Heard: April 7, 2016.
action commenced in the Supreme Judicial Court for the county
of Suffolk on November 20, 2015.
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, &
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. See Commonwealth v.
Watson, 388 Mass. 536, 548 (1983), §_.C.,
393 Mass. 297 (1984).
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). 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.
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). 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.
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.
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.
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
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., ...