By John Van Swearingen

On Wednesday, November 9, 2016, the Fourth Circuit issued a published opinion in the civil case LeBlanc v. Mathena. This matter was a habeas corpus petition brought by a juvenile offender sentenced to life without parole for a non-homicide offense. The District Court of the Eastern District of Virginia had previously concluded that Virginia’s Geriatric Release program, which provides offenders sentenced to life without parole the opportunity to petition for conditional release after the age of sixty, violated the minimum standards of the incorporated Eighth Amendment as held in Graham v. Florida, 560 U.S. 48 (2010). In Graham, the Supreme Court of the United States held that the Eighth Amendment forbids the sentencing of juveniles convicted of non-homicide offenses to life without parole. Juvenile life sentences for non-homicide offenses must provide a meaningful and realistic opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Here, the circuit court affirmed the district court’s ruling, holding that Geriatric Release does not meet the requirements of Graham.

Facts and Procedural History

On January 1, 1995, Virginia enacted Va. Code Ann. § 53.1-165.1 (2015), abolishing parole for felonies convicted after that date. On July 6, 1999, the Petitioner committed the crimes of rape and abduction, and on July 15, 2002, he was convicted and sentenced to two life sentences.

After the Supreme Court decided Graham in 2010, the Petitioner filed a motion in Virginia state court to vacate his sentence of life without parole. In 2011, the state trial court denied Petitioner’s motion based on Angel v. Commonwealth, a contemporaneous Virginia Supreme Court decision holding that Virginia’s Geriatric Release program satisfied the requirements of Graham.

In June of 2012, the Petitioner filed a writ of habeas corpus in the District Court of the Eastern District of Virginia. The district court granted the habeas petition, holding that the Geriatric Release program did not meet the standards established in Graham. The Respondents in this case, the state, timely filed this appeal.

Virginia’s Geriatric Release Program

Virginia’s Geriatric Release program is a two-stage process by which convicted offenders with life sentences can apply for conditional release. Unlike Virginia’s abolished parole doctrine, the Geriatric Release program is not automatic. Offenders must initiate the process with a petition to the Parole Board – and again, they may only do so after their sixtieth birthday.

The first stage of the Geriatric Release process requires the offender’s petition demonstrate a “compelling” reason for the release of the offender. The term “compelling” is not defined in the relevant statute or administrative regulations. The Parole Board is able to deny the petition for Geriatric Release for any reason at this point.

Should the Parole Board permit the petition to go to the second stage, the offender will be provided the opportunity to make oral and written statements to the Parole Board to advocate for his or her release. If at least four out of five members of the Board agree, the offender’s petition for Geriatric Release will be granted.

Again, the process is distinguishable from the old parole system. Geriatric Release cannot be initiated until the offender turns sixty. Virginia’s parole process typically initiated after offenders had served about fifteen years. The Petitioner would likely have been eligible for parole, under the old system, after around twenty years. Under the Geriatric Release program, that length of time is approximately doubled. Further, only three out of five members of the Parole Board had to agree to grant parole. The Geriatric Release program requires one more member of the board for approval.

Standard of Review for Habeas Corpus Petitions

When a habeas petition is filed, the standard of review turns on whether the petition involves a question of law or fact. This case presents a question of law, meaning the standard of review is stated at 28 U.S.C. § 2254(d)(2) (2012). If the court’s decision was an “unreasonable determination” of how the law applies to the facts in this case, then the court’s decision was improper. If the decision was reasonable, it stands.

Habeas petitions in federal district courts must review the case at hand in addition to the most recent state case addressing the issue. In this case, the most recent state case was the Angel decision, which held that the Geriatric Release program met the requirements of Graham. Since the state decision is contrary to the district court’s decision, either Angel or the district court’s decision will be determined unreasonable, and one holding will be affirmed.

The Standard Established in Graham

The holding in Graham was based on the Supreme Court’s conclusion that juveniles are less culpable for crimes than adults. Juvenile brains, the Court noted, are still developing. Because of this, the Court stated, juvenile offenders are less likely to be “irretrievably depraved” than adults. With that in mind, the Court examined the prospect of life without parole for juveniles convicted of non-homicide offenses in the context of the Eighth Amendment.

The Court noted that life without parole is only second to the death penalty in its harshness and ability to deprive convicted persons of hope. Life without parole is, therefore, an ultimate judgment of the irrevocable nature of an offender’s character. Given those points, the Court held that life sentences for juveniles convicted of non-homicide offenses must meet three requirements.

First, the sentence must provide an opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Second, this opportunity must be meaningful and realistic. Third, the state’s parole and release programs at large must account for the lesser culpability of juveniles.

The Geriatric Release Program Does Not Satisfy the Graham Requirements

The Fourth Circuit held that the Virginia Geriatric Release program does not meet any of the three requirements set out in the Graham decision, thus overturning Angel and affirming the district court’s holding.

First, the Geriatric Release program does not require the Parole Board to consider any factors relevant to the juvenile’s maturity or rehabilitation. Additionally, because of the two-stage review process, a petition can be denied at the first stage – before the presentation of oral and written arguments. Also, over 95% of the denials of Geriatric Release petitions were based on the nature of the underlying crimes, which, again, precludes consideration of maturity and rehabilitation. Therefore, the program does not meet the first requirement of Graham.

Second, the circuit court held the extended duration of time compared to parole, coupled with the lack of consideration for juvenile-specific factors, rendered the opportunity provided under the Geriatric Release program neither meaningful nor realistic for juvenile offenders facing life sentences. Therefore, the program does not meet the second requirement of Graham.

Finally, the Geriatric Release program fundamentally contravenes the concerns underlying the Court’s third requirement in Graham. Unlike the abolished parole program, which counted time served regardless of age, the Geriatric Release program requires juveniles serving life sentences to spend a longer percentage of their life incarcerated than an adult serving the same sentence. Essentially, the program ensures that juveniles, though deemed to be less culpable by the Supreme Court, will bear a harsher punishment than adults.

Disposition

The Fourth Circuit affirmed the district court’s order remanding the Petitioner’s case for resentencing. The Virginia Geriatric Release program permits the denial of offender’s petitions without requiring consideration of demonstrated maturity or rehabilitation. The program, in execution, results in more comparably harsh sentences for juvenile offenders than adult offenders. Therefore, the Geriatric Release program does not meet the requirements of the incorporated Eighth Amendment as enumerated in Graham.

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