Heard: April 3, 2017.
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.
R. Pingeon, for Prisoners' Legal Services of
Massachusetts, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher,
Department of Correction (department) has adopted procedures
to determine, on a periodic basis, the security
classification of every inmate, including juvenile homicide
offenders.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.
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. 103 Code Mass. Regs.
§ 420.08(3)(c) (2007).
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."
our opinion in Diatchenko I, the Legislature in 2014
amended G. L. c. 119, § 72B, by adding the following
"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
St. 2014 c. 189, § 2.
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)
to the department's Male Objective Point Base
Classification Manual (eff. Jan. 27, 2014) (manual), the
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
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 ...