Brown v. Precythe

Pro bono counsel from O’Melveny & Myers, LLP filed an amicus brief on behalf of Juvenile Law Center, Children and Family Justice Center, and the Fred T. Korematsu Center for Law and Equality in the United States Court of Appeals for the Eighth Circuit.  The brief was filed in support of Norman Brown and others initially sentenced to life without parole for crimes committed as youth, but who were subsequently granted parole eligibility by Missouri in order to comply with the U.S. Supreme Court’s rulings in Miller v. Alabama and Montgomery v. Louisiana mandating that children sentenced to life in prison have a meaningful opportunity for release—an opportunity which Missouri’s parole board has systemically failed to provide. 
Our brief argued that the U.S. Supreme Court's requirement for a meaningful opportunity for release creates an identifiable liberty interest in parole for all juvenile offenders, and the Due Process Clause requires procedural protections, including the appointment of counsel in parole hearings, when such a liberty interest is at stake.

The U.S. Court of Appeals for the Eighth Circuit held that Missouri’s parole review process did “deprive Plaintiffs of their Eighth Amendment right to a meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation.” The Court further held that the parole review process cannot use a risk assessment tool that has not “been developed to address the unique circumstances of the JLWOP Class,” and additionally remanded the case to the United States District Court for the Western District of Missouri “for further proceedings on whether the appointment of state-funded counsel is necessary” to ensure members of the class will not be forced to serve disproportionate sentences.

The State filed a petition for rehearing en banc. The U.S. Court of Appeals for the Eighth Circuit granted the petition, vacating their prior opinion and judgement. 

On rehearing, the Eighth Circuit held that Miller and Montgomery do not apply to the parole review process and that even if they did, Missouri’s parole review practices do provide some meaningful opportunity for release. In a dissenting opinion, Judge Kelly stated that Missouri’s policies and practices fail to provide a meaningful opportunity for release, and that “[t]o reflexively endorse any purported Miller cure that simply offers juvenile offenders nominal access to parole . . . risks depriving those offenders of the 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation' to which they are constitutionally entitled."