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Maryland Restorative Justice Initiative v. Hogan

United States District Court, D. Maryland

August 30, 2016

GOVERNOR LARRY HOGAN et al., Defendants.


          Ellen Lipton Hollander United States District Judge

         Plaintiffs 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.

         Plaintiffs' 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.

         In 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.

         Defendants 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 1-2.

         Roberta 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, ¶¶ 1-3.[1] 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.

         With 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).

         Defendants 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.

         No 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.

         I. Factual Background[2]

         The 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.[3]

         Calvin 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.

         Kenneth 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.

         Plaintiffs 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. ¶¶ 140-142.

         Tucker 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 . . . .” Id.

         In 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.

         While 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.

         According 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.

         Of 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. ¶ 117.[4]

         In 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.

         II. Standard of Review

         Intervention 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 statute; or
(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 that interest.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to ...

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