Brown v. Precythe

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

NORMAN BROWN, et al. )

)

Plaintiffs, )

)

v. ) Case No. 17-cv-4082

)

ANNE L. PRECYTHE, et al., )

)

Defendants. )

DECLARATORY AND INJUNCTIVE RELIEF ORDER

Plaintiffs Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland (together,

“Plaintiffs”) are serving mandatory sentences of life without parole for homicide offenses

committed when they were less than 18 years of age. Doc. 143 (Plaintiffs’ Suggestions in

Opposition to Defendants’ Motion for Summary Judgment), p. 1. The United States Supreme

Court, however, has held that sentencing a juvenile to a mandatory life sentence without the

possibility of parole violates the Eighth Amendment. This is because the mind of a child is

structurally different from the mind of an adult.

As explained in Miller v. Alabama, 567 U.S. 460 (2012),

First, children have a lack of maturity and an underdeveloped sense of

responsibility, leading to recklessness, impulsivity, and heedless risk-taking.

Second, children are more vulnerable to negative influences and outside pressures,

including from their family and peers; they have limited control over their own

environment and lack the ability to extricate themselves from horrific, crime-

producing settings. And third, a child’s character is not as well formed as an

adult’s; his traits are less fixed and his actions less likely to be evidence of

irretrievable depravity.

Miller, 567 U.S. at 471 (quotation marks and citations omitted).

“Parts of the brain involved in behavior control continue to mature through late

adolescence.” Graham v. Florida, 560 U.S. 48, 68 (2010). Studies have shown that “only a

relatively small proportion of adolescents who engage in illegal activity develop entrenched

patterns of problem behavior.” Miller, 567 U.S. at 471 (quotation marks and citation omitted).

Thus, the actions of a juvenile “are less likely to be evidence of irretrievably depraved character

than are the actions of adults.” Graham, 560 U.S. at 68 (quotation marks and citation omitted).

Because “a greater possibility exists that a minor’s character deficiencies will be

reformed,” it “would be misguided” to treat a juvenile offender in the same fashion as an adult.

Id. (quotation marks and citation omitted). A mandatory sentence of life without parole fails to

take account of the fact that the “signature qualities” of youth described above “are all transient.”

Miller, 567 U.S. at 476 (quotation marks and citation omitted).

Mandatory life without parole for a juvenile precludes consideration of his

chronological age and its hallmark features—among them, immaturity,

impetuosity, and failure to appreciate risks and consequences. It prevents taking

into account the family and home environment that surrounds him—and from

which he cannot usually extricate himself—no matter how brutal or dysfunctional.

. . . It ignores that he might have been charged and convicted of a lesser offense if

not for incompetencies associated with youth—for example, his inability to deal

with police officers or prosecutors (including on a plea agreement) or his incapacity

to assist his own attorneys.

Id. at 477-78. A mandatory sentence of life without parole for a juvenile “disregards the possibility

of rehabilitation even when the circumstances most suggest it.” Id. at 478.

In Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the Supreme Court held

that Miller applies retroactively because it announced a rule of substantive law. A state need not

guarantee freedom to the juvenile offender, but it must provide “some meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation.” Miller, 567 U.S. at 479

(quoting Graham, 560 U.S. at 75); see also Montgomery, 136 S. Ct. at 736 (“Those prisoners who

have shown an inability to reform will continue to serve life sentences. The opportunity for release

will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who

commit even heinous crimes are capable of change.”). The cases “bar life without parole . . . for

all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

Montgomery, 136 S. Ct at 734. “[G]iven . . . children’s diminished culpability and heightened

capacity for change, . . . appropriate occasions for sentencing juveniles to this harshest possible

penalty” are supposed to “be uncommon.” Miller, 567 U.S. at 479.

* * *

On May 12, 2016, the Missouri legislature passed Senate Bill 590, 98th General Assembly

(“SB 590”). In relevant part, SB 590 provides that any person sentenced as a juvenile to life

without parole prior to August 28, 2016, “may submit to the parole board a petition for a review

of his or her sentence, regardless of whether the case is final for purposes of appeal, after serving

twenty-five years of incarceration on the sentence of life without parole.” Mo. Rev. Stat. §

558.047.1.1. The statute requires the Board to hold a hearing to determine “if the defendant shall

be granted parole.” Mo. Rev. Stat. § 558.047.4.

Each of the Plaintiffs subsequently petitioned for but was denied parole.

I. Factual Background

a) The Named Plaintiffs

1. Norman Brown

Plaintiff Norman Brown was in seventh grade when he was arrested for the offenses for

which he is now serving time. Doc. 138-20 (Pre-Hearing Report for Norman Brown), p. 9.

Brown’s prehearing report for parole review acknowledged that he was only 15 years old at the

time of the underlying offense, that his participation appeared to be the result of peer pressure, and

that it “d[id] not appear he had a direct involvement in the death” of the homicide victim. Id., p.

11.

Brown is, by Defendant’s own standards, a model inmate. Doc. 147 (Defendants[’]

Suggestions in Opposition to Plaintiffs’ Motion for Summary Judgment), p. 75. Although he

accumulated multiple conduct violations in his youth, in recent years, the violations tapered off

and then ceased. Id. Brown has improved his conduct and taken responsibility for his actions. Id.

The prehearing report that the institutional parole officer created notes Brown’s involvement in

many rehabilitative programs and states that, “[a]t this point, it does not appear Brown poses a risk

to society . . . .” Doc. 147, p. 76. Nonetheless, “th[e] officer respectfully recommend[ed] Brown

be scheduled for a reconsideration hearing in May 2022,” and not granted parole, “due to the

circumstances of the offense” alone. Doc. 138-20, p. 11.

Outside of noting that it is a juvenile case, the Board Action Sheet does not discuss Brown’s

youth or immaturity at the time of the underlying offense. Doc. 138-35 (Board Action Sheet for

Norman Brown). The sole basis for Brown’s parole denial listed on the sheet was the

circumstances of the underlying offense. Doc. 147, p. 78.

2. Ralph McElroy

Plaintiff Ralph McElroy’s prehearing report notes that he was 17 years of age when the

offense for which he was convicted took place. Id., p. 2.

Id., p. 6.

The materials submitted to the Board concerning Plaintiff Ralph McElroy include

certificates of training for various courses, a Certificate of High School Equivalence, an award for

outstanding service at his job, and a certificate for volunteering 600 or more hours towards

restorative justice reparative activities. Doc. 138-51 (November 30, 2016 letter from Matthew D.

Knepper, with enclosures), at 13-22. McElroy’s conduct violations, some of which were serious,

ceased in 2012. The prehearing report states that “[h]e only began taking any type of programming

after he was informed that he would be given an opportunity for release.” Doc. 138-21 (Pre-

Hearing Report for Ralph McElroy), p. 8. (The Supreme Court decided Miller in 2012.)

McElroy has always denied committing the offense for which he is serving time;

nonetheless, the prehearing report states that “MCELROY takes no accountability for the present

offense” and “showed no remorse for his actions.” Id. The prehearing report recommended that

he be scheduled for reconsideration in December 2021 “[d]ue to his attitude regarding the offense

and the victim . . . .” Id.

Neither McElroy’s Board Action Sheet nor the supplement contains any notation regarding

his youth or immaturity at the time of the underlying offense. Doc. 147, p. 79. McElroy was

denied release based in part upon the circumstances surrounding the underlying offense. Id., p.

80.

3. Sidney Roberts

Plaintiff Sidney Roberts was 17 years old and under the influence of alcohol and marijuana

when he committed the offense for which he is serving time. Doc. 138-16 (Pre-Hearing Report

for Sidney Roberts), p. 3. At the time of his commitment, he was found to function at a sixth-

grade level. Doc. 138-22 (Diagnostic Center Report for Sidney Roberts dated December 6, 1989),

p. 3.

A forensic psychological evaluation noted that, as a child, he was exposed to his father’s

physical abuse of his mother and was himself subjected to physical abuse, including whippings

with belts and other household items. Doc. 138-17 (Forensic Psychological Report for Sidney

Roberts), p. 3. Both of his parents used cocaine. Doc. 138-16, p. 11. Yet, neither the Board Action

Sheet nor the supplement thereto contains any notation regarding Roberts’s youth or immaturity

at the time of the underlying offense. Doc. 147, pp. 82-83.

The pre-hearing report notes that, since 2009, Roberts’ conduct in prison “has improved”

and “maturation seems to have occurred.” Doc. 138-16, p. 12. A forensic psychological report

opined that Roberts “had no problems with aggression for the past 15 years.” Doc. 147, p. 81.

The supplement notes “Long work HY within DOC,” including work in a clothing factory,

“Improved conduct,” “Obtain HSE,” and “participating programs,” and that he has had no conduct

violations since 2009, but it does not provide details regarding his efforts toward rehabilitation.

Doc. 138-37 (Board Action Sheet for Sidney Roberts), at 4; Doc. 147, pp. 82-83. Neither the

Board Action Sheet nor the Supplement contains any notation regarding the forensic psychological

report. Id., p. 82. Indeed, the Hearing Panel Comments box on Roberts’ Board Action Sheet is

blank. Id. Roberts’ notice of denial cited the circumstances of the underlying offense alone as the

basis for his parole denial. Id. p. 83.

4. Theron Roland

Plaintiff Theron Roland’s prehearing report states that he was 17 and under the influence

of marijuana at the time of the offense for which he is serving time. Doc. 138-19 (Pre-Hearing

Report for Theron Roland), p. 4. His report of the circumstances surrounding the crime suggested

that he was “initially a follower in the offense,” and he acknowledged that “peer pressure was a

factor in the offense.” Id.

Id., p. 8. Roland had

begun using alcohol at 11 and drugs by age 14. Id., p. 5.

Roland’s prehearing report describes his overall adjustment as “good” and notes that he

has not had a conduct violation in at least 15 years. Doc. 147, pp. 83-84. Despite noting his

“education,” his maintaining “an institutional job throughout his incarceration,” his completion of

“institutional programs,” his “good institutional adjustment,” his having lived in “Honor Dorm”

for over 13 years, and his “positive employment and recreational plan,” the institutional parole

officer recommended a reconsideration hearing in May 2023—a six year setback where the

maximum allowable setback was just five years—solely “because of the serious nature of the

present offense . . . .” Id., p. 84; Doc. 138-19, p. 11.

Although the Board Action Sheet supplement mentions a “rough start” in prison, and the

Hearing Panel Comments box on the Board Action Sheet notes “Juvenile Life w/o parole” as the

sentence (id., at 4 and 2), neither the Board Action Sheet nor the supplement contain any other

notation regarding his youth or immaturity at the time of the offense. Doc. 138-38 (Board Action

Sheet for Theron Roland); see also Doc. 147, p. 85. The reason listed for Roland’s parole denial

was the circumstances of the present offense. Doc. 147, pp. 85-86.

b) The Class1

Just four of the Class members who have had parole hearings to date were provided release

dates—but those dates are, on average, three-and-a-half years in the future. Id., p. 54. These dates,

however, do not guarantee release for these four Class members. The dates may be moved or

taken away. Id. The majority of Class members who have had an SB 590 hearing—nearly 85%,

1 The Court certified a class of similarly situated individuals, defined as “[i]ndividuals in the

custody of the Missouri Department of Corrections who were sentenced to life without parole

under a mandatory sentencing scheme and who were under 18 years of age at the time of the

offense” (the “Class”). Doc. 140 (Order dated June 25, 2018).

even after excluding those who Defendants state were not yet eligible for parole consideration—

did not receive a release date. Id., pp. 52, 54.

The Chair of the Board explained that the “circumstances of the present offense”

language—which was at least one, and often the only, reason cited for each Plaintiff’s parole

denial—reflects that “retributive time is still being considered.” Doc. 138-4 (Deposition of Ellis

McSwain), at 43 (Tr. 198:1- 199:22); see also Doc. 138-3 (Deposition of Kenny Jones), at 30 (Tr.

83:6-84:12) (former Chairman testifying that “it could be” that the “circumstances of the present

offense” language means that “in the board’s opinion the inmate hasn’t served the punitive and

deterrent portion of their sentence yet”).

The majority of Miller-impacted individuals who have been denied parole under the new

process have received five-year setbacks—the maximum setback permitted under Board policy.

Doc. 147, p. 53. The Board did not provide any explanation for the lengthy setback. Id.

The Board’s decisions are communicated to inmates on a two-page notice—an admittedly

“barebones, boilerplate form” that is used to notify inmates of all types of events related to parole

considerations. Doc. 147, p. 93. Defendants admitted that this form does not provide adequate

explanation for the Board’s decision. Id., p. 94. The notice also does not provide any guidance to

the inmate regarding steps they should take to become better suited for parole. Id.

The Board’s decision on parole for an inmate serving a mandatory juvenile life without

parole (“JLWOP”) sentence is not subject to appeal. Id., pp. 61-62.

II. Summary Judgment

On October 12, 2018, the Court found that Defendants’ policies, procedures, and customs

for parole review for Miller-impacted inmates violate the constitutional requirement that those

inmates be provided a meaningful and realistic opportunity for release based on demonstrated

maturity and rehabilitation. See Graham, 560 U.S. at 75 (“What the State must do . . . is give

defendants like Graham some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.”); id. at 82 (“[I]f [a State] imposes a sentence of life it must provide

[the juvenile offender] with some realistic opportunity to obtain release before the end of that

term.”). Failure to provide the class with a meaningful and realistic opportunity to secure release

violates, at a minimum, the Eighth Amendment ban on cruel and unusual punishment. See

Montgomery, 136 S. Ct. at 736-37 (explaining that those serving JLWOP sentences should “be

given the opportunity to show their crime did not reflect irreparable corruption; and if it did not,

their hope for some years of life outside prison walls must be restored”).2

Specifically, the Court found that a number of Defendants’ policies, practices, and customs

combine to deprive those serving JLWOP sentences of a meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.3

First, Defendants limit the inmates’ access to information and opportunities to advocate for

consideration of the Miller factors. Defendants prohibit inmates from viewing their parole files,

including the prehearing report that largely guides the format and content of the SB 590 hearings.

Doc. 147, pp. 88, 27. Yet, one of the stated purposes of parole hearings is to give inmates the

opportunity to “[p]resent and discuss any other matters that are appropriate for consideration

2 Other courts considering the issue have come to the same conclusion. See Greiman v. Hodges,

79 F. Supp. 3d 933, 945 (S.D. Iowa 2015); Hayden v. Keller, 134 F. Supp. 3d 1000, 1009 (E.D.N.C.

2015); Maryland Restorative Justice Initiative v. Hogan, No. 16-1021, 2017 WL 467731, at *21

(D. Md. Feb. 3, 2017); Wershe v. Combs, No. 12-1375, 2016 WL 1253036, at *3 (W.D. Mich.

Mar. 31, 2016); Atwell v. State, 197 So. 3d 1040, 1041-42 (Fla. 2016), reh’g denied, No. SC14-

193, 2016 WL 4440673 (Fla. Aug. 23, 2016); Diatchenko v. Dist. Attorney for Suffolk Dist., 27

N.E.3d 349 (Mass. 2015); Matter of Hawkins v. New York State Dep’t of Corr. & Cmty.

Supervision, 140 A.D.3d 34, 39 (N.Y. App. Div. 2016).

3 The analysis herein applies to Plaintiffs’ Eighth Amendment and due process claims equally.

including challenging allegations of fact that they perceive to be false.” 14 CSR § 80-

2.010(3)(A)(6); see also Doc. 147, p. 88. Without knowing what information is being presented

in opposition to their petitions for parole, Miller-affected inmates cannot know of, let alone

challenge, “allegations of fact that they perceive to be false.” See Williams v. Missouri Bd. of

Prob. & Parole, 661 F.2d 697, 700 (8th Cir. 1981) (finding that “minimum due process requires

that an inmate in Missouri seeking parole” under a statute that created an expectancy of release

“be advised of adverse information in his file”); cf. Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.

Ct. 859, 862 (2011) (finding sufficient due process where petitioners were, inter alia, “afforded

access to their records in advance” and “allowed to contest the evidence against them”).

A JLWOP inmate is permitted to have just one person, a “delegate” present at the hearing

on his behalf. Doc. 147, pp. 43-44. The “Parole Hearing Procedures” adopted by Director

Precythe state that “[t]he delegate [for the offender] will address only issues related to transition

to the community, which could include offender growth, support system, home and employment,”

and that “[t]he hearing panel may limit any irrelevant or repetitious statement(s).” Doc. 65-3

(Second Amended Complaint for Declaratory and Injunctive Relief), at 4 (emphasis added). In

practice, too, delegates are directed to discuss only inmates’ home plans. See, e.g., Doc. 138-32

(Transcript of Audio-Recorded Parole Board Hearing), at 20 (Tr. 17:12-21); id., at 45 (Tr. at 42:14-

20). Delegates have been prohibited from taking notes during parole hearings. Doc. 147, p. 87.

When attorneys act as offenders’ sole delegates at parole hearings, they are prevented from arguing

legal issues before the Board. Id., pp. 50-51. In other words, delegates—whether lawyers or not—

are foreclosed from advocating for consideration of the Miller factors and other statutory factors

that the Board is required to consider.

In contrast with inmates, and despite a Missouri regulation permitting a victim or victim

representative to be accompanied by just one other person at a parole hearing (14 C.S.R. § 80-

2.010(5)(B)(1)), in practice, victims may be accompanied by multiple supporters, including

MDOC employees acting as “clerical administrative office support assistants.” Doc. 147, pp. 44-

45. Outside of parole staff, victims or their family members are the first people permitted to speak

at an SB 590 hearing. Doc. 147, p. 47. They may speak for any length of time. Id. They may

speak outside of an inmate’s presence if they wish. Id. Thus, again, the inmate is routinely

prevented from having access to information presented at his hearing. Unlike the delegates, who

may not argue the law, victims are free to argue law before the Board; indeed, they may even urge

the Board to reject the law set forth in Graham, Miller, Montgomery, and SB 590. See Doc. 138-

40 (Transcript of Audio-Recorded Parole Board Hearing), at 14-16 (Tr. at 11:2-5, 12:6-13:1).

Like victim representatives, prosecuting attorneys may speak for any length of time and

are free to present argument and even unproven theories regarding the crimes for which the inmates

were convicted. See Doc. 147, p. 49; see also id., p. 52.

The very form on which Board decisions are communicated demonstrates that the Board’s

focus in the parole hearings for those serving JLWOP sentences is not on the Miller factors, but

on the circumstances of the offense. All parole decisions must be attributed to one of two

concededly “barebones, boilerplate” reasons: the seriousness of the offense or inability to live and

remain at liberty without again violating the law. Id., pp. 93-94, 74-75. These reasons are not

specific to Miller-impacted individuals. Indeed, they are the same two reasons for denial that may

be provided to any inmate who has a parole hearing. Id., p. 93.

The “circumstances of the offense” explanation is directly at odds with the requirement

that maturity and rehabilitation be considered. Consideration of maturity and rehabilitation

requires a review of how the inmate has changed since the offense was committed. Permitting the

Board to base a denial of parole to a Miller-impacted individual on the “circumstances of the

offense” alone necessarily authorizes the Board to disregard evidence of the inmate’s subsequent

rehabilitation and maturity—in contravention of the Supreme Court’s edict.4

Defendants’ failure to focus on the factors mandated by Miller is exacerbated by their lack

of any objective tools, matrices, or criteria to evaluate those serving JLWOP sentences. Doc. 147,

pp. 57-59. Defendants acknowledge that they apply objective criteria in making parole

determinations for those serving fewer than 30 years in prison. Id., p. 58. They also acknowledge

using wholly subjective standards in deciding whether those serving JLWOP sentences are eligible

for release. Id., pp. 58-59. This procedure is especially prejudicial to JLWOP inmates. A judicial

sentence of life without parole realistically places a thumb on the scale against release, contrary to

the message of Miller and Montgomery. Thus, it is imperative to have an objective and transparent

process that complies with the teaching of Miller and Montgomery.

III. Relief5

In light of the Supreme Court’s statement that “[i]t is for the State, in the first instance, to

explore the means and mechanisms for compliance” with the Constitution (Graham v. Florida,

560 U.S. 48, 75 (2010)), the Court directed Defendants to present a plan for future compliance

4 Each of the Plaintiffs’ parole denial notices indicated that parole was denied—at least in part—

because of the circumstances of the underlying offense. Indeed, the prehearing report for Roland

indicated that he has demonstrated maturity and rehabilitation, but nonetheless recommended that

he be given a six-year setback—more than the maximum allowable setback—solely because of

the nature of the offense. Doc. 138-19, p. 10.

5 For purposes of this Order, the Court has not relied on the testimony of Plaintiffs’ expert Heidi

Rummel. Defendants’ motion to strike Plaintiffs’ designation of Professor Rummel as an expert

and to strike her report, Doc. 110, therefore is moot.

with applicable statutory and constitutional requirements. Doc. 157 (Order dated October 12,

2018), p. 27. The Court specified that the plan should include (1) “revised policies, procedures,

and customs designed to ensure that all Class members are provided a meaningful and realistic

opportunity for release based on demonstrated maturity and rehabilitation,” and (2) “a proposal for

providing those Class Members who were denied a release date following an SB 590 hearing and

who are eligible for parole with a meaningful and realistic opportunity for release based on

demonstrated maturity and rehabilitation.” Id.

After participating in mediation with the Honorable John T. Maughmer, the parties agreed

to some changes in the Defendants’ proposed plan.

Insofar as Defendants’ proposed plan provides the Class members a meaningful

opportunity for release based upon demonstrated maturity and rehabilitation, the Court must

approve it, regardless of whether the Court finds that better means might have been employed.

However, to the extent that the modified plan proposed by Defendants on its face offers less than

a meaningful opportunity for release based upon demonstrated maturity and rehabilitation, the plan

is deficient.

IV. Conclusion

Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. Section 2201, the Court

declares that Defendants’ policies, procedures, and customs for JLWOP parole review violate the

Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10

and 21, of the Missouri Constitution.

To remedy the constitutional violations that Plaintiffs raised in this case, the Court orders

Defendants to promptly implement the following procedures6:

1. Note-taking during hearings. Class members and their delegates may take notes

during parole hearings. The Board has adopted this procedure in its minutes.

2. Notice of hearings. The Board will provide Class members notice of the hearing

date at least 60 days before the scheduled date. The Board will schedule the hearing and inform

the Institutional Parole Officer, who will provide notice to the Class member of the date at least

60 days in advance of the scheduled hearing date.

3. Number of delegates. Class members may bring four individuals to their parole

hearings. This number may include one or more attorneys, lay witnesses, or expert witnesses.

4. Counsel: Counsel’s ability to present evidence and make arguments before the

Board, and their access to information presented to the Board, may not be limited in any fashion

inconsistent with this Order.

5. Seriousness of the Offense. The Board Action Sheet will include an admonition

at the top of the form that parole is not to be denied to Class members based solely on the

seriousness of the offense. The Pre-Hearing Interview Form will include an admonition at the top

of the form that parole is not to be denied to Class members based solely on the seriousness of the

offense. The Board will begin hearings of Class members with a statement that parole will not be

denied to Class members based solely on the seriousness of the offense.

6. Programming. The defendants will remove any impediments to Class members

participating in programs that arise from the Class members being coded as serving life without

parole sentences. Class members will not have specific impediments to participating in programs

6 The parties agreed completely on Paragraphs 1 through 10 of this Order.

that arise from having at one time been sentenced to life without parole. Class members will have

the same access to programs and limitations on access as other offenders.

7. Training Module. The Council of State Governments will propose a training

module to be completed by the Parole Board, Parole Analysts, and Institutional Parole Officers

concerning parole consideration for members of this Class. The Parole Board will adopt a

training module.

8. Hearings for Class Members Who Have Been Denied a Release Date. All Class

members who have been denied a release date will be offered, within 90 days of the final

resolution of this case, new hearing dates. The Institutional Parole Officer will notify Class

members who previously have been denied a release date that the Parole Board will rehear the

case under the new procedures.

9. Access to Hearing Recordings: Class members shall have access to recordings

of their hearings as soon as practicable after the hearing, and no later than two weeks after the

hearing.7

10. Special Protections for Prosecutors: Although Defendants’ new proposed plan

for compliance included special protections for prosecutors’ statements, Defendants have since

decided not to seek special protections for prosecutors’ statements. Doc. 178 (Second Status

Report on Questions Asked by the Court at the Evidentiary Hearing Held on 3/27/2019), p. 1.

The Court accordingly finds, consistent with the parties’ positions, that prosecutors who wish to

present statements at any Class member’s parole hearing may do so only in the presence of the

Class member and his or her delegates.

7 Defendants’ revised plan included such a heading but appeared to inadvertently exclude the

paragraph. Plaintiffs in response stated—and Defendants did not deny—that Defendants had

agreed to the term described here.

11. Training. Each member of the Board and parole staff who participates in pre-

hearing interviews, parole hearings, or votes concerning parole for Class members must first

have received training on the requirements of Miller, Montgomery, and Graham. The training

must teach the need to focus on the class member’s rehabilitation and maturity in order to provide

a meaningful and realistic opportunity for release. This requirement is critical because multiple

Board members and parole staff recently not only have exhibited unprofessional behavior that

suggests a lack of seriousness (see, e.g., Doc. 147, p. 95-96, ¶¶ 180-182), but also have

demonstrated a lack of familiarity with applicable regulations and law (see, e.g., id., p. 35-36, ¶¶

63-64; p. 46, ¶ 81; p. 73-74, ¶¶ 127-128). The training may be recorded in order to permit new

Board members and staff to receive the training after the initial training session.

12. Access to parole files. Plaintiffs have represented that they received partially

redacted parole files for approximately one-quarter of the 100 Class members. Thus, Plaintiffs’

counsel have not received any parole files for the majority of the Class members, and for the

minority of Class members for whom it has received files, the files are not complete. Without

full access to the materials the Board considers in making the parole determinations, Class

members cannot have a meaningful opportunity to respond. Therefore, Defendants must provide

an updated parole file to each Class member no less than 180 days before their parole hearing.

The pre-hearing interview report must be provided to the Class member as soon as it is finalized.

Any other material subsequently added to the parole file must be furnished to the Class member

and his or her counsel in a timely fashion, and in no event less than two weeks prior to the

scheduled hearing date. Documents not provided to the Class member at least two weeks before

the hearing shall be excluded from the hearing and may not be considered by the panel or the

Board. Materials, including recordings, produced during or subsequent to the parole hearing that

are added to the parole files must be provided to the Class member promptly, but no later than

two weeks after the hearing. If Defendants redact information in the parole files, they must

provide a privilege log identifying the reason for the redaction, such as victim-related

information, information concerning individual Board members’ votes, or other statutorily-

protected information.

13. Initiation of the Hearing Process. Plaintiffs’ counsel shall provide a list of Class

members known to Plaintiffs’ counsel, including the date of birth and date of offense, if known.

Defendants shall confirm this information and produce a complete list of Class members from

their records and Plaintiffs’ counsel’s submission. The Institutional Parole Officer will provide

notice to all Class members, as listed on a spreadsheet prepared for that purpose, one year before

they become eligible for parole, or as otherwise provided in this order. The Institutional Parole

Officer will provide each Class member with the form for requesting a hearing and ensure that

completed copies are presented to the appropriate persons for the Class member’s hearings to be

scheduled.

14. Composition of hearing panels. Currently, the Board has multiple vacancies.

Because of these vacancies, the parties agree that parole hearing panels for Class members at

this time shall consist of just two Board members and one parole analyst. If the Board becomes

fully staffed, the Board will assign three Board members to hearing panels for class members.

Both parties agree that, for the reasons discussed above, a majority of the Board must agree to

the parole decision for each Class member.8

8 Defendants proposed the measures described in Paragraph 14. Doc. 172, p. 3.

15. Forms.

• Pre-hearing Interview Form: Defendants proposed a pre-hearing interview

form for use in the interview that the parole analyst conducts. The Court finds

that the form must be modified in multiple respects. First, the form references a

“boxed” quotation from Miller v. Alabama, Doc. 172, p. 8, but does not include

it.9 Defendants’ omission of the quotations from their form appears to have been

inadvertent. To ensure that parole staff are properly informed and guided, the

form should include the missing quotation because, in the past, parole staff and

Board members were not always familiar with the statutes, case law, policies, or

procedures that govern hearings for inmates affected by Miller. See, e.g., Doc.

147, p. 35-36, ¶¶ 63-64; p. 46, ¶ 81; p. 73-74, ¶¶ 127-128.

Second, given that that the Institutional Parole Officer is to assist with gathering

documents for the hearing, the form should state whether any evidence referenced

on the form has been provided to the inmate or still needs to be distributed.

9 The quotation, which was referenced in Plaintiffs’ response to Defendants’ initial plan, (Doc.

166-5, p. 16 (Juvenile Parole Pre-Hearing Interview Form, p. 1)), is as follows:

Children’s “‘lack of maturity’ and ‘underdeveloped sense of responsibility’ lead to

recklessness, impulsivity, and heedless risk-taking.”

***

“[I]n Graham, we noted that ‘developments in psychology and brain science continue to

show fundamental differences between juvenile and adult minds’—for example, in ‘parts

of the brain involved in behavior control.’ We reasoned that those findings—of transient

rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s

‘moral culpability’ and enhanced the prospect that, as the years go by and neurological

development occurs, his ‘deficiencies will be reformed.’”

Third, to enable Class members to demonstrate maturity and rehabilitation, the

form should include spaces for the Institutional Parole Officer to note whether

any rehabilitative or training programs were unavailable to the inmate and why

(for example, because the inmate was sentenced to life without parole, because

the correctional center does not offer the program, or because the Class member

is on a waitlist). This is particularly important because the Missouri legislature

chose to comply with Miller by requiring the Board to consider, among other

factors, “[e]fforts made toward rehabilitation since the offense or offenses

occurred, including participation in educational, vocational, or other programs

during incarceration, when available . . . .” Mo. Rev. Stat. 558.047.5(1).

Fourth, Defendants agreed to “include an admonition at the top of the form that

parole is not to be denied to class members based solely on the seriousness of the

offense.” Doc. 172 (Plan for Compliance with Applicable Requirements), p. 3.

However, the form proposed does not include this language. Doc. 172, p. 8. The

admonition that the Defendants agreed to include should be added to the form.

• Hearing Worksheet: The Court approves the hearing worksheet for the hearing

panel’s use proposed by Defendants.

• Board Action Sheet: The board action sheet proposed by Defendant requires two

modifications. First, the sheet must require the Board to document the reasons

for their votes, as well as any evidence indicating unsuitability for parole. This

change will help ensure that the Board’s decisions are not arbitrary or based on

rationales incompatible with idea that the punishment of life without parole

should be barred “for all but the rarest of juvenile offenders, those whose crimes

reflect permanent incorrigibility.” Montgomery, 136 S. Ct at 734. Second,

Defendants agreed that the Board Action Sheet will include an admonition “at the

top of the form” that parole is not to be denied to Class members based solely on

the seriousness of the offense. However, that language is not at the top of the

form that was submitted. Doc. 172, p. 24. It should be modified accordingly.

16. Record Collection: The Court at this time finds sufficient Defendants’ plan to

have an Institutional Parole Officer assist Class members in retrieving various relevant records

without waiting for the Class member to become eligible to apply for parole release. With the

Class member’s consent, the Institutional Parole Officer will request records from juvenile

officers, juvenile courts, and schools. In addition, the Institutional Parole Officer shall assist the

Class member with requesting reasonably relevant documents from the Department of Social

Services, Children’s Division, and/or any other similar division or department, should the Class

member provide consent. Given the remedial nature of these hearings, these documents must be

collected at no cost to the Class members.

17. Risk Assessment Tool: Plaintiffs have presented evidence that the Ohio Risk

Assessment System weighs most youth-related Miller factors as aggravating rather than

mitigating factors, and scores positively for prosocial factors that Class members, by virtue of

their incarceration since childhood, are less likely to have, such as marriage and employment

history. Doc. 166-4 (Affidavit of Todd R. Clear, Ph.D. in Support of Plaintiffs’ Response to

Defendants’ Plan for Compliance), ¶¶ 3-15. The Court therefore finds that the use of the Ohio

Risk Assessment System and similar risk assessment tools does not satisfy the standards

enunciated in Graham, Montgomery, and Miller. Defendants shall not use any risk assessment

tool unless it has been developed to address inmates affected by Montgomery or Miller. See id.,

¶¶ 14-15 (stating that “[i]ndustry best practice according to the National Institution of

Corrections is that each jurisdiction create its own risk assessment tool that is tailored to its own

population or validate one that is borrowed from another jurisdiction prior to using it,” and

opining that “[i]t would be relatively easy for the Missouri Department of Corrections, with the

aid of local experts,” to do so).

18. Special Protections for Victims: Victims and their representatives are entitled to

special protections in parole hearings. At the same time, a meaningful opportunity for Miller-

affected inmates to demonstrate maturity and rehabilitation requires notice of all adverse

information presented to the parole board. Defendants’ proposal to address this conflict was to

exclude the Class members from the hearing during such testimony but to limit the Board to

considering information presented by victims only if it is effectively public information. Doc.

172, p. 5. In other words, the Board would permit the victim and victim representatives to testify

outside of the Class member’s presence about any matter, and the Board simply would disregard

non-public information. The Court rejects this proposal. Even if the Board members have the

best intentions, the evidence in the record does not suggest that Board members have the

background to compartmentalize victim statements or that the proposed limitation is capable of

enforcement. The Court therefore concludes that, insofar as a victim elects to speak outside of

a Class member’s presence, Defendants must either (1) provide counsel for the Class member,

at no cost to the Class Member, or (2) provide to the Class member and his or her delegates

access outside of the hearing room to a live video or audio feed of the victim or victim

representative testimony, or (3) within one week of the hearing, provide to class members a

transcript of the victim statements, with only victim or victim-representative identifying

information redacted, and within two weeks of the Class member’s receipt of the transcript, and

before the panel’s deliberation and decision, the Class member must have an opportunity to

respond in person before the full hearing panel. Victims and their representatives should also be

permitted to waive their right to speak outside of the Class member’s presence.

19. Access to Hearing Recordings: Defendants have already agreed to grant Class

members access to recordings of their parole hearings. For the reasons discussed above, to the

extent that victim or victim representative statements are excluded from the recordings, the

statements must be provided to the Class member with only identifying information for the

victim or victim-representative redacted. Other than information identifying victims and victim

representatives, no portion of the hearing may be excluded from the recording.

20. No Right to Counsel at State’s Expense: Despite the fact that courts in

Massachusetts (see Diatchenko v. Dist. Attorney for Suffolk Dist., 27 N.E.3d 349, 360 (Mass.

2015)) and state legislatures in California, Connecticut, Florida, and Hawaii have granted

similarly-situated individuals a right to counsel, the Court does not at this time find that the Class

members have a right under the United States or Missouri Constitutions to state-funded counsel

in their parole proceedings, with the exception discussed in Paragraph 18.

21. Right to Counsel at Pre-Hearing Interview: The Court finds that Class members

have the right to have counsel present, although not at the expense of the State, at the pre-hearing

interview with the Institutional Parole Officer. The pre-hearing interview is a critical step in the

process of gathering and framing the information presented to the Board, particularly because

the Institutional Parole Officer makes a recommendation to the Board concerning parole, and to

the extent that a Class member has counsel, that counsel should be free to advocate for his or her

client at that interview.

22. Expert Witnesses. Expert witnesses may be among the four delegates that a Class

member may bring to the hearing to present statements on his or her behalf, and an expert

witness’s presentation shall not be limited in any fashion. However, the Court cannot on the

record presented find that the State is constitutionally obligated to fund an expert witness for

each Class member.

23. Monitoring. The Court does not find sufficient evidence in the record to warrant

the appointment of an external monitor to ensure compliance with constitutional requirements.

* * *

The Court emphasizes that the above remedy is based on the law and facts that have been

presented here. While “[t]hose prisoners who have shown an inability to reform will continue to

serve life sentences[,] [t]he opportunity for release will be afforded to those who demonstrate the

truth of Miller’s central intuition—that children who commit even heinous crimes are capable of

change.” Montgomery, 136 S. Ct. at 736 (emphasis added).

IT IS SO ORDERED.

s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: August 1, 2019

Jefferson City, Missouri