FALSE HOPE

MILLER AND PAROLE
IN THE COURTS
he ACLU is currently challenging the parole process in
T three states. In Michigan, in Hill v. Snyder, the ACLU is
challenging the process as applied to individuals who were
juveniles at the time of their offense because the existing
procedures do not provide the now constitutionally required
meaningful opportunity for release. 356 In May 2016, the Sixth
Circuit Court of Appeals remanded the case to the district
court to address the Michigan parole procedures in light
of Montgomery v. Louisiana. 357 Similarly, in Maryland, the
ACLU is challenging the parole system’s failure to provide
a meaningful opportunity for release for individuals who
were juveniles at the time of their offenses, as demonstrated
by the fact that no “juvenile lifer” has been granted parole
in two decades. 358 The ACLU is also challenging the parole
process of juvenile offenders in Iowa in order to ensure
that these individuals receive a meaningful parole review
where their youth at the time of the offense and subsequent
rehabilitation are taken into account. 359 An individual case
is also pending in North Carolina, where a federal district
court ruled in September 2015 that the existing North
Carolina parole review process violates the rights of juvenile
offenders and required that the state provide a plan to
ensure these individuals receive a meaningful opportunity
for release. 360
In New York, a state court recently held that Dempsey
Hawkins, who was 16 at the time of his offense and received
a parole-eligible life sentence, was entitled to and yet denied
a meaningful opportunity for release in his parole hearing. 361
While incarcerated for the murder of his girlfriend, Mr.
Hawkins focused on his education and participated in vocational
and other available programming. Recalls Mr. Hawkins,
“I just thought, ‘I’ve got to get better.’ I hit the gutter and the
only way up was self-improvement. I wanted to get a measure
of redemption for myself.” 362 Mr. Hawkins, a 56-year-old
Black man who was convicted in 1979, was denied parole
nine times, generally for the nature of the offense. The case
was remanded for a de novo parole hearing to consider Mr.
Hawkins’ youth and related characteristics at the time of the
offense. Outside of this recent litigation, however, few states
have been compelled or else chosen to overhaul their parole
procedures to comply with Graham and Miller.
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The key question after Graham and Miller is whether young
offenders who have been rehabilitated will be released to live
a meaningful life outside prison walls, or if they will at best
be released to die outside them. As Bierschbach observes,
“Absent a constitutional mandate imposing substantive
conditions for release, offenders sentenced to life with parole
can—and often will—still serve a life sentence. It is just that
the parole board, not the sentencing judge, ultimately makes
the judgment that they will do so. And it does so slowly, by
degrees, and over time.” 363
The challenge for young offenders now facing parole
review is not necessarily that they are stuck with the same
insufficient system that has frustrated other parole-eligible
prisoners. Rather, individuals incarcerated since their youth
face unique challenges in getting parole approval because of
their age at time of the offense. As Cohen observes, when
young offenders come up for their initial parole review:
[M]any have few contacts in the outside world,
no job prospects, and no previously forged
relationships; in other words, they are even less
prepared for reentry than their adult counterparts.
They thus come before the Board in a high “risk
state,” unlikely candidates for release unless their
circumstances are considered from an appropriate
developmental perspective. 364
Moreover, individuals who grew up in prison have been
almost entirely reliant on the adult correctional system for
their education, socialization, and reentry training.
Individuals who grew up
in prison have been almost
entirely reliant on the adult
correctional system for their
education, socialization,
and reentry training.
Legal scholars and advocates, including the ACLU, maintain
that the language of Miller creates a constitutional
requirement that parole proceedings provide a meaningful
opportunity for release for young offenders. Without
requirements for the parole board to ensure that youth is
viewed as a mitigating and not an aggravating factor, the
possibility of release may be illusive.
1. Youth-Specific Guidelines and Their
Impact on Parole
In most states, even after the Miller and Graham reforms,
there are few procedures to ensure that a person’s youth at
the time of the offense is appreciated for its impact on the
individual’s state of mind at that time and their subsequent
growth. This lack of appreciation for the importance of
youth is seen in parole outcomes—few individuals who were
young at the time of their offense are released before they
are old.
The low parole rates for young offenders, similar to the low
parole approval statistics for adults serving long sentences
for serious offenses, suggest that, without reform, the current
parole system will not release a significant number of
parole-eligible prisoners. As law professor Megan Annitto
observed, “[T]he standards used by parole boards lack any
component that would afford ‘meaningful review’ of parole
board decisions as they currently exist.” 365 Juvenile law experts
Marsha Levick and Robert Schwartz have suggested that in
order to make the Miller decision’s “meaningful opportunity
for release” a reality, “state laws and regulations should also
explicitly direct parole boards to consider the offender’s
youth at the time of any offense(s) or rules violation(s) and
subsequent evidence of maturation. In other words, parole
boards should be required to replace the offense-centered
and largely discretionary evaluation of juvenile offenders’
parole eligibility with the offender-centered approach established
in Roper, Graham, and Miller.” 366
A handful of states, including California, Connecticut, 367
Louisiana, 368 Nebraska, 369 Nevada, 370 and West Virginia, 371
have reformed their parole processes in response to these
legal developments for juveniles. To date, the state that has
done the most to address whether a juvenile serving a life
48 AMERICAN CIVIL LIBERTIES UNION FALSE HOPE: HOW PAROLE SYSTEMS FAIL YOUTH SERVING EXTREME SENTENCES
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