Heard: May 3, 2016.
action commenced in the Supreme Judicial Court for the
county of Suffolk on July 14, 2015.
case was reported by Botsford, J.
Barbara Kaban (Benjamin H. Keehn, Committee for Public
Counsel Services, & James W. Rosseel with her) for the
Charles Anderson, Jr., for the respondents.
J. Apfel & Eileen L. Morrison, for American Civil
Liberties Union of Massachusetts & others, amici curiae,
submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ. 
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
offenders 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.
issue before us is whether the department's practice of
using "discretionary override codes" to block
qualifying 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.
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
Department classification process.
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
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 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.
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. The CPO computes
the total score and compares it to a set of cut-off values to
determine the 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.
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. §
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).
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 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) .
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 several department employees
authorized by the commissioner to act as her designee, and
rendered classification decisions in each of 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).
2014 amendment and department response.
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 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
"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
St. 2014, c. 189, § 2.
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 discriminate based on the inmate's age at the
time of the offense.
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.
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