Massachusetts State House.
Boston Bar Journal

Youth Matters: Resentencing and Parole after Commonwealth v. Mattis

May 17, 2024
| Spring 2024 Vol. 68 #2

by Afton M. Templin & Mara Voukydis

In January of this year, a 4-3 majority of the Supreme Judicial Court decided Commonwealth v. Mattis, 493 Mass. 216 (2024), extending the holding of Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (“Diatchenko I”), which prohibited a sentence of life without parole on juveniles, to defendants who were eighteen, nineteen, or twenty years old1 at the time of the offense. The SJC, “based on precedent and contemporary standards of decency in the Commonwealth and elsewhere,”2 concluded that imposing such a sentence on these emerging adults violated Massachusetts Declaration of Rights Article 26. “When it comes to determining whether a punishment is constitutional under either the Eighth Amendment to the United States Constitution or art. 26 of the Massachusetts Declaration of Rights, youth matters.”3

As a remedy, similarly to Diatchenko I, the SJC invalidated the portions of G.L. c. 265, § 2 (a) and G.L. c. 127, § 133A that deny parole to defendants ages eighteen to twenty. The SJC then “look[ed] to the next-most severe sentence under the sentencing scheme to determine the floor of parole eligibility.”4 The majority ended its opinion with the same cautionary language it used to conclude Diatchenko I a decade ago: “[b]y providing an opportunity for parole,” the SJC was not suggesting that emerging adults “should be paroled once they have served a statutorily designated portion of their sentences.”5 Constitutional requirements command only that these individuals “be granted ‘a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ before the Massachusetts parole board, who will ‘evaluate the circumstances surrounding the commission of the crime, including the age of the offender, together with all relevant information pertaining to the offender’s character and actions during the intervening years since conviction.’”6

As a result of the Mattis decision, approximately 200 individuals are now serving parole-eligible life sentences. Pursuant to Diatchenko v. District Att’y for the Suffolk District, 471 Mass. 12 (2015) (“Diatchenko II”), these individuals are eligible for the appointment of counsel. Shortly after the SJC decided Mattis, the Parole Advocacy Unit at the Committee for Public Counsel Services began assigning counsel to impacted individuals based on anticipated parole eligibility dates.

Once counsel has been assigned, the attorney and client will start the intensive process of preparing to show the Parole Board that the client is a strong candidate for release on parole by marshalling evidence to demonstrate that the client “will live and remain at liberty without violating the law” and that their release “is not incompatible with the welfare of society.” G.L. c. 127, § 130. For individuals serving parole-eligible life sentences, their parole hearing is different in kind from other parole hearings. Referred to as “lifer hearings,” these hearings are governed by different regulations, are held at the board’s central office in Natick (instead of the prison or jail) and are open to the public. Lifer hearings require rigorous preparation. Counsel collects and reviews voluminous records, retains experts, and prepares the client to testify before and be questioned by board members.7 The victims’ families have a right to advance notice and to be present and provide testimony to the board if they so choose. The prosecuting district attorney’s office may submit written and oral testimony in opposition. The board “weigh[s] multiple factors” and “consider[s] a wide variety of evidence” before reaching its decision.8

In emerging adult lifer cases, the task is made “far more complex” because the board must also consider “the unique characteristics” of emerging adults.9 These unique characteristics, as explained by the United States Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010) and Miller v. Alabama, 567 U.S. 460 (2012), and embraced by the SJC in Diatchenko I, include “a lack of maturity and an underdeveloped sense of responsibility,” being “more vulnerable to negative influences and outside pressures,” and having a character that is less well-formed and “traits less fixed” than adults.10 These characteristics may have been a contributing factor to the offense, which occurred many years before the parole hearing. The board must also consider whether the individual has been rehabilitated and matured out of characteristics that might have had a causal connection to the individual’s criminal behavior many years ago.

While there is significant overlap in how someone will prepare for an emerging adult lifer parole hearing compared to a juvenile lifer hearing, Mattis differs from Diatchenko I and its progeny in ways that leave incarcerated individuals and advocates in familiar but still uncharted waters.

In Mattis, the SJC did not explicitly incorporate cases that flowed from Diatchenko I. Those cases established procedural protections for juvenile lifers in the parole process, some of which have since been codified in G.L. c. 127, § 133A. Such protections include funds for expert evaluations, the right to judicial review of parole decisions, and, as explained in Commonwealth v. Okoro, 471 Mass. 51, 62-63 (2015), the extension of procedural rights to juveniles serving a life sentence for second degree murder convictions. While it seems self-evident that those protections should be available to individuals engaging in the parole process as a result of Mattis, just as they were for those impacted by Diatchenko I, at this point the jurisprudence is unclear.

Even assuming, as advocates hope and expect, that the right to access funds for an expert does extend to emerging adults, it seems likely there will be reduced use of forensic psychology experts compared to post-Diatchenko. It may be that not every emerging adult parole case requires one. Since Diatchenko I, the board as a whole has become more fluent with adolescent neurological and psychosocial development, having conducted scores of release and review hearings for juvenile homicide offenders. In addition, at this time the board includes a number of members with backgrounds that enable them to bring an understanding of late adolescent brain development to the hearing. As a result, it may be that reliance upon forensic experts will be limited to those cases where there is a discerning need, dependent upon the facts of the case and the client’s particular trajectory.

In addition to these differences, the January decision in Mattis created some uncertainty regarding the governing dates for calculating parole eligibility. Those calculations impact the scheduling of lifer parole hearings. In crafting the remedy in Diatchenko I, the SJC invalided portions of statutes that denied parole eligibility to juvenile homicide offenders and then looked to “the next-most severe sentence under the sentencing scheme” for murder.11 When Diatchenko I was decided over ten years ago, the statutory landscape regarding sentences for murder was less complex. First degree murder was punished by life without parole. Second degree murder was punished by life with parole eligibility after fifteen years.12 The Diatchenko I remedy was therefore straightforward: juvenile homicide offenders were eligible for parole after serving fifteen years.13

The Mattis court attempted to craft its remedy in the same manner, but what that “next-most severe sentence” may be is less readily apparent than it was in Diatchenko I. In 2012, before Diatchenko I, the Legislature amended G.L. c. 279, § 24, which governs indeterminate sentences to state prison, to provide judges with discretion to sentence an adult convicted of second degree murder to a minimum term of between fifteen to twenty-five years.14 The minimum term set by the sentencing judge is used by the Parole Board to calculate parole eligibility and its concomitant initial parole hearing date. But because the offense in Diatchenko I occurred in 1981, well before the effective date of those 2012 amendments, the SJC in Diatchenko I did not have to consider the impact of the new range of minimum terms. In 2014, following Diatchenko I, the Legislature again amended G.L. c. 279, § 24, as well as other statutes governing parole eligibility for murder (G.L. c. 127, § 133A and G.L. c. 265, § 2). These amendments codified parole eligibility for juvenile homicide offenders and provided judges with discretion to sentence juvenile homicide offenders to a range of minimum terms of years based on the theory of murder.

So when the Mattis court quoted language from Diatchenko I regarding the “next most severe sentence” and applied the most recent (2014) version of G.L. c. 279, § 24, it created uncertainty regarding the calculation of parole eligibility.15 On March 22, 2024, after the Commonwealth moved for modification of the decision, the SJC issued a revised opinion which resolved most, but not all, of the uncertainty. The court categorized the Mattis cohort into three groups based on the version of § 24 in effect at the time of the offense and whether § 24 set a fixed term or range of years for the minimum term. For those individuals eligible for a fixed term of years, the SJC ordered that their sentences “shall . . . so reflect” that fixed term, and further ordered that individuals “who ha[ve] served the requisite number of years” were immediately eligible to be seen for parole.16 Individuals “whose parole eligibility date is discretionary may request a hearing to have the date set within the [applicable] ranges.”17

Even for individuals convicted of an offense which occurred prior to the 2012 amendments to § 24, there is still some uncertainty as to whether the Parole Board has the authority to sua sponte consider an individual parole-eligible or whether the board is required to await updated documentation from the Superior Court. Accordingly, it may be necessary for counsel to file a motion to correct the sentence to obtain that updated documentation before moving forward with parole hearings. The SJC did not expressly remand to the Superior Court for resentencing; it remanded for the Superior Court “to take such further action as is necessary and appropriate.” Meanwhile, for those individuals with “discretionary” parole dates imposed under the current version of § 24, it appears such motions, and a resentencing hearing, will be required.

Another area of uncertainty is to what extent Commonwealth v. Costa, 472 Mass. 139 (2015), will extend to emerging adults. In Costa, the trial court sentenced the juvenile homicide offender, before Diatchenko I was decided, to two consecutive life without parole sentences following convictions for first degree murder.18 Following Diatchenko I, the juvenile defendant filed a Mass. R. Crim. P. 30(a) motion for resentencing. The motion judge concluded that the defendant’s sentences should be converted to sentences of life with parole after fifteen years and that he was entitled to a resentencing hearing to determine if those sentences should still run consecutively or if they could be amended to run concurrently.  After the SJC Single Justice reserved and reported the issue, the SJC held that on resentencing, the judge could amend the consecutive nature of the original sentence.19 For emerging adults sentenced to consecutive parole ineligible life sentences, their initial parole eligibility date could be dramatically impacted if Costa does apply.

These questions around resentencing generate uncertainty regarding the scheduling of these lifer parole hearings. Advocates and incarcerated individuals serving parole eligible life sentences can generally predict the approximate month and year of their initial parole eligibility based on when they were sentenced. Lifer hearings are typically calendared months in advance. Now, there are potentially as many as 130 individuals who may find themselves immediately eligible for parole. After Diatchenko I, the Parole Board did not prioritize hearings for individuals who were most “overdue” for their parole hearing. Instead, individuals were added to a list after they notified the board they were ready to proceed to a hearing, and hearings were scheduled based on the date of notification. It appears the board is likely to follow suit with the Mattis cohort. However, faced with hundreds of requests for hearings at the same time, it seems the board will need to take steps to prioritize individuals based on how long ago their hearing should have been. How the already-inundated Parole Board, whose responsibilities also include increasingly frequent executive clemency petitions and parole termination proceedings, will incorporate this additional deluge of hearings is yet to be seen.

That said, for many of these newly-parole-eligible emerging adults there may be compelling reasons not to rush forward to a parole hearing even if the opportunity presents itself. In most cases, it will take a significant amount of time before the client feels ready to appear before the board. It may be that for this reason the board will experience a scheduling bottleneck some months from now, once clients and attorneys believe they are ready to present their case.

The varied backgrounds of the board members put the current board in a good position to review these emerging adult parole candidates, and advocates are hopeful for thorough, fair reviews of each case and the positive outcomes seen following Diatchenko I.20

  1. Indicative of the justices’ differing viewpoints on the analytical framework, whether Diatchenko Icontrolled, and the ultimate holding, the majority, concurrences, and dissents refer to this cohort in various ways.  See 493 Mass. at 217 n.1 (majority; emerging adults); 493 Mass. at 238 (Kafker, J., concurring; eighteen through twenty year olds); 493 Mass. at 251 (Wendlandt and Gaziano, concurring; young adults); 493 Mass. at 255 (Lowy, Cypher and Georges, dissenting; adults or individuals from eighteen to twenty one); 493 Mass. at 285 (Cypher, dissenting; “emerging adults” “as styled by the court and parties”).  For this article, we follow the majority’s lead and refer to individuals impacted by the Mattis decision as “emerging adults.” However, advocates may prefer the term “late adolescents,” reserving “emerging adult” for the broader cohort of individuals 25 and under.
  2. Mattis, 493 Mass. at 217.
  3. (citations omitted).
  4. As discussed infra, the determination of initial parole eligibility dates for emerging adults under Mattis is not as clear as it was for juveniles under Diatchenko I.
  5. Mattis, 493 Mass. at 430, quoting Diatchenko I, 466 Mass. at 674.
  6. Mattis, 493 Mass. at 430, quoting Diatchenko I, 466 Mass. at 674.
  7. See Diatchenko II, 471 Mass. at 20-23.
  8. at 23.
  9. Mattis, 493 Mass. at 237; Diatchenko II, 471 Mass. at 23.
  10. Miller, 567 U.S. at 479; Diatchenko I, 466 Mass. at 660.
  11. Diatchenko I,466 Mass. at 672-673.
  12. L. c. 265, § 2.
  13. Diatchenko I, 466 Mass. at 673-674.
  14. Commonwealth v. Brown, 466 Mass. 676, 689 n.10 (2013).  See alsoL. c. 127, § 133A; G.L. c. 279, § 24.  Parole eligibility for juvenile homicide offenders convicted of second degree murder is established at fifteen years by G.L. c. 119, § 72B.
  15. Mattis, 493 Mass. at 237.
  16. Costa,472 Mass. at 141.
  17. at 144
  18. In his concurrence in Mattis, Justice Kafker noted that seventy-four percent of the Diatchenkocohort have been granted parole, demonstrating “reformative change after a lengthy period of incarceration.”  493 Mass. at 250.

Afton M. Templin, Director of Juvenile Appeals at CPCS, oversees a panel of private attorneys representing juveniles on direct appeal and for motions for resentencing.

Mara Voukydis, Director of the Parole Advocacy Unit at CPCS, manages access to counsel for people across the Commonwealth seeking parole and medical parole release.