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Deal v. Commissioner of Correction

Supreme Judicial Court of Massachusetts, Suffolk

August 25, 2016

TIMOTHY DEAL & others [1]
v.
COMMISSIONER OF CORRECTION & another. [2]

          Heard: May 3, 2016.

         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.

          David 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. [3]

          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 offenders[4] 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 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]

         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 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 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 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 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 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 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 ...


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