United States District Court, D. Maryland
Lipton Hollander United States District Judge
Calvin McNeill, Nathaniel Foster, and Kenneth Tucker
(collectively, the “Named Plaintiffs”), along
with the Maryland Restorative Justice Initiative
(“MRJI”), “a grassroots membership
organization dedicated to prisoners' rights, ” have
filed suit against several Maryland officials, challenging
Maryland's parole system as applied to individuals who
received sentences of life imprisonment for offenses
committed as juveniles (“Juvenile Offender” or
“Juvenile Offenders”). ECF 1
(“Complaint”). See Id. ¶¶ 13,
16. The Named Plaintiffs allege that although Maryland
permits parole for a Juvenile Offender serving a life
sentence, in practice the Maryland parole system, of which
the Governor is a part, inflicts unconstitutional “de
facto” sentences of life without parole. ECF 1
(“Complaint”), ¶¶ 11-12, 167-185.
According to the Named Plaintiffs, they “have been and
continue to be denied a meaningful opportunity for release,
” in violation of the Eighth Amendment to the
Constitution and Article 25 of the Maryland Declaration of
Rights. Id. ¶ 1.
61-page Complaint also includes a challenge on behalf of all
Maryland “‘juvenile lifers'” (ECF 1,
¶ 1), a group of “more than 200 individuals,
” including the Named Plaintiffs. Id. ¶
78. Plaintiffs assert that, as applied to individuals serving
life sentences for offenses committed as minors, the Maryland
parole system subjects them to “unconstitutionally
disproportionate punishment.” Id. ¶ 12.
support of their claims, plaintiffs rely on several recent
decisions of the Supreme Court that bar, as unconstitutional,
sentences of life without parole for Juvenile Offenders.
These include Montgomery v. Louisiana, 577 U.S. __,
136 S.Ct. 718, 734 (2016); Miller v. Alabama, 567
U.S. __, 132 S.Ct. 2455, 2469 (2012); and Graham v.
Florida, 560 U.S. 48, 82 (2010). Plaintiffs seek
declaratory and injunctive relief, and a declaration that Md.
Code § 7-301(d)(4) of the Correctional Services Article
and § 2-201(b) of the Criminal Law Article of the
Maryland Code are unconstitutional. They also seek
attorneys' fees and costs. ECF 1 at 59-61.
are four Maryland officials associated with the Maryland
parole system: Governor Larry Hogan; David Blumberg, Chair of
the Maryland Parole Commission (“MPC”); Stephen
Moyer, Secretary of the Maryland Department of Public Safety
and Correctional Services; and Wayne Webb, Commissioner of
the Maryland Division of Correction (“DOC”)
(collectively, the “State”). Each defendant has
been sued in his official capacity. See ECF 1 at
Roper; Deborah Kempl and Jessica Fisher; and Patti Krogmann
(“Individual Movants”), as “Crime
Victim's Representatives, ” and the Maryland Crime
Victims ' Resource Center, Inc. (“MCVRC”)
(collectively, “Movants”), have filed a motion to
intervene as defendants (ECF 9), supported by a memorandum
(ECF 9-2) (collectively, “Motion” or
“Motion to Intervene”). Individual Movants are
family members of persons who were killed by Juvenile
Offenders. See ECF 9-2, ¶¶
MCVRC “is a private, non-profit organization [that
seeks] to ensure that victims of crime receive justice and
are treated with dignity and compassion by providing
comprehensive victims' rights and services, including
representing victims of crime and their lawful
representatives.” Id. ¶ 4.
their Motion, Movants also filed a proposed motion to dismiss
plaintiffs' Complaint (ECF 9-5); a supporting memorandum
for the proposed motion (ECF 9-6); an appendix for the
proposed motion (ECF 9-7); and a proposed answer (ECF 9-8).
filed a response to the Motion to Intervene (ECF 16,
“State's Response”), in which they ostensibly
“take no position on the ultimate question whether the
Court will exercise its discretion to permit intervention by
the movants . . . .” Id. at 1. Plaintiffs have
filed a response in opposition to the Motion (ECF 17,
“Opposition”), and the Movants have filed a reply
(ECF 18, “Reply”), supported by exhibits.
hearing is necessary to resolve the Motion to Intervene.
See Local Rule 105.6. For the reasons that follow,
the Motion shall be denied. However, Movants shall be
permitted to participate in this case as amici curiae.
Named Plaintiffs are adult inmates in Maryland correctional
institutions. They are all serving life sentences for
offenses they committed when they were juveniles. ECF 1,
¶¶ 1, 13.
McNeill “was sentenced to life with parole under
Maryland's mandatory sentencing scheme for felony
murder” (ECF 1, ¶ 122) for “his role in a
fatal robbery of a dice game that occurred in 1981, the day
he turned 17 years old.” Id. ¶ 120.
McNeill is now 51 years old. Id. ¶ 121. He has
earned “an exceptional institutional record in the DOC
(id ¶ 124), and has “taken advantage of
every program available to him, earned positions of trust in
employment, and taken leadership roles in programs to promote
alternatives to violence within and outside DOC.”
Id. ¶ 124. He was recommended for
“commutation” in 2008, “[i]n recognition of
this strong record . . . .” Id. ¶ 125. In
2011, “Governor OMalley rejected this recommendation
without explanation.” Id. ¶ 126.
McNeill's sixth parole hearing was scheduled for 2015
(id ¶ 127) and, during that hearing, parole
commissioners “told him they would be recommending him
for a risk assessment.” Id. ¶ 128. As of
the date of filing of the Complaint, McNeill had “not
been transferred for the assessment.” Id.
Tucker “was sentenced to life with parole in 1974 at
age 17 under Marylands mandatory sentencing scheme . . . for
participating in a robbery-murder with another
teenager.” Id. ¶ 136. According to
plaintiffs, in the commission of the robbery, “Mr.
Tucker's co-defendant killed the victim.”
Id. And, “[b]ecause the case involved a
homicide that occurred during the course of a robbery, Mr.
Tucker was charged with felony murder and faced a mandatory
penalty of life in prison.” Id. ¶ 137.
Tucker has been incarcerated for 42 years. Id.
maintain that Tucker “began turning his life around
almost immediately upon his incarceration, earning his high
school equivalency in 1975, an associate's degree in
1989, and a bachelor's degree in psychology in
1994.” Id. ¶ 139. Tucker has
“obtained certification or training in several
professions” and “is currently an observation
aide in the prison hospital, where he provides consolation
and coping strategies to terminally ill and mentally
distressed peers.” Id. Tucker also belongs to
the prison's “Scholars program” and serves as
a volunteer mentor. Id. Plaintiffs aver that as
early at 1987, “case management recommended
[Tucker's] transfer to preferred trailer housing and
medium security because of his good institutional adjustment
and infraction-free record . . . .” Id. ¶
140. Tucker has received consistently positive reviews and
participated in numerous parole hearings. Id.
had his sixth parole hearing in 2014. Id. ¶
143. “Commissioners who heard his case recommended that
he progress to the next step, which is the risk assessment .
. . .” Id. However, “[a]fter the
evaluation was completed, the parole commission denied parole
and set his next hearing for 2017.” Id.
Plaintiffs contend that “[n]o additional information
was provided about which aspects of the assessment caused
concern nor what [Tucker] might do to demonstrate his
readiness at his next parole hearing . . . .”
1983, “Nathaniel Foster was involved in a botched
robbery attempt along with his co-defendant, ” during
which “the victim was killed.” Id.
¶ 146. He was seventeen years old at the time.
Id. Because Foster's case “involved a
homicide that occurred during a robbery, Mr. Foster was
charged with first-degree murder and subjected to a mandatory
penalty of life imprisonment without adequate consideration
of his youth status.” Id. ¶ 147. Foster
has been incarcerated for 32 years. Id. ¶ 149.
incarcerated, Foster has maintained “an exemplary
institutional record” with “only two minor
infractions in the last three decades” and no
“infraction of any kind in the last 16 years . . .
.” Id. ¶ 150. Foster has also
“pursued his education” and has “held a
number of jobs while incarcerated including working in the
canteen and cooking for the Officer's Dining Room.”
Id. ¶ 152. Foster “has been entrusted
with extraordinary responsibilities in these jobs”
(id), and has also “served as a volunteer
helping to care for men who are gravely and terminally ill at
the prison hospital.” Id. ¶ 153.
to plaintiffs, Foster has had numerous parole hearings in the
last twenty years, including in 1995, 2000, 2005, 2008, 2011,
and 2013. Id. ¶ 155; see also Id.
¶¶ 156-165 (detailing determinations made during
each hearing). During the 2013 hearing, parole commissioners
noted: “Offender presented well, has excellent job
evaluations and mentors younger prisoners. After considering
all factors, a rehear for 1/2015 is suitable given nature
& circumstances of offense.” ECF 1, Complaint,
¶ 165 (internal quotations omitted). However, plaintiffs
state that, “[a]t the beginning of 2015, disheartened
by his sense of futility in the parole process as he was
repeatedly recognized for having an excellent record but then
denied release due to the offense itself, without regard for
his juvenile status, Mr. Foster declined a parole
hearing.” Id. Thereafter, during a 2016 parole
hearing, Foster was “advised that he will be sent to
Patuxent for a psychological evaluation.” Id.
relevance here, plaintiffs maintain that two provisions of
Maryland law are unconstitutional: Md. Code (2012, 2015
Supp.), § 2-201(b) of the Criminal Law Article
(“C.L.”) and Md. Code (2008 Repl. Vol., 2015
Supp.), § 7-301(d)(4) of the Correctional Services
Article (“C.S.”). According to plaintiffs, C.L.
§ 2-201(b) is unconstitutional because “i t
mandates judges to impose life sentences without adequate
consideration of youth status . . . resulting in grossly
disproportionate punishment in violation of the Eighth
Amendment and Article 25 of the Maryland Declaration of
Rights.” ECF 1, ¶ 15. Further, they argue that
under C.S. § 7-701(d)(4), “only the Governor may
grant parole to any individual serving a life
sentence.” Id. ¶ 60. They assert,
inter alia, that the “Governor's clemency
authority” is unconstitutional because “it is
exclusive and devoid of standards.” ECF 1 at 23.
Elaborating, plaintiffs maintain that the Governor is not
required to follow or consider parole recommendations made by
the MPC (ECF 1, ¶ 72); is not guided by any factors,
either statutory or regulatory, in granting or denying parole
(id. ¶ 73); and is not required to make public
the “criteria” used in deciding whether to grant
or deny parole. Id. ¶ 76. They observe that
from 1995 to 2015, a period of two decades, Governors
Glendening, Ehrlich, and O'Malley received
recommendations for parole for 24 individuals, both juveniles
and adults, and rejected every one, without explanation. ECF
1, ¶ 116. In that time, the governors never approved
even one parole request. Id. ¶
addition, plaintiffs criticize the policies and practices
implemented by the MPC. See id, ¶¶ 81-90.
According to plaintiffs, the policies and practices
“make no distinction between youth and adults, fail to
adequately consider the attributes of youth, and in some
respects disproportionately penalize those who were youth at
the time of offense, all while fundamentally impeding
individuals from vindicating their right to a meaningful
opportunity for release.” Id. ¶ 82;
see also Id. ¶ 83-84. Further, plaintiffs
maintain that the risk assessment tools used by the MPC to
assess individuals impair their access to release because
they “take no account of an individual's maturation
over time, accomplishments [or] institutional record, ”
but instead “penalize those who were youth upon arrival
to [the DOC] by assessing them as they were when they were
most risky and too young to have developed factors that the
tools deem ‘protective' against recidivism.”
Id. ¶ 87 (alterations added). Similarly,
plaintiffs complain that DOC policies prevent Juvenile
Offenders from a meaningful and realistic opportunity for
release by “bar[ring] lifers, including juveniles, from
eligibility for work release and family leave programs”
and by preventing them “from moving below medium
security status regardless of the individual's
institutional record.” Id. ¶ 91.
Standard of Review
is governed by Rule 24 of the Federal Rules of Civil
Procedure. It provides, in relevant part:
(a) Intervention of Right. On timely motion, the court must
permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal
(2) claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
(b) Permissive Intervention.
(1) In General. On timely motion, the court may
permit anyone to ...