Md. Restorative Justice Initiative v. Hogan
| Decision Date | 03 February 2017 |
| Docket Number | Civil Action No. ELH-16-1021 |
| Parties | MARYLAND RESTORATIVE JUSTICE INITIATIVE et al., Plaintiffs, v. GOVERNOR LARRY HOGAN et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Plaintiffs Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, the "Named Plaintiffs"), along with the Maryland Restorative Justice Initiative ("MRJI"), filed a 61-page complaint, challenging the constitutionality of Maryland's parole system as applied to individuals who received sentences of life imprisonment, with parole, for homicide offenses they committed as juveniles ("Juvenile Offender" or "Juvenile Offenders"). ECF 1 ("Complaint"). MRJI, "a grassroots membership organization dedicated to prisoners' rights," has sued on "behalf of its members" (ECF 1, ¶¶ 13, 16), "including more than 100 juvenile lifers and their families..." Id., ¶ 119.1
The defendants are four Maryland officials who have been sued in their official capacities: Governor Larry Hogan; David Blumberg, Chair of the Maryland Parole Commission ("MPC"); Stephen Moyer, Secretary of the Maryland Department of Public Safety andCorrectional Services ("DPSCS"); and Dayena M. Corcoran, Commissioner of the Maryland Division of Correction ("DOC")2 (collectively, the "State").
The Complaint contains three counts: "Violation of the Eighth Amendment Prohibition Against Cruel and Unusual Punishment and 42 U.S.C. § 1983 (Count One); "Violation of Article 25, Md. Decl. of Rights Prohibition Against Cruel or Unusual Punishment" (Count Two); and "For Declaratory Judgment that Maryland Code, Criminal Law Article § 2-201(b) Is Unconstitutional" (Count 3). ECF 1.3
Plaintiffs assert that 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. ECF 1, ¶ 1. They claim that although Maryland ostensibly provides parole eligibility for Juvenile Offenders serving life sentences, in practice under the Maryland parole system such sentences are converted into unconstitutional "de facto" sentences of life without parole. Id., ¶¶ 11-12, 167-185. According to plaintiffs, "of more than 200 parole-eligible juvenile lifers in Maryland," "no one has been paroled in the last twenty years." ECF 35 at 8 (emphasis in original); see ECF 1, ¶¶ 58; 64; 74; 117, 119. In support of their claim of unconstitutionality, plaintiffs rely on several decisions of the Supreme Court, including Graham v. Florida, 560 U.S. 48, 82 (2010); Miller v. Alabama, 567 U.S.___, 132 S. Ct. 2455, 2469 (2012); and Montgomery v. Louisiana, ___U.S.___, 136 S. Ct. 718, 734 (2016).
Further, plaintiffs seek a declaration that two provisions of Maryland law are unconstitutional: Md. Code , § 7-301(d)(4) of the Correctional Services ("C.S.") Article and Md. Code , § 2-201(b) of the Criminal Law Article("C.L."). According to plaintiffs, C.L. § 2-201(b) is unconstitutional because "it mandates judges to impose life sentences without adequate consideration of youth status . . . resulting in grossly disproportionate punishment..." ECF 1, ¶ 15. And, they argue that C.S. § 7-301(d)(4) is unconstitutional as applied to Juvenile Offenders because the Governor is not required to follow or consider parole recommendations made by the MPC (id. ¶ 72), nor is he guided by any factors or standards, either statutory or regulatory, in granting or denying parole. Id. ¶ 73.
In addition, plaintiffs challenge the policies and practices implemented by the MPC. See id, ¶¶ 81-90. In particular, plaintiffs maintain that the risk assessment tools used by the MPC to assess individuals "penalize those who were young at the time of offense..." by "assessing them as they were when they were most risky..." ECF 1 ¶¶ 61, 87 (alterations added). Plaintiffs also claim that the automatic classification of all Juvenile Offenders to maximum security upon commitment to DOC, and the categorical bar for lifers on progressing below medium security, denies Juvenile Offenders opportunities to advance through the DOC system to demonstrate their maturity and rehabilitation, "[b]ecause virtually every aspect of programming is determined by an individual's classification level." Id. ¶ 99; see also id., ¶ 62. Plaintiffs also argue that "juveniles are severely limited in their ability to demonstrate rehabilitation through the gradual earning of additional privileges and the ability to succeed in lower-security settings." Id., ¶ 99.
Pursuant to Fed. R. Civ. P. 8(c), 12(b)(1), and 12(b)(6), defendants have filed a motion to dismiss, or in the alternative, for summary judgment (ECF 23), supported by a memorandum (ECF 23-1) (collectively, "Motion" or "Motion to Dismiss"), and several exhibits. ECF 23-3 to ECF 23-5. Plaintiffs oppose the Motion (ECF 35, "Opposition") and have submitted a Rule 56(d) declaration from one of their lawyers, asserting a need for discovery. On that basis, they oppose conversion to summary judgment. ECF 35-1. Defendants replied (ECF 41, "Reply"),supported by an affidavit. ECF 41-1. Plaintiffs moved to file a surreply (ECF 43), which I granted by Order of January 3, 2017 (ECF 59).
In an Order of August 30, 2016 (ECF 33), Roberta Roper, Deborah Kempl, Jessica Fisher, Patti Krogmann, and the Maryland Crime Victims' Resource Center, Inc. (collectively, "Amici") were granted amicus curiae status in the case. Id.4 They submitted a memorandum in support of the Motion to Dismiss (ECF 34), supported by three documents previously filed with the court and refiled as ECF 34-1 to ECF 34-3. Plaintiffs have moved to strike the amici submission (ECF 36), supported by a memorandum (ECF 36-1) (collectively, "Motion to Strike"). Amici have responded (ECF 40) and plaintiffs have replied. ECF 42.
By Order of December 7, 2016 (ECF 48), I directed counsel to submit supplemental memoranda addressing LeBlanc v. Mathena, 841 F.3d 256, 261 (4th Cir. 2016), a decision of the United States Court of Appeals for the Fourth Circuit issued on November 7, 2016, in regard to a habeas case.5 The parties submitted the requested memoranda on December 16, 2016. See ECF 49 (plaintiffs); ECF 50 (defendants). They submitted responses to the supplemental memoranda on December 28, 2016. See ECF 57 (plaintiffs); ECF 58 (defendants).
On January 4, 2017, the Court held a motions hearing at which oral argument was presented. See ECF 47; ECF 61.
For the reasons that follow, I shall deny the Motion to Strike. And, I shall grant in part and deny in part the Motion to Dismiss.
The Named Plaintiffs are adult inmates in Maryland correctional institutions. They are all serving sentences of life imprisonment, with parole,7 for homicides that they committed when they were juveniles, i.e., under the age of eighteen. ECF 1, ¶¶ 1, 13, 122, 136, 147.8
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 [sic] that occurred in 1981, the day he turned 17 years old." Id. ¶ 120. When this suit was filed in April 2016, McNeill was 51 years of age and had spent more than 35 years in prison for this offense. Id. ¶ 121. He has earned "an exceptional institutional record in the DOC" (id. ¶ 124), 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. McNeill was recommended for "commutation" in 2008, "[i]n recognition of this strong record . . . ." Id. ¶ 125. In 2011, "Governor O'Malley 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 berecommending him for a risk assessment." Id. ¶ 128. As of the date of filing of the Complaint, the assessment had not occurred. Id.
In 1974, when Kenneth Tucker was seventeen years of age, he was sentenced to life with parole "under Maryland's mandatory sentencing scheme . . . for participating in a robbery-murder with another teenager." Id. ¶ 136. According to plaintiffs, "Mr. Tucker's co-defendant killed the victim." Id. But, "[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. At the time suit was filed, Tucker was 59 years of age and had been incarcerated for 42 years. Id. ¶ 136.
Tucker allegedly "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 as 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.
According to plaintiffs, Id. ¶ 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 theevaluation was completed, the parole commission denied parole and set his next hearing...
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