By First Class Mail and Email to:
Dennis Depew
Deputy AG for Civil Litigation
Office of the Attorney General
120 S.W. 10th Ave., 2nd Floor
Topeka, KS 66612-1597
 
Jeff Cowger
Chief Legal Counsel
Department of Corrections
714 SW Jackson, Suite 300
Topeka, KS 66603
 
Re: Constitutional Protections for Juvenile Applicants Seeking Parole; Proposed Regulatory Changes.
 
Counsel:
 
Thank you for your willingness to meet with us last week to discuss our constitutional concerns with Prisoner Review Board (“PRB”) practices for juvenile applicants seeking parole release (“juvenile applicants”1). Per your invitation, we write to provide a set of regulatory proposals that would correct these constitutional errors. We look forward to working with you to implement these changes and to answer any questions you may have about the information provided below.
 
 
I. Overview of the Constitutional Rights of Juvenile Applicants.
 
The U.S. Supreme Court decisions in Graham, Miller, and Montgomery require that juveniles have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”— no matter how serious their offenses.2 This is because juveniles “have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed.”3
 
Federal and state courts across the country have responded to the Supreme Court’s mandate and have clarified that in order to satisfy the Eighth Amendment, parole boards must undertake a detailed “youth and its attendant circumstances” analysis before denying parole release to a juvenile applicant.Courts have further clarified that parole hearings for juvenile applicants must use different procedures and consider additional factors other than the standard evaluation criteria used in adult proceedings in order to properly protect juveniles from being treated the same way as adults.5 In fact, unlike the parole system for adults in Kansas— which is generally discretionary— juvenile applicants enjoy a constitutionally protected liberty interest in being released on parole.7 The PRB therefore must systematically provide all juveniles with a different parole process that considers youth and mitigating life circumstances and has as its starting point the presumption that juvenile applicants must be released at their minimum sentence.8 The current Kansas parole statute does nothing to separate out juvenile applicants,9 nor do any currently existing regulations or policies.
 
 
II. The PRB Should Promulgate Youth-Sensitive, Presumptive Release Regulations for Juvenile Applicant Parole Hearings.
 
Several states have adopted statutes, regulations, or guidelines implementing the constitutional mandates described above in Section I.10 Each state’s reform created a distinct evaluation process for juvenile applicants characterized by the following features: (1) a focus on rehabilitation rather than the crime severity or older institutional disciplinary history; (2) the mitigation of youth is central to the parole interview and decision; and (3) a presumption of release.11 The ACLU of Kansas recommends reviewing the Juvenile Sentencing Project’s model regulation for specific guidance and for drafting purposes.12
 
 
III. Regulations Must Ensure Due Process Protections for Juvenile Applicant Parole Hearings.
 
As previously noted, juvenile applicants have a due process liberty interest in parole release.13 This liberty interest triggers precisely the same due process rights that already exist in the context of parole revocation hearings. The PRB must: (1) disclose all evidence to be considered prior to the hearing; (2) provide an opportunity to be heard and to present evidence in support of release; (3) provide the right to hear and confront adverse witnesses as necessary; and (4) prepare a written decision that is comprehensible and sufficiently detailed for a reviewing court to evaluate.14
 
In terms of changes to current practice, this would mean that the PRB actually shares all parole files with juvenile applicants or their counsel in advance of a hearing, allows applicants to submit written evidence of mitigation in response, and forbids prison staff from giving off-the-record feedback on the credibility of parole applicants or their suitability for release.15 It would also require the PRB to submit a written decision denying parole that communicates far more reasoning than the extremely brief, boilerplate denials the PRB currently uses.16
 
Furthermore, due process requires that there is a recording of each parole interview for the purposes of administrative and judicial review.17 Having a fully preserved record is already effectively required under current PRB regulations for all parole hearings.18 However, the PRB in practice makes no such records. This requirement must be vigilantly enforced to ensure that the rights of juveniles are being appropriately protected.
 
 
IV. Parole-Eligible Juvenile Applicants Should Receive a New Hearing.
Many juvenile applicants will become eligible for parole release in the coming years and will benefit from any institutional or regulatory reforms the PRB adopts. However, all of the following individuals are juvenile applicants whom the PRB has denied release to under the current constitutionally-insufficient
parole regime:
 
[REDACTED] 
 
Any subsequent changes to parole release procedures for juvenile applicants should also apply to this group of individuals and should entitle any juvenile applicant previously denied parole release to a new hearing.
 
 
V. Conclusion
 
Thank you again for your willingness to work with us and we are optimistic that we will be able to resolve this matter without litigation. We welcome the opportunity to meet with you at your offices in Topeka following your review of this letter to discuss next steps. We understand you need to do some limited investigation and discuss our proposed changes with members of the PRB. However, we will follow up to schedule our next meeting on Friday, May 24, 2019. In the meantime, please do not hesitate to contact us with any questions or concerns.
 
Sincerely,
Zal Shroff
Staff Attorney
 
1 Juvenile applicants are those individuals who are serving a sentence for crimes they committed prior to eighteen years of age, regardless of the time at which they become eligible and apply for parole release.
2 Graham v. Florida, 560 U.S. 48, 75 (2010); see also Montgomery v. Louisiana, 136 S. Ct. 718, 735 (2016); Miller v. Alabama, 567 U.S. 460, 479 (2012).
3 Graham, 560 U.S. at 68. 

4 See, e.g., Maryland Restorative Justice Initiative v. Hogan, No. 16-1021, 2017 U.S. Dist. LEXIS 15160, 2017 WL 467731, at *27 (D. Md. Feb. 3, 2017); Matter of Hawkins v New York State Dept. of Corr. & Community Supervision, 140 A.D.3d 34, 39 (N.Y. App. 2016); Greiman v. Hodges, 79 F. Supp. 3d 933, 943-44 (S.D. Iowa 2015).
5 See Hayden v. Keller, 134 F. Supp. 3d 1000, 1009 (E.D. N.C. 2015) (noting that where there is no difference between an adult and a juvenile offense parole hearing, the state has violated the Eighth Amendment); see also Atwell v. State, 197 So. 3d 1040, 1041 (Fla. 2016).
6 Johnson v. Kan. Parole Bd., 419 Fed. Appx. 867, 871 (10th Cir. 2011).
7 Brown v. Precythe, Case No. 2:17-cv-04082-NKL, 2017 U.S. Dist. LEXIS 180032, at *35- *36 (W.D. Mi. Oct. 31, 2017) (“Thus, under Graham, Miller, and Montgomery, the juvenile offender has a liberty interest in a meaningful parole review”).
8 Although there is some dispute as to whether the Supreme Court’s mandate applies to all juveniles or only to those who might serve up to life because their sentences carry no expiration date, the distinction is irrelevant in Kansas. Since July 1993, the Prisoner Review Board only has discretionary release authority over indeterminate sentences carrying up to life in prison. K.S.A. §§ 22-3717(b)(3), (d).
9 See K.S.A. § 22-3717(h).
10 See, e.g., Ark. Code § 16-93-621(b)(2) (directing the parole board to consider “[t]he diminished culpability of minors,” “[t]he hallmark features of youth,” and certain other mitigating factors of youth); Cal. Penal Code § 4801(c) (same); W. Va. Code § 62-12-13b(b) (same); see also N.Y. Code Rules & Regs. § 9-8002.2(c) (same); R.I. Parole Board, 2018 Guidelines § 1.5(F)(2) (same).
11 See Parole Board Hearings for Juvenile Offenders, JUVENILE SENTENCING PROJECT (2018), at 2-3, attached as Exhibit A.
12 See id. at 5-7.
13 Precythe, 2017 U.S. Dist. LEXIS 180032, at *35-*36.
14 Denoyer v. Warden, Case No. 16-3146-JWL, 2016 U.S. Dist. LEXIS 132371, at *14-*15 (D. Kan. Sept. 26, 2016) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
15 As indicated in our meeting, informal and damaging off-the-record input from staff was a deeply concerning aspect of the parole release interview the ACLU of Kansas attended in March for [REDACTED], who was just fifteen years old at the time of his offense and who has already served thirty years. He was nonetheless denied parole for the seventh time this year without any serious consideration of his youth at the time of the crime.
16 A written decision denying parole release to juvenile applicant [REDACTED], is attached as Exhibit B. The decision is one line long and provides no explanation for why [REDACTED] has been denied parole a total of five times. He has already served twenty-seven years for a crime committed at age sixteen.
17 State v. Holt, 298 Kan. 531, 537-38 (Kan. 2013) (“due process requires a reasonably accurate and complete record of the trial proceeding”) (internal quotations and citations omitted).
18 K.A.R. § 45-200-2(a) (“If a single board member conducts a parole hearing, the findings of that member shall be reviewed and approved in accordance with K.S.A. 22-3709, and amendments thereto, before the findings and decision become final”) (emphasis added). Most interviews are carried out by a single board member, and the single member’s findings cannot be reviewed and approved without the existence of a record. 

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