United States District Court, W.D. Missouri, Central Division
NORMAN BROWN, et al. Plaintiffs,
ANNE L. PRECYTHE, et al., Defendants.
DECLARATORY AND INJUNCTIVE RELIEF ORDER
Nanette K. Laughrey, United States District Judge
Norman Brown, Ralph McElroy, Sidney Roberts, and Theron
Roland (together, “Plaintiffs”) are serving
mandatory sentences of life without parole for homicide
offenses committed when they were less than 18 years of age.
Doc. 143 (Plaintiffs' Suggestions in Opposition to
Defendants' Motion for Summary Judgment), p. 1. The
United States Supreme Court, however, has held that
sentencing a juvenile to a mandatory life sentence without
the possibility of parole violates the Eighth Amendment. This
is because the mind of a child is structurally different from
the mind of an adult.
explained in Miller v. Alabama, 567 U.S. 460 (2012),
First, children have a lack of maturity and an underdeveloped
sense of responsibility, leading to recklessness,
impulsivity, and heedless risk-taking. Second, children are
more vulnerable to negative influences and outside pressures,
including from their family and peers; they have limited
control over their own environment and lack the ability to
extricate themselves from horrific, crime-producing settings.
And third, a child's character is not as well formed as
an adult's; his traits are less fixed and his actions
less likely to be evidence of irretrievable depravity.
Miller, 567 U.S. at 471 (quotation marks and
of the brain involved in behavior control continue to mature
through late adolescence.” Graham v. Florida,
560 U.S. 48, 68 (2010). Studies have shown that “only a
relatively small proportion of adolescents who engage in
illegal activity develop entrenched patterns of problem
behavior.” Miller, 567 U.S. at 471 (quotation
marks and citation omitted). Thus, the actions of a juvenile
“are less likely to be evidence of irretrievably
depraved character than are the actions of adults.”
Graham, 560 U.S. at 68 (quotation marks and citation
“a greater possibility exists that a minor's
character deficiencies will be reformed, ” it
“would be misguided” to treat a juvenile offender
in the same fashion as an adult. Id. (quotation
marks and citation omitted). A mandatory sentence of life
without parole fails to take account of the fact that the
“signature qualities” of youth described above
“are all transient.” Miller, 567 U.S. at
476 (quotation marks and citation omitted).
Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark
features-among them, immaturity, impetuosity, and failure to
appreciate risks and consequences. It prevents taking into
account the family and home environment that surrounds
him-and from which he cannot usually extricate himself-no
matter how brutal or dysfunctional. . . . It ignores that he
might have been charged and convicted of a lesser offense if
not for incompetencies associated with youth-for example, his
inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist
his own attorneys.
Id. at 477-78. A mandatory sentence of life without
parole for a juvenile “disregards the possibility of
rehabilitation even when the circumstances most suggest
it.” Id. at 478.
Montgomery v. Louisiana, 577 U.S. __, 136 S.Ct. 718
(2016), the Supreme Court held that Miller applies
retroactively because it announced a rule of substantive law.
A state need not guarantee freedom to the juvenile offender,
but it must provide “some meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation.” Miller, 567 U.S. at 479
(quoting Graham, 560 U.S. at 75); see also
Montgomery, 136 S.Ct. at 736 (“Those prisoners who
have shown an inability to reform will continue to serve life
sentences. The opportunity for release will be afforded to
those who demonstrate the truth of Miller's central
intuition-that children who commit even heinous crimes are
capable of change.”). The cases “bar life without
parole . . . for all but the rarest of juvenile offenders,
those whose crimes reflect permanent incorrigibility.”
Montgomery, 136 S.Ct at 734. “[G]iven . . .
children's diminished culpability and heightened capacity
for change, . . . appropriate occasions for sentencing
juveniles to this harshest possible penalty” are
supposed to “be uncommon.” Miller, 567
U.S. at 479.
12, 2016, the Missouri legislature passed Senate Bill 590,
98th General Assembly (“SB 590”). In relevant
part, SB 590 provides that any person sentenced as a juvenile
to life without parole prior to August 28, 2016, “may
submit to the parole board a petition for a review of his or
her sentence, regardless of whether the case is final for
purposes of appeal, after serving twenty-five years of
incarceration on the sentence of life without parole.”
Mo. Rev. Stat. § 558.047.1.1. The statute requires the
Board to hold a hearing to determine “if the defendant
shall be granted parole.” Mo. Rev. Stat. §
the Plaintiffs subsequently petitioned for but was denied
The Named Plaintiffs
Norman Brown was in seventh grade when he was arrested for
the offenses for which he is now serving time. Doc. 138-20
(Pre-Hearing Report for Norman Brown), p. 9. Brown's
prehearing report for parole review acknowledged that he was
only 15 years old at the time of the underlying offense, that
his participation appeared to be the result of peer pressure,
and that it “d[id] not appear he had a direct
involvement in the death” of the homicide victim.
Id., p. 11.
is, by Defendant's own standards, a model inmate. Doc.
147 (Defendants['] Suggestions in Opposition to
Plaintiffs' Motion for Summary Judgment), p. 75. Although
he accumulated multiple conduct violations in his youth, in
recent years, the violations tapered off and then ceased.
Id. Brown has improved his conduct and taken
responsibility for his actions. Id. The prehearing
report that the institutional parole officer created notes
Brown's involvement in many rehabilitative programs and
states that, “[a]t this point, it does not appear Brown
poses a risk to society . . . .” Doc. 147, p. 76.
Nonetheless, “th[e] officer respectfully recommend[ed]
Brown be scheduled for a reconsideration hearing in May 2022,
” and not granted parole, “due to the
circumstances of the offense” alone. Doc. 138-20, p.
of noting that it is a juvenile case, the Board Action Sheet
does not discuss Brown's youth or immaturity at the time
of the underlying offense. Doc. 138-35 (Board Action Sheet
for Norman Brown). The sole basis for Brown's parole
denial listed on the sheet was the circumstances of the
underlying offense. Doc. 147, p. 78.
Ralph McElroy Plaintiff Ralph McElroy's prehearing
report notes that he was 17 years of age when the offense for
which he was convicted took place. Id., p. 2.
[XXXXX] Id., p. 6.
materials submitted to the Board concerning Plaintiff Ralph
McElroy include certificates of training for various courses,
a Certificate of High School Equivalence, an award for
outstanding service at his job, and a certificate for
volunteering 600 or more hours towards restorative justice
reparative activities. Doc. 138-51 (November 30, 2016 letter
from Matthew D. Knepper, with enclosures), at 13-22.
McElroy's conduct violations, some of which were serious,
ceased in 2012. The prehearing report states that “[h]e
only began taking any type of programming after he was
informed that he would be given an opportunity for
release.” Doc. 138-21 (Pre-Hearing Report for Ralph
McElroy), p. 8. (The Supreme Court decided Miller in
has always denied committing the offense for which he is
serving time; nonetheless, the prehearing report states that
“MCELROY takes no accountability for the present
offense” and “showed no remorse for his
actions.” Id. The prehearing report
recommended that he be scheduled for reconsideration in
December 2021 “[d]ue to his attitude regarding the
offense and the victim . . . .” Id.
McElroy's Board Action Sheet nor the supplement contains
any notation regarding his youth or immaturity at the time of
the underlying offense. Doc. 147, p. 79. McElroy was denied
release based in part upon the circumstances surrounding the
underlying offense. Id., p. 80.
Sidney Roberts was 17 years old and under the influence of
alcohol and marijuana when he committed the offense for which
he is serving time. Doc. 138-16 (Pre-Hearing Report for
Sidney Roberts), p. 3. At the time of his commitment, he was
found to function at a sixth-grade level. Doc. 138-22
(Diagnostic Center Report for Sidney Roberts dated December
6, 1989), p. 3.
forensic psychological evaluation noted that, as a child, he
was exposed to his father's physical abuse of his mother
and was himself subjected to physical abuse, including
whippings with belts and other household items. Doc. 138-17
(Forensic Psychological Report for Sidney Roberts), p. 3.
Both of his parents used cocaine. Doc. 138-16, p. 11. Yet,
neither the Board Action Sheet nor the supplement thereto
contains any notation regarding Roberts's youth or
immaturity at the time of the underlying offense. Doc. 147,
pre-hearing report notes that, since 2009, Roberts'
conduct in prison “has improved” and
“maturation seems to have occurred.” Doc. 138-16,
p. 12. A forensic psychological report opined that Roberts
“had no problems with aggression for the past 15
years.” Doc. 147, p. 81. The supplement notes
“Long work HY within DOC, ” including work in a
clothing factory, “Improved conduct, ”
“Obtain HSE, ” and “participating programs,
” and that he has had no conduct violations since 2009,
but it does not provide details regarding his efforts toward
rehabilitation. Doc. 138-37 (Board Action Sheet for Sidney
Roberts), at 4; Doc. 147, pp. 82-83. Neither the Board Action
Sheet nor the Supplement contains any notation regarding the
forensic psychological report. Id., p. 82. Indeed,
the Hearing Panel Comments box on Roberts' Board Action
Sheet is blank. Id. Roberts' notice of denial
cited the circumstances of the underlying offense alone as
the basis for his parole denial. Id. p. 83.
Theron Roland's prehearing report states that he was 17
and under the influence of marijuana at the time of the
offense for which he is serving time. Doc. 138-19
(Pre-Hearing Report for Theron Roland), p. 4. His report of
the circumstances surrounding the crime suggested that he was
“initially a follower in the offense, ” and he
acknowledged that “peer pressure was a factor in the
Id., p. 8. Roland had begun using alcohol at 11 and