On Tuesday, the BBA filed an amicus brief in Commonwealth v. Lutskov (SJC-12411), a case in which the Supreme Judicial Court solicited amici last November. Our brief, written by Meredith Shih of Wood & Nathanson, LLP, on behalf of the BBA Amicus Committee and in close collaboration with Amicus Committee Co-Chairs, Elizabeth Ritvo, of Brown Rudnick, and David Siegel of New England Law | Boston, argues that the application of adult mandatory minimum sentences to juveniles violates the Massachusetts Declaration of Rights.
We are happy to have had the chance to respond to the SJC’s Amicus Announcement, especially in a case that touches on a number of issues with a significant BBA history. Keep reading to learn more about the case, the BBA’s background on these issues, and the brief.
Case Background
Appellant Maksim Lutskov was indicted by a Hampden County Grand Jury on December 27, 2000, as a youthful offender for armed home invasion, two counts of assault and battery with a dangerous weapon, armed assault with intent to rob, assault with a dangerous weapon, and assault and battery. He was tried by a jury in the Hampden Juvenile Court in November 2001, adjudicated a youthful offender on all charges, and sentenced to the statutory adult mandatory minimum sentence of twenty years in prison for armed home invasion, with a number of concurrent lesser terms and ten years’ probation. In 2004, the Appeals Court affirmed the adjudication and the SJC denied further appellate review.
Nearly a decade later, in August 2013, the Appellant filed a pro se Rule 30 (post-conviction relief) motion, which was denied in October 2013. Then, in November 2016, the Appellant filed, with the assistance of counsel, the Rule 30(a) motion that is the subject of the case before the SJC. The Juvenile Court denied the motion in April 2017, the appellant provided timely notice of appeal, and the case was entered on the Appeals Court in July 2017. The Court allowed the appellant’s application for Direct Appellate Review in October 2017.
The Rule 30(a) motion before the SJC raises a number of issues, including that the Commonwealth’s trial evidence was insufficient to permit a youthful offender adjudication as the Commonwealth did not offer adequate evidence to show the appellant was of the appropriate age. The SJC’s amicus solicitation, however, focused narrowly on the second argument presented by the Appellant, which is that Article 26’s prohibition on cruel or unusual punishment bars the application of adult mandatory minimum sentences to juveniles and requires individualized sentencing. The Announcement asked:
Where the defendant was convicted, as a youthful offender, of armed home invasion and other offenses, whether his sentence of twenty years in the State prison (the mandatory minimum for armed home invasion) violates article 26 of the Declaration of Rights. See Diatchenko v. District Attorney for the Suffolk District, 466 Mass. 655 (2013), and Commonwealth v. Perez, 477 Mass. 677 (2017).
BBA Background
Though the BBA has not previously adopted a policy position that relates directly to the argument presented in the brief (that the imposition of adult mandatory minimum sentences to juveniles violates Article 26), we do have a long history of speaking out on criminal justice reform, especially in relation to mandatory minimum sentences, and juvenile justice.
The BBA has been opposed to mandatory minimum sentences for decades, advocating for reform since at least 1989 when we released a report calling attention to the harms wrought by misguided mandatory minimums. Our opposition to these sentences stems from the fact that they prevent judicial consideration of proportionality by rendering one-size-fits-all punishment, often involving unduly long sentences which make reintegration and reentry more difficult, and remove the discretion of judges to impose the context-specific individualized sentences that would ensure the punishment does in fact fit the crime.
In addition, the BBA has a longstanding commitment to juvenile justice. In a 1994 report, The Massachusetts Juvenile Justice System of the 1990s: Re-thinking a National Model, a BBA Task Force discussed the differences between juveniles and adults when considering certain legislative proposals to remove judicial discretion in some hearings for juveniles. That report explained why juveniles were treated differently than adults for sentencing purposes and noted that removing discretion and applying mandatory minimum sentence to juveniles “cast aside certain basic tenets of the juvenile justice system as they have evolved for more than a century.”
Also, in 2013, prior to the Diatchenko decision, the Criminal Law Section reached consensus and set forth principles – later adopted by the BBA Council – on three areas of juvenile life without parole sentencing when considering then-proposed bills. One of those principles provides that, before being sentenced to life without parole, the appellant convicted of first degree murder must have the right to an individualized evidentiary sentencing hearing which considers, in addition to the traditional factors required by law, a number of issues specific to juveniles, including the hallmark features of adolescence and the potential for rehabilitation and capacity for change.
Amicus Brief
In laying out the BBA’s interest as Amici, the brief begins by tracing our history of sustained involvement with issues of criminal justice, especially opposition to mandatory minimums, and juvenile justice reform outlined above. Then, the brief moves into the argument, that:
“Under both federal and state constitutional frameworks, the application of adult mandatory minimum sentences to juveniles violates Article 26’s ban on cruel and unusual punishment. To guarantee that all adult sentences applied to juveniles are proportional, juvenile judges must conduct individualized sentencing hearings, taking into consideration the factors established in Miller v. Alabama, 567 U.S.
At the federal level the United States Supreme Court has recognized the constitutional differences between adults and youth in sentencing matters. In 2005, the Court held, in Roper v. Simmons, 543 U.S. 551 (2005) that imposition of the death penalty on juveniles under eighteen years old violated the 8th amendment’s ban on cruel and unusual punishment. Five years later, in Graham v. Florida, 560 U.S. 348 (2010), the Court found an 8th amendment violation in sentencing of a juvenile to life without parole in non-homicide crimes. Then, in 2012, the Court expounded on the factors that make youth constitutionally different from adults for sentencing purposes and held that a mandatory sentence to life in prison without parole applied to a juvenile convicted of murder also violated the 8th amendment.
The Massachusetts SJC has relied on a Miller analysis in deciding similar cases. In 2013, in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013), it held that the mandatory imposition of life without parole for juveniles under eighteen who committed murder violated Article 26’s prohibition on cruel and unusual punishment. The Court, however, also went on to hold that even the discretionary imposition of the sentence also violated Article 26, as it was unconstitutionally disproportionate given the unique characteristics of youth. In a series of cases since Diatchenko, the court has continued to analyze the constitutional distinctions between youth and adults but has left “open for future consideration ‘the broader question whether discretion is constitutional required in all instances of juvenile sentencing.’” Commonwealth v. Okoro, 471 Mass. 51 (2015), citing Commonwealth v. Brown, 466 Mass. 667 (2013)
Most recently, in the Case of Commonwealth v. Perez, 477 Mass. 677 (2017), the SJC held that a juvenile convicted of a non-murder offense or offenses could not be punished more harshly than a juvenile convicted of murder unless, after a hearing that considers the Miller factors, the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder. Applying the constitutional frameworks outlined above, the BBA’s brief urges the court to take the next logical step: answer the question posed in Okoro and Brown in the affirmative, that discretion is required in instances of juvenile sentencing.
Finally, the brief encourages the court to use this opportunity to set forth with clarity what a Miller-type sentencing hearings should require. In Perez, the Court has already provided that such a hearing involves meaningful consideration of three factors:
- The particular attributes of the juvenile, including immaturity, impetuosity, and failure to appreciate risks and consequences;
- The family and home environment that surrounds [the juvenile] from which he cannot usually extricate himself; and
- The circumstances of the … offense, including the extent of [the juvenile’s] participation in the conduct and the way familial and peer pressures may have affected him.
The brief notes that records of the sentencing should clearly reflect that the sentencing judge considered these factors of youth, as mitigating factors, which would ensure the judges take into account the important distinctions of youth and craft proportional sentences within the bounds of Article 26.
A big thank you goes to our Amicus Committee for their thoughtful analysis of the SJC’s amicus announcement, and especially to co-chairs David Siegel and Liz Ritvo and drafter Meredith Shih! Oral argument is scheduled for March 5, and we’ll be sure to keep you updated.
—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association
