Parole: Evidence of Rehabilitation and Means to Rehabilitate

Lyons_Crystal2by Crystal L. Lyons

Practice Tips

In Diatchenko v. District Attorney for the Suffolk District & Others, 466 Mass. 655 (2013), the Supreme Judicial Court invalidated the statutory provisions mandating life without the possibility of parole for juveniles convicted of first degree murder.  The Diatchenko Court adopted the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012), which required consideration of a juvenile’s “lessened culpability” and “greater capacity for change.” As a result of Diatchenko, sixty-one Massachusetts inmates became eligible for parole and entitled to parole hearings where they will be afforded “a meaningful opportunity to obtain release,” Diatchenko, 466 Mass. at 674, before the completion of their criminal sentence.  This article provides guidance to practitioners appearing before the Parole Board for these and other life sentence hearings.

However laudable Diatchenko’s reform, it has collided with a countervailing pressure to tighten the standards for granting parole following the high-profile murder of a police officer committed by a parolee in 2010, and the subsequent public outcry which led to the resignation of five Parole Board members who had voted for his release. According to several studies, including by the Boston Bar Association and the Parole Board, once the data are corrected for high-profile offenses, recidivism rates are actually higher for persons who are released after serving a complete sentence than for those who are paroled.  Proponents of parole attribute this difference to the supervision, programs, and assistance parolees receive after release to facilitate reintegration into society.

Reconciliation of the two viewpoints lies in the application of one of the primary goals of sentencing: rehabilitation.  Commonwealth v. Goodwin, 414 Mass. 88 (1993).  Parole offers a “carrot and stick” approach to achieving rehabilitation.  The carrot, because parole can be granted at least in part based on an offender’s showing of rehabilitation, and the stick, because the Parole Board can place conditions on receiving parole, or rescind or revoke parole, based on failure to engage in programs, counseling, substance abuse treatment and a wide variety of other conditions.  M.G.L. c. 127, § 5; 120 C.M.R. § 300.07.  Importantly, offenders are not required to participate in treatment or educational opportunities offered during their incarceration, yet offenders often undertake such steps voluntarily with the goal of demonstrating rehabilitation and receiving parole.  Similarly, conditions of parole and the creation of a release plan cannot be mandated except for those offenders subject to parole.  Parole can thus be accurately described as both evidence of rehabilitation and a means of effecting the sentencing goal of rehabilitation.  By extension, the best advice to attorneys representing either parolees or the Commonwealth in life sentence parole hearings is to focus on presenting a cohesive narrative that focuses on rehabilitation.  The facts of the offense and an individual’s criminal history have already been established, but an attorney can situate those facts within a narrative arc of the offender’s development and future goals.

The Board must consider two factors in each parole decision: (1) the reasonable probability that the individual would not violate the law if released, and (2) the compatibility of release on parole with the welfare of society.  Parole may not be granted “merely as a reward for good institutional conduct.” M.G.L. c. 127, § 130; 120 C.M.R. § 300.04.  The Parole Board may consider a variety of evidence in its decision, including: prior criminal record; pending cases; the nature and circumstances of the offense; recommendations from parole staff; statements from victims or their family members; physical or psychological examinations; information the inmate provides, including letters of support and a parole release plan; information the District Attorney’s Office provides; and institutional behavior.  120 C.M.R. § 300.05

A typical hearing begins with an opening statement by the offender or his counsel, followed by questioning of the offender by each Board member.  The offender may present testimony from supporters, including family members, employers, or experts (such as mental health experts), each of whom may be questioned by the Board.  After the offender’s presentation, those opposing parole, including the victim or family members of the victim, may speak or present counter evidence.  The offender’s counsel may present closing arguments, and the Commonwealth may also present a closing argument or position statement.

The Board’s published Guidelines for Life Sentence Decisions should serve as the framework for constructing argument and applying the evidence listed above.  The Guidelines specify three questions to be addressed by the Board at each hearing:

1) Has the inmate’s period of incarceration been of sufficient length to adequately protect the public, punish him for his conduct, deter others, and allow for rehabilitation?

2) Is the inmate rehabilitated?

3) Are there reasons to conclude that the inmate will live outside prison as a sober, law-abiding, employed, productive person who is making positive contributions to his family and his community?

The key issues underlying each question are fully outlined in the Guidelines and fall into three main areas of inquiry: the offender’s past, his institutional behavior, and his action plan upon release.

Offender’s Past

In addition to understanding the facts and circumstances of the crime, the Board will ask if the individual has taken responsibility for and appreciates his role in the crime, including the impact it had on any victims.  Has the offender’s story has changed over time and is the offender only acknowledging his behavior for the purpose of gaining parole? In that regard, assess if post-trial litigation can fit into a narrative of eschewing responsibility, or instead protecting a valuable substantive or procedural right.  What is the criminal history beyond the offense of incarceration and does it reveal a pattern of violent behavior or crimes committed against particularly vulnerable victims (such as children or the elderly)?  Has the offender had past defaults, bail revocations, or other factors which may indicate difficulty complying with conditions of parole?

An offender’s personal circumstances are also important, but can be a double-edged sword: they can serve as mitigating or aggravating factors depending on how they have been addressed.  Does the offender recognize the role those circumstances may have played in the offense or how they may impact his life upon parole? Has he specifically tailored his rehabilitative efforts to areas of substance abuse, childhood trauma, or other relevant factors? Similarly, if the offender has struggled with mental health issues, have those issues led to previous commitments, and have they been adequately treated?

Institutional Behavior

The Board considers two main areas of institutional behavior: first, the offender’s disciplinary record; and, second, how he has used his time in educational or other institutional activities.  What is the total number of infractions received and what is the trend?  Did infractions involve violence or contraband?  Was the individual the instigator?  What was the reason for any transfers within the Department of Correction?  Did the offender use his time to enroll, regularly attend, and complete programs, or has he attended only sporadically or claimed he was unable to attend?  How has he shown personal reflection and dedication to self-improvement? Has he achieved educational or vocational goals?  Has he taken leadership positions or consistently worked during his incarceration?  Has he been committed to any religion, vocation, organization, or family during his incarceration that will continue following his release?  What efforts has he made to address the Board’s concerns since any previous hearing and denial?

Release Plan

Finally, the Board considers the offender’s plan for life after release: does the offender have an adequate support network, including a place to live and work, treatment for ongoing issues, and persons who are committed to his success?  Be ready to show that these issues have been well thought out and not hastily thrown together.  Has the defendant been pre-approved for housing or programs?  Does he have an employer willing to offer a job?  Are there family members or religious supporters aware of the transitional difficulties he will face and willing and able to shoulder the potential emotional and financial impact?  Any testimony should focus on these issues and evidence of rehabilitation.  Avoid discussion about personal hardship due to incarceration or any perceived harm to the offender because of the conviction.

There are steps counsel may take to try to assuage any Board concerns arising during the hearing.  With permission, supplement the record following the hearing.  This can be particularly useful to address questions regarding the parole release plan and provide conditional acceptance to programs, housing, or employment opportunities.  The Board may be inclined to grant parole with pre-conditions and transition periods rather than deny parole with recommended steps an inmate take before his next review hearing.  After listening carefully to the Board’s questions and testimony provided, use closing argument to address any trouble areas or discrepancies between what emerged at the hearing with the written materials provided to the Board.


Hearings mandated by Diatchenko began in May 2014 and have so far resulted in the parole of the first three juvenile offenders considered.  Notwithstanding these recent decisions, the seriousness of life sentence offenses and the Board’s stated goal of achieving fairness and consistency across similarly situated offenders suggests that parole will not be granted often on a first review, even where an offender has taken responsibility for his actions and demonstrated significant rehabilitation. The three juvenile offenders had served twenty, eighteen, and twenty-two years, respectively, where they are now eligible for parole after serving fifteen years.  The Board also required each of the paroled juvenile offenders to complete additional programs prior to release after one year in a lower security facility.

Overall, Parole Board statistics show that parole was granted to 21% of offenders serving life sentences (including for crimes other than first degree murder) who were over 18 years old on the date of offense, compared with 53% of those who were under 18 years old on the date of the offense.  This suggests that the Board is seriously weighing the role of youth in both the commission of the offense and rehabilitation, as required by the Supreme Judicial Court.


Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She clerked for the Ninth Circuit Court of Appeals and graduated Order of the Coif from UCLA School of Law. The views expressed in this article are those of the author solely and do not reflect in any way the views or policies of the Middlesex District Attorney’s Office. The author is indebted to Stephen Hoctor for creating an earlier version of an article on this subject. 

Advocating for Children to Keep Them in School and on the Road to Success

by John R. Baraniak, Jr.

Pro Bono

Baraniak_John“What were you thinking?”  As adolescents, we heard this from our parents.  As parents, we ask our teenagers the same thing.  Whether a young person’s poor choices are rooted in the brain’s incomplete development, as some scientists believe, or are the product of peer pressure, the reality is that teenagers sometimes make bad decisions.  Most of us can recall making a bad decision or two ourselves when we were young.

The difference between then and now, however, is that today the repercussions can be much more serious.  In the wake of Columbine, Newtown, and similar school-related tragedies, superintendents and principals understandably are concerned about school safety and sometimes jettison students whose misbehavior in the past would have been punished much less severely.  Lest they be second-guessed for not acting forcefully enough, school officials are now more likely to exclude students from school, either suspending them for long periods or expelling them.  In turn, the excluded students either fall impossibly behind in their studies or are unable to obtain any education whatsoever.  Their lives are permanently altered.  A high school diploma and college are now beyond their reach, and prison is a distinct possibility.

The numbers are staggering.  During the 2009-2010 school year in Massachusetts public schools, 34,291 students were excluded from school for at least one day, 5,200 of them for 10 days or longer, and 219 of them expelled, including many permanently denied access to a public education.  According to this data, from Keep Kids in Class:  New Approaches to School Discipline, 2012, Massachusetts Appleseed Center for Law and Justice,  these excluded children were disproportionately male, poor, Black and Hispanic, and special education students.  The impact of exclusion can be devastating.  An excluded child is more likely to eventually drop out of school and “placed at greater risk for delinquent behavior and subsequent incarceration when placed unsupervised on the streets of the community for days or weeks at a time.”

In response to this growing crisis, the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, led by Professor Charles Ogletree; the Center for Law and Education; and Choate Hall & Stewart, LLP, formed a unique collaboration four years ago in an attempt to break this “school to prison pipeline.”  Since the collaboration began, Choate attorneys – litigators and non-litigators – have represented, pro bono, dozens of students facing exclusion in an attempt to return them to school and in many cases, to ensure that they receive the special education services to which they are entitled under the law.  Many of these cases involve students with emotional or behavioral disabilities who are grossly under-serviced and then excluded for conduct that flows directly from their disabilities.

The cases can be emotionally challenging.  The clients, young kids, are particularly vulnerable, and their parents are often without the financial means or experience to effectively advocate for their children.  These parents often are unable to miss work to meet with school officials, face language barriers, and struggle under the weight of their child’s complex diagnosis.  It’s easy to relate to their desire to want the best for their children.  Will the child receive the services to which he is entitled?  Will he be punished for his disability? Will he be permitted to finish high school?  Go to college?  Be able to support himself and live independently?  The stakes could not be any higher.

One particularly memorable student was LB, an eighth grade honors student with an unblemished record who was excluded from school for an entire year because he took a pocket knife away from another student who was using it to threaten one of LB’s friends.  LB’s offense?  He didn’t immediately turn the knife over to school officials, but instead planned to do so at the end of his lunch period.  The school cited its “zero tolerance” weapons policy as grounds for the exclusion of this model student.  It made no difference that LB didn’t bring the knife to school and didn’t threaten anyone with it. In implementing a “zero-tolerance’’ weapons policy, it was enough for school officials that LB had “possessed’’ the weapon, even if only for a short time.

When I first met LB and his family, I was struck by how desperate he was to return to school.  His entire family showed up at my office.  His parents were from South America and spoke only limited English.  Both worked long hours to support their family.  LB’s older sister was in the honors program at UMass Amherst and had taken the semester off to tutor LB to make sure he did not fall behind while excluded from school.  The family was committed to sending their children to college so that they could have a better life, and now this incident threatened to destroy LB’s future.

LB fought the suspension in federal court, and won. We chose federal, rather than state, court because federal law was more fully developed in school discipline cases.  Federal District Court Judge Dennis Saylor, in granting LB’s motion for a preliminary injunction, ruled that the one-year suspension was so grossly disproportionate to any wrongdoing LB committed that it was not rationally related to any legitimate state purpose and therefore offended the U.S. Constitution’s guarantee of substantive due process.  LB was reinstated in school, and his record was expunged.  This was one of the first decisions in the country invalidating a zero-tolerance policy on constitutional grounds.  The school district agreed to drop its inflexible zero tolerance policy and to give principals the discretion to decide future cases on their individual facts.  Apart from these impacts, however, the decision was hugely important to LB and his family.  He returned to school, his spotless record intact, and continued in the honors program.  Their relief was palpable.

One of my partners had a similar experience, representing a 13-year-old Puerto Rican youth who had been out of public school for over five months.  This client was a capable student with serious ADHD and emotional needs manifested through attention seeking behavior, panic attacks, and anxiety.  Remarkably, the school did not carry over his Individualized Education Plan (IEP) from elementary to middle school and failed to provide special education programming and services to help him address his disruptive ADHD behavior for which he was routinely reprimanded.  As a result, he dreaded going to school and missed a substantial number of days.  He was constructively expelled from school, and he spiraled into severe depression.  Choate appealed to the Bureau of Special Education Appeals the school’s failure to provide this student with the services to which he was entitled.  We were able to obtain a very favorable settlement, placing the student in an alternative, therapeutic school and on an IEP that provided the special services he needs.  The student thrived at his new school, and his demeanor entirely changed.  Formerly a withdrawn, sullen boy reluctant to leave his house, he has transformed into an engaging teenager who is happy to go to school and participate in activities.

In another example, Choate represented a high school senior in an appeal to the superintendent of schools of his expulsion.  The student had been accused of inadvertently bringing an unloaded pellet gun to school.  According to the school’s allegations, the student was returning the pellet gun to a friend and had placed it in his coat pocket and forgotten about it when wearing the coat to school.  At school, the pellet gun allegedly fell out of the student’s coat pocket and was discovered by a teacher.  The student was expelled.  At the appeal hearing, the firm successfully argued that the facts alleged, even if true, did not warrant the severe sanction of expulsion and pointed out various laws and policies school officials arguably had violated in handling the matter, including publicizing the student’s name.  My colleagues were able to convince the superintendent to vacate the expulsion and permit the student to graduate with his class and to participate in the graduation ceremony.  The student’s future college plans, temporarily derailed, are back on track.

In these cases, the children’s future prospects were vastly improved by zealous advocacy on their behalf.  I’ve witnessed first-hand the difference merely having legal representation makes for these students – formerly dismissive and seemingly autocratic school officials, faced with the prospect of procedural and substantive due process and statutory challenges to their exclusion decisions, become much more amenable to finding a way to get the student back into school and back on course.

Principals and superintendents have a tough job safeguarding our children and our schools.  But they also have an obligation to help all students, not just the well-behaved ones. Often it is the problem student who needs the school’s help the most.  Teenagers will continue to make bad decisions.  The response, however, cannot be simply to exclude them from school, sacrificing educational opportunity and young lives in the name of school safety.  The student, his or her family, and society as a whole will be better off if everyone works together to ensure that students are excluded only as a last resort out of a genuine safety concern and not out of blind adherence to rigid school policy.

John Baraniak is a partner in the Securities Litigation, Major Commercial Litigation and Government Enforcement & Compliance Practice Groups at Choate, Hall & Stewart LLP in Boston and co-leader of the firm’s Pro Bono Program.

Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder Cases

by Alex Philipson

Case Focus

Philipson_AlexIn the mid-1920’s, in one of America’s most sensational cases of juvenile homicide, teenagers Nathan Leopold and Richard Loeb bludgeoned a neighbor to death in Chicago. At about the same time, a thousand miles away in Boston, the Supreme Judicial Court declared that a prosecutor seeking an indictment should, in appropriate instances, do more than present evidence to the grand jury; he should also give advice on the law. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). Nearly a century later, the concerns of these seemingly unrelated cases—juvenile murder and grand jury instructions—came together in ways never before seen in Massachusetts.

In Commonwealth v. Walczak, 463 Mass. 808 (2012), in a plurality opinion, the SJC held that a prosecutor must instruct the grand jury on the law in any case where he or she seeks to indict a juvenile for murder, and where there is substantial evidence of mitigating circumstances or defenses other than lack of criminal responsibility. Specifically, the prosecutor has a duty to inform the grand jury of the elements of murder and the significance of mitigating circumstances or defenses for reducing or eliminating the juvenile’s criminal liability—using the model homicide instructions, modified for grand jury proceedings. In no other case had the SJC ever held that a prosecutor was required to instruct the grand jury on the law absent a request from the grand jury. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999).

Unlike Leopold and Loeb, who set out to commit a thrill killing, Walczak had no intention of killing anyone when, embroiled in a fight with two other teenagers, he allegedly stabbed one of them to death. One night in August, 2010, Walczak, then sixteen years old, agreed to meet the victim and another youth on a street corner to sell them marijuana. The purported buyers had actually planned to rob Walczak of his drugs. When the three met, the victim and his friend told Walczak they were going to take his marijuana, and one poked him in the head. Punches were thrown and Walczak stabbed the victim several times in the neck and torso with a knife, killing him.

The Commonwealth sought and obtained an indictment for murder in the second degree. Walczak moved successfully to dismiss the indictment on grounds of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). The judge ruled that the Commonwealth had failed to disprove that Walczak acted on reasonable provocation or sudden combat—mitigating circumstances that negate malice and reduce a homicide from murder to voluntary manslaughter—and that, as a matter of law, the evidence supported at most an indictment for manslaughter.

On appeal by the Commonwealth, the SJC unanimously held that the judge erred: the evidence was sufficient to show probable cause for murder in the second degree; the Commonwealth bore no burden to disprove mitigation in the circumstances; and the grand jury was free to believe or disbelieve the evidence of mitigation. Nothing about those conclusions was particularly surprising. The excitement began when the justices considered an alternative ground for affirming the dismissal of the indictment: the Commonwealth’s failure to instruct the grand jury on the legal significance of the evidence of mitigation—i.e., that if someone kills another based on reasonable provocation or during sudden combat the offense would be manslaughter rather than murder. On the need for these instructions the justices differed markedly, but a plurality concluded that the Commonwealth should have given the instructions.

In dissent, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, argued that, regardless whether mitigating circumstances surround a homicide, the Commonwealth has no obligation to instruct on mitigation absent a request from the grand jury. But according to the plurality opinion, at least where there is “substantial” evidence of mitigation—evidence “so strong” that “concealing it would impair the integrity of the grand jury” because the evidence concealed probably would have influenced the grand jury’s decision about what charge, if any, to indict—the legal significance of that mitigating evidence must be explained. Presumably a reviewing court would examine the facts de novo to decide whether the evidence of mitigation was substantial enough to require the instructions, but Walczak is silent on this point.

Justice Gants, in his concurrence, joined by Justices Botsford and Duffly, thought the instructions should be given in all murder cases, juvenile and adult. For him, what made the instructions necessary were “due process” interests not limited to juveniles.

By contrast, Justice Lenk, who wrote her own concurrence, did not speak in terms of due process. Rather, she thought that what necessitated the instructions were “prudential” concerns arising from the special status of adolescents. For example, unlike an adult, a juvenile indicted for manslaughter rather than murder faces trial in Juvenile Court, which affords special protections for adolescents. That difference, and the generally reduced culpability of minors as compared to adults, were the reasons Justice Lenk thought the instructions were required in juvenile murder cases. But the instructions that Justice Lenk thought essential were those concerning such traditional mitigating circumstances as reasonable provocation and sudden combat; she did not say that a grand jury should also be instructed that a juvenile’s youth itself constitutes a mitigating circumstance. (She did think that, in addition to instructions on mitigating circumstances, the grand jury should be told that a juvenile indicted for murder would be tried in Superior Court, but she was alone in that view.) For purposes of resolving Walczak’s case, Justice Lenk, unlike Justice Gants, thought it unnecessary to go so far as to require mitigation instructions (on reasonable provocation and sudden combat) not only for juveniles but for adults too. As the narrower view—requiring the instructions only in juvenile cases—hers prevailed in the plurality opinion.

But this reader, at least, sees no reason why the instructions should not be given in both juvenile and adult cases, as Justice Gants suggested. Although Justice Lenk wanted to ensure that a grand jury would take into account a juvenile’s youth, mitigation and self-defense are not concepts unique to adolescents. Adults can act out of reasonable provocation, sudden combat, or self-defense just as much as adolescents can. Thus, regardless whether the subject of a murder charge is a juvenile or an adult, it would seem fair in either case for the grand jury to be instructed on mitigating circumstances and self-defense, where the evidence warrants it. But the plurality concluded that the instructions are needed only in juvenile cases.

Besides instructions on mitigation and self-defense, Justice Gants suggested that the grand jury “may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.” Walczak, 463 Mass. at 841. In this way, he agreed with Justice Spina that the grand jury is not permitted simply to choose between murder and manslaughter if credible evidence of the greater offense has been presented. But, as Justice Gants explained, even if the evidence of malice is legally sufficient, the grand jury is still free to decide that the evidence of mitigation is more reliable and return an indictment for the lesser offense.

Questioning the wisdom of the plurality’s view, Justice Spina pointed out that the decision did not address how one may pursue judicial review of a grand jury’s “gatekeeper” decision (i.e., whether the juvenile will be tried in Superior or Juvenile Court) or the applicable standard of review. More fundamentally, Justice Spina saw the plurality’s position as an “improper judicial exercise of the legislative function.” He believed that where the Legislature, in the 1996 Youthful Offender Act, removed power from Juvenile Court judges to determine in which court a juvenile would be tried, it was not up to the SJC to give similar power to the grand jury. Any legislative response to Walczak remains to be seen.

A postscript to this story is worth telling. After the SJC affirmed the dismissal of Walczak’s murder indictment, the Commonwealth returned to the grand jury to present the case again. This time, with the benefit of instructions on the legal significance of the mitigating circumstances, the grand jury indicted Walczak for voluntary manslaughter. As a result, Walczak will be treated as the juvenile he was in August, 2010, when that botched robbery turned tragically into a fatal fight.

Alex G. Philipson is founder of the appellate boutique Philipson Legal, providing appellate representation and consulting services in civil and criminal matters. He was Senior Staff Counsel to the Supreme Judicial Court from 2003 to 2011.