Norman Brown v. Anne Precythe

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-2910

___________________________

Office of the Prosecuting Attorney, for St. Louis County

lllllllllllllllllllllMovant

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; 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

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

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

___________________________

Office of the Prosecuting Attorney, for St. Louis County

lllllllllllllllllllllMovant

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; 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

lllllllllllllllllllllDefendants - Appellees

------------------------------

Children and Family Justice Center; Current and Former State Prosecutors, State

Attorneys General, DOJ Officials, U.S. Attorneys, and Former Corrections

-2-

Directors; Fred T. Korematsu Center for Law and Equality; Juvenile Law Center;

The Campaign for the Fair Sentencing of Youth

lllllllllllllllllllllAmici on Behalf of Appellant(s)

____________

Appeals from United States District Court

for the Western District of Missouri - Jefferson City

____________

Submitted: November 23, 2020

Filed: September 17, 2021

____________

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

-3-

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 (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 (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

1

See infra Appendix A.

-4-

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

2

The dissent contends that Plaintiffs’ claims are not properly brought under 42

U.S.C. § 1983. In the dissent’s view, Plaintiffs’ “lead argument” on appeal is that

their original sentences of mandatory life without parole are invalid and, as a result,

they must pursue their claims by way of a writ of habeas corpus under 28 U.S.C. §

2254. Respectfully, we disagree. First, it is undisputed that, under Miller, Plaintiffs’

initial mandatory life without parole sentences were unconstitutional. See

Appellants’ Br. at 33 (acknowledging the “constitutional defect” in Plaintiffs’ original

sentences of mandatory life without parole). Second, while we do agree that a

prisoner in state custody may not use a § 1983 action to challenge “the fact or

duration of his confinement,” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973), that is

not this case. Plaintiffs have already been resentenced to life with the possibility of

parole after 25 years, and they do not challenge that sentence. Rather, Plaintiffs

challenge the constitutionality of “parole eligibility” and “parole suitability”

procedures, and these challenges may proceed under § 1983 where the prisoner does

not seek “immediate release from prison” or the “shortening” of his term of

confinement. Wilkinson v. Dotson, 544 U.S. 74, 79-80 (2005). More specifically,

Plaintiffs seek a declaratory judgment that Missouri’s parole procedures violate their

constitutional rights and injunctive relief requiring Missouri to formulate and

implement policies that vindicate those rights by affording them a meaningful

opportunity for release. Dist. Ct. Dkt. 65 at 38-39. Plaintiffs do not seek relief that

would necessarily result in their immediate release from prison or the shortening of

their sentences, nor does the success of their claims turn on the validity of their

individual sentences. Under these circumstances, Plaintiffs’ claims are properly

brought under § 1983. Wilkinson, 544 U.S. at 81 (“§ 1983 remains available for

procedural challenges where success in the action would not necessarily spell

immediate or speedier release for the prisoner”).

-5-

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 in favor of the

JLWOP Class, finding that the policies and procedures of the SB 590 parole review

process violated Plaintiffs’ constitutional rights. In light of the Supreme Court’s

admonition that “[i]t is for the State, in the first instance, to explore the means and

mechanisms for compliance,” Graham v. Florida, 560 U.S. 48, 75 (2010), the district

court denied Plaintiffs’ request for injunctive relief and instead ordered Missouri to

propose a workable remedy—“a plan for compliance with applicable statutory and

constitutional requirements.” After sending the parties to mediation and conducting

an evidentiary hearing to work out the details of an adequate remedy, the district court

ordered Missouri to implement a 23-part plan. Only two parts of that plan are

relevant to this case. First, over Missouri’s objection, the court ordered that Missouri

was prohibited from using the Ohio Risk Assessment System (ORAS) or similar risk

assessment tool3 unless it was “developed to address inmates affected by Montgomery

3

According to the affidavit of Dr. Todd Clear, one of Plaintiffs’ witnesses, “[a]

risk assessment tool measures a prisoner’s crimonogenic risk factors and specific

needs, generating a score that places the individual into a specific risk category

(typically, ‘low,’ ‘moderate,’ or ‘high’).” That score is used to “measure[] the

likelihood that an individual may engage in some behavior of note, such as a crime.”

-6-

or Miller.” Second, over Plaintiffs’ objection, the court ordered that Missouri was not

required to provide state-funded counsel to the JLWOP Class members in their parole

proceedings. This appeal and cross-appeal followed.

II.

First, Missouri appeals the district court’s summary judgment ruling, arguing

that the parole review process under SB 590 did not violate Plaintiffs’ constitutional

rights. We review the district court’s grant of summary judgment de novo. See

McKay v. City of St. Louis, 960 F.3d 1094, 1099 (8th Cir. 2020). In doing so, we

view the facts in the light most favorable to the nonmoving party, giving it the benefit

of all reasonable inferences. See Oglesby v. Lesan, 929 F.3d 526, 531–32 (8th Cir.

2019). “A motion for summary judgment is properly granted when ‘the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” McKay, 960 F.3d at 1099 (quoting Fed. R.

Civ. P. 56(a)).

A.

Plaintiffs claim that the Board’s policies and practices deprive them of their

rights guaranteed by the Eighth and Fourteenth Amendments.4 To prevail on their

See also Dawinder S. Sidhu, Moneyball Sentencing, 56 B.C. L. Rev. 671, 673 (2015)

(explaining that a risk assessment tool “take[s] information on recidivism rates for

groups and use[s] them to estimate the risk of recidivism for individuals possessing

those same group characteristics”).

4

Plaintiffs also claim that the Board’s policies and practices violate their rights

guaranteed under the Missouri Constitution. See Mo. Const. art. I, § 21 (declaring

that “cruel and unusual punishment [shall not be] inflicted”); id. art. I, § 10 (declaring

that “no person shall be deprived of life, liberty or property without due process of

law”). Because Missouri interprets these state constitutional provisions in parallel

-7-

§ 1983 claims, Plaintiffs must establish “(1) that the [Defendants] acted under color

of state law, and (2) that the alleged wrongful conduct deprived [them] of a

constitutionally protected federal right.” Green v. Byrd, 972 F.3d 997, 1000 (8th Cir.

2020) (quoting Schmidt v. City of Bella Villa, 557 F.3d 464, 471 (8th Cir. 2009)).

As the district court found, it is undisputed that the Defendants at all relevant times

acted under color of state law, so we need only resolve the second question.

The Eighth Amendment, made applicable to the States through the Fourteenth

Amendment, see Furman v. Georgia, 408 U.S. 238, 239 (1972) (per curiam),

provides: “Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishment inflicted.” U.S. Const. amend. VIII (emphasis added).

The right to be free from excessive sanctions “flows from the basic ‘precept of justice

that punishment for crime should be graduated and proportioned to [the] offense.’”

Roper v. Simmons, 543 U.S. 551, 560 (2005) (quoting Atkins v. Virginia, 536 U.S.

304, 311 (2002)). Over the past two decades, the Supreme Court has recognized that

imposing certain punishments on juvenile offenders violates that well-established

principle. See id. at 568; Graham, 560 U.S. at 74; Miller, 567 U.S. at 479.

In Roper, the Court held that the Eighth Amendment prohibits sentencing

juvenile offenders to death. See 543 U.S. at 568 (“Capital punishment must be

limited to those offenders . . . whose extreme culpability makes them ‘the most

deserving of execution.’” (quoting Atkins, 536 U.S. at 319)). In reaching that

conclusion, the Court noted three characteristics of juvenile offenders that prevent

with their federal counterparts, we do not separately analyze Plaintiffs’ claims under

the Missouri Constitution. See, e.g., Burnett v. State, 311 S.W.3d 810, 814 n.3 (Mo.

Ct. App. 2009) (noting the Missouri Constitution “provides the same protection

against cruel and unusual punishment” as the Eighth Amendment of the U.S.

Constitution); Jamison v. Mo. Dep’t of Soc. Servs., Div. of Fam. Servs., 218 S.W.3d

399, 405 n.7 (Mo. banc 2007) (noting that “Missouri’s due process provision parallels

its federal counterpart”).

-8-

them from reliably “be[ing] classified among the worst offenders” for whom the death

penalty is a proportional punishment. Id. at 569. “First, as any parent knows and as

scientific and sociological studies . . . confirm,” juveniles more often and more

predictably than adults exhibit “[a] lack of maturity and an underdeveloped sense of

responsibility” that “often result[s] in impetuous and ill-considered actions and

decisions.” Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). Second,

“juveniles are more vulnerable or susceptible to negative influences and outside

pressures,” which is in part explained “by the prevailing circumstance that juveniles

have less control, or less experience with control, over their own environment.” Id.

Third, juveniles’ characters are “not as well formed” as those of adults, and their

personality traits “are more transitory, less fixed.” Id. at 570. Considered together,

these characteristics instruct that “[t]he susceptibility of juveniles to immature and

irresponsible behavior means ‘their irresponsible conduct is not as morally

reprehensible as that of an adult,” id. (quoting Thompson v. Oklahoma, 487 U.S. 815,

835 (1988) (plurality opinion)), and that “[f]rom a moral standpoint it would be

misguided to equate the failings of a minor with those of an adult, for a greater

possibility exists that a minor’s character deficiencies will be reformed.” Id.

Several years after its decision in Roper, the Supreme Court held that the

Eighth Amendment bars sentencing a juvenile offender to life without parole for a

nonhomicide offense. Graham, 560 U.S. at 74. The Court echoed Roper’s

observations about juveniles, see id. at 68 (“A juvenile is not absolved of

responsibility for his actions, but his transgression is not as morally reprehensible as

that of an adult.” (internal quotation omitted)), and emphasized the particular severity

of a life without parole sentence, which “deprives the convict of the most basic

liberties without giving hope of restoration,” id. at 69–70. In the Court’s view,

sentencing a juvenile offender to life without parole assumes that person “forever will

be a danger to society,” which itself “requires the sentencer to make a judgment that

the juvenile is incorrigible.” Id. at 72. But such assumptions are constitutionally

suspect because “incorrigibility is inconsistent with youth.” Id. at 73 (internal

-9-

quotation omitted). Because juvenile nonhomicide offenders “should not be deprived

of the opportunity to achieve maturity of judgment and self-recognition of human

worth and potential,” id. at 79, the Eighth Amendment guarantees they are afforded

“some meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.” Id. at 75.

The Supreme Court extended that logic two years later by holding that the

Eighth Amendment bars mandatory sentences of life without parole for juvenile

homicide offenders. Miller, 567 U.S. at 479. Taking up Graham and Roper’s

“foundational principle” that “imposition of a State’s most severe penalties on

juvenile offenders cannot proceed as though they were not children,” id. at 474, the

Court held that such mandatory life without parole sentences are unconstitutional

because they “mak[e] youth (and all that accompanies it) irrelevant.” Id. at 479. To

comport with the Eighth Amendment, sentencing schemes must distinguish “between

‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 479–80

(quoting Roper, 543 U.S. at 573); see also Jones v. Mississippi, 141 S. Ct. 1307,

1317–18 (2021) (“A hearing where youth and its attendant characteristics are

considered as sentencing factors is necessary to separate those juveniles who may be

sentenced to life without parole from those who may not.” (quoting Montgomery, 577

U.S. at 210)). Under this rule, the Court opined that juvenile homicide offenders

serving life without parole sentences “will be uncommon.” Miller, 567 U.S. at 479.

Four years later, the Supreme Court gave retroactive effect to the constitutional

rule announced in Miller. Montgomery, 577 U.S. at 206. Applying the retroactivity

analysis from Teague v. Lane, 489 U.S. 288 (1989),5 the Court rejected the argument

5

Under Teague, courts must give retroactive effect to new substantive rules of

constitutional law, including “rules prohibiting a certain category of punishment for

a class of defendants because of their status or offense.” Montgomery, 577 U.S. at

-10-

that Miller simply announced a procedural rule that required “a sentencer to consider

a juvenile offender’s youth before imposing life without parole.” Id. at 208. Rather,

Miller announced a substantive rule of constitutional law that “rendered life without

parole an unconstitutional penalty for a class of defendants because of their

status—that is, juvenile offenders whose crimes reflect the transient immaturity of

youth.” Id. (cleaned up). In other words, the punishment of life without parole is

disproportionate and unconstitutional “for all but the rarest of juvenile offenders,

those whose crimes reflect permanent incorrigibility.” Id. at 209.

Through this line of cases, the Court has reaffirmed time and again that

“children are constitutionally different from adults for sentencing purposes.” 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. This “does not require the State to release [an] offender during his

natural life,” and “[t]hose who commit truly horrifying crimes as juveniles may turn

out to be irredeemable, and thus deserving of incarceration for the duration of their

lives.” Graham, 560 U.S. at 75. But it does require affording 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.”

Montgomery, 577 U.S. 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, 560 U.S. at 75)).

After Montgomery, Missouri enacted SB 590 in an effort to remedy Plaintiffs’

unconstitutional sentences en masse. See Mo. Rev. Stat. § 558.047.1. The question

198 (quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on other

grounds by Atkins, 536 U.S. at 321).

-11-

before us then is whether the parole review process provided under SB 590 lives up

to the promise of Miller and Montgomery. Defendants argue that it does, relying on

language taken from Montgomery in which the Supreme Court opined 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 (citing

Wyo. Stat. Ann. § 6-10-301(c) (2013)). In their view, Missouri wholly remedied

Plaintiffs’ constitutional injuries by permitting Plaintiffs to be considered for parole

once they have served 25 years of their sentence—effectively converting life without

parole sentences into life with the possibility of parole.

Such a narrow reading of Montgomery, however, ignores its underlying,

substantive reasoning—that a life without parole sentence is disproportionate and

unconstitutional for “juvenile offenders whose crimes reflect the transient immaturity

of youth.” Id. at 208; see also Miller, 567 U.S. at 474 (“[I]mposition of a State’s most

severe penalties on juvenile offenders cannot proceed as though they were not

children.”). Indeed, as Montgomery recognized, making juveniles who received an

unconstitutional sentence of life imprisonment eligible for parole remedies the

violation only to the extent that doing so “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.” Id. at

212. If Missouri chooses this route to remedy Plaintiffs’ constitutional injuries, the

parole review process must take into account the unique considerations of juvenile

offenders, see Miller, 567 U.S. at 471–73, and provide Plaintiffs a “meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation,” id.

at 479 (quoting Graham, 560 U.S. at 75).

B.

We next consider whether Missouri has in fact provided an adequate remedy

for the constitutional violations at issue here. As noted, “a State is not required to

-12-

guarantee eventual freedom” to juvenile offenders. Graham, 560 U.S. at 75.

Nevertheless, for Missouri’s parole review process to comport with the Eighth

Amendment,6 it must consider the “distinctive attributes of youth” and whether “the

penological justifications for life without parole collapse in light of [them].”7 See

Montgomery, 577 U.S. at 208.

Missouri’s parole review process is lacking in several key respects. First, it

limits Plaintiffs’ access to information and their ability to effectively advocate 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 a 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

6

The district court reasoned that the meaningful opportunity standard applied

equally to Plaintiffs’ claims under the Eighth and Fourteenth Amendments. We are

not so sure. See, e.g., Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442

U.S. 1, 14 (1979) (analyzing under the standards set forth in Mathews v. Eldridge,

424 U.S. 319 (1976), and Morrissey v. Brewer, 408 U.S. 471 (1972), whether

Nebraska’s parole determination process comported with due process). Nevertheless,

we conclude that Plaintiffs’ Eighth Amendment claim fully resolves this action, and

we do not consider Plaintiffs’ due process claims.

7

Defendants argue that the Supreme Court established in Virginia v. LeBlanc,

137 S. Ct. 1726 (2017) (per curiam), that a meaningful opportunity to obtain release

requires nothing more than the consideration of the “normal parole factors.” Id. at

1729; see also id. at 1730 (Ginsburg, J., concurring in the judgment). Contrary to that

view, however, the Court expressly reserved its views on what the Eighth

Amendment required. See id. at 1729. Instead, it held under the Antiterrorism and

Effective Death Penalty Act of 1996 that it was not “objectively unreasonable” (i.e.,

not “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement,”

id. at 1728) for the Virginia Supreme Court to determine that employing normal

parole factors provided a meaningful opportunity to receive parole. See id. at 1729.

-13-

“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.” A delegate may not, for

example, provide information or evidence about any abuse or trauma suffered by the

Plaintiff leading up to the underlying crime8 or relatedly whether the Plaintiff’s

circumstances indicated their crime “reflect[ed] the transient immaturity of youth.”

Montgomery, 577 U.S. at 208. In contrast, 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.

8

The dissent questions whether this constraint exists by pointing to a parole

hearing where the Plaintiff’s delegate said the Plaintiff “grew up in deep poverty,

deep neglect.” Dist. Ct. Dkt. 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. Dist. Ct. Dkt. 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. Contrary to the dissent’s suggestion otherwise, a delegate is not “free

to discuss” any topic other than “transition to the community, which could include

offender growth, support system, home and employment.”

-14-

Missouri’s parole review process also obfuscates whether the Board has truly

given consideration to the “distinctive attributes of youth” and the considerations

specific to this class of juvenile offenders. 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.9 See

id. at 1316 (noting that, under Miller, “an offenders’s youth and attendant

characteristics” must be considered as mitigating factors).

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 JLWOP Class member who is denied parole, this opaque process

greatly impedes his ability to demonstrate maturity and rehabilitation at a future

parole hearing. See Miller, 567 U.S. at 479.

9

We note our particular concern that the lack of detail on these forms might

enable transforming the Board’s analysis from 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.

-15-

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. See id. 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, using 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 us that Missouri actually considers JLWOP Class members’

crimes in this way, creating a real risk that the Board instead relies on the heinousness

of Plaintiffs’ crimes (all murders) to deny parole without consideration for their

maturity and rehabilitation.

We agree with the district court that these policies and practices, when

implemented and considered in combination, worked 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. We are

informed by the Supreme Court’s clearly stated principle that juvenile offenders are

“constitutionally different” than adult offenders, id. at 471, and “should not be

deprived of the opportunity to achieve maturity of judgment and self-recognition of

human worth and potential,” Graham, 560 U.S. at 79. Because the parole review

process in place under SB 590 failed 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

violated the Eighth Amendment.

-16-

III.

Having determined that the district court properly held that Missouri’s parole

review process under SB 590 violated Plaintiffs’ constitutional rights, we next

consider the parties’ appeal and cross-appeal from the district court’s order regarding

the appropriate injunctive relief to remedy that violation. We review the district

court’s remedial order for an abuse of discretion, see, e.g., Bone Shirt v. Hazeltine,

461 F.3d 1011, 1017 (8th Cir. 2006); see also eBay Inc. v. MercExchange LLC, 547

U.S. 388, 391 (2006) (“The decision to grant or deny permanent injunctive relief is

an act of equitable discretion by the district court, reviewable on appeal for abuse of

discretion.”), reviewing any underlying findings of fact for clear error, see Anderson

v. City of Bessemer City, 470 U.S. 564, 573 (1985).

First, Defendants argue that the district court abused its discretion and usurped

Missouri’s role in fashioning a constitutionally sufficient remedy by requiring

Missouri to use a risk assessment tool developed to address Plaintiffs’ unique

circumstances as juvenile homicide offenders. “[S]trong considerations of

comity . . . require giving the States the first opportunity to correct the errors made

in the internal administration of their prisons.” Lewis v. Casey, 518 U.S. 343, 362

(1996) (quoting Preiser v. Rodriguez, 411 U.S. 475, 492 (1973)). However, although

“judicial restraint is often appropriate in prisoners’ rights cases,” “this policy ‘cannot

encompass any failure to take cognizance of valid constitutional claims.’” Bounds

v. Smith, 430 U.S. 817, 832 (1977) (quoting Procunier v. Martinez, 416 U.S. 396, 405

(1974)), overruled on other grounds by Lewis, 518 U.S. at 354; see Brown v. Plata,

563 U.S. 493, 511 (2011) (“Courts may not allow constitutional violations to continue

simply because a remedy would involve intrusion into the realm of prison

administration.”). In its Plan for Compliance submitted to the district court, Missouri

proposed to use the Ohio Risk Assessment System (ORAS), a validated risk

assessment tool, in each Plaintiff’s parole review. Plaintiffs objected, arguing that the

ORAS would not reliably measure Plaintiffs’ risk of recidivism because it was

designed using an Ohio population and was not tailored to a Missouri population; it

-17-

did not clearly control for racial disparities among the Missouri prison population and

the JLWOP Class; and the ORAS, because it was designed for adults, treated certain

characteristics inherent to juvenile offenders as aggravating factors. To the last point,

according to one of Plaintiffs’ witnesses, the ORAS may generate misleadingly

disfavorable assessments of the JLWOP Class members, who by the nature of their

crimes “have lived their entire adult lives in prison and, as a result, have less

extensive education, employment, and personal relationship histories.”

We find no abuse of discretion in the district court’s order prohibiting use of

the ORAS. The district court “scrupulously respected the limits on [its] role” by

asking Missouri to devise a remedy for its constitutional violations in the first

instance. Bounds, 430 U.S. at 832–33. Only after Missouri submitted its full

proposal, which included the use of the ORAS to consider Plaintiffs’ parole, did the

court place limitations on it. Contra Lewis, 518 U.S. at 363 (concluding that the

district court erred when, after finding a constitutional violation, it ordered a court-

appointed special master rather than the defendant corrections officials to devise a

remedial plan). And it did so only after an evidentiary hearing. Moreover, the district

court was necessarily guided by Miller and Montgomery. Not only was the ORAS

not developed for Missouri offenders or with the racial disparities within the Missouri

criminal justice system in mind, it was also designed using the recidivism rates and

characteristics of adult offenders. In practice, the ORAS intrinsically disfavors

juvenile offenders because of their youth. This is directly contrary to the

foundational principle underlying the Supreme Court’s jurisprudence on juvenile

offenders—that “children are constitutionally different from adults.” Miller, 567 U.S.

at 471.

Second, Plaintiffs argue that the district court abused its discretion by finding

they were not entitled to state-funded counsel in their parole proceedings. Plaintiffs

argued for the first time during the remedy stage of proceedings that state-funded

counsel is necessary to ensure JLWOP Class members have a meaningful opportunity

to obtain release based upon demonstrated maturity and rehabilitation. In their view,

-18-

state-funded counsel would crucially assist Plaintiffs to navigate the complexities of

the parole process and would help clarify legal and factual issues for the Board. For

example, attorneys are better suited to request important records on a Plaintiff’s

behalf, marshal evidence about a Plaintiff’s childhood trauma and mental illness, and

present that highly relevant information to the Board.

The district court summarily concluded that the Class members do not have a

right to state-funded counsel under the U.S. or Missouri Constitutions. The district

court’s decision and reasoning, however, are “inadequate to permit this court to

properly perform its appellate review function.” Buckanaga v. Sisseton Indep. Sch.

Dist., No. 54-5, 804 F.2d 469, 472 (8th Cir. 1986). We remand the case to the district

court on this issue for further proceedings on whether the appointment of state-funded

counsel is necessary to ensure members of the JLWOP Class “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 212.10

IV.

Accordingly, we affirm the order of the district court that the parole review

process of SB 590 violated Plaintiffs’ Eighth Amendment rights, and we affirm the

order that Missouri cannot use a risk assessment tool in its revised parole proceedings

unless it has been developed to address the unique circumstances of the JLWOP

Class. We vacate the order regarding appointment of counsel and remand for further

proceedings consistent with this opinion. Plaintiffs’ motion to strike is denied.

10

The district court expressly declined to rely on Plaintiffs’ expert witness on

the issue of counsel, a matter the court is free to revisit on remand.

-19-

APPENDIX A

(1) Efforts made toward rehabilitation since the offense or offenses

occurred, including participation in educational, vocational, or other

programs during incarceration, when available;

(2) The subsequent growth and increased maturity of the person since

the offense or offenses occurred;

(3) Evidence that the person has accepted accountability for the

offense or offenses, except in cases where the person has maintained

his or her innocence;

(4) The person's institutional record during incarceration; and

(5) Whether the person remains the same risk to society as he or she

did at the time of the initial sentencing.

Mo. Rev. Stat. § 558.047.5.

(1) The nature and circumstances of the offense committed by the

defendant;

(2) The degree of the defendant's culpability in light of his or her age

and role in the offense;

(3) The defendant's age, maturity, intellectual capacity, and mental

and emotional health and development at the time of the offense;

(4) The defendant's background, including his or her family, home,

and community environment;

(5) The likelihood for rehabilitation of the defendant;

(6) The extent of the defendant's participation in the offense;

(7) The effect of familial pressure or peer pressure on the defendant's

actions;

(8) The nature and extent of the defendant's prior criminal history,

including whether the offense was committed by a person with a prior

record of conviction for murder in the first degree, or one or more

serious assaultive criminal convictions;

(9) The effect of characteristics attributable to the defendant's youth

on the defendant's judgment; and

(10) A statement by the victim or the victim's family member . . . .

Id. § 565.033.2.

-20-

ARNOLD, Circuit Judge, concurring.

I write separately to respond to a point the dissent raises, namely, that the

Supreme Court, in confronting the matter of juvenile punishment, did not intend to

"judicialize the parole process."

I share this concern as a general matter, but the situation here is special. The

Supreme Court in Montgomery expressly invited states to remedy a Miller violation

by making inmates eligible for parole instead of going through the trouble of

resentencing them. See Montgomery, 577 U.S. at 212. The Court explained that

"[a]llowing 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."

Id. The Court was evidently proceeding under the assumption that making these

offenders eligible for parole would mean that a parole board would consider juvenile

offenders' youth and immaturity in deciding whether to parole them.

That's not always what happened in Missouri, despite state statutory dictates

requiring it. Juvenile offenders were not always invited to demonstrate that their

crimes were the result of transient immaturity even though that's what the

Montgomery Court assumed they would be allowed to do. The dissent points out that

inmates and their delegates, in addressing their "transition to the community," could

address "'offender growth,' a topic that readily allows for information about the

offender's maturity and rehabilitation." But the district court held it was undisputed

that, in practice, inmates and delegates were able to discuss only "inmates' home

plans" and were "foreclosed from advocating for consideration of the Miller factors

and other factors that the Board is required to consider." I can't think the Montgomery

Court envisioned that a parole proceeding that prohibits inmates from discussing

Miller could cure a Miller violation.

-21-

The dissent responds by identifying instances in the record where the parole

board had information about inmate maturity and rehabilitation before it, whether in

the form of an inmate's testimony at a parole hearing or a prehearing report that a

probation officer prepared after interviewing the inmate. The dissent also opines that

the district court offered "paltry support" for its holding that it was undisputed that

delegates generally could not discuss an inmate's maturity and rehabilitation.

But the state does not seriously challenge the district court's holding. When the

party against whom a holding is made does not challenge it on appeal, we typically

do not address the matter. At one point in its brief the state says opaquely and without

citation to the record that inmates "have the opportunity to show the Board that they

have changed and to be considered for release." But the state made this remark in the

context of arguing that the court's determinations "misse[d] the point" as a legal

matter, not that they were an erroneous evaluation of the record. So I would follow

our ordinary course and not seek to undermine the district court's holding, especially

as there may be good reason that the state did not press the issue.

In any case, the dissent has at most shown that there is evidence that an

inmate's maturity and rehabilitation have been discussed during some proceedings.

But it still does not appear that an inmate is guaranteed a way to demonstrate his

maturity and rehabilitation. The discussions of these matters in the prehearing reports

that the dissent cites are modest and perfunctory; they are not what one would expect

from an inmate allowed to make his case. I see no guarantee, moreover, that the

parole-hearing panel would broach the subject on its own or that the inmate will

otherwise be allowed to discuss the matter.

In short, there is no showing that the quantity and quality of the information on

maturity and rehabilitation that a Missouri inmate can present is not at the whim of

the officials who conduct interviews and hearings. Miller and Montgomery require

more.

I therefore join Judge Kelly's opinion in full.

-22-

COLLOTON, Circuit Judge, dissenting.

In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Supreme Court

addressed how a State may remedy a violation of the rule of Miller v. Alabama, 567

U.S. 460 (2012), that a court may not sentence a juvenile homicide offender to a

mandatory term of life without parole. Montgomery declared 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. Missouri did 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. Mo. Rev. Stat. § 558.047.1(1). That

should be the end of this case.

The court goes much further and purports to apply the Eighth Amendment rule

of Miller and Montgomery regarding imposition of sentence in a criminal case to

Missouri’s parole process. The result is a federal injunction that dictates detailed

changes to the Missouri parole procedures and a remand to consider whether the

Constitution requires the appointment of state-funded lawyers to represent juvenile

homicide offenders in parole proceedings. It seems to me that there are several

analytical difficulties with the court’s approach.11

11

The procedures dictated by the district court include, among others, that (a)

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 “pre-

hearing interview form” that includes a quotation from Miller and “spaces for the

Institutional Parole Officer to note whether any rehabilitative or training programs

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

-23-

First, by holding that the State did not remedy the Miller violations when it

permitted juvenile homicide offenders to be considered for parole, the court accepts

the contention of the inmates that their sentences are invalid. Appellees’ Br. 23-24,

30. That is not a proper conclusion in an action like this one under 42 U.S.C. § 1983.

A prisoner challenging his underlying sentence on federal constitutional grounds in

federal court is limited to pursuing a writ of habeas corpus under 28 U.S.C. § 2254.

Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973). The inmates understandably seek

to circumvent that requirement: the Missouri courts have rejected their argument

based on Miller, and a federal court may not grant relief under § 2254 unless the state

court’s decision was contrary to, or an unreasonable application of, clearly

established federal law. 28 U.S.C. § 2254(d); Virginia v. LeBlanc, 137 S. Ct. 1726,

1728-29 (2017) (per curiam).

The federal habeas courts in Missouri uniformly have rejected claims of

juvenile homicide offenders that the state courts unreasonably applied Miller and

Montgomery in denying relief from their sentences. Burris v. Cassady, No. 4:16-CV-

01565, 2021 WL 1380271, at *3-4 (E.D. Mo. Apr. 12, 2021); Davis v. Bowersox, No.

4:16-CV-00246, 2020 WL 1878743, at *6-7 (W.D. Mo. Apr. 15, 2020); Wilson v.

Wallace, No. 4:16-CV-00419, 2020 WL 1324043, at *5 (E.D. Mo. Mar. 19, 2020);

Hack v. Cassady, No. 16-CV-04089, 2019 WL 320586, at *4-6 (W.D. Mo. Jan. 24,

2019); Saddler v. Pash, No. 16-CV-00363, 2018 WL 999979, at *3 (E.D. Mo. Feb.

21, 2018); Ramirez v. Griffith, No. 16-CV-1058, R. Doc. 8, at 4-6 (W.D. Mo. Dec. 2,

2016). The inmates seek to make an end-run around those decisions and the

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

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.” R. Doc. 179, at 13-23.

-24-

constraints of the Antiterrorism and Effective Death Penalty Act of 1996. But a

petition for writ of habeas corpus is the only appropriate remedy to challenge the

validity of their sentences.

This case is unlike Wilkinson v. Dotson, 544 U.S. 74 (2005), where the prisoner

plaintiffs did not dispute their underlying sentences when they relied on § 1983 to

challenge procedures and guidelines employed by a parole board. The inmates here

contend that the parole board must change its procedures in order to remedy a

constitutional violation that otherwise renders their sentences invalid. Their lead

argument on appeal is that “the sentence actually imposed upon the members of the

Juvenile Class—mandatory life without [parole]—is not valid,” and that “[t]o rectify

that unconstitutional sentence,” the State must change its parole procedures.

Appellees’ Br. 23-24.

Second, even if the inmates could properly challenge their sentences in this

§ 1983 action, there is no merit to the argument that the State has failed to remedy the

Miller violations by permitting these homicide offenders to be considered for parole

after twenty-five years. Montgomery said explicitly 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. Montgomery cited with

approval a Wyoming statute that makes such offenders eligible for parole

consideration after serving twenty-five years. Id. (citing Wyo. Stat. Ann. § 6-10-

301(c) (2013)). Missouri did just that—and perhaps made the offenders eligible even

fifteen years earlier than was required. See Graham v. Florida, 560 U.S. 48, 124

(2010) (Alito, J., dissenting) (citing petitioner’s concession that a sentence of forty

years without possibility of parole would “probably” be constitutional for a juvenile

nonhomicide offender).

It is not a “narrow reading” of Montgomery to conclude that the State has

conformed to Miller; it is a fair reading of Montgomery’s express invitation. See

Hicklin v. Schmitt, 613 S.W.3d 780, 787-89 (Mo. 2020). The Supreme Court recently

emphasized that rather than make inferences from the Court’s various decisions about

-25-

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, 1322 (2021). That explicit language calls for

rejecting the Eighth Amendment claim here.

Third, if the inmates bring a proper action under § 1983 that does not challenge

the validity of their sentences, then Miller and Montgomery have no application.

Miller held only that “the Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for juvenile offenders.” 567 U.S.

at 479. If the inmates do not challenge the validity of their sentences, then it is a

given that the State has remedied the Miller violation by permitting the juvenile

homicide offenders to be considered for parole. 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. The so-called “Miller factors” apply only to a

judge’s decision at sentencing whether to impose a term of life imprisonment without

parole. Montgomery, 577 U.S. at 210. 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). The majority’s decision is a substantial extension of Miller

and Montgomery; like the Fourth Circuit, I would “decline to go so far.” Id.12

12

The district court ruled that its analysis of Miller and Montgomery applied

“equally” under the Due Process Clause. In my view, the inmates’ claim under the

Due Process Clause fails because they have no liberty interest in release 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), and no liberty interest in parole procedures themselves. Olim v.

Wakinekona, 461 U.S. 238, 250 & n.12 (1983).

-26-

Fourth, even indulging the assumption that the Eighth Amendment applies to

parole proceedings for juvenile homicide offenders who are sentenced to life with the

possibility of parole, there is no violation here. The juvenile homicide offenders are

eligible for parole after twenty-five years (at age forty-two for an offender who was

sentenced for murder at age seventeen), and 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. Mo. Rev. Stat. §§ 565.033.2,

558.047.5.

Consideration of these factors provides “some meaningful opportunity” for an

offender to obtain release based on demonstrated maturity and rehabilitation. The

majority says that a form used by the parole board to record its decisions does not

mention these factors, and “reflects the view” that they are not considered. But the

district court determined that the inmates failed to make a prima facie showing that

the parole board fails to consider the statutory factors, R. Doc. 158, at 24-26, and the

inmates do not appeal the dismissal of that claim. In any event, one of the “general

reasons” cited on the form—no apparent “reasonable probability at this time that the

offender would live and remain at liberty without again 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 particular homicide offense in the parole

determination. An offender who committed a murder that was especially heinous,

-27-

atrocious, or cruel could reasonably warrant different consideration, and a different

timeline for release, than one whose offense was less aggravated.

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 12 (SA 605); R. Doc. 138-19, at 10 (SA 696); R. Doc. 138-20, at

11 (SA 708); R. Doc. 138-21, at 8 (SA 717). At a hearing, the inmate and his

delegate are permitted to address issues related to transition to the community,

including “offender growth,” a topic that readily allows for information about the

offender’s maturity and rehabilitation. R. Doc. 65-3, at 4. That the parole board may

hear more from victims and law enforcement, and may consider the seriousness of the

offender’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 concurring opinion adverts to a sentence in the district court’s order that

says “in practice, . . . delegates are directed to discuss only inmates’ home plans.” R.

Doc. 158, at 21. The district court, however, 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

“[w]e’re not going to retry the case.” R. Doc. 139-32, at 20, 45 (Tr. 17, 42). 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 quite reasonably declined to retry the underlying murder case. This case-

specific direction to a delegate in one particular hearing is paltry support for a

conclusion that Missouri undisputedly forbids delegates as a general matter to discuss

maturity and rehabilitation. And it says nothing about what inmates themselves may

discuss when speaking to “offender growth.”

-28-

In the very parole hearing cited, the inmate discussed maturity and

rehabilitation at length. R. Doc. 139-32, at 37-43 (Tr. 34-40). 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 of 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 earned a

GED at the Potosi Correctional Center, and that he completed other educational

programs—Impact of Crime on Victim Classes, a drug abuse program, and courses

on computer and employment skills at Missouri Vocational Enterprises. A panel

member asked about job skills that could facilitate obtaining employment upon

release, and the inmate said that he had worked in the furniture factory at Jefferson

City, in food service as a cook, and currently 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 “I’m no longer that same person

because I’ve grown into a responsible, mature adult who has the thinking ability to

not only know right from wrong but do right from wrong.” He continued that “every

human being” has a right to live “without the fear of someone taking their belongings

or hurting them.” 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. R. Doc. 134-15, at 35. The

inmate explained that he grew up in “a crime-infested neighborhood” that was “just

the worst of the worst,” with a mother who was “never there” and a stepfather who

was an alcoholic. Id. at 38, 46. But he told the parole board: “I came to this prison

at the right time because it gave me room to grow as a man.” He explained that there

-29-

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.” Id. at 41.

He said: “I love the man I have become. I don’t like the little boy I was. I don’t like

what I’ve done. I am ashamed. . . . [A]ll I can offer is I’m not the same person.” Id.

at 44. Again, there was no prohibition on discussing maturity and rehabilitation.

In that proceeding, the inmate’s delegate—after stating that the inmate “has

really presented things as well as they could be presented”—also discussed maturity

and rehabilitation. She cited the inmate’s remorse. Contrary to the majority’s

assertion that a delegate may not “provide information or evidence about any abuse

or trauma suffered by the Plaintiff leading up to the underlying crime,” ante, at 14,

this delegate told the parole board 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. R. Doc. 134-15, at 48-50.

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 the inmate’s “tumultuous

upbringing” in a “broken, abusive home” that involved “abuse of every form.” This

abuse included “everything from being verbally abused, challenged, bullied, cursed

out, belittled on a regular, constant basis to the beatings with anything [his] mother

or [his] father picked up,” such as “switches from trees, water hoses, plastic bats,

[and] electrical extension cords.” The delegate explained that the inmate was

“exposed to inappropriate sexuality” through his mother’s extramarital relationship,

saw his “father beating [his] mother on a regular basis,” and saw his father “chase

-30-

[his] mother through the house with a shotgun.” 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 does seek advice from other people,”

and that “he’s 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.

In sum, 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 district court did not even assert that there is such a practice with respect

to inmates. And the record is clear that no rule or practice forbids an inmate to

address his maturity and rehabilitation. The State contends, with ample support in the

summary-judgment 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.” But the concurring opinion would affirm

the district court’s broad injunction based on a faulty factual premise that “inmates

and delegates were able to discuss only ‘inmates’ home plans.’” The concurrence

ultimately concludes that the inmates have established a class-wide violation of the

Eighth Amendment because the parole board has discretion (“whim”) to regulate the

“quantity and quality of the information on maturity and rehabilitation that an inmate

can present.” Either way, the decision is an unjustified intrusion upon the State’s

sovereign administration of its criminal justice system. See Jones, 141 S. Ct. at 1321.

Nor is there a constitutional flaw in the parole board’s manner of recording its

decisions. The Eighth Amendment does not require a state sentencing judge to make

so much as a factual finding of permanent incorrigibility before sentencing a juvenile

-31-

homicide offender to life without parole. Id. 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. Yet

the court now holds that the Eighth Amendment justifies an injunction requiring

members of a 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.” R. Doc. 183, at 19. The two conclusions cannot be reconciled. Cf.

Greenholtz, 442 U.S. at 15 (rejecting contention that due process requires a parole

board “to specify the particular ‘evidence’ in the inmate’s file or at his interview on

which it rests the discretionary determination that an inmate is not ready for

conditional release,” because such a requirement “would tend to convert the process

into an adversarial proceeding”).

A requirement to allow “some meaningful opportunity” for release, even if

applicable to these juvenile homicide offenders, is modestly phrased. 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 the twenty-eight juvenile homicide offenders

considered for parole under Mo. Rev. Stat. § 558.047, four were scheduled for release

after their first parole hearing. The others were scheduled for reconsideration within

five years. Yet the court concludes that these offenders were not afforded “some

meaningful opportunity” to obtain release based on demonstrated maturity and

rehabilitation. In my view, a fair reading of the Supreme Court’s juvenile-specific

jurisprudence under the Eighth Amendment does not justify declaring a constitutional

violation and imposing on the State the elaborate set of parole procedures endorsed

by the district court.

For these reasons, I would reverse the judgment of the district court and vacate

the injunction. As such, it is unnecessary to address the appeal and cross-appeal

regarding the terms of the injunction, but I nonetheless register my disagreement with

-32-

the majority’s remand for consideration of whether the Eighth Amendment requires

state-funded counsel for juvenile homicide offenders seeking parole. That contention

was a bridge too far even for the district court. The legal issue has been fully briefed

on appeal, and no more elaborate decision from the district court is necessary to

comply with the rules of civil procedure or to enable appellate review. At the liability

stage, the district court found no constitutional violation based on the absence of

state-funded counsel. Requiring the State to provide lawyers to litigate at the parole

board would impermissibly extend the relief “further than necessary to correct” the

purported violation. 18 U.S.C. § 3626(a)(1); see Martin v. Iowa, 752 F.3d 725, 727

(8th Cir. 2014) (concluding that § 3626 applies to a challenge to parole procedures).

In any event, inmates seeking parole are not entitled to state-funded counsel even

when they have a liberty interest in release, see Greenholtz, 442 U.S. at 16, and the

district court did not err in declining to impose this additional mandate on the State

based on a novel interpretation of the Eighth Amendment. I see no indication that the

Supreme Court intended through its decisions in Graham, Miller, and Montgomery

to judicialize the parole process in the manner urged by the inmates.

_________________________

-33-