State v. Zuber and Comer, 076806, 077318, — A.3d —, 2017 WL 105004 (N.J. Jan. 11, 2017) – The New Jersey Supreme Court held that the defendants’ aggregate sentences — for homicide and non-homicide crimes — of 110 years (with parole eligibility after 55 years, at age 72) and 75 years (with parole eligibility after 68 years, at age 85) violated federal and state constitutional prohibitions against cruel and unusual punishment. It concluded that these were de facto life sentences, depriving the defendants of any meaningful opportunity to obtain release, and were imposed without consideration of youth and its attendant characteristics as required under Graham and Miller.   The court confirmed that “Miller’s command that a sentencing judge take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” applied to all sentences “that are the practical equivalent of life without parole.”  This is because “[t]he proper focus belongs on the amount of real time a juvenile will spend in jail and not on the formal label attached to [the] sentence.”  Thus, the court made clear that “judges must evaluate the Miller factors when they sentence a juvenile to a lengthy period of parole ineligibility for a single offense” as well as “when they consider a lengthy period of parole ineligibility in a case that involves multiple offenses at different times.”

• State v. Ramos, No. 92454-6, — P.3d —, 2017 WL 121541 (Wash. Jan. 12, 2017) – The Washington Supreme Court held that the defendant’s 85-year aggregate sentence, for homicide and non-homicide crimes, fell within the ambit of Miller, which “clearly” applies to “any juvenile offender who might be sentenced to die in prison without a meaningful opportunity to gain early release based on demonstrated rehabilitation,” whether a sentence for a single crime or an aggregated sentence for multiple crimes. (Note that the court ultimately determined that the sentencing court had complied with Miller’s requirements and, accordingly, affirmed defendant’s sentence.)

These decisions, and others like them, recognize that the rationale underpinning the Supreme Court’s decisions and the protections afforded by those cases apply anytime a child faces a lifetime in prison without meaningful opportunity for release based on demonstrated maturity and rehabilitation.

Tessa Bialek is a Juvenile Justice Fellow with the Juvenile Sentencing Project at Quinnipiac University School of Law.

By Tessa Bialek

On October 19, 2016, the Louisiana Supreme Court unanimously struck down a 99-year sentence for a nonhomicide offense as “the functional equivalent of life without parole” and illegal under Graham v. Florida.  See State ex rel. Alden Morgan v. State, No. 2015-KH-0100, 2016 WL 6125428 (La. Oct. 19, 2016).

The defendant, sentenced for an armed robbery that occurred when he was 17 years old, would not have been eligible for parole until age 101.  Citing Graham, the Louisiana Supreme Court explained that such a sentence “does not provide the defendant with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” as required.  It rejected the State’s attempt to distinguish between “life” versus “term-of-years” sentences, explaining that any sentence that, based on a judgment at the time of sentencing, bars a juvenile nonhomicide offender from ever re-entering society is unconstitutional under Graham.  The court further noted the “paradox” in the State’s position: if the defendant’s 99-year sentence were permissible, he would remain incarcerated for life whereas others convicted of more serious offenses, who had received “life” sentences, would become parole-eligible under Louisiana’s post-Graham and Miller legislation after serving only 30 or 35 years.  The court therefore construed the State’s post-Graham legislation “as applicable not just to those juvenile offenders serving a sentence of life for a nonhomicide offense, but also to those, like the defendant, serving an effective life sentence for a single nonhomicide offense which the legislature deems not so serious as to warrant an automatic life sentence.”  Accordingly, the Louisiana Supreme Court amended defendant’s sentence to delete the restriction on parole eligibility and directed the Department of Corrections to set a date for parole eligibility consideration in accordance with the applicable statute.

In a concurring opinion, Justice Crichton chastised the District Attorney for taking the “the stunning position that this defendant does not face the functional equivalent of life imprisonment and that he would have—in the year 2082 and at age 101—a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’”  Justice Crichton stressed that “a prosecutor’s responsibility is as ‘a minister of justice and not simply that of an advocate,’” and, given his “power and responsibility, the District Attorney should seek to uphold the integrity of his office by declining to take positions that, as reflected by the 7-0 decision in this case, contravene federal constitutional law.”

The Louisiana Supreme Court joins numerous other state and federal courts in recognizing that lengthy sentences that deny a meaningful opportunity for release implicate Graham and Miller—regardless of whether the sentence is technically labeled “life without parole.”  This developing consensus includes decisions from state supreme courts in California (see People v. Caballero), Connecticut (see State v. Riley; Casiano v. Commissioner); Florida (see Henry v. State; Gridline v. State; Atwell v. State), Illinois (see People v. Reyes), Indiana (see Brown v. State), Iowa (see State v. Pearson; State v. Null; State v. Ragland), Nevada (see State v. Boston), and Wyoming (see Bear Cloud v. State), as well as federal courts of appeals including the Seventh Circuit (see McKinley v. Butler) and the Ninth Circuit (see Moore v. Biter).

Tessa Bialek is a Juvenile Justice Fellow with the Juvenile Sentencing Project at Quinnipiac University School of Law.

By John Mills

A judge in Hillsborough County, Florida recently struck down Florida’s juvenile first-degree murder sentencing scheme because it violates Miller v. Alabama, a Supreme Court case decided in 2012.  In Miller, the Supreme Court held that sentencers must have the discretion to consider the mitigating aspects of youth before sentencing a juvenile to life without parole.  The underlying premise of that decision was that juveniles are different and require individualized consideration in fashioning the punishment and rehabilitative services tailored to their situation and offense.

The Florida court validated the basic premise of Miller.  It held that a mandatory minimum of forty years prevented courts from adequately considering the mitigating characteristics of youth and, based on those characteristics and their interplay with the offense, fashioning an appropriate remedy.

The Hillsborough County court joined the Iowa Supreme Court in recognizing that Miller requires more than the simple availability of a sentence less than life without parole.  Instead, Miller requires courts to consider youth and to have the flexibility to adopt a remedy that meets the unique challenges of the youthful offender before the court.  Mandatory minimums, such as Florida’s and the one struck down in Iowa, foreclose that possibility.

Practitioners across the nation are raising similar challenges.  For example, states with mandatory transfer provisions, such as California’s, subject juveniles to adult court and adult sentences without consideration of youth and may violate Miller’s mandate.  As I have suggested elsewhere, other states, particularly those that lack discretion both at the “transfer” stage—when juveniles are transferred to adult court—and at the sentencing stage, may also have work to do even four years after Miller.

John Mills is a Principal Attorney at the Phillips Black Project and an adjunct professor at UC Hastings College of Law.

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