Jessica Hicklin, who was born James Hicklin, is serving a life sentence for a 1995 murder in Cass County that occurred during a meth transaction. Kansas City Star photo.
Four years ago, Missouri lawmakers offered a chance of release for inmates serving life without parole for crimes they committed as teens. The Missouri Supreme Court is now considering whether that law went far enough.
On Sept. 9, the court heard arguments from Jessica Hicklin, who was convicted of fatally shooting Sean Smith in 1995, when she was 16. Hicklin was sentenced to life in prison without eligibility for parole, the lowest sentence that Missouri law permitted at the time for first-degree murder.
In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that juvenile offenders cannot be given an automatic sentence of life in prison without parole, though a jury can still impose such a sentence based on the particular offender’s case. In 2016, the high court said in Montgomery v. Louisiana that Miller’s holding was retroactive to inmates already serving life sentences.
To address those holdings, the Missouri legislature in 2016 passed Senate Bill 590, which allows parole hearings for inmates previously sentenced to life without parole for crimes committed as juveniles, so long as they have served at least 25 years in prison. The bill also added a wider range of sentencing provisions for those who are under 18 when they commit first-degree murder.
Anthony Rothert of the American Civil Liberties Union of Missouri Foundation, an attorney for Hicklin, noted that prior to the passage of that bill, the Missouri Supreme Court had ruled that such inmates had to be resentenced, and that anyone under 18 convicted of murder today would receive a sentence under the new law.
“This case raises the question about what happens to the small number of people caught in the middle,” he said.
Rothert argued that Hicklin’s original sentence is still in effect and is still unconstitutional, and therefore is void. But Andrew J. Crane, an assistant attorney general arguing on behalf of the state, said Hicklin essentially was asking the court to “harm her” by denying the potential parole hearing the revised state law provides. He added that crafting sentencing laws that comply with the constitution ultimately is the job of the legislature.
“It would be unprecedented and unwarranted for this court to depart from its precedent and take away the power of the General Assembly to retroactively help offenders, especially those with unconstitutional sentences like Ms. Hicklin had,” Crane said.
The judges repeatedly questioned Rothert about whether the U.S. Supreme Court’s precedents already have determined that a parole hearing is an adequate solution for an inmate such as Hicklin.
“Does that then prevent us from saying, while maybe not ideal, it’s not unconstitutional, as you’re asking us to hold?” Judge Laura Denvir Stith said.
“Ms. Hicklin does not have parole eligibility today or even any promise that she ever will,” Rothert said. Assuming the legislature can replace a void sentence with a new sentence, he added, “What she has is the ability to ask after 25 years to become parole-eligible.”
Judge Zel M. Fischer repeatedly pressed Rothert on whether the U.S. Supreme Court’s Montgomery ruling said that states are not required to resentence prisoners already serving life without parole. Rothert disagreed.
“The constitutional right here is to have a Miller-compliant hearing,” he said.
The suit seeks a declaration that the 2016 bill is unconstitutional as applied to Hicklin. But several judges asked whether a habeas writ would be the more appropriate procedural route, as Hicklin is challenging her sentence. Rothert characterized the case as “a bit unique,” particularly because his client isn’t seeking immediate release from prison, as is typically the case in a habeas action.
The case drew multiple amicus briefs, including from the Roderick & Solange MacArthur Justice Center, which won a federal court order last year mandating that Missouri overhaul its parole process for juvenile life-without-parole inmates. An appeal of the ruling is being briefed in the 8th U.S. Circuit Court of Appeals.
Separately, Joe Dandurand, the former Johnson County circuit judge who originally sentenced Hicklin, now agrees that sentence was unconstitutional. Dandurand, who now is the executive director of Legal Aid of Western Missouri, urged the court to order resentencing in a court of law.
The case is Hicklin v. Schmitt et al., SC97692.
From a February 12, 2018 story written by Matt Campbell for the Kansas City Star:
In 2015, Hicklin changed her name and in 2016, filed a civil lawsuit alleging that deprivation of hormone therapy was unconstitutional.
In 2018 U.S. District Judge Noelle C. Collins ordered the state to provide hormone therapy to Hicklin, who was also allowed to have permanent body hair removal and access to “gender affirming” toiletries