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Clay v. Massachusetts Parole Board

Supreme Judicial Court of Massachusetts, Suffolk

August 12, 2016


          Heard: April 7, 2016.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on November 20, 2015.

         The case was reported by Botsford, J.

          Jeffrey Harris for the petitioner. Jennifer K. Zalnasky, Assistant Attorney General, for the respondent.

          Barbara Kaban, for Youth Advocacy Division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.

          Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]

          CORDY, J.

         In 1981, the petitioner, Frederick Clay, was convicted of murder in the first degree. The victim was a Boston taxicab driver. When the crime was committed in 1979, Clay was a juvenile. He was sentenced to serve the statutorily mandated term of life in prison without the possibility of parole, see G. L. c. 265, § 2, which conviction and sentence we affirmed on appeal.[2] See Commonwealth v. Watson, 388 Mass. 536, 548 (1983), §_.C., 393 Mass. 297 (1984).

         More than thirty years later, we determined that G. L. c. 265, § 2, which mandated Clay's sentence of life in prison without the possibility of parole, was invalid as applied to those, like Clay, who were juveniles when they committed murder in the first degree. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 667 (2013), S_.C., 471 Mass. 12 (2015), adopting Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012) (Eighth Amendment to United States Constitution and art. 26 of Massachusetts Declaration of Rights forbid sentencing schemes mandating life in prison without possibility of parole for juvenile offenders).[3] The result was that any juvenile offender who had been convicted of murder in the first degree, including Clay, became eligible for parole within sixty days before the expiration of fifteen years of his or her life sentence. See Diatchenko, supra at 666, 673; Commonwealth v. Brown, 466 Mass. 676, 689 (2013) (under doctrine of severability, statute read "as if omitting the exception for parole eligibility for murder in the first degree when applying the statute to juveniles"). See also G. L. c. 127, § 133A.

         Clay, having already served more than fifteen years of his sentence, became immediately eligible to be considered for parole and appeared before the parole board on May 21, 2015. Of the seven participating members on the panel, four voted in favor of parole. The parole board, however, was "unable to grant a parole permit" because, pursuant to a 2012 amendment to G. L. c. 127, § 133A (§ 133A), a parole permit can only be accomplished "by a vote of two-thirds" of the parole board members on the panel. See G. L. c. 127, § 133A, as amended through St. 2012, c. 192, § 39 (supermajority amendment).[4] Prior to the adoption of the supermajority amendment, § 133A required only "a vote of a majority" of the parole board members on the panel. See G. L. c. 127, § 133A, as amended through St. 1973, c. 278. The previous version of § 133A was in effect in 1979 when Clay committed his crime.

         Clay requested an administrative appeal from the decision of the parole board, arguing that the application of the supermajority amendment to his parole determination, rather than the version that was in effect at the time he committed the crime, operated as an unconstitutional ex post facto violation. See art. I, §§ 9, 10, of the United States Constitution; art. 24 of the Massachusetts Declaration of Rights. The request was denied. Clay then filed a petition for declaratory relief, pursuant to G. L. c. 231A, or relief in the nature of certiorari under G. L. c. 249, § 4, in the county court. A single justice reserved and reported the case for determination by the full court.

         We now consider whether (1) the amended § 133A, imposing a supermajority requirement on decisions to grant parole, was applied retroactively to Clay; and, if it was, (2) whether such retroactive application is an ex post facto violation, either on its face or as applied to Clay. After answering the first question in the affirmative, we conclude that, because Clay is able to show, by presenting evidence in the form of a parole board decision, that he received affirmative votes from a majority of the members but was denied parole under the supermajority amendment, such amendment is, as applied to him, an ex post facto violation.[5]


         The United States Constitution and the Massachusetts Declaration of Rights provide protection from the operation of ex post facto laws. See Commonwealth v. Kelley, 411 Mass. 212, 214 (1991). See also Police Pep't of Salem v. Sullivan, 460 Mass. 637, 644 n.ll (2011) ("We interpret the ex post facto clause of the State Constitution to be coextensive with that of the Federal Constitution"). The ex post facto clause is intended to prohibit laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990). See Opinion of the Justices, 423 Mass. 1201, 1225 (1996) ("Poes the statute change[] the punishment, and inflict [] a greater punishment, than the law annexed to the crime, when committed?" [quotation omitted]). One category of prohibited laws are those that, when applied retroactively, "enhance[] the possible penalty for a crime committed when an earlier version of the statute was in effect." Brown, 466 Mass. at 689 n.10, citing Calder v. Bull, 3 U.S. (3 Pall.) 386, 390 (1798). Retroactive changes that apply to the denial of parole are a proper subject for application of the ex post facto clause. 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); Fender v. Thompson, 883 F.2d 303, 305 (4th Cir. 1989) ("parole eligibility is part of the law annexed to the crime at the time of a person's offense" [citation omitted]); Brown, supra at 688-689; Stewart v. Chairman of the Mass. Parole Bd., 35 Mass.App.Ct. 843, 845 (1994). See also Weaver v. Graham, 450 U.S. 24, 29-30 (1981) (statute presenting significant risk of depriving individual of opportunity to shorten time in prison may also violate ex post facto doctrine); United States ex rel. Steigler v. Board of Parole, 501 F.Supp. 1077, 1080 (D. Del. 1980) ("the possibility of parole is part and parcel of the punishment for a crime").

         To prevail on an ex post facto claim, a litigant "must show both [(1)] that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and [(2)] that it raises the penalty from whatever the law provided when he acted." Doe, Sex Offender Registry Bd. No. 10800v. Sex Offender Registry Bd., ...

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