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SJC-12032

         FREDERICK CLAY    vs.   MASSACHUSETTS PAROLE BOARD.



            Suffolk.      April 7, 2016. - August 12, 2016.

 Present:     Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines,
                                 JJ. 1


Parole. Constitutional Law, Parole, Ex post facto
     law. Imprisonment, Parole. Practice, Criminal, Parole.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on November 20, 2015.

     The case was reported by Botsford, J.


     Jeffrey Harris for the petitioner.
     Jennifer K. Zalnasky, Assistant Attorney General, for the
respondent.
     Barbara Kaban, for Youth Advocacy Division of the Committee
for Public Counsel Services & another, amici curiae, submitted a
brief.


     CORDY, J.    In 1981, the petitioner, Frederick Clay, was

convicted of murder in the first degree.     The victim was a

Boston taxicab driver.     When the crime was committed in 1979,

     1
       Justice Duffly participated in the deliberation on this
case prior to her retirement.
                                                                      2


Clay was a juvenile.     He was sentenced to serve the statutorily

mandated term of life in prison without the possibility of

parole, see G. L. c. 265, § 2, which conviction and sentence we

affirmed on appeal. 2    See Commonwealth v. Watson, 388 Mass. 536,

548 (1983), S.C., 393 Mass. 297 (1984).

     More than thirty years later, we determined that G. L.

c. 265, § 2, which mandated Clay's sentence of life in prison

without the possibility of parole, was invalid as applied to

those, like Clay, who were juveniles when they committed murder

in the first degree.     See Diatchenko v. District Attorney for

the Suffolk Dist., 466 Mass. 655, 667 (2013), S.C., 471 Mass. 12

(2015), adopting Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012)

(Eighth Amendment to United States Constitution and art. 26 of

Massachusetts Declaration of Rights forbid sentencing schemes

mandating life in prison without possibility of parole for

juvenile offenders). 3   The result was that any juvenile offender

who had been convicted of murder in the first degree, including

Clay, became eligible for parole within sixty days before the

expiration of fifteen years of his or her life sentence.

See Diatchenko, supra at 666, 673; Commonwealth v. Brown, 466

     2
       The full factual background concerning Frederick Clay's
conviction is set forth in our opinion affirming his conviction.
See Commonwealth v. Watson, 388 Mass. 536, 548 (1983).
     3
       General Laws c. 265, § 2, has since been amended to
reflect our decision. See G. L. c. 127, § 133A, as amended
through St. 2014, c. 189, § 3.
                                                                       3


Mass. 676, 689 (2013) (under doctrine of severability, statute

read "as if omitting the exception for parole eligibility for

murder in the first degree when applying the statute to

juveniles").    See also G. L. c. 127, § 133A.

     Clay, having already served more than fifteen years of his

sentence, became immediately eligible to be considered for

parole and appeared before the parole board on May 21, 2015.      Of

the seven participating members on the panel, four voted in

favor of parole.    The parole board, however, was "unable to

grant a parole permit" because, pursuant to a 2012 amendment to

G. L. c. 127, § 133A (§ 133A), a parole permit can only be

accomplished "by a vote of two-thirds" of the parole board

members on the panel.    See G. L. c. 127, § 133A, as amended

through St. 2012, c. 192, § 39 (supermajority amendment). 4     Prior

to the adoption of the supermajority amendment, § 133A required

only "a vote of a majority" of the parole board members on the

panel.    See G. L. c. 127, § 133A, as amended through St. 1973,

c. 278.    The previous version of § 133A was in effect in 1979

when Clay committed his crime.



     4
       The preamble of the "Act relative to sentencing and
improving law enforcement tools," of which the amended G. L.
c. 127, § 133A, is a part, makes clear that the policy rationale
behind the supermajority amendment was punitive, as it sought
"to strengthen forthwith the laws relative to habitual
offenders, update sentencing laws and to provide additional law
enforcement tools." See St. 2012, c. 192.
                                                                   4


     Clay requested an administrative appeal from the decision

of the parole board, arguing that the application of the

supermajority amendment to his parole determination, rather than

the version that was in effect at the time he committed the

crime, operated as an unconstitutional ex post facto violation.

See art. I, §§ 9, 10, of the United States Constitution; art. 24

of the Massachusetts Declaration of Rights.   The request was

denied.   Clay then filed a petition for declaratory relief,

pursuant to G. L. c. 231A, or relief in the nature of certiorari

under G. L. c. 249, § 4, in the county court.   A single justice

reserved and reported the case for determination by the full

court.

     We now consider whether (1) the amended § 133A, imposing a

supermajority requirement on decisions to grant parole, was

applied retroactively to Clay; and, if it was, (2) whether such

retroactive application is an ex post facto violation, either on

its face or as applied to Clay.   After answering the first

question in the affirmative, we conclude that, because Clay is

able to show, by presenting evidence in the form of a parole

board decision, that he received affirmative votes from a

majority of the members but was denied parole under the
                                                                    5


supermajority amendment, such amendment is, as applied to him,

an ex post facto violation. 5

     Discussion.   The United States Constitution and the

Massachusetts Declaration of Rights provide protection from the

operation of ex post facto laws.     See Commonwealth v. Kelley,

411 Mass. 212, 214 (1991).      See also Police Dep't of Salem

v. Sullivan, 460 Mass. 637, 644 n.11 (2011) ("We interpret the

ex post facto clause of the State Constitution to be coextensive

with that of the Federal Constitution").     The ex post facto

clause is intended to prohibit laws that "retroactively alter

the definition of crimes or increase the punishment for criminal

acts."   Collins v. Youngblood, 497 U.S. 37, 43 (1990).

See Opinion of the Justices, 423 Mass. 1201, 1225 (1996) ("Does

the statute change[] the punishment, and inflict [] a greater

punishment, than the law annexed to the crime, when committed?"

[quotation omitted]).   One category of prohibited laws are those

that, when applied retroactively, "enhance[] the possible

penalty for a crime committed when an earlier version of the

statute was in effect."   Brown, 466 Mass. at 689 n.10,

citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

Retroactive changes that apply to the denial of parole are a

proper subject for application of the ex post facto clause.

     5
       We acknowledge the amicus brief submitted by the Youth
Advocacy Division of the Committee for Public Counsel Services
and Citizens for Juvenile Justice.
                                                                    6


See, e.g., Garner v. Jones, 529 U.S. 244, 250 (2000); California

Dep't of Corrections v. Morales, 514 U.S. 499, 509

(1995); Fender v. Thompson, 883 F.2d 303, 305 (4th Cir. 1989)

("parole eligibility is part of the law annexed to the crime at

the time of a person's offense" [citation

omitted]); Brown, supra at 688-689; Stewart v. Chairman of the

Mass. Parole Bd., 35 Mass. App. Ct. 843, 845 (1994).     See

also Weaver v. Graham, 450 U.S. 24, 29-30 (1981) (statute

presenting significant risk of depriving individual of

opportunity to shorten time in prison may also violate ex post

facto doctrine); United States ex rel. Steigler v. Board of

Parole, 501 F. Supp. 1077, 1080 (D. Del. 1980) ("the possibility

of parole is part and parcel of the punishment for a crime").

     To prevail on an ex post facto claim, a litigant "must show

both [(1)] that the law he challenges operates retroactively

(that it applies to conduct completed before its enactment) and

[(2)] that it raises the penalty from whatever the law provided

when he acted."   Doe, Sex Offender Registry Bd. No. 10800 v. Sex

Offender Registry Bd., 459 Mass. 603, 618 (2011),

citing Commonwealth v. Cory, 454 Mass. 559, 564 (2009).

     1.   Retroactivity.   The murder for which Clay is serving a

life sentence was committed in 1979.   At that time, § 133A

required positive votes from a majority of the parole board

members for a grant of parole.   See G. L. c. 127, § 133A, as
                                                                     7


amended through St. 1973, c. 278.     In 2012, the Legislature

amended § 133A to require positive votes from two-thirds of the

parole board panel members.     See G. L. c. 127, § 133A, as

amended through St. 2012, c. 192, § 39.     It was pursuant to the

amended version that the parole board determined Clay would not

be granted parole, as he received only four positive votes from

the seven board members. 6    Section 133A was, therefore,

"applie[d] to conduct completed before its enactment," and "has

a retrospective application to [Clay]."     Cory, 454 Mass. at 564-

565, citing Opinion of the Justices, 423 Mass. at 1225.

See Miller v. Florida, 482 U.S. 423, 430 (1987), quoting Weaver,

450 U.S. at 31 ("A law is retrospective if it 'changes the legal

consequences of acts completed before its effective date'").

     2.   Enhanced penalty.    The controlling inquiry as to

whether the retroactive application of a law affecting parole

constitutes an ex post facto violation is whether such

application "creates a significant risk of prolonging [an

individual's] incarceration."     Garner, 529 U.S. at 251,

citing Morales, 514 U.S. at 509 (whether application creates "a

sufficient risk of increasing the measure of punishment attached

to the covered crimes").     An individual may establish the


     6
       The parole board noted   in its decision on Clay's parole
application: "The two-thirds    majority consensus did not occur
in Clay's case. Accordingly,    parole is denied, with a review in
one year from the date of the   hearing."
                                                                     8


"significant risk" prong in either of two ways.   First, the

individual may demonstrate that the amendment is facially

unconstitutional, meaning it "by its own terms show[s] a

significant risk" of prolonging his or her

incarceration.   Garner, supra at 251, 255.   Or, second, the

individual may "demonstrate, by evidence drawn from the rule's

practical implementation by the agency charged with exercising

discretion, that its retroactive application will result in a

longer period of incarceration than under the earlier

rule."   Id. at 255.   See id. at 251 ("requisite risk" can either

be "inherent in the framework of amended [statute or]

demonstrated on the record").

     Under either analysis, "not every retroactive procedural

change creating a risk of affecting an [individual's] terms or

conditions of confinement is prohibited," Garner, 529 U.S. at

250, and whether such a retroactive application qualifies as an

ex post facto violation is a "matter of 'degree'" (quotations

omitted), Morales, 514 U.S. at 509, quoting Beazell v. Ohio, 269

U.S. 167, 171 (1925).    See Commonwealth v. Bargeron, 402 Mass.

589, 594 (1988) ("Statutes relating merely to the remedy or

procedure which do not affect substantive rights are generally

held to operate retroactively" [quotation omitted]).    See

also Weaver, 450 U.S. at 31 ("it is the effect, not the form, of

the law that determines whether it is ex post facto").    Because
                                                                       9


the Legislature "must have due flexibility in formulating parole

procedure and addressing problems associated with confinement

and release," there is no "single formula for identifying which

legislative adjustments, in matters bearing on parole, would

survive an ex post facto challenge."     Garner, supra at 252.

See Morales, supra.

     The Supreme Court has deemed unconstitutional the

retroactive application of parole laws where the increase in

punishment is certain and demonstrable.     See Lynce v. Mathis,

519 U.S. 433, 446-447 (1997).     In Lynce, the petitioner had

earned early release from prison based on the accrual of

credits.    Id. at 438.    That year, the Florida Legislature

canceled the credit program for certain classes of incarcerated

individuals, including that of the petitioner.      Id. at 438-439.

As a result, the petitioner's credits were rescinded, rearrest

warrants were issued, and the petitioner was returned to

prison.    Id. at 439.    The United States Supreme Court determined

that the statute "unquestionably disadvantaged petitioner

because it resulted in his rearrest and prolonged his

imprisonment."    Id. at 446-447.    It "did more than simply remove

a mechanism that created an opportunity for early release for a

class of prisoners whose release was unlikely; rather, it made

ineligible for early release a class of prisoners who were

previously eligible -- including some, like petitioner, who had
                                                                      10


actually been released" (emphasis in original).      Id. at 447.

Such application was therefore an ex post facto violation.         Id.

     On the other hand, where retroactive application of a

parole law creates only a speculative or conjectural risk of

prolonging incarceration, the Court has refused to hold such law

unconstitutional.   See Garner, 529 U.S. at 255-257 (remanding

case for further consideration whether retroactive application

of amendment created "significant risk of increased punishment

for [the individual]," because record revealed only

"speculation"); Morales, 514 U.S. at 509.      The litigant

in Morales challenged the retroactive application of a law that

allowed the California parole board the discretion to set an

interval longer than the previously required one-year waiting

period between parole hearings.       Morales, supra at 503-504.

Because the risks associated with the application of the

amendment were merely "conjectural" and produced a "remote"

likelihood of affecting the release of the affected prisoners,

the Court found that "[t]he amendment create[d] only the most

speculative and attenuated possibility of producing the

prohibited effect of increasing the measure of punishment for

covered crimes."    Id. at 508-509.    The Court therefore reversed

the judgment of the United States Court of Appeals for the Ninth

Circuit that the amendment violated the ex post facto

clause.   Id. at 514.
                                                                   11


     3.   Facial challenge to G. L. c. 127, § 133A.    We first

consider whether the supermajority amendment is, on its face, an

unconstitutional ex post facto violation.    We conclude that it

is not, as a facial attack on the supermajority amendment to

§ 133A fails to establish that there is a significant requisite

risk inherent in its framework.     Garner, 529 U.S. at 255.

     Under Massachusetts law, the parole board has discretionary

authority to grant parole.   See G. L. c. 27, § 5 ("The parole

board shall . . . within its jurisdiction . . . determine which

prisoners . . . may be released on parole, and when and under

what conditions, and the power within such jurisdiction to grant

a parole permit to any prisoner, and to revoke, revise, alter or

amend the same . . .").   Under the parole board's discretionary

authority pursuant to G. L. c. 27, § 5, no one is guaranteed a

grant of parole.   See Diatchenko, 466 Mass. at 674.   The

disposition of the facial challenge, then, will rest on whether

or not the supermajority amendment to the discretionary power of

the parole board to grant parole "increases, to a significant

degree, the likelihood or probability of prolonging [an

individual's] incarceration."     Garner, 529 U.S at 256.

     We are not convinced that the inherent effect of the

supermajority amendment creates a significant risk of increased

punishment for covered individuals.    See Garner, supra at 251.

Absent the parole board's decision as to Clay's parole
                                                                      12


application and the apparent effect on it of the supermajority

amendment, we are presented with nothing beyond speculation and

conjecture that the supermajority amendment to § 133A would

"increas[e] the measure of punishment attached to the covered

crimes."        Morales, 514 U.S. at 514.   The supermajority amendment

to § 133A applies only to a class of individuals (those

sentenced to life in prison) for whom the probability of release

on parole, particularly as part of an initial hearing, is very

low. 7       Indeed, Clay acknowledges in his reply brief that only one

other person has, since the enactment of the supermajority


         7
       In 2011, the parole board heard twenty-eight initial life
sentence parole hearings. See Massachusetts Parole Board, 2011
Annual Statistical Report, at 15 (2011 Report), http://www.mass.
gov/eopss/docs/pb/paroleboard2011annualstatisticalreport.pdf
[https://perma.cc/6PFY-2W33]. Of those twenty-eight hearings,
conducted prior to the supermajority amendment to G. L. c. 127,
§ 133A, four yielded permits (fourteen per cent). Id. In 2012,
during which, on August 2 of that year, the supermajority
requirement went into effect, there were twenty-six initial
hearings, yielding five positive parole votes (nineteen per
cent). See Massachusetts Parole Board, 2012 Annual Statistical
Report, at 33 (2012 Report), http://www.mass.gov/eopss/docs/pb/
2012annualstatisticalreport.pdf [https://perma.cc/9U2M-7GSE].
In 2013, the most recent year on record (and during which every
hearing was conducted pursuant to the supermajority
requirement), there was a positive vote rate of five out of
twenty-three (twenty-two per cent). See Massachusetts Parole
Board, 2013 Annual Statistical Report, at 31 (2013 Report)
http://www.mass.gov/eopss/docs/pb/2013annualstatisticalreport.
pdf [https://perma.cc/YUK8-MW4V]. These statistics indicate not
only that the probability of parole on an initial hearing for
individuals sentenced to life in prison is very low, but also
that the supermajority amendment has not had any negative effect
on the chances of receiving a positive parole vote. The same
holds true for review hearings. See 2011 Report, supra; 2012
Report, supra; 2013 Report, supra.
                                                                    13


amendment, been denied parole after receiving four favorable

votes.    See Alston v. Robinson, 791 F. Supp. 569, 591 (D. Md.

1992) (facial ex post facto challenge to amendment requiring

higher percentage of votes in favor of parole alone, without

direct evidence from persons affected, failed because it did

"not substantially alter [those individuals'] 'quantum of

punishment' and thus, does not violate the ex post facto clause"

[citation omitted]).    While "[t]he presence of discretion does

not displace the protections of the [e]x [p]ost [f]acto

[c]lause," Garner, supra at 253, the supermajority amendment is

not, on its face, unconstitutional.

     4.   As applied.   We next consider whether the supermajority

amendment is an ex post facto violation as applied to Clay.

See Garner, 529 U.S. at 255 ("When the rule does not by its own

terms show a significant risk, the [litigant] must demonstrate,

by evidence drawn from the rule's practical implementation by

the agency charged with exercising discretion, that its

retroactive application will result in a longer period of

incarceration than under the earlier rule").    The parole board's

decision denying Clay's application for parole is evidence that,

but for the supermajority amendment, Clay would have been

granted parole.   The majority (four members) "voted to parole

Clay to a long term residential treatment program after

successful completion of one year in lower security."    However,
                                                                    14


because "[t]he two-thirds majority consensus did not occur in

Clay's case . . . , parole [was] denied."     That is clear

evidence, "drawn from the rule's practical implementation by the

agency charged with exercising discretion," id., that the

supermajority amendment's application rendered Clay "ineligible

for early release," Lynce, 519 U.S. at 447.     The retroactive

application therefore "result[ed] in a longer period of

incarceration than under the earlier rule."     Garner, supra.

     This is not a case in which the risk of increased

punishment is merely a "speculative and attenuated

possibility," Morales, 514 U.S. at 509:     had Clay received a

favorable vote from four members of the parole board prior to

the supermajority amendment, he would have been granted parole.

Instead, he remains in prison.    The supermajority amendment

therefore no longer simply poses the requisite "significant risk

of prolonging [Clay's] incarceration," Garner, 529 U.S. at 251,

quoting Morales, 514 U.S. at 509; such risk is, for Clay,

already a reality. 8   See Lynce, 519 U.S. at 447 n.17 (amendment


     8
       While we recognize that Clay's parole eligibility is
conditioned on a successful completion of one year at a lower
security institution, our review of the parole hearing
decisions, see Official Web site of the Executive Office of
Public Safety and Security, Public Safety, Massachusetts Parole
Board Decisions, http://www.mass.gov/eopss/agencies/parole-
board/lifer-records-of-decision.html, reveals that such a
designation has become commonplace prior to full release on
parole. It therefore does not affect our analysis, as such
prerelease conditions are a step in the parole process. In any
                                                                  15


"chang[es] . . . the quantum of punishment attached to the

crime" [citation omitted]); Barton v. South Carolina Dep't of

Probation Parole & Pardon Servs., 404 S.C. 395, 399, 419 (2013)

(increase in requisite votes needed for parole applied

retroactively deemed unconstitutional as an ex post facto

violation). 9,10



event, Clay's preclusion from a lower security institution still
constitutes a "raise[d] . . . penalty" (citation omitted). Doe,
Sex Offender Registry Bd. No. 1080 v. Sex Offender Registry Bd.,
459 Mass. 603, 618 (2011).
     9
       The parole board seems to suggest that the risk as to
prolonged punishment is speculative because the parole board
members may have voted differently had they known that a
majority vote would have been sufficient to establish release.
Because we presume that the parole board members are voting in
good faith and without the other members' votes in mind, see 120
Code Mass. Regs. § 300.04 (1997) ("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"), we assume that the votes would be the same regardless
of the threshold for parole. See Garner v. Jones, 529 U.S. 244,
256 (2000) ("Absent a demonstration to the contrary, we presume
the [b]oard follows its statutory commands and internal policies
in fulfilling its obligations").
     10
       We acknowledge the decision of the Arizona Court of
Appeals in State ex rel. Gonzalez v. Superior Court, 184 Ariz.
103, 105 (Ct. App. 1995) (Gonzalez). The issue decided in that
case is similar to the one we face in the present case: an
incarcerated individual was sentenced when a majority vote of
the three-member quorum of the Arizona parole board warranted
parole. Id. at 103. Before he came before the board, the
Legislature passed a statute requiring that any three-member
panel unanimously approve parole. Id. at 104. The individual
received two of three votes, and his parole was denied. Id.
Despite acknowledging that procedural changes could still
constitute ex post facto laws, id. at 105, the court, relying on
                                                                  16


     Conclusion.   The retroactive application of the

supermajority amendment constitutes an ex post facto violation.

Clay received the necessary four out of seven votes from the

parole board panel required by the version of § 133A in effect

at the time he committed murder in the first degree, and he

should therefore be granted parole.    The parole board's decision

is reversed, and we remand the case for proceedings consistent

with this opinion. 11

                                      So ordered.




Collins v. Youngblood, 497 U.S. 37, 42 (1990), held that the
amendment was "clearly procedural in nature and [did] not alter
the criteria that the [b]oard applies in determining parole
eligibility." Gonzalez, supra. Therefore, because it had "not
newly criminalized his acts, enhanced his punishment, or altered
the legal rules of evidence as they appl[ied] to his case," the
retroactive application did "not violate ex post facto
constitutional principles." Id. Gonzalez was decided without
the benefit of Garner, Morales, and, in particular, Lynce. The
United States Supreme Court, in Lynce, which was decided two
years after Gonzalez, made clear that retroactively prolonging a
term of imprisonment and rendering an individual ineligible for
release may be sufficient to establish an ex post facto
violation. See Lynce v. Mathis, 519 U.S. 433, 447 (1997).
     11
       Because we conclude that Clay is entitled to parole based
on the unconstitutional ex post facto violation, we need not, as
he invites us to do, consider the impact of his interim period
of incarceration without the possibility of parole on his ex
post facto claim.
