466 Mass. 655 | Mass. | 2013
Lead Opinion
On the evening of May 9, 1981, Gregory Diatchenko, who was seventeen years old at the time, stabbed Thomas Wharf nine times as Wharf sat in his red Cadillac automobile near Kenmore Square in Boston. Wharf was pronounced dead at 10:40 p.m. A Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). He was sentenced to a mandatory term of life imprisonment without the possibility of parole, pursuant to G. L. c. 265, § 2.
Thirty years later, the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) (Miller), in which it held that imposition of a mandatory sentence of life in prison without parole on individuals who were under the age of eighteen at the time they committed murder is contrary to the prohibition against “cruel and unusual punishments” in the Eighth Amendment. Id. at 2460. Consequently, on March 19, 2013, Diatchenko filed a petition in the county court pursuant to G. L. c. 211, § 3, and G. L. c. 231 A, challenging the constitutionality of the sentencing scheme for murder in the first degree set forth in G. L. c. 265, § 2, as it applied to Diatchenko.
1. Miller analysis of Eighth Amendment landscape. In Miller, 132 S. Ct. at 2460-2463, two fourteen year old offenders were convicted of murder, and each was sentenced to life in prison without the possibility of parole.
The first strand of precedents “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Id. See, e.g., Graham v. Florida, 560 U.S. 48, 75 (2010) (Graham) (Eighth Amendment prohibits imposition of life in prison without parole on juvenile offenders convicted of nonhomicide crimes who were under eighteen years of age when crimes were committed); Kennedy v. Louisiana, 554 U.S. 407, 421, 446-447 (2008) (Eighth Amendment prohibits imposition of death penalty for crime of rape of child where crime did not result, and was not intended to result, in death of victim); Roper v. Simmons, 543 U.S. 551, 568, 578 (2005) (Roper) (Eighth Amendment prohibits imposition of death penalty on juvenile offenders who were under eighteen years of age when crimes were committed); Atkins v. Virginia, 536 U.S. 304, 318-321 (2002) (Eighth Amendment prohibits execution of “mentally retarded” offenders). Of particular significance here, the decisions in Graham and Roper established that juvenile offenders are “constitu
Relying on science, social science, and common sense, the Supreme Court in Miller pointed to three significant characteristics differentiating juveniles from adult offenders for purposes of Eighth Amendment analysis. Miller, supra. First, children demonstrate a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking.” Id., quoting Roper, 543 U.S. at 569. Second, children “ ‘are more vulnerable ... to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ [;] and [they] lack the ability to extricate themselves from horrific, crime-producing settings.” Miller, supra, quoting Roper, supra. Finally, “a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievable] deprav[ity].’ ” Miller, supra, quoting Roper, supra at 570. In essence, these distinctive characteristics of youth, which do not vary based on the nature of the crime committed, “diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Miller, supra at 2465.
The second strand of precedents underpinning Miller “prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death.” Miller, 132 S. Ct. at 2463-2464. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 105, 110-112, 116 (1982) (Eighth Amendment prohibits imposition of death penalty absent individualized consideration of relevant mitigating evidence, including character and record of defendant and circumstances of offense); Lockett v. Ohio, 438 U.S. 586, 604-605, 608 (1978) (plurality opinion) (same); Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion) (same). The Supreme Court recognized in Miller, based on its death penalty jurisprudence, that a defendant who is going to be subjected to a
The confluence of these two strands of precedents led the Supreme Court to conclude in Miller that a sentencing scheme that punishes offenders who commit murder when they are under the age of eighteen by imposing a mandatory sentence of life in prison without the possibility of parole wholly precludes consideration of the unique characteristics of juvenile offenders and “disregards the possibility of rehabilitation even when the circumstances most suggest it.” Id. at 2468. Such a sentencing scheme violates the principle of proportionality and, therefore, the Eighth Amendment’s prohibition against cruel and unusual punishment. Id. at 2469, 2475. The Supreme Court declined to consider whether the Eighth Amendment requires a “categorical bar” on the imposition of life without parole for juveniles who commit murder. Id. at 2469. Nonetheless, the Court said that, given the “diminished culpability” of juveniles and their “heightened capacity for change,” those occasions when juveniles will be sentenced to the “harshest possible penalty will be uncommon.” Id. In any event, an individualized hearing must be held prior to the imposition of such a sentence so that a judge or jury can have the opportunity to consider mitigating evidence that would counsel against a sentence of life in prison without the possibility of parole. Id. at 2469, 2475.
2. Retroactivity of Miller. The relevance of Miller to our consideration of the constitutionality of the Massachusetts sentencing scheme for murder in the first degree, G. L. c. 265, § 2, as applied to Diatchenko, turns on whether Miller is retroactive. More specifically, because the Supreme Court’s decision in Miller was issued after Diatchenko’s conviction had become final, we must decide whether its holding applies retroactively to cases on collateral review. The Court did not explicitly state whether Miller has retroactive application. Diatchenko argues that it does, and we agree.
Prior to the Supreme Court’s decision in Miller on June 25, 2012, judicial precedent did not compel a conclusion that it was unconstitutional to impose a mandatory sentence of life in prison without the possibility of parole on a juvenile homicide offender. To the contrary, the precedents on which the Court in Miller substantially relied were themselves decided long after Diatchenko’s conviction became final, and they suggested the opposite result from the one ultimately reached in Miller. In Roper, 543 U.S. at 578, the Supreme Court held that “[t]he Eighth and
Not only did Graham and Roper not dictate the result announced in Miller, but the Supreme Court proceeded to analyze its jurisprudence in the context of evolving science pertaining to the development of the adolescent brain, which can have an impact on juvenile behavior in myriad ways. See Miller, 132 S. Ct. at 2464-2465. Given the distinctive attributes of youth, the Court also recognized the relevance of a wholly separate line of precedents, those requiring individualized assessment prior to the imposition of the death penalty, to which a sentence of life without parole when imposed on a juvenile was analogized. Id. at 2466-2467. The convergence of these distinct considerations resulted in the Supreme Court’s decision in Miller. In our view, Miller broke new ground and did not merely apply an established constitutional standard to a novel set of facts. See Sylvain, 466
At the time Diatchenko’s conviction became final, there was no suggestion in existing Federal or State law that the imposition of a mandatory sentence of life in prison without the possibility of parole on an offender who was under the age of eighteen at the time he committed murder was constitutionally suspect. We need look no further than our own decision affirming Diatchenko’s conviction on direct appeal. See Commonwealth v. Diatchenko, 387 Mass. 718, 719 (1982). This court explicitly rejected his contention that the mandatory sentencing provision of G. L. c. 265, § 2, violated the Eighth and Fourteenth Amendments and art. 26 because it contravened modern standards of decency and because the punishment imposed was so disproportionate to the offense. Id. at 721-727 (pointing out that decisions in Massachusetts, other States, and Supreme Court had upheld prison sentences equal in severity to sentence imposed on Diatchenko). It was not until Miller was decided that the sentencing of juvenile homicide offenders fundamentally changed in a way that had not been dictated by then-existing precedent. Accordingly, we conclude that Miller announced a “new” constitutional rule.
With two limited exceptions that will be discussed shortly, a “new” constitutional rule of criminal law generally is not applicable on collateral review to those cases that became final before the new rule was announced. See Teague, 489 U.S. at 310. See also Clarke, 460 Mass. at 34; Bray, 407 Mass. at 300. Put another way, a “new” rule has retroactive application only with respect to those cases still pending on direct review. See Sylvain, supra at 433. See also Griffith v. Kentucky, 479 U.S. 314, 322 (1987), citing Desist v. United States, 394 U.S. 244, 258 (1969) (Harlan, J., dissenting) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”). Where a case announces a rule that is not considered to be new, it will be applied both on direct and collateral review. See
As mentioned, there are two exceptions to the general principle that a “new” constitutional rule does not apply retroactively to cases on collateral review. See Teague, 489 U.S. at 311. See also Sylvain, supra at 428 n.6. First, a decision that announces a “new” constitutional rule will have retroactive application where the rule is substantive. See Schriro v. Summerlin, 542 U.S. 348, 351 (2004). Such a rule “places a class of private conduct beyond the power of the State to proscribe,” Saffle v. Parks, 494 U.S. 484, 494 (1990), citing Teague, supra, or addresses a constitutional determination “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Saffle v. Parks, supra, quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002). See Schriro v. Summerlin, supra at 351-352. Such rules have retroactive application because they “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal,’ ” Bousley v. United States, 523 U.S. 614, 620 (1998), quoting Davis v. United States, 417 U.S. 333, 346 (1974), or “faces a punishment that the law cannot impose upon him.” Schriro v. Summerlin, supra at 352.
Second, a “new” rule will apply retroactively if it requires the observance of procedures that are “implicit in the concept of ordered liberty.” Teague, 489 U.S. at 311, quoting Mackey v. United States, 401 U.S. 667, 693 (1971) (Harlan, J., concurring in part and dissenting in part). This second exception is reserved for “watershed rules of criminal procedure,” Teague, supra, namely those “implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. at 495. It is narrowly limited to “those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Teague, supra at 313. See Schriro v. Summerlin, 542 U.S. at 350, 352, 355-356, 358 (mle that alters range of permissible methods for determining whether defendant’s conduct is
Based on these standards, we conclude that the “new” constitutional rule announced in Miller is substantive and, therefore, has retroactive application to cases on collateral review, including Diatchenko’s case.
Our conclusion is supported by the fact that in Miller, 132 S. Ct. at 2469, 2475, the Supreme Court retroactively applied the rule that it was announcing in that case to the defendant in the companion case who was before the Court on collateral review. See note 9, supra. “[A] new rule announced by the Supreme Court does not become retroactive by subsequent decisions of other courts, but by the action taken by the Supreme Court in the case announcing the new rule.” State v. Ragland, 836 N.W.2d 107, 114 (Iowa 2013), citing Tyler v. Cain, 533 U.S. 656, 663 (2001). Following the issuance of the decision in Roper, 543 U.S. at 578, the defendant in Miller’s companion case, Kuntrell Jackson, filed a petition for a writ of habeas corpus, arguing that a mandatory sentence of life in prison without parole for a fourteen year old offender who had been convicted of murder violated the Eighth Amendment. Miller,
3. Constitutionality of G. L. c. 265, § 2, in light of Miller. Having determined that the “new” rule announced in Miller is retroactive, we now consider the import of that rule on the constitutionality of G. L. c. 265, § 2, as it pertains to Diatchenko’s case. The statute provides, in relevant part, that any person who is guilty of murder in the first degree “shall be punished by imprisonment in the [Sjtate prison for life. ... No person shall be eligible for parole under [G. L. c. 127, § 133A,] while he is serving a life sentence for murder in the first degree . . .” (emphasis added). G. L. c. 265, § 2. By its clear and plain terms, the statute imposes a mandatory sentence of life in prison without the possibility of parole on individuals who are under the age of eighteen when they commit the crime of murder in the first degree. Pursuant to Miller, 132 S. Ct. at 2469, 2475, we conclude that this mandatory sentence violates both the Eighth Amendment prohibition against “cruel and unusual punishment []” and the analogous provision of the Massachusetts Declaration of Rights set forth in art. 26. See note 3, supra.
As discussed, Miller did not foreclose entirely the imposition of a sentence of life in prison without parole on juvenile homicide offenders, just the mandatory imposition of such a sentence. Miller, 132 S. Ct. at 2469, 2475. Acknowledging the expanding body of research in developmental psychology and neuroscience
This court has “the inherent authority ‘to interpret [Sjtate constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution. ’ ” Libertarian Ass’n of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 558 (2012), quoting Goodridge v. Department of Pub. Health, 440 Mass. 309, 328 (2003). See Danforth v. Minnesota, 552 U.S. 264, 288 (2008), citing Oregon v. Haas, 420 U.S. 714, 719 (1975) (State “may grant its citizens broader protection than the Federal Constitution requires by enacting appropriate legislation or by judicial interpretation of its own Constitution”); Arizona v. Evans, 514 U.S. 1, 8 (1995) (same). We often afford criminal defendants greater protections under the Massachusetts Declaration of Rights than are available under corresponding provisions of the Federal Constitution. See District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 650, 665 (1980) (concluding that death penalty contravened prohibition against cruel or unusual punishment in art. 26, notwithstanding constitutionality under Eighth Amendment). See also, e.g., Commonwealth v. Mavredakis, 430 Mass. 848, 855-860 (2000) (defendant’s right under art. 12 of Massachusetts Declaration of Rights to be informed of attorney’s efforts to render assistance broader than rights under Fifth and Sixth Amendments to United States
Central to the Eighth Amendment is the concept of proportionality, see Graham, 560 U.S. at 59, which flows from the fundamental “ ‘precept of justice that punishment for crime should be graduated and proportioned’ to both the offender and the offense.” Miller, 132 S. Ct. at 2463, quoting Roper, 543 U.S. at 560. Similarly, with respect to art. 26, this court has recognized that “it is possible that imprisonment for a long term of years might be so disproportionate to the offense as to constitute cruel [or] unusual punishment.” Cepulonis v. Commonwealth, 384 Mass. 495, 496 (1981), and cases cited. “To reach the level of cruel [or] unusual, the punishment must be so disproportionate to the crime that it ‘shocks the conscience and offends fundamental notions of human dignity.’ ” Id. at 497, quoting Commonwealth v. Jackson, 369 Mass. 904, 910 (1976). Analysis of disproportionality occurs “in light of contemporary standards of decency which mark the progress of society.” Good v. Commissioner of Correction, 417 Mass. 329, 335 (1994), citing Michaud v. Sheriff of Essex County, 390 Mass. 523, 533 (1983). See Libby v. Commissioner of Correction, 385 Mass. 421, 435 (1982), quoting District Attorney for the Suffolk Dist. v. Watson, 381 Mass. at 661-662 (“Article 26, like the Eighth Amendment, bars punishments which are ‘unacceptable under contemporary moral standards’ ”). In the present circumstances, the imposition of a sentence of life in prison without the possibility of parole for the commission of murder in the first degree by a juvenile under the age of eighteen is disproportionate not with respect to the offense itself, but with regard to the particular offender.
Given current scientific research on adolescent brain development,
The penological justifications for imposing life in prison with
4. Remedy to address unconstitutionality of statutory provisions. We are aware that “the Legislature has considerable
“When a court is compelled to pass upon the constitutionality of a statute and is obliged to declare part of it unconstitutional, the court, as far as possible, will hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part.” Boston Gas Co. v. Department of Pub. Utils., 387 Mass. 531, 540 (1982), quoting Opinion of the Justices, 330 Mass. 713, 726 (1953). See G. L. c. 4, § 6, Eleventh (“The provisions of any statute shall be deemed severable, and if any part of any statute shall be adjudged unconstitutional or invalid, such judgment shall not affect other valid parts thereof”); Peterson v. Commissioner of Revenue, 444 Mass. 128, 137-138 (2005). When the Legislature enacted G. L. c. 265, § 2, it specifically provided that “[i]f any of the provisions of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this act which can be given effect without the
With regard to a charge of murder under G. L. c. 265, § 1, “[t]he degree of murder shall be found by the jury.” Here, a Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). The punishment for the commission of such a crime is “imprisonment in the [Sjtate prison for life.” G. L. c. 265, § 2. Therefore, Diatchenko’s life sentence remains in full force and effect, but the statutory exception to parole eligibility no longer applies to him. See Commonwealth v. Cassesso, 368 Mass. 124, 125 (1975) (statute mandated sentence of life imprisonment after invalidation of death penalty).
Similarly, the related exception to parole eligibility set forth in G. L. c. 127, § 133A, is inapplicable to Diatchenko. In 1982, when he was sentenced to life in prison, this statute provided that “[ejvery prisoner who is serving a sentence for life . . . except prisoners serving a life sentence for murder in the first degree, shall be eligible for parole . . . within sixty days before the expiration of fifteen years of such sentence . . . .” G. L. c. 127, § 133A, as amended through St. 1965, c. 766, § 1. Diatchenko now has served approximately thirty-one years of his life sentence. He is eligible to be considered for parole immediately and may apply to the Massachusetts parole board for
Our decision should not be construed to suggest that individuals who are under the age of eighteen when they commit murder in the first degree necessarily should be paroled once they have served a statutorily designated portion of their sentences. The severity of this particular crime cannot be minimized even if committed by a juvenile offender. By the same token, we have recognized that, given the unique characteristics of juvenile offenders that render them “constitutionally different from adults for purposes of sentencing,” Miller, 132 S. Ct. at 2464, they should be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560 U.S. at 75. At the appropriate time, it is the purview of the Massachusetts parole board to evaluate the circumstances surrounding the commission of the crime, including the age of the offender, together with all relevant information pertaining to the offender’s character and actions during the intervening years since conviction. By this process, a juvenile homicide offender will be afforded a meaningful opportunity to be considered for parole suitability.
5. Conclusion. The matter is remanded to the county court, where the single justice will enter a declaratory judgment consistent with this opinion, and will take such further action as is necessary and appropriate.
So ordered.
General Laws c. 265, § 2, provides, in relevant part, that any person who
The Eighth Amendment to the United States Constitution provides that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Similarly, the relevant portion of art. 26 of the Massachusetts Declaration of Rights states, in part: “No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.”
Once a defendant’s direct appeal to the Supreme Judicial Court has been decided, the defendant’s conviction becomes final on the date the rescript issues to the lower court. See Foxworth v. St. Amand, 457 Mass. 200, 206 (2010). As defined in Mass. R. A. P. 1 (c), as amended, 454 Mass. 1601 (2009), the rescript is “the order, direction, or mandate of the appellate court disposing of the appeal.”
The Commonwealth contends that Diatchenko is not entitled to relief pursuant to G. L. c. 211, § 3, because there is no underlying case pending in a trial court, and Diatchenko has alternative avenues for challenging the constitutionality of his sentence. Given the constitutional significance of this case, coupled with the impact it will have on the administration of justice and the courts in light of the number of past, present, and future defendants whose sentences will be affected, the exercise of our broad powers of superintendence under G. L. c. 211, § 3, is appropriate. Moreover, “[wjhere the single justice has, in [her] discretion, reserved and reported the case to the full court,
We acknowledge the amicus briefs submitted in support of Diatchenko by Massachusetts Association of Criminal Defense Lawyers, Citizens for Juvenile Justice, the Child Advocate for the Commonwealth of Massachusetts, Reverend Kim Odom, Prisoners’ Legal Services of Massachusetts, and Roca, Inc.; by American Civil Liberties Union of Massachusetts, Charles Hamilton Houston Institute for Race and Justice, Children’s Law Center of Massachusetts, Citizens for Juvenile Justice, Juvenile Rights Advocacy Project at Boston College Law School, the Child Advocate for the Commonwealth of Massachusetts, Lawyers’ Committee for Civil Rights and Economic Justice, Massachusetts Association of Court Appointed Attorneys, Massachusetts Bar Association, and seventeen Massachusetts law school professors; by Citizens for Juvenile Justice, Children’s Law Center of Massachusetts, Children’s League of Massachusetts, the Home for Little Wanderers, and the Child Advocate for the Commonwealth of Massachusetts; and by Herby J. Caillot. We also acknowledge the amicus brief submitted in support of the Commonwealth by the district attorney for the Plymouth district.
According to the parties, there are approximately sixty-one other individuals in Massachusetts who are in the same position as Diatchenko. They are serving mandatory life sentences without the possibility of parole for convictions of murder in the first degree that predate Miller v. Alabama, 132 S. Ct. 2455 (2012) (Miller), and they were under the age of eighteen at the time they committed such crimes.
When we use the term “juvenile” offenders here, we are referring to defendants who were under the age of eighteen at the time they committed murder in the first degree. See G. L. c. 119, § 72B, as amended through St. 2013, c. 84, § 24.
The Supreme Court’s opinion in Miller, supra, also decided a companion case, Jackson v. Hobbs. Miller’s case was before the Court on direct review, id. at 2463, and Jackson’s case was before the Court on collateral review. Id. at 2461, 2463.
In Commonwealth v. Sylvain, ante 422, 432-434 (2013) (Sylvain), we declined to adopt the Supreme Court’s jurisprudential expansion of what qualifies as a “new” rule, articulated in decisions issued after Teague v. Lane, 489 U.S. 288 (1989) (Teague). We concluded that this expansion, to include rules that were not “apparent to all reasonable jurists” at the time a defendant’s conviction became final, Sylvain, supra at 433, quoting Lambrix v. Singletary, 520 U.S. 518, 527-528 (1997), had become so broad that “decisions defining a constitutional safeguard rarely merit[ed] application on collateral review.” Sylvain, supra at 433, quoting Colwell v. State, 118 Nev. 807, 818, cert. denied, 540 U.S. 981 (2003). See Commonwealth v. Clarke, 460 Mass. 30, 35 (2011). Therefore, in accordance with Danforth v. Minnesota, 552 U.S. 264, 282 (2008), we decided that Massachusetts would continue to adhere to the original framework articulated in Teague, supra at 301, that “a case announces a ‘new’ rule only when the result is ‘not dictated by precedent. ’ ” Sylvain, supra at 434, quoting Teague, supra.
The “new” constitutional rule announced in Miller does not fall within the second exception to the general principle that “new” rules do not apply retroactively to cases on collateral review. The focus of the inquiry regarding the applicability of the second exception is the accuracy and fairness of the conviction. See Teague, 489 U.S. at 311-313. A constitutional violation that pertains to sentencing has nothing to do with the fairness and accuracy of the underlying conviction. Therefore, the Miller rule is not a “watershed rule[] of criminal procedure." Id. at 311.
No consensus has developed as to whether Miller applies retroactively to cases on collateral review. For an overview of how several jurisdictions have analyzed this issue, see State v. Ragland, 836 N.W.2d 107, 113-115 (Iowa 2013).
This court never has decided “whether the phrase ‘inflict cruel or unusual punishments’ in art. 26 has the same prohibitive sweep as the phrase ‘nor cruel and unusual punishments inflicted’ in the Eighth Amendment.” Michaud v. Sheriff of Essex County, 390 Mass. 523, 533 (1983). See Commonwealth v. Diatchenko, 387 Mass. 718, 722 n.2 (1982). Nonetheless, we have said that “the rights guaranteed under art. 26 are at least equally as broad as those guaranteed under the Eighth Amendment.” Michaud v. Sheriff of Essex County, supra at 534. See Good v. Commissioner of Correction, 417 Mass. 329, 335 (1994).
See, e.g., Steinberg, Should the Science of Adolescent Brain Development
In Graham v. Florida, 560 U.S. 48, 69 (2010), quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976) (opinion of Stewart, Powell, & Stevens, JJ.), the Supreme Court pointed out that while “a death sentence is ‘unique in its severity and irrevocability,’ . . . life without parole sentences share some characteristics with death sentences that are shared by no other sentences.” A sentence of imprisonment until death “alters the offender’s Ufe by a forfeiture
In concluding that the imposition of a sentence of life in prison without the possibility of parole on juveniles under the age of eighteen violates the constitutional prohibition against “cruel or unusual punishmentQ” in art. 26, we join a world community that has broadly condemned such punishment for juveniles. The United Nations Convention on the Rights of the Child, “ratified by every nation except the United States and Somalia, prohibits the imposition of life imprisonment without the possibility of release ... for of-fences committed by persons below eighteen years of age” (quotations omitted). Grahams. Florida, 560 U.S. at 81, quoting United Nations Convention on the Rights of the Child, art. 37 (a), Nov. 20, 1989, 1577 U.N.T.S. 3. As John Adams recognized over 215 years ago, we belong to an international community that tinkers toward a more perfect government by learning from the successes and failures of our own structures and those of other nations. See J. Adams, Preface, A Defence of the Constitutions of Government of the United States of America (1797).
The exception to parole eligibility set forth in the fourth sentence of G. L. c. 265, § 2, remains valid with respect to individuals who are eighteen years of age or older at the time they commit murder in the first degree.
The Commonwealth contends that the Committee for Public Counsel Services (CPCS) should be disqualified from further representing Diatchenko in this action because such representation is not authorized by G. L. c. 211D. We disagree. General Laws c. 211D, § 5, provides that CPCS “shall establish, supervise and maintain a system for the appointment or assignment of counsel at any stage of a proceeding, either criminal or noncriminal in nature, provided, however, that the laws of the commonwealth or the rules of the supreme judicial court require that a person in such proceeding be represented by counsel; and, provided further, that such person is unable to obtain counsel by reason of his indigency.” The heart of this case is the constitutional validity of Diatchenko’s sentence for murder in the first degree. It is well established that
Concurrence Opinion
(concurring, with whom Gants and Duffly, JJ., join). I concur in the court’s decision and write separately only to underscore the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” Graham v. Florida, 560 U.S. 48, 75 (2010), that, in my view, today’s decision contemplates. The court holds that all sentences of life without the possibility of parole for juvenile offenders violate art. 26 of the Massachusetts Declaration of Rights. Ante at 667, 670-671. Pivotal to this holding, as to the holding in Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012), is the recognition that “children are constitutionally different from adults for purposes of sentencing.” The factors that make this so, “among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” id. at 2468, render the possibility of parole a matter of central importance. Where decisions regarding parole suitability are not informed by an attention to “the distinctive attributes of youth [that] diminish the penological justifications for imposing the harshest sentences on juvenile offenders,” considerations that would seem no less germane to determinations of parole suitability, the meaningful nature of the opportunity for release may be compromised. See id. at 2465.