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SJC-12482

      JEFFREY S. ROBERIO   vs.   MASSACHUSETTS PAROLE BOARD.



       Suffolk.      January 8, 2019. - October 24, 2019.

 Present:   Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.


Parole. Imprisonment, Parole. Constitutional Law, Parole, Ex
     post facto law. Due Process of Law, Parole, Retroactive
     application of statute. Statute, Retroactive application.
     Practice, Criminal, Parole.



     Civil action commenced in the Superior Court Department on
August 24, 2016.

     The case was heard by Christine M. Roach, J., on motions
for judgment on the pleadings.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Benjamin H. Keehn, Committee for Public Counsel Services,
for the plaintiff.
     Matthew P. Landry, Assistant Attorney General, for the
defendant.
     Elizabeth Zito, of New York, Janie Y. Miller, of
California, David J. Apfel, & Marielle Sanchez, for
Massachusetts Association of Criminal Defense Lawyers & others,
amici curiae, submitted a brief.
                                                                   2


     CYPHER, J.    This case concerns whether retroactive

application of a 1996 amendment to G. L. c. 127, § 133A

(§ 133A), which prescribes parole eligibility conditions for

prisoners serving life sentences, is an ex post facto violation,

either on its face or as applied to the plaintiff, Jeffery S.

Roberio.

     In 1986, seventeen year old Roberio was convicted of armed

robbery and murder in the first degree premised on theories of

felony-murder, deliberate premeditation, and extreme atrocity or

cruelty, and he was sentenced to life in prison without the

possibility of parole.    As a result of our decision in

Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.

655 (2013), S.C., 471 Mass. 12 (2015) (Diatchenko I), which

applied Miller v. Alabama, 567 U.S. 460, 479 (2012), and

invalidated mandatory life sentences for juvenile homicide

offenders, Roberio became immediately eligible for parole.

     In 2015, the defendant Parole Board (board) denied

Roberio's application for parole and applied the 1996 amendment

to § 133A that increased the maximum permissible period between

subsequent applications for parole from three years to five

years.     See St. 1996, c. 43.   Roberio challenged the board's

decision in the Superior Court, and a judge concluded that the

board did not abuse its discretion.
                                                                      3


     We allowed Roberio's application for direct appellate

review and conclude that because the primary aim of the 1996

amendment was to afford relief to families of murder victims,

the Legislature intended the amendment to apply retroactively.

We also conclude that the amendment is not unconstitutional on

its face.   However, further discovery concerning the board's

practical implementation of the 1996 amendment is necessary to

determine whether application of the amendment to Roberio is

nonetheless unconstitutional.    Accordingly, we vacate the

Superior Court judge's order allowing the board's motion for

judgment on the pleadings and remand for further proceedings

consistent with this opinion.1

     Background and facts.    The details of Roberio's crimes are

set forth in Commonwealth v. Roberio, 440 Mass. 245, 246-247 (2003)

(affirming convictions), and need not be repeated here.   It

suffices to say that as a juvenile, Roberio devised and executed

a vicious robbery, during which he and another individual

brutally beat and strangled an elderly man to death.

     In 2015, the board unanimously denied Roberio's first

parole application on the ground that he was not "fully


     1 We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers; the
Juvenile Law Center; Prisoners' Legal Services; Northeastern
University School of Law, Prisoners' Rights Project; Harvard Law
School, Prison Legal Assistance Project; and the Coalition for
Effective Public Safety.
                                                                    4


rehabilitated."    The board cited Roberio's lack of corrective

programming aimed at addressing his substance abuse, anger, and

violence issues, issues which Roberio claimed had led to the

very murder for which he was incarcerated, leaving the board

with serious concerns regarding "whether he still presents a

risk of harm to the community, and whether his release is

compatible with the best interest of society."    In conjunction

with this denial, the board ordered a review in five years and

advised that during those five years "Roberio should engage in

rehabilitative programming that addresses substance abuse,

anger, violence, and any potential mental health issues that may

impair his ability to function as a law abiding citizen in

society."2




     2   General Laws c. 127, § 133A, provides in pertinent part:

     "After [a parole hearing] the parole board [(board)] may,
     by a vote of two-thirds of its members, grant to such
     prisoner a parole permit to be at liberty upon such terms
     and conditions as it may prescribe for the unexpired term
     of his sentence. If such permit is not granted, the . . .
     board shall, at least once in each ensuing five year
     period, consider carefully and thoroughly the merits of
     each such case on the question of releasing such prisoner
     on parole, and may, by a vote of two-thirds of its members,
     grant such parole permit."

See 120 Code Mass. Regs. § 301.01(5) (2017) ("In cases involving
inmates serving life sentences with parole eligibility, a parole
review hearing occurs five years after the initial parole
release hearing, except where the [board] members act to cause a
review at an earlier time").
                                                                      5


    At the time Roberio committed his crimes, § 133A provided

that when the board denied a prisoner who was serving a life

sentence parole, it was required to "carefully and thoroughly"

reconsider the merits of that prisoner's case "at least once in

each ensuing three year period."   See G. L. c. 127, § 133A, as

amended through St. 1982, c. 108, § 2.     We refer to the period

between the board's denial of parole and a prisoner's subsequent

review as a "setback" or "set-back period."

    Roberio brought his challenge to the board's decision in

Superior Court pursuant to G. L. c. 249, § 4, arguing that the

board abused its discretion in failing to consider adequately

his juvenile status in making its parole determination.     He also

sought a declaration, pursuant to G. L. c. 231A, that the

board's application of the 1996 amendment to him posed a

significant risk of prolonging his incarceration and, as a

result, violated his constitutional right to be protected from

the operation of ex post facto laws, as provided in art. I,

§ 10, of the United States Constitution and art. 24 of the

Massachusetts Declaration of Rights.     The judge denied Roberio's

subsequent motions for judgement on the pleadings and summary

judgment, and allowed the board's cross motion for judgment on

the pleadings.   The judge found that the board did not abuse its

discretion in denying Roberio's parole, and she concluded that
                                                                   6


Roberio's claim of increased punishment was speculative and

conjectural.

     Discussion.   1.   Retroactive application of the 1996

amendment.   As an initial matter, the parties agree that the

board applied the 1996 amendment retroactively to Roberio.

Roberio argues that the Legislature did not intend for the 1996

amendment to operate retroactively, and therefore, we should

apply the ordinary presumption of prospective application in

this case.   See G. L. c. 4, § 6, Second.   The board maintains

that the 1996 amendment may operate retroactively because it is

procedural in nature and, in any event, prospective application

of the amendment would be inconsistent with the aims of its

enactment.   We need not reach the board's argument that the 1996

amendment is procedural because we conclude that the Legislature

in fact intended the amendment to apply retroactively.3


     3 We also note that this analysis overlaps significantly
with our analysis under the ex post facto clauses. A law is not
procedural if it "affects substantive rights," Stewart v.
Chairman of Mass. Parole Bd., 35 Mass. App. Ct. 843, 845-846
(1994), and a law violates the ex post facto clauses only if it
affects "substantive rights," see Commonwealth v. Bargeron, 402
Mass. 589, 591 (1988). Moreover, the United States Supreme
Court has stated that even seemingly procedural changes may run
afoul of the ex post facto clauses if the practical effect is to
affect a substantive right. Weaver v. Graham, 450 U.S. 24, 29
n.12 (1981) (statute could violate ex post facto clause even if
statute "takes a seemingly procedural form"). See Clay v.
Massachusetts Parole Bd., 475 Mass. 133, 141 n.10 (2016)
(procedural changes could constitute ex post facto laws).
Therefore, we conclude that it is prudent to engage in the ex
                                                                     7


    In accordance with our rule of statutory construction,

amendments to penal statutes are "presumptively prospective"

(citation omitted).    Commonwealth v. Bradley, 466 Mass. 551, 553

(2013).   See G. L. c. 4, § 6, Second.   The objective of this

presumption "is to 'preserve, even after legislative change of a

statute, the liability of an offender to punishment for an

earlier act or omission made criminal by the statute repealed in

whole or in part.'"    Bradley, supra, quoting Commonwealth v.

Dotson, 462 Mass. 96, 100 (2012).

    The presumption of prospective application is not absolute.

Watts v. Commonwealth, 468 Mass. 49, 55 (2014), citing Bradley,

466 Mass. at 553.     "In accordance with G. L. c. 4, § 6," it will

not apply where "the prospective application of the legislation

in question would be 'inconsistent with the manifest intent of

the law-making body or repugnant to the context of the same

statute.'"   Watts, supra, quoting Bradley, supra.    See

Commonwealth v. Didas, 471 Mass. 1, 5 (2015) (same).    We

generally treat these as "distinct exceptions."    Watts, citing

Bradley, supra.   See Bradley, supra ("Legislature intended that




post facto analysis regardless of whether the amendment appears
procedural. See Collins v. Youngblood, 497 U.S. 37, 46 (1990)
("Subtle ex post facto violations are no more permissible than
overt ones. . . . [T]he constitutional prohibition is addressed
to laws, whatever their form, which make innocent acts criminal,
alter the nature of the offense, or increase the punishment"
[quotations and citation omitted]).
                                                                     8


there be two exceptions, perhaps often related in fact, but

separate and distinct in meaning").   But see Didas, supra at 10

n.11 (single line of inquiry may be sufficient to address both

exceptions where party advances essentially same argument under

both exceptions).   We consider both in turn.

    The presumption of prospective application is inconsistent

with the manifest intent of the Legislature where an intention

that the statute apply retroactively is clearly expressed.

Watts, 468 Mass. at 55, quoting Bradley, 466 Mass. at 554.      "The

Legislature may clearly express its intent through the words

used in a statute or the inclusion of other retroactive

provisions in the statute that would make prospective

application of the provision at issue anomalous, if not absurd"

(quotations and citation omitted).    Bradley, supra.   Under this

exception, "inferring that the Legislature probably intended

retroactive application is not enough; that intent must be

'clearly expressed'" (citation omitted).      Id.

    The act providing for the 1996 amendment, entitled "An Act

relative to eligibility for parole," provided only,     "Section

133A of chapter 127 of the General Laws . . . is hereby amended

by striking out, in line 24, the word 'three' and inserting in

place thereof the following word:    five."    The Legislature did

not express an intention that the 1996 amendment apply

retroactively.   Indeed, "the section is silent as to its
                                                                     9


temporal application."    Bradley, 466 Mass. at 555.   See Watts,

468 Mass. at 56.    Nor are there other provisions included in the

act that would make prospective application of the amended

§ 133A "anomalous, if not absurd" (citation omitted).     Bradley,

supra at 554.

       Turning to the second exception, the presumption of

prospective application is "repugnant to the context of the same

statute where it would be contrary to the purpose of the statute

to delay the accomplishment of that purpose" (quotations

omitted).   Bradley, 466 Mass. at 555–556.   Although "the phrase

does not refer to the intent of the Legislature, and certainly

does not require that the intent of the Legislature be made

'manifest,' it does compel us to discern the legislative purpose

of the statute at issue and determine whether prospective

application would be inconsistent with that purpose."     Id. at

556.

       The legislative history of the 1996 amendment demonstrates

that the intent of the Legislature was to reduce the workload of

the board and, "more importantly," benefit the families of

murder victims, in requiring them to "undergo the trauma of a

parole hearing only once every five years instead of once every

three years."   Memorandum regarding House Bill No. 1894, "An Act

relative to eligibility for parole" (Mar. 14, 1996).    See House

of Representatives, Committee on Local Affairs, Fact Sheet for
                                                                  10


House Bill No. 1894 (Feb. 9, 1995) (same).    Thus, the

Legislature's goal in enacting the 1996 amendment is clear.

Prospective application would have the anomalous result of

affording relief to some families but not others, which would be

inconsistent with the Legislature's plain intention and

repugnant to the context of the statute.    See Bradley, 466 Mass.

at 559 (where Legislature amended school zone statute to, in

part, "diminish the unfair disparate impact" of prior statute

"on urban and minority residents," repugnant to context of

statute to apply amendment prospectively and prolong resulting

unfair disparate impact of prior statute).    Cf. Watts, 468 Mass.

at 61-62 (although act extending jurisdiction of Juvenile Court

was silent as to temporal application, it was passed with

informed understanding that actual implementation would likely

require additional staff and services; prospective application

takes these considerations, as well as legal complexities and

impact of opposite construction, into account and is not

repugnant to act's purpose).

    2.   Application of ex post facto clause.    Both art. I,

§ 10, of the United States Constitution and art. 24 of the

Massachusetts Declaration of Rights provide protection from the

operation of ex post facto laws.   Clay v. Massachusetts Parole

Bd., 475 Mass. 133, 135 (2016).    Roberio has invited us to

determine that our State Constitution affords greater protection
                                                                  11


than that of the Federal Constitution.     We decline to do so

where we have considered this issue before and have consistently

considered the two as coextensive.     See Police Dep't of Salem v.

Sullivan, 460 Mass. 637, 644, n.11 (2011); Commonwealth v. Cory,

454 Mass. 559, 564 n.9 (2009); Commonwealth v. Bruno, 432 Mass.

489, 492 n.4 (2000).

    The prohibition against ex post facto laws serves the

important, twin aims of assuring that legislative acts give fair

warning of their effect and "restraining arbitrary and

potentially vindictive legislation."     Weaver v. Graham, 450 U.S.

24, 29 (1981).   See Lerner v. Gill, 751 F.2d 450, 456-457 (1st

Cir.), cert. denied, 472 U.S. 1010 (1985), quoting Weaver, supra

at 30 ("Critical to relief under the Ex Post Facto Clause is

. . . the lack of fair notice and governmental restraint when

the legislature increases punishment beyond what was prescribed

when the crime was consummated").    Retroactive changes that

affect parole eligibility are "a proper subject for application

of the ex post facto clause."   Clay, 475 Mass. at 136 (parole

eligibility is part of law annexed to crime at time of person's

offense).   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) (Morales).   In this context, an ex post facto law is one

that "changes the punishment, and inflicts a greater punishment,

than the law annexed to the crime, when committed."
                                                                   12


Commonwealth v. Bargeron, 402 Mass. 589, 590 (1988), quoting

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

v. Youngblood, 497 U.S. 37, 46-47 (1990) (emphasizing that

Calder decision controls).

    We have stated that "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.'"   Clay, 475 Mass. at 136–137,

quoting Garner, 529 U.S. at 251.   See Morales, 514 U.S. at 509.

In this case, Roberio may establish the requisite risk either by

demonstrating that the 1996 amendment is facially

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

significant risk" of prolonging his incarceration, see Garner,

supra at 255, or by demonstrating with evidence derived from the

amendment's "practical implementation by the agency charged with

exercising its 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"); Clay, supra at 137 (same).

    We recently addressed whether a 2012 amendment to § 133A

increasing the number of board member votes necessary to grant

parole from a simple majority to a majority vote of two-thirds
                                                                     13


violated the ex post facto clause as applied to a juvenile

homicide offender similarly situated to Roberio.     Clay, 475

Mass. at 134.    See G. L. c. 127, § 133A, as amended through St.

2012, c. 192, § 39.    The offender had received four votes in

favor of parole from a panel of seven members.     Id.   Under the

version of § 133A in effect at the time the offender committed

his crime, he would have been granted parole with this majority

vote, see G. L. c. 127, § 133A, as amended through St. 1973,

c. 278.   However, in accordance with the 2012 amendment

requiring a vote of two-thirds of the panel members, the board

denied parole.   See G. L. c. 127, § 133A, as amended through

St. 2012, c. 192, § 39.

       We reiterated that, "[u]nder Massachusetts law, the . . .

board has discretionary authority to grant parole," see G. L.

c. 27, § 5, and that "no one is guaranteed a grant of parole."

Clay, 475 Mass. at 138-139, citing Diatchenko I, 466 Mass. at

674.   Thus, "disposition of the facial challenge" would "rest on

whether . . . the supermajority amendment 'increases, to a

significant degree, the likelihood or probability of prolonging

[an individual's] incarceration.'"    Clay, supra, quoting Garner,

529 U.S. at 256.

       We concluded that the inherent effect of the supermajority

amendment did not create a significant risk of increased

punishment for the individuals covered by the amendment.      Clay,
                                                                  14


475 Mass. at 139.     Id., quoting Morales, 514 U.S. at 514

("Absent the . . . board's decision as to [the offender's]

parole 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 'increase the measure of punishment attached to the

covered crimes'").    However, as applied to the offender,

application of the supermajority amendment did in fact

constitute an ex post facto violation because he was able to

demonstrate that, but for the amendment, the board would have

granted him parole.    Clay, supra at 140.   "This [was] not a case

in which the risk of increased punishment [was] merely a

'speculative and attenuated possibility.'"     Id., quoting

Morales, supra at 509.

    In Clay, we relied heavily on two Supreme Court cases that

have direct bearing on the issue raised in this case.     See

Morales, 514 U.S. at 499; Garner, 529 U.S. at 244.     In Morales,

supra at 501-502, the Court addressed whether an amendment to

California's parole procedure allowing the parole board to

decrease the frequency of parole hearings violated the ex post

facto clause.   The prisoner in that case was a twice-convicted

murderer.   Id. at 502.   At the time of the second murder, he

would have been entitled to annual parole suitability hearings

once he was parole eligible; however, the California Legislature
                                                                    15


amended the relevant statute to allow the parole board to defer

subsequent parole hearings for up to three years if the prisoner

had been convicted of more than one offense that involved taking

a life.   Id. at 503.   After the prisoner's first application for

parole was denied, the parole board deferred his next hearing

for three years.   The prisoner claimed that the amendment

violated the ex post facto clause.   Id. at 503-504.

    The Court concluded that the amendment did not affect the

sentence for the offense but, rather, the "'method to be

followed' in fixing a parole release date."    Id. at 508.    The

prisoner urged the Court to find that any legislative change

that creates a "conceivable risk of affecting a prisoner's

punishment" violates the ex post facto clause.    Id.   The Court

rejected this approach, noting that it would require an

"invalid[ation] of any number of minor . . . changes that might

produce [a] remote risk of impact on a prisoner's sentence,"

leading to a "micromanagement of an endless array of legislative

adjustments to parole and sentencing procedures" that "might

create some speculative, attenuated risk of affecting a

prisoner's actual term of confinement by making it more

difficult for him to make a persuasive case for early release,

but that fact alone cannot end the matter for ex post facto

purposes."   Id. at 508-509.   Declining to create a single

"formula" for identifying legislative changes that violate the
                                                                   16


ex post facto clause, the Court determined that in evaluating

the constitutionality of an amendment, "we must determine

whether it produces a sufficient risk of increasing the measure

of punishment attached to the covered crimes."     Id.   at 509.

    The Court held that the amendment created "only the most

speculative and attenuated possibility of producing the

prohibited effect of increasing the measure of punishment for

covered crimes."   Id.   In making this determination, the Court

relied on a several factors, including that the likelihood of

parole for the class of prisoners affected by the amendment was

remote; that the amendment was carefully tailored; that the

parole board was required to make particularized findings to

support its decision; and that the parole board retained

discretion under the amendment to assign either an annual review

or a two-year set-back period.   Id. at 510-512.    The Court also

stated that "there is no reason to conclude that the amendment

will have any effect on any prisoner's actual term of

confinement, for the current record provides no basis for

concluding that a prisoner who experiences a drastic change of

circumstances would be precluded from seeking an expedited

hearing from the [b]oard."   Id. at 512.

    In Garner, the Court reviewed an amendment to a Georgia

parole law that reduced the frequency of parole review from

every third year to every eighth year for inmates serving life
                                                                  17


sentences.   Garner, 529 U.S. at 247.   The Court stated that

certain differences between Georgia's amended parole law and the

California law reviewed in Morales, including five more years

between hearings, fewer procedural safeguards, and covering more

prisoners than just multiple murderers, were "not dispositive,"

and reiterated that there is no single formula "for identifying

which legislative adjustments, in matters bearing on parole,

would survive an ex post facto challenge."     Id. at 251-252.   The

Court added that "States must have due flexibility in

formulating parole procedures and addressing problems associated

with confinement and release."   Id. at 252.

    The Court concluded that the amendment to the Georgia law

did not create a significant risk of prolonging the respondent's

incarceration on its face because it was "qualified in two

important respects.   First, the law vest[ed] the Parole Board

with discretion as to how often to set an inmate's date for

reconsideration, with eight years for the maximum. . . . Second,

the Board's policies permit[ed] expedited parole reviews in the

event of a change in their circumstance or where the Board

receives new information that would warrant a sooner review"

(citation omitted).   Id. at 254.

    The Court stated that "[w]hen the rule does not by its own

terms show a significant risk, the respondent must demonstrate,

by evidence drawn from the rule's practical implementation by
                                                                     18


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, and

concluded that on the record before it, the Court could not

determine whether the change in the Georgia law "lengthened the

respondent's time of actual imprisonment."       Id. at 256.   The

record before them "contained little information bearing on the

level of risk created by the change in law," and "[w]ithout

knowledge of whether retroactive application of the [amendment]

increases, to a significant degree, the likelihood or

probability of prolonging respondent's incarceration," the Court

was unable to reach a conclusion concerning the respondent's as-

applied challenge.   Id. at 256.   The Court remanded for further

proceedings and emphasized that the respondent must show that,

"as applied to his own sentence," the amendment created a

"significant risk of increasing his punishment.      This remains

the issue in the case, though the general operation of the

Georgia parole system may produce relevant evidence and inform

further analysis on the point."    Id. at 255.

     a.   Facial challenge.   For much the same reasons discussed

by the Supreme Court in Garner and Morales, we are not persuaded

that there is a significant risk of prolonged incarceration

"inherent in the framework" of the 1996 amendment.      Garner, 529

U.S. at 251.   As discussed, the decisions regarding whether,
                                                                   19


when, and under what conditions to grant parole rest entirely

with the board.   See G. L. c. 27, § 5.   Parole is not required;

indeed, it is not even presumed.    G. L. c. 27, § 5.   The effect

of the 1996 amendment was to allow the board to exercise one

facet of its discretion.   See G. L. c. 127, § 133A, as amended

through St. 1996, c. 43.   The 1996 amendment does not affect a

covered prisoner's initial eligibility date, the standards for

parole suitability, or the board's statutory obligation to

"consider carefully and thoroughly" the merits of each

prisoner's parole application.     G. L. c. 127, § 133A.   It merely

affects the "method to be followed" for fixing a parole release

date.   Morales, 514 U.S. at 508.   Critically, the 1996 amendment

does not require the board to assign five-year set-back periods.

Indeed, the amendment maintains the integrity of the board's

ability to assign whatever set-back period it deems appropriate

and necessary, as well as the discretion to revisit that

decision either at the request of a prisoner or on its own

initiative.   G. L. c. 127, § 133A.4   See Garner, 529 U.S. at 254


    4  Roberio attempts to distinguish his case from Garner v.
Jones, 529 U.S. 244, 254 (2000), and California Dep't of
Corrections v. Morales, 514 U.S. 499, 508 (1995), by arguing
that, although the board has the discretion to grant expedited
hearings, it does not exercise that discretion in practice. See
120 Code Mass. Regs. § 304.03 (2017) (providing for
reconsideration of board decision). This argument affects the
as-applied analysis only. See Clay, 475 Mass. at 140, quoting
Garner, supra at 255 (petitioner may demonstrate requisite risk
                                                                  20


(parole board's policies permitted expedited parole reviews in

event of change in circumstance or where parole board received

new information that would warrant earlier review); Morales,

supra at 512-513 (record provided no basis for concluding that

prisoner who experienced drastic change of circumstances would

be precluded from seeking expedited hearing from parole board).

     Roberio urges us to draw a distinction between his position

and those of the petitioners in Garner and Morales based on his

status as a juvenile homicide offender, because as a juvenile

offender he has greater prospects for reform.    We conclude that

such a distinction is unnecessary.    As an initial matter, we

note that in the context of a facial challenge, we consider the

impact that the amendment will have on the entire class of

persons covered by the amendment.    In this case, the class of

prisoners covered by the 1996 amendment consists of prisoners

serving life sentences with the possibility of parole.5   For



with evidence derived from amendment's "practical
implementation").

     5 "Every prisoner who is serving a sentence for life in a
correctional institution of the commonwealth, except prisoners
confined to the hospital at the Massachusetts Correctional
Institution, Bridgewater, except prisoners serving a life
sentence for murder in the first degree who had attained the age
of [eighteen] years at the time of the murder and except
prisoners serving more than [one] life sentence arising out of
separate and distinct incidents that occurred at different
times, where the second offense occurred subsequent to the first
conviction, shall be eligible for parole at the expiration of
                                                                  21


purposes of the maximum permissible set-back period, the statute

does not make a distinction between juvenile and adult

offenders.

    Nonetheless, we conclude that any risk that the 1996

amendment might have a more significant impact on juveniles than

it does on adults is sufficiently mitigated by the fact that

juveniles are already afforded certain protections in the parole

process for the express purpose of guaranteeing that those

offenders will be afforded a meaningful opportunity to be

considered for parole.   We recognized in Diatchenko I, 466 Mass.

at 670, quoting Miller, 567 U.S. at 471, that "children are

constitutionally different from adults, for purposes of

sentencing," because they have "diminished culpability and

greater prospects for reform."   Flowing from that recognition

was our directive to the board that it consider a prisoner's

juvenile status at the time of his parole, see Diatchenko I,

supra at 674 ("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



the minimum term fixed by the court under [G. L. c. 279, § 24]."
G. L. c. 127, § 133A.
                                                                   22


parole suitability"), and our directive that such offenders be

afforded the procedural protections of representation by

counsel, as well as the opportunity to obtain expert assistance

in connection with that initial parole hearing.6   Diatchenko v.

District Attorney for the Suffolk Dist., 471 Mass. 12, 32 (2015)

(Diatchenko II).   See G. L. c. 127, § 133A ("If a prisoner is

indigent and is serving a life sentence for an offense that was

committed before the prisoner reached [eighteen] years of age,

the prisoner shall have the right to have appointed counsel at

the parole hearing and shall have the right to funds for experts

pursuant to [G. L. c.] 261").   Notwithstanding these special

considerations, we emphasized that, even in cases of juvenile

homicide offenders, under art. 26, the offender is entitled only

to a meaningful opportunity for release; parole is not

guaranteed.   Diatchenko II, supra at 29–30.

     In sum, we conclude that the 1996 amendment is not

unconstitutional on its face.   See Garner, 529 U.S. at 255;

Morales, 514 U.S. at 514; Clay, 475 Mass. at 139-140.




     6 The board was cognizant of its obligation to consider
Roberio's juvenile status and noted in its decision, "While
Roberio's age and development at the time of the crime are
important factors to consider in assessing his parole
suitability, the most important criteria in the analysis of
parole suitability remains whether Roberio meets the legal
standard for parole."
                                                                     23


       b.   As-applied challenge.   We next consider whether the

amendment is unconstitutional as applied to Roberio.      An

offender 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."

See Garner, 529 U.S. at 255.     The record evidence concerning the

board's practical implementation of the 1996 amendment, though

uncontested, is extremely limited.     Upon close examination, it

does not afford us the necessary context to draw sound

conclusions with regard to the board's overarching practices.

       In pressing his claim, Roberio relies on affidavits from

two attorneys, Patricia Garin and Barbara Kaban, who draw from

their experiences with the board in practice and their analysis

of parole data collected over certain periods.      Attorney Garin

focuses her practice on criminal defense and prisoners' rights,

with a concentration on issues relating to parole.     She also

teaches a course on prisoner rights and supervises the

prisoners' rights clinic at Northeastern University School of

Law.    Attorney Kaban is the principal investigator for a study

of Massachusetts juvenile homicide offenders funded by the Shaw

Foundation.    She also has served as the director of juvenile

appeals for the Committee for Public Counsel Services, where her
                                                                  24


responsibilities included monitoring the outcomes of parole

hearings for juvenile homicide offenders.

    Their affidavits suggest that the board is exercising its

statutory responsibility to "consider carefully and thoroughly

the merits of each such case" in determining whether to release

a prisoner on parole and, where parole is denied, in determining

the length of the set-back period.   G. L. c. 127, § 133A.

Attorney Garin's review of parole statistics for 2012 reflects

that the board issued records of decision for 134 prisoners that

year and that 108 were denied parole.   Of the 108 prisoners

denied parole, seventy-seven received five-year set-back

periods.   Attorney Kaban's affidavit states that since 2013, the

board has held parole hearings for thirty-four juvenile homicide

offenders, thirteen of whom the board granted parole.

    What gives cause for concern is Attorney Garin's assertion,

unrebutted by the board, that, in over thirty years of

experience, she has "no knowledge of the board ever allowing a

motion for reconsideration to reduce a lifer's setback period"

or ever acting on its own "to hold a review hearing sooner than

the setback period identified in the decision denying parole."

If a prisoner's opportunity to seek and be afforded an expedited

review is for all practical purposes illusory, as the record may

suggest, then application of the 1996 amendment might create a

significant risk of prolonging the length of incarceration for
                                                                  25


those prisoners who, after the imposition of a four- or five-

year set-back period, can demonstrate a material change in

circumstances that would warrant an earlier review of the merits

of their parole applications.     Whether the board in practice

exercises its discretion to expedite review hearings for those

prisoners that have demonstrated a material change in

circumstances would significantly affect our as-applied

analysis.   See Garner, 529 U.S. at 254.

    Without a comprehensive demonstration of the board's

practical application of the 1996 amendment since the date of

its enactment, we are unable to reach a conclusion concerning

Roberio's as-applied challenge.    Here, it is apparent that

further discovery is necessary, and we remand the case for that

purpose.    See Garner, 529 U.S. at 256, 257.   On remand, Roberio

is entitled to obtain discovery from the board identifying the

cases, if any, where it has allowed a motion for reconsideration

to reduce the set-back period of a prisoner with a life sentence

or acted on its own to hold an earlier review.     If the board can

identify no such cases, the board should be allowed the chance

to furnish evidence demonstrating that the opportunity for a
                                                                 26


prisoner with a life sentence to obtain a reduction in the set-

back period is not, in fact, illusory.7

     Conclusion.    The 1996 amendment does not create a

significant risk of prolonging incarceration on its face.

Nonetheless, further discovery concerning the board's

implementation of the 1996 amendment is necessary to determine

whether the amendment, as applied to Roberio, is

unconstitutional.   Accordingly, we vacate the Superior Court

judge's order allowing the board's motion for judgment on the

pleadings and remand for further proceedings consistent with

this opinion.

                                    So ordered.




     7 The factual determination is not whether Roberio's
petition for an early hearing, which was summarily denied
without explanation on April 10, 2018, would have been granted
if the opportunity to seek an early hearing based on a change in
circumstances were not illusory. Unless we allow the deposition
of each member of the board, which we do not propose, a prisoner
cannot prove that he would have been granted an earlier hearing
if the board gave him a meaningful opportunity to obtain one.
Rather, the factual determination is whether the board provides
prisoners with a meaningful opportunity to obtain an earlier
hearing. This must be measured by statistics or other evidence
reflecting what the board actually does, and not by what the
board says it might be willing to do.
