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Deal v. Commissioner of Correction

Supreme Judicial Court of Massachusetts, Suffolk

November 9, 2017

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

          Heard: April 3, 2017.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2016. The case was reported by Botsford, J.

          Barbara Kaban for the petitioner.

          Benjamin H. Keehn, Committee for Public Counsel Services (Dulcineia Goncalves, Committee for Public Counsel Services, also present) for the intervener.

          Charles W. Anderson, Jr., for the respondent.

          James R. Pingeon, for Prisoners' Legal Services of Massachusetts, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ. [2]

          BUDD, J.

         The Department of Correction (department) has adopted procedures to determine, on a periodic basis, the security classification of every inmate, including juvenile homicide offenders.[3]Approximately one year ago we examined the department's then procedure used to classify juvenile homicide offenders, and concluded that, as pertaining to that cohort, the procedure violated G. L. c. 119, § 72B, as amended by St. 2014, c. 189, § 2, which prohibits the department from categorically barring juvenile homicide offenders from being placed in minimum security facilities. See Deal v. Commissioner of Correction, 475 Mass. 307, 312 (2016) (Deal I). The department has since developed a modified process for classifying juvenile homicide offenders, which the petitioner and intervener in this case (collectively, petitioners) -- juvenile homicide offenders who also were petitioners in Deal I -- continue to challenge.

         Applying our holding in Deal I to these updated procedures, we conclude that the department still falls short of the requirements of § 72B. Given that the department continues to block the majority of objectively qualifying juvenile homicide offenders from placement in a minimum security facility, its written explanations for doing so do not go far enough to ensure that the classification procedure is actually individualized and that no juvenile homicide offender is categorically barred from classification to a minimum security facility. We also conclude that the department must make a recording of the initial classification hearing and make that recording (or a transcription of that recording) available at any subsequent stage of review so that the final classification decision may include the same level of individual evaluation. We reject, however, the petitioners' claim that § 72B requires broader procedural protections in the form of a right to the presence of counsel at classification hearings and seven days' notice of such hearings, rather than the forty-eight hours they currently receive.[4] 103 Code Mass. Regs. § 420.08(3)(c) (2007).

         Background.

          In Miller v. Alabama, 567 U.S. 460, 465 (2012), the United States Supreme Court held that "mandatory life without parole for those under the age of [eighteen] at the time of their crimes violates the . . . prohibition on 'cruel and unusual punishments [under the Eighth Amendment to the United States Constitution].'" One and one-half years later, in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 674 (2013) (Diatchenko I), we went a step further under art. 26 of the Massachusetts Declaration of Rights and held that it was unconstitutional for juveniles convicted of murder in the first degree to be sentenced to life without parole and that they must be given a "meaningful opportunity to obtain release [on parole] based on demonstrated maturity and rehabilitation."

         After our opinion in Diatchenko I, the Legislature in 2014 amended G. L. c. 119, § 72B, by adding the following language:

"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 [§] 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.

         The last sentence of the amendment concerns the annual classification process in which the department classifies every inmate, including juvenile homicide offenders, as high, medium, or low security risks, to be placed in (or transferred to) a corresponding maximum, medium, or minimum security facility. The classification process seeks to "objectively assess the inmate's custody requirements and programmatic needs and match 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) (2007).

         According to the department's Male Objective Point Base Classification Manual (eff. Jan. 27, 2014) (manual), the variables 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 ...

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