Diatchenko & Roberio v. Dist. Attorney for Suffolk Dist., 471 Mass. 12 (2015) – (“Diatchenko II”) – Two juvenile defendants (age 17 at time of crimes) were both convicted of first-degree murder in separate cases. Each defendant was sentenced to mandatory LWOP. In 2013, the Massachusetts Supreme Judicial Court held “that any juvenile offender previously convicted of [first-degree murder] . . . became eligible for parole after serving fifteen years of his or her sentence.” Thus, both Diatchenko and Roberio, having each served more than fifteen years in prison, were immediately eligible for parole. In 2015, the Supreme Judicial Court of Massachusetts added more procedural protections to juvenile homicide offenders’ initial parole board hearings and decisions:

Right to Counsel at Initial Parole Hearing. First, the court held that a juvenile homicide offender must be afforded the assistance of counsel in connection with his or her initial parole hearing. The court reasoned: “The question the board must answer for each inmate seeking parole, namely, whether he or she is likely to reoffend, requires the board to weigh multiple factors and consider a wide variety of evidence. In the case of a juvenile homicide offender—at least at the initial parole hearing—the task is probably far more complex than in the case of an adult offender because of ‘the unique characteristics’ of juvenile offenders. A potentially massive amount of information bears on these issues, including legal, medical, disciplinary, educational, and work-related evidence. In addition, although a parole hearing is unlike a traditional trial in that it does not involve direct and cross-examination of witnesses by attorneys, because the inmate’s parole application may well be opposed by both the victim’s family and public officials, it would be difficult to characterize this as an uncontested proceeding.” (citation omitted). Thus, “a parole hearing for a juvenile homicide offender serving a mandatory life sentence involves complex and multifaceted issues that require the potential marshaling, presentation, and rebuttal of information derived from many sources. An unrepresented, indigent juvenile homicide offender will likely lack the skills and resources to gather, analyze, and present this evidence adequately.” (citation omitted). The court further reasoned that “the juvenile homicide offender seeking parole is likely to be required to overcome arguments by both victims’ family members and government officials opposed to the offender’s release; the former of these parties may present as particularly sympathetic, while the latter will likely have greater advocacy skills than the offender seeking parole.” The court concluded, therefore, that the opportunity to obtain release is not meaningful without access to counsel for the initial parole board hearing.

Access to Funds for Expert Witnesses. The Supreme Judicial Court of Massachusetts also held that in order to secure a meaningful opportunity for release, it is necessary “to authorize a Superior Court judge, upon motion of a parole-eligible, indigent juvenile homicide offender, to allow for the payment of fees to an expert witness to assist the offender in connection with his or her initial parole proceeding in certain limited contexts—specifically, where it is shown that the juvenile offender requires an expert’s assistance in order effectively to explain the effects of the individual’s neurobiological immaturity and other personal circumstances at the time of the crime, and how this information relates to the individual’s present capacity and future risk of reoffending.” The court further held that “[t]he judge may exercise discretion to do so when the judge concludes that the assistance of the expert is reasonably necessary to protect the juvenile homicide offender’s meaningful opportunity for release.”

Availability of Judicial Review. Finally, the Supreme Judicial Court of Massachusetts held that there is a right to limited judicial review of a parole board’s denial of a juvenile homicide offender’s release. The responsibility of the court in this capacity is to ensure that constitutional requirements are met. “[T]he parole hearing acquires a constitutional dimension for a juvenile homicide offender because the availability of a meaningful opportunity for release on parole is what makes the juvenile’s mandatory life sentence constitutionally proportionate. In this particular context, judicial review of a parole decision is available solely to ensure that the board exercises its discretionary authority to make a parole decision for a juvenile homicide offender in a constitutional manner, meaning that the art. 26 right of a juvenile homicide offender to a constitutionally proportionate sentence is not violated.” The court reasoned that “judicial review is limited to the question whether the board has carried out its responsibility to take into account the attributes or factors [described in Miller and Diatchenko I] in making its decision.” The court will review the parole board decision to deny release using an abuse of discretion standard:  “The question for the reviewing judge will be whether the board abused its discretion in the manner in which it considered and dealt with ‘the distinctive attributes of youth [that] diminish the penological justifications for imposing the harshest sentences on juvenile offenders,’ as they relate to the particular circumstances of the juvenile homicide offender seeking parole. 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 these factors into account, or did so in a cursory way. A judge may not reverse a decision by the board denying a juvenile homicide offender parole and require that parole be granted. Rather, if the judge concludes that the board’s consideration of the juvenile offender’s status as a juvenile and the distinctive attributes of his or her youth did constitute an abuse of discretion—was arbitrary and capricious—a remand to the board for rehearing would be appropriate.” (citation omitted). The court noted that “the limited judicial review provided here does not authorize judges to substitute their judgment with respect to the parole release decision for the board’s.”

The court noted that these procedural protections apply only to juvenile offenders convicted of murder. The court remanded the case to the county court for entry of judgment consistent with this opinion.