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SJC-12746
TIMOTHY DEAL vs. MASSACHUSETTS PAROLE BOARD.
Middlesex. November 5, 2019. - April 6, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Parole. Imprisonment, Parole. Administrative Law, Decision, Judicial review.
Civil action commenced in the Superior Court Department on March 14, 2018.
The case was heard by C. William Barrett, J., on motions for judgment on the pleadings.
The Supreme Judicial Court granted an application for direct appellate review.
Merritt Schnipper (Barbara Kaban also present) for the plaintiff. Matthew P. Landry, Assistant Attorney General, for the defendant. David Rassoul Rangaviz, Committee for Public Counsel Services, & Benjamin Niehaus, for Massachusetts Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief. 2
BUDD, J. The plaintiff, Timothy Deal, is serving a life
sentence for committing murder in the second degree when he was
seventeen. He sought review of the parole board's (board's)
denial of his application for parole in the Superior Court,
alleging that the board abused its discretion by failing to
analyze properly the "distinctive attributes of youth" in coming
to its decision. See Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655, 675 (2013) (Lenk, J., concurring)
(Diatchenko I), quoting Miller v. Alabama, 567 U.S. 460, 472
(2012). The judge entered judgment in favor of the board, and
the plaintiff appealed. We allowed Deal's application for
direct appellate review, and for the reasons detailed infra, we
affirm the judge's order allowing the board's motion for
judgment on the pleadings.1
Background. 1. Underlying facts. We recount the facts as
found by the board, supplemented by uncontested facts presented
in Deal's parole application and hearing. The victim and Deal
were next-door neighbors and close friends. In September 2001,
the victim, who was facing drug charges, agreed to become an
informant for police and purchased marijuana from Deal in a
"controlled buy." Based on information provided by the victim,
1 We acknowledge the amicus brief submitted in support of Deal by the Massachusetts Association of Criminal Defense Lawyers and the youth advocacy division of the Committee for Public Counsel Services. 3
police secured a warrant to search Deal's home, where Deal
shared a bedroom with his older brother, and subsequently
arrested Deal and his brother on drug and firearm charges.
In January 2002, after Deal's release on bail, he and a
companion went to the victim's home. A fight ensued between
Deal and the victim, during which Deal stabbed the victim
multiple times. The victim died from his wounds that evening.
Two days after his arrest on murder charges, Deal telephoned the
victim's mother; when she asked why he killed her son, Deal
responded, "[The victim] was a snitch. . . . [W]e tried to keep
it from you."
Deal was seventeen years old at the time of the killing.
He was indicted and tried for murder in the first degree, and a
jury convicted him of the lesser included offense of murder in
the second degree. Deal was sentenced to life with the
possibility of parole after fifteen years, making him eligible
for parole in early 2017.
2. The parole hearing. Deal applied for parole in
December of 2016. In advance of his parole hearing, Deal
submitted a memorandum describing his childhood, his
rehabilitation, and his plans for housing and employment if
paroled. Deal also submitted a report by a forensic
psychologist concluding that Deal would be a low risk for
recidivism if paroled based on risk assessments and an interview 4
with Deal. The application included submissions in support of
parole from more than ten friends and family members, including
the victim's mother. The Boston police department and the
district attorney for the Suffolk district submitted letters in
opposition, both alleging that Deal killed the victim in
retaliation for acting as an informant.
At the hearing in December 2016, Deal gave an opening
statement apologizing to the victim's family and stating his
responsibility and regret for the murder. When asked to give
his account of the killing, Deal stated that he had not planned
or intended to kill the victim in retaliation for cooperating
with police; rather, an argument over "something petty"
escalated into a fight during which Deal grabbed a knife from a
friend and then stabbed the victim multiple times. Board
members noted their concern that Deal may have killed the victim
in retaliation for acting as a police informant, questioning in
particular why, two days after Deal's arrest for murder, he
called the victim's mother and told her the victim was a
"snitch." In response, Deal characterized the telephone call as
an attempt to give context for why he, a close friend of the
victim's family, ended up fighting and killing the victim.
In its written decision, the board denied parole and
scheduled Deal's next review for December 2020, determining that
Deal "[had] not demonstrated a level of rehabilitative progress 5
that would make his release compatible with the welfare of
society," and that Deal's "version of the offense . . . [was]
not plausible." After exhausting his administrative appeals,
Deal challenged the board's decision by bringing a complaint in
the nature of certiorari in the Superior Court. See Diatchenko
v. District Attorney for the Suffolk Dist., 471 Mass. 12, 30
(2015) (Diatchenko II). A judge in the Superior Court granted
the board's motion for judgment on the pleadings and denied
Deal's cross motion for the same, concluding that the board's
decision was not an abuse of discretion. We allowed Deal's
application for direct appellate review.
Discussion. General Laws c. 127, § 130, sets forth the
standard the board is to apply when making parole decisions.
The board may grant parole only where it finds,
"after consideration of a risk and needs assessment, that there is a reasonable probability that, if the prisoner is released with appropriate conditions and community supervision, the prisoner will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society."
Id.
The board is afforded significant deference with regard to
its parole decisions. As the granting of parole is a
discretionary function of the executive branch, generally the
judiciary's role is limited to reviewing the constitutionality
of the board's decision and proceedings. Commonwealth v. Cole, 6
468 Mass. 294, 302-303 (2014). See, e.g., Crowell v.
Massachusetts Parole Bd., 477 Mass. 106 (2017) (reviewing claims
that parole decision violated constitution and statutes, and
remanding for further development of record); Quegan v.
Massachusetts Parole Bd., 423 Mass. 834 (1996) (reviewing
constitutional claims that board may not consider refusal to
admit guilt in parole determination); Doucette v. Massachusetts
Parole Bd., 86 Mass. App. Ct. 531 (2014) (reviewing alleged due
process violations in parole revocation proceeding, and
conducting certiorari review of merits of board's decision to
revoke parole).
Parole decisions for juvenile homicide offenders like the
plaintiff are handled differently, however. Unlike adult
offenders, juveniles have "diminished culpability and greater
prospects for reform, and, therefore, they do not deserve the
most severe punishments," including sentences of life without
parole (quotations omitted). Diatchenko I, 466 Mass. at 659-
660, citing Miller, 567 U.S. at 471. "[B]ecause the brain of a
juvenile is not fully developed, either structurally or
functionally, by the age of eighteen, a judge cannot find with
confidence that a particular offender, at that point in time, is
irretrievably depraved." Diatchenko I, supra at 670. In
particular, "[r]elying on science, social science, and common
sense," the United States Supreme Court has pointed to three 7
"distinctive characteristics of youth" that make juveniles
constitutionally different from adults for purposes of
sentencing. Id. at 660, 663.
These characteristics include what are commonly referred to
as the Miller factors: (1) children's "lack of maturity" and
"underdeveloped sense of responsibility, leading to
recklessness, impulsivity, and heedless risk-taking"; (2) their
"vulnerability to negative influences and outside pressures,
including from their family and peers," and relatedly, their
"limited control over their own environment" and inability to
"extricate themselves from horrific, crime-producing settings";
and (3) their "unique capacity to change as they grow older"
(alteration and quotations omitted). Diatchenko II, 471 Mass.
at 30, citing Diatchenko I, 466 Mass. at 660. See Miller, 567
U.S. at 471.
Thus, we held that juvenile offenders who have been
convicted of murder in the first degree may not be sentenced to
life in prison without the possibility of parole. Diatchenko I,
466 Mass. at 669-671. We went on to hold that juvenile
offenders sentenced to a mandatory term of life in prison,
(i.e., those convicted of murder in the first or second degree)
are entitled to a "meaningful opportunity to obtain release [on
parole] based on demonstrated maturity and rehabilitation"
(citation omitted). Id. at 674. See Commonwealth v. Okoro, 471 8
Mass. 51, 62-63 (2015); G. L. c. 119, § 72B. We further held
that a "meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation" means that the board
must consider the "distinctive attributes of youth" in
determining whether the juvenile is likely to reoffend.
Diatchenko II, 471 Mass. at 23.
In addition, although in the normal course parole decisions
are not subject to judicial review, Cole, 468 Mass. at 302-303,
we have determined that to ensure that juvenile homicide
offenders receive a meaningful opportunity for parole, they are
entitled to judicial review of board decisions on their parole
applications under the abuse of discretion standard.2 Diatchenko
II, 471 Mass. at 14, 31. "In this context, a denial of a parole
application by the board will constitute an abuse of discretion
only if the board essentially failed to take [the Miller]
factors into account, or did so in a cursory way."3 Id. at 31.
2 Juvenile homicide offenders also must have access to counsel and access to funds to retain counsel and experts. Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 14 (2015) (Diatchenko II).
3 This abuse of discretion standard is grounded in our balancing of the two constitutional considerations discussed supra: the fundamental imperative of proportionality in sentencing under art. 26 of the Massachusetts Declaration of Rights, and the "strict separation of judicial and executive powers" under art. 30. See Diatchenko II, 471 Mass. at 27-28. 9
The plaintiff contends that the board abused its discretion
by denying him parole without more thoroughly analyzing various
factors related to his youth. Deal argues that in order to
enable effective judicial review, and guarantee juvenile
homicide offenders a meaningful opportunity to obtain release,
the parole board's decisions must "expressly address in writing
the youth-specific considerations present in each case, place
that evidence in the context of the overall parole standard, and
explain by reference to that evidence why the [b]oard
nevertheless denied parole if it did." The judge determined
that "[w]hile the better practice may have been for the board to
more specifically outline its findings and discussion in
relation to the individual Miller factors, as opposed to its
general statement that it considered them, such a level of
detail is not required, particularly given the discretion
afforded to the board." Upon review, we conclude that the board
did not abuse its discretion, as it adequately considered the
requisite youth-related factors.4
In support of his argument, the plaintiff points to the
fact that the board simply recites the Miller factors as among
the considerations relevant to its decision without connecting
those factors to any of the evidence presented at the hearing.
4 We review the Superior Court judge's ruling de novo. Champa v. Weston Pub. Sch., 473 Mass. 86, 90 (2015). 10
We agree with the plaintiff and the concurrence that merely
stating that the board considered the Miller factors, without
more, would constitute a cursory analysis that is incompatible
with art. 26 of the Massachusetts Declaration of Rights. See
Diatchenko II, 471 Mass. at 31. However, upon review of the
board's written decision, it is clear that the board's single
mention of the Miller factors was not the beginning and end of
the board's consideration of those factors.
The decision described various negative influences and
stressors in Deal's environment leading up to the killing,
including Deal's adult brother enlisting his aid in dealing
drugs, his family's mounting financial and legal hardships, and
his struggle to adapt to a change in schools. Although the
board did not explicitly state the connection, these facts
clearly relate to Deal's "vulnerability to negative influences
and outside pressures, including from [his] family and peers"
and his "limited control over [his] own environment" (alteration
and quotation omitted). See Diatchenko II, 471 Mass. at 30,
citing Miller, 567 U.S. at 471. Further, although the board
found that Deal's "version of the offense" was not plausible,
its written decision acknowledged the "loss of friendship" and
escalating confrontations between Deal and the victim stemming
from Deal's arrest on information provided by the victim --
facts that illuminate the board's consideration of Deal's "lack 11
of maturity . . . leading to recklessness, impulsivity, and
heedless risk-taking." See Diatchenko II, supra. Finally, the
board's decision noted Deal's participation in various
rehabilitative programs, employment, and religious activities
while incarcerated, each of which pertains to Deal's "unique
capacity to change as [he] grow[s] older." See id.
Although the board's decision did not designate each fact
to a particular attribute of youth, the decision's inclusion of
these facts supports the board's certification that it did
consider the Miller factors in a noncursory way. Had the board
expressly connected these facts to the Miller factors, there
would have been no doubt that it gave thoughtful consideration
to those factors. Making these connections explicit, rather
than implicit, will allow the board to make clear to reviewing
courts that it gave due consideration to the Miller factors.
The plaintiff also argues that the board impermissibly
based its decision on factors that are "irrelevant, or at least
of diminished significance, to juvenile cases." In particular,
Deal contends that the board focused more on the conclusion that
Deal's version of events was "not plausible" than on the
attributes of youth. The plaintiff's argument fundamentally
misunderstands our holding in Diatchenko II. Although we held
that the board must consider the "distinctive attributes of
youth" in order for a juvenile homicide offender to have a 12
"meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation," we did not say that the board's
decision had to rise or fall on those factors. See Diatchenko
II, 471 Mass. at 23, 30. It is apparent from the decision that
the board was primarily concerned about the plaintiff's failure
to provide a "plausible" account of why he stabbed the victim
fourteen years after he committed the crime. This concern is
indicative of the plaintiff's incomplete "acknowledgement of his
wrongdoing or . . . his refusal to acknowledge his guilt" --
considerations which may be relevant to rehabilitation, see
Quegan, 423 Mass. at 836 -- rather than a rigid application of
the traditional penological justifications (incapacitation,
retribution, or deterrence), which are "suspect" as applied to
juvenile sentences, see Diatchenko I, 466 Mass. at 670-671.5
Further, the board's concern, noted in its decision, that Deal
had not gone on record to take responsibility for the killing
until ten years after the crime reinforces the board's
legitimate reasoning that a longer period of rehabilitation
5 Importantly, the board's written decision did not adopt the district attorney's argument that "[a] positive vote for parole . . . may send the wrong message to other criminals." Although the board noted its concern that Deal may have killed the victim in retaliation for being a "snitch," it did so in the context of Deal's rehabilitation, as evidenced by his possible lack of acknowledgment of the full severity of his crime. 13
would be necessary before release is compatible with the welfare
of society.
The plaintiff argues as well that the board abused its
discretion by denying parole without discussing the details of
the risk assessment and report conducted by a forensic
psychologist who concluded that Deal would be a low risk for
recidivism if paroled. In its decision, the board noted that it
"considered testimony" from the psychologist and that it
"considered a risk and needs assessment," without discussing
what the expert and risk assessment found or explaining why
those findings were not enough to warrant parole. By denying
parole on the grounds that Deal "[had] not demonstrated a level
of rehabilitative progress that would make his release
compatible with the welfare of society," the necessary
implication is that, in the board's view, Deal's incomplete
rehabilitation contradicted the risk assessment and the forensic
psychologist's conclusion that Deal would be a low risk to
recidivate. "[T]he opinion of a witness testifying on behalf of
a sex offender need not be accepted by the hearing examiner even
where the board does not present any contrary expert testimony."
See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 112 (2014), quoting Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 637 (2011). Nevertheless, the better practice, 14
as described in the concurrence, would be to articulate the
reasons and evidence overcoming the contrary expert opinion.
As discussed supra, ultimately the board must determine
whether there is "a reasonable probability" that the applicant
would not recidivate if given the proper support, and that
"release is not incompatible with the welfare of society." See
G. L. c. 127, § 130. Although our review of parole decisions
for juvenile homicide offenders is limited, we note that here,
even taking into consideration youth-related factors, the board
had reason to conclude that the plaintiff had failed to
demonstrate a "level of rehabilitative progress that would make
his release compatible with the welfare of society." The Miller
factors, although an important consideration, may or may not
play a determinative role in the board's decision depending on
the circumstances of a particular applicant. In denying Deal's
parole application, the board determined that Deal's incomplete
rehabilitation, as evidenced by his failure to give a plausible
account of his motivations for killing the victim, outweighed
the favorable Miller evidence. In future cases where, as here,
evidence relevant to the Miller factors militates in favor of
release but the board nevertheless denies parole, the better
practice would be to specify the reasons and supporting facts
that overcome the Miller considerations. Additionally, in light
of the concerns raised by the concurrence, where the board bases 15
its denial of parole on a determination that the applicant's
version of events is not plausible, the board should indicate
both why that version is not plausible and how that
implausibility bears on the applicant's likelihood to recidivate
or the compatibility of release with the welfare of society.
Conclusion. For the foregoing reasons, we conclude that
the board's decision denying Deal's parole application was not
an abuse of discretion. The board based its decision on the
statutory standard of rehabilitation and compatibility with the
welfare of society, and its consideration of the distinctive
attributes of youth was not merely cursory. Accordingly, the
Superior Court judge's order granting the board's motion for
judgment on the pleadings and denying Deal's motion for the same
is affirmed.
So ordered. GANTS, C.J. (concurring, with whom Lenk, J., joins). In
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 671 (2013) (Diatchenko I), we held that life imprisonment
for a juvenile, even when convicted of murder, is cruel or
unusual punishment in violation of art. 26 of the Massachusetts
Declaration of Rights unless the juvenile has the possibility of
being released on parole. We also held that, when the juvenile
becomes eligible for parole, the parole board (board) must
provide the juvenile with a "meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation." Id.
at 674, quoting Graham v. Florida, 560 U.S. 48, 75 (2010). And
in Diatchenko v. District Attorney for the Suffolk Dist., 471
Mass. 12, 24-29 (2015) (Diatchenko II), we declared that a
"meaningful opportunity to obtain release" requires not only a
right to the assistance of counsel and a right to have access to
the assistance of expert witnesses, but also a right of judicial
review "to ensure that the board exercises its discretionary
authority to make a parole decision for a juvenile homicide
offender in a constitutional manner."
In Diatchenko II, supra at 30, we also articulated what it
means for the board to exercise its discretionary authority in a
constitutional manner. Looking to the reasoning in Miller v.
Alabama, 567 U.S. 460, 471 (2012), we stated that the board must
consider that juveniles have "diminished culpability" for the 2
murder they committed because of the "distinctive attributes" of
youth: a "lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and
heedless risk-taking; vulnerability to negative influences and
outside pressures, including from their family and
peers; . . . limited contro[l] over their own
environment[;] . . . [and lack of] the ability to extricate
themselves from horrific, crime-producing settings" (quotations
and citation omitted). Diatchenko II, supra. The board must
also consider that juveniles have the "unique capacity to change
as they grow older" and therefore "greater prospects for reform"
(citations omitted). Id. Unless the board considers these
distinctive attributes of youth, as well as the consequences of
aging into adulthood, the board denies the juvenile "a real
chance to demonstrate maturity and rehabilitation." Id.
The purpose of judicial review is to ensure that "the board
has carried out its responsibility to take into account the
attributes or factors just described in making its decision."
Id. Recognizing that "the decision whether to grant parole to a
particular juvenile homicide offender is a discretionary
determination by the board," we apply the abuse of discretion
standard. Id. at 31. "[A] denial of a parole application by
the board will constitute an abuse of discretion only if the 3
board essentially failed to take these factors into account, or
did so in a cursory way." Id.
We have yet to articulate how we can ensure that the board
acted in a constitutional manner by providing a juvenile
homicide offender a "meaningful opportunity to obtain release"
after seriously considering the "distinctive attributes" of
youth. I conclude that the only way we can ensure that the
board did not abuse its discretion is to require the board to
show through its findings that it gave meaningful individualized
consideration to these attributes of youth in reaching its
decision. I also conclude that the board's findings here fail
to meet that requirement for three reasons.
First, the board's decision consists of three sections: a
statement of the facts of the underlying murder case, a
statement describing the evidence presented at the parole
hearing, and the "decision." As shown by the appendix to the
amicus brief submitted by the Massachusetts Association of
Criminal Defense Lawyers and the youth advocacy division of the
Committee for Public Counsel Services, apart from two sentences
specific to Deal, the "decision" is boilerplate language used in
virtually all forty-five of the juvenile homicide offender
parole decisions it reviewed, with only the name of the juvenile 4
changed.1 Essentially, the board simply identifies the so-called
Miller factors and declares in all these cases that it
1 The "decision" section is reprinted below, with the boilerplate language highlighted in bold:
"The Board is of the opinion that Mr. Deal has not demonstrated a level of rehabilitative progress that would make his release compatible with the welfare of society. The Board recommends that Mr. Deal partake in more programming, such as Criminal Thinking and Restorative Justice. The Board believes that the version of the offense given by Mr. Deal is not plausible. A longer period of positive institutional adjustment and programming would be beneficial to Mr. Deal's rehabilitation. The Board considered all factors relevant to the Diatchenko decision in making this determination.
"The applicable standard used by the Board to assess a candidate for parole is: 'Parole Board Members shall only grant a parole permit if they are of the opinion that there is a reasonable probability that, if such offender is released, the offender will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society.' 120 C.M.R. 300.04. In the context of an offender convicted of first or second degree murder, who was a juvenile at the time the offense was committed, the Board takes into consideration the attributes of youth that distinguish juvenile homicide offenders from similarly situated adult offenders. Consideration of these factors ensures that the parole candidate, who was a juvenile at the time they committed murder, has 'a real chance to demonstrate maturity and rehabilitation.' Diatchenko v. District Attorney for the Suffolk District, 471 Mass. 12, 30 (2015); See also Commonwealth v. Okoro, 471 Mass. 51 (2015).
"The factors considered by the Board include the offender's 'lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk taking; vulnerability to negative influences and outside pressures, including from their family and peers; limited control over their own environment; lack of the ability to extricate themselves from horrific, crime- producing settings; and unique capacity to change as they 5
considered them, without demonstrating in any way how it
considered them. I do not suggest that the board must provide a
detailed analysis of each Miller factor, but it must do more
than simply declare in a perfunctory manner that it considered
them. There must be some meaningful individualized analysis,
supported by evidence in the parole record, as to whether the
Miller factors contributed to cause the parole applicant's
participation in the murder, and as to whether his or her
conduct while incarcerated has demonstrated that he or she has
outgrown these attributes of youth through maturity and
rehabilitation.
Second, under G. L. c. 127, § 130, a parole permit "shall
be granted only if the board is of the opinion, after
consideration of a risk and needs assessment, that there is a
reasonable probability that, if the prisoner is released with
appropriate conditions and community supervision, the prisoner
grow older.' Id. The Board has also considered a risk and needs assessment, and whether risk reduction programs could effectively minimize Mr. Deal's risk of recidivism. After applying this standard to the circumstances of Mr. Deal's case, the Board is of the opinion that Mr. Deal is not yet rehabilitated, and his release is not compatible with the welfare of society. Mr. Deal, therefore, does not merit parole at this time.
"Mr. Deal's next appearance before the Board will take place in four years from the date of this hearing. During the interim, the Board encourages Mr. Deal to continue working towards his full rehabilitation." 6
will live and remain at liberty without violating the law and
that release is not incompatible with the welfare of society."
Section 130, therefore, requires the board to make two
determinations: whether "the prisoner will live and remain at
liberty without violating the law," and whether "release is not
incompatible with the welfare of society." Id. The board
effectively conflates the two by finding that Deal's
"rehabilitative progress," which appears to be its proxy term
for the risk of recidivism, falls short of what would be needed
to make his release "compatible with the welfare of society." I
agree with the board that the prisoner's risk of recidivism is
the determinative factor. See, e.g., Crowell v. Massachusetts
Parole Bd., 477 Mass. 106, 113 (2017) ("the board must be able
to consider whether the symptoms of a prisoner's disability mean
that he or she has a heightened propensity to commit crime while
released on parole"); Diatchenko II, 471 Mass. at 23 ("The
question the board must answer for each inmate seeking parole
[is], namely, whether he or she is likely to reoffend . . .");
Jimenez v. Conrad, 678 F.3d 44, 46 (1st Cir. 2012) (no matter
how good applicant's prison conduct may have been, parole shall
be granted "only if" board finds that there is "reasonable
probability" that prisoner will not violate law if granted
release). 7
But, as the court notes, ante at , the board's
determination regarding Deal's risk of recidivism appears to
rest primarily on its finding that Deal's description of his
offense "is not plausible." The board, however, fails to
identify what it finds implausible about Deal's description.
Deal accepted responsibility for the murder, expressed remorse
for his role in it, and admitted that the victim's cooperation
with the police, which resulted in Deal's arrest for drug and
firearms possession, created substantial friction in what had
once been a close relationship with a neighbor he had thought of
as an older brother. He also said that this was not the first
time that he had visited the victim's house after learning that
the victim had provided information to the police about him.
If the board believed that, despite his denials, Deal
entered the victim's home on the day of the killing planning to
kill him because of the victim's cooperation with the police, or
that he stabbed the victim with the intent to kill, it should
say so and identify the evidence in the parole record that
supports such a finding. It should be noted that Deal was
charged with murder in the first degree on the theory of
premeditation but found guilty only of murder in the second
degree. As a result, we can infer that the jury, after hearing
the evidence at trial, had a reasonable doubt whether Deal acted
with premeditation or with an intent to kill, or both. Where, 8
as here, the jury did not convict the parole applicant of the
crime charged, the board should act with caution and care before
it concludes that the applicant was nonetheless guilty of the
crime charged.
Moreover, even if the board had an adequate factual basis
to conclude that the killing occurred differently from what was
described by Deal, that alone cannot suffice to establish that
Deal poses a significant risk of recidivism. Here, Deal
accepted his guilt; the board only challenges his version of
events. However, even if he had denied his guilt, there is
little, if any, empirical support for a link between acceptance
of guilt and a decreased likelihood of recidivism. See, e.g.,
Hanson & Morton-Bourgon, The Characteristics of Persistent
Sexual Offenders: A Meta-Analysis of Recidivism Studies, 73 J.
Consulting & Clinical Psych. 1154, 1159 (2005) (meta-analysis of
sex offender recidivism studies concluding that denial of guilt
"had little or no relationship with recidivism"); Harkins,
Howard, Barnett, Wakeling, & Miles, Relationships Between
Denial, Risk, and Recidivism in Sexual Offenders, 44 Archives
Sexual Behav. 157, 157 (2015) ("the presumption that denial
represents increased risk, which is common in much of the
decision making surrounding sex offenders, should be
reconsidered"). 9
Even before these studies, we recognized the limited role
that the failure to acknowledge guilt should play in a parole
decision: "The absence of such an acknowledgment [of guilt]
provides no weight on the scale in favor of parole, and thus, in
a sense, has a negative effect on a prisoner's parole
application." Quegan v. Massachusetts Parole Bd., 423 Mass.
834, 837 (1996). And although we did not reach the question, we
recognized that due process might forbid "denial of parole
solely because a prisoner, who was otherwise fully qualified for
release on parole, did not acknowledge his guilt." Id. Indeed,
if a prisoner's failure to acknowledge guilt alone were to
suffice to support a denial of parole, a prisoner wrongfully
convicted of murder as a juvenile might never be paroled unless
he or she falsely accepted responsibility for a crime he or she
never committed. See Medwed, The Innocent Prisoner's Dilemma:
Consequences of Failing to Admit Guilt at Parole Hearings, 93
Iowa L. Rev. 491, 529 (2008) ("Proclaiming innocence at a parole
hearing typically harms one's chances for release . . . while
'admitting' guilt can serve as a mitigating factor").
Third, § 130 requires the board to consider "a risk and
needs assessment" in evaluating the prisoner's risk of
recidivism. G. L. c. 127, § 130. The parole record reflects
two risk assessments. The first is the Department of
Correction's own objective risk assessment, which assesses 10
Deal's risk of recidivism as low, and also assesses his criminal
thinking, his anger, and his substance abuse as low. The second
was conducted by Deal's expert witness, Dr. Ira Packer, who
administered several tests, most importantly, the HCR-20 3d ed.
(Historical, Clinical, Risk Management) Scale, which Packer
described as "the most commonly used instrument for assessing
violence risk" and which placed Deal at "low risk" for violent
recidivism. Having conducted these tests, as well as a clinical
interview, Packer reached the opinion that Deal "would be at low
risk for recidivism if paroled."
At the parole hearing, parole member Dr. Charlene Bonner
declared that she was "in forensics," and "in the world I'm
in . . . [Packer is] regarded as . . . one of the best." Bonner
also noted that Packer provided risk assessments that were
"objective" and were "not an opinion," which were "very
favorable" to Deal. She also noted that Packer "did something
that a lot of evaluators won't do," and provided his opinion
that Deal "would be at low risk to reoffend."
The board in its decision declared that it had "considered
a risk and needs assessment," and considered Packer's testimony
and findings. Yet, nowhere in its decision did it address why
it rejected the risk assessment by the Department of Correction
or the HCR-20 test, or Packer's expert opinion regarding the
risk of recidivism. The board is not required to accept the low 11
recidivism risk determined by a risk assessment or opined by a
prisoner's expert. See Doe, Sex Offender Registry Bd. No. 10800
v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011) ("The
opinion of a witness . . . need not be accepted by the hearing
examiner . . ."). But where it effectively rejects that
estimation of risk by denying parole, it should explain why and
identify the evidence it relied on to find a higher estimation
of risk. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex
Offender Registry Bd., 483 Mass. 131, 136 (2019), quoting Police
Dep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012) ("an
agency must 'explain[] on the record its reasons for rejecting
portions of [an expert's] testimony'"). See also Langlitz v.
Board of Registration of Chiropractors, 396 Mass. 374, 381
(1985), citing Arthurs v. Board of Registration in Med., 383
Mass. 299, 310 (1981) ("an agency or board may not sit as a
silent witness where expert testimony is required to establish
an evidentiary basis for its conclusions"); New Boston Garden
Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981) ("The
board may not reject [the] testimony without a basis for such
rejection in the record"); Robinson v. Contributory Retirement
Appeal Bd., 20 Mass. App. Ct. 634, 639 (1985) ("where . . .
there is uncontradicted testimony concerning a subject which is
beyond the common knowledge and experience of the finder of
fact, that testimony may not be rejected without a basis for 12
such rejection in the record"). Otherwise, without such
meaningful individualized analysis, a court cannot ensure that
the board has truly considered risk assessments in reaching a
parole decision.
I concur in the court's judgment only because, at the time
of this parole decision, we had yet to articulate what the board
must do to demonstrate through its findings that it gave
meaningful individualized consideration to the Miller factors
and the likelihood that age and maturity will diminish these
attributes of youth and reduce the risk of recidivism. In the
absence of this guidance, where the board declared that it
considered all that it should consider, I cannot say that it
abused its discretion in denying parole. And I recognize that
Deal is entitled to a new parole hearing in December 2020 where,
if his parole were denied, we would expect meaningful
individualized findings that are far less conclusory and
perfunctory than here.