Diatchenko v. District Attorney for the Suffolk District Commonwealth v. Roberio ( 2015 )

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SJC-11688
SJC-11689
GREGORY DIATCHENKO & another1 vs. DISTRICT ATTORNEY FOR THE
SUFFOLK DISTRICT & others.2
COMMONWEALTH vs. JEFFREY S. ROBERIO.
Suffolk. November 6, 2014. - March 23, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Constitutional Law, Sentence, Parole, Assistance of counsel,
Judicial review. Due Process of Law, Sentence, Parole,
Assistance of counsel. Parole. Practice, Criminal,
Sentence, Parole, Assistance of counsel. Witness, Expert.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 19, 2013.
The case was reported by Botsford, J.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 10, 2014.
The case was reported by Botsford, J.
1
Jeffrey S. Roberio, intervener.
2
Chair of the Massachusetts Parole Board (board) and
Commissioner of Correction (commissioner).
2
Benjamin H. Keehn, Committee for Public Counsel Services,
for Gregory Diatchenko & another.
Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.
Amy L. Karangekis, Assistant Attorney General, for
Massachusetts Parole Board.
John P. Zanini, Assistant District Attorney, for District
Attorney for the Suffolk District.
The following submitted briefs for amici curiae:
Kenneth J. Parsigian for Citizens for Juvenile Justice &
others.
David J. Apfel, Kristen A. Kearney, Kunal Pasricha, &
Katherine Connolly Sadeck for Campaign for the Fair Sentencing
of Youth & others.
Afton M. Templin for Massachusetts Association of Criminal
Defense Lawyers.
BOTSFORD, J. In Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), this court
considered the constitutionality of a life sentence without
parole when applied to a juvenile homicide offender,3 and,
following Miller v. Alabama, 132 S. Ct. 2455 (2012), determined
that the mandatory imposition of such a sentence violates the
prohibition against cruel and unusual punishments in the Eighth
Amendment to the United States Constitution as well as art. 26
of the Massachusetts Declaration of Rights.4 Diatchenko I, supra
3
The term "juvenile homicide offender" refers in this
opinion to a person who has been convicted of murder in the
first degree and was under the age of eighteen at the time that
he or she committed the murder.
4
This court also concluded in Diatchenko v. District
Attorney for the Suffolk Dist., 466 Mass. 655, 671 (2013)
(Diatchenko I), that the discretionary imposition of a sentence
3
at 668. The court held that a juvenile homicide offender who is
convicted of murder in the first degree and receives a mandatory
sentence of life in prison must be afforded a "meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation," and this opportunity must come through
consideration for release on parole. Id. at 674, quoting Graham
v. Florida, 560 U.S. 48, 75 (2010).
The court's opinion in Diatchenko I has given rise to
questions concerning how the opportunity for release on parole
will be protected for juvenile homicide offenders.
Specifically, Gregory Diatchenko and Jeffrey S. Roberio,5 each of
whom was convicted of murder in the first degree many years ago
for a crime committed when he was seventeen years old,6 argue
that in order to ensure that their opportunity for release
through parole is meaningful, they must have, in connection with
a petition for release before the parole board (board), access
to counsel, access to funds for counsel and for expert witnesses
of life in prison without parole violates art. 26 of the
Massachusetts Declaration of Rights, which forbids the
infliction of "cruel or unusual punishments."
5
As discussed infra, in September of 2014, Roberio moved to
intervene as a petitioner in Gregory Diatchenko's case, and the
motion was allowed.
6
For further discussion of the crimes for which Diatchenko
and Roberio were convicted, see Commonwealth v. Diatchenko, 387
Mass. 718 (1982), and Commonwealth v. Roberio, 428 Mass. 278
(1998), S.C., 440 Mass. 245 (2003).
4
because they are indigent, and an opportunity for judicial
review of the decision on their parole applications. For the
reasons discussed below, we agree in substance with Diatchenko
and Roberio.7
1. Procedural history. a. Diatchenko. In March of 2013,
Diatchenko filed the present action in the county court, seeking
a declaration that, because he was convicted of murder in the
first degree and was seventeen at the time he committed the
offense, his mandatory sentence of life without parole was
unconstitutional following the United States Supreme Court's
decision in Miller, 132 S. Ct. at 2469. The single justice
reported the case to the full court.
The court issued its opinion in December, 2013. See
Diatchenko I, 466 Mass. at 655. Having determined that juvenile
homicide offenders could not validly be sentenced to life in
prison without parole, the court turned to the task of finding
an appropriate way to achieve a constitutionally permissible
result, while still recognizing the Legislature's primary role
7
We acknowledge the two amicus briefs submitted in support
of Diatchenko and Roberio by Citizens for Juvenile Justice, the
Children's League of Massachusetts, Prisoners' Legal Services of
Massachusetts, the Campaign for the Fair Sentencing of Youth,
the Justice Resource Institute, the Coalition for Effective
Public Safety, the Lawyers' Committee for Civil Rights and
Economic Justice, Professor Daniel Medwed, and the Hon. Gail
Garinger (ret.); as well as the amicus brief submitted in
support of Diatchenko by the Massachusetts Association of
Criminal Defense Lawyers.
5
in establishing sentences for criminal offenses. The approach
we took was to declare invalid, as applied to juvenile homicide
offenders, certain language in G. L. c. 265, § 2, creating an
exception to parole eligibility for those convicted of murder in
the first degree and leaving in full effect the remainder of the
statute that imposed a mandatory sentence of life imprisonment.
See Diatchenko I, supra at 673. The result was that any
juvenile offender previously convicted of murder in the first
degree, including Diatchenko, became eligible for parole after
serving fifteen years of his or her sentence. See id. See also
G. L. c. 265, § 2, as amended through St. 1982, c. 554, § 3;
G. L. c. 127, § 133A, as amended through St. 1965, c. 766, § 1.
Because Diatchenko had already served approximately thirty-one
years of his life sentence, he became eligible for parole
immediately. See Diatchenko I, supra.8
Pursuant to the opinion's rescript, the case was remanded
to the single justice with the direction to enter a judgment
8
In Commonwealth v. Brown, 466 Mass. 676 (2013), decided
the same day as Diatchenko I, the remedy in Diatchenko I was
extended to include juvenile offenders sentenced to life in
prison for murder in the first degree going forward, such that
they also are entitled to a parole hearing. Brown, supra at
688. The Legislature has since responded to these decisions by
amending G. L. c. 265, § 2, and G. L. c. 127, § 133A, to
incorporate into the statutes parole eligibility for juvenile
offenders convicted of first-degree murder. See G. L. c. 265,
§ 2, as amended through St. 2014, c. 189, § 5; G. L. c. 127,
§ 133A, as amended through St. 2014, c. 189, § 3.
6
consistent with the court's opinion in the case and to "take
such further action as is necessary and appropriate." On
February 27, 2014, Diatchenko filed a motion for entry of a
judgment that would include a number of orders of specific
relief, and also filed a motion for funds to retain an expert in
connection with his hearing before the board. The district
attorney for the Suffolk District (district attorney), the chair
of the board, and the Commissioner of Correction (commissioner)
filed oppositions. After a hearing, the single justice reserved
and reported Diatchenko's case as well as Roberio's case, next
discussed, to the full court.
In connection with the Diatchenko case, the single justice
reported the following questions:
"1. Whether, in order to ensure that the petitioner and
other similarly situated juvenile homicide offenders
receive the 'meaningful opportunity to obtain release' that
is required by the court's opinion [in Diatchenko I], they
must be afforded:
"a. the right to assistance of counsel at their parole
hearings, including the right to have counsel appointed if
they are indigent; and
"b. the right to public funds, if they are indigent, in
order to secure reasonably necessary expert assistance at
the hearings.
"2. Whether, in order to ensure that the petitioner and
other similarly situated juvenile homicide offenders
receive the 'meaningful opportunity to obtain release' that
is required by the court's opinion, there must be an
opportunity for the petitioner or a similarly situated
individual who is denied parole to obtain judicial review
7
of the parole board's decision, and if so, what form the
judicial review will take."
b. Roberio. Following the Supreme Court's decision in
Miller, in June, 2013, Roberio sought relief from his mandatory
sentence of life without parole by moving in the Superior Court
for resentencing under Mass. R. Crim. P. 30, as appearing in 435
Mass. 1501 (2001). He also filed a motion for funds pursuant to
rule 30 (c) (5) to pay an expert neuropsychologist for
assistance in connection with his motion for resentencing. The
motion for funds was allowed, but Roberio's motion for
resentencing was stayed pending the release of our decision in
Diatchenko I, at which point he was resentenced to life with
parole eligibility after fifteen years in prison. Because
Roberio had been in prison for more than fifteen years, he was
immediately eligible for parole.
On February 27, 2014, Roberio filed another motion for
funds pursuant to rule 30 (c) (5) to retain the services of a
second neuropsychologist because the previous neuropsychologist
had died; Roberio sought to retain the expert in order to
continue to seek to have his sentence reduced to a term of years
or, alternatively, to assist him in connection with seeking
parole. A second Superior Court judge allowed the motion after
hearing, but stayed the order to permit the Commonwealth to seek
relief from the single justice. On March 10, 2014, the
8
Commonwealth filed a petition for relief under G. L. c. 211,
§ 3, challenging the orders allowing Roberio's requests for
funds to retain the experts. As indicated, on May 23, 2014, the
single justice reserved and reported the Roberio case to the
full court for decision, to be paired with the Diatchenko case.
In September, 2014, Roberio filed a motion to intervene in the
Diatchenko case. The single justice allowed the motion.
2. Suggestion of mootness. "Litigation ordinarily is
considered moot when the party claiming to be aggrieved ceases
to have a personal stake in its outcome." Acting Supt. of
Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000),
quoting Attorney Gen. v. Commissioner of Ins., 403 Mass. 370,
380 (1988). The chair of the board, the commissioner, and the
district attorney suggest that the case is moot with respect to
Diatchenko because on October 31, 2014, the board approved his
application for parole, and therefore, they contend, Diatchenko
no longer has a personal stake in the resolution of the present
case. See Massachusetts Parole Board, No. W38579, at 1 (Oct.
31, 2014). However, Diatchenko has not yet been released on
parole; rather, the board required that Diatchenko first spend
twelve months in a lower security prison before he may be
released, so that he may "transition gradually to the
community." Id. at 7. Since Diatchenko has not yet been
released, he continues to have a personal stake in the outcome
9
of the case, and therefore his petition is not moot. Moreover,
Roberio has been permitted to intervene in the Diatchenko case,
and he has not yet had a parole hearing. Even if the case were
moot as to Diatchenko, therefore, it is not moot with respect to
Roberio. We proceed to consider the reported questions and
related claims raised on their merits.
3. Discussion. a. Right to assistance of counsel. The
first reported question asks whether a juvenile homicide
offender must be afforded the assistance of counsel in
connection with his or her initial parole hearing.9 It is
important to view the question in context. The court's
conclusion in Diatchenko I, that juvenile homicide offenders
could not permissibly be subjected to life in prison without any
opportunity for parole, flowed from the "fundamental '"precept
of justice that punishment for crime should be graduated and
proportioned" to both the offender and the offense,'" a central
tenet of the Eighth Amendment and of art. 26. Diatchenko I, 466
Mass. at 669, quoting Miller, 132 S. Ct. at 2463. Drawing from
the United States Supreme Court's recent decisions that focused
on the requirement of proportional sentencing of youth, and in
9
The reported questions do not specify the initial parole
hearing, but we understand that to be the intended focus, and
consider it as such. We therefore do not consider here whether
the procedural rights that we discuss in this opinion only apply
with respect to a juvenile homicide offender's initial parole
hearing.
10
particular the decisions in Miller and Graham,10 Diatchenko I
observed that "children are constitutionally different from
adults for purposes of sentencing" and that the "distinctive
attributes of juvenile offenders" render suspect the traditional
justifications for imposing sentences of life without parole on
these individuals. Diatchenko I, supra at 670-671, quoting
Miller, supra at 2465. Therefore, in Diatchenko I, we held that
Diatchenko and all juvenile homicide offenders serving mandatory
life sentences deserve at least a "meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation," and that accordingly, at the appropriate time,
they must be considered for parole suitability. Diatchenko I,
supra at 671, 674, quoting Graham, 560 U.S. at 75. In other
words, the conclusion we reached was that parole eligibility is
an essential component of a constitutional sentence under art.
26 for a juvenile homicide offender subject to mandatory life in
prison.11
10
In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), as
noted previously, the United States Supreme Court held that the
Eighth Amendment to the United States Constitution prohibits
mandatory sentences of life without parole for those who were
under the age of eighteen at the time they committed murder; in
Graham v. Florida, 560 U.S. 48, 75 (2010), the Court held that
those who committed a nonhomicide offense before the age of
eighteen can never receive such sentences.
11
Justice Spina's dissent argues that because Miller refers
specifically to the requirement of proportionality in
11
In general, there is no constitutionally protected liberty
interest in a grant of parole. See Greenholtz v. Inmates of the
Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979); Quegan
v. Massachusetts Parole Bd., 423 Mass. 834, 836 (1996); Greenman
v. Massachusetts Parole Bd., 405 Mass. 384, 388 n.3 (1989).
However, the Supreme Court has acknowledged that in some cases,
a liberty interest in parole requiring at least some minimal due
process rights may derive from language in a State's parole
statute that creates a "protectible expectation of parole." See
Greenholtz, supra at 11-12 (statutory language and structure of
Nebraska parole statute created expectancy of release
constituting liberty interest entitled to protection of due
process clause). See also Board of Pardons v. Allen, 482 U.S.
369, 371-372, 381 (1987).
Here, G. L. c. 127, § 130, does not create an expectation
of release through parole, as Justice Spina's dissent points
out. See post at . Rather, what is at issue is art. 26's
"sentencing," unless a parole hearing is viewed as part of the
sentencing process, there can be no constitutional basis for the
procedural protections in parole hearings that the petitioners
seek. See post at . However, in concluding that all
juvenile homicide offenders must have access to a "meaningful
opportunity to obtain release," Diatchenko I identified under
art. 26 a substantive requirement concerning the nature of the
sentences that juvenile homicide offenders must receive. See
Diatchenko I, 466 Mass. at 671, 674, quoting Graham, 560 U.S. at
75. This requirement goes beyond the procedural issue that
Miller identified under the Eighth Amendment.
12
requirement that a juvenile homicide offender serving a
mandatory life sentence be provided a meaningful opportunity to
obtain release, so that his or her sentence is not effectively
one of straight life in prison -- an outcome that art. 26
prohibits. In this context, where the meaningful opportunity
for release through parole is necessary in order to conform the
juvenile homicide offender's mandatory life sentence to the
requirements of art. 26, the parole process takes on a
constitutional dimension that does not exist for other offenders
whose sentences include parole eligibility.12
Thus, for example, in the case of an adult defendant
convicted of armed robbery and sentenced to a term of not less
than sixteen nor more than twenty years in prison, the defendant
12
The fact that the opportunity for release through parole
is essential in order to guarantee the constitutionality of a
juvenile homicide offender's mandatory sentence of life in
prison does not "transform[] the conduct of the parole hearing
into part of the sentencing process" in this context, as Justice
Spina's dissent suggests. See post at . Rather, for a
juvenile homicide offender -- as for virtually any offender
except an adult convicted of murder in the first degree -- the
offender's sentence is fixed at the time of sentencing, and the
opportunity to seek parole is merely a component of the sentence
that the offender receives from a judge. See Commonwealth v.
Cole, 468 Mass. 294, 298-299, 302 (2014). See also G. L.
c. 279, § 24. Our decision today does not undermine this
relationship between sentencing and parole, but rather explores
further the purpose that parole eligibility serves in the
context of a juvenile homicide offender’s mandatory life
sentence, and the additional protections that juvenile homicide
offenders require in order to ensure that that purpose is fully
achieved.
13
would be eligible for parole in sixteen years,13 but if the
defendant were denied a meaningful opportunity for release on
parole, this would not render the sentence cruel or unusual and
therefore unconstitutional under art. 26. This is so because a
State has no obligation to provide a parole system, see
Greenholtz, 442 U.S. at 7-8, and if the defendant were to serve
his or her entire sentence of twenty years with no opportunity
at all for release on parole, that would have been a permissible
sentence for the judge to have imposed at the outset. The same
is not true for juvenile homicide offenders; under G. L. c. 265,
§ 2, they must be sentenced to life in prison, but art. 26 does
not allow either the Legislature or a judge to sentence such an
offender to life in prison without the possibility of parole.14
13
See G. L. c. 127, § 133; G. L. c. 279, § 24.
14
Justice Spina's dissent emphasizes, post at , that our
decisions in Diatchenko I, Brown, Commonwealth v. Ray, 467 Mass.
115 (2014), and Commonwealth v. Keo, 467 Mass. 25 (2014), each
applied the mandatory life sentence as specified in G. L.
c. 265, § 2, for murder in the first degree to juvenile homicide
offenders, albeit with the added instruction that these
offenders must be eligible for parole in accordance with the
parole statute. See Ray, supra at 140; Keo, supra at 46-47.
See also Diatchenko I, supra at 674 ("At the appropriate time,
it is the purview of the . . . board to evaluate the
circumstances surrounding the commission of the crime, including
the age of the offender, together with all relevant information
pertaining to the offender's character and actions during the
intervening years since conviction. By this process, a juvenile
homicide offender will be afforded a meaningful opportunity to
be considered for parole suitability"). From this, the dissent
concludes that these decisions stand for the propositions that
14
We turn, then, to the question of what is procedurally
required in order to protect a juvenile homicide offender's
expectation of "a meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation." Graham, 560 U.S.
at 75.15 "The extent of procedural due process which must be
the existing parole procedures already afford a meaningful
opportunity for release and that juvenile homicide offenders are
"entitled only to the same parole hearing process as other
inmates." See post at . The dissent then contends that
today's decision improperly changes course and affords something
more. See post at . We disagree that we have changed
course. The cited decisions focused explicitly on the
substantive punishment that the defendants in those cases must
receive; in none of them did the court address any issue
regarding the nature of the parole process for juvenile homicide
offenders. See Diatchenko I, supra at 674 n.18 ("The heart of
this case is the constitutional validity of Diatchenko's
sentence for murder in the first degree"). Moreover, as
discussed infra, nothing in this opinion suggests that the
procedures described in G. L. c. 127, § 133A, no longer apply to
juvenile homicide offenders. Rather, today's decision
identifies additional procedural protections that must be
afforded to these offenders within the context of the existing
parole process, and an opportunity for a limited review of the
board's decision.
Similarly, today's decision in no way conflicts with the
Supreme Court's holdings in Miller and Graham. Each of those
cases addressed a specific context in which the Eighth Amendment
prohibits the imposition of a sentence of life without parole on
a juvenile offender. See Miller, 132 S. Ct. at 2471; Graham,
560 U.S. at 75. Parole was not the subject of Miller and
Graham; life without parole was. Those cases leave open the
question of how to ensure that Miller's and Graham's requirement
of a "meaningful opportunity to obtain release" for certain
juvenile offenders is to be realized. See Miller, supra at
2469; Graham, supra at 75.
15
We emphasize that the offender does not have a
protectable expectation that he or she necessarily will be
15
afforded in any situation varies with the nature of the private
and governmental interests at stake . . . , but basic to due
process is the right to be heard 'at a meaningful time and in a
meaningful manner.'" Department of Pub. Welfare v. J.K.B., 379
Mass. 1, 3-4 (1979) (J.K.B.), quoting Armstrong v. Manzo, 380
U.S. 545, 552 (1965). This court has concluded, for example,
that an "indigent parent facing the possible loss of a child
cannot be said to have a meaningful right to be heard in a
contested proceeding without the assistance of counsel."
J.K.B., supra at 4. See Adoption of Meaghan, 461 Mass. 1006,
1007-1008 (2012) (where child's guardians filed petition for
adoption that, if granted, would terminate parental rights, both
nonconsenting indigent father and consenting child entitled to
appointed counsel to provide meaningful opportunity to be
heard). See also Guardianship of V.V., 470 Mass. 590, 592-593
(2015). For reasons we discuss next, the court's reasons for
deeming appointment of counsel necessary in this context are
instructive here: "[t]he petition may well involve complex
questions of fact and law, and require the marshalling and
rebutting of sophisticated expert testimony"; and "[p]rovision
released at a particular time, or even at all. See Diatchenko
I, 466 Mass. at 674. As discussed infra, the determination of
whether a juvenile homicide offender merits parole requires
consideration of many factors, which may or may not indicate
that release is appropriate for any particular individual.
16
of appointed counsel not only safeguards the rights of the
parents, but it assists the court in reaching its decision with
the 'utmost care' and 'an extra measure of evidentiary
protection,' required by law." J.K.B., supra, quoting Custody
of a Minor (No. 1), 377 Mass. 876, 877, 884 (1979).
By statute, the board is required to determine an
individual's suitability for parole based on whether there is,
in the opinion of the board, a "reasonable probability that, if
[a] prisoner is released with appropriate conditions and
community supervision, the prisoner will live and remain at
liberty without violating the law and that release is not
incompatible with the welfare of society." G. L. c. 127, § 130.
The decision is a discretionary one for the board "with which,
if otherwise constitutionally exercised, the judiciary may not
interfere."16 See Commonwealth v. Cole, 468 Mass. 294, 302
(2014). In rendering a parole decision, the board is entitled
to obtain significant amounts of information, including the
following: recommendations from parole staff; the inmate's
prior criminal record; reports concerning the nature and
circumstances of the offense, such as police reports, grand jury
16
We return to this point infra. Nothing in this opinion
is intended to suggest that a judge or a court has the authority
to decide whether a particular juvenile homicide offender is
entitled to release on parole; judicial review is limited to the
question whether the board has "constitutionally exercised" its
discretion. Cole, 468 Mass. at 302.
17
minutes, and trial transcripts; victim statements; information
about the inmate's physical, medical, mental, and psychiatric
status; disciplinary reports; classification reports; work
evaluations; and records of educational achievements. See 120
Code Mass Regs. § 300.05 (1997). See also G. L. c. 127, § 135.
The Department of Correction (department) maintains much of this
information in a so-called "six-part folder" for the individual
inmate that dates back to when the inmate was first detained in
a Massachusetts correctional institution. See 103 Code Mass.
Regs. §§ 155.07, 155.08 (2004). However, an inmate's access to
certain evaluative information contained in this folder as well
as other types of information available to the board may be
restricted. See 103 Code Mass. Regs. §§ 155.10, 157.08 (2005);
120 Code Mass. Regs. §§ 301.04, 500.06 (2001).
The full board conducts initial parole hearings for
individuals serving life sentences. 120 Code Mass. Regs.
§ 301.06(1) (2001). Notice of the hearing is provided to
government officials, including the Attorney General, the office
of the district attorney in whose district the inmate's sentence
was imposed, the chief of police of the municipality where the
crime was committed, and the Executive Office of Public Safety,
as well as to the victim or the victim's immediate family
members. See G. L. c. 127, § 133A; 120 Code Mass. Regs.
§ 301.06(3) (2001). During the parole hearing, the inmate or
18
his or her representative has an opportunity to make an opening
statement, and then the inmate responds to questions from the
board. 120 Code Mass. Regs. § 301.06(4) (2001). The board also
may pose questions to any individual who appears in support of
the inmate. Id. After the inmate has completed his or her
presentation, the victim or victim's family has an opportunity
to speak, as do public officials, and the board is tasked with
eliciting "available evidence and testimony unfavorable to the
inmate upon any relevant subject." Id. The board may permit
the inmate to make a closing statement and may allow parties to
submit memoranda or other documentation after the hearing. 120
Code Mass. Regs. §§ 301.06(4), (5) (2001). The board permits
attorneys to represent inmates serving life sentences at their
parole hearings, although currently there is no provision for
providing counsel to those who are indigent.17 120 Code Mass.
Regs. § 300.08 (1997).
The question the board must answer for each inmate seeking
parole, namely, whether he or she is likely to reoffend,
requires the board to weigh multiple factors and consider a wide
17
The board and the commissioner recognize in their brief
that "certain benefits flow from access to counsel and experts,"
and therefore have taken no position on the first two questions
reported by the single justice in the Diatchenko case. The
district attorney for the Suffolk District, however, argues that
Diatchenko and Roberio are not entitled to counsel, funds to
retain counsel, or funds to retain experts.
19
variety of evidence. In the case of a juvenile homicide
offender -- at least at the initial parole hearing -- the task
is probably far more complex than in the case of an adult
offender because of "the unique characteristics" of juvenile
offenders. Diatchenko I, 466 Mass. at 674. See Miller, 132 S.
Ct. at 2464. A potentially massive amount of information bears
on these issues, including legal, medical, disciplinary,
educational, and work-related evidence. In addition, although a
parole hearing is unlike a traditional trial in that it does not
involve direct and cross-examination of witnesses by attorneys,
because the inmate's parole application may well be opposed by
both the victim's family and public officials, it would be
difficult to characterize this as an uncontested proceeding.
Thus, like a proceeding to terminate parental rights, a
parole hearing for a juvenile homicide offender serving a
mandatory life sentence involves complex and multifaceted issues
that require the potential marshalling, presentation, and
rebuttal of information derived from many sources. See J.K.B.,
379 Mass. at 4. An unrepresented, indigent juvenile homicide
offender will likely lack the skills and resources to gather,
analyze, and present this evidence adequately.18 Furthermore,
18
A juvenile homicide offender -- who will have spent his
or her entire adult life and presumably some of his or her
teenage years in prison -- also will likely need to overcome a
20
although parole hearings are not contested in the strictest
sense, the juvenile homicide offender seeking parole is likely
to be required to overcome arguments by both victims' family
members and government officials opposed to the offender's
release; the former of these parties may present as particularly
sympathetic, while the latter will likely have greater advocacy
skills than the offender seeking parole.19
In sum, given the challenges involved for a juvenile
homicide offender serving a mandatory life sentence to advocate
effectively for parole release on his or her own, and in light
of the fact that the offender's opportunity for release is
critical to the constitutionality of the sentence, we conclude
host of personal challenges in order to be able to present a
persuasive case for parole on his or her own. The challenges
could include a lack of formal education, as well as undeveloped
critical thinking and organizational skills; a history of
trauma, drug use, or mental illness; a limited ability to access
his or her own psychiatric or other record information regarding
the impact or context of this history; and balancing the need to
take responsibility and express remorse for the crime, while at
the same time pointing out all the factors that may have made
him or her, as a juvenile, less morally culpable. See Russell,
Review for Release: Juvenile Offenders, State Parole Practices,
and the Eighth Amendment, 89 Ind. L.J. 373, 419-421 (2014). An
especially significant challenge is likely to be the juvenile
offender's isolation from the outside community, making it
difficult to present a solid release plan. See id. at 421.
19
Additionally, as noted in the context of parental rights
termination cases, the availability of counsel in a case may
help to clarify for the decision maker some of the more
complicated issues involved. See Department of Pub. Welfare v.
J.K.B., 379 Mass. 1, 4 (1979).
21
that this opportunity is not likely to be "meaningful" as
required by art. 26 without access to counsel.
Turning to the question of appointment of counsel for
indigent juvenile homicide offenders like Diatchenko and
Roberio, G. L. c. 211D, § 5, authorizes the Committee for Public
Counsel Services (committee) to maintain a system for
appointment of counsel at any stage of a criminal or noncriminal
proceeding in which "the laws of the commonwealth or the rules
of the supreme judicial court require that a person in such
proceeding be represented by counsel . . . provided . . . that
such person is unable to obtain counsel by reason of his
indigency." In light of our conclusion here that a juvenile
homicide offender serving a mandatory life sentence must have
access to counsel in connection with an initial application for
parole, § 5D offers legislative authorization and an appropriate
mechanism, through the work of the committee, for the
appointment of counsel for indigent juvenile homicide
offenders.20
20
We acknowledge that Quegan v. Massachusetts Parole Bd.,
423 Mass. 834 (1996), appears to contradict this conclusion.
See id. at 840 ("[The Committee for Public Counsel Services
(CPCS)] has no right, however, to represent an indigent prisoner
before the parole board unless there is a criminal proceeding
pending in which CPCS represents the prisoner and representation
of the prisoner-defendant before the parole board is appropriate
in order to protect the defendant's interests in the pending
criminal matter"). However, Quegan was decided in the context
22
b. Access to funds for expert witnesses. The second
reported question concerns access to expert witnesses.21
Diatchenko and Roberio contend that, like access to counsel, it
is necessary, in order to secure a meaningful opportunity for
release, to have access to the assistance of expert witnesses.
Specifically, they argue that, as juvenile offenders convicted
of murder, they need experts to be able to explain and offer
opinions on issues concerning the relationship between
neurobiological immaturity and culpability in general as well as
factors relating to each of their individual and family
circumstances that may help both to explain past conduct and
assess future risk of reoffending. As this court acknowledged
in Diatchenko I, scientific research on adolescent brain
development has revealed "myriad significant ways that this
development impacts a juvenile's personality and behavior," some
of which suggest decreased moral culpability for certain
of a prisoner seeking parole who had no constitutionally
protected interest that entitled him to any due process
protections. See id. at 836, 839. Here, we have concluded that
a juvenile homicide offender is entitled to representation by
counsel in connection with the initial parole hearing. Legal
representation of an indigent juvenile homicide offender is thus
required by law. See id. at 839. In addition, the court in
Quegan was interpreting a section of G. L. c. 211D that has
since been repealed by the Legislature. See id.; G. L. c. 211D,
§ 14, repealed by St. 2011, c. 68, § 117.
21
The second reported question, in substance, raises many
if not all of the issues of concern to the Commonwealth in its
G. L. c. 211, § 3, petition in the Roberio case.
23
juvenile homicide offenders or indicate a greater potential for
them to mature to a point where they no longer engage in the
behaviors that led to their crimes. See Diatchenko I, 466 Mass.
at 669-670.22 While the assistance of a psychologist or other
expert witness may not be necessary for every juvenile homicide
offender serving a life sentence who seeks parole, in some cases
such assistance may be crucial to the juvenile's ability to
obtain a meaningful chance of release.23
22
See also Miller, 132 S. Ct. at 2464-2465 (research on
adolescents showing "transient rashness, proclivity for risk,
and inability to assess consequences . . . both lessened a
child's 'moral culpability' and enhanced the prospect that, as
the years go by and neurological development occurs, his
'deficiencies will be reformed'" [citation omitted]); Graham,
560 U.S. at 68 ("[D]evelopments in psychology and brain science
continue to show fundamental differences between juvenile and
adult minds. For example, parts of the brain involved in
behavior control continue to mature through late adolescence").
23
Roberio's case offers a good example of how a juvenile
homicide offender's mental health and cognitive development
history could become a central issue in a parole hearing. At
Roberio's second murder trial, he presented a defense that, at
the time of his crime, he lacked the substantial capacity to
conform his conduct to the requirements of the law due to an
attention deficit hyperactivity disorder, an oppositional
defiant disorder, and a learning disability, all of which were
exacerbated by alcohol use. See Commonwealth v. Roberio, 440
Mass. 245, 247 (2003). A psychological reevaluation of Roberio
in 2013, when he was forty-four years old, suggested to the
neuropsychologist performing the evaluation that many of the
neurological and behavioral challenges Roberio experienced in
his teenage years had resolved. In these circumstances, it may
be essential that Roberio be in a position to present the board
with an expert opinion explaining the path of his apparent
growth in cognitive and emotional maturity and its relationship
to the question of whether he would be likely to reoffend if
24
Neither G. L. c. 211D, § 5, nor any other statute expressly
authorizes the expenditure of funds for expert witnesses to
assist such a juvenile in the context of a parole hearing.
Roberio argues that the allowance of the fee request is
authorized under Mass. R. Crim. P. 30 (c) (5), which in relevant
part provides: "The court, after notice to the Commonwealth and
an opportunity to be heard, may also exercise discretion to
allow the defendant costs associated with the preparation and
presentation of a motion under this rule." However, we agree
with the Commonwealth that in its current form, rule 30 (c) (5)
does not authorize the allowance of funds to a defendant to
retain an expert witness in connection with a parole hearing,
because a parole hearing is not a "motion under this rule [i.e.,
rule 30]."24
It is also the case that G. L. c. 261, §§ 27A–27G, the
statutory provisions generally authorizing the payment of public
funds to cover costs and fees of indigent litigants, apply most
directly to costs and fees relating to court proceedings, not
proceedings before administrative or executive agencies like the
released on parole. As previously indicated, the board
acknowledges that the availability of expert witnesses may be
beneficial in the parole hearing context.
24
The motions specifically described in Mass. R. Crim. P.
30, as appearing in 435 Mass. 1501 (2001), are a motion under
rule 30 (a) for immediate release or to correct sentence and a
motion for a new trial under rule 30 (b).
25
board. See, e.g., Doe, Sex Offender Registry Bd. No. 89230 v.
Sex Offender Registry Bd., 452 Mass. 764, 778-780 (2008). In
addition, this court has held that G. L. c. 261, § 27C (4),
provides "extra fees and costs," including funds for expert
witnesses,25 only in the context of a "prosecution, defense or
appeal." See, e.g., Commonwealth v. Davis, 410 Mass. 680, 684
(1991). See also Commonwealth v. Arriaga, 438 Mass. 556, 569
(2003). However, these cases have generally addressed the
availability of costs for indigent defendants pursuing
nonconstitutionally mandated procedures.26 Moreover, even where
a defendant's right to a particular postconviction procedure is
not constitutionally guaranteed, as is the case, for example,
with motions for a new trial, this court has still required that
indigent defendants nevertheless have meaningful access to
whatever postconviction proceedings the State makes available.
See Commonwealth v. Conceicao, 388 Mass. 255, 261-262 (1983).27
25
General Laws c. 267, § 27A, defines "extra fees and
costs" as including fees for expert assistance.
26
See Commonwealth v. Davis, 410 Mass. 680, 684 & n.7
(1991) (posttrial motion at issue was not "constitutionally
mandated," and therefore indigent defendant had "no
constitutional right to State funding to support investigations
in anticipation of such a motion").
27
Justice Spina's dissent notes that the result in
Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983), was that
counsel was not guaranteed for every defendant seeking to file a
motion for a new trial, but that provision of counsel to
26
See also Reporter's Notes to Rule 30 (c) (5), Mass. Rules of
Court, Rules of Criminal Procedure, at 223 (Thomson Reuters
2014) (discussing 2001 amendments to rule 30 allowing judges
discretion to authorize costs for indigent defendants pursuing
postconviction procedures).
Because the postconviction proceeding at issue here, a
parole hearing for a juvenile homicide offender, is required in
order to ensure that an offender's life sentence conforms to the
proportionality requirements of art. 26, the proceeding is not
available solely at the discretion of the State. Rather, it is
constitutionally mandated, and as such, it requires certain
protections not guaranteed in all postconviction procedures. It
is appropriate, therefore, to construe G. L. c. 261, §§ 27A–27G,
to authorize a Superior Court judge, upon motion of a parole-
eligible, indigent juvenile homicide offender, to allow for the
indigent defendants was within the discretion of the motion
judge. See post at . While that is true, Conceicao
emphasized that because "a State has no obligation to provide a
procedure enabling defendants to make motions for a new trial,
it need not place poor and wealthy defendants on an absolutely
equal level in terms of the services available to them in
pursuing a motion for a new trial." Conceicao, supra. Since
art. 26 requires that juvenile homicide offenders have a
meaningful opportunity for release through parole, that
reasoning does not apply here. Rather, we cite Conceicao and
Reporter's Notes to Rule 30 (c) (5), Mass. Rules of Court, Rules
of Criminal Procedure, at 223 (Thomson Reuters 2014), for the
premise that judges have discretion to authorize costs to
defendants when necessary to guarantee meaningful access to
postconviction procedures.
27
payment of fees to an expert witness to assist the offender in
connection with his or her initial parole proceeding in certain
limited contexts -- specifically, where it is shown that the
juvenile offender requires an expert's assistance in order
effectively to explain the effects of the individual's
neurobiological immaturity and other personal circumstances at
the time of the crime, and how this information relates to the
individual's present capacity and future risk of reoffending.
The judge may exercise discretion to do so when the judge
concludes that the assistance of the expert is reasonably
necessary to protect the juvenile homicide offender's meaningful
opportunity for release.28
c. Availability of judicial review. The third reported
question asks whether there must be an opportunity for judicial
review of a decision denying parole to a juvenile homicide
offender and, if so, what form judicial review will take. The
board, the commissioner, and the district attorney argue that
art. 30 of the Massachusetts Declaration of Rights prohibits
judicial review in this context. Article 30 requires strict
separation of judicial and executive powers, and the power to
28
We request this court's standing advisory committee on
the rules of criminal procedure to propose a procedure that will
permit an indigent juvenile homicide offender to seek funds for
an expert witness or witnesses to support the offender's
requests for parole, consistent with this opinion.
28
grant parole, being fundamentally related to the execution of a
prisoner's sentence, lies exclusively within the province of the
executive branch. See Cole, 468 Mass. at 302-303; Commonwealth
v. Amirault, 415 Mass. 112, 116-117 (1993). However, as we have
noted, the right of the executive branch to exercise this power
without intervention from the judiciary is subject to the
provision that the power must be "constitutionally exercised."
See Cole, supra at 302. This is not to suggest that the board
is unconstitutionally exercising this power currently,29 or is
likely to do so in the future, but only that this court retains
the responsibility with respect to parole hearings to ensure
that any constitutional requirements are met. Thus, this court
has never held that art. 30 precludes any type of judicial
review of parole board decisions. In fact, Massachusetts courts
have engaged in limited review of parole proceedings,
consistently if not frequently. See, e.g., Quegan, 423 Mass. at
835 (prisoner sought declaration that board may not consider
refusal to admit guilt in parole determination); Greenman, 405
Mass. at 386 (prisoner challenged basis of parole denial as
beyond board's statutory authority); Blake v. Massachusetts
Parole Bd., 369 Mass. 701, 702 (1976) (prisoner sought
29
We agree with Justice Cordy's dissent that there is no
"hint" in this record that the board is exercising its authority
in an unconstitutional manner. See post at .
29
declaration of right to appear personally before board in order
to argue for early parole eligibility); Doucette v.
Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 532 (2014)
(prisoner pursued civil rights claim alleging violation of due
process in parole revocation proceeding as well as certiorari
action challenging merits of board's decision to revoke
parole).30,31
As previously stated, the parole hearing acquires a
constitutional dimension for a juvenile homicide offender
because the availability of a meaningful opportunity for release
on parole is what makes the juvenile's mandatory life sentence
constitutionally proportionate. In this particular context,
judicial review of a parole decision is available solely to
30
It bears noting that courts frequently rule on certiorari
petitions by prisoners claiming that the Department of
Correction (department) has violated their constitutional
rights. See, e.g., Ciampi v. Commissioner of Correction, 452
Mass. 162, 163 (2008); Puleio v. Commissioner of Correction, 52
Mass. App. Ct. 302, 305-306 (2001); Drayton v. Commissioner of
Correction, 52 Mass. App. Ct. 135, 135-137 (2001). The board is
located within the department (although not subject to its
jurisdiction). See G. L. c. 27, § 4. Given this, it is
difficult to accept the proposition that actions of the
department are subject to judicial review to assure compliance
with the Federal and State Constitutions, but that art. 30
prohibits any form of judicial review of decisions of the board.
31
The chair of the board and the commissioner point out
that a judge may not "revise or revoke sentences when the parole
board does not act in accordance with a judge's expectations."
See Commonwealth v. Amirault, 415 Mass. 112, 116 (1993). We
agree, and we do not suggest anything to the contrary in this
case.
30
ensure that the board exercises its discretionary authority to
make a parole decision for a juvenile homicide offender in a
constitutional manner, meaning that the art. 26 right of a
juvenile homicide offender to a constitutionally proportionate
sentence is not violated.32
That being said, the art. 26 right of a juvenile homicide
offender in relation to parole is limited. To repeat: it is
not a guarantee of eventual release, but an entitlement to a
meaningful opportunity for such release based on demonstrated
maturity and rehabilitation. See Diatchenko I, 466 Mass. at
674. That entitlement arises directly from the recognition that
32
In light of Diatchenko I, the board has adopted
guidelines for parole determinations for juvenile homicide
offenders serving life sentences, and these guidelines take into
account the unique characteristics of youth. See Massachusetts
Parole Board, Guidelines for Life Sentence Decisions (updated
Mar. 3, 2014), available at http://www.mass.gov/eopss/agencies/
parole-board/guidelines-for-life-sentence-decisions.html
[http://perma.cc/K33Z-YSEA]. The board is to be commended for
doing so, but its adoption of guidelines does not preclude or
render unnecessary the need for judicial review. The guidelines
are not binding and are subject to change. More importantly,
the board is not in a position to make a determination that the
art. 26 right of a juvenile homicide offender to a proportionate
sentence has been protected.
Nor does the existence of appeal procedures before the
board adequately protect this right. The board's regulations
permit inmates denied parole to request an appeal before the
same hearing panel that rendered the initial denial, or to
request reconsideration by a staff member of the board. See 120
Code Mass. Regs. §§ 100.00, 304.1 (2001). Neither of these
processes provides the same opportunity for review by a neutral
decision maker that judicial review affords.
31
children are constitutionally different from adults, with
"diminished culpability and greater prospects for reform,"
Miller, 132 S. Ct. at 2464, based on their "distinctive
attributes" of youth. See Diatchenko I, supra at 660, 671.
These include children's "lack of maturity and an underdeveloped
sense of responsibility, leading to recklessness, impulsivity,
and heedless risk-taking"; vulnerability "to negative influences
and outside pressures, including from their family and peers;
. . . limited contro[l] over their own environment[;] . . .
[lack of] the ability to extricate themselves from horrific,
crime-producing settings"; and unique capacity to change as they
grow older (citations and quotations omitted). Id. at 660.
Absent consideration of these attributes, a juvenile homicide
offender may not be permitted a real chance to demonstrate
maturity and rehabilitation. See id. at 675 (Lenk, J.,
concurring), citing Miller, 132 S. Ct. at 2468. The purpose of
judicial review here is not to substitute a judge's or an
appellate court's opinion for the board's judgment on whether a
particular juvenile homicide offender merits parole, because
this would usurp impermissibly the role of the board. Rather,
judicial review is limited to the question whether the board has
carried out its responsibility to take into account the
attributes or factors just described in making its decision.
32
With this in mind, we consider the form of judicial review
of a board decision denying initial parole to a juvenile
homicide offender. Diatchenko and Roberio suggest that judicial
review in this context should be in the nature of certiorari, as
described in G. L. c. 249, § 4, rather than through an action
for declaratory relief under G. L. c. 231A. We agree that
certiorari is appropriate here, although we do not agree with
their view of the scope or standard of that review.
"[A] complaint for declaratory relief is an appropriate way
of testing the validity of regulations or the propriety of
practices involving violations of rights, which are consistent
and repeated in nature. . . . It is not, however, an
appropriate remedy where the validity of an adjudication . . .
in an individual case is being challenged. There relief in the
nature of certiorari is to be sought." (Citation omitted.)
Averett v. Commissioner of Correction, 25 Mass. App. Ct. 280,
287 (1988), S.C., Averett, petitioner, 404 Mass. 28 (1989). See
Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 135-
136 (2013). As discussed, the type of limited judicial review
contemplated would focus on the parole determinations relating
to a particular juvenile homicide offender. It thus falls into
the category of cases appropriate for certiorari review.
The standard of review to be applied is a separate
question, because the "standard of review for an action in the
33
nature of certiorari depends on 'the nature of the action sought
to be reviewed.'" Rivas v. Chelsea Hous. Auth., 464 Mass. 329,
334 (2013), quoting Black Rose, Inc. v. Boston, 433 Mass. 501,
503 (2001). See G. L. c. 249, § 4. Because the decision
whether to grant parole to a particular juvenile homicide
offender is a discretionary determination by the board, see
Cole, 468 Mass. at 302; G. L. c. 127, § 130, an abuse of
discretion standard is appropriate. See Forsyth Sch. for Dental
Hygienists v. Board of Registration in Dentistry, 404 Mass. 211,
217 (1989) (review of discretionary administration or decision
in certiorari action limited to whether act or decision was
"arbitrary and capricious"); Doucette, 86 Mass. App. Ct. at 541.
See generally L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). The question for the reviewing judge will be whether
the board abused its discretion in the manner in which it
considered and dealt with "the distinctive attributes of youth
[that] diminish the penological justifications for imposing the
harshest sentences on juvenile offenders," as they relate to the
particular circumstances of the juvenile homicide offender
seeking parole. Miller, 132 S. Ct. at 2465. Accord Diatchenko
I, 466 Mass. at 671. In this context, a denial of a parole
application by the board will constitute an abuse of discretion
only if the board essentially failed to take these factors into
account, or did so in a cursory way. A judge may not reverse a
34
decision by the board denying a juvenile homicide offender
parole and require that parole be granted. Rather, if the judge
concludes that the board's consideration of the juvenile
offender's status as a juvenile and the distinctive attributes
of his or her youth did constitute an abuse of discretion -- was
arbitrary and capricious -- a remand to the board for rehearing
would be appropriate.33
It remains for us to address Diatchenko's argument that
juvenile homicide offenders seeking review of a parole denial
should be able to bring an action for certiorari to a single
justice of this court as a matter of course. Although this
court and the Superior Court have concurrent jurisdiction to
entertain actions in the nature of certiorari under G. L.
c. 249, § 4, as with most original actions for certiorari, these
actions are most appropriately brought in the Superior Court.
Finally, we summarize the scope of our opinion in this
case, and clarify what the opinion does not say. First, we
33
Justice Spina, in his dissent, expresses concern that
without the affirmative power to grant parole after a denial by
the board, this limited form of judicial review has the
potential to result in an endless cycle of board hearings and
actions for certiorari, until the board ultimately grants
parole. See post at . This outcome is unlikely. Given the
limited scope of judicial review in this context, and the
deference that must be afforded to the board, we think decisions
to vacate a parole denial will be rare; moreover, should that
occur, we assume that at a new hearing, the board will remedy
the error or errors that caused the matter to be remanded.
35
consider here only the initial parole hearing available to
juvenile homicide offenders. For the reasons discussed supra,
the procedural protections of representation by counsel and the
opportunity to obtain expert assistance in connection with that
initial parole hearing are necessary for such offenders in light
of their mandatory life sentences and the constitutional
requirement of proportionality in sentencing. See Diatchenko I,
466 Mass. at 669-671; id. at 675 (Lenk, J., concurring). In
Commonwealth v. Okoro, post , (2015), also decided
today, and for the same reasons, we afford the same procedural
protections to juvenile offenders convicted of murder in the
second degree, who also are subject to mandatory life sentences
with eligibility for parole. Nothing in this opinion, however,
is intended to suggest that any other class of offenders is also
entitled to these protections in connection with the parole
hearing process.
Second, in affording juvenile homicide offenders the
procedural protections at issue here, we emphasize that the
determination whether to grant a parole application of an
individual juvenile homicide offender is, and remains, a
discretionary decision for the board to make. As previously
noted, that standard is governed by G. L. c. 127, § 130, which
prohibits a prisoner from receiving parole unless the board
concludes that if the prisoner is released, "the prisoner will
36
live and remain at liberty without violating the law and that
release is not incompatible with the welfare of society."
Third, and relatedly, the board remains fully authorized to
determine, consistent with legislative mandates,34 the rules and
procedures it deems appropriate for the conduct of its parole
hearings, and free to reach whatever decision in each case it
deems appropriate. The dissents suggest that in establishing
minimal requirements of due process for juvenile homicide
offenders in their parole hearings, the court interferes
unnecessarily and improperly with the operations of the parole
board, an executive agency, trenching on principles of
separation of powers. Post at , . Our decision does not
commit this offense. Insofar as we conclude that the provision
of counsel and of funds for expert witnesses is required for
juvenile homicide offenders, these are procedures whose sole
purpose is to protect the constitutional entitlement that these
juvenile offenders have to a meaningful opportunity for parole
release.35 Finally, the limited judicial review provided here
does not authorize judges to substitute their judgment with
respect to the parole release decision for the board's. As
34
See, e.g., G. L. c. 127, §§ 130, 133A.
35
As we have noted, see note 17, supra, the chair of the
board and the commissioner recognize "certain benefits
flow[ing]" from these procedures, and do not view them as
interfering with the board's authority.
37
discussed, the judiciary's only role in these cases will be to
ensure that the board's determination whether to grant or deny
parole to a juvenile homicide offender is "constitutionally
exercised," Cole, 468 Mass. at 302, in the sense that the board
properly has taken into account the offender's status as a child
when the crime was committed.
4. Applicability of this decision. Diatchenko and Roberio
appear to confine their requests to the limited group of
individuals who were convicted of murder in the first degree and
sentenced to mandatory life without parole prior to the Supreme
Court's decision in Miller, and who became eligible for parole
pursuant to this court's decision in Diatchenko I. We do not
share the view that the decision in this case applies only to
that limited group. Rather, it applies more generally to all
juvenile offenders convicted of murder.
5. Conclusion. The matter is remanded to the county
court, where the single justice will enter a judgment consistent
with this opinion.
So ordered.
SPINA, J. (dissenting, with whom Cordy, J., joins). I
respectfully dissent from the decision of the court today. The
court has misconstrued Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655, 674 (2013) (Diatchenko I), which
required only a "meaningful opportunity to obtain release" in
the form of a parole hearing for juveniles convicted of murder
in the first degree. The court instead has created a path by
which such an offender may obtain, as of right, access to
counsel, funds for expert witnesses, and, if denied parole,
judicial review of the decision of the parole board (board).
The solution at which the court arrives today ignores previous
statements of the law on this matter. Our decision in
Diatchenko I did not create a significant liberty interest in
the outcome of the parole hearing. Diatchenko I stood solely
for the proposition that the exception to parole eligibility in
G. L. c. 127, § 133A, no longer applies to Gregory Diatchenko
and Jeffrey S. Roberio and left the remainder of the statutory
scheme unchanged. That statutory scheme continues to apply
unaltered to them and similarly situated inmates.
1. Meaningful opportunity. In Diatchenko I, we addressed
the United States Supreme Court's holding in Miller v. Alabama,
132 S. Ct. 2455 (2012), that juveniles convicted of murder in
the first degree could no longer receive life sentences without
2
the possibility of parole unless a court determined they were
incorrigible. We adopted the language in Miller, first
expressed in Graham v. Florida, 560 U.S. 48, 75 (2010), that a
juvenile offender receiving a life sentence must receive "some
meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation." Inherent in this line of cases is
the judicial recognition that "children are constitutionally
different from adults for purposes of sentencing." Diatchenko
I, 466 Mass. at 670, quoting Miller, supra at 2464. The Supreme
Court reasoned that a sentence of life in prison without the
possibility of parole removes any penological justification for
the sentence because it "forswears altogether the rehabilitative
ideal." Graham, supra at 74.
The court says "the meaningful opportunity for release
through parole is necessary in order to conform the juvenile
homicide offender's mandatory life sentence to the requirements
of art. 26 [of the Massachusetts Declaration of Rights]." Ante
at . I agree. After Diatchenko I, a juvenile convicted of
murder in the first degree, like every juvenile who is sentenced
to incarceration, is eligible for parole, whereas before such a
juvenile was not. The thrust of Diatchenko I was an expectation
of parole eligibility, and no more.
The court improperly synthesizes two premises to arrive at
a more significant but now constitutionally untenable
3
conclusion. The court correctly recognizes that (1) children
are "constitutionally different from adults for purposes of
sentencing" and (2) that a life sentence for a juvenile
convicted of murder in the first degree is cruel and unusual
under art. 26 without a meaningful opportunity for release
through a demonstration of rehabilitation. Fusing these
propositions together, the court concludes that the "meaningful
opportunity" for release for juveniles convicted of murder in
the first degree has a "constitutional dimension" that exists
for no others and requires "additional procedural protections."
Ante at & n.14. This conclusion is erroneous because the
court applies the first premise to the second when, in fact, the
second premise flows from the first.
The court states that other sentences, except life
sentences for juveniles convicted of murder in the first degree,
"include parole eligibility." Ante at . The opposite is
true. Parole is an executive action separate and distinct from
a judicial sentence. See Commonwealth v. Cole, 468 Mass. 294,
302 (2014) ("[The granting of parole] is a function of the
executive branch of government with which, if otherwise
constitutionally exercised, the judiciary may not interfere").
Cf. Simms v. State, 65 Md. App. 685, 689 (1986) ("A parole is an
act of executive clemency. It does not involve the sentencing
function or any other judicial function"). Cf. also Knight v.
4
United States, 73 F.3d 117, 119 (7th Cir. 1995), cert. denied,
519 U.S. 827 (1996) ("Parole is an extension of the
[c]onstitutional grant of clemency power given to the
President"); State v. Hewett, 270 N.C. 348, 352 (1967)
("Probation relates to judicial action taken before the prison
door is closed, whereas parole relates to executive action taken
after the door has closed on a convict"). Were Massachusetts to
abandon its system of parole, art. 26 would only require that
juveniles convicted of murder in the first degree -- and thus
sentenced to life -- be afforded some opportunity for release
from imprisonment through a demonstration of rehabilitation, the
only constitutionally available penological justification for
the State's harshest penalty. Miller, 132 S. Ct. at 2468 ("this
mandatory punishment [of life without parole] disregards the
possibility of rehabilitation even when the circumstances most
suggest it"). In such a hypothetical scenario, art. 26 would
not require parole for any juvenile sentenced to a term of years
because that sentence -- or any other lesser sentence -- has a
penological justification other than rehabilitation. See id. at
2465-2466 (outlining penological justifications of sentences as
applied to juveniles).
In constitutionally guaranteeing that juveniles convicted
of murder in the first degree are eligible for parole, we have
already previously respected juveniles' constitutional
5
distinctiveness from adults convicted of murder in the first
degree by the imposition of a sentence that is not cruel and
unusual. By imposing today these additional procedural
protections, the court reaches beyond the judicial function of
sentencing to regulate the conduct of the initial parole hearing
itself, the manifestation of the executive prerogative to
execute the sentence. In so doing, the court transforms the
conduct of the parole hearing into part of the sentencing
process, at least for juveniles convicted of murder in the first
degree, and implicates the action of the board in the sentence
itself.
The Legislature never intended such a relationship between
sentence and parole. Moreover, it is something that we
expressly said in Cole, 468 Mass. at 302, is forbidden, because
sentencing is "a quintessential judicial power." Id., quoting
Commonwealth v. Rodriguez, 461 Mass. 256, 264 (2012). In Cole,
we held that the executive branch's imposition of punishments
under G. L. c. 127, § 133D (c), against those who violated
community parole supervision for life improperly interfered with
the judicial power to impose a sentence. Cole, supra. Today we
are dealing with the opposite scenario, in which the court
subsumes the executive power to regulate the conduct of a parole
hearing into part of the sentencing process.
6
If the court's decision should be considered not to have
rendered the conduct of the initial parole hearing of a juvenile
convicted of murder in the first degree part of the sentencing
process, then the court's justification for "additional
procedural protections" in such a hearing fails because
"children are constitutionally different from adults for
purposes of sentencing" (emphasis added). Diatchenko I, 466
Mass. at 670, quoting Miller, 132 S. Ct. at 2465. Parole is not
part of the sentencing process and thus the parole hearing need
not recognize the difference between children and adults for
purposes of art. 26.
The Supreme Court specifically identified traditional
parole hearings as capable of providing that "meaningful
opportunity to obtain release." Graham, 560 U.S. at 75. In
both Graham and Miller, the Court even went so far as to
explicitly state that "a State is not required to guarantee
eventual freedom." Miller 132 S. Ct. at 2469; Graham, supra.
The term "meaningful opportunity" was a warning that the Eighth
Amendment to the United States Constitution "forbid[s] States
from making the judgment at the outset that those offenders
never will be fit to reenter society" (emphasis added). Graham,
supra. "The Eighth Amendment does not foreclose the possibility
that [a juvenile convicted of murder in the first degree] will
remain behind bars for life." Id. Read together these cases
7
stand for the proposition that Diatchenko and Roberio, and
similarly situated inmates, must be afforded a standard parole
hearing, and by implication, this hearing will provide these
individuals with the "meaningful opportunity" of release.
This warning is in congruence with the Court's previous
statements that "no constitutional or inherent right of a
convicted person to be conditionally released before the
expiration of a valid sentence" exists. Greenholtz v. Inmates
of the Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979).
Accord Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836
(1996). Indeed, in Diatchenko I we recognized that "[o]ur
decision should not be construed to suggest that individuals who
are under the age of eighteen when they commit murder in the
first degree necessarily should be paroled once they have served
a statutorily designated portion of their sentences."
Diatchenko I, 466 Mass. at 674. These statements cannot be
reconciled with the court's reasoning today that the "process"
of the initial parole hearing of a juvenile convicted of murder
in the first degree "takes on a different constitutional
dimension that does not exist for other offenders whose
sentences include parole eligibility." Ante at .
Absent the recognition of a new liberty interest in the
outcome of parole, the court does not explain the constitutional
necessity of these additional protections but simply inserts a
8
new "constitutional dimension." This "constitutional dimension"
identified by the court is the foundation for the new
constitutional rule that juveniles convicted of murder in the
first degree require different procedural protections from those
given to other offenders. The court provides juveniles under a
mandatory life sentences with enhanced procedures that no others
receive, yet there has been no suggestion that the parole
hearing others receive falls short of a meaningful opportunity.
We have never previously stated or hinted at such a difference
in procedural safeguards. In Diatchenko I, we determined that
the appropriate remedy to the defendant's challenge under Miller
was to leave intact as much of the statutory scheme designed by
the Legislature as possible, so far as it remained
constitutional. Diatchenko I, 466 Mass. at 673. Accordingly,
we struck down only the provision making juveniles ineligible
for parole and let the remaining provisions of the statute
stand. Id. In Commonwealth v. Brown, 466 Mass. 676 (2013), and
Commonwealth v. Ray, 467 Mass. 115 (2014), we affirmed our
intent to interfere with the enacted legislation as little as
possible and do nothing more than invalidate the exception for
parole eligibility.
In Brown, this court held that the rules of severability
require trial judges to apply the parole statute as written with
the exclusion of the one unconstitutional provision. Brown, 466
9
Mass. at 680. In so doing, this court upheld the trial judge's
decision to impose "as much of the sentencing scheme set forth
in [the statute] as would be permissible in light of Miller's
prohibition against mandatory sentences of life without parole
for juveniles." Id. We would not have instructed trial judges
to apply the statute in a manner that preserved as much of the
expressed intent of the Legislature as possible if we intended
to create a process different from that provided for in the
then-existing statutory scheme.
More recently, in Ray, we expressed a view that the normal
procedures governing consideration of parole release would apply
to juveniles convicted of murder in the first degree. Ray, 467
Mass. at 139-140. "Pursuant to our holding in Diatchenko, . . .
the defendant's life sentence remains in force, but the
exception in G. L. c. 265, § 2, rendering him ineligible for
parole, no longer applies. The defendant is eligible for parole
in accordance with the terms of G. L. c. 127, § 133A." Id. See
Commonwealth v. Keo, 467 Mass. 25, 47 (2014) ("the lesser
punishment under G. L. c. 265, § 2, of mandatory life in prison
with the possibility of parole, set pursuant to the parole
eligibility statute in effect at the time of the juvenile
offender's crime, would apply"). This language strongly
suggests that the court intended for the remainder of the
statutory scheme to apply to Diatchenko and Roberio and that
10
they are entitled only to the same parole hearing process as
other inmates.
Undoubtedly, Diatchenko and Roberio have a right to a
"hearing that shall afford [them] a meaningful opportunity to
obtain release," Diatchenko I, 466 Mass. at 674, but only via
the same processes and established procedures that all other
inmates serving life sentences have, and not through a new
liberty interest in parole with accompanying greater
constitutional protections. The court today seemingly "ignores
the distinction, adopted by the Supreme Court, between
[potentially] being deprived of a liberty that one already has
and being denied a conditional liberty that one desires."
Greenman v. Massachusetts Parole Bd., 405 Mass. 384, 388 n.3
(1989).
Moreover, in Diatchenko I, we outlined the process
necessary to afford a juvenile convicted of murder in the first
degree such a "meaningful opportunity," saying only that
"it is the purview of the Massachusetts parole board to
evaluate the circumstances surrounding the commission of
the crime, including the age of the offender, together with
all relevant information pertaining to the offender's
character and actions during the intervening years since
conviction. By this process, a juvenile homicide offender
will be afforded a meaningful opportunity to be considered
for parole suitability."
11
466 Mass. at 674.1 We did not hold that the Massachusetts
Constitution requires a new kind of parole hearing; and we said
nothing about changing the standard process in any respect (much
less requiring appointed counsel or granting funds for expert
testimony) in order for the juvenile offender to obtain his
"meaningful opportunity." Instead, we said that a process that
considers the above mentioned factors provides juvenile
offenders with a "meaningful opportunity to obtain release."
This understanding is in line with decisions of
Massachusetts and Federal courts that have long held that the
possible release arising under the parole statute does not
create a liberty interest in parole. See Greenman, 405 Mass. at
388 n.3 ("The individual characteristics of the Massachusetts
statutory parole scheme do not give rise to a liberty interest
under Federal law"). See also Doe v. Massachusetts Parole Bd.,
82 Mass. App. Ct. 851, 858 (2012) ("A prisoner in the
Commonwealth does not have a liberty interest in the future
1
The parole board (board) updated its "Guidelines for Life
Sentence Decisions," available at http://www.mass.gov/eopss/
agencies/parole-board/guidelines-for-life-sentence-
decisions.html [http://perma.cc/K33ZYSEA], most recently on
March 3, 2014. These guidelines reflect the mandates of our
decision in Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655 (2013) (Diatchenko I), specifically
providing that "an inmate who committed the offense as a
juvenile will be evaluated with recognition of the distinctive
attributes of youth, including immaturity, impetuosity, and a
failure to appreciate risks and consequences."
12
grant of parole"); Lynch v. Hubbard, 47 F. Supp. 2d 125, 127-128
(D. Mass. 1999) (Massachusetts parole statute's negative
phrasing prevents an expectation or presumption of release).
Essentially, under G. L. c. 127, § 133A, Diatchenko and Roberio
do not have an expectation or presumption of release and
Diatchenko I did nothing to overtly change the statutory scheme.
If we had intended to create an entirely new liberty interest in
parole where there had been none previously, we would have
explicitly said so. We did not, and Diatchenko I did not create
a liberty interest in parole for juveniles convicted of murder
in the first degree.
2. Right to counsel. The court concludes that juveniles
convicted of murder in the first degree who seek parole
constitutionally are entitled to representation by counsel
because a parole hearing is a contested, complex proceeding
similar to that involving the termination of parental rights.
Therefore, because juveniles convicted of murder in the first
degree -- imprisoned at a young age -- are unlikely to advocate
as fully as possible for themselves and a parole hearing is
similar to a proceeding terminating parental rights, the court
concludes that constitutionally guaranteed access to counsel
best ensures that the parole hearing is a "meaningful
opportunity." I disagree.
13
The court's analogy between parental right termination
proceedings and parole hearings does not withstand closer
scrutiny. The proceedings we examined in Department of Pub.
Welfare v. J.K.B., 379 Mass. 1 (1979), can result in the loss of
rights to conceive and raise one's children -- rights that are
"essential . . . basic civil rights of man . . . far more
precious . . . than property rights." Id. at 3, quoting Stanley
v. Illinois, 405 U.S. 645, 651 (1972). In J.K.B., supra at 4,
we affirmed that one cannot lose a right without due process,
and we ensured that due process be observed by access to counsel
for indigent parents. Parole hearings, however, do not result
in the loss of any rights. As explained above, an expectation
of parole simply does not exist in these proceedings and our
decision in Diatchenko I has not changed that fact.2 Without an
2
The court's acknowledgment that Quegan v. Massachusetts
Parole Bd., 423 Mass. 834, 840 (1996), contradicts its proposed
funding mechanism and its rationalization that a juvenile
convicted of murder in the first degree is entitled to
representation "thus required by law" stems from characterizing
the plaintiff in Quegan as "a prisoner seeking parole who had no
constitutionally protected interest that entitled him to any due
process protections." Ante at n.20. The only reason Quegan
contradicts the court's conclusion that G. L. c. 211D, § 5, is
the appropriate authorization mechanism is because the court
baldly asserts that the class of inmates at issue requires a
different sort of parole hearing with additional procedural
protections from a hearing available to any other class applying
for parole. Juveniles convicted of murder in the first degree
do not merit anything more than a chance to appear before the
board in the same manner as other inmates do. To grant them
greater protection creates a perverse incentive.
14
expectation of parole, a juvenile convicted of murder in the
first degree has no protected liberty interest, or right, to
lose.3
Our decision in Diatchenko I did not suggest that the
current parole process did not adequately provide a "meaningful
opportunity to obtain release." We most certainly did not
suggest that publicly funded counsel is necessary to protect
one's interest in a fair hearing. The right to counsel based in
the Sixth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights does not
traditionally have an application to parole hearings. The
United States Supreme Court explicitly noted that the right to
counsel does not extend to postconviction collateral
proceedings, see Douglas v. California, 372 U.S. 353, 356
(1963), and that "[i]n the context of parole . . . the
procedures required are minimal." Swarthout v. Cooke, 131 S.
Ct. 859, 862 (2011).
3
We also consistently have held in our cases dealing with
postconviction rights in other contexts that a defendant is not
entitled to a full array of due process. See Commonwealth v.
Arriaga, 438 Mass. 556, 569 (2003) (no right to public funds to
obtain postconviction relief); Jackson v. Commonwealth, 430
Mass. 260, 264 (1999), cert. denied, 528 U.S. 1194 (2000) (no
absolute right to counsel in moving for new trial); Commonwealth
v. Conceicao, 388 Mass. 255, 263-264 (1983) (no absolute right
to appointed counsel in obtaining postconviction relief under
Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 [2001]).
15
We consistently have rejected claims that an inmate is
entitled to counsel at parole hearings. See Cole, 468 Mass. at
306; Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 840
(1996) (no right to representation before board unless there is
independent and pending criminal proceeding that could be
affected by parole proceedings).4 Parole is not a part of the
criminal prosecution or the adversarial process, but rather
arises subsequently and is supervised by an executive
administrative agency rather than the court. Because parole is
separate and apart from criminal proceedings for those convicted
of murder in the first degree as juveniles, the full breadth of
due process rights, including the right to counsel, does not
apply during such hearings.
Further, at this juncture, Diatchenko and Roberio have not
made a sufficient showing that the parole hearing process
available to them is inadequate or that the unique skills of a
lawyer are necessary in order to have a "meaningful opportunity
to obtain release." This is particularly so given that the
4
Courts in other jurisdictions similarly have rejected
claims that an inmate is entitled to counsel at parole release
hearings. See Warren v. United States Parole Comm'n, 659 F.2d
183, 195 (D.C. Cir. 1981); Holup v. Gates, 544 F.2d 82, 85 (2d
Cir. 1976); Bearden v. South Carolina, 443 F.2d 1090, 1095 (4th
Cir. 1971). Hawaii is the only State to grant a right to
counsel at parole release and review hearings by statute. Haw.
Rev. Stat. § 706-670(3)(b), (c). Should the Massachusetts
Legislature take similar action, the debate here would be moot.
16
current parole process requires the board to consider the
circumstances of the crime, including whether Diatchenko and
Roberio were juveniles at its commission, and whether they have
been rehabilitated. Additionally, numerous inmates convicted of
murder in the second degree as juveniles have been paroled after
release hearings conducted without the aid of appointed counsel.
While "lifer hearings" certainly require considerable
preparation, the board is not called upon to resolve disputed
issues of fact, strict rules of evidence do not apply, and
witnesses need not be subjected to cross-examination.
The court maintains that an attorney is needed to collect
materials pertaining to a juvenile homicide offender's criminal
history and personal development after conviction. However, at
the time of a parole hearing, the factual record in these cases
already has been well established either in a trial transcript
or in a decision of this court. Additionally, the Department of
Correction (department) keeps a historical record containing
detailed medical, psychiatric, and disciplinary records in each
inmate's six-part folder. 103 Code Mass. Regs. § 155.07 (2014).
These records are available to Diatchenko and Roberio before
their hearings and to the board for review.5 See G. L. c. 127,
5
The court highlights that an inmate's access to this
information may be restricted. Ante at . The issue of what
may or may not be restricted in these circumstances is best left
17
§ 135; 103 Code Mass. Regs. § 157.08 (2005); 120 Code Mass.
Regs. § 300.05(1)(i) (1997). Finally, and notably, the court
does not suggest that the statutory standard for granting parole
or the requirements for membership to the board are
unconstitutional.
3. Expert witness funds. The court also concludes that a
parole-eligible juvenile convicted of murder in the first degree
may petition a Superior Court judge to authorize the payment of
fees to retain an expert witness to explain effectively "the
effects of the individual's neurobiological immaturity and other
personal circumstances at the time of the crime, and how this
information relates to the individual's present capacity and
future risk of reoffending." Ante at . The majority derives
this right from the same mistaken interpretation that a
"meaningful opportunity" of parole grants juveniles convicted of
murder in the first degree more rights in a parole hearing than
any other class of inmate. For substantially the same reasons
that a juvenile convicted of murder in the first degree is not
guaranteed access to counsel, neither is he or she guaranteed
access to funds for expert witness testimony.
to another day, but I note that the Department of Correction
must "make every effort to disclose all evaluative information
which is reasonably segregable from" certain enumerated
categories to an inmate. 103 Code Mass. Regs. § 157.08(4)
(2005).
18
The power to allocate and direct public funding among
competing public purposes is traditionally within the purview of
the Legislature. See Opinion of the Justices, 430 Mass. 1201,
1202 (1999); County of Barnstable v. Commonwealth, 422 Mass. 33,
45 (1996). The court construes G. L. c. 261, §§ 27A-27G, as
authorizing the expenditure of public funds because the parole
hearing at issue is constitutionally mandated. Ante at .
For support, the court cites our cases that guaranteed
"meaningful access to whatever postconviction proceedings the
State makes available" for indigent defendants who sought
postconviction relief. Ante at , citing Commonwealth v.
Conceicao, 388 Mass. 255, 261-262 (1983). At issue in Conceicao
was the question whether "meaningful access" included access to
counsel as of right. Id. at 258. We concluded that the
decision to grant access to counsel for the preparation of a
motion for a new trial was within the discretion of the motion
judge. Id. at 262. We recommended counsel only in the event
the defendant demonstrated a colorable or meritorious issue.
Id. Importantly, we recognized that not every inmate need be
placed on exactly the same footing as any other by providing
counsel in order to guarantee meaningful access. Id. at 261.
General Laws c. 261, § 27C (4), echoes the legislative
acknowledgment that "meaningful access" does not necessarily
require the blanket authorization of public funds in support of
19
a defendant's efforts following his direct appeal. This section
authorizes provision of public funds needed by an indigent
applicant for an "effective . . . prosecution, defense or
appeal." Yet funds under the statute are generally not
available to support a defendant's effort to obtain
postconviction relief, because those proceedings are not a part
of the prosecution, defense, or appeal. See Commonwealth v.
Arriaga, 438 Mass. 556, 569 (2003).
Finally, according to its enabling statute, members of the
board must come from a diverse background, including the fields
of psychology or psychiatry. G. L. c. 27, § 4. Additionally,
at least one member of the board must now have experience in
forensic psychology, St. 2014, c. 189 (1), and the board must
consider scientific and technical factors at its hearings. The
board now is obligated to consider youth-related factors in
order to fulfil the mandates of both Miller and Diatchenko.6
These requirements assist in ensuring that Diatchenko's and
Roberio's hearings provide a truly "meaningful opportunity" for
release, without a need for their own experts.
4. Certiorari. The court today establishes judicial
review of the denial of parole to a juvenile convicted of murder
in the first degree through an action for certiorari.
6
As noted previously, the board has updated its guidelines
to reflect our decision in Diatchenko I. See note 1, supra.
20
Certiorari is available when there is "(1) a judicial or quasi-
judicial proceeding, (2) from which there is no other reasonably
adequate remedy, and (3) a substantial injury or injustice
arising from the proceeding under review." Indeck v. Clients'
Sec. Bd., 450 Mass. 379, 385 (2008). Such review conflicts with
our previous understanding of the separation of powers enshrined
in art. 30 of the Massachusetts Declaration of Rights. "The
granting of parole, or conditional release from confinement, is
a discretionary act of the parole board" and "is a function of
the executive branch of government with which, if otherwise
constitutionally exercised, the judiciary may not interfere."
Cole, 468 Mass. at 302. See Stewart v. Commonwealth, 413 Mass.
664, 669 (1992). We previously have stated that a statute that
"impermissibly allocates a power held by only one branch to
another" violates art. 30. Cole, supra. Today's holding
violates art. 30 because it permits a judge to "nullify the
discretionary actions of the parole board." Commonwealth v.
Amirault, 415 Mass. 112, 116-117 (1993). Accord Woods v. State
Bd. of Parole, 351 Mass. 556, 559 (1967) ("Even by a writ of
mandamus, the board may be required merely to consider a
prisoner's petition for parole. The board may not be required
to exercise any discretion for the benefit of a prisoner").
As detailed above, Diatchenko I did not create any
additional rights for a juvenile convicted of murder in the
21
first degree more expansive than those possessed by any other
class of inmate. The use of certiorari to ensure that a parole
hearing provides a "meaningful opportunity" for release ignores
the existence of a "reasonably adequate remedy." Indeck, 450
Mass. at 385. An inmate may seek relief from decisions of the
board by means of an action for declaratory relief under G. L.
c. 231A. See Gangi v. Massachusetts Parole Bd., 468 Mass. 323,
324 (2014); Massachusetts Parole Bd. v. Brusgulis, 403 Mass.
1010, 1011 (1989). Chapter 231A provides inmates with the
opportunity to challenge the "practices or procedures [of the
board] . . . alleged to be in violation of the Constitution of
the United States or of the constitution or laws of the
commonwealth." G. L. c. 231A, § 2. Accordingly, Diatchenko,
Roberio, and similarly situated inmates may contest the board's
practices that fail to consider the unique characteristics of
juvenile offenders as well as displayed growth and change from
adolescence, as required by Diatchenko I.
Certiorari is limited to correcting substantial errors of
law that affect material rights and are apparent on the record.
Gloucester v. Civil Serv. Comm'n, 408 Mass. 292, 297 (1990).
The only material right at stake to juveniles convicted of
murder in the first degree is the expectation of parole
eligibility, not the substance of the board's decision.
Moreover, the use of certiorari permits the reviewing court only
22
to affirm or set aside a decision of the tribunal whose actions
are under review. Commonwealth v. Ellis, 11 Mass. 462, 466
(1814) ("this Court . . . can only affirm the proceedings . . .
or quash them"); Commonwealth v. Blue-Hill Turnpike Corp., 5
Mass. 420, 423 (1809) ("on certiorari we can enter no new
judgment"); Melvin v. Bridge, 3 Mass. 305, 306 (1807) ("If the
Court were to consider these proceedings as certified on a
certiorari, the plaintiff in error could not be relieved, as a
judgment for costs could not be rendered, but only the
proceedings affirmed or quashed"). Consequently, lacking any
affirmative power, a court could only set aside a decision of
the board and then remand the matter to the board, a process
that could be repeated ad infinitum until the board grants
parole. See Woods, 351 Mass. at 559. Not only are courts ill-
equipped to decide whether parole should be granted, but such a
decision -- both historically and legally -- has been reserved
for the executive branch.
The court notes that judicial review by an action for
certiorari would not encompass whether a particular juvenile
convicted of murder in the first degree is entitled to release
on parole but rather would be limited to the question whether
the board has "constitutionally exercised" its discretion. Ante
at n.16, citing Cole, 468 Mass. at 302. If the reviewing
judge is not concerned with the individual outcome of the matter
23
before him or her, then the judge is by default only reviewing
the procedure of that matter. "[A] complaint for declaratory
relief is an appropriate way of testing the validity of
regulations or the propriety of practices involving violations
of rights, which are consistent and repeated in nature." Nelson
v. Commissioner of Correction, 390 Mass. 379, 388 n.12 (1983).
This mechanism has been utilized in previous challenges to the
procedures by which the board exercises its discretion. See
Quegan, 423 Mass. at 835; Blake v. Massachusetts Parole Bd., 369
Mass. 701, 702-703 (1976).
The court -- and Diatchenko and Roberio -- do not contend
that the board has failed in this respect such that a request
for declaratory relief is warranted at this time. Importantly,
the review process for granting parole is currently based on
comprehensive, individualized assessments. In determining
whether a particular inmate is suitable for parole, the board is
charged by statute with ascertaining the extent to which the
inmate has been rehabilitated, and the extent to which, if
released, he or she would pose a risk to the community.7 See
7
"Decisions of the Executive Branch, however serious their
impact, do not automatically invoke due process protection;
there simply is no constitutional guarantee that all executive
decisionmaking must comply with standards that assure error-free
determinations." Greenholtz v. Inmates of the Neb. Penal &
Correctional Complex, 442 U.S. 1, 7 (1979). "[T]he state may be
specific or general in defining the conditions for release and
24
G. L. c. 127, § 130. The board performs a "risk and needs
assessment" as well. Id. In so doing, it has the authority to
review and evaluate an inmate's entire record. See Greenman,
405 Mass. at 387. As required by statute, the board must be
provided with the complete criminal record of the inmate as well
as reports on the inmate's social, physical, mental, and
psychiatric condition and history. G. L. c. 127, § 135.
Moreover, in making its determination, the board "shall consider
whether, during the period of incarceration, the prisoner has
participated in available work opportunities and education or
treatment programs and demonstrated good behavior." G. L.
c. 127, § 130. Finally, the board "shall also consider whether
risk reduction programs, made available through collaboration
with criminal justice agencies would minimize the probability of
the factors that should be considered by the parole authority.
It is thus not surprising that there is no prescribed or defined
combination of facts which, if shown, would mandate release on
parole. . . . In parole releases . . . few certainties exist.
In each case, the decision differs from the traditional mold of
judicial decision-making in that the choice involves a synthesis
of record facts and personal observation filtered through the
experience of the decision maker and leading to a predictive
judgment as to what is best both for the individual inmate and
for the community. This latter conclusion requires the board to
assess whether, in light of the nature of the crime, the
inmate's release will minimize the gravity of the offense,
weaken the deterrent impact on others, and undermine respect for
the administration of justice. The entire inquiry is, in a
sense, an 'equity' type judgment that cannot always be
articulated in traditional findings" (footnote omitted). Id.
at 8.
 25
the prisoner re-offending once released." Id. All inmates are
provided subsequent parole hearings if parole is initially
denied. 120 Code Mass. Regs. § 300.01 (1997). These hearings
are open to the public and parole-eligible offenders serving
life sentences are permitted representation by counsel. 120
Code Mass. Regs. §§ 300.02(2), 300.08 (1997). Eventually, the
board's decision becomes a public record. G. L. c. 127, § 130.
Further, in January, 2014, in response to Miller, the
Legislature passed "An Act relative to juvenile life sentences
for first degree murder" (act). St. 2014, c. 189. The act
imposed a series of statutory changes affecting juveniles
convicted of murder in the first degree including new sentencing
and parole eligibility standards; mandating that at least one
member of the board have experience in forensic psychology;
authorizing the department to provide treatment and programming
for youthful offenders irrespective of their crimes or duration
of incarceration; and allowing the placement of qualified
youthful offenders in a minimum security correctional facility,
irrespective of their life sentence. The act further
established a commission to
"study and determine the usefulness and practicality of
creating a developmental evaluation process for all cases
of first degree murder committed by a juvenile [between the
ages of fourteen and eighteen]. The evaluation process
shall determine the developmental progress and abilities of
the juvenile offender at the time of sentencing and parole
eligibility and the parole board shall utilize the
26
evaluation process for future parole decisions regarding
the juvenile offender."
In addition, the board, on its own initiative, amended its
"Guidelines for Life Sentence Decisions" (guidelines) in light
of Diatchenko I, requiring consideration of age-related factors
in all parole cases involving juveniles convicted of murder in
the first degree and incorporating the specific factors that the
concurring justices considered when evaluating parole
suitability for such individuals. See note 1, supra.
Accordingly, inmates like the defendant now must be "evaluated
with recognition of the distinctive attributes of youth,
including immaturity, impetuosity, and a failure to appreciate
risks and consequences." See Diatchenko I, 466 Mass. at 675
(Lenk, J., concurring). The guidelines now provide that the
board can and should consider, among other things, the specific
facts of the crime and rehabilitation. Finally, in determining
whether the inmate has been rehabilitated, the guidelines
provide that the board shall consider his or her conduct while
incarcerated.
Had this court intended to directly oversee the board's
consideration of parole, we would have specifically provided
guidance concerning the proper balance of the necessary factors
or when to find that parole is warranted. Yet, we declined to
do so, specifically holding that it was in the board's "purview"
27
to evaluate the unique circumstances and conditions of the
defendant. Diatchenko I, 466 Mass. at 674. See Doe v.
Massachusetts Parole Bd., 82 Mass. App. Ct. 851, 861 (2012).
This the board has done by revising its guidelines.
Accordingly, a complaint for declaratory relief remains the best
manner to ensure the meaningfulness of parole hearings by
allowing challenges to procedural elements of these hearings
such as the guidelines. See Nelson, 390 Mass. at 388 n.12.
There has been no showing that declaratory relief would be
appropriate at this time.
For the foregoing reasons, I respectfully dissent.
CORDY, J. (dissenting, with whom Spina, J., joins). I join
and agree completely with Justice Spina's dissent. I write
separately only to underscore my strongly held view that the
judicial branch should not intrude on what is plainly an
executive branch function in the absence of a showing that that
branch has failed to fulfil its legal or constitutional
obligations. There is not a hint of such a showing in this
case. To the contrary, all indicators of executive branch
intentions support the conclusion that "meaningful
opportunit[ies] to obtain release" on parole have been and will
continue to be provided to individuals serving life sentences
for murders they committed when they were juveniles. There is
no demonstrated need for the court to construct and order funded
a special parole and appellate process for such prisoners.1
While the directives in the court's ruling regarding
counsel, appeals, and the funding of experts may seem relatively
benign to some, in unnecessarily intruding on the functions of
another branch the court steps over the line that separates the
powers accorded to each in our constitutional structure -- a
separation we have proudly proclaimed as a necessary element of
a constitutional democracy that ensures our government shall be
1
Indeed, as the court's opinion has noted, Gregory
Diatchenko already has been granted parole.
2
one of laws and not of men.2 In doing so, the court also fails
to accord the other branches the respect necessary to the proper
functioning of a government where each has its own
constitutional responsibilities. While the role of the
judiciary may often include being a check on the other branches
when they exceed or fail in the execution of those
responsibilities, it is distinctly not to exercise them.3
Although we occasionally declare that the Massachusetts
Declaration of Rights creates certain duties in other branches,
such as ensuring a meaningful opportunity for release on parole,
we leave it to those branches "to define the precise nature of
the task[s] which they face in fulfilling" those duties.
McDuffy v. Secretary of the Exec. Office of Educ., 415 Mass.
545, 620 (1993). To hold that such a meaningful opportunity can
only occur in the context of a parole hearing with counsel
appointed, experts on retainer, and a special appellate process,
2
See art. 29 of the Massachusetts Declaration of Rights.
3
Last year, we were quick to declare that the community
parole supervision for life law (G. L. c. 127, § 133D [a]) was
an unconstitutional delegation of a quintessential judicial
function, sentencing, to the parole board, an executive branch
of government, in violation of the constitutional separation of
powers clause at issue here. Commonwealth v. Cole, 468 Mass.
294, 302 (2014). In so doing, we also underscored and confirmed
that the granting of parole is "a discretionary act" and a
"function of the executive branch of government with which, if
otherwise constitutionally exercised, the judiciary may not
interfere" (emphasis added). Id.
3
is to declare that we know best how to perform the tasks
constitutionally assigned to others, in the absence of any
evidence of failure or excess.4 This substitution at this
juncture of our judgment for that of the parole board as to the
expertise and advocacy necessary for it to properly exercise its
executive discretion is a slippery slope, and one down which we
should not embark.
4
There is no suggestion in the court's opinion that the
standard for determining an individual's suitability for parole
for persons convicted of murder when they were juveniles is any
different from the standard of suitability that any other
prisoner must satisfy in order to obtain release on parole,
i.e., that there is a "reasonable probability that, if the
prisoner is released with appropriate conditions and community
supervision, the prisoner will live and remain at liberty
without violating the law, and that release is not incompatible
with the welfare of society." G. L. c. 127, § 130.