NORMAN BROWN, et al. v. ANNE L. PRECYTHE, et al.
No. 19-2910
United States Court of Appeals, Eighth Circuit
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2910
___________________________
Norman Brown; Ralph McElroy; Sidney C. Roberts; Theron Roland, also known
as Theron “Pete” Roland,
lllllllllllllllllllllPlaintiffs - Appellees,
v.
Anne L. Precythe, in her official capacity, Director of Missouri Department of
Corrections; Don Phillips, in his official capacity, Chairman of the Missouri Board
of Probation and Parole; Bryan Atkins, in his official capacity, Member of the
Missouri Board of Probation and Parole; Martin Rucker, in his official capacity,
Member of the Missouri Board of Probation and Parole; Paul Fitzwater, in his
official capacity, Member of the Missouri Board of Probation and Parole; Brian
Munzlinger, in his official capacity, Member of the Missouri Board of Probation
and Parole; Jennifer Zamkus, in her official capacity, Member of the Missouri
Board of Probation and Parole; Jamilah Nasheed, in her official capacity, Member
of the Missouri Board of Probation and Parole,1
lllllllllllllllllllllDefendants - Appellants.
------------------------------
Current and Former State Prosecutors, State Attorneys General, DOJ Officials,
U.S. Attorneys, and Former Corrections Directors; NAACP Legal Defense and
Educational Fund, Inc.; Juvenile Law Center; Children and Family Justice Center;
Fred T. Korematsu Center for Law and Equality; American Academy of Child and
Nasheed are substituted for their predecessors under Federal Rule of Appellate
Procedure 43(c)(2).
Adolescent Psychiatry; Individual Mental Health Professionals; The Campaign for
the Fair Sentencing of Youth; National Association for Public Defense
lllllllllllllllllllllAmici on Behalf of Appellee(s).
___________________________
No. 19-3019
___________________________
Norman Brown; Ralph McElroy; Sidney C. Roberts; Theron Roland, also known
as Theron “Pete” Roland,
lllllllllllllllllllllPlaintiffs - Appellants,
v.
Anne L. Precythe, in her official capacity, Director of Missouri Department of
Corrections; Don Phillips, in his official capacity, Chairman of the Missouri Board
of Probation and Parole; Bryan Atkins, in his official capacity, Member of the
Missouri Board of Probation and Parole; Martin Rucker, in his official capacity,
Member of the Missouri Board of Probation and Parole; Paul Fitzwater, in his
official capacity, Member of the Missouri Board of Probation and Parole; Brian
Munzlinger, in his official capacity, Member of the Missouri Board of Probation
and Parole; Jennifer Zamkus, in her official capacity, Member of the Missouri
Board of Probation and Parole; Jamilah Nasheed, in her official capacity, Member
of the Missouri Board of Probation and Parole,
lllllllllllllllllllllDefendants - Appellees.
------------------------------
Children and Family Justice Center; Current and Former State Prosecutors, State
Attorneys General, DOJ Officials, U.S. Attorneys, and Former Corrections
Directors; Fred T. Korematsu Center for Law and Equality; Juvenile Law Center;
The Campaign for the Fair Sentencing of Youth; National Association for Public Defense
lllllllllllllllllllllAmici on Behalf of Appellant(s).
____________
Appeals from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: January 11, 2022
Filed: August 30, 2022
____________
Before SMITH, Chief Judge, LOKEN, ARNOLD, COLLOTON, GRUENDER,
BENTON, SHEPHERD, KELLY, ERICKSON, STRAS, and KOBES, Circuit Judges,
En Banc.
____________
COLLOTON,
In 2016, in light of Supreme Court decisions interpreting the Eighth
Amendment’s proscription on cruel and unusual punishment, the Missouri legislature
modified state law regarding parole. The legislature enacted a statute permitting a
juvenile homicide offender to petition for parole if he had been sentenced to
mandatory life imprisonment without parole. A class of inmates who were juvenile
offenders sued the state officials responsible for administering the parole process.
The inmates alleged that the policies and practices of the parole officials violated
their rights to be free from cruel and unusual punishment and to due process of law
under the federal and Missouri constitutions. The district court determined that the
parole review practices were constitutionally deficient, and ordered the State to
implement an elaborate remedial plan. The State appeals, and we conclude that there
is no constitutional violation. We therefore reverse the judgment of the district court.
I.
In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that the
Eighth Amendment, as applied to the States through the Fourteenth Amendment,
forbids the mandatory imposition of a sentence of life without parole for a juvenile
homicide offender. Id. at 479. The Court relied on a line of cases establishing “that
children are constitutionally different from adults for purposes of sentencing,” and
that some punishments will therefore be cruel and unusual when imposed on juveniles
without opportunity for a sentencing judge “to consider the mitigating qualities of
youth.” Id. at 471, 476 (internal quotation omitted). Four years later, in Montgomery
v. Louisiana, 577 U.S. 190 (2016), the Court held that the rule announced in Miller
applies retroactively in cases on collateral review. Id. at 212. The Court explained,
however, that Miller’s retroactive effect did not mean that States must “relitigate
sentences, let alone convictions, in every case where a juvenile offender received
mandatory life without parole.” Id. Rather, a State could “remedy a Miller violation
by permitting juvenile homicide offenders to be considered for parole.” Id.
Missouri responded to Montgomery by enacting
This statute permits a juvenile homicide offender who was sentenced to mandatory
life without parole to petition for parole after serving twenty-five years of his
sentence.
Missouri Board of Probation and Parole must hold a hearing to determine whether he
will be granted parole.
(who may be an attorney) to speak in support of the offender at the hearing. In
Missouri, a typical parole hearing lasts no more than thirty minutes, but the average
hearing for a juvenile homicide offender is forty-five
directs the board to consider fifteen factors in making its parole decision. These
factors bear generally on the inmate’s youthful judgment, subsequent emotional and
intellectual development, and efforts toward rehabilitation.
558.047.5.
Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland are
serving prison sentences in Missouri for first-degree homicides committed as
juveniles. Each was sentenced before Miller to a mandatory term of imprisonment
of life without the possibility of parole. Each petitioned for parole under § 558.047.1,
the statute enacted after Montgomery. The parole board convened a hearing for each
inmate and denied the petitions. The board scheduled each inmate for reconsideration
within five years.
The inmates, on behalf of themselves and a class of similarly situated inmates,
sued the Director of the Missouri Department of Corrections and members of the
parole board in their official capacities under
a series of grievances: that they were unable to review their parole files in advance
of their hearings before the parole board; that they were permitted only one delegate
to advocate on their behalf at the hearings; that the delegate was limited to discussing
an inmate’s plans to transition back into the community; that victims and their
advocates who spoke at the hearings did not face similar limitations; that the board
communicated its decisions via “barebones, boilerplate” forms; that the board’s
decisions rested primarily on the seriousness of an inmate’s offense, rather than an
evaluation of an inmate’s maturity or rehabilitation; and that the State declined to
provide the inmates with state-funded counsel at the parole hearings. The inmates
asserted that the collective effect of these practices constituted cruel and unusual
punishment and denied them due process of law. They also sought a declaratory
judgment that the board did not adequately consider the factors in
§ 558.047.5.
After discovery, the parties filed cross-motions for summary judgment. The
district court granted summary judgment for the State on the inmates’ statutory claim.
The court concluded that the inmates had not made a prima facie showing that the
parole board failed to consider the factors enumerated in § 558.047.5. But the court
granted summary judgment for the inmates on the constitutional claims. The court
understood Miller and Montgomery to require that juvenile offenders be provided “a
meaningful and realistic opportunity to secure release upon demonstrated maturity
and rehabilitation.” The court then reasoned that the board had failed to provide this
“meaningful opportunity” in its parole proceedings, and that its failure to do so
violated the inmates’ rights to due process and to be free from cruel and unusual
punishment.
The district court next directed the State to propose a plan that would remedy
the purported constitutional violation. After an evidentiary hearing, the court ordered
the State to implement a twenty-three-point remedial plan. The plan instituted
mandatory training for board members, increased the number of delegates that an
inmate may bring to a parole hearing, allowed an inmate to bring an expert witness
whose presentation cannot “be limited in any fashion,” and required parole board
members “to document the reasons” for voting to deny parole.2
inmates may bring four delegates to each parole hearing, (b) the parole board may not
deny parole based solely on the seriousness of the homicide offense, (c) all inmates
who were denied parole must be granted new hearings within ninety days of the
conclusion of this case, (d) all members of the parole board and participating staff
must receive “training on the requirements of Miller, Montgomery, and Graham,” (e)
the State must provide an updated parole file (including a privilege log) to each
inmate at least six months before any parole hearing, (f) the State must use a “prehearing interview form” that includes a quotation from Miller and “spaces for the
were unavailable to the inmate and why,” (g) after reaching a decision, the members
of the parole board must “document the reasons for their votes, as well as any
evidence indicating unsuitability for parole,” (h) the parole board “shall not use any
risk assessment tool unless it has been developed to address inmates affected by
Montgomery or Miller,” (i) if a victim or victim’s representative chooses to speak to
the parole board outside the presence of the homicide offender, the State must either
provide state-funded counsel to the inmate, provide the inmate and his delegates a
live video or audio feed of the victim’s testimony, or provide the inmate with a
transcript of the victim’s statements and an opportunity to respond, (j) inmates have
On appeal, the State asserts that the district court erred by concluding that the
State’s parole procedures violated the inmates’ constitutional rights. The inmates
cross-appeal and argue that the district court also should have required state-funded
counsel for inmates at parole hearings as a remedy. We review the district court’s
grant of summary judgment de novo.
II.
The parties initially disagree about whether the inmates’ claims are cognizable
under
for writ of habeas corpus under
475, 489-90 (1973). Given our conclusions below, we need not resolve this question.
We will assume without deciding that the inmates’ claims were properly brought
under § 1983, and proceed to address the merits. See Dist. Att’y’s Off. for the Third
Jud. Dist. v. Osborne, 557 U.S. 52, 67 (2009). To prevail under § 1983, the inmates
must show that the defendants deprived them of a federal right under the Eighth
Amendment or the Due Process Clause.3
a right to counsel at their own expense at a pre-hearing interview with parole board
staff, and (k) an inmate may bring to any parole hearing an expert witness whose
presentation “shall not be limited in any fashion,” (l) the State must provide an inmate
with a recording of his parole hearing within two weeks after the hearing, and (m) a
parole officer must assist an inmate “in retrieving various relevant records without
waiting for the [inmate] to become eligible to apply for parole release.” R. Doc. 179,
at 13-23.
their federal counterparts, we consider the inmates’ claims under state law together
with the federal claims. See State v. Wood, 580 S.W.3d 566, 588 (Mo. 2019) (cruel
and unusual punishment); New Garden Restaurant, Inc. v. Dir. of Revenue, 471
S.W.3d 314, 316 n.2 (Mo. 2015) (due process).
The inmates claim that the State’s parole procedures violate the Eighth
Amendment’s prohibition on cruel and unusual punishment. The thrust of this claim
is that Missouri’s parole-review regime for juvenile homicide offenders does not
comply with the Supreme Court’s dictates in Miller and Montgomery.
The Eighth Amendment claim, however, collides with the express language of
Montgomery. Montgomery said that “[a] State may remedy a Miller violation by
permitting juvenile homicide offenders to be considered for parole, rather than by
resentencing them.” 577 U.S. at 212. The Court then cited
statute that makes such offenders eligible for parole consideration after serving
twenty-five years. Id. (citing
what Montgomery prescribed: it provided by statute that a juvenile homicide offender
who was originally sentenced to mandatory life without parole may petition for parole
after serving twenty-five years of his sentence.
Hicklin v. Schmitt, 613 S.W.3d 780, 787-89 (Mo. 2020). In a case decided after the
district court’s decision, the Supreme Court emphasized that rather than make
inferences from the Court’s various decisions about sentencing of juvenile offenders,
we should follow “what Miller and Montgomery said—that is, their explicit language
addressing the precise question before us.” Jones v. Mississippi, 141 S. Ct. 1307,
1321-22 (2021). That explicit language calls for rejecting the Eighth Amendment
claim here.
The inmates assert that Missouri’s parole regime is nonetheless constitutionally
deficient because it does not provide juvenile homicide offenders with “some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” This language is drawn from a decision in which the Supreme Court
held that a State may not sentence a juvenile non-homicide offender to life without
the possibility of parole, and must provide the offender “some meaningful
opportunity to obtain release.” Graham v. Florida, 560 U.S. 48, 75 (2010). The
Court in Miller adverted to the Graham decision in concluding that the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without the
possibility of parole for juvenile homicide offenders. 567 U.S. at 479. The inmates
argue that to comply with Miller and Montgomery, and to afford a “meaningful
opportunity” for release, the parole board must implement procedures that account
for the so-called “Miller factors” that guide a judge’s decision at sentencing. These
factors include an offender’s level of maturity, his family and home environment, the
circumstances of the offense, and the possibility for rehabilitation. See Miller, 567
The Miller factors, however, apply as a constitutional matter only to a judge’s
decision at sentencing whether to impose a term of life imprisonment without parole
for a juvenile homicide offender. Montgomery, 577 U.S. at 209-10. Miller held that
consideration of these factors was necessary at sentencing, because the Eighth
Amendment forbids a mandatory sentence of life without parole for juvenile
offenders. 567 U.S. at 479. By operation of Missouri law, the inmates here were
resentenced to life with the possibility of parole. Hicklin, 613 S.W.3d at 787-88.
Miller and Montgomery did not purport to go further and direct federal courts to
scrutinize in a civil rights action whether a State’s parole procedures afford “some
meaningful opportunity” for release of a juvenile homicide offender. As the Fourth
Circuit observed, accepting the inmates’ argument here would require this court to
conclude (1) that the Supreme Court’s juvenile-specific Eighth Amendment
protections extend to juvenile homicide offenders sentenced to life with the
possibility of parole, and (2) that those protections extend beyond sentencing
proceedings. Bowling v. Dir., Va. Dep’t of Corr., 920 F.3d 192, 197 (4th Cir. 2019).
Like the Fourth Circuit, we decline to go that far.
But even if we go further and assume for the sake of analysis that the Eighth
Amendment applies to parole proceedings
no violation here. The record shows that the Missouri parole process is not a sham.
Of the twenty-eight juvenile homicide offenders considered for parole under
Rev. Stat. § 558.047, four offenders were scheduled for release after their first parole
hearing. The others were scheduled for reconsideration within five years.
The inmates are eligible for parole after twenty-five years—at age forty-two
for an offender who was sentenced for murder at age seventeen. Missouri law
requires the parole board to consider, among other factors, the following: (1) the
degree of the defendant’s culpability in light of his age and role in the offense, (2) the
defendant’s age, maturity, intellectual capacity, and mental and emotional health and
development at the time of the offense, (3) the defendant’s background, including his
family, home, and community environment, (4) the likelihood for rehabilitation, (5)
the effect of familial pressure or peer pressure on the defendant’s actions, (6) the
effect of characteristics attributable to the defendant’s youth on the defendant’s
judgment, (7) efforts made toward rehabilitation since the offense occurred, (8)
subsequent growth and increased maturity of the person since the offense occurred,
(9) evidence that the person has accepted accountability for the offense, (10) the
person’s institutional record during incarceration, and (11) whether the person
remains the same risk to society as he did at the time of initial sentencing.
not available to the district court, emphasized that the parole board must consider
these factors (which include the Miller factors) in determining whether to grant parole
to a juvenile homicide offender. Hicklin, 613 S.W.3d at 788-89.
Consideration of these factors provides “some meaningful opportunity” for an
offender to obtain release based on demonstrated maturity and rehabilitation.
Missouri provides offenders with advance notice of their parole review, an
opportunity to be heard (including through a delegate who may be a lawyer), and an
opportunity to submit documents and letters of support. Inmates are interviewed by
parole staff before the hearing, and the parole board considers a report from staff that
addresses readiness for parole. These reports address maturity and rehabilitation. See
R. Doc. 138-16, at 13 (SA 605); R. Doc. 138-19, at 11 (SA 696); R. Doc. 138-20, at
12 (SA 708); R. Doc. 138-21, at 9 (SA 717). At a hearing, the inmate and his
delegate are permitted to address issues related to the inmate’s transition to the
community, including “offender growth,” a topic that readily allows for information
about the inmate’s maturity and rehabilitation. That the parole board may hear more
from victims and law enforcement, and may consider the seriousness of the inmate’s
homicide offense, does not mean that there is no “meaningful opportunity” for parole.
These other matters are appropriate for consideration in a parole proceeding, and the
State is not required to adopt procedures that are more advantageous to juvenile
homicide offenders seeking release from custody.
The inmates object that the form used by the parole board to communicate the
denial of a petition does not encompass all of the statutory factors, and lists only two
reasons for a denial: (1) that release “would depreciate the seriousness of the present
offense,” or (2) that there is no apparent “reasonable probability at this time that the
offender would live and remain at liberty without again violating the law.” But the
district court determined that the inmates failed to make a
the parole board fails to consider the statutory factors, and the inmates do not appeal
the dismissal of that claim. In any event, the form’s second reason for denial—no
reasonable probability that the offender would refrain from violating the
law—naturally encompasses whether the inmate has matured and rehabilitated to the
extent that he is an appropriate candidate for parole. There is nothing impermissible
about also considering the seriousness of the inmate’s homicide offense in the parole
determination. An offender who committed a murder that was especially heinous,
atrocious, or cruel could reasonably warrant different consideration, and a different
timeline for release, than one whose offense was less aggravated.
The district court concluded on summary judgment that “[i]n practice, . . .
delegates are directed to discuss only inmates’ home plans.” But the court cited only
one parole hearing, during which a panel member told the inmate’s delegate (his
sister) that “really what I need to know from you is what kind of support you have for
him upon release,” and that the board was “not going to retry the case.” R. Doc.
139-32, at 20, 45. The sister was presented as the inmate’s “home plan” if he were
released, so the parole board understandably wanted to know about the support that
she would provide. The board reasonably declined to retry the underlying murder
case. This case-specific direction to a delegate in one particular hearing is
insufficient support for a conclusion that Missouri undisputedly forbids delegates as
a general matter to discuss maturity and rehabilitation. Nor does it say anything about
what inmates themselves may discuss when speaking to “offender growth.”
In the very parole hearing cited, the inmate discussed maturity and
rehabilitation at length. R. Doc. 139-32, at 37-43. He spoke of his work in prison,
his relationship with his family, his pride in maintaining good health, his decision to
“follow the rules” and “stay out of trouble,” and his choice “to hang around with
people with like-minded interest.” A panel member asked what made him change,
and the inmate described “a gradual process of maturity” that had a lot to do with his
family. When another panel member asked how he evolved from a youthful
“knucklehead” to a 46-year-old inmate with virtually no disciplinary record, the
inmate said: “I’m still living my life. I feel like my life’s still worth something even
if I have to do the rest of my life in here.” The inmate explained that he had earned
his GED and completed other educational programs. A panel member asked about
job skills that could facilitate obtaining employment upon release, and the inmate said
that he had worked in a furniture factory and in food service as a cook, and that he
currently worked as a porter at the correctional center. This was not a parole
proceeding that prohibited the inmate from discussing maturity and rehabilitation.
In another parole hearing for one of the plaintiffs, a panel member invited the
inmate to discuss why he was no longer “the same person” who committed the
homicide offense. The inmate explained that he had “grown into a responsible,
mature adult who has the thinking ability to not only know right from wrong but do
right from wrong.” He described his understanding of “what it means to love, to not
hurt people,” and said that he would “no longer ever, ever be that immature,
vulnerable little boy” who committed the homicide. The inmate explained that he
grew up “in a crime-infested neighborhood,” with a mother who was “never there”
and a stepfather who was an alcoholic. But he told the panel: “I came to this prison
at the right time because it gave me room to
were many programs available to him at prison, and that he “took full advantage of
those programs.” He remarked that he “started just changing [his] life,” “started
believing in God more,” and “started just wanting to be a better person.” While he
was “ashamed” of his actions as a “little boy,” he was no longer “the same person”
who committed the homicide and loved “the man [he had] become.” R. Doc. 134-15,
at 35-46. Again, there was no prohibition on discussing maturity and rehabilitation.
In that proceeding, the inmate’s delegate—after stating that the inmate had
“really presented things as well as they could be presented”—also discussed maturity
and rehabilitation. R. Doc. 134-15, at 48-50. She cited the inmate’s remorse. She
explained that the inmate’s upbringing in “deep poverty” and “deep neglect” allowed
an adult offender to take the inmate “under his wing” and deploy a “very sick ruse”
to involve the inmate in a robbery and homicide. The delegate said that she had
worked with the inmate for five years, and that the inmate “today is not that kid” who
committed the homicide. The delegate assured the board that she and her colleagues
would provide “holistic support”—including assistance with a “business plan” and
“collateral consequences”—if the inmate were released. She explained that the
inmate “did not have that kind of support growing up,” and remarked that his family
would be there for him as well. The delegate was not foreclosed from discussing the
inmate’s disadvantaged background and his growth as an adult.
A delegate in yet another hearing described in detail the inmate’s “tumultuous
upbringing” in a “broken, abusive home.” The delegate told the parole board that the
inmate had “matured immensely from the angry young man he was when he came”
to prison. She said that the inmate had learned “to talk out his problems and resolve
his problems with intellect,” that he sought “advice from other people,” and that he
was “no longer stubborn and selfish.” The delegate explained that the inmate had
worked as a clerk in the prison law library, and had “taken on personal development”
through reading the Bible, newspapers, and magazines. R. Doc. 134-16, at 33-37.
Again, consistent with procedures allowing a delegate to address “offender growth,”
the delegate was free to discuss abuse suffered by the inmate leading up to his
homicide offense, along with the inmate’s increased maturity and efforts at
rehabilitation as an adult.
The record shows that there is no undisputed practice in Missouri that directs
an inmate’s delegate at a parole hearing to discuss only an inmate’s home plan. The
record also demonstrates that no rule or practice forbids an inmate himself to address
his maturity and rehabilitation. The State correctly contends, with ample support in
the record, that Missouri inmates at parole hearings were allowed “to provide
information that could help convince the Board they were ready for parole,” and that
inmates “have the opportunity to show the Board that they have changed and to be
considered for release.”
We also conclude that there is no constitutional flaw in the parole board’s
manner of recording its decisions. Even when a state sentencing judge determines to
sentence a juvenile homicide offender to life without parole, the Eighth Amendment
does not require the judge to make a factual finding of permanent incorrigibility.
Jones, 141 S. Ct. at 1318-19. It is assumed that the judge will consider the
defendant’s youth, and any federal requirement to make specific findings would be
“intruding more than necessary” upon the States. Id. at 1321. The Eighth
Amendment likewise
state parole board “to document the reasons for their votes” to deny a periodic request
for parole, and to specify “any evidence indicating unsuitability for parole.”
In sum, the Supreme Court’s juvenile-specific jurisprudence under the Eighth
Amendment does not warrant declaring a constitutional violation and imposing on the
State the elaborate set of parole procedures endorsed by the district court. A
requirement to allow “some meaningful opportunity” for release, even if applicable
to these juvenile homicide offenders, is satisfied here. The juvenile homicide
offenders in Missouri received more process than offenders under the regular parole
process: they presented more documentary evidence than adult offenders, received
longer hearings than the average parole hearing, and were entitled to consideration
of statutory factors that apply only to juveniles who were formerly sentenced to life
without parole. Of course, a “meaningful opportunity” does not imply that every
juvenile homicide offender must be released immediately upon eligibility for parole.
We do not believe the Court intended through its decisions in Graham, Miller, and
Montgomery to judicialize the parole process in the manner urged by the inmates.
*
As a separate claim, the inmates assert that the State’s parole review procedures
deprived them of liberty without due process of law in violation of the Fourteenth
Amendment. The district court ruled that its analysis of Miller and Montgomery
applied “equally” under the Due Process Clause. To invoke procedural due process
protections, however, a plaintiff must have an interest in liberty at stake. Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 569-72 (1972). The inmates have no
liberty interest in release from prison before expiration of their valid sentences.
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); Gale v.
Moore, 763 F.2d 341, 343 (8th Cir. 1985) (per curiam). Instead, they claim a liberty
interest in “meaningful parole review.” But the Due Process Clause requires a State
to afford procedures only “to protect a substantive interest to which the individual has
a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250 & n.12
(1983). It does not create a protected interest in the state procedures themselves. Id.
Without a cognizable liberty interest, the inmates’ due process claim necessarily fails.
* * *
For these reasons, we reverse the judgment of the district court, vacate the
injunction, and remand with directions to enter judgment for the defendants. The
inmates’ motion to strike portions of the State’s reply brief is denied. The inmates’
cross-appeal is dismissed as moot.
NORMAN BROWN, et al. v. ANNE L. PRECYTHE, et al.
No. 19-2910
United States Court of Appeals, Eighth Circuit
KELLY, Circuit Judge, with whom SMITH, Chief Judge, and ARNOLD, Circuit
Judge, join, dissenting.
Over the past two decades, the Supreme Court has reaffirmed time and again
that “children are constitutionally different from adults for purposes of sentencing.”
Miller, 567 U.S. at 471. Juvenile offenders, with their “transient rashness, proclivity
for risk, and inability to assess consequences,” id. at 472, are in the eyes of the
Constitution less morally culpable and more capable of reforming their deficiencies
than adult offenders, see id. The Supreme Court relied on this now-familiar
concept—that children are different for sentencing
the Eighth Amendment bars mandatory sentences of life without parole for juvenile
homicide offenders, id. at 479, and again in Montgomery when it gave retroactive
effect to Miller’s holding, 577 U.S. at 206. Together, these cases require states to
afford a meaningful opportunity for release “to those who demonstrate the truth of
Miller’s central intuition—that children who commit even heinous crimes are capable
of change.” Id. at 212; see also Miller, 567 U.S. at 479 (“‘A State is not required to
guarantee eventual freedom,’ but must provide ‘some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation.’” (quoting Graham,
Plaintiffs are a class of Missouri inmates who were sentenced to mandatory life
without parole for juvenile homicide offenses. After Montgomery, Missouri enacted
SB 590 in an effort to remedy Plaintiffs’ unconstitutional sentences en masse. See
provided under SB 590 lives up to the promise of Miller and Montgomery. The
record shows that it does not.
The court first reasons that Plaintiffs’ Eighth Amendment challenge fails at the
outset because SB 590 allows for Plaintiffs to petition for parole, a potential remedy
to Miller violations contemplated by the Supreme Court in Montgomery. It notes
that, in suggesting parole-eligibility as an alternative to resentencing, Montgomery
cited a Wyoming statute that makes juvenile homicide offenders eligible for parole
after serving twenty-five years—the same amount of time such offenders must serve
before becoming parole-eligible under SB 590. And because Plaintiffs’ sentences are
now “life with the possibility of parole,” the court concludes their constitutional
injuries are wholly cured, and Miller and Montgomery have no application to their
parole board hearings.
But this narrow reading of Montgomery ignores its underlying, substantive
reasoning. In Montgomery, the Court explained that if states were to remedy Miller
violations by “[e]xtending parole eligibility to juvenile offenders . . . [t]he opportunity
for release w[ould] be afforded to those who demonstrate the truth of Miller’s central
intuition—that children who commit even heinous crimes are capable of change.”
577 U.S. at 212 (emphasis added); see also id. (“Allowing those offenders to be
considered for parole ensures that juveniles whose crimes reflected only transient
immaturity—and who have since matured—will not be forced to serve a
disproportionate sentence in violation of the Eighth Amendment.”). Montgomery
therefore envisioned a process whereby a parole board would consider the juvenile
offenders’ youth and its attendant characteristics when deciding whether to grant
them parole—and where the juvenile offenders would, at minimum, be provided with
an opportunity to “demonstrate the truth of Miller’s central intuition” during the
parole review process.
To reflexively endorse any purported Miller cure that simply offers juvenile
offenders nominal access to parole ignores Montgomery, and risks depriving those
offenders of the “meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation” to which they are constitutionally entitled. Miller, 567
U.S. at 479 (quotation omitted). Otherwise, a state could simply declare that all
inmates whose sentences violate Miller are “eligible” for parole but then implement
procedures that do not allow consideration of age-related mitigation or that otherwise
make it impossible for anyone,
a juvenile offender’s sentence is labeled as “life with parole,” but is nevertheless the
functional equivalent of a life sentence without parole, then the state has denied that
offender the “opportunity for release” that the Eighth Amendment requires.
Montgomery, 577 U.S. at 212. Prisoners like Plaintiffs “must be given the
opportunity to show their crime did not reflect irreparable corruption,” and to be
considered for parole on this basis. Id. at 213. Therefore, to ensure that Plaintiffs’
unconstitutional sentences are truly remedied, we must look beyond the label of
“parole” and examine the procedures provided by SB 590.4
Department of Corrections, where the Fourth Circuit held that the Eighth Amendment
did not require the Virginia Parole Board to specifically consider age-related
mitigation characteristics when it processed the parole application of a juvenile
offender originally sentenced to life with parole. 920 F.3d 192, 197–98 (4th Cir.
2019). Importantly, the plaintiff in Bowling, unlike Plaintiffs here, never received an
unconstitutional sentence requiring remedial action under Miller and Montgomery.
Because that plaintiff’s sentence was constitutional from the outset, the Fourth Circuit
found that the protections of Miller and Montgomery did not apply. Id. In contrast,
Plaintiffs here are being afforded parole eligibility as a remedy to cure their
unconstitutional sentences. And in order to remedy that injury, Plaintiffs must be
afforded some opportunity to have age-related mitigation characteristics considered
by a decisionmaker at either a resentencing hearing or during a parole review process.
Next, the court assumes for the sake of analysis that the Eighth Amendment
applies to Plaintiffs’ parole proceedings, and then concludes there is no violation here
because Missouri has provided “some meaningful opportunity” for Plaintiffs to obtain
release based on demonstrated maturity and rehabilitation. But the record does not
support this conclusion.
Missouri’s parole review process is lacking in several key respects. First, it
limits Plaintiffs’ access to information and their ability to effectively advocate for
their release on parole. Plaintiffs are prohibited from reviewing their parole files.
This makes it nearly impossible for them to identify potential factual errors in their
records or to adequately respond to adverse evidence that may have direct bearing on
the parole board’s decision on whether they have “demonstrated maturity and
rehabilitation.” At the hearings themselves, Plaintiffs are limited to having one
“delegate” attend the hearing on their behalf. And that delegate is permitted to
“address only issues related to transition to the community, which could include
offender growth, support system, home and employment.” Under these rules, a
delegate may not, for example, provide information or evidence about any abuse or
trauma suffered by the Plaintiff leading up to the underlying crime or relatedly
whether the Plaintiff’s circumstances indicated his crime “reflect[ed] the transient
immaturity of youth.” Montgomery, 577 U.S. at 208.
The court questions whether delegates are truly limited to addressing only
issues related to an inmate’s transition to the community upon release under SB 590.
It criticizes the district court for citing “only one parole hearing” to support its
conclusion that this constraint exists before selectively pointing to anecdotes from
two other hearings which purportedly show “that there is no undisputed practice in
Missouri that directs an inmate’s delegate at a parole hearing to discuss only an
inmate’s home plan.” But the court ignores the fact that this very limitation appears
in the written “Parole Hearing Procedures”
by the district court, Missouri’s Parole Hearing Procedures expressly state that “[t]he
delegate [for the offender] will address only the issues related to transition to the
community, which could include offender growth, support system, and employment,”
and that “[t]he hearing panel may limit any irrelevant or repetitious statement(s).”
Further, the State does not seriously challenge the district court’s holding that
delegates generally cannot discuss an inmate’s maturity and rehabilitation. When the
party against whom a holding is made does not challenge it on appeal, we typically
do not address the matter. I see no reason to depart from our usual course here to
create a dispute on appeal, especially where there may be good reason why the State
did not press the issue.
In any event, the two parole hearings discussed by the court do not demonstrate
that delegates are free to discuss an inmate’s maturity and rehabilitation. The court
points to one hearing where the Plaintiff’s delegate said the Plaintiff grew up in “deep
poverty” and “deep neglect.” R. Doc. 134-15, at 49. But the delegate’s remarks were
exceedingly brief, and she did not elaborate on any circumstances from the Plaintiff’s
youth to explain this statement, nor did she present any evidence in support. As to
the delegate who described a Plaintiff’s tumultuous upbringing, it is apparent that this
delegate was the Plaintiff’s sister. In addressing the Plaintiff’s anticipated transition
to the community, she described a job waiting for him in the family business and said
she was “a representative of his entire support network.” In her statement, she also
provided some examples of the abuse the children in their family suffered but she too
presented no evidence. R. Doc. 134-16, at 33–37. One delegate’s passing reference
to poverty and neglect and another’s brief description of the difficult upbringing she
shared with her brother do not change the plain language of Missouri’s Parole
Hearing Procedures expressly limiting what a delegate may address at the hearing.
Even assuming these two instances represent examples of constitutionally adequate
hearings, the State has not shown that the opportunity to present evidence of maturity
and rehabilitation is available to Plaintiffs as a matter of course. As illustrated by the
hearing cited by the district court, the limitation in the Parole Hearing Procedures has
been strictly enforced in practice at least some of the time. There, when the
Plaintiff’s delegate asked if she could “say anything in regards to the whole case,” a
panel member responded that they “were not going to retry the case” and that they
“just want to know what kind of support you have for [the Plaintiff].” R. Doc. 139-
32, at 45. Thus, contrary to the court’s suggestion otherwise, a delegate is not
guaranteed the opportunity to discuss any topic other than “transition to the
community, which could include offender growth, support system, home and
employment.”
In contrast to the constraints placed on Plaintiffs and their delegates, victims
may speak for any length of time, may speak outside of the inmate’s presence, and are
not limited in what they may speak about. Prosecutors and law enforcement
representatives, too, are allowed to provide information without limitation on time or
subject matter. Plaintiffs and their representatives—not victims or prosecutors—are
the ones most likely to have information about the constitutionally relevant factors
of maturity and rehabilitation. See Miller, 567 U.S. at 479. Yet Missouri’s parole
review process obstructs the Board’s ability to hear and consider evidence reflecting
those factors.
Missouri’s parole review process also obfuscates whether the Board has truly
considered the “distinctive attributes of
for constitutional purposes. See Miller, 567 U.S. at 471–73. The Board uses a
“barebones, boilerplate form” to inform Plaintiffs if they have been denied parole.
The forms are unsigned and do not indicate how the Board voted or reached its
decision. Significantly, the forms provide only two general reasons for denying
parole: (1) that release “would depreciate the seriousness of the present offense,” or
(2) that there appears not to be a “reasonable probability at this time that the offender
would live and remain at liberty without again violating the law.” Even if the Board
is not required to specifically identify the factors it relied upon to deny parole, cf.
Jones, 141 S. Ct. at 1318–19, the form reflects the view that only these two factors
are under consideration, which is contrary to Miller and Montgomery, see id. at 1316
(noting that, under Miller, “an offender’s youth and attendant characteristics” must
be considered as mitigating factors). The lack of detail on these forms risks
transforming the Board’s analysis from what might otherwise be a thoughtful,
contextual review of the Plaintiffs’ unique characteristics as juvenile offenders into
a perfunctory one, based solely on the perceived heinousness of the Plaintiffs’
underlying crimes.
Missouri “freely admit[s] that these forms do not provide adequate explanation
for the Board’s decision.” Nevertheless, Missouri refuses to provide Plaintiffs access
to the recordings of their hearings and expects Plaintiffs to get additional information
about a denial from their parole officers, at the same time acknowledging that parole
officers have no knowledge of the Board’s reasoning since they do not attend parole
hearings. For a juvenile offender denied parole, this opaque process greatly impedes
his ability to understand the basis for the Board’s decision and prepare accordingly
for a future parole hearing.
Finally, although SB 590 instructs the Board to consider factors like Plaintiffs’
“[e]fforts made toward rehabilitation” and “subsequent growth and increased
maturity,” the Board’s policies and practices are not structured to focus on those
crucial considerations. Before Plaintiffs’ challenge to SB 590’s parole review
process, the Board did not use risk assessment tools or evidence-based, objective
criteria to evaluate a Plaintiff’s suitability for parole, relying on wholly subjective
standards instead. Additionally, much of the focus of Plaintiffs’ parole review
hearings—in both the questioning and the witness statements—was on the underlying
offense, and most of their parole denials turned on the “circumstances surrounding
the [underlying] offense.” But the circumstances of the underlying offense are
constitutionally relevant only to the extent they pertain to the constitutionally relevant
question: whether the crime reflects a Plaintiff’s “irreparable corruption” or “transient
immaturity.” Montgomery, 577 U.S. at 208. Nothing in Missouri’s parole review
process convinces me that Missouri actually considers Plaintiffs’ crimes in this way,
creating a real risk that the Board instead relies on the heinousness of the underlying
offenses (all murders) to deny parole without consideration of Plaintiffs’ maturity and
rehabilitation.
Missouri’s parole policies and practices, when considered in combination as
implemented, work to deprive Plaintiffs of their Eighth Amendment right to a
meaningful opportunity to obtain release based upon demonstrated maturity and
rehabilitation. See Miller, 567 U.S. at 479. The Supreme Court has clearly stated that
juvenile offenders are “constitutionally different” than adult offenders, id. at 471, and
“should not be deprived of
parole review process in place under SB 590 fails to adequately “ensure[] that
juveniles whose crimes reflect[] only transient immaturity—and who have since
matured—will not be forced to serve a disproportionate sentence,” Montgomery, 577
U.S. at 212, it violates the Eighth Amendment.
I respectfully dissent.
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