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SJC-13505
COMMONWEALTH vs. SAJID S., a juvenile.
Suffolk. March 4, 2024. – July 9, 2024.
Present: Budd, C.J., Kafker, Wendlandt, Georges, & Dewar, JJ.
Constitutional Law, Sentence, Cruel and unusual punishment. Practice, Criminal, Sentence, Probation. Juvenile Court, Probation.
Indictments found and returned in the Suffolk County Division of the Juvenile Court Department on December 30, 2004.
A motion for relief from unlawful restraint, filed on March 21, 2023, was heard by Peter M. Coyne, J.
The Supreme Judicial Court granted an application for direct appellate review.
Matthew J. Koes for the juvenile. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Eva G. Jellison & Danya F. Fullerton, for youth advocacy division of the Committee for Public Counsel Services, amicus curiae, submitted a brief.
WENDLANDT, J. When it comes to sentencing, as we have
repeatedly and recently stated, young persons are 2
constitutionally different. See Commonwealth v. Mattis, 493
Mass. 216, 238 (2024). In this case, we consider whether the
proscription against "cruel or unusual" punishments embodied in
art. 26 of the Massachusetts Declaration of Rights prohibits the
sentence imposed on the juvenile,1 who in November 2004, as a
sixteen year old, stalked and robbed one victim at gunpoint
before repeatedly raping her in her home, and then bound,
gagged, and robbed a second victim -- the first victim's
roommate -- when she arrived home. He was sentenced to a period
of incarceration in State prison for his convictions of, inter
alia, aggravated rape -- a period compliant with art. 26's
requirement that, in the absence of extraordinary circumstances,
the period of parole ineligible incarceration for a juvenile
convicted of nonhomicide offenses not exceed that of a juvenile
convicted of murder. See Commonwealth v. Perez, 477 Mass. 677,
686 (2017) (Perez I), S.C., 480 Mass. 562 (2018) (Perez II). He
was further given a five-year period of straight probation for
the remaining nonhomicide offenses to commence from and after
his release.
Because, as an adult of more than thirty years of age, he
allegedly violated the conditions of probation, and because, as
1 Although the juvenile is now an adult, we refer to him as the juvenile for consistency. 3
a result of the violation, he both was held on a probation
detainer and faces a potential sentence that might include a
period of incarceration on the remaining nonhomicide offenses he
committed as a juvenile, the now-grown juvenile contends that
art. 26's proscription of cruel or unusual punishments was
violated. We conclude that imposing probation as part of such
an integrated sentencing structure does not run afoul of art.
26's safeguards peculiar to juveniles. Further concluding that
suffering the consequences of a violation of probation also is
constitutional, we affirm the order of the Juvenile Court judge
denying the juvenile's second motion for relief from unlawful
restraint.2
1. Background. a. Facts.3 On an evening in
November 2004, the juvenile, then sixteen years old, followed
the victim home, ambushed her outside of her apartment, and, at
gunpoint, demanded that she give him money. The juvenile then
forced the victim into her apartment and repeatedly raped her.
He also bound and gagged her.
2 We acknowledge the amicus brief submitted by the youth advocacy division of the Committee for Public Counsel Services.
3 The juvenile tendered a plea and admitted to sufficient facts to warrant findings on the offenses discussed infra. 4
The second victim, the victim's roommate, came home, and
the juvenile bound and gagged her as well. The juvenile stole
property from both victims and fled.
b. Prior proceedings. In March 2007, the juvenile
tendered a plea admitting to sufficient facts and was
adjudicated as a youthful offender on one count of home
invasion, G. L. c. 265, § 18C; three counts of aggravated rape,
G. L. c. 265, § 22 (a); two counts of armed robbery, G. L.
c. 265, § 17; two counts of kidnapping, G. L. c. 265, § 26; two
counts of assault and battery by means of a dangerous weapon,
G. L. c. 265, § 15A (b); one count of using a firearm in a
felony, G. L. c. 265, § 18B; and one count of carrying a firearm
without a license, G. L. c. 269, § 10 (a). He was sentenced to
from sixteen to twenty years in State prison for the aggravated
rape charges;4 two and one-half to three years in State prison
for carrying a firearm without a license, to be served
concurrently with the aggravated rape sentence; and ten years of
probation for the remaining charges, to be served from and after
his release from State prison.
4 The juvenile was given credit for 838 days of time served awaiting trial. 5
In November 2020, after sixteen years of incarceration, the
juvenile became eligible for parole. However, the parole board
denied each of his two applications for parole.
i. First Perez I motion. In July 2021, following this
court's decision in Perez I, the juvenile filed a motion for
release from unlawful restraint pursuant to Mass. R. Crim. P.
30 (a), as appearing in 435 Mass. 1501 (2001), contending that
his original sentence violated art. 26 because it required him
to serve a period of incarceration during which he was not
eligible for parole (sixteen years) that exceeded the then-
applicable fifteen-year parole ineligibility period of a
juvenile convicted of murder.5 The Commonwealth did not dispute
5 Importantly, a juvenile convicted of murder in 2007 -- the same year that the juvenile tendered his plea -- became eligible for parole after fifteen years of incarceration. See G. L. c. 127, § 133A, as amended through St. 2000, c. 159, § 230 ("Every prisoner who is serving a sentence for life in a correctional institution of the commonwealth . . . shall be eligible for parole . . . within sixty days before the expiration of fifteen years of such sentence"); Commonwealth v. Brown, 466 Mass. 676, 678 (2013) (juvenile convicted of murder "may only be sentenced to the lesser punishment under G. L. c. 265, § 2, of mandatory life in prison with the possibility of parole set pursuant to the parole eligibility statute in effect at the time of [his] crime, G. L. c. 127, § 133A, as amended through St. 2000, c. 159, § 230, providing for parole eligibility in fifteen years").
Thereafter, the Legislature amended G. L. c. 127, § 133A. As amended, it provides that every prisoner serving a life sentence "shall be eligible for parole at the expiration of the minimum term fixed by the court under [G. L. c. 279, § 24]." G. L. c. 127, § 133A, as amended through St. 2018, c. 69, § 98. General Laws c. 279, § 24, in turn, sets parole eligibility 6
the juvenile's contention and chose to forgo a Miller hearing,6
discussed infra, to attempt to show that extraordinary
circumstances warranted treating the juvenile more harshly for
parole purposes than a juvenile convicted of murder. The motion
was allowed, and the original sentence was vacated.
Finding that the juvenile's behavior had improved over
time, that he accepted responsibility for his crimes, and that
he "availed himself [of the] social and educational
opportunities" provided to him while incarcerated, the motion
judge rejected the Commonwealth's proposal regarding
resentencing.7 Instead, he adopted the juvenile's proposal
regarding resentencing. Specifically, the judge resentenced the
juvenile to from fifteen years to fifteen years and one day for
the aggravated rape offenses; two and one-half to three years
for the offense of carrying a firearm without a license, to be
served concurrently with the sentence for the aggravated rape
between twenty and thirty years for juveniles convicted of murder in the first degree; between twenty-five and thirty years if the murder was committed with deliberate premeditation; and at thirty years if the murder was committed with extreme atrocity or cruelty. G. L. c. 279, § 24, as amended through St. 2014, c. 189, § 6. These amended periods do not apply to our analysis in the present case.
6 See Miller v. Alabama, 567 U.S. 460 (2012).
7 The Commonwealth had proposed a resentencing structure as follows: fifteen to twenty years in State prison (with parole- eligibility beginning at fifteen years) and ten years of probation from and after his release for the remaining offenses. 7
offenses; and five years of probation for the remaining
offenses, to be served from and after the commitment to State
prison, beginning on the date of the juvenile's release
(restructured sentence).
As discussed infra, the restructured sentence thus
conformed to the constitutional requirement that, in the absence
of extraordinary circumstances, the juvenile's period of parole
ineligibility not exceed that of a juvenile convicted of murder.
See Perez I, 477 Mass. at 686. But it potentially exposed the
juvenile to further incarceration should he violate the
conditions of probation.
Because he had already served the incarcerated portion of
the restructured sentence, one day after the resentencing, in
January 2022, the juvenile was discharged from the Department of
Correction. He returned to court the following day, had a
colloquy with the judge about his probation conditions, and
signed a conditions of probation form.
ii. Second Perez I motion. Less than seven months after
his release, in August 2022, the juvenile, now a thirty-three
year old adult, was charged with multiple firearm and drug
offenses, resisting arrest, unarmed burglary, and unlicensed and
uninsured operation of a motor vehicle. The juvenile was
alleged to have violated his probation "as a result of [the] new 8
arrest." A notice of violation of probation was issued, and the
juvenile was arrested and held on a probation detainer.
The juvenile filed a second motion for relief from unlawful
restraint pursuant to Mass. R. Crim. P. 30 (a), and a
corresponding motion for release from the probation detainer
pending a decision on the second motion for relief.8 Both
motions were denied, and the juvenile appealed from the denial
of his second motion for relief from unlawful restraint. We
granted the juvenile's application for direct appellate review.
2. Discussion. a. Standard of review. We review the
juvenile's constitutional challenge to his restructured sentence
de novo, accepting the motion judge's findings of fact absent a
showing of clear error. See Commonwealth v. DiBenedetto, 491
Mass. 390, 396 (2023).
8 Also in August 2022, the juvenile was held as a dangerous person pursuant to G. L. c. 276, § 58A (Section 58A), in connection with the criminal matter that formed the basis for his probation detainer. In January 2023, however, the juvenile was no longer being held pursuant to Section 58A and was released on personal recognizance, but continued to be held on the probation detainer. Thus, when the juvenile filed his second motion for relief in March 2023, he was being held solely on his probation detainer.
In May 2023, the juvenile was arraigned in the Superior Court for his conduct pertaining to the August 2022 arrest and held pending a dangerousness hearing pursuant to Section 58A. The Superior Court allowed the Commonwealth's Section 58A motion on May 11, 2023, and the juvenile was held pursuant to Section 58A until January 24, 2024. As of February 2024, the juvenile was being held pursuant to the probation detainer. 9
b. Constitutional framework. We need not belabor the
constitutional framework that guides the punishments that may be
imposed on young persons; these principles have been repeatedly
and recently set forth. See, e.g., Miller v. Alabama, 567 U.S.
460, 469-470 (2012) (Eighth Amendment to United States
Constitution prohibits mandatory imposition of life without
parole for juveniles who commit murder); Graham v. Florida, 560
U.S. 48, 78-79 (2010) (Eighth Amendment prohibits imposition of
life without parole for juveniles who commit nonhomicide
offenses); Roper v. Simmons, 543 U.S. 551, 568-570 (2005)
(Eighth Amendment prohibits imposition of death penalty for
children);9 Mattis, 493 Mass. at 217-218, 224 (due to
contemporary standards of decency, art. 26 prohibits imposition
of life without parole for persons aged eighteen, nineteen, and
twenty where they share same attributes of youth relevant to
sentencing as juveniles); Diatchenko v. District Attorney for
the Suffolk Dist., 466 Mass. 655, 668, 671 (2013) (Diatchenko
I), S.C., 471 Mass. 12 (2015) (Diatchenko II) (art. 26 prohibits
9 We have interpreted art. 26 "more broadly than the [United States] Supreme Court has interpreted the Eighth Amendment." Perez I, 477 Mass. at 679. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 668 (2013), S.C., 471 Mass. 12 (2015) ("We often afford criminal defendants greater protections under the Massachusetts Declaration of Rights than are available under corresponding provisions of the Federal Constitution"). 10
imposition of life without parole for juveniles who commit
murder, even on discretionary basis).
For present purposes it suffices briefly to recount the
guiding principle underlying our jurisprudence -- namely, that,
in light of the "evolving standards of decency that mark the
progress of a maturing society," Mattis, 493 Mass. at 224,
quoting Commonwealth v. Okoro, 471 Mass. 51, 61 (2015),
sentencing of young persons must be informed by the attributes
that define this early period of life. These attributes are
well known to parents and confirmed by the developing
neuroscience of the brain. In particular, this cohort generally
lacks maturity and has an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and
heedless risk-taking. See Roper, 543 U.S. at 561, 569-570.
Young persons are more vulnerable to negative influences and
outside pressures, including from family and peers; yet they
lack the wherewithal to change their environment. Id. at 569.
Moreover, at this early stage in life, their character is not
well formed and their traits are less fixed than their elders.
Id. at 570. These attributes of youth stem from the brain's
development. See Miller, 567 U.S. at 471-472; Graham, 560 U.S.
at 68; Roper, supra. And while these neurological developmental
markers are common to the cohort of young persons, neither the
markers nor the correlating attributes generally are fixed. 11
Children will, as children must, "grow up." Accordingly,
although they are capable of committing grave crimes, when it
comes to meting out punishments, our societal norms that inform
the scope of art. 26's protections require that their
"diminished culpability and greater prospects for reform" be
considered. Miller, supra at 471.
The Commonwealth cannot, consistent with art. 26's
prohibition against cruel or unusual punishments, simply lock
children up and throw away the key, even when they commit
murder. Condemning a child to die in prison involves a
determination that the crime committed evinces an irretrievably
depraved character -- a determination that a sentencing judge
simply cannot make "with integrity" in view of the malleability
of character that defines young persons. Diatchenko I, 466
Mass. at 670. See Mattis, 493 Mass. at 241 (Kafker, J.,
concurring). Indeed, "[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable
corruption." Graham, 560 U.S. at 73, quoting Roper, 543 U.S. at
572.
Instead, to pass constitutional muster, a sentence cannot
"improperly den[y] the juvenile offender a chance to demonstrate
growth and maturity." Graham, 560 U.S. at 73. This means that 12
for young persons who commit murder, the Constitution requires
that they be given a "meaningful opportunity to obtain release
[through parole] based on demonstrated maturity and
rehabilitation." Diatchenko I, 466 Mass. at 674, quoting
Graham, supra at 75. Thus, life with the possibility of parole
is constitutional for a juvenile offender, but life without that
possibility is not. See Diatchenko I, supra at 671 ("The
unconstitutionality of this punishment arises not from the
imposition of a sentence of life in prison, but from the
absolute denial of any possibility of parole").
After a period of incarceration -- a period set by the
Legislature to comprise fifteen or more years, during which the
youth has had the benefit of time to mature, and his character
is more well formed and his traits more fixed10 -- informed
determinations as to his capacity for reform can be made and the
penological justifications for continued incarceration can be
weighed. See Graham, 560 U.S. at 71-74 (detailing the four
penological justifications for punishment –- retribution,
deterrence, incapacitation, and rehabilitation -- and inaptness
of each in view of juvenile's youthful attributes). Article 26
requires this meaningful "second look" at the merits of parole
for the now-grown individual.
10 See note 5, supra. 13
Importantly, art. 26 does not preclude the juvenile
offender who commits murder from serving a life sentence, and it
does not mandate that juveniles be granted parole; such persons,
although young, have committed a grave crime. See Diatchenko
II, 471 Mass. at 29-30 ("the art. 26 right of a juvenile . . .
offender in relation to parole . . . is not a guarantee of
eventual release"); Diatchenko I, 466 Mass. at 674 ("Our
decision should not be construed to suggest that individuals who
are under the age of eighteen when they committed murder in the
first degree necessarily should be paroled once they have served
a statutorily designated portion of their sentence"). See also
Graham, 560 U.S. at 82 ("A State need not guarantee the offender
eventual release, but . . . must provide him or her with some
realistic opportunity to obtain release").
Instead, the constitutional requirement is that judgments
as to the aptness of continued incarceration be made during a
subsequent reassessment of the individual, when he has had time
to develop and to outgrow the impetuousness inherent in youth.
This meaningful second look gives the youth the chance to show
that he has matured and outgrown the behaviors that led to his
incarceration. Perforce, however, if parole is awarded and the
individual violates a material condition of parole, he may be
reincarcerated, having demonstrated, through the violation, a
lack of rehabilitation. See Commonwealth v. Cole, 468 Mass. 14
294, 299 (2014) ("Where the parole board finds a violation of a
parole condition, the board 'may revoke a permit to be at
liberty,' G. L. c. 127, § 148, and order the parolee to be
returned to prison or jail"). In short, it is not cruel or
unusual punishment to reincarcerate an individual who has shown
an inability to comply with the conditions of parole.
Because the Constitution also mandates proportional
punishments,11 the constitutional constraints on punishing young
persons who commit murder have implications for those who commit
nonhomicide offenses, like the juvenile in the present case.12
11A tripartite test governs our analysis of whether any term of years sentence violates art. 26's proportionality requirement. See Cepulonis v. Commonwealth, 384 Mass. 495, 497- 499 (1981).
"To determine whether a sentence is disproportionate requires (1) an inquiry into the nature of the offense and the offender in light of the degree of harm to society, (2) a comparison between the sentence imposed here and punishments prescribed for the commission of more serious crimes in the Commonwealth, and (3) a comparison of the challenged penalty with the penalties prescribed for the same offense in other jurisdictions" (quotations and citation omitted).
Commonwealth v. Sharma, 488 Mass. 85, 89, 90 (2021) (remanding consecutive homicide and nonhomicide sentences imposed upon juvenile offender "for a fact-intensive proportionality analysis under [tripartite test]").
12Although the now-grown juvenile is alleged to have violated the conditions of probation as an adult, the constitutional principles underlying the punishment of juveniles are relevant to our inquiry because the sentence being challenged is the sentence for the nonhomicide crimes he committed when he was a juvenile. 15
See Perez I, 477 Mass. at 679. Thus, where a juvenile is
sentenced for a nonhomicide offense or offenses, the aggregate
time to be served prior to parole eligibility cannot exceed the
period applicable to a juvenile convicted of murder unless the
sentencing judge finds that extraordinary circumstances warrant
a harsher treatment for parole purposes than a juvenile
convicted of murder.13 See id. at 686. In order to show the
extraordinary circumstances warranting a longer period of parole
ineligibility, "the Commonwealth must prove that there is no
reasonable possibility of the juvenile's being rehabilitated
within the time after which a juvenile convicted of murder
becomes eligible for parole." Perez II, 480 Mass. at 571. In
short, for juveniles who commit a nonhomicide offense or
offenses, a second look generally also is warranted, and it must
occur, at the latest, on the same timetable as required for
juveniles who commit murder.
13At such a hearing, the judge must consider the so-called Miller factors. These include:
"(1) the particular attributes of the juvenile, including 'immaturity, impetuosity, and failure to appreciate risks and consequences'; (2) 'the family and home environment that surrounds [the juvenile] from which he cannot usually extricate himself'; and (3) '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.'"
Perez I, 477 Mass. at 686, quoting Miller, 567 U.S. at 477. 16
As with juveniles who commit murder, however, juveniles who
commit nonhomicide offenses are not entitled to parole; the
constitutional mandate is only that they be given a meaningful
opportunity to obtain it. See Perez II, 480 Mass. at 573
(although years of parole ineligible time "presumably provided
the defendant with the opportunity to demonstrate his own
capacity for redemption and rehabilitation[,] . . . the parole
board retains the power to allow or deny parole in the exercise
of its own judgment"). And, if granted the grace of parole, a
juvenile convicted of nonmurder offenses who violates a
condition of parole -- like the juvenile convicted of murder who
violates a parole condition -- may be held for further periods
of incarceration. See Cole, 468 Mass. at 299.
c. Probation and Perez I. In light of these
constitutional principles, we consider whether the juvenile's
restructured sentence is constitutional. Under its terms, the
juvenile was sentenced to from fifteen years to fifteen years
and one day in State prison -- a period during which he was not
eligible for parole and which mirrored the then-applicable
period of parole ineligibility of a juvenile convicted of murder
-- for the aggravated rape convictions.14 This portion of his
14The juvenile was also sentenced to from two and one-half to three years in State prison for the offense of possession of a firearm without a license, to be served concurrently with the aggravated rape offenses. 17
sentence thus complied with the requirements of art. 26 as
explained in Perez I. Indeed, the juvenile does not suggest
otherwise.
His constitutional claim rests on the five years of
probation, which he was given for his remaining nonhomicide
offenses, and which began from and after the end of his State
prison sentence. The juvenile contends that this part of his
restructured sentence violates the "rule[]" from Perez I
because, when adding the potential term of incarceration
stemming from his probation violation to the fifteen-year
incarceration on his other offenses (including any time he might
be held on a probation detainer for any such probation
violation), his total parole-ineligible incarceration time might
exceed the fifteen years of parole-ineligible time for a
juvenile who committed murder. In order to expose him to this
potential additional time of incarceration, the juvenile argues,
the Commonwealth was required at the resentencing hearing to
prove that, in light of the Miller factors, see note 14, supra,
extraordinary circumstances would justify imposing a
(potentially) longer period of incarceration prior to parole
eligibility than that applicable to a juvenile offender who
committed murder. The argument rests on a misapprehension of
our holding in Perez I. 18
To begin, in Perez I, the court addressed only the parole
eligibility date fixed according to the aggregate term of
incarceration imposed at the time of sentencing.15 See
Commonwealth v. Lutskov, 480 Mass. 575, 584 n.7 (2018) ("Perez I
. . . focuses on the parole eligibility date at the time of
sentencing"); Perez I, 477 Mass. at 683 ("Our specific inquiry
here is whether the requirement of proportionality bars the
imposition, on a juvenile defendant, of consecutive sentences
for nonmurder offenses with a resulting parole eligibility date
that exceeds that applicable to juveniles convicted of murder"
[emphasis added]). The court did not consider any potential
further period of incarceration resulting from a future
hypothetical probation violation. Here, at the time of
resentencing, the juvenile's restructured sentence imposed an
"aggregate" fifteen-year term of incarceration,16 which was equal
15"[A]ggregation" or the "aggregation rule" refers to the process by which a parole eligibility date is calculated when an offender receives consecutive prison sentences. Sharma, 488 Mass. at 87, quoting Dinkins v. Massachusetts Parole Bd., 486 Mass. 605, 609 (2021). In these instances, an offender's "parole eligibility date is calculated by aggregating the minimum parole eligibility dates for each component sentence and using the latest date as the parole eligibility date." Sharma, supra, quoting Dinkins, supra. See, e.g., Perez I, 477 Mass. at 678 (defendant sentenced to "multiple concurrent and consecutive terms, resulting in an aggregate sentence of thirty-two and one- half years").
16The restructured sentence did not include consecutive prison terms. See note 15, supra. 19
to the period of parole ineligibility for a juvenile convicted
of murder. Thus, the sentence imposed at the time of
resentencing complied with our conclusion in Perez I.
To be sure, because of the probationary term given on the
remaining nonhomicide offenses, at the time of resentencing
there existed the potential for a further period of
incarceration if the juvenile violated a condition of probation
after his release from State prison. Contrary to the juvenile's
claim, however, the probationary term was consistent with the
requirements of art. 26 as applied to juvenile offenders. Far
from locking him up and throwing away the key, the probationary
term provided the juvenile with an opportunity even more
generous than the constitutionally required "second look" at a
time when he had matured.
"Probation, whether 'straight' or coupled with a suspended
sentence, is a legal disposition which allows a criminal
offender to remain in the community subject to certain
conditions . . . ."17 Commonwealth v. Durling, 407 Mass. 108,
17A convicted person on probation generally is subject to several conditions; when a violation is alleged, as occurred here, the probation officer "surrenders" the convicted person to the court, subjecting the person to possible revocation of probation. Commonwealth v. Durling, 407 Mass. 108, 111 (1990). At the revocation hearing, the judge must determine, as a factual matter, whether the convicted person has violated the conditions of probation. Id. If the judge determines that there has been a violation, the judge can either revoke the probation and sentence of the convicted person or, if 20
111 (1990). "The purpose of probation . . . 'in large part is
to enable the [convicted] person to get on his feet, to become
law abiding and to lead a useful and upright life under the
fostering influence of the probation officer.'" Commonwealth v.
Rainey, 491 Mass. 632, 637 (2023), quoting Commonwealth v.
Wilcox, 446 Mass. 61, 64 (2006). See Commonwealth v. Roderick,
490 Mass. 669, 681 (2022) ("probation long has been considered
an act of grace more than an act of retribution, a means of
protecting the public while sparing the probationer from
incarceration" [quotation and citation omitted]); Commonwealth
v. Feliz, 481 Mass. 689, 707 (2019), S.C., 486 Mass. 510 (2020)
(distinct goal of probation is "[r]ehabilitation of the
probationer").
In sum, the juvenile here was given more than the second
look required by art. 26, which provides juvenile offenders only
with an opportunity, albeit a meaningful opportunity, to
reassess the continued merits of incarceration but is no
guarantee that the juvenile actually will be released into the
community. By contrast, the probation term imposed on the
juvenile here allowed him actually to be released from continued
incarceration subject to conditions. See note 18, supra.
appropriate, modify the terms of probation. Id. "How best to deal with the probationer is within the judge's discretion." Id. 21
Similarly, the fact that the now-grown juvenile violated
the conditions of his probation does not transform the otherwise
constitutional sentence into an unconstitutional one. Like a
juvenile offender who is granted parole, violates the terms
thereof, and has his parole revoked, the juvenile here may face
a further term of incarceration as a result of probation
violation and revocation; nothing in art. 26 requires otherwise.
Compare Cole, 468 Mass. at 309 ("When a parolee violates a
condition of parole, the parole board has the authority to
revoke the parole and return the parolee to prison or jail for
the balance of the committed sentence"), with Commonwealth v.
Goodwin, 458 Mass. 11, 15 (2010) ("If a defendant violates one
or more conditions of probation, a judge may revoke his
probation and sentence him to a term of imprisonment for his
underlying conviction").18
18While probation and parole are "generally separate" systems, Wilcox, 446 Mass. at 64 n.7, the two are often analogized and treated interchangeably. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (right to hearing for parolees extends to probationers because no "difference relevant to the guarantee of due process [exists] between the revocation of parole and the revocation of probation"); Durling, 407 Mass. at 113 (listing six due process requirements that apply to both probation and parole revocation proceedings). But see Commonwealth v. Moore, 473 Mass. 481, 485-486 (2016) ("parolees have an expectation of privacy that is diminished beyond that of probationers because parole is more akin to imprisonment than probation is" [quotation and citation omitted]). 22
Of course, if, in connection with the probation revocation
process, the judge finds that the juvenile has violated
probation, further determines that probation should be revoked,
and resentences the juvenile on the remaining nonhomicide
offenses, the judge must do so within the constraints of, inter
alia, the Eighth Amendment19 and art. 26.20
Pertinently, because the juvenile has already served a term
of incarceration for the other nonhomicide offenses stemming
from the same crime spree -- a fifteen-year period, equal to the
period of parole ineligibility applicable to a juvenile offender
who committed murder, see note 5, supra -- art. 26 requires
that, if the judge imposes a term of incarceration after finding
a probation violation, the juvenile be treated for parole
eligibility purposes no more harshly than a juvenile offender
who committed murder.21 See Perez I, 477 Mass. at 685.
19Thus, in Graham, 560 U.S. at 57, 82, the Supreme Court concluded that a sentence of life without the possibility of parole for the juvenile offender's convictions of nonhomicide offenses, which was imposed following a determination that the juvenile offender had committed a breach of a condition of probation, violated the Eighth Amendment.
20The sentence must comply with the traditional tripartite test for proportional punishments. See note 12, supra.
21The Commonwealth has not shown extraordinary circumstances requiring treating the juvenile more harshly for parole eligibility purposes. See Perez II, 480 Mass. at 571; Perez I, 477 Mass. at 685. 23
Specifically, a juvenile offender who commits murder,
receives parole after a period of parole ineligibility, and
violates the conditions of parole is at risk of parole
revocation. If parole is revoked, the juvenile offender is
returned to incarceration, with periodic reviews for
determinations of parole at each set-back22 period. See 120 Code
Mass. Regs. § 303.24(1)(f)(2) (2017) (if parole board denies
reparole after parole revocation hearing, "the case shall be
placed back on the docket for a regularly scheduled review
hearing, pursuant to 120 [Code Mass. Regs. §] 301.01"); 120 Code
Mass. Regs. § 301.01(5) (2017) ("In cases involving inmates
serving life sentences with parole eligibility, a parole review
hearing occurs five years after the initial parole release
hearing, except where the Parole Board members act to cause a
review at an earlier time"). Similarly, here, if the judge
finds that the juvenile has violated the conditions of probation
and determines to revoke probation, the judge may resentence the
juvenile on the remaining nonhomicide offenses subject to
22"We refer to the period between the parole board's denial of parole and a prisoner's subsequent review as a 'setback' or 'set-back period.'" Roberio v. Massachusetts Parole Bd., 483 Mass. 429, 432 (2019). See G. L. c. 127, § 133A ("If [parole] is not granted, the parole board shall, at least once in each ensuing five year period, consider carefully and thoroughly the merits of each such case on the question of releasing such prisoner on parole"). 24
periodic parole review on the same or a shorter timetable than
that applicable to a juvenile who committed murder, who was
paroled, and whose parole was revoked.
3. Conclusion. We affirm the order denying the juvenile's
second motion for relief from unlawful restraint.
So ordered.