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August 8, 2018

The War on Kids Post #4

In my last post, I discussed the Miller trilogy and states’ attempts to implement those Supreme Court decisions. Today I want to focus on one especially challenging implementation issue: parole.

When the Supreme Court held Miller retroactive in Montgomery v. Louisiana, it suggested that states could comply with the Miller mandate by employing parole procedures, evidently in an attempt to head off potential state concerns of finality and efficiency. As the Court explained: “Giving Miller retroactive effect. . . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” However, parole post-Miller has proven to be problematic in several respects.

First, typically parole applicants enjoy very few procedural rights because the Supreme Court has treated parole as a privilege – a proceeding in which the prisoner has no liberty interest. Even when the Supreme Court has construed a state’s parole statute to create some liberty interest for prisoners, it has not gone so far as to hold that prisoners are entitled to the aid of counsel. As a result, in 35 states a prisoner has no right to counsel at a parole hearing. In contrast, when a state employs parole as a method for remedying a now-unconstitutional sentence, the prisoner does have a liberty interest at stake, as some lower courts have recognized. At the same time, because juvenile lifers are entitled to a “meaningful opportunity to obtain release,” parole boards across the country are now tasked with examining factors deemed relevant in Miller, including childhood environment and efforts at rehabilitation. Thus, youth offenders seeking parole may be entitled to procedural safeguards, including the right to counsel, never before seen in the parole context.

Second, while parole largely disappeared from the criminal justice landscape in the late 20th century, it has been making a comeback as part of the smart on crime movement – only modern parole is new and different. While discretion and instinct are still relevant, modern parole is largely dependent upon actuarial assessments of prisoners’ risks if released. These risk assessment tools rely upon statistical relationships between both static (e.g. age at date of conviction) and dynamic (e.g. level of education obtained during incarceration) factors. Almost all states employ these risk assessment tools in the parole process.

Here’s the concern post-Miller: the risk assessment tools may rely on factors that defy the Supreme Court’s holding that children are categorically less culpable and more amenable to rehabilitation. For example, in many jurisdictions, the tools consider the inmate’s age at first commitment; the younger the age at first commitment, the higher the risk factor and the less likely the inmate is to be released. Similarly, many tools consider factors such as employment history and marital status before incarceration; being single and unemployed increases one’s risk assessment score. Juvenile offenders as a group, precisely because of their youth at the time of conviction, were unlikely to have been married or to have had an employment history. In other words, the risk assessment tools treat youth as an aggravating variable, while the entire logic of the Miller trilogy hangs on youth as a mitigating variable.

Finally, there are several other thorny questions implicated in jurisdictions that employ parole as a Miller remedy. Should states be expected to release a certain percentage of youth offenders seeking parole in order to satisfy the “meaningful opportunity” standard? When a parole board denies release, must it issue a decision and rationale in writing beyond the generic statement that an applicant is not a suitable candidate? What is an appropriate wait period for a board to impose before reconsidering a case? Henry Montgomery himself was denied parole earlier this year and given a two-year setoff period; he’s already 71 and surely at some age a two-year setoff violates the meaningful opportunity standard.

By my count, 11 states today are employing some kind of new, youth-informed parole procedure in order to address prisoners with claims under Miller. Other jurisdictions are employing their previously existing parole mechanisms to do so. Litigation challenging the adequacy of these procedures is already underway, and time will tell how helpful it was for the Court to suggest that states rely upon parole as a Miller remedy.

August 8, 2018 at 10:31 AM | Permalink


In your last two posts you have focused on issues surrounding juvenile life sentences. I have to wonder, however, how long Miller will remain good law. It was a 5-4 decision and the person who made the difference in these cases--Kennedy--is now off the court. My concern-and it a general concern not directly solely at you--is that this focus on life sentences takes away needed energy from more mundane yet nevertheless critical juvenile justice issues. I have long been critical of why so many draw a line in the sand on this this narrow issue that affects so few juveniles.

Posted by: Daniel | Aug 8, 2018 11:02:29 AM

With due respect, a meaningful opportunity for release is not the same thing as a guarantee for release. Miller allows a life sentence with eligibility for parole. If the parole board gives an opportunity for the offender to demonstrate rehabilitation and that the offender is ready for release, that should satisfy Miller and Montgomery.

Both my own experience with the Miller-parole hearing and common sense dictates that this first round of parole hearings will have disappointing results. The possibility of parole creates an incentive for inmates to modify their behavior in ways that increase their chances of parole -- showing an ability to comply with rules and engaging in programs that demonstrate the skills necessary to function on parole status (e.g., GED, drug treatment, job skills). If -- for the past twenty years -- an inmate has been told that he is never getting out and that he will never have a parole hearing, he has probably not been seeking out those type of programs and has only been concerned about disciplinary issues to the extent that it impacts his conditions of confinement. Giving that inmate an immediate parole hearing does not help the inmate do what is needed to make a favorable impression on the parole board. Three or four years from now, things might look better.

Which gets to the set-off issue. Certain things will never change about an inmate. The details of the offense and other pre-incarceration behaviors are prime examples of unchanging factors. What will change is what the inmate has done while in custody to demonstrate that he is "amenable" to supervision. Clearly some set-off to give the inmate a chance to do those things to improve their readiness for parole is appropriate (regardless of the inmate's current age). Whether the adequate period is two years or five years depends upon what the inmate needs to do.

Posted by: tmm | Aug 8, 2018 11:05:16 AM

Daniel: My last two posts have focused on the JLWOP issue because that's where the Court has focused its attention and those cases are presenting implementation challenges. I agree that JLWOP is a relatively small slice of the "juvenile justice problem" pie but the logic of the cases provides important moral leadership on broader juvenile justice issues, and I hope/think that they are sparking conversations that weren't happening pre-2010 (e.g. about mandatory minimums for kids, transfer laws, etc). I also hope that a Court without Kennedy will protect this line of cases, if for no reason other than the fact that states have already begun to rely upon them and the science is as sound as ever.

Posted by: Cara Drinan | Aug 8, 2018 11:59:29 AM

tmm: I agree with you that a meaningful opportunity for release is not the same thing as a guarantee for release, and I also agree that these early parole hearings are going to be a bit rocky as states transition to a new mode of hearing and a new pool of applicants.

Two thoughts:

1. In many states parole applicants have been barred from educational and rehabilitative programs because of the nature of their sentence. There are, of course, other ways to demonstrate maturity and growth, but it's much harder to do without a track record of programs. If the applicant can demonstrate such growth, it doesn't seem fair for the parole board to hold the prisoner responsible for not doing programs from which he was barred.

2. It's not clear to me what more/else Henry Montgomery can do in the next two years to demonstrate rehabilitation and fitness to re-enter society. Given that, his age does seem especially relevant.

Posted by: Cara Drinan | Aug 8, 2018 12:14:36 PM

Prof. Drinan:

Thanks for a thought-provoking series of posts. While I think Miller and Montgomery were correctly decided, I think you're right that their implementation has been perplexing. Although the reaction of many states to Miller and Montgomery suggests it won’t happen, it would perhaps be appropriate for parole considerations—at least for the JLWOP defendants—to be revised.

Posted by: DRF | Aug 8, 2018 1:29:41 PM

I am a lawyer who has represented clients in Miller resentencing cases. My longest serving client has already done 35 years and was recently resentenced. We are very concerned about the parole process. He meets every Miller factor, managed to earn an Associates Degree, got married, and has exactly one disciplinary in all of his 35 years. If he is found not yet ready for parole at his first hearing, just what could he do to improve his chances. We are moving forward toward parole, but given the make up of our board we are not optimistic. While Miller does give many JULWOP inmates hope, in my state the chances with the parole board are pretty grim.

Posted by: TPB | Aug 8, 2018 1:57:56 PM


"but the logic of the cases provides important moral leadership on broader juvenile justice issues..."

I have heard variations on this theme before from Doug Berman and I remain dubious about such moral "spill over" effects. One major reason why I remain dubious is because many people who oppose the DP do not care about criminal justice issues generally. The DP gets caught up in debates about abortion and euthanasia and in many people's minds opposition to the DP is an extension of the "sacredness of life" and thus not primarily a criminal justice issue. I believe that there are some people who want to believe that they are providing "moral leadership" by nibbling around the extreme edges of the juvenile justice system but if so my critique is that such leadership hasn't produced much. Where are all these salubrious downstream effects to be found? I don't see it.

Posted by: Daniel | Aug 8, 2018 3:41:23 PM

Daniel, the JLWOP jurisprudence is itself an example of spill over from Eighth A jurisprudence on the death penalty and there are many more examples that could be given. Spill over is rarely swift or certain, and there may be practical and strategic reasons to focus energy and advocacy elsewhere. But the issue is not whether there is spill over; there is. The issue is whether the spill over is enough to justify the investment on one area vs another. (There are also backlash concerns.)

Posted by: Doug B. | Aug 8, 2018 7:34:52 PM

The state court resistance to Miller/Graham has been telling. Courts have found meaning in the difference between labeling a sentence LWOP as opposed to a term of years that plainly exceeds life expectancy, sometimes explicitly stating that unless and until SCOTUS says otherwise, they will resist. Doesn't say much for federalism.

Posted by: John | Aug 9, 2018 12:29:45 AM

Are there enough people released under Miller to get any recidivism stats? If so, what are those stats?

Posted by: William Jockusch | Aug 9, 2018 6:21:26 AM

William: great question and I’m eager for that info too. I haven’t seen any and I think as you said it’s just too early. I’m working on a paper now that tries to get an early feel for release rates in jurisdictions using parole post-Miller. Even that data is limited because in some cases the numbers are very small. But stay tuned!

Posted by: Cara Drinan | Aug 9, 2018 10:31:09 AM

Here's an example of a real war on kids:


With respecto juveniles released, the recidivism is going to be ugly. But hey, let's virtue-signal.

Posted by: federalist | Aug 10, 2018 7:47:04 AM

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