Roberio v. Massachusetts Parole Board

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SJC-12482
JEFFREY S. ROBERIO vs. MASSACHUSETTS PAROLE BOARD.
Suffolk. January 8, 2019. - October 24, 2019.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.
Parole. Imprisonment, Parole. Constitutional Law, Parole, Ex
post facto law. Due Process of Law, Parole, Retroactive
application of statute. Statute, Retroactive application.
Practice, Criminal, Parole.
Civil action commenced in the Superior Court Department on
August 24, 2016.
The case was heard by Christine M. Roach, J., on motions
for judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Benjamin H. Keehn, Committee for Public Counsel Services,
for the plaintiff.
Matthew P. Landry, Assistant Attorney General, for the
defendant.
Elizabeth Zito, of New York, Janie Y. Miller, of
California, David J. Apfel, & Marielle Sanchez, for
Massachusetts Association of Criminal Defense Lawyers & others,
amici curiae, submitted a brief.
2
CYPHER, J. This case concerns whether retroactive
application of a 1996 amendment to G. L. c. 127, § 133A
(§ 133A), which prescribes parole eligibility conditions for
prisoners serving life sentences, is an ex post facto violation,
either on its face or as applied to the plaintiff, Jeffery S.
Roberio.
In 1986, seventeen year old Roberio was convicted of armed
robbery and murder in the first degree premised on theories of
felony-murder, deliberate premeditation, and extreme atrocity or
cruelty, and he was sentenced to life in prison without the
possibility of parole. As a result of our decision in
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655 (2013), S.C., 471 Mass. 12 (2015) (Diatchenko I), which
applied Miller v. Alabama, 567 U.S. 460, 479 (2012), and
invalidated mandatory life sentences for juvenile homicide
offenders, Roberio became immediately eligible for parole.
In 2015, the defendant Parole Board (board) denied
Roberio's application for parole and applied the 1996 amendment
to § 133A that increased the maximum permissible period between
subsequent applications for parole from three years to five
years. See St. 1996, c. 43. Roberio challenged the board's
decision in the Superior Court, and a judge concluded that the
board did not abuse its discretion.
3
We allowed Roberio's application for direct appellate
review and conclude that because the primary aim of the 1996
amendment was to afford relief to families of murder victims,
the Legislature intended the amendment to apply retroactively.
We also conclude that the amendment is not unconstitutional on
its face. However, further discovery concerning the board's
practical implementation of the 1996 amendment is necessary to
determine whether application of the amendment to Roberio is
nonetheless unconstitutional. Accordingly, we vacate the
Superior Court judge's order allowing the board's motion for
judgment on the pleadings and remand for further proceedings
consistent with this opinion.1
Background and facts. The details of Roberio's crimes are
set forth in Commonwealth v. Roberio, 440 Mass. 245, 246-247 (2003)
(affirming convictions), and need not be repeated here. It
suffices to say that as a juvenile, Roberio devised and executed
a vicious robbery, during which he and another individual
brutally beat and strangled an elderly man to death.
In 2015, the board unanimously denied Roberio's first
parole application on the ground that he was not "fully
1 We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers; the
Juvenile Law Center; Prisoners' Legal Services; Northeastern
University School of Law, Prisoners' Rights Project; Harvard Law
School, Prison Legal Assistance Project; and the Coalition for
Effective Public Safety.
4
rehabilitated." The board cited Roberio's lack of corrective
programming aimed at addressing his substance abuse, anger, and
violence issues, issues which Roberio claimed had led to the
very murder for which he was incarcerated, leaving the board
with serious concerns regarding "whether he still presents a
risk of harm to the community, and whether his release is
compatible with the best interest of society." In conjunction
with this denial, the board ordered a review in five years and
advised that during those five years "Roberio should engage in
rehabilitative programming that addresses substance abuse,
anger, violence, and any potential mental health issues that may
impair his ability to function as a law abiding citizen in
society."2
2 General Laws c. 127, § 133A, provides in pertinent part:
"After [a parole hearing] the parole board [(board)] may,
by a vote of two-thirds of its members, grant to such
prisoner a parole permit to be at liberty upon such terms
and conditions as it may prescribe for the unexpired term
of his sentence. If such permit is not granted, the . . .
board shall, at least once in each ensuing five year
period, consider carefully and thoroughly the merits of
each such case on the question of releasing such prisoner
on parole, and may, by a vote of two-thirds of its members,
grant such parole permit."
See 120 Code Mass. Regs. § 301.01(5) (2017) ("In cases involving
inmates serving life sentences with parole eligibility, a parole
review hearing occurs five years after the initial parole
release hearing, except where the [board] members act to cause a
review at an earlier time").
5
At the time Roberio committed his crimes, § 133A provided
that when the board denied a prisoner who was serving a life
sentence parole, it was required to "carefully and thoroughly"
reconsider the merits of that prisoner's case "at least once in
each ensuing three year period." See G. L. c. 127, § 133A, as
amended through St. 1982, c. 108, § 2. We refer to the period
between the board's denial of parole and a prisoner's subsequent
review as a "setback" or "set-back period."
Roberio brought his challenge to the board's decision in
Superior Court pursuant to G. L. c. 249, § 4, arguing that the
board abused its discretion in failing to consider adequately
his juvenile status in making its parole determination. He also
sought a declaration, pursuant to G. L. c. 231A, that the
board's application of the 1996 amendment to him posed a
significant risk of prolonging his incarceration and, as a
result, violated his constitutional right to be protected from
the operation of ex post facto laws, as provided in art. I,
§ 10, of the United States Constitution and art. 24 of the
Massachusetts Declaration of Rights. The judge denied Roberio's
subsequent motions for judgement on the pleadings and summary
judgment, and allowed the board's cross motion for judgment on
the pleadings. The judge found that the board did not abuse its
discretion in denying Roberio's parole, and she concluded that
6
Roberio's claim of increased punishment was speculative and
conjectural.
Discussion. 1. Retroactive application of the 1996
amendment. As an initial matter, the parties agree that the
board applied the 1996 amendment retroactively to Roberio.
Roberio argues that the Legislature did not intend for the 1996
amendment to operate retroactively, and therefore, we should
apply the ordinary presumption of prospective application in
this case. See G. L. c. 4, § 6, Second. The board maintains
that the 1996 amendment may operate retroactively because it is
procedural in nature and, in any event, prospective application
of the amendment would be inconsistent with the aims of its
enactment. We need not reach the board's argument that the 1996
amendment is procedural because we conclude that the Legislature
in fact intended the amendment to apply retroactively.3
3 We also note that this analysis overlaps significantly
with our analysis under the ex post facto clauses. A law is not
procedural if it "affects substantive rights," Stewart v.
Chairman of Mass. Parole Bd., 35 Mass. App. Ct. 843, 845-846
(1994), and a law violates the ex post facto clauses only if it
affects "substantive rights," see Commonwealth v. Bargeron, 402
Mass. 589, 591 (1988). Moreover, the United States Supreme
Court has stated that even seemingly procedural changes may run
afoul of the ex post facto clauses if the practical effect is to
affect a substantive right. Weaver v. Graham, 450 U.S. 24, 29
n.12 (1981) (statute could violate ex post facto clause even if
statute "takes a seemingly procedural form"). See Clay v.
Massachusetts Parole Bd., 475 Mass. 133, 141 n.10 (2016)
(procedural changes could constitute ex post facto laws).
Therefore, we conclude that it is prudent to engage in the ex
7
In accordance with our rule of statutory construction,
amendments to penal statutes are "presumptively prospective"
(citation omitted). Commonwealth v. Bradley, 466 Mass. 551, 553
(2013). See G. L. c. 4, § 6, Second. The objective of this
presumption "is to 'preserve, even after legislative change of a
statute, the liability of an offender to punishment for an
earlier act or omission made criminal by the statute repealed in
whole or in part.'" Bradley, supra, quoting Commonwealth v.
Dotson, 462 Mass. 96, 100 (2012).
The presumption of prospective application is not absolute.
Watts v. Commonwealth, 468 Mass. 49, 55 (2014), citing Bradley,
466 Mass. at 553. "In accordance with G. L. c. 4, § 6," it will
not apply where "the prospective application of the legislation
in question would be 'inconsistent with the manifest intent of
the law-making body or repugnant to the context of the same
statute.'" Watts, supra, quoting Bradley, supra. See
Commonwealth v. Didas, 471 Mass. 1, 5 (2015) (same). We
generally treat these as "distinct exceptions." Watts, citing
Bradley, supra. See Bradley, supra ("Legislature intended that
post facto analysis regardless of whether the amendment appears
procedural. See Collins v. Youngblood, 497 U.S. 37, 46 (1990)
("Subtle ex post facto violations are no more permissible than
overt ones. . . . [T]he constitutional prohibition is addressed
to laws, whatever their form, which make innocent acts criminal,
alter the nature of the offense, or increase the punishment"
[quotations and citation omitted]).
8
there be two exceptions, perhaps often related in fact, but
separate and distinct in meaning"). But see Didas, supra at 10
n.11 (single line of inquiry may be sufficient to address both
exceptions where party advances essentially same argument under
both exceptions). We consider both in turn.
The presumption of prospective application is inconsistent
with the manifest intent of the Legislature where an intention
that the statute apply retroactively is clearly expressed.
Watts, 468 Mass. at 55, quoting Bradley, 466 Mass. at 554. "The
Legislature may clearly express its intent through the words
used in a statute or the inclusion of other retroactive
provisions in the statute that would make prospective
application of the provision at issue anomalous, if not absurd"
(quotations and citation omitted). Bradley, supra. Under this
exception, "inferring that the Legislature probably intended
retroactive application is not enough; that intent must be
'clearly expressed'" (citation omitted). Id.
The act providing for the 1996 amendment, entitled "An Act
relative to eligibility for parole," provided only, "Section
133A of chapter 127 of the General Laws . . . is hereby amended
by striking out, in line 24, the word 'three' and inserting in
place thereof the following word: five." The Legislature did
not express an intention that the 1996 amendment apply
retroactively. Indeed, "the section is silent as to its
9
temporal application." Bradley, 466 Mass. at 555. See Watts,
468 Mass. at 56. Nor are there other provisions included in the
act that would make prospective application of the amended
§ 133A "anomalous, if not absurd" (citation omitted). Bradley,
supra at 554.
Turning to the second exception, the presumption of
prospective application is "repugnant to the context of the same
statute where it would be contrary to the purpose of the statute
to delay the accomplishment of that purpose" (quotations
omitted). Bradley, 466 Mass. at 555–556. Although "the phrase
does not refer to the intent of the Legislature, and certainly
does not require that the intent of the Legislature be made
'manifest,' it does compel us to discern the legislative purpose
of the statute at issue and determine whether prospective
application would be inconsistent with that purpose." Id. at
556.
The legislative history of the 1996 amendment demonstrates
that the intent of the Legislature was to reduce the workload of
the board and, "more importantly," benefit the families of
murder victims, in requiring them to "undergo the trauma of a
parole hearing only once every five years instead of once every
three years." Memorandum regarding House Bill No. 1894, "An Act
relative to eligibility for parole" (Mar. 14, 1996). See House
of Representatives, Committee on Local Affairs, Fact Sheet for
10
House Bill No. 1894 (Feb. 9, 1995) (same). Thus, the
Legislature's goal in enacting the 1996 amendment is clear.
Prospective application would have the anomalous result of
affording relief to some families but not others, which would be
inconsistent with the Legislature's plain intention and
repugnant to the context of the statute. See Bradley, 466 Mass.
at 559 (where Legislature amended school zone statute to, in
part, "diminish the unfair disparate impact" of prior statute
"on urban and minority residents," repugnant to context of
statute to apply amendment prospectively and prolong resulting
unfair disparate impact of prior statute). Cf. Watts, 468 Mass.
at 61-62 (although act extending jurisdiction of Juvenile Court
was silent as to temporal application, it was passed with
informed understanding that actual implementation would likely
require additional staff and services; prospective application
takes these considerations, as well as legal complexities and
impact of opposite construction, into account and is not
repugnant to act's purpose).
2. Application of ex post facto clause. Both art. I,
§ 10, of the United States Constitution and art. 24 of the
Massachusetts Declaration of Rights provide protection from the
operation of ex post facto laws. Clay v. Massachusetts Parole
Bd., 475 Mass. 133, 135 (2016). Roberio has invited us to
determine that our State Constitution affords greater protection
11
than that of the Federal Constitution. We decline to do so
where we have considered this issue before and have consistently
considered the two as coextensive. See Police Dep't of Salem v.
Sullivan, 460 Mass. 637, 644, n.11 (2011); Commonwealth v. Cory,
454 Mass. 559, 564 n.9 (2009); Commonwealth v. Bruno, 432 Mass.
489, 492 n.4 (2000).
The prohibition against ex post facto laws serves the
important, twin aims of assuring that legislative acts give fair
warning of their effect and "restraining arbitrary and
potentially vindictive legislation." Weaver v. Graham, 450 U.S.
24, 29 (1981). See Lerner v. Gill, 751 F.2d 450, 456-457 (1st
Cir.), cert. denied, 472 U.S. 1010 (1985), quoting Weaver, supra
at 30 ("Critical to relief under the Ex Post Facto Clause is
. . . the lack of fair notice and governmental restraint when
the legislature increases punishment beyond what was prescribed
when the crime was consummated"). Retroactive changes that
affect parole eligibility are "a proper subject for application
of the ex post facto clause." Clay, 475 Mass. at 136 (parole
eligibility is part of law annexed to crime at time of person's
offense). See, e.g., Garner v. Jones, 529 U.S. 244, 250 (2000);
California Dep't of Corrections v. Morales, 514 U.S. 499, 509
(1995) (Morales). In this context, an ex post facto law is one
that "changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed."
12
Commonwealth v. Bargeron, 402 Mass. 589, 590 (1988), quoting
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). See Collins
v. Youngblood, 497 U.S. 37, 46-47 (1990) (emphasizing that
Calder decision controls).
We have stated that "the controlling inquiry as to whether
the retroactive application of a law affecting parole
constitutes an ex post facto violation is whether such
application 'creates a significant risk of prolonging [an
individual's] incarceration.'" Clay, 475 Mass. at 136–137,
quoting Garner, 529 U.S. at 251. See Morales, 514 U.S. at 509.
In this case, Roberio may establish the requisite risk either by
demonstrating that the 1996 amendment is facially
unconstitutional, meaning it "by its own terms show[s] a
significant risk" of prolonging his incarceration, see Garner,
supra at 255, or by demonstrating with evidence derived from the
amendment's "practical implementation by the agency charged with
exercising its discretion, that its retroactive application will
result in a longer period of incarceration than under the
earlier rule." Id. at 255. See id. at 251 ("requisite risk"
can either be "inherent in the framework of amended [statute or]
demonstrated on the record"); Clay, supra at 137 (same).
We recently addressed whether a 2012 amendment to § 133A
increasing the number of board member votes necessary to grant
parole from a simple majority to a majority vote of two-thirds
13
violated the ex post facto clause as applied to a juvenile
homicide offender similarly situated to Roberio. Clay, 475
Mass. at 134. See G. L. c. 127, § 133A, as amended through St.
2012, c. 192, § 39. The offender had received four votes in
favor of parole from a panel of seven members. Id. Under the
version of § 133A in effect at the time the offender committed
his crime, he would have been granted parole with this majority
vote, see G. L. c. 127, § 133A, as amended through St. 1973,
c. 278. However, in accordance with the 2012 amendment
requiring a vote of two-thirds of the panel members, the board
denied parole. See G. L. c. 127, § 133A, as amended through
St. 2012, c. 192, § 39.
We reiterated that, "[u]nder Massachusetts law, the . . .
board has discretionary authority to grant parole," see G. L.
c. 27, § 5, and that "no one is guaranteed a grant of parole."
Clay, 475 Mass. at 138-139, citing Diatchenko I, 466 Mass. at
674. Thus, "disposition of the facial challenge" would "rest on
whether . . . the supermajority amendment 'increases, to a
significant degree, the likelihood or probability of prolonging
[an individual's] incarceration.'" Clay, supra, quoting Garner,
529 U.S. at 256.
We concluded that the inherent effect of the supermajority
amendment did not create a significant risk of increased
punishment for the individuals covered by the amendment. Clay,
14
475 Mass. at 139. Id., quoting Morales, 514 U.S. at 514
("Absent the . . . board's decision as to [the offender's]
parole application and the apparent effect on it of the
supermajority amendment, we are presented with nothing beyond
speculation and conjecture that the supermajority amendment to §
133A would 'increase the measure of punishment attached to the
covered crimes'"). However, as applied to the offender,
application of the supermajority amendment did in fact
constitute an ex post facto violation because he was able to
demonstrate that, but for the amendment, the board would have
granted him parole. Clay, supra at 140. "This [was] not a case
in which the risk of increased punishment [was] merely a
'speculative and attenuated possibility.'" Id., quoting
Morales, supra at 509.
In Clay, we relied heavily on two Supreme Court cases that
have direct bearing on the issue raised in this case. See
Morales, 514 U.S. at 499; Garner, 529 U.S. at 244. In Morales,
supra at 501-502, the Court addressed whether an amendment to
California's parole procedure allowing the parole board to
decrease the frequency of parole hearings violated the ex post
facto clause. The prisoner in that case was a twice-convicted
murderer. Id. at 502. At the time of the second murder, he
would have been entitled to annual parole suitability hearings
once he was parole eligible; however, the California Legislature
15
amended the relevant statute to allow the parole board to defer
subsequent parole hearings for up to three years if the prisoner
had been convicted of more than one offense that involved taking
a life. Id. at 503. After the prisoner's first application for
parole was denied, the parole board deferred his next hearing
for three years. The prisoner claimed that the amendment
violated the ex post facto clause. Id. at 503-504.
The Court concluded that the amendment did not affect the
sentence for the offense but, rather, the "'method to be
followed' in fixing a parole release date." Id. at 508. The
prisoner urged the Court to find that any legislative change
that creates a "conceivable risk of affecting a prisoner's
punishment" violates the ex post facto clause. Id. The Court
rejected this approach, noting that it would require an
"invalid[ation] of any number of minor . . . changes that might
produce [a] remote risk of impact on a prisoner's sentence,"
leading to a "micromanagement of an endless array of legislative
adjustments to parole and sentencing procedures" that "might
create some speculative, attenuated risk of affecting a
prisoner's actual term of confinement by making it more
difficult for him to make a persuasive case for early release,
but that fact alone cannot end the matter for ex post facto
purposes." Id. at 508-509. Declining to create a single
"formula" for identifying legislative changes that violate the
16
ex post facto clause, the Court determined that in evaluating
the constitutionality of an amendment, "we must determine
whether it produces a sufficient risk of increasing the measure
of punishment attached to the covered crimes." Id. at 509.
The Court held that the amendment created "only the most
speculative and attenuated possibility of producing the
prohibited effect of increasing the measure of punishment for
covered crimes." Id. In making this determination, the Court
relied on a several factors, including that the likelihood of
parole for the class of prisoners affected by the amendment was
remote; that the amendment was carefully tailored; that the
parole board was required to make particularized findings to
support its decision; and that the parole board retained
discretion under the amendment to assign either an annual review
or a two-year set-back period. Id. at 510-512. The Court also
stated that "there is no reason to conclude that the amendment
will have any effect on any prisoner's actual term of
confinement, for the current record provides no basis for
concluding that a prisoner who experiences a drastic change of
circumstances would be precluded from seeking an expedited
hearing from the [b]oard." Id. at 512.
In Garner, the Court reviewed an amendment to a Georgia
parole law that reduced the frequency of parole review from
every third year to every eighth year for inmates serving life
17
sentences. Garner, 529 U.S. at 247. The Court stated that
certain differences between Georgia's amended parole law and the
California law reviewed in Morales, including five more years
between hearings, fewer procedural safeguards, and covering more
prisoners than just multiple murderers, were "not dispositive,"
and reiterated that there is no single formula "for identifying
which legislative adjustments, in matters bearing on parole,
would survive an ex post facto challenge." Id. at 251-252. The
Court added that "States must have due flexibility in
formulating parole procedures and addressing problems associated
with confinement and release." Id. at 252.
The Court concluded that the amendment to the Georgia law
did not create a significant risk of prolonging the respondent's
incarceration on its face because it was "qualified in two
important respects. First, the law vest[ed] the Parole Board
with discretion as to how often to set an inmate's date for
reconsideration, with eight years for the maximum. . . . Second,
the Board's policies permit[ed] expedited parole reviews in the
event of a change in their circumstance or where the Board
receives new information that would warrant a sooner review"
(citation omitted). Id. at 254.
The Court stated that "[w]hen the rule does not by its own
terms show a significant risk, the respondent must demonstrate,
by evidence drawn from the rule's practical implementation by
18
the agency charged with exercising discretion, that its
retroactive application will result in a longer period of
incarceration than under the earlier rule," id. at 255, and
concluded that on the record before it, the Court could not
determine whether the change in the Georgia law "lengthened the
respondent's time of actual imprisonment." Id. at 256. The
record before them "contained little information bearing on the
level of risk created by the change in law," and "[w]ithout
knowledge of whether retroactive application of the [amendment]
increases, to a significant degree, the likelihood or
probability of prolonging respondent's incarceration," the Court
was unable to reach a conclusion concerning the respondent's as-
applied challenge. Id. at 256. The Court remanded for further
proceedings and emphasized that the respondent must show that,
"as applied to his own sentence," the amendment created a
"significant risk of increasing his punishment. This remains
the issue in the case, though the general operation of the
Georgia parole system may produce relevant evidence and inform
further analysis on the point." Id. at 255.
a. Facial challenge. For much the same reasons discussed
by the Supreme Court in Garner and Morales, we are not persuaded
that there is a significant risk of prolonged incarceration
"inherent in the framework" of the 1996 amendment. Garner, 529
U.S. at 251. As discussed, the decisions regarding whether,
19
when, and under what conditions to grant parole rest entirely
with the board. See G. L. c. 27, § 5. Parole is not required;
indeed, it is not even presumed. G. L. c. 27, § 5. The effect
of the 1996 amendment was to allow the board to exercise one
facet of its discretion. See G. L. c. 127, § 133A, as amended
through St. 1996, c. 43. The 1996 amendment does not affect a
covered prisoner's initial eligibility date, the standards for
parole suitability, or the board's statutory obligation to
"consider carefully and thoroughly" the merits of each
prisoner's parole application. G. L. c. 127, § 133A. It merely
affects the "method to be followed" for fixing a parole release
date. Morales, 514 U.S. at 508. Critically, the 1996 amendment
does not require the board to assign five-year set-back periods.
Indeed, the amendment maintains the integrity of the board's
ability to assign whatever set-back period it deems appropriate
and necessary, as well as the discretion to revisit that
decision either at the request of a prisoner or on its own
initiative. G. L. c. 127, § 133A.4 See Garner, 529 U.S. at 254
4 Roberio attempts to distinguish his case from Garner v.
Jones, 529 U.S. 244, 254 (2000), and California Dep't of
Corrections v. Morales, 514 U.S. 499, 508 (1995), by arguing
that, although the board has the discretion to grant expedited
hearings, it does not exercise that discretion in practice. See
120 Code Mass. Regs. § 304.03 (2017) (providing for
reconsideration of board decision). This argument affects the
as-applied analysis only. See Clay, 475 Mass. at 140, quoting
Garner, supra at 255 (petitioner may demonstrate requisite risk
20
(parole board's policies permitted expedited parole reviews in
event of change in circumstance or where parole board received
new information that would warrant earlier review); Morales,
supra at 512-513 (record provided no basis for concluding that
prisoner who experienced drastic change of circumstances would
be precluded from seeking expedited hearing from parole board).
Roberio urges us to draw a distinction between his position
and those of the petitioners in Garner and Morales based on his
status as a juvenile homicide offender, because as a juvenile
offender he has greater prospects for reform. We conclude that
such a distinction is unnecessary. As an initial matter, we
note that in the context of a facial challenge, we consider the
impact that the amendment will have on the entire class of
persons covered by the amendment. In this case, the class of
prisoners covered by the 1996 amendment consists of prisoners
serving life sentences with the possibility of parole.5 For
with evidence derived from amendment's "practical
implementation").
5 "Every prisoner who is serving a sentence for life in a
correctional institution of the commonwealth, except prisoners
confined to the hospital at the Massachusetts Correctional
Institution, Bridgewater, except prisoners serving a life
sentence for murder in the first degree who had attained the age
of [eighteen] years at the time of the murder and except
prisoners serving more than [one] life sentence arising out of
separate and distinct incidents that occurred at different
times, where the second offense occurred subsequent to the first
conviction, shall be eligible for parole at the expiration of
21
purposes of the maximum permissible set-back period, the statute
does not make a distinction between juvenile and adult
offenders.
Nonetheless, we conclude that any risk that the 1996
amendment might have a more significant impact on juveniles than
it does on adults is sufficiently mitigated by the fact that
juveniles are already afforded certain protections in the parole
process for the express purpose of guaranteeing that those
offenders will be afforded a meaningful opportunity to be
considered for parole. We recognized in Diatchenko I, 466 Mass.
at 670, quoting Miller, 567 U.S. at 471, that "children are
constitutionally different from adults, for purposes of
sentencing," because they have "diminished culpability and
greater prospects for reform." Flowing from that recognition
was our directive to the board that it consider a prisoner's
juvenile status at the time of his parole, see Diatchenko I,
supra at 674 ("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
the minimum term fixed by the court under [G. L. c. 279, § 24]."
G. L. c. 127, § 133A.
22
parole suitability"), and our directive that such offenders be
afforded the procedural protections of representation by
counsel, as well as the opportunity to obtain expert assistance
in connection with that initial parole hearing.6 Diatchenko v.
District Attorney for the Suffolk Dist., 471 Mass. 12, 32 (2015)
(Diatchenko II). See G. L. c. 127, § 133A ("If a prisoner is
indigent and is serving a life sentence for an offense that was
committed before the prisoner reached [eighteen] years of age,
the prisoner shall have the right to have appointed counsel at
the parole hearing and shall have the right to funds for experts
pursuant to [G. L. c.] 261"). Notwithstanding these special
considerations, we emphasized that, even in cases of juvenile
homicide offenders, under art. 26, the offender is entitled only
to a meaningful opportunity for release; parole is not
guaranteed. Diatchenko II, supra at 29–30.
In sum, we conclude that the 1996 amendment is not
unconstitutional on its face. See Garner, 529 U.S. at 255;
Morales, 514 U.S. at 514; Clay, 475 Mass. at 139-140.
6 The board was cognizant of its obligation to consider
Roberio's juvenile status and noted in its decision, "While
Roberio's age and development at the time of the crime are
important factors to consider in assessing his parole
suitability, the most important criteria in the analysis of
parole suitability remains whether Roberio meets the legal
standard for parole."
23
b. As-applied challenge. We next consider whether the
amendment is unconstitutional as applied to Roberio. An
offender must demonstrate, "by evidence drawn from the rule's
practical implementation by the agency charged with exercising
discretion, that its retroactive application will result in a
longer period of incarceration than under the earlier rule."
See Garner, 529 U.S. at 255. The record evidence concerning the
board's practical implementation of the 1996 amendment, though
uncontested, is extremely limited. Upon close examination, it
does not afford us the necessary context to draw sound
conclusions with regard to the board's overarching practices.
In pressing his claim, Roberio relies on affidavits from
two attorneys, Patricia Garin and Barbara Kaban, who draw from
their experiences with the board in practice and their analysis
of parole data collected over certain periods. Attorney Garin
focuses her practice on criminal defense and prisoners' rights,
with a concentration on issues relating to parole. She also
teaches a course on prisoner rights and supervises the
prisoners' rights clinic at Northeastern University School of
Law. Attorney Kaban is the principal investigator for a study
of Massachusetts juvenile homicide offenders funded by the Shaw
Foundation. She also has served as the director of juvenile
appeals for the Committee for Public Counsel Services, where her
24
responsibilities included monitoring the outcomes of parole
hearings for juvenile homicide offenders.
Their affidavits suggest that the board is exercising its
statutory responsibility to "consider carefully and thoroughly
the merits of each such case" in determining whether to release
a prisoner on parole and, where parole is denied, in determining
the length of the set-back period. G. L. c. 127, § 133A.
Attorney Garin's review of parole statistics for 2012 reflects
that the board issued records of decision for 134 prisoners that
year and that 108 were denied parole. Of the 108 prisoners
denied parole, seventy-seven received five-year set-back
periods. Attorney Kaban's affidavit states that since 2013, the
board has held parole hearings for thirty-four juvenile homicide
offenders, thirteen of whom the board granted parole.
What gives cause for concern is Attorney Garin's assertion,
unrebutted by the board, that, in over thirty years of
experience, she has "no knowledge of the board ever allowing a
motion for reconsideration to reduce a lifer's setback period"
or ever acting on its own "to hold a review hearing sooner than
the setback period identified in the decision denying parole."
If a prisoner's opportunity to seek and be afforded an expedited
review is for all practical purposes illusory, as the record may
suggest, then application of the 1996 amendment might create a
significant risk of prolonging the length of incarceration for
25
those prisoners who, after the imposition of a four- or five-
year set-back period, can demonstrate a material change in
circumstances that would warrant an earlier review of the merits
of their parole applications. Whether the board in practice
exercises its discretion to expedite review hearings for those
prisoners that have demonstrated a material change in
circumstances would significantly affect our as-applied
analysis. See Garner, 529 U.S. at 254.
Without a comprehensive demonstration of the board's
practical application of the 1996 amendment since the date of
its enactment, we are unable to reach a conclusion concerning
Roberio's as-applied challenge. Here, it is apparent that
further discovery is necessary, and we remand the case for that
purpose. See Garner, 529 U.S. at 256, 257. On remand, Roberio
is entitled to obtain discovery from the board identifying the
cases, if any, where it has allowed a motion for reconsideration
to reduce the set-back period of a prisoner with a life sentence
or acted on its own to hold an earlier review. If the board can
identify no such cases, the board should be allowed the chance
to furnish evidence demonstrating that the opportunity for a
26
prisoner with a life sentence to obtain a reduction in the set-
back period is not, in fact, illusory.7
Conclusion. The 1996 amendment does not create a
significant risk of prolonging incarceration on its face.
Nonetheless, further discovery concerning the board's
implementation of the 1996 amendment is necessary to determine
whether the amendment, as applied to Roberio, is
unconstitutional. Accordingly, we vacate the Superior Court
judge's order allowing the board's motion for judgment on the
pleadings and remand for further proceedings consistent with
this opinion.
So ordered.
7 The factual determination is not whether Roberio's
petition for an early hearing, which was summarily denied
without explanation on April 10, 2018, would have been granted
if the opportunity to seek an early hearing based on a change in
circumstances were not illusory. Unless we allow the deposition
of each member of the board, which we do not propose, a prisoner
cannot prove that he would have been granted an earlier hearing
if the board gave him a meaningful opportunity to obtain one.
Rather, the factual determination is whether the board provides
prisoners with a meaningful opportunity to obtain an earlier
hearing. This must be measured by statistics or other evidence
reflecting what the board actually does, and not by what the
board says it might be willing to do.