Amy Breihan offered the three judges of the Eighth Circuit Court of Appeals a simple explanation of the case known as .
“What this case is about at its core is fundamental fairness and liberty,†she said.
Breihan is the co-director of the ÁñÁ«ÊÓƵ office of the a nonprofit legal organization that fights for civil rights and social justice. In 2017, the organization sued the state of ÁñÁ«ÊÓƵ over its parole practices, specifically that the state was violating due process rights of people who had done their time, been released from prison on parole and then sent back to prison on alleged violations of the terms of their parole.
Thousands of Missourians, the lawsuit alleged, were sent back to prison without being given proper notice of the alleged violations or a hearing to dispute them and, perhaps most importantly, an attorney to represent them during such a process.
People are also reading…
The fact that the case was before three federal appeals judges Thursday morning is indeed a lesson in fairness and liberty. A year ago, U.S. District Judge Stephen R. Bough ruled in the parolees’ favor, granting summary judgment in the lawsuit and ordering the state of Missouri to adjust its parole process to protect the constitutional rights of the accused. The ruling was a slam-dunk win for liberty.
“The Court finds troubling the pressure placed on parolees to waive preliminary and revocation hearings, sometimes based on false and misleading information,†Bough wrote. “The issue is exacerbated by evidence that some parolees waive their right to hearings before receiving their violation reports and without an adequate explanation of their rights in the process.â€
Despite agreeing in the case that the Department of Corrections procedures for parole were clearly violating the constitutional rights of people who were being sent back to prison, the state of Missouri, represented by Attorney General Eric Schmitt, appealed the case.
The appeal puts Schmitt — a Republican candidate for U.S. Senate — in what is becoming a common place for him, fighting against liberty, at least if the people seeking it are fighting against the tyranny of the criminal justice system.
More than 50% of the people in Missouri’s prisons are there on probation or parole violations.
That the case was being appealed at all seemed to catch at least one of the judges by surprise.
“Didn’t the record show that the policies were not being followed?†the judge asked.
“Yes,†said Jesus Osete, an attorney with Schmitt’s office who was arguing the state’s case. But the state still believes Bough overstepped his authority by telling the state that it had to rewrite policies to make sure parolees’ rights were being protected.
The only real dispute is how long the federal courts are going to take to make sure the state of Missouri stops sending parolees back to prison without protecting their due process rights.
“The state of Missouri conceded it was violating the due process rights of thousands of parolees every year,†Breihan told the appeals judges. “During the one year to date that this appeal has been pending, thousands more have been (sent to prison) using an unconstitutional process. ... Stephanie Gasca gave birth to her son behind bars because she was sent back to prison on an alleged probation violation.â€
Gasca is the plaintiff whose name appears in the title of the case, which is a class-action representing thousands of Missourians like her. In 2017, she left a drug rehab program early, not realizing it was a potential violation of her parole. When her parole officer gave her a form to waive a hearing, she signed it. She gave up her rights and was sent to prison without an attorney. That’s where she gave birth to her son, Noah.
Gasca should not have been given an opportunity to waive her rights before speaking with an attorney and understanding the full implications of her decision. On that, there’s no dispute.
This is the system of law in Missouri, Breihan told the appeals court, and it will stay that way until somebody forces the state to follow the directions laid out in Bough’s ruling.
“At the end of the day, it’s the state’s opportunity to provide counsel and figure out how to do that,†Breihan said. “The district court can’t turn a blind eye to overwhelming evidence of due process violations.â€