In Diatchenko v. District Attorney for the Suffolk District & Others, 466 Mass. 655 (2013), the Supreme Judicial Court invalidated the statutory provisions mandating life without the possibility of parole for juveniles convicted of first degree murder. The Diatchenko Court adopted the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012), which required consideration of a juvenile’s “lessened culpability” and “greater capacity for change.” As a result of Diatchenko, sixty-one Massachusetts inmates became eligible for parole and entitled to parole hearings where they will be afforded “a meaningful opportunity to obtain release,” Diatchenko, 466 Mass. at 674, before the completion of their criminal sentence. This article provides guidance to practitioners appearing before the Parole Board for these and other life sentence hearings.
However laudable Diatchenko’s reform, it has collided with a countervailing pressure to tighten the standards for granting parole following the high-profile murder of a police officer committed by a parolee in 2010, and the subsequent public outcry which led to the resignation of five Parole Board members who had voted for his release. According to several studies, including by the Boston Bar Association and the Parole Board, once the data are corrected for high-profile offenses, recidivism rates are actually higher for persons who are released after serving a complete sentence than for those who are paroled. Proponents of parole attribute this difference to the supervision, programs, and assistance parolees receive after release to facilitate reintegration into society.
Reconciliation of the two viewpoints lies in the application of one of the primary goals of sentencing: rehabilitation. Commonwealth v. Goodwin, 414 Mass. 88 (1993). Parole offers a “carrot and stick” approach to achieving rehabilitation. The carrot, because parole can be granted at least in part based on an offender’s showing of rehabilitation, and the stick, because the Parole Board can place conditions on receiving parole, or rescind or revoke parole, based on failure to engage in programs, counseling, substance abuse treatment and a wide variety of other conditions. M.G.L. c. 127, § 5; 120 C.M.R. § 300.07. Importantly, offenders are not required to participate in treatment or educational opportunities offered during their incarceration, yet offenders often undertake such steps voluntarily with the goal of demonstrating rehabilitation and receiving parole. Similarly, conditions of parole and the creation of a release plan cannot be mandated except for those offenders subject to parole. Parole can thus be accurately described as both evidence of rehabilitation and a means of effecting the sentencing goal of rehabilitation. By extension, the best advice to attorneys representing either parolees or the Commonwealth in life sentence parole hearings is to focus on presenting a cohesive narrative that focuses on rehabilitation. The facts of the offense and an individual’s criminal history have already been established, but an attorney can situate those facts within a narrative arc of the offender’s development and future goals.
The Board must consider two factors in each parole decision: (1) the reasonable probability that the individual would not violate the law if released, and (2) the compatibility of release on parole with the welfare of society. Parole may not be granted “merely as a reward for good institutional conduct.” M.G.L. c. 127, § 130; 120 C.M.R. § 300.04. The Parole Board may consider a variety of evidence in its decision, including: prior criminal record; pending cases; the nature and circumstances of the offense; recommendations from parole staff; statements from victims or their family members; physical or psychological examinations; information the inmate provides, including letters of support and a parole release plan; information the District Attorney’s Office provides; and institutional behavior. 120 C.M.R. § 300.05
A typical hearing begins with an opening statement by the offender or his counsel, followed by questioning of the offender by each Board member. The offender may present testimony from supporters, including family members, employers, or experts (such as mental health experts), each of whom may be questioned by the Board. After the offender’s presentation, those opposing parole, including the victim or family members of the victim, may speak or present counter evidence. The offender’s counsel may present closing arguments, and the Commonwealth may also present a closing argument or position statement.
The Board’s published Guidelines for Life Sentence Decisions should serve as the framework for constructing argument and applying the evidence listed above. The Guidelines specify three questions to be addressed by the Board at each hearing:
1) Has the inmate’s period of incarceration been of sufficient length to adequately protect the public, punish him for his conduct, deter others, and allow for rehabilitation?
2) Is the inmate rehabilitated?
3) Are there reasons to conclude that the inmate will live outside prison as a sober, law-abiding, employed, productive person who is making positive contributions to his family and his community?
The key issues underlying each question are fully outlined in the Guidelines and fall into three main areas of inquiry: the offender’s past, his institutional behavior, and his action plan upon release.
In addition to understanding the facts and circumstances of the crime, the Board will ask if the individual has taken responsibility for and appreciates his role in the crime, including the impact it had on any victims. Has the offender’s story has changed over time and is the offender only acknowledging his behavior for the purpose of gaining parole? In that regard, assess if post-trial litigation can fit into a narrative of eschewing responsibility, or instead protecting a valuable substantive or procedural right. What is the criminal history beyond the offense of incarceration and does it reveal a pattern of violent behavior or crimes committed against particularly vulnerable victims (such as children or the elderly)? Has the offender had past defaults, bail revocations, or other factors which may indicate difficulty complying with conditions of parole?
An offender’s personal circumstances are also important, but can be a double-edged sword: they can serve as mitigating or aggravating factors depending on how they have been addressed. Does the offender recognize the role those circumstances may have played in the offense or how they may impact his life upon parole? Has he specifically tailored his rehabilitative efforts to areas of substance abuse, childhood trauma, or other relevant factors? Similarly, if the offender has struggled with mental health issues, have those issues led to previous commitments, and have they been adequately treated?
The Board considers two main areas of institutional behavior: first, the offender’s disciplinary record; and, second, how he has used his time in educational or other institutional activities. What is the total number of infractions received and what is the trend? Did infractions involve violence or contraband? Was the individual the instigator? What was the reason for any transfers within the Department of Correction? Did the offender use his time to enroll, regularly attend, and complete programs, or has he attended only sporadically or claimed he was unable to attend? How has he shown personal reflection and dedication to self-improvement? Has he achieved educational or vocational goals? Has he taken leadership positions or consistently worked during his incarceration? Has he been committed to any religion, vocation, organization, or family during his incarceration that will continue following his release? What efforts has he made to address the Board’s concerns since any previous hearing and denial?
Finally, the Board considers the offender’s plan for life after release: does the offender have an adequate support network, including a place to live and work, treatment for ongoing issues, and persons who are committed to his success? Be ready to show that these issues have been well thought out and not hastily thrown together. Has the defendant been pre-approved for housing or programs? Does he have an employer willing to offer a job? Are there family members or religious supporters aware of the transitional difficulties he will face and willing and able to shoulder the potential emotional and financial impact? Any testimony should focus on these issues and evidence of rehabilitation. Avoid discussion about personal hardship due to incarceration or any perceived harm to the offender because of the conviction.
There are steps counsel may take to try to assuage any Board concerns arising during the hearing. With permission, supplement the record following the hearing. This can be particularly useful to address questions regarding the parole release plan and provide conditional acceptance to programs, housing, or employment opportunities. The Board may be inclined to grant parole with pre-conditions and transition periods rather than deny parole with recommended steps an inmate take before his next review hearing. After listening carefully to the Board’s questions and testimony provided, use closing argument to address any trouble areas or discrepancies between what emerged at the hearing with the written materials provided to the Board.
Hearings mandated by Diatchenko began in May 2014 and have so far resulted in the parole of the first three juvenile offenders considered. Notwithstanding these recent decisions, the seriousness of life sentence offenses and the Board’s stated goal of achieving fairness and consistency across similarly situated offenders suggests that parole will not be granted often on a first review, even where an offender has taken responsibility for his actions and demonstrated significant rehabilitation. The three juvenile offenders had served twenty, eighteen, and twenty-two years, respectively, where they are now eligible for parole after serving fifteen years. The Board also required each of the paroled juvenile offenders to complete additional programs prior to release after one year in a lower security facility.
Overall, Parole Board statistics show that parole was granted to 21% of offenders serving life sentences (including for crimes other than first degree murder) who were over 18 years old on the date of offense, compared with 53% of those who were under 18 years old on the date of the offense. This suggests that the Board is seriously weighing the role of youth in both the commission of the offense and rehabilitation, as required by the Supreme Judicial Court.
Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She clerked for the Ninth Circuit Court of Appeals and graduated Order of the Coif from UCLA School of Law. The views expressed in this article are those of the author solely and do not reflect in any way the views or policies of the Middlesex District Attorney’s Office. The author is indebted to Stephen Hoctor for creating an earlier version of an article on this subject.
by Professor Daniel Kanstroom
Goldberg, J., Haynes v. Washington, 373 U.S. 503, 515 (1963)
In Commonwealth v. Sylvain,466 Mass. 422 (2013), the SJC held that the requirements placed on criminal defense lawyers to properly advise defendants about certain immigration consequences enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010) are retroactive to 1997. The SJC, relying both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights, diverged from the U.S. Supreme Court on the retroactivity question. This very important—but rather esoteric—immigration law case may have profound implications regarding the retroactivity of recent holdings in such areas as public trial rights during jury selection and juvenile sentencing.
The SJC achieved a just outcome while reminding the legal community why retroactivity is an extraordinarily difficult jurisprudential concept and why immigration law has long been known as a subject that could “cross the eyes of a Talmudic Scholar.” The daunting complexities presented by the case derived in part from certain anachronistic late nineteenth century legal doctrines establishing “plenary power” over noncitizens seeking to enter the United States as well as those facing deportation. The Court has held that certain noncitizens seeking to enter the United States have no enforceable constitutional rights and that deportation exercised under that power was not criminal punishment. Therefore, the specific constitutional norms attendant to the criminal justice system are largely inapplicable to deportees. See Fong Yue Ting v. United States, 149 U.S. 698 (1893).
For more than a century, the constitutional implications of these doctrines and their progeny frequently (but not always) defeated claims of ineffective assistance of counsel by deportees who were badly advised (or not advised at all) by their criminal lawyers. Noncitizens have the right to appointed counsel in the criminal justice system, but they do not have such a right in deportation proceedings. Deportation has often been deemed a civil “collateral” consequence of criminal conviction. Among other implications of this categorization, criminal defense lawyers have sometimes been found to have no professional duty to advise defendants about such consequences.
In 2010, however, the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), a case in which the question of ineffective assistance was squarely presented. Mr. Padilla, a long-term lawful permanent resident of the United States, had apparently been advised to plead guilty to a drug-related charge in criminal court, which—unbeknownst to him—virtually guaranteed his deportation and lifetime banishment from the United States and his family. The Court upheld his claim that his criminal defense counsel was ineffective due to this incorrect advice concerning the risk of deportation. This was in many respects a path-breaking, virtually unprecedented constitutional decision, with powerful Fifth and Sixth Amendment implications. See generally, Daniel Kanstroom, The Right To Deportation Counsel in Padilla v. Kentucky: The Challenging Construction of the Fifth-And-A-Half Amendment, 58 UCLA L. REV. 1461 (2011); see also, Daniel Kanstroom Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? 45 NEW ENGLAND L. REV. 305 (2011).
The Court, most significantly, recognized that deportation as a consequence of a criminal conviction now has such a close connection to the criminal process that it is uniquely difficult to classify it as either a “direct or a collateral consequence.” Padilla at 364. The two systems, in short, have become inextricably linked. Further, the Court recognized that “the landscape of federal immigration law has changed dramatically.” In the past there were only a “narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation.” But now, the regime contains a much-expanded class of deportable offenses and it has limited the authority of judges “to alleviate the harsh consequences of deportation.” Id. at 357. As a result of these changes, the “drastic measure” of deportation or removal, . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes. Deportation has become “an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at 362 (emphasis added). From this logic, one can easily see why substantial due process protections, and also some of the more specific protections normally tied to the criminal justice system, are warranted. See generally Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARVARD LAW REVIEW 1890-1935 (June, 2000).
The question quickly arose whether the Padilla model would be retroactive. Unfortunately, Padilla itself did not address this question. In Commonwealth v. Clarke, 460 Mass. 30 (2011), the SJC held that Padilla was retroactive, at least as to convictions that became final after April 1, 1997 (the effective date of relevant changes to deportation law). The SJC followed a long-standing framework derived from Teague v. Lane, 489 U.S. 288 (1989). See also, Commonwealth v. Bray, 407 Mass. 296, 300-301 (1990) (adopting Teague model). The essential question from Teague and progeny was whether the Supreme Court in Padilla had announced a “new” rule. A “new” rule, very simply put, “breaks new ground or imposes a new obligation” on the government. If so, the Padilla norms would not be retroactive. In Clarke, the SJC concluded that Padilla was not a new rule because it was merely an application of well-recognized Sixth Amendment ineffective assistance of counsel standards. See Strickland v. Washington, 466 U.S. 668 (1984); Clarke at 34-46.
So far, so good; and so far, at least moderately clear. However, things soon got murkier. In Chaidez v. U.S., 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla had in fact announced a “new” rule and therefore its holding should not be applied retroactively by federal courts. Chaidez, however, did not necessarily bind state courts. Indeed, the Supreme Court had recognized the propriety of such divergence in Danforth v. Minnesota, 552 U.S. 264 (2008) in which the Court held that Teague does not constrain the authority of state courts to give broader effect to “new” rules of criminal procedure.
In Sylvain, the SJC continued to view retroactivity differently from the Supreme Court. The SJC concluded that Padilla did not announce a “new” rule for the “simple reason that it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation.” Sylvain at 435 (citing Clarke, supra at 36, 38-39, 43; Chaidez, supra at 1114-1116 (Sotomayor, J., dissenting). Importantly, the SJC based its ruling both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights. As one excellent Practice Advisory notes, art. 12 may prove to be a broader source of rights for noncitizens than the Sixth Amendment. See CPCS, Immigration Impact Unit, Practice Advisory on the Retroactivity of Padilla in Massachusetts: Commonwealth v. Sylvain, 466 Mass. 422 (2013), October 2013.
The SJC also correctly noted that professional standards in Massachusetts have long required criminal defense lawyers to advise noncitizen clients about immigration consequences. Practitioners thus now face a certain dissonance in that criminal defendants prosecuted in federal courts who face or have faced deportation may only cite Padilla prospectively, while state court defendants in Massachusetts may use the Padilla ruling to seek to vacate convictions dating back to 1997. The practical difficulties involved in bringing such claims on behalf of deportees are still significant, however. See, e.g., Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept. 27, 2013) (invalidating regulation barring such claims), and Bolieiro v. Holder, No. 12-1807 (1st Cir. Sept. 27, 2013) (same).
Sylvain may also portend greater assertiveness by the SJC in certain other arenas where retroactive application of constitutional holdings is at issue. The SJC has now made clear that it considers a “new” rule to be such only if the result is contrary to precedent. Sylvain, at 434. This is rather narrower than the approach taken by the Supreme Court, which has used the formulation of that which was not “apparent to all reasonable jurists.” The SJC formulation could thus expand state court remedies for other violations of constitutional rights. Indeed, the Court highlighted that retroactivity in Sylvain was required by “tenets of fundamental fairness.” Sylvain at 437, citing Commonwealth v. Amirault, 424 Mass. 618, 639 (1997). It therefore seems quite possible that Sylvain could influence such pending questions as the retroactivity of rulings about mandatory life without parole sentences for juveniles—See Diatchenko v. D.A. for the Suffolk District, SJC-11453—and public trial rights during jury selection. See Commonwealth v. Alebord, SJC-11354. Retroactivity analysis will thus have to consider, in addition to precedent, such factors as the evolution of practice, reliance, and deeper normative questions of justice and fairness.
Daniel Kanstroom is a Professor of Law and Director of the International Human Rights Program at Boston College Law School. He is also the Founder of the Post-Deportation Human Rights Project.