Split Eight Circuit panel upholds order Missouri must improve its parole process to comply with Miller

In this post from two years ago, I noted a federal district court ruling finding that the Missouri's parole policies and practices failed to give juveniles subject to life terms a meaningful opportunity to obtain release as required by Eighth Amendment doctrines. This past Friday, a split Eighth Circuit panel upheld the bulk of this ruling in Brown v. Precythe, No. 19-2910 (8th Cir. Sept. 17, 2021) (available here). Here is how the majority opinion starts and ends:

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 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....

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.  

Judge Colloton's extended dissent gets started this way:

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.