Deal v. Commissioner of Correction

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SJC-12053

TIMOTHY DEAL & others1 vs. COMMISSIONER OF CORRECTION

& another.2

Suffolk. May 3, 2016. - August 25, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.3

Commissioner of Correction. Constitutional Law, Sentence,

Parole. Due Process of Law, Sentence, Parole, Prison

classification proceedings. Imprisonment, Reclassification

of prisoner. Parole. Youthful Offender Act. Practice,

Criminal, Sentence, Parole.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on July 14, 2015.

The case was reported by Botsford, J.

Barbara Kaban (Benjamin H. Keehn, Committee for Public

Counsel Services, & James W. Rosseel with her) for the

petitioners.

Charles Anderson, Jr., for the respondents.

1

Siegfried Golston and Jeffrey Roberio.

2

Assistant Deputy Commissioner of Correction.

3

Justice Cordy participated in the deliberation on this

case and authored this opinion prior to his retirement.

Justices Spina and Duffly participated in the deliberation on

this case prior to their retirements.

2

David J. Apfel & Eileen L. Morrison, for American Civil

Liberties Union of Massachusetts & others, amici curiae,

submitted a brief.

CORDY, J. This case is before us on the reservation and

report of the single justice. The petitioners, Timothy Deal,

Siegfried Golston, and Jeffrey Roberio, are juvenile homicide

offenders4 who are serving mandatory indeterminate life sentences

and who have a constitutional right to a "meaningful opportunity

to obtain release based on demonstrated maturity and

rehabilitation." Diatchenko v. District Attorney for the

Suffolk Dist., 466 Mass. 655, 674 (2013) (Diatchenko I), quoting

Graham v. Florida, 560 U.S. 48, 75 (2010). This right also

extends to juveniles convicted of murder in the second degree.

See Diatchenko v. District Attorney for the Suffolk Dist., 471

Mass. 12, 32 (2015) (Diatchenko II). This case concerns the

manner in which juvenile homicide offenders are classified and

placed in Department of Correction (department) facilities.

The issue before us is whether the department's practice of

using "discretionary override codes" to block qualifying

4

In an earlier decision, we used the term "juvenile

homicide offender" to refer 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. See

Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass.

12, 13 n.3 (2015). In this case, we use the term to refer to

individuals who have been convicted of either murder in the

first degree or murder in the second degree and were under the

age of eighteen at the time of the offense.

3

juvenile homicide offenders from placement in a minimum security

facility unless and until the individual has received a positive

parole vote violates (1) G. L. c. 119, § 72B, as amended by St.

2014, c. 189, § 2; or (2) their right to a meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation under the Eighth and Fourteenth Amendments to the

United States Constitution, arts. 12 and 26 of the Massachusetts

Declaration of Rights, or both Constitutions.

We conclude that the department's current classification

practice violates G. L. c. 119, § 72B, as amended by St. 2014,

c. 189, § 2, because the department's failure to consider a

juvenile homicide offender's suitability for minimum security

classification on a case-by-case basis amounts to a categorical

bar as proscribed by the statute. We further conclude that the

department's practice does not violate the petitioners'

constitutional right to a meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation

because there is no constitutionally protected expectation that

a juvenile homicide offender will be released to the community

after serving a statutorily prescribed portion of his sentence.5

5

We acknowledge the amicus brief submitted by the American

Civil Liberties Union of Massachusetts; Boston College Juvenile

Rights Advocacy Project; Campaign for Fair Sentencing of Youth;

Charles Hamilton Houston Institute, Harvard Law School; Citizens

for Juvenile Justice; Coalition for Effective Public Safety;

Communities for People; Harvard Prison Legal Assistance Project;

4

Background. 1. Department classification process. In

2002, the National Institute of Corrections provided technical

assistance to the department to "revise and validate the

classification instrument for both males and females." The

final product, entitled "Objective Point Base Classification-

Reclassification Form" (objective classification form), consists

of "objectively defined criteria" that are "weighed, scored, and

organized into a valid and reliable classification instrument

accompanied by an operational manual for applying the instrument

to inmates in a systematic manner." 103 Code Mass. Regs.

§ 420.06 (2007).

On commitment, and annually thereafter, the department

determines the appropriate security placement level for each

prisoner through the classification process, called the

"Internal Classification Status Review." 103 Code Mass. Regs.

§§ 420.08, 420.09 (2007). The twin goals of the process are to

promote "public safety" and "the responsible reintegration of

offenders." 103 Code Mass. Regs. § 420.07 (2007). To achieve

these goals, the process "objectively assess[es] the inmate's

custody requirements and programmatic needs and match[es] those

to the appropriate security level in a manner that minimizes the

Justice Resource Institute; Massachusetts Association of

Criminal Defense Lawyers; Northeastern Prisoners' Assistance

Project; Prisoners' Legal Services of Massachusetts; Roca, Inc.;

Roxbury Youthworks, Inc.; Span, Inc.; Dr. Frank DiCataldo; Dr.

Robert Kinscherff; and Francine Sherman, Esq.

5

potential for escape, prison violence and inmate misconduct,"

by, inter alia, "[r]ationally using a reliable, validated set of

variables to support classification decisions." 103 Code Mass.

Regs. § 420.07(a). Based on the outcome of the classification

process, a prisoner is assigned to a maximum, medium, or minimum

security facility.

The classification process proceeds in several steps.

First, a correctional program officer (CPO) is responsible for

gathering the information required to score each variable

contained in the prisoner's objective classification form. 103

Code Mass. Regs. § 420.09.6 The CPO computes the total score and

compares it to a set of cut-off values to determine the

6

The variables and their scoring ranges are:

1. severity of current offense (possible score 1-6);

2. severity of convictions within the last four years

(possible score 0-6);

3. history of escapes or attempts to escape (possible

score 0-7);

4. history of prior institutional violence within the

last four years (possible score 0-5);

5. number of guilty disciplinary reports within the

last twelve months (possible score 0-4);

6. most severe guilty disciplinary report within the

last eighteen months (possible score 0-7);

7. age (possible scores -2, 0, 1); and

8. program participation or work assignment (possible

scores -2, -1, 0).

6

prisoner's preliminary custody level. Twelve or more points

qualify a prisoner for maximum security; seven to eleven points

qualify the prisoner for medium security; and six or fewer

points qualify the prisoner for minimum security.

After calculating the prisoner's objective score, the CPO

reviews the "non-discretionary" restrictions to determine if any

apply. If the prisoner is not subject to a nondiscretionary

restriction, the CPO then reviews the "discretionary overrides"

to determine if any apply. The CPO also schedules an interview

with the prisoner to discuss "matters related to classification

and custody status." 103 Code Mass. Regs. § 420.09(1)(f).

Following the review process, the CPO makes recommendations

and enters the results of the review into the department's

computerized inmate information system. 103 Code Mass. Regs.

§ 420.09(2), (3). The institution's director of classification

will review and then approve, modify, or deny the

recommendations made by the CPO. 103 Code Mass. Regs.

§ 420.09(2). Prisoners who disagree with the internal

classification status review results may appeal to the

superintendent. 103 Code Mass. Regs. § 420.09(3).

If a review of the inmate's objective classification form

and other factors set forth in the regulations indicate a need

for a change in placement to a higher or lower security level, a

hearing is conducted by a three-person classification board

7

consisting of institutional employees deemed qualified to make

custody level determinations. 103 Code Mass. Regs.

§§ 420.08(3)(a), 420.09(4). The prisoner appears before and

participates in the hearing with the classification board, which

reviews the prisoner's objective point base classification score

and any cited restrictions or overrides. 103 Code Mass. Regs.

§ 420.08(3)(e)-(f). The classification board members then vote,

with the board's final recommendation reflecting the majority

vote of the three-person panel, and the prisoner is notified of

the decision both orally at the time of the hearing and

subsequently in writing. 103 Code Mass. Regs. § 420.08(3)(f).

Prisoners may appeal the classification board's placement

decision to the Commissioner of Correction (commissioner) or her

designee. 103 Code Mass. Regs. § 420.08(3)(h).

State law provides that the purpose of classification

boards is to make recommendations for inmate classification.

G. L. c. 127, § 20A. Accordingly, the classification board's

decision is a "final recommendation to the [c]ommissioner," 103

Code Mass. Regs. § 420.08(3)(f), subject to approval or

rejection by the commissioner or her designee, who "shall

utilize the scored custody level and any applicable restrictions

or overrides to render a final placement decision." 103 Code

Mass. Regs. § 420.08(3)(i). The assistant deputy commissioner

of classification (assistant deputy commissioner) is one of

8

several department employees authorized by the commissioner to

act as her designee, and rendered classification decisions in

each of the petitioners' cases.

The department's classification system includes seven

discretionary override codes (P through V), any one of which may

be the basis for the commissioner or her designee to reject a

classification board's final recommendation. The definitional

section of the department's classification regulations, 103 Code

Mass. Regs. § 420.06, defines "[d]iscretionary [o]verride" as

"[a]n override of a scored custody level, based on the

professional judgment of trained classification staff.

Discretionary [o]verrides should account for [five to fifteen

per cent] of all custody level decisions and are detailed in the

Objective Classification Operational Manual." According to the

department, the final decision of the commissioner or her

designee balances the classification board's recommendation

against the interests of the public, the department, and the

inmate. The decision of the commissioner or her designee is

final and cannot be appealed. 103 Code Mass. Regs.

§ 420.08(3)(i).

2. 2014 amendment and department response. In 2013, this

court held that art. 26 of the Massachusetts Declaration of

Rights prohibits the imposition of a life sentence without

possibility of parole on a person younger than the age of

9

eighteen at the time of offense. Diatchenko I, 466 Mass. at

658-659. On July 25, 2014, the Legislature amended G. L.

c. 119, § 72B, the statute which provides the penalties for

juveniles convicted of murder, by inserting the following text

at the end of the statute:

"The department of correction shall not limit

access to programming and treatment including, but not

limited to, education, substance abuse, anger

management and vocational training for youthful

offenders, as defined in [G. L. c. 119, § 52], solely

because of their crimes or the duration of their

incarcerations. If the youthful offender qualifies for

placement in a minimum security correctional facility

based on objective measures determined by the

department, the placement shall not be categorically

barred based on a life sentence."

St. 2014, c. 189, § 2.

At the time the statute was amended, the department had a

categorical bar which specifically prevented persons serving

life sentences -- whether juveniles or adults at the time of

offense -- from being housed in minimum security. This

categorical bar, "Non-Discretionary Minimum Custody Code E"

(code E), stated the following: "Non-Discretionary Minimum

Custody Restriction Code E: 1st Degree Lifer -- 1st Degree

lifers are not to be considered for minimum or below." Code E's

prohibitive sweep extended to all inmates serving a life

sentence for murder in the first degree (designated by the

department as "1st Degree lifers" [lifers]), and did not

10

discriminate based on the inmate's age at the time of the

offense.

Also at the time the amended statute became effective, the

Department's "Non-Discretionary Minimum Custody Code F" (code F)

restriction prohibited offenders from being considered for

minimum security based on aspects of the crime. It stated the

following: "Non-Discretionary Minimum Custody Restriction Code

F: Inmates currently convicted of murder of a public official,

a crime while incarcerated or a crime involving loss of life are

not to be considered for minimum unless a positive parole

decision has been granted or are within two years of a defined

release date." Based on the language of code F, juvenile lifers

who committed a crime involving loss of life were restricted;

those lifers who had committed other offenses such as rape or

armed robbery were not restricted. Classification staff do not

have the authority to disregard restrictions.

In addition to these restrictions, the department then had,

and still has, amongst others, two discretionary overrides,

codes R and S, which take into account aspects of the crime or

an offender's criminal history warranting retention in higher

custody:

"Discretionary Over-Ride -- Higher Custody . . . Code

R: Nature of Offense/High Notoriety -- The facts or

notoriety of the offense presents a seriousness that

cannot be captured in the score.

11

" Code S: Prior Criminal History -- The criminal

history presents a seriousness that cannot be captured

in the score."

All of these codes -- E, F, R, and S -- were in effect on

July 25, 2014, the effective date of the amended statute.

The Legislature, recognizing that juveniles serving life

sentences were restricted from minimum security throughout their

incarcerations due to code E, specifically addressed this

"categorical bar" by enacting the amended statute: the

department could no longer bar juvenile homicide offenders from

minimum security categorically based on a life sentence, but

could consider them for minimum security if and when their

objective (point-based) score warranted such consideration. See

G. L. c. 119, § 72B.

On September 5, 2014, then Acting Commissioner Thomas

Dickhaut issued a memorandum implementing both the holding in

Diatchenko I and § 72B. The memorandum stated that codes E and

F could not be used for juvenile first- and second-degree

homicide offenders, and those who had those codes would need to

be reclassified.

3. The petitioners. Timothy Deal, now age thirty-one, was

convicted of murder in the second degree for an offense

committed in 2002, when he was the age of seventeen. Sentenced

to life imprisonment, Deal will be parole eligible as a matter

of law as of January 29, 2017, when he will have been

12

incarcerated for fifteen years. He is currently imprisoned at

the Massachusetts Correctional Institution at Concord, a medium

security facility. On September 23, 2014, a classification

board unanimously voted that Deal be placed in a minimum

security facility. The board noted that Deal had an objective

classification score of four, had "[p]ositive housing/work

evaluations," and was "program compliant." Seven months later,

the assistant deputy commissioner rejected the classification

board's recommendation, citing "code R," i.e., "serious nature

of offense."

Siegfried Golston, now age fifty-eight, was convicted of

murder in the first degree in 1976 for an offense committed when

he was the age of seventeen. Originally sentenced to life

without the possibility of parole, Golston has been imprisoned

for forty years, mostly (and currently) at Old Colony

Correctional Center (Old Colony), a medium security facility.

For many years, Golston's objective point base classification

scores have qualified him for placement in minimum security. In

2014, a classification board again determined that Golston

qualified for minimum security and recommended that he be so

placed, noting his objective classification score of two,

positive institutional adjustment, and program participation.

The assistant deputy commissioner rejected the recommendation,

citing code R: "The facts or notoriety of the offense presents

13

a seriousness that cannot be captured in the score." After

becoming eligible for parole by virtue of Diatchenko I, Golston

was considered for parole at a hearing held on January 29, 2015.

On May 1, 2015, the parole board denied Golston's application

for parole "with a review in two years from the date of the

hearing."

Jeffrey Roberio, now age forty-seven, was convicted of

murder in the first degree in 1987, for an offense committed

when he was the age of seventeen. Originally sentenced to life

imprisonment without the possibility of parole, Roberio has been

incarcerated for almost thirty years, mostly (and currently) at

Old Colony. On October 9, 2014, a classification board

recommended by a unanimous vote that Roberio be placed in a

minimum security facility based on his objective classification

score of three, his "positive institutional adjustment," and his

"program participation." Four months later, the assistant

deputy commissioner rejected the classification board's

recommendation, as follows: "Serious nature of offense; several

disciplinary reports throughout incarceration noted. Override

code R and T;[7] attorney letter and inmate appeal reviewed."

After becoming eligible for parole as a result of Diatchenko I,

7

"Discretionary Over-ride -- Higher Custody . . . Code T"

provides: " Institutional Negative Adjustment -- The

institutional adjustment presents a seriousness that cannot be

captured in the score."

14

Roberio was considered for parole at a hearing held on June 25,

2015. On November 4, 2015, the parole board denied Roberio's

request for release on parole "with a review in five years from

the date of the hearing," i.e., June 25, 2020.

4. Procedural history. As of the effective date of the

Legislature's amendment of § 72B (July 25, 2014), the

petitioners each were "youthful offender[s]," see Commonwealth

v. Okoro, 471 Mass. 51, 62 n.18, who "qualifie[d] for placement

in a minimum security correctional facility based on objective

measures determined by the department." G. L. c. 119, § 72B, as

amended by St. 2014, c. 189, § 2. However, in each case, the

assistant deputy commissioner invoked one or more of the

department's "discretionary overrides" to reject the

petitioners' respective requests for placement in minimum

security (Deal, rejected on the basis of code R; Golston,

rejected on the basis of code R; Roberio, rejected on the basis

of codes R and T).

Because the assistant deputy commissioner's use of

discretionary overrides to prevent the petitioners' placement in

a minimum security facility is "final and cannot be appealed,"

103 Code Mass. Regs. § 420.08(3)(i), the petitioners filed the

instant petition for relief in July, 2015, seeking relief

pursuant to G. L. c. 211, § 3, and G. L. c. 231A, alleging that

the department's practice of categorically excluding all

15

objectively qualifying juvenile homicide offenders who have not

received a positive parole vote from minimum security placement

contravenes the 2014 amendment to G. L. c. 119, § 72B, and

violates the petitioners' "meaningful opportunity for release

based on demonstrated maturity and rehabilitation," Diatchenko

II, 471 Mass. at 20, quoting Graham, 560 U.S. at 75, as

guaranteed by the Eighth and Fourteenth Amendments and arts. 12

and 26.

In October, 2015, the department filed an opposition to the

petition, asserting (1) that the commissioner or her designee

has discretion to reject a juvenile homicide offender's request

to be placed in a minimum security facility; (2) that department

"practice" forbids any prisoner serving a life sentence with a

possibility of parole from being placed in minimum security

"unless and until" the prisoner has obtained a positive parole

vote, and (3) that the department treats "juvenile murderers"

who wish to be placed in a minimum security facility "no

differently" from adult offenders, notwithstanding the

Legislature's 2014 amendment to §72B.

Following the filing of a response by the petitioners, and

two hearings before the single justice, the matter was reserved

and reported to the full court.

Discussion. The petitioners argue that the department's

practice of requiring a positive parole vote prior to placing

16

juvenile homicide offenders in minimum security contravenes the

plain language of § 72B. In their view, the "qualifying" event

for minimum security placement is the inmate's objective

classification score. Thus, by requiring a positive parole

vote, the department has added a condition to the statute that

the Legislature did not intend. Moreover, the petitioners

argue, where the positive parole vote requirement is not a

component of a statute, regulation, or the objective point base

classification system, the department may not invoke

discretionary placement restrictions to effectuate a practice

otherwise proscribed by § 72B. The petitioners also assert that

the department's stated reasons for requiring juvenile homicide

offenders to receive a positive parole vote prior to placement

in a minimum security facility are not supported by the record.8

Lastly, they argue that the department's practices violate the

petitioners' constitutional right to a "meaningful opportunity"

to obtain release on parole, because the parole board will not

grant a parole permit to a juvenile homicide offender who has

not successfully proved himself or herself in a minimum security

facility.

The respondents counter that the petitioners' reading of

§ 72B conflates the provisions of the statute and thus

8

Because we conclude that the classification practice of

the department violates G. L. c. 119, § 72B, we do not address

this contention.

17

misinterprets what it requires. The department also

acknowledges that it is department "practice" to "not permit

those serving a life sentence to be housed in minimum security

unless and until they receive a positive parole vote."

According to the respondents, this practice has been in place

since 2006, and is based on the department's efforts to balance

resource allocation (reserving beds in minimum security

facilities for those inmates who have dates of discharge to the

community) and inmate risk management (preventing escapes and

further crimes while on escape). Despite this admitted

practice, the respondents contend that juvenile homicide

offenders are being provided with a "meaningful opportunity to

obtain parole release based on demonstrated maturity and

rehabilitation" because several juvenile homicide offenders have

received a positive parole vote and been placed in minimum

security facilities.9

1. Section 72B. The parties' dispute over the

department's classification practices turns largely on their

divergent interpretations of G. L. c. 119, § 72B. Accordingly,

we begin our analysis by considering the language of the

statute. "[S]tatutory language should be given effect

9

As discussed infra, since Diatchenko v. District Attorney

of Suffolk County, 466 Mass. 655 (2013) (Diatchenko I), was

decided, eleven juvenile homicide offenders originally sentenced

to life without the possibility of parole have been granted

parole by the parole board.

18

consistent with its plain meaning and in light of the aim of the

Legislature unless to do so would achieve an illogical result"

(citation omitted). Commonwealth v. Parent, 465 Mass. 395, 409

(2013). "Courts must ascertain the intent of a statute from all

its parts and from the subject matter to which it relates, and

courts must interpret the statute so as to render the

legislation effective, consonant with reason and common sense."

Commonwealth v. George W. Prescott Publ. Co., 463 Mass. 258, 264

(2012).

Section 72B contains two separate decrees: first, the

department may not limit youthful offenders' access to certain

programming solely because of their crimes or the duration of

their incarceration; and second, the department may not

categorically bar, based on a life sentence, the placement of a

youthful offender in minimum security where the individual

qualifies for such placement based on objective measures. See

G. L. c. 119, § 72B.

Quoting our decision in Okoro, 471 Mass. at 62, the

petitioners ask us to interpret § 72B as requiring the

department to ensure "that youthful offenders who are

incarcerated are not restricted in their ability to take part in

educational and treatment programs, or to be placed in a minimum

security facility, solely because of the nature of their

criminal convictions or the length of their sentences" (footnote

19

omitted). This language was used in Okoro merely to summarize

the statute, and not to interpret it definitively. Id. The

petitioners' reading of it, however, would import the mandate of

the first statutory provision into the second, and prohibit the

department from considering the petitioners' crimes or duration

of their incarceration in rendering a classification decision.

We disagree, and conclude that the criteria in the first

sentence -- the inmate's crime or duration of their

incarceration -- do not carry over into the second sentence.

"[W]here the Legislature has carefully employed a term in one

place and excluded it in another, it should not be implied where

excluded" (citation omitted). Commissioner of Correction v.

Superior Court Dep't of the Trial Court for the County of

Worcester, 446 Mass. 123, 126 (2006). We cannot ignore the

Legislature's use of different criteria in each sentence, and do

not read the statute to provide that the department may not

consider a youthful offender's crimes or the duration of his or

her sentence in determining whether that individual qualifies

for placement in minimum security.

The language of § 72B plainly states that the department

may not absolutely bar juvenile homicide offenders from

placement in minimum security housing based on the fact that

20

they are serving a life sentence.10 We reject the petitioners'

argument that an individual's receipt of an objective

classification score qualifying for minimum security

classification requires the department to so classify that

individual. It is apparent from regulatory framework that the

initial objective classification score is a recommendation, and

not a mandate, and thus merely qualifies an inmate for

consideration for classification in minimum security.

It follows, then, that § 72B requires the department to

make an individualized determination of a juvenile homicide

offender's suitability for placement in minimum security.11 As

the petitioners concede, however, the department's consideration

10

Although we need not resort to extrinsic aids to discern

the Legislature's intent, the legislative history of G. L.

c. 119, § 72B, also supports our interpretation. An earlier

version of the bill stated: "If the department of correction

and the department of youth services objectively determine that

the person qualifies for placement in a minimum security

correctional facility, the placement shall not be prohibited on

the nature or status of the offense or the age of the person at

the time of the commission of the crime." See 2014 Senate Doc.

No. 2258, § 2. By removing the terms "nature or status of the

offense" and "age of the person at the time of the commission of

the crime," it appears that the Legislature did not intend to

prohibit the department from considering these factors in its

classification determinations.

11

This conclusion is consistent with the department's own

regulations, which emphasize that classification is an

individualized process. See 103 Code Mass. Regs. § 420.08

(classification process "shall provide an opportunity for the

reception staff members to become acquainted with each inmate

through individual assessment, testing, and structured

interviews").

21

of individuals may include the measures embodied in

discretionary override codes R and S, that is, the facts of the

inmate's crime or the prior criminal history of a juvenile

homicide offender insofar as these criteria bear on their

suitability for classification in minimum security. Moreover,

by permitting the department to consider such factors, the

Legislature ensured that the twin goals of the classification

process -- promoting "public safety" and "the responsible

reintegration of offenders," see 103 Code Mass. Regs. § 420.07 -

- are furthered, rather than undermined.

2. Department practice. Having concluded that § 72B

requires the department to make individualized, case-by-case

classification determinations for juvenile homicide offenders,

we consider whether the department's practice of requiring a

positive parole vote prior to placement in minimum security, as

well as its use of codes R and S to effectuate this practice,

violates the language of the statute. We conclude that it does

because it fails to undertake the type of individualized

evaluation contemplated by the statute.

Section 72B prohibits the department from categorically

barring a juvenile homicide offender based on a life sentence,

and requires it to consider them for minimum security if and

when their objective (point-based) score warrants such

consideration. As discussed, such consideration must take place

22

on a case-by-case basis. However, by the department's own

stated practice, the petitioners have not received an

individualized evaluation as to their suitability for minimum

security classification because the department will not consider

them unless and until they receive a positive parole vote.

Additionally, although the petitioners concede that the

department may consider the criteria embodied in discretionary

override codes R and S, in rendering its decision, we agree with

the petitioners that the record supports the conclusion that the

department is currently using the codes solely as a means to

effectuate its policy of requiring a positive parole vote.

Indeed, the department acknowledges that the same juvenile

offender whose placement in minimum security is blocked on the

basis of a discretionary override would otherwise become

transferable to minimum security on receipt of a positive parole

vote.

The department's current classification practice therefore

violates § 72B because it precludes the petitioners from being

given the individualized consideration for minimum security due

to them based on the language of the statute and the

department's own regulations. We note that, according to the

objective point base classification manual, a "rationale for any

discretionary override MUST be provided" (emphasis in original).

We agree with the petitioners that the provided rationale must

23

go beyond the mere recitation of the discretionary override.

Otherwise, the use of the codes to block objectively qualifying

youthful offenders from minimum security who have not received a

positive parole vote amounts to a categorical bar based on a

life sentence, as proscribed by § 72B.

Generally speaking, the classification process vests the

commissioner or her designee with broad discretion to classify

inmates. See Hastings v. Commissioner of Correction, 424 Mass.

46, 49-50 (1997). Therefore, nothing in this opinion should be

construed to prohibit the department from considering a variety

of factors in reaching a classification decision, including

considerations such as public safety and resource allocation.

However, in light of the language and purpose of § 72B, we

conclude that the department must memorialize its rationale for

denying placement in minimum security in writing, and may not

preclude objectively qualifying juvenile homicide offenders from

being considered for minimum security solely because they have

not received a positive parole vote. Nor may the department use

discretionary override codes R and S to effectuate this policy.

Instead, the department must individually consider each inmate's

suitability for classification in minimum security and provide a

written explanation for its decision.12

12

This case is before us on the reservation and report of

the single justice, pursuant to our general superintendence

24

3. Constitutional challenges. The petitioners also

contend that the department's practice of not classifying

juvenile homicide offenders to minimum security unless and until

they receive a positive parole vote violates the petitioners'

constitutionally protected right to a meaningful opportunity to

obtain release on parole.13 Since December, 2013, when

powers under G. L. c. 211, § 3. Nothing in this opinion should

be interpreted as creating a right of judicial review of an

individual decision by the commissioner or her designee denying

classification in minimum security, which is final and cannot be

appealed. See 103 Code Mass. Regs. § 420.08(3)(i).

13

In their petition to the single justice, the petitioners

argued that the department's classification practices violate

juvenile homicide offenders' constitutionally protected right to

a meaningful opportunity for parole release based on

demonstrated maturity and rehabilitation as guaranteed by the

Eighth and Fourteenth Amendments to the United States

Constitution and arts. 26 and 12 of the Massachusetts

Declaration of Rights. The single justice used the same

language in reporting the matter to the full court.

Our prior decisions addressing the right to a "meaningful

opportunity to obtain release" have not discussed the right's

origin as deriving from the language of either the Fourteenth

Amendment or art. 12, but rather from the prohibition against

cruel and unusual punishments in both art. 26 of the

Massachusetts Declaration of rights and the Eighth Amendment.

See, e.g., Diatchenko I, 466 Mass. at 668. The petitioners do

not make any argument -- in either their petition below or in

their appellate brief -- as to whether either the Fourteenth

Amendment or art. 12 creates a special liberty interest for

juvenile homicide offenders serving life sentences with a

possibility of parole. Accordingly, our discussion here

addresses an individual's right to a "meaningful opportunity to

obtain release" only as provided by the Eighth Amendment and

art. 26. See Schulman v. Attorney Gen., 447 Mass. 189, 199 n.2

(2006) ("issues not briefed and argued should not be decided,

especially when a question of constitutional law . . . is

involved").

25

Diatchenko I was decided, eleven juvenile homicide offenders

originally sentenced to life without the possibility of parole

have been granted parole by the parole board. In each case,

these individuals were not immediately released to the community

on a parole permit, but rather were required to meet various

conditions, including having spent a specified period of

incident-free time in a minimum security facility. The

petitioners argue that the department's practice of prohibiting

placement in minimum security unless and until a juvenile

homicide offender receives a positive parole vote effectively

extends the life sentences of juvenile homicide offenders who

are eligible for parole by delaying indefinitely their ability

to begin the period of time that they will be required to serve

in a minimum security facility. This, in the petitioners' view,

prevents juvenile homicide offenders from "prov[ing] themselves

in minimum," which in turn prevents such juveniles from

obtaining a meaningful hearing in the first place. We disagree

that any constitutionally protected interest is implicated by

the department's practice.

In Diatchenko I, we held that the mandatory imposition of a

life sentence without parole violates the prohibition against

cruel and unusual punishments in both art. 26 and the Eighth

Amendment. Diatchenko I, 466 Mass. at 668, citing Miller v.

Alabama, 132 S. Ct. 2455, 2467-2469 (2012). We also held that a

26

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. Diatchenko I, supra at 674, quoting Graham, 560 U.S. at

75.

In Diatchenko II, we further determined that, in order to

ensure that a juvenile homicide offender's opportunity for

release through parole is meaningful, he or she must, in

connection with an initial petition for release before the

parole board, be afforded certain procedural protections,

including access to counsel, access to funds for counsel and for

expert witnesses if he or she is indigent, and, in limited

circumstances, an opportunity for judicial review of the

decision on their parole applications. Diatchenko II, 471 Mass.

at 14. It appears that the petitioners now seek to expand this

right further by asking the court to hold that juvenile homicide

offenders have a constitutionally protected interest in being

released to the community at the conclusion of their minimum

duration of confinement. We decline to do so.

There is "no constitutional or inherent right of a

convicted person to be conditionally released before the

expiration of a valid sentence." Greenholtz v. Inmates of the

27

Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979). Accord

Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836 (1996).

Accordingly, in Diatchenko I, 466 Mass. at 674, we made clear

that "[o]ur decision should not be construed to suggest that

individuals who are under the age of eighteen when they commit

murder . . . should be paroled once they have served a

statutorily designated portion of their sentences." The

petitioners' argument, however, amounts to a request to the

court to find that juvenile homicide offenders have a

constitutionally protected expectation to be released to the

community after serving the statutorily prescribed portion of

their sentences. The case law is clear, however, that no such

expectation exists. See id. See also Graham, 560 U.S. at 75

(juvenile homicide offender is afforded "meaningful opportunity

to obtain release" insofar as Eighth Amendment "prohibit[s]

States from making the judgment at the outset that those

offenders never will be fit to reenter society"; however, "[t]he

Eighth Amendment does not foreclose the possibility that [a

juvenile convicted of murder in the first degree] will remain

behind bars for life" [emphasis added]).

Moreover, there is nothing in the record before us to

indicate that the parole board considers a juvenile homicide

offender's security level in determining parole suitability, as

evidenced in the criteria of the parole board in issuing parole

28

decisions for lifers, as well as the written decisions of the

parole board for juvenile homicide offenders. See Parole Board,

Guidelines for Life Sentence Decisions,

http://www.mass.gov/eopss/agencies/parole-board/guidelines-for-

life-sentence-decisions.html [https://perma.cc/F6NZ-WUC3]. To

the contrary, the decision to deny parole to petitioner Golston

indicates that the parole board denied parole on the bases of

Golston's lack of specific anger management and violence

reduction programming, as well as the parole board's finding

that Golston's parole plan was formative and not yet viable.

Similarly, the decision as to petitioner Roberio indicates that

the parole board denied parole because Roberio had failed to

pursue rehabilitative programming to address his issues of

substance abuse, anger, and violence, leaving the board with a

"serious concern of whether he still presents a risk of harm to

the community, and whether his release is compatible with the

best interests of society."14

Accordingly, we reject the petitioners' constitutional

challenge to the department's practice. Although the department

may not continue to bar consideration of juvenile homicide

offenders from classification in minimum security solely on the

basis of their failure to receive a positive parole vote, the

14

The petitioner Timothy Deal will not be eligible for

parole until 2017.

29

practice does not amount to a constitutional violation because

there is no constitutionally protected expectation that a

juvenile homicide offender will be released to the community

after serving a statutorily prescribed portion of his or her

sentence. See Diatchenko I, 466 Mass. at 674.

Conclusion. For these reasons, we conclude that the

department's current practice of using discretionary overrides

to block objectively qualifying juvenile homicide offenders from

placement in a minimum security facility unless and until the

juvenile has received a positive parole vote contravenes the

language and purpose of G. L. c. 119, § 72B, because it

forecloses the individualized consideration of an inmate's

suitability for classification in minimum security. The matter

is remanded to the county court, where the single justice will

enter a judgment consistent with this opinion.

So ordered.