Brown v. Precythe

46 F.4th 879

Norman BROWN; Ralph McElroy; Sidney C. Roberts; Theron Roland, also known as Theron "Pete" Roland, Plaintiffs - 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,

Defendants - 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 Adolescent Psychiatry; Individual Mental Health Professionals; The Campaign for the Fair Sentencing of Youth ; National Association for Public Defense, Amici on Behalf of Appellee(s).

Norman Brown; Ralph McElroy; Sidney C. Roberts; Theron Roland, also known as Theron "Pete" Roland, Plaintiffs - 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, Defendants - 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, Amici on Behalf of Appellant(s).

No. 19-2910

No. 19-3019

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2022

Filed: August 30, 2022

Counsel who presented argument on behalf of the appellants/cross-appellees was Michael E. Talent, AAG, of Saint Louis, MO. The following attorney also appeared on the appellant/cross-appellee brief: Andrew Crane, AAG, of Jefferson City, MO.

Counsel who presented argument on behalf of the appellees/cross-appellants and appeared on the brief was Amy Elizabeth Breihan, of Saint Louis, MO. The following attorneys also appeared on the appellee/cross-appellant brief: Megan G. Crane, of Saint Louis, MO., Matthew D. Knepper, of Saint Louis, MO., Sarah L. Zimmerman, of Saint Louis, MO., and Jordan T. Ault, of Jefferson City, MO.

The following attorneys appeared on the amicus brief of Current and Former State Prosecutors, State Attorneys General, DOJ Officials, U.S. Attorneys and Former Corrections Directors on behalf of appellees/cross-appellants; Jennifer A. Merrigan, of Philadelphia, PA., John R. Mills, of Oakland, CA., and Joseph C. Welling, of Saint Louis, MO.

The following attorneys appeared on the amicus brief of NAACP Legal Defense and Educational Fund, Inc. on behalf of appellees/cross-appellants: Sherrilyn Ann Ifill, of New York, NY., and Daniel Scott Harawa, of Saint Louis, MO.

The following attorneys appeared on the amicus brief of Children and Family Justice Center, Fred T. Korematsu Center for Law and Equality, and Juvenile Law Center on behalf of appellees/cross-appellants: Benjamin Bradshaw, of Washington, DC., Kimberly Cullen, formerly of Washington, DC., Scott Harman-Heath, of Washington, DC., Marsha L. Levick, of Philadelphia, PA., Riya Saha Shah, of Philadelphia, PA., and Desirae Krislie C. Tongco, of New York, NY.

The following attorneys appeared on the amicus brief of American Academy of Child and Adolescent Psychiatry and Individual Mental Health Professionals on behalf of appellees/cross-appellants: Bradley M. Bakker, of Saint Louis, MO., Kayla Deloach, formerly of Saint Louis, MO., Anthony E. Rothert, of Saint Louis, MO., Jessie M. Steffan, of Saint Louis, MO., and Gillian R. Wilcox, of Kansas City, MO.

The following attorneys appeared on the amicus brief of The Campaign for the Fair Sentencing of Youth, on behalf of the appellees/cross-appellants: Chelsea Dal Corso, of Atlanta, GA., Erin Johnson, of Atlanta, GA., Brendan Krasinski, of Atlanta, GA., Rebecca Turner, of Washington, DC., and Jody Rhodes, of Atlanta, GA.

The following attorneys appeared on the amicus brief of the National Association for Public Defense on behalf of the appellees/cross-appellants: Bram Tate Elias, of Iowa City, IA., and John Scot Allen of Iowa City, IA.

Before SMITH, Chief Judge, LOKEN, ARNOLD, COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, STRAS, and KOBES, Circuit Judges, En Banc.

COLLOTON, Circuit Judge.

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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (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, 132 S.Ct. 2455. 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, 132 S.Ct. 2455 (internal quotation omitted). Four years later, in Montgomery v. Louisiana , 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Court held that the rule announced in Miller applies retroactively in cases on collateral review. Id. at 212, 136 S.Ct. 718. 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 Mo. Rev. Stat. § 558.047. 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. Mo. Rev. Stat. § 558.047.1(1). If an offender files a petition, then the Missouri Board of Probation and Parole must hold a hearing to determine whether he will be granted parole. Id. § 558.047.4. The offender is entitled to invite a delegate (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 minutes long. The statute 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. Id. §§ 565.033.2, 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 42 U.S.C. § 1983. The inmates alleged 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...