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Critics say Missouri's parole practices are unconstitutional. A federal appeals court agrees

 The Missouri Department of Corrections revokes between 5,000 and 7,000 people's parole each year, experts say.
The Missouri Department of Corrections revokes between 5,000 and 7,000 people's parole each year, experts say.

The decision by the 8th Circuit Court of Appeals upholds an earlier decision that attempts to fix what critics called a “procedural vortex” that unfairly kept people in prison with confusing documents, unfair hearings and petty interpretations of violations.

A federal appeals court has ruled that the Missouri Department of Corrections must change its parole policies, upholding an earlier decision that found broad constitutional problems in how the state deals with the release of prison inmates.

The 8th Circuit Court of Appeals, in a decision made Thursday, mostly sided with U.S. District Court Judge Stephen Bough, who earlier demanded the corrections department fix a system critics call a “procedural vortex” people can’t escape.

But the three-judge panel of the appeals court also noted that Bough went too far on some of the remedies he ordered in his 2019 decision. For instance, Bough said the department must amend its written revocation form to give parolees an option to retain their own lawyer at hearings. A parolee has that right only in certain situations, the appeals court found, and the form already gives notice that the state allows a parolee to retain an attorney.

The class-action case affects thousands of current and former parolees who were sent back to prison for what they said were petty, technical violations they hadn’t been warned of, like missing an appointment, checking out of drug rehab, or losing a job because an employer learned of their criminal record.

The parolees’ lawsuit, filed in 2017, said the state pressures people to waive hearings, gives them confusing paperwork that doesn’t tell them what they are accused of, and doesn’t give them adequate legal representation.

Amy Breihan, co-director of the Missouri office of the MacArthur Justice Center, a non-profit civil rights law firm which filed the lawsuit, said the decision was a win that will set the course for the department into the future.

“The 8th Circuit Court of Appeals is one of the most conservative courts in the country,” she said. “Viewed in that context, this is a big win.”

But Breihan noted that the lawsuit has been pending for six years, during which time many people faced the same practices called out in the lawsuit. The state revokes 5,000 to 7,000 people’s parole every year, she said.

“This decision changes the process going forward, but it doesn’t address the fact that tens of thousands were potentially re-incarcerated and had their rights violated,” she said.

Karen Pojmann, a Department of Corrections spokesperson, did not return an email seeking comment. The department has until October 19 to respond to the ruling.

Although the corrections department had first consented to Bough’s summary judgment, it later appealed, saying his order required the department to appoint lawyers for parolees, which would require the cooperation of the Missouri Public Defender Commission. The appeals court said Bough’s decision did not do that.

The appeals court sided with several pieces of Bough’s decision, including: approving a five-day notification of adverse evidence against a parolee; requiring notice to a parolee within 10 days of a decision; requiring the department to provide a written statement of the grounds for revocation; and requiring that parolees have an attorney represent them at revocation hearings.

In the lone dissent from the appeals court decision, Judge Steven Grasz said he would have vacated Bough’s entire order, saying he believed in the principles of federalism and judicial restraint. Bough’s order gave him “near-limitless jurisdiction” that usurps policymaking authority from the state agency.

“This type of micromanaging needlessly enmeshes the court in the minutiae of the parole revocation process,” Grasz wrote. 

Copyright 2023 KCUR 89.3. To see more, visit KCUR 89.3.

Peggy Lowe