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April 3, 2019

Fourth Circuit panel rejects claim that Virginia Parole Board must consider age-related characteristics for juve lifer

A helpful reader alerted me to an interesting new Fourth Circuit panel ruling handed down yesterday in Bowling v. Director, Virginia Dep't of Corrections, No. 18-6170 (4th Cir. April 2, 2019) (available here).  The start of the Bowling opinion provide a flavor for the constitutional arguments framed by the defendant which did not strike a chord with the panel:

This appeal arises from the Virginia Parole Board’s (“the Parole Board”) repeated denial of parole to Thomas Franklin Bowling (“Appellant”).  Appellant was sentenced to life with parole when he was 17 years old.  He first became eligible for parole on April 26, 2005.  The Parole Board has considered his eligibility and denied him parole annually ever since. Appellant alleges that, because the Parole Board was not specifically required to consider age-related characteristics unique to juvenile offenders when it has processed his parole applications, the Parole Board’s repeated denial of his applications violated his Eighth and Fourteenth Amendment rights.

On that ground, Appellant initiated this action against the Director of the Virginia Department of Corrections (“Appellee”).  Appellee moved to dismiss Appellant’s complaint, and the district court granted Appellee’s motion to dismiss.  Regarding Appellant’s Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections do not apply to Appellant because he was sentenced to life with parole.  Regarding Appellant’s Fourteenth Amendment claims, the district court held that the Parole Board procedures satisfy procedural due process requirements.  For the reasons stated below, we affirm the decision of the district court.

Here is a spare paragraph from the heart of the opinion:

Appellant asks this court to extend the Supreme Court’s Eighth Amendment jurisprudence to juvenile parole proceedings and find that it is cruel and unusual punishment for a parole board to deny juvenile offenders parole without specifically considering age-related mitigating characteristics as a separate factor in the decisionmaking process.  Granting that request would require us to extend the legacy of Roper, Graham, and Miller in two ways.  First, we would have to find that juvenile-specific Eighth Amendment protections extend to juvenile homicide offenders sentenced to life with parole.  And second, we would have to find that those protections extend beyond sentencing proceedings.  We decline to go so far.

April 3, 2019 at 05:49 PM | Permalink


I would have expected this case and judgement to spark your ire, and therefore to have an accompanying comment at least. With the volume of scientific evidence of the immaturity of brain development at a younger age than hereto imagined, let alone the specifics of the constitution, it would seem appropriate that indeed the parole board should be instructed to consider the juvenile-specific Eighth Amendment protections highlighted, or at the very least make public the basis of their denial in relation to this specific case. To have parole denied annually since 2005 when the sentence was specifically life with parole would suggest that Bowling must continue to show abnormal threat to society. If the prison service was doing its job, for that situation to arise after so many years since the age of 17 he must belong to a very rare and unique group of dangerous persons indeed. I say this without any knowledge of the history of the case of course, but judgement of parole is expected to be based on genuinely reasoned consideration.

Posted by: peter | Apr 4, 2019 11:40:12 AM

This opinion seems to contradict one from last fall from the District Court for the Western District of Missouri that held that those sentenced as juveniles had a right to additional consideration when they come up for parole. (See Doug's post from October 15).

Personally, I think -- at least as to parole hearings -- the Fourth Circuit got it right. At the parole hearing, assuming that a sufficient minimum period of time has passed since the offense, the issue should be where the offender is today -- has he taken advantage of the opportunities (whatever they may be) to pursue rehabilitation and to demonstrate that he has changed from the immature juvenile who committed these offenses in a positive way. At that point, the inmate is no longer a juvenile offender, he is an adult inmate, and the Board needs to assess whether the inmate is a continued risk to the community.

Posted by: tmm | Apr 4, 2019 12:58:27 PM

There is tension here with how the Virginia Supreme Court is interpreting Graham and Miller. The Supreme Court said that geriatric parole is sufficient to satisfy constitutional demands even though it isn't for juveniles and juveniles have to wait longer than adults to qualify so they're being punished more harshly than adults.

But, if that's the ruling, the follow up is that the hearing they do get (geriatric parole) has to consider the factors outlined in Graham and Miller. That being said, the issue isn't technically before the court here since this concerns Parole for offenses committed before 1995. In that sense, it is an extension of those cases, but a logical extension based on its reasoning.

Posted by: Erik M | Apr 4, 2019 1:38:10 PM

And this decision points up the ridiculousness of the juvenile LWOP cases to start with. If parole can be withheld for any reason at all, so long as it is not wholly-arbitrary (e.g., a coin flip), then it's no different from executive clemency. (Unless one thinks that the identity of the decision maker has some sort of constitutional moment---which, of course, would be made up law.)

Posted by: federalist | Apr 5, 2019 7:45:02 AM

federalist, a defendant is entitled, under Graham and Miller, to a "meaningful opportunity to obtain release” from a life term. I think if a state could make a showing that, though its executive clemency process, it provides juve offenders with a "meaningful opportunity to obtain release,” then it should be (and likely would be) considered in compliance with Graham and Miller. Similarly, if a state provides for parole but FAILS to provide a "meaningful opportunity to obtain release,” then its punishment system is constitutionally problematic. I believe this version of the problem --- parole functioning that does not provide a meaningful opportunity for release --- is being actively litigated in Maryland and a few other states.

In other words, it seems that substantive outcomes, not labels (nor perhaps the decision-making process), matter for purposes of the Eighth Amendment analysis.

Are you aware of any state with a clemency history that suggests it provides all juve murderers with a "meaningful opportunity to obtain release”? I am not, and that largely explains why executive clemency is insufficient to comply with the Graham/Miller definition of the Eighth Amendment.

Posted by: Doug B. | Apr 5, 2019 11:56:03 AM

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