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SJC-13544
COMMONWEALTH vs. ZACHAIRAH Z., a juvenile.
Essex. April 1, 2024. – August 2, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.
Criminal Responsibility. Due Process of Law, Probation revocation, Mental health. Practice, Criminal, Affirmative defense, Revocation of probation. Mental Health. Youthful Offender Act.
Indictment found and returned in the Essex County Division of the Juvenile Court Department on February 5, 2019.
A proceeding for revocation of probation was heard by Kerry A. Ahern, J.
The Supreme Judicial Court granted an application for direct appellate review.
Joseph N. Schneiderman (Andrew H. daMota, Committee for Public Counsel Services, & Brian J. Anderson also present) for the juvenile. Kristen W. Jiang, Assistant District Attorney, for the Commonwealth. Cristina F. Freitas & Debbie F. Freitas, for youth advocacy division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief. 2
DEWAR, J. In this appeal, we are asked to decide whether
the affirmative defense of lack of criminal responsibility is
available in probation violation hearings. The juvenile was
alleged to have violated a condition of his probation requiring
him to obey State laws. He argued below that he lacked criminal
responsibility at the time of the alleged violation due to the
onset of his later-diagnosed schizophrenia, and that he
therefore could not be found in violation of his probation. The
judge concluded that a probationer is not entitled to raise lack
of criminal responsibility as an affirmative defense to an
alleged probation violation. She subsequently found the
juvenile in violation, revoked his probation, and imposed a
sentence of incarceration. On appeal, the juvenile seeks
reversal on the ground that due process requires that
probationers be permitted to raise lack of criminal
responsibility as an affirmative defense to a probation
violation.
We decline to import the affirmative defense of lack of
criminal responsibility into probation violation hearings,
because the principal inquiry at such a hearing -- whether the
probationer has violated a condition of probation -- is not a
question of criminal responsibility. This is not to say,
however, that evidence of mental illness is irrelevant at a
probation violation hearing. Due process precludes finding a 3
violation of probation conditions based on conduct beyond a
probationer's control, and evidence regarding a probationer's
mental illness may in some cases bear on the question whether
the probationer's conduct was willful. Moreover, if a violation
is found, a probationer may present evidence relating to mental
illness in arguing for a particular disposition, and the judge
should consider that evidence.
Here, consistent with an expert's evaluation of the
juvenile, the juvenile's proffered defense of lack of criminal
responsibility focused on an argument that he lacked the ability
to appreciate the criminality or wrongfulness of his conduct and
did not include an argument that he lacked the ability to
control his conduct. The judge did not err in finding a willful
violation in these circumstances. Nor did she abuse her
discretion in revoking his probation and imposing a sentence of
incarceration after having duly considered the evidence
regarding the juvenile's mental illness in determining the
disposition. We therefore affirm.1
1. Background. a. The juvenile's underlying adjudication
as a youthful offender. In February 2019, the juvenile tendered
1 We acknowledge the amicus brief submitted by the youth advocacy division of the Committee for Public Counsel Services, Massachusetts Association of Criminal Defense Lawyers, Citizens for Juvenile Justice, Mental Health Legal Advisors Committee, and retired Juvenile Court Judge Jay D. Blitzman. 4
a plea and was adjudicated as a youthful offender for breaking
and entering a vehicle in the daytime with intent to commit a
felony, in violation of G. L. c. 266, § 18. He was subsequently
placed on probation until his twenty-first birthday. The
conditions of the juvenile's probation required him to "[o]bey
all court orders and all local, [S]tate and [F]ederal laws."
b. Events leading to the alleged probation violation. The
facts concerning the juvenile's alleged probation violation are
not disputed before this court. In January 2022, when the
juvenile was nineteen years old and still on probation, he began
having hallucinations and delusions. His mother and his
Department of Youth Services caseworker observed that he was not
making sense or acting like himself. He went several days
without sleeping and missed work. The juvenile became
increasingly paranoid about his and his family's safety,
believing that he was being targeted and that his daughter was
being harmed. In order to protect himself from the perceived
threats, he obtained a firearm through connections he had from
prior gang involvement.
On January 21, 2022, the juvenile's mother called the
police to report that the juvenile was hallucinating and
becoming violent. When officers responded, the juvenile was in
a physical altercation with his landlord. A struggle between
the juvenile and the police officers ensued, but the juvenile 5
was eventually restrained. The juvenile was transported to a
hospital for a mental health evaluation. While the juvenile was
in the emergency room, a hospital security officer found, in the
pocket of the juvenile's shorts, a loaded semiautomatic pistol
with one bullet chambered. Police officers later ascertained
that the juvenile did not have a firearms license. The juvenile
was then discharged from the hospital and transported to the
police station. A criminal complaint issued from the District
Court charging him with unlawful possession of a loaded firearm,
in violation of G. L. c. 269, § 10 (n), and unlawful possession
of a firearm without a license, in violation of G. L. c. 269,
§ 10 (a). A notice of a probation violation was filed that same
day, alleging that the juvenile had violated the conditions of
his probation because he had "violated a criminal law."
c. The District Court case. In the District Court case,
the juvenile was detained without bail on a finding of
dangerousness under G. L. c. 276, § 58A. A judge subsequently
ordered that the juvenile be hospitalized for competency and
criminal responsibility evaluations under G. L. c. 123,
§ 15 (a), and his hospitalization was repeatedly extended under
G. L. c. 123, § 15 (b).
In June 2022, a forensic psychologist opined that the
juvenile was not competent to stand trial as he "continue[d] to
present as acutely mentally ill." The psychologist believed 6
that the juvenile's symptoms of psychosis were consistent with
schizophrenia. She further believed that he needed additional
hospitalization to stabilize his mental illness and to "mitigate
his risk of harm towards others." The juvenile was then civilly
committed under G. L. c. 123, § 16 (b).
The juvenile received treatment at a State hospital,
including antipsychotic medication, for several months. His
symptoms gradually improved. In November 2022, he was deemed
competent and discharged from the hospital.
In December 2022, the juvenile submitted to a criminal
responsibility evaluation by a forensic psychologist, Ryan
Brimigion, in connection with the pending firearms charges in
the District Court. The juvenile recounted to Brimigion the
events leading up to the firearm charges, including the onset of
his psychotic symptoms. The juvenile told Brimigion that, at
the time, he "thought the safest thing to do was get a gun." He
admitted that he knew it was illegal for him to possess a
firearm but stated he "wasn't thinking that at the time."
Brimigion diagnosed the juvenile with schizophrenia, noting that
it is "a substantial disorder of thought and perception, which
grossly impairs his judgment, behavior, and capacity to
recognize reality." Brimigion believed that the juvenile's
schizophrenia rendered him unable to appreciate the wrongfulness
of obtaining a firearm. Brimigion did not believe, however, 7
that the juvenile's schizophrenia had impaired his ability to
conform his conduct to the requirements of the law.
Based on Brimigion's evaluation, the juvenile is pursuing a
defense of lack of criminal responsibility in the District Court
case.
d. The probation violation proceedings. In February 2023,
a Juvenile Court judge held a hearing on the juvenile's alleged
violation of his probation conditions based on the same conduct
that led to the January 2022 firearm charges. The juvenile
sought to raise lack of criminal responsibility as an
affirmative defense to the probation violation. He further
argued that, even if the affirmative defense were not available,
his probation should not be revoked because his mental health
would be better served by remaining in the community, where he
could receive services not available to him in jail. And he
argued that, with treatment, he would not be a threat to the
community.
The Juvenile Court judge held that lack of criminal
responsibility is not an affirmative defense to an alleged
probation violation, but stated that she would take into account
the evidence regarding the juvenile's mental illness with
respect to the disposition. The judge found, by a preponderance
of the evidence, that the juvenile violated the conditions of
his probation by possessing a loaded firearm. Regarding the 8
disposition, the judge again acknowledged the evidence relating
to the onset of the juvenile's schizophrenia. She also noted
the juvenile's lengthy record of delinquency proceedings for
assault and battery, intimidation, harassment, and a firearm
offense; his prior gang involvement; and the evident ease with
which he remained able to obtain a firearm. Concluding that she
had "grave concerns" about the juvenile's "ability to maintain
compliance with the law outside in the community," she revoked
the juvenile's probation. She sentenced him to two years in a
house of correction, with 665 days of credit for time served, on
the underlying offense for which he had been adjudicated a
youthful offender.
The juvenile timely appealed, and we allowed his
application for direct appellate review.
2. Discussion. a. Standard of review. Following a
revocation of probation, as following a criminal trial, "we
review preserved constitutional claims to determine whether the
error, if any, was harmless beyond a reasonable doubt"
(quotation and citation omitted). Commonwealth v. Kelsey, 464
Mass. 315, 319 (2013). Absent constitutional error, we must
determine whether sufficient reliable evidence in the record
supports the judge's finding by a preponderance of the evidence
that the probationer violated the specified condition of
probation. Commonwealth v. Jarrett, 491 Mass. 437, 440 (2023). 9
We review the judge's decision to revoke probation for an abuse
of discretion. Id.
b. Criminal responsibility and mental illness in probation
violation proceedings. In a criminal trial, the affirmative
defense of lack of criminal responsibility "remove[s] from the
pale of criminal sanctions precisely those who are in no
meaningful sense responsible for their actions" (citation
omitted). Commonwealth v. McHoul, 352 Mass. 544, 552 (1967). A
defendant is not criminally responsible where the defendant, due
to a "mental disease or defect[,] . . . lacks substantial
capacity either to appreciate the criminality (wrongfulness) of
his conduct or to conform his conduct to the requirements of
law" (citation omitted). Id. at 546-547. Once the defense has
been raised, the Commonwealth must prove beyond a reasonable
doubt that the defendant was in fact criminally responsible.
Commonwealth v. Berry, 457 Mass. 602, 612 (2010), S.C., 466
Mass. 763 (2014). If the Commonwealth fails to meet its burden,
the defendant cannot be criminally punished for the conduct.
See McHoul, supra at 552.
We have never recognized an affirmative defense of lack of
criminal responsibility in probation violation hearings, which
"are not part of a criminal prosecution." Commonwealth v.
Durling, 407 Mass. 108, 112 (1990). Probation is "a legal
disposition which allows a criminal offender to remain in the 10
community subject to certain conditions and under the
supervision of the court." Id. at 111. A judge's factual
finding that a probationer has failed to comply with a probation
condition -- even a probation condition requiring compliance
with criminal laws -- does not amount to a finding of criminal
responsibility for the conduct that formed the violation. See
id. at 112. And if, after finding a probation violation, a
judge chooses to revoke probation and impose a sentence, that
sentence is not a criminal punishment for the probation
violation itself; the probationer is instead being "sentenced
anew on his [or her] underlying conviction" (citation omitted).
Commonwealth v. Eldred, 480 Mass. 90, 97 (2018).
Despite the fact that criminal responsibility is thus not
directly at issue in a probation violation hearing, the juvenile
claims that probationers' rights to due process under the
Fourteenth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights require importing
the affirmative defense of lack of criminal responsibility into
probation violation hearings. Drawing on a line of cases
holding that due process precludes finding a probation violation
or revoking probation based on circumstances beyond a
probationer's control, the juvenile equates such a lack of
willfulness with a lack of criminal responsibility. He argues
that due process therefore likewise precludes finding a 11
violation or revoking probation and imposing a sentence of
incarceration where, once the issue has been adequately raised,
the Commonwealth has failed to establish that a mentally ill
probationer is criminally responsible for the conduct forming
the violation.
We consider this claim under our familiar standard for
determining the process due in a probation violation hearing,
which need not include "the full panoply of constitutional
protections applicable at a criminal trial." Durling, 407 Mass.
at 112. "[W]hile probationers have fewer and 'more flexible'
due process rights at a probation violation hearing than do
defendants at a criminal trial, those constitutional rights
probationers do possess are protected with 'equal vigilance.'"
Jarrett, 491 Mass. at 442, quoting Kelsey, 464 Mass. at 319.
"To say that the concept of due process is flexible" is simply
"a recognition that not all situations calling for procedural
safeguards call for the same kind of procedure." Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). To determine whether a
particular procedural protection is constitutionally required in
a probation violation proceeding, we assess "the definition and
weight of the competing interests involved." Durling, supra at
113.
A probation violation hearing's purpose is to determine
whether the probationer violated the conditions of probation. 12
See Durling, 407 Mass. at 116. "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, or return the defendant to probation, with new or
revised conditions." Commonwealth v. Goodwin, 458 Mass. 11, 15
(2010). Ultimately, such hearings ensure that a sentence of
probation serves probation's two primary goals: "rehabilitation
of the defendant and protection of the public from the
defendant's potential recidivism." Eldred, 480 Mass. at 95.
A probationer "has a liberty interest at stake" in a
probation violation hearing. Durling, 407 Mass. at 115. This
liberty interest is "conditional"; "[i]t was given to [the
probationer] as a matter of grace when the State had the right
to imprison him," and "[i]f the probationer has violated the
conditions imposed upon him, his liberty can be taken away."
Id. However, "having been afforded the opportunity to
demonstrate rehabilitation and to reintegrate into society, a
probationer obtains an interest in avoiding the arbitrary
deprivation of that opportunity." Commonwealth v. Costa, 490
Mass. 118, 123 (2022). See Gagnon v. Scarpelli, 411 U.S. 778,
781-782 (1973). The probationer thus has "an interest in a
reliable, accurate evaluation of whether the probationer indeed
violated the conditions of his probation." Durling, supra at
116. 13
The Commonwealth shares this interest in a reliable and
accurate determination of whether conditions of probation have
been violated. "Both society and the probationer benefit when
the probationer is rehabilitated," and "[s]ociety only benefits
from a revocation when there is an accurate and reliable ground
upon which that revocation is based." Durling, 407 Mass. at
116. In addition, the Commonwealth has an interest in
"expeditiously dealing with" the "threat to the public welfare"
posed by a probationer "who is not complying with [probation]
conditions," including an interest "in imposing effective
punishment . . . when rehabilitation is not possible." Id. at
115-116. The Commonwealth also has a "strong interest in being
able to revoke probation in appropriate cases without having to
repeat its effort" in proving its case on the underlying offense
for which probation was originally imposed. Id. at 116. And,
in light of "the crowded dockets and the limited resources of
the trial courts" as well as the heavy burden posed by
"requiring extensive, fact-intensive hearings," the Commonwealth
has an interest in "maintaining administrative efficiency and
reducing costs." Id.
Both the United States Supreme Court and our court have
long recognized certain "minimum requirements" of due process at
a probation violation hearing, including notice and the
opportunity to be heard. See Durling, 407 Mass. at 113, and 14
cases cited. The hearing itself comprises "two distinct phases:
(1) the adjudicatory phase, and (2) the dispositional phase."
Eldred, 480 Mass. at 101. In the first phase, "the judge must
'determine, as a factual matter, whether the defendant has
violated the conditions of his [or her] probation'" by a
preponderance of the evidence. Id., quoting Commonwealth v.
Pena, 462 Mass. 183, 187 (2012). We have held that "[a]
defendant can be found in violation of a probationary condition
only where the violation was wilful." Eldred, supra, quoting
Commonwealth v. Henry, 475 Mass. 117, 121-122 (2016). Cf.
Bearden v. Georgia, 461 U.S. 660, 668 (1983) ("it is
fundamentally unfair to revoke probation automatically" where
"probationer has made all reasonable efforts" to obey conditions
of probation). In the second phase, a judge has discretion to
determine the appropriate disposition for a probationer found in
violation: whether to revoke probation, reprobate the
probationer on the same conditions, or modify the conditions of
probation.2 Eldred, supra at 102. The probationer is "entitled"
2 The judge "shall consider 'such factors as public safety; the circumstances of any crime for which the probationer was placed on probation; the nature of the probation violation; the occurrence of any previous violations; and the impact of the underlying crime on any person or community, as well as mitigating factors.'" Eldred, 480 Mass. at 103, quoting Rule 8(d) of the District/Municipal Court Rules for Probation Violation Proceedings. Accord Juvenile Court Standing Order 1- 17(VIII)(d) (2017). 15
at this second stage "to show that there was a 'justifiable
excuse for any violation or that revocation is not the
appropriate disposition.'" Id. at 103, quoting Pena, supra at
188, quoting Black v. Romano, 471 U.S. 606, 612 (1985).
"The right to present a defense" during the adjudicatory
phase of a probation violation hearing "is parallel to, but not
coextensive with, the right to present a defense at trial."
Kelsey, 464 Mass. at 322. Where a probationer claims a due
process right to present a particular defense, we "consider
whether a ruling in the probationer's favor will sufficiently
advance the 'reliable, accurate evaluation of whether the
probationer indeed violated the conditions of . . . probation,'
[Durling, 407 Mass. at 116], so as to outweigh the
Commonwealth's 'significant interests in informality,
flexibility, and economy,' [Gagnon, 411 U.S. at 788]." Kelsey,
supra. We have thus concluded, for example, that a
probationer's "presumptive due process right to call witnesses
in his or her defense . . . may be overcome by countervailing
interests" depending on the circumstances of a case, such as
where "the proposed testimony is unnecessary to a fair
adjudication of the alleged violation or unduly burdensome to
the witness or the resources of the court." Costa, 490 Mass. at
127, quoting Commonwealth v. Hartfield, 474 Mass. 474, 481
(2016). 16
Considering all of the interests at stake, we disagree with
the juvenile that due process requires permitting probationers
to raise the same affirmative defense of lack of criminal
responsibility that is available to defendants at criminal
trials. Importing this affirmative defense into probation
violation hearings would require the Commonwealth to prove --
whenever a question of criminal responsibility is raised by a
probationer -- that, in committing the particular alleged
violation of a probation condition, the probationer possessed
both the ability to act in conformance with the law's
requirements and the ability to appreciate the criminality or
wrongfulness of the conduct. See McHoul, 352 Mass. at 546-547.
This lack of criminal responsibility defense would not
directly advance the Commonwealth's and probationer's joint
interest in an accurate determination of the question at issue
in a probation violation hearing: "whether the probationer
indeed violated the conditions of . . . probation." Durling,
407 Mass. at 116. At a criminal trial, the affirmative defense
of lack of criminal responsibility does not dispute, as a
factual matter, that the charged offense took place. Rather,
the defense precludes imposing criminal liability and punishment
on the defendant. See McHoul, 352 Mass. at 555 (defense
recognizes "injustice of punishing" those lacking criminal
responsibility for their "wrong conduct"). This affirmative 17
defense is thus different from defenses like self-defense or
defense of property, which amount to "a claim that the
probationer's conduct was, in fact, lawful" and therefore would
not violate a probation condition requiring compliance with
criminal laws. Commonwealth v. Ogarro, 95 Mass. App. Ct. 662,
665-667 & n.3 (2019) (concluding that "when a defendant
adequately raises a claim of defense of property in the context
of probation violation proceedings, due process requires that
the Commonwealth disprove the defense by a preponderance of the
evidence," and distinguishing criminal responsibility defense).
Accordingly, where conduct forming a probation violation also
results in a new criminal charge, the fact that a probationer
may have a viable defense of lack of criminal responsibility to
the criminal charge does not by itself preclude a finding that
the probationer violated the probation condition.
Moreover, a probation revocation proceeding does not
concern whether a probationer deserves criminal punishment for
the conduct that violated the conditions of probation. As
discussed, where a judge does find a probation violation and
chooses to revoke probation, the sentence of incarceration
imposed is a sentence for the conviction for which the
probationer was on probation, not for the conduct forming the
probation violation. Eldred, 480 Mass. at 97. 18
And, while a probationer cannot be found in violation of
probation for conduct that was not willful, a lack of criminal
responsibility under the standard set forth in McHoul, 352 Mass.
at 546-547, does not necessarily negate the requirement of
willfulness, which concerns whether the conduct was within the
probationer's control. The definition of "willfulness" in our
jurisprudence depends on the context. Millis Pub. Sch. v. M.P.,
478 Mass. 767, 776 (2018). With respect to probation
violations, the requirement of willfulness is not the same as a
mens rea under a criminal law, see, e.g., Commonwealth v. Adams,
482 Mass. 514, 526-527 (2019), but instead originated from the
recognition that, as a matter of fundamental fairness, due
process precludes revoking probation where the basis for the
probation violation was beyond the probationer's control, see
Commonwealth v. Canadyan, 458 Mass. 574, 578-579 (2010), citing
Bearden, 461 U.S. at 669 n.10.
A probation violation is not willful, for example, if a
probationer "cannot reasonably afford to pay" ordered
restitution, Henry, 475 Mass. at 122, or is homeless and without
access to an electrical outlet or telephone line necessary for
compliance with a condition to wear a global positioning system
monitor, Canadyan, 458 Mass. at 578-579. In circumstances more
analogous to the case here, the probationer in Eldred, 480 Mass.
at 104, urged this court to hold that, where a probationer has a 19
substance use disorder, the probationer's violation of a
condition to avoid drug use is not willful. Although not
reaching the question on the record presented, we framed the
question for future cases as whether a "violation was not wilful
because [substance use disorder] affects the brain in such a way
that certain individuals cannot control their drug use"
(emphasis added). Id.
Criminal responsibility is not congruent with willfulness
in the sense pertinent at probation violation proceedings
because criminal responsibility involves a broader question
about a defendant's understanding of the wrongfulness or
criminality of his or her conduct. See McHoul, 355 Mass. at
555. Indeed, here, the expert who evaluated the juvenile for
criminal responsibility in his District Court case opined that,
although the juvenile's ability to appreciate the wrongfulness
of his conduct was impaired, his ability to conform his conduct
to the requirements of the law remained intact. Accordingly,
where a defendant cannot appreciate the criminality or
wrongfulness of his conduct, a defendant may prevail on an
affirmative defense of lack of criminal responsibility even if
the defendant acted willfully.3
We note, moreover, that it is not clear that conduct 3
violating a probation condition -- such as a failure to attend a meeting with a probation officer -- always could or should be 20
While thus not directly advancing the interest in an
accurate and reliable determination of whether a willful
violation of a probation condition occurred, importing the
affirmative defense of lack of criminal responsibility into
probation violation hearings would infringe on the
Commonwealth's interests in mitigating potential threats to
public safety and resolving probation violations efficiently.
See Durling, 407 Mass. at 115-116. Because the defense requires
that a defendant understand the criminality or wrongfulness of
the conduct at issue, recognizing the defense would in some
cases preclude finding a violation -- and deprive the judge of
the concomitant opportunity to reconsider whether probation
remained appropriate or whether additional conditions should be
imposed -- no matter how clear the fact that a probationer had
failed to comply with a condition of probation, and even where
experts agreed that mental illness did not deprive the
probationer of the volitional ability to comply. Moreover,
requiring the Commonwealth to prove, in every case where a
appreciated to be criminal or wrongful within the meaning of the standard for lack of criminal responsibility. See Commonwealth v. Goudreau, 422 Mass. 731, 738 (1996) (model jury instruction on lack of criminal responsibility providing that "'[c]riminality' means the legal import of conduct" while "'wrongfulness' means the moral import"). While the juvenile here was alleged to have violated his probation by violating criminal laws, his argument in favor of recognizing this affirmative defense appears to sweep more broadly, urging us to recognize the defense to any probation violation. 21
probationer raised the defense, that the probationer could
appreciate the criminality or wrongfulness of the conduct
forming the basis of the alleged violation would entail an
additional "extensive, fact-intensive" inquiry. Id. at 116.
The affirmative defense would thereby hinder the Commonwealth in
"expeditiously dealing with" the "threat to the public welfare"
posed by a probationer "who is not complying with [probation]
conditions." Id. at 115-116.
We therefore conclude that due process does not require
recognizing the affirmative defense of lack of criminal
responsibility in probation violation proceedings, and we
decline to do so. Importing the defense into such proceedings
would not "sufficiently advance the reliable, accurate
evaluation of whether the probationer indeed violated the
conditions of his probation . . . so as to outweigh the
Commonwealth's significant interests in informality,
flexibility, and economy" (quotations and citations omitted).
Kelsey, 464 Mass. at 322.
We note that our holding today is in accord with most other
State and Federal courts that have considered the question. See
People v. Allegri, 109 Ill. 2d 309, 314-316 (1985), and cases
cited. See also W.R. LaFave & J.D. Ohlin, Criminal Law
§ 7.1(b), at 482 n.26 (7th ed. 2023) (LaFave). While addressing
differing probation statutes and not all expressly framing the 22
issue as a matter of due process, these cases similarly
recognize that, unlike criminal trials, probation violation
proceedings are "not designed to punish the violator." LaFave,
supra, quoting 2 N. Cohen, The Law of Probation and Parole
§ 22:24 (2d ed. 1999). See, e.g., Knight v. Estelle, 501 F.2d
963, 964-965 (5th Cir. 1974), cert. denied, 421 U.S. 1000 (1975)
("the revocation authority . . . does not sit to punish"; "[i]ts
concern is whether the law has been obeyed, not whether it has
been culpably broken"). At most, the cases relied on by the
juvenile and by his amici acknowledge that mental illness may in
some circumstances bear on willfulness and also may be relevant
in considering the appropriate disposition once a violation is
found. See, e.g., State v. Villiarimo, 132 Haw. 209, 220 (2014)
(expert testimony about probationer's mental health would have
been relevant to question of willfulness of violation); State v.
Olson, 2003 ND 23, ¶ 16 (while insanity is not available defense
to probation violations, insanity "may be a relevant mitigating
factor in determining if probation should be revoked"); Sharp v.
State, 2008 WY 142, ¶ 11 (probationer's mental illness could
render violation of probation not willful).
We too recognize that evidence of mental illness is
distinct from the affirmative defense of lack of criminal
responsibility. See generally McHoul, 352 Mass. at 546-547.
Our holding today does not preclude a probationer from 23
introducing evidence of mental illness at a probation violation
hearing where relevant. As discussed, a probation violation
must be willful, and there may be instances in which
probationers, due to mental illness, "cannot control" their
conduct. See Eldred, 480 Mass. at 104.
Evidence of mental illness is also highly relevant to a
judge's determination on the disposition after finding a
probation violation. "The rehabilitative goals of probation,
coupled with the judge's dispositional flexibility at each stage
of the process, enable and require judges to consider the unique
circumstances facing each person they encounter -- including
whether that person suffers from" mental illness. Eldred, 480
Mass. at 95. Moreover, mental illness may be relevant at the
dispositional stage in considering whether there exists a
mitigating factor to the violation itself. See Black, 471 U.S.
at 612 (due process requires opportunity to show "a justifiable
appropriate disposition"). Indeed, in 2023, we issued revised
standards to enhance our judiciary's response to the impact of
mental health conditions as well as substance use and co-
occurring disorders, providing that judges and court personnel
should affirmatively "look for indications of . . . mental
health conditions . . . that may be a factor related to a case
before the court." Supreme Judicial Court, Standards on 24
Substance Use Disorders & Mental Health Conditions 15 (Oct. 10,
2023) (standards). The standards urge judges to "consider
ordering treatment, if appropriate and if authorized by law,"
tailored to "a party's treatment needs" and "selected based on
clinical input identifying the type of evidence-based treatment
that will work best for the party, with full consideration of
public safety." Id. at 19. And the standards acknowledge the
"key role" of the probation department in, among other things,
arranging treatment placements and monitoring compliance with
recommended treatment interventions for probationers with mental
illness. Id. at 14.
In sum, while we reject the juvenile's request that we
newly recognize lack of criminal responsibility as an
affirmative defense to an alleged probation violation, we
underscore the relevance of evidence regarding mental illness in
probation violation proceedings.
c. The juvenile's case. Having concluded that due process
does not require permitting a probationer to defend against a
probation violation on the ground of lack of criminal
responsibility, we discern no error by the judge in preventing
the juvenile from raising that defense. And the record
supported by a preponderance of the evidence the judge's finding
that the juvenile violated the condition of his probation
requiring him to "[o]bey all . . . [S]tate . . . laws"; the 25
juvenile did not contest that he possessed a loaded firearm
without a license or that he acted willfully.
Nor did the judge abuse her discretion with respect to the
disposition. The record reflects that the judge carefully
considered all of the evidence before her, including the
evidence regarding the juvenile's mental illness. In arguing
against revocation, the juvenile cited his expert's opinion that
he did not have an ability to appreciate the wrongfulness of his
conduct at the time of the violation; however, as noted, the
expert opined that the juvenile did not lack the ability to
conform his conduct to the requirements of the law. The judge
balanced the evidence regarding the onset of the juvenile's
schizophrenia against other considerations, including her "grave
concerns" about the threat to public safety posed by the
juvenile based on the past offenses in his lengthy delinquency
record, the seriousness of the underlying offense, and the ease
with which he obtained a firearm. While the juvenile argues
that Juvenile Court judges have a special obligation to consider
alternatives to incarceration pursuant to that court's mission
to rehabilitate juvenile offenders, see Commonwealth v. Samuel
S., 476 Mass. 497, 506-507 (2017), and that his mental health
would have better been served by treatment and supervision in
the community, we cannot conclude that the judge abused her
discretion in determining that revocation was proper in the 26
circumstances here. Although revoking the probation of a person
suffering from a mental illness may in some circumstances be an
abuse of discretion, this is not such a case.4
3. Conclusion. We hold that due process does not require
permitting a probationer to raise the affirmative defense of
lack of criminal responsibility in probation violation
proceedings. Probationers nevertheless may present relevant
evidence relating to mental illness in probation violation
hearings. Judges should consider such evidence at the
adjudicatory phase if the evidence bears on whether a violation
was willful, in the sense of having been within the
probationer's control. And, if the judge finds a violation
occurred, the judge should consider evidence relating to mental
illness in determining the appropriate disposition.
4 To the extent it rises to the level of appellate argument, we also reject the juvenile's one-sentence assertion that revoking his probation and imposing a sentence of incarceration violated the prohibition on cruel or unusual punishment under art. 26 of the Massachusetts Declaration of Rights because it amounted to punishing him for his status as a person with schizophrenia. The juvenile was not punished for being a person with schizophrenia, but instead for his adjudication as a youthful offender for the offense of breaking and entering. And, as discussed, while his sentence of incarceration for that offense was imposed upon a probation violation that occurred when he was suffering from mental illness, the expert who evaluated the juvenile for purposes of criminal responsibility for that conduct opined that the juvenile's mental illness did not deprive him of the ability to conform his conduct to the requirements of the law. 27
Here, we affirm the order finding a probation violation,
revoking probation, and imposing a sentence on the juvenile,
because the judge did not err in declining to entertain the
defense of lack of criminal responsibility; the record supported
her determination that the juvenile violated a condition of his
probation; and the judge did not abuse her discretion in
revoking his probation and imposing a sentence of incarceration
on the underlying offense.
So ordered.