While juvenile justice issues have played a major role in the legislature in the past year, they have been a part of the BBA’s agenda for decades. The BBA has long supported bills abolishing juvenile life without parole sentences, as Massachusetts over time became one of the last states permitting these sentences for youths as young as 14. In early December, the BBA’s Council approved principles drafted by our Criminal Law and Delivery of Legal Services Sections opposing juvenile life without parole sentences.
Then, in late December, there was a sudden breakthrough in the case of Diatchenko vs. District Attorney for the District & Others, in which the SJC held that juvenile life without parole sentences were unconstitutional following the US Supreme Court holding in Miller v. Alabama that juvenile life without parole sentences violate the 8th Amendment as “cruel and unusual” punishments. As a result, roughly 63 inmates became parole eligible for the first time. However, the Diatchenko case left it up to the legislature to determine how to craft sentences for juveniles convicted of first degree murder, asking only that they be given a “meaningful opportunity to be considered for parole suitability.”
From that point on, the legislature has grappled with how to handle this situation. A number of bills emerged in the first few months of 2013. When the Joint Committee on the Judiciary held a hearing on juvenile justice issues, we were there. There was plenty of debate at the hearing on a multitude of bills calling for anywhere from 10 to 35 years of jail time before juveniles convicted of first degree murder could be eligible for parole. The bills included many provisions on parole considerations, but listening to the testimony, the following issues came to the fore for legislative consideration:
- Fairness – Legislators and panelists alike raised fairness considerations for victims and their families, society generally and specific communities, as well as the defendant.
- Confidence in the justice system – Those advocating for longer parole eligibility terms touted their confidence in the justice system, stating that only juveniles who committed the most heinous crimes were sentenced to life and thus merited a longer time before parole eligibility. Those advocating for shorter parole eligibility terms expressed confidence in the parole board’s ability to determine whether a person was adequately rehabilitated before potential release. They stressed that parole eligibility did not equate to release.
- Potential for rehabilitation – Testifiers advocating for shorter parole eligibility terms cautioned against the mere warehousing of convicts and expressed concern that juveniles sentenced to life with long periods without parole eligibility would suffer due to lack of program and rehabilitative opportunities (priority is given to those closer to potential release) and the challenge of staying in touch with family and friends for such an extended period of time, a parole board consideration.
Now, a couple of months later, the legislature is primed to address all of these concerns. The House passed a juvenile justice bill, H4184, on June 18 by a vote of 127-16. The bill called for parole eligibility for juveniles convicted of first degree murder in 20-25 years, specifying that those convicted of first degree murders that were premeditated or committed with extreme atrocity or cruelty would be parole eligible after 25-30 years. A few weeks later on July 8, the Senate passed its own juvenile justice bill, S2246, by a vote of 37-2. The Senate version granted parole eligibility in 20-30 years, specifying that a juvenile convicted of first degree murder committed with extreme atrocity or cruelty would only be parole eligible after 30 years.
A Conference Committee consisting of Representatives Christopher Markey, Garrett Bradley, and Bradford Hill and Senators William Brownsberger, Jennifer Flanagan, and Bruce Tarr then drafted a consensus bill, H4307. This version calls for general parole eligibility for juveniles convicted of first degree murder in 20-30 years. It requires 30 years of jail time for those convicted of murders of extreme atrocity or cruelty and 25-30 years for juveniles convicted of first degree murder with deliberate premeditation and malice aforethought.
Here is how the three bills break down:
The consensus bill also creates a commission to study and determine the usefulness and practicality of using a developmental evaluation process for juvenile first degree murder cases. The goal of the evaluation process would be to determine the developmental progress and abilities of the juvenile offender at the time of sentencing and parole eligibility. The commission is tasked with establishing factors to analyze in determining the developmental progress of a juvenile offender.
The consensus bill will now go to each house of the legislature for their final consideration. We will continue to monitor this and all the other bills of interest to our members in these final weeks of the legislative session.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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