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MacArthur Justice, Husch win overhaul of parole process for juvenile offenders

Attorneys from the MacArthur Justice Center and Husch Blackwell have won a federal court order mandating that Missouri overhaul its parole process for JLWOP prisoners — that is, state inmates sentenced to life without parole for crimes they committed as juveniles.

U.S. District Judge Nanette K. Laughrey outlined the changes in an order unsealed Aug. 8.  Under the changes, JLWOP inmates — who number approximately 100 in Missouri — will get more access to their rehabilitation programs and their own files. They also may come to hearings accompanied by attorneys who can present evidence and rebut victim statements.

In addition, the state’s parole board members will be admonished not to base their decision solely on the nature of the offense and must specify their reasons for any decision. The board also must refrain from using the Ohio Risk Assessment System, an IT tool that purports to predict how JLWOP parolees would fare upon release. Laughrey suggested that the tool is tilted against them.

Laughrey based her overall ruling on a series of U.S. Supreme Court holdings that because “the mind of a child is structurally different from the mind of an adult,” JLWOP inmates have the capacity to rehabilitate themselves and deserve a “meaningful opportunity for release.”

Missouri was not providing such an opportunity, Laughrey ruled in October when granting summary judgment to the plaintiff class. She ordered the parties into mediation. They completely agreed on at least 10 of the 23 policy changes in her order but could not reach a compromise on several points.

For example, the state refused to accept the plaintiffs’ request that an independent monitor oversee the policy changes, or that Missouri provide the class members with state-funded counsel and state-funded expert witnesses. Laughrey sided with the state on all three points.

Still, Amy Breihan, director of MacArthur’s St. Louis office, hailed the ruling.

“We’re hopeful that it will result in more reliable and better decisions that will be based on maturity and rehabilitation of class members rather than on the seriousness of their crimes,” said Breihan. “We will be watching the parole board to ensure it is doing what it’s supposed to be doing and that it’s complying with the court’s order.”

The Missouri Attorney General’s Office represented the defendants, who included the parole board members and the director of the Missouri Department of Corrections. An AGO spokesman declined to comment.

Josh Mitman of the Campaign for Fair Sentencing of Youth, a Washington, D.C.-based advocacy group, said that Missouri “has been dramatically behind most other states in the country both in terms of the procedures they have used and the actual results they’ve gotten.” Yet Laughrey’s ruling, he said, was “a big step towards bringing Missouri into compliance with Supreme Court doctrine.”

Mitman considered “vital” the new requirement that board members and staff receive training on the three precedents underlying Laughrey’s order, commonly referred to in shorthand as Miller, Montgomery and Graham.

“Change in the process is effective,” said Mitman, “but implementation requires a shift in perspective as well.”

By state statute, victims retain the right to attend and be heard at JLWOP parole hearings. If a victim chooses to testify outside of the offender’s presence, Laughrey ordered, the state has three options: provide the class member with an attorney at no cost; provide the class member and his or her delegates access to a live video or audio feed of the victim’s testimony; or provide the class member with a transcript of the testimony, subject to redaction of identifying information.

This represents a contrast to the parole board’s current policy, which according to the order is to allow victims to make legal arguments without such testimony being provided to the inmate.

“I understand that the victims have a right to be heard,” Breihan said, “but their statements are only relevant to an extent. These [class members] have already been sentenced for very serious crimes. The question isn’t ‘Should we keep punishing them more for what they were convicted of doing?’ The question is, ‘Are they ready for release?’”

The plaintiffs were represented at MacArthur not only by Breihan but also Megan Crane and Mae Quinn. The plaintiffs’ attorneys at Husch included Carlota Hopinks-Baul, Denyse Jones, Jordan Ault, Matthew Gartner, Matthew Knepper and Sarah Zimmerman.

Attorneys for the state included Michael Spillane and Andrew Crane. The state has not indicated whether it will appeal the order.

Within 90 days of the resolution of the case, Laughrey ruled, all class members who have been denied a release date will be offered new hearing dates. Class members who have been denied a release date will get rehearings under the new procedures.

Citing the Supreme Court precedents, Laughrey concluded her order by stating that while “prisoners who show an inability to reform will continue to serve life sentences,” the others will be afforded an opportunity for release based on the “central intuition” that “children who commit even heinous crimes are capable of change.”

The case is Norman Brown et al., v. Anne L. Precythe et al., 2:17-cv-04082.

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