Office of the Prosecuting Attorney v. Precythe

14 F.4th 808

OFFICE OF the PROSECUTING ATTORNEY, FOR ST. LOUIS COUNTY, Movant

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; Kenneth Jones, in his official capacity, Chairman of the Missouri Board of Probation and Parole; Jim Wells, 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; Ellis McSwain, Jr., in his official capacity, Member of the Missouri Board of Probation and Parole; Don Ruzicka, 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; Gary Dusenberg, in his 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)

Office of the Prosecuting Attorney, for St. Louis County, Movant

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; Kenneth Jones, in his official capacity, Chairman of the Missouri Board of Probation and Parole; Jim Wells, 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; Ellis McSwain, Jr., in his official capacity, Member of the Missouri Board of Probation and Parole; Don Ruzicka, 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; Gary Dusenberg, in his 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, Amici on Behalf of Appellant(s)

No. 19-2910

No. 19-3019

United States Court of Appeals, Eighth Circuit.

Submitted: November 23, 2020

Filed: September 17, 2021

Rehearing En Banc Granted, Opinion Vacated November 18, 2021

Counsel who presented argument on behalf of the appellants / cross appellees and appeared on the brief, was 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 E. Breihan, of Saint Louis, MO. The following attorney(s) also appeared on the brief; Denyse L. Jones, of Saint Louis, MO., Matthew D. Knepper, of Saint Louis, MO., Megan G. Crane, of Saint Louis, MO., Jordan T. Ault, of Jefferson City, MO., Sarah L. Zimmerman, of Saint Louis, MO.

The following attorney(s) appeared on the amicus brief of NAACP Legal Defense and Educational Fund, Inc.; Sherrilyn A. Ifill, of New York, NY., Daniel S. Harawa, of St Louis, MO., Samuel Spital, of New York, NY.

The following attorney(s) appeared on the amicus brief of Children and Family Justice Center, Fred T. Korematsu Center for Law and Equality and Juvenile Law Center; Marsha L. Levick, of Philadelphia, PA., Riya Saha Shah, of Philadelphia, PA., Benjamin G. Bradshaw, of Washington, DC., Kimberly Cullen, of Washington, DC., Scott Harman-Heath, of Washington, DC., Desirae Krislie C. Tongco, of New York, NY.

The following attorney(s) appeared on the amicus brief of Current and Former State Prosecutors, State Attorneys General, DOJ Officials, U.S. Attorneys, and Former Corrections Directors; Joseph C. Welling, of St. Louis, MO., John R. Mills, of Oakland, CA., Jennifer Merrigan, of Philadelphia, PA.

The following attorney(s) appeared on the amicus brief of The Campaign for the Fair Sentencing of Youth; Rebecca Turner, of Washington, DC., Brendan Krasinski, of Atlanta, GA., Jody Rhodes, of Atlanta, GA., Chelsea Dal Corso, of Atlanta, GA., Erin Johnson, of Atlanta, GA.

The following attorney(s) appeared on the amicus brief of American Academy of Child and Adolescent Psychiatry and Individual Mental Health Professionals; Bradley M. Bakker, of St. Louis, MO., Gillian R. Wilcox, of Kansas City, MO., Anthony E. Rothert, of St. Louis, MO., Kayla DeLoach, of St. Louis, MO., Jessie Steffan, of St. Louis, MO.

The following attorney(s) appeared on the amicus brief of National Association for Public Defense; Bram Elias, of Iowa City, IA., John Allen, of Iowa City, IA.

Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

This appeal arises from a constitutional challenge to Missouri's remedial parole review process for individuals sentenced to mandatory life without the possibility of parole for homicide offenses committed as juveniles. The plaintiffs, a class of Missouri inmates who were sentenced to mandatory life without parole for such juvenile homicide offenses (collectively, Plaintiffs or the JLWOP Class), claim that Missouri's parole review policies and practices violate their rights to be free from cruel and unusual punishment and their rights to due process of law under the U.S. Constitution and the Missouri Constitution. The district court granted summary judgment in favor of Plaintiffs, holding that Missouri's parole review process did not provide a meaningful opportunity for release based on Plaintiffs’ demonstrated maturity and rehabilitation. After ordering Missouri to present a plan to remedy those constitutional violations, the district court also ordered that Missouri (1) could not use any risk assessment tool in its parole review process unless the tool was developed specifically to address members of the JLWOP Class, and (2) was not required to provide state-funded counsel to JLWOP Class members in their parole proceedings. Having jurisdiction under 28 U.S.C. § 1291, we affirm in part, vacate in part, and remand to the district court for further proceedings.

I.

The named Plaintiffs Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland are Missouri inmates currently serving sentences for homicide offenses committed as juveniles (i.e., when they were less than 18 years old). Each received a mandatory sentence of life without parole.

In 2012, after the Plaintiffs were sentenced, the Supreme Court held that mandatory sentences of life without parole for juvenile homicide offenders violate the Eighth Amendment. See Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Four years later, the Court held that Miller applies retroactively in cases on collateral review. See Montgomery v. Louisiana, 577 U.S. 190, 206, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). In response, Missouri enacted Senate Bill 590 (SB 590), Act of July 13, 2016, SB 590, 2016 Mo. Laws 688 (codified as amended at Mo. Rev. Stat. §§ 558.047, 565.020 et seq. (2016) ), which permits "[a]ny person sentenced to a term of imprisonment for life without eligibility for parole before August 28, 2016, who was under eighteen years of age at the time of the commission of the offense or offenses," to petition for parole after serving 25 years of their sentence. Mo. Rev. Stat. § 558.047.1(1). Upon receiving a petition, the Missouri Board of Probation and Parole (the Board) must hold a hearing to determine whether the petitioner shall be granted parole. Id. § 558.047.4. In making its decision, the Board must consider 15 factors, including "[e]fforts made toward rehabilitation since the offense or offenses occurred," "[t]he subsequent growth and increased maturity of the person since the offense or offenses occurred," and "[t]he degree of the [person's] culpability in light of his or her age and role in the offense." See id. §§ 558.047.5, 565.033.2.¹

Each of the named Plaintiffs petitioned for parole under SB 590 but was denied after a hearing before the Board. On behalf of a class of similarly situated Missouri inmates, they sued the Director of the Missouri Department of Corrections and members of the Board (collectively, Defendants or Missouri) in their official capacities under 42 U.S.C. § 1983. Seeking declaratory and injunctive relief, they claimed that the policies and practices adopted by the Board violate their constitutional rights.² Among other things, Plaintiffs claimed that they are prohibited from viewing their parole files, preventing them from adequately preparing for their parole review hearings; that only one "delegate" may appear on their behalf at the hearings, and that delegate is limited to speaking about their plans to transition into the community upon release; that victims, their supporters, and the prosecuting attorney, in contrast, may attend the hearings in any number and may speak for any length of time on any subject (while the Plaintiffs are sequestered outside of the hearing upon request); and that the Board's denial of parole is communicated on a "barebones, boilerplate form" that does not provide detail about the Board's reasoning. Altogether, Plaintiffs argued, these practices deprived them of their constitutional right to a meaningful and realistic opportunity to obtain release based upon demonstrated maturity and rehabilitation.

After limited discovery, the parties cross-moved for summary judgment. On October 12, 2018, the district court granted summary judgment...