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SJC-12746

            TIMOTHY DEAL   vs.   MASSACHUSETTS PAROLE BOARD.



       Middlesex.          November 5, 2019. - April 6, 2020.

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


Parole. Imprisonment, Parole.       Administrative Law, Decision,
     Judicial review.



     Civil action commenced in the Superior Court Department on
March 14, 2018.

     The case was heard by C. William Barrett, J., on motions
for judgment on the pleadings.

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


     Merritt Schnipper (Barbara Kaban also present) for the
plaintiff.
     Matthew P. Landry, Assistant Attorney General, for the
defendant.
     David Rassoul Rangaviz, Committee for Public Counsel
Services, & Benjamin Niehaus, for Massachusetts Association of
Criminal Defense Lawyers & another, amici curiae, submitted a
brief.
                                                                       2


     BUDD, J.   The plaintiff, Timothy Deal, is serving a life

sentence for committing murder in the second degree when he was

seventeen.   He sought review of the parole board's (board's)

denial of his application for parole in the Superior Court,

alleging that the board abused its discretion by failing to

analyze properly the "distinctive attributes of youth" in coming

to its decision.    See Diatchenko v. District Attorney for the

Suffolk Dist., 466 Mass. 655, 675 (2013) (Lenk, J., concurring)

(Diatchenko I), quoting Miller v. Alabama, 567 U.S. 460, 472

(2012).   The judge entered judgment in favor of the board, and

the plaintiff appealed.    We allowed Deal's application for

direct appellate review, and for the reasons detailed infra, we

affirm the judge's order allowing the board's motion for

judgment on the pleadings.1

     Background.    1.   Underlying facts.   We recount the facts as

found by the board, supplemented by uncontested facts presented

in Deal's parole application and hearing.     The victim and Deal

were next-door neighbors and close friends.     In September 2001,

the victim, who was facing drug charges, agreed to become an

informant for police and purchased marijuana from Deal in a

"controlled buy."   Based on information provided by the victim,


     1 We acknowledge the amicus brief submitted in support of
Deal by the Massachusetts Association of Criminal Defense
Lawyers and the youth advocacy division of the Committee for
Public Counsel Services.
                                                                      3


police secured a warrant to search Deal's home, where Deal

shared a bedroom with his older brother, and subsequently

arrested Deal and his brother on drug and firearm charges.

    In January 2002, after Deal's release on bail, he and a

companion went to the victim's home.    A fight ensued between

Deal and the victim, during which Deal stabbed the victim

multiple times.   The victim died from his wounds that evening.

Two days after his arrest on murder charges, Deal telephoned the

victim's mother; when she asked why he killed her son, Deal

responded, "[The victim] was a snitch. . . .     [W]e tried to keep

it from you."

    Deal was seventeen years old at the time of the killing.

He was indicted and tried for murder in the first degree, and a

jury convicted him of the lesser included offense of murder in

the second degree.    Deal was sentenced to life with the

possibility of parole after fifteen years, making him eligible

for parole in early 2017.

    2.     The parole hearing.   Deal applied for parole in

December of 2016.    In advance of his parole hearing, Deal

submitted a memorandum describing his childhood, his

rehabilitation, and his plans for housing and employment if

paroled.    Deal also submitted a report by a forensic

psychologist concluding that Deal would be a low risk for

recidivism if paroled based on risk assessments and an interview
                                                                     4


with Deal.   The application included submissions in support of

parole from more than ten friends and family members, including

the victim's mother.    The Boston police department and the

district attorney for the Suffolk district submitted letters in

opposition, both alleging that Deal killed the victim in

retaliation for acting as an informant.

    At the hearing in December 2016, Deal gave an opening

statement apologizing to the victim's family and stating his

responsibility and regret for the murder.   When asked to give

his account of the killing, Deal stated that he had not planned

or intended to kill the victim in retaliation for cooperating

with police; rather, an argument over "something petty"

escalated into a fight during which Deal grabbed a knife from a

friend and then stabbed the victim multiple times.    Board

members noted their concern that Deal may have killed the victim

in retaliation for acting as a police informant, questioning in

particular why, two days after Deal's arrest for murder, he

called the victim's mother and told her the victim was a

"snitch."    In response, Deal characterized the telephone call as

an attempt to give context for why he, a close friend of the

victim's family, ended up fighting and killing the victim.

    In its written decision, the board denied parole and

scheduled Deal's next review for December 2020, determining that

Deal "[had] not demonstrated a level of rehabilitative progress
                                                                     5


that would make his release compatible with the welfare of

society," and that Deal's "version of the offense . . . [was]

not plausible."     After exhausting his administrative appeals,

Deal challenged the board's decision by bringing a complaint in

the nature of certiorari in the Superior Court.     See Diatchenko

v. District Attorney for the Suffolk Dist., 471 Mass. 12, 30

(2015) (Diatchenko II).     A judge in the Superior Court granted

the board's motion for judgment on the pleadings and denied

Deal's cross motion for the same, concluding that the board's

decision was not an abuse of discretion.     We allowed Deal's

application for direct appellate review.

      Discussion.    General Laws c. 127, § 130, sets forth the

standard the board is to apply when making parole decisions.

The board may grant parole only where it finds,

      "after consideration of a risk and needs assessment, that
      there is a reasonable probability that, if the prisoner is
      released with appropriate conditions and community
      supervision, the prisoner will live and remain at liberty
      without violating the law and that release is not
      incompatible with the welfare of society."

Id.

      The board is afforded significant deference with regard to

its parole decisions.     As the granting of parole is a

discretionary function of the executive branch, generally the

judiciary's role is limited to reviewing the constitutionality

of the board's decision and proceedings.     Commonwealth v. Cole,
                                                                   6


468 Mass. 294, 302-303 (2014).   See, e.g., Crowell v.

Massachusetts Parole Bd., 477 Mass. 106 (2017) (reviewing claims

that parole decision violated constitution and statutes, and

remanding for further development of record); Quegan v.

Massachusetts Parole Bd., 423 Mass. 834 (1996) (reviewing

constitutional claims that board may not consider refusal to

admit guilt in parole determination); Doucette v. Massachusetts

Parole Bd., 86 Mass. App. Ct. 531 (2014) (reviewing alleged due

process violations in parole revocation proceeding, and

conducting certiorari review of merits of board's decision to

revoke parole).

    Parole decisions for juvenile homicide offenders like the

plaintiff are handled differently, however.   Unlike adult

offenders, juveniles have "diminished culpability and greater

prospects for reform, and, therefore, they do not deserve the

most severe punishments," including sentences of life without

parole (quotations omitted).   Diatchenko I, 466 Mass. at 659-

660, citing Miller, 567 U.S. at 471.   "[B]ecause the brain of a

juvenile is not fully developed, either structurally or

functionally, by the age of eighteen, a judge cannot find with

confidence that a particular offender, at that point in time, is

irretrievably depraved."   Diatchenko I, supra at 670.    In

particular, "[r]elying on science, social science, and common

sense," the United States Supreme Court has pointed to three
                                                                     7


"distinctive characteristics of youth" that make juveniles

constitutionally different from adults for purposes of

sentencing.    Id. at 660, 663.

    These characteristics include what are commonly referred to

as the Miller factors:    (1) children's "lack of maturity" and

"underdeveloped sense of responsibility, leading to

recklessness, impulsivity, and heedless risk-taking"; (2) their

"vulnerability to negative influences and outside pressures,

including from their family and peers," and relatedly, their

"limited control over their own environment" and inability to

"extricate themselves from horrific, crime-producing settings";

and (3) their "unique capacity to change as they grow older"

(alteration and quotations omitted).      Diatchenko II, 471 Mass.

at 30, citing Diatchenko I, 466 Mass. at 660.     See Miller, 567

U.S. at 471.

    Thus, we held that juvenile offenders who have been

convicted of murder in the first degree may not be sentenced to

life in prison without the possibility of parole.     Diatchenko I,

466 Mass. at 669-671.    We went on to hold that juvenile

offenders sentenced to a mandatory term of life in prison,

(i.e., those convicted of murder in the first or second degree)

are entitled to a "meaningful opportunity to obtain release [on

parole] based on demonstrated maturity and rehabilitation"

(citation omitted).     Id. at 674.   See Commonwealth v. Okoro, 471
                                                                    8


Mass. 51, 62-63 (2015); G. L. c. 119, § 72B.   We further held

that a "meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation" means that the board

must consider the "distinctive attributes of youth" in

determining whether the juvenile is likely to reoffend.

Diatchenko II, 471 Mass. at 23.

     In addition, although in the normal course parole decisions

are not subject to judicial review, Cole, 468 Mass. at 302-303,

we have determined that to ensure that juvenile homicide

offenders receive a meaningful opportunity for parole, they are

entitled to judicial review of board decisions on their parole

applications under the abuse of discretion standard.2    Diatchenko

II, 471 Mass. at 14, 31.   "In this context, a denial of a parole

application by the board will constitute an abuse of discretion

only if the board essentially failed to take [the Miller]

factors into account, or did so in a cursory way."3   Id. at 31.




     2 Juvenile homicide offenders also must have access to
counsel and access to funds to retain counsel and experts.
Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass.
12, 14 (2015) (Diatchenko II).

     3 This abuse of discretion standard is grounded in our
balancing of the two constitutional considerations discussed
supra: the fundamental imperative of proportionality in
sentencing under art. 26 of the Massachusetts Declaration of
Rights, and the "strict separation of judicial and executive
powers" under art. 30. See Diatchenko II, 471 Mass. at 27-28.
                                                                    9


     The plaintiff contends that the board abused its discretion

by denying him parole without more thoroughly analyzing various

factors related to his youth.   Deal argues that in order to

enable effective judicial review, and guarantee juvenile

homicide offenders a meaningful opportunity to obtain release,

the parole board's decisions must "expressly address in writing

the youth-specific considerations present in each case, place

that evidence in the context of the overall parole standard, and

explain by reference to that evidence why the [b]oard

nevertheless denied parole if it did."   The judge determined

that "[w]hile the better practice may have been for the board to

more specifically outline its findings and discussion in

relation to the individual Miller factors, as opposed to its

general statement that it considered them, such a level of

detail is not required, particularly given the discretion

afforded to the board."   Upon review, we conclude that the board

did not abuse its discretion, as it adequately considered the

requisite youth-related factors.4

     In support of his argument, the plaintiff points to the

fact that the board simply recites the Miller factors as among

the considerations relevant to its decision without connecting

those factors to any of the evidence presented at the hearing.


     4 We review the Superior Court judge's ruling de novo.
Champa v. Weston Pub. Sch., 473 Mass. 86, 90 (2015).
                                                                   10


We agree with the plaintiff and the concurrence that merely

stating that the board considered the Miller factors, without

more, would constitute a cursory analysis that is incompatible

with art. 26 of the Massachusetts Declaration of Rights.     See

Diatchenko II, 471 Mass. at 31.   However, upon review of the

board's written decision, it is clear that the board's single

mention of the Miller factors was not the beginning and end of

the board's consideration of those factors.

    The decision described various negative influences and

stressors in Deal's environment leading up to the killing,

including Deal's adult brother enlisting his aid in dealing

drugs, his family's mounting financial and legal hardships, and

his struggle to adapt to a change in schools.   Although the

board did not explicitly state the connection, these facts

clearly relate to Deal's "vulnerability to negative influences

and outside pressures, including from [his] family and peers"

and his "limited control over [his] own environment" (alteration

and quotation omitted).   See Diatchenko II, 471 Mass. at 30,

citing Miller, 567 U.S. at 471.   Further, although the board

found that Deal's "version of the offense" was not plausible,

its written decision acknowledged the "loss of friendship" and

escalating confrontations between Deal and the victim stemming

from Deal's arrest on information provided by the victim --

facts that illuminate the board's consideration of Deal's "lack
                                                                       11


of maturity . . . leading to recklessness, impulsivity, and

heedless risk-taking."    See Diatchenko II, supra.     Finally, the

board's decision noted Deal's participation in various

rehabilitative programs, employment, and religious activities

while incarcerated, each of which pertains to Deal's "unique

capacity to change as [he] grow[s] older."    See id.

    Although the board's decision did not designate each fact

to a particular attribute of youth, the decision's inclusion of

these facts supports the board's certification that it did

consider the Miller factors in a noncursory way.      Had the board

expressly connected these facts to the Miller factors, there

would have been no doubt that it gave thoughtful consideration

to those factors.   Making these connections explicit, rather

than implicit, will allow the board to make clear to reviewing

courts that it gave due consideration to the Miller factors.

    The plaintiff also argues that the board impermissibly

based its decision on factors that are "irrelevant, or at least

of diminished significance, to juvenile cases."    In particular,

Deal contends that the board focused more on the conclusion that

Deal's version of events was "not plausible" than on the

attributes of youth.     The plaintiff's argument fundamentally

misunderstands our holding in Diatchenko II.    Although we held

that the board must consider the "distinctive attributes of

youth" in order for a juvenile homicide offender to have a
                                                                   12


"meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation," we did not say that the board's

decision had to rise or fall on those factors.    See Diatchenko

II, 471 Mass. at 23, 30.   It is apparent from the decision that

the board was primarily concerned about the plaintiff's failure

to provide a "plausible" account of why he stabbed the victim

fourteen years after he committed the crime.     This concern is

indicative of the plaintiff's incomplete "acknowledgement of his

wrongdoing or . . . his refusal to acknowledge his guilt" --

considerations which may be relevant to rehabilitation, see

Quegan, 423 Mass. at 836 -- rather than a rigid application of

the traditional penological justifications (incapacitation,

retribution, or deterrence), which are "suspect" as applied to

juvenile sentences, see Diatchenko I, 466 Mass. at 670-671.5

Further, the board's concern, noted in its decision, that Deal

had not gone on record to take responsibility for the killing

until ten years after the crime reinforces the board's

legitimate reasoning that a longer period of rehabilitation




     5 Importantly, the board's written decision did not adopt
the district attorney's argument that "[a] positive vote for
parole . . . may send the wrong message to other criminals."
Although the board noted its concern that Deal may have killed
the victim in retaliation for being a "snitch," it did so in the
context of Deal's rehabilitation, as evidenced by his possible
lack of acknowledgment of the full severity of his crime.
                                                                  13


would be necessary before release is compatible with the welfare

of society.

    The plaintiff argues as well that the board abused its

discretion by denying parole without discussing the details of

the risk assessment and report conducted by a forensic

psychologist who concluded that Deal would be a low risk for

recidivism if paroled.   In its decision, the board noted that it

"considered testimony" from the psychologist and that it

"considered a risk and needs assessment," without discussing

what the expert and risk assessment found or explaining why

those findings were not enough to warrant parole.   By denying

parole on the grounds that Deal "[had] not demonstrated a level

of rehabilitative progress that would make his release

compatible with the welfare of society," the necessary

implication is that, in the board's view, Deal's incomplete

rehabilitation contradicted the risk assessment and the forensic

psychologist's conclusion that Deal would be a low risk to

recidivate.   "[T]he opinion of a witness testifying on behalf of

a sex offender need not be accepted by the hearing examiner even

where the board does not present any contrary expert testimony."

See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender

Registry Bd., 470 Mass. 102, 112 (2014), quoting Doe, Sex

Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,

459 Mass. 603, 637 (2011).   Nevertheless, the better practice,
                                                                   14


as described in the concurrence, would be to articulate the

reasons and evidence overcoming the contrary expert opinion.

    As discussed supra, ultimately the board must determine

whether there is "a reasonable probability" that the applicant

would not recidivate if given the proper support, and that

"release is not incompatible with the welfare of society."     See

G. L. c. 127, § 130.   Although our review of parole decisions

for juvenile homicide offenders is limited, we note that here,

even taking into consideration youth-related factors, the board

had reason to conclude that the plaintiff had failed to

demonstrate a "level of rehabilitative progress that would make

his release compatible with the welfare of society."   The Miller

factors, although an important consideration, may or may not

play a determinative role in the board's decision depending on

the circumstances of a particular applicant.   In denying Deal's

parole application, the board determined that Deal's incomplete

rehabilitation, as evidenced by his failure to give a plausible

account of his motivations for killing the victim, outweighed

the favorable Miller evidence.   In future cases where, as here,

evidence relevant to the Miller factors militates in favor of

release but the board nevertheless denies parole, the better

practice would be to specify the reasons and supporting facts

that overcome the Miller considerations.   Additionally, in light

of the concerns raised by the concurrence, where the board bases
                                                                  15


its denial of parole on a determination that the applicant's

version of events is not plausible, the board should indicate

both why that version is not plausible and how that

implausibility bears on the applicant's likelihood to recidivate

or the compatibility of release with the welfare of society.

    Conclusion.   For the foregoing reasons, we conclude that

the board's decision denying Deal's parole application was not

an abuse of discretion.   The board based its decision on the

statutory standard of rehabilitation and compatibility with the

welfare of society, and its consideration of the distinctive

attributes of youth was not merely cursory.   Accordingly, the

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

judgment on the pleadings and denying Deal's motion for the same

is affirmed.

                                    So ordered.
    GANTS, C.J. (concurring, with whom Lenk, J., joins).     In

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

655, 671 (2013) (Diatchenko I), we held that life imprisonment

for a juvenile, even when convicted of murder, is cruel or

unusual punishment in violation of art. 26 of the Massachusetts

Declaration of Rights unless the juvenile has the possibility of

being released on parole.   We also held that, when the juvenile

becomes eligible for parole, the parole board (board) must

provide the juvenile with a "meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation."       Id.

at 674, quoting Graham v. Florida, 560 U.S. 48, 75 (2010).     And

in Diatchenko v. District Attorney for the Suffolk Dist., 471

Mass. 12, 24-29 (2015) (Diatchenko II), we declared that a

"meaningful opportunity to obtain release" requires not only a

right to the assistance of counsel and a right to have access to

the assistance of expert witnesses, but also a right of judicial

review "to ensure that the board exercises its discretionary

authority to make a parole decision for a juvenile homicide

offender in a constitutional manner."

    In Diatchenko II, supra at 30, we also articulated what it

means for the board to exercise its discretionary authority in a

constitutional manner.   Looking to the reasoning in Miller v.

Alabama, 567 U.S. 460, 471 (2012), we stated that the board must

consider that juveniles have "diminished culpability" for the
                                                                    2


murder they committed because of the "distinctive attributes" of

youth:   a "lack of maturity and an underdeveloped sense of

responsibility, leading to recklessness, impulsivity, and

heedless risk-taking; vulnerability to negative influences and

outside pressures, including from their family and

peers; . . . limited contro[l] over their own

environment[;] . . . [and lack of] the ability to extricate

themselves from horrific, crime-producing settings" (quotations

and citation omitted).     Diatchenko II, supra.   The board must

also consider that juveniles have the "unique capacity to change

as they grow older" and therefore "greater prospects for reform"

(citations omitted).     Id.   Unless the board considers these

distinctive attributes of youth, as well as the consequences of

aging into adulthood, the board denies the juvenile "a real

chance to demonstrate maturity and rehabilitation."      Id.

      The purpose of judicial review is to ensure that "the board

has carried out its responsibility to take into account the

attributes or factors just described in making its decision."

Id.   Recognizing that "the decision whether to grant parole to a

particular juvenile homicide offender is a discretionary

determination by the board," we apply the abuse of discretion

standard.   Id. at 31.   "[A] denial of a parole application by

the board will constitute an abuse of discretion only if the
                                                                        3


board essentially failed to take these factors into account, or

did so in a cursory way."   Id.

    We have yet to articulate how we can ensure that the board

acted in a constitutional manner by providing a juvenile

homicide offender a "meaningful opportunity to obtain release"

after seriously considering the "distinctive attributes" of

youth.   I conclude that the only way we can ensure that the

board did not abuse its discretion is to require the board to

show through its findings that it gave meaningful individualized

consideration to these attributes of youth in reaching its

decision.   I also conclude that the board's findings here fail

to meet that requirement for three reasons.

    First, the board's decision consists of three sections:         a

statement of the facts of the underlying murder case, a

statement describing the evidence presented at the parole

hearing, and the "decision."      As shown by the appendix to the

amicus brief submitted by the Massachusetts Association of

Criminal Defense Lawyers and the youth advocacy division of the

Committee for Public Counsel Services, apart from two sentences

specific to Deal, the "decision" is boilerplate language used in

virtually all forty-five of the juvenile homicide offender

parole decisions it reviewed, with only the name of the juvenile
                                                                   4


changed.1   Essentially, the board simply identifies the so-called

Miller factors and declares in all these cases that it


     1 The "decision" section is reprinted below, with the
boilerplate language highlighted in bold:

     "The Board is of the opinion that Mr. Deal has not
     demonstrated a level of rehabilitative progress that would
     make his release compatible with the welfare of society.
     The Board recommends that Mr. Deal partake in more
     programming, such as Criminal Thinking and Restorative
     Justice. The Board believes that the version of the
     offense given by Mr. Deal is not plausible. A longer
     period of positive institutional adjustment and programming
     would be beneficial to Mr. Deal's rehabilitation. The
     Board considered all factors relevant to the Diatchenko
     decision in making this determination.

     "The applicable standard used by the Board to assess a
     candidate for parole is: '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.' 120 C.M.R.
     300.04. In the context of an offender convicted of first
     or second degree murder, who was a juvenile at the time the
     offense was committed, the Board takes into consideration
     the attributes of youth that distinguish juvenile homicide
     offenders from similarly situated adult offenders.
     Consideration of these factors ensures that the parole
     candidate, who was a juvenile at the time they committed
     murder, has 'a real chance to demonstrate maturity and
     rehabilitation.' Diatchenko v. District Attorney for the
     Suffolk District, 471 Mass. 12, 30 (2015); See also
     Commonwealth v. Okoro, 471 Mass. 51 (2015).

     "The factors considered by the Board include the offender's
     'lack of maturity and an underdeveloped sense of
     responsibility, leading to recklessness, impulsivity, and
     heedless risk taking; vulnerability to negative influences
     and outside pressures, including from their family and
     peers; limited control over their own environment; lack of
     the ability to extricate themselves from horrific, crime-
     producing settings; and unique capacity to change as they
                                                                    5


considered them, without demonstrating in any way how it

considered them.   I do not suggest that the board must provide a

detailed analysis of each Miller factor, but it must do more

than simply declare in a perfunctory manner that it considered

them.   There must be some meaningful individualized analysis,

supported by evidence in the parole record, as to whether the

Miller factors contributed to cause the parole applicant's

participation in the murder, and as to whether his or her

conduct while incarcerated has demonstrated that he or she has

outgrown these attributes of youth through maturity and

rehabilitation.

    Second, under G. L. c. 127, § 130, a parole permit "shall

be granted only if the board is of the opinion, after

consideration of a risk and needs assessment, that there is a

reasonable probability that, if the prisoner is released with

appropriate conditions and community supervision, the prisoner




    grow older.' Id. The Board has also considered a risk and
    needs assessment, and whether risk reduction programs could
    effectively minimize Mr. Deal's risk of recidivism. After
    applying this standard to the circumstances of Mr. Deal's
    case, the Board is of the opinion that Mr. Deal is not yet
    rehabilitated, and his release is not compatible with the
    welfare of society. Mr. Deal, therefore, does not merit
    parole at this time.

    "Mr. Deal's next appearance before the Board will take
    place in four years from the date of this hearing. During
    the interim, the Board encourages Mr. Deal to continue
    working towards his full rehabilitation."
                                                                      6


will live and remain at liberty without violating the law and

that release is not incompatible with the welfare of society."

Section 130, therefore, requires the board to make two

determinations:   whether "the prisoner will live and remain at

liberty without violating the law," and whether "release is not

incompatible with the welfare of society."   Id.   The board

effectively conflates the two by finding that Deal's

"rehabilitative progress," which appears to be its proxy term

for the risk of recidivism, falls short of what would be needed

to make his release "compatible with the welfare of society."     I

agree with the board that the prisoner's risk of recidivism is

the determinative factor.   See, e.g., Crowell v. Massachusetts

Parole Bd., 477 Mass. 106, 113 (2017) ("the board must be able

to consider whether the symptoms of a prisoner's disability mean

that he or she has a heightened propensity to commit crime while

released on parole"); Diatchenko II, 471 Mass. at 23 ("The

question the board must answer for each inmate seeking parole

[is], namely, whether he or she is likely to reoffend . . .");

Jimenez v. Conrad, 678 F.3d 44, 46 (1st Cir. 2012) (no matter

how good applicant's prison conduct may have been, parole shall

be granted "only if" board finds that there is "reasonable

probability" that prisoner will not violate law if granted

release).
                                                                    7


    But, as the court notes, ante at      , the board's

determination regarding Deal's risk of recidivism appears to

rest primarily on its finding that Deal's description of his

offense "is not plausible."   The board, however, fails to

identify what it finds implausible about Deal's description.

Deal accepted responsibility for the murder, expressed remorse

for his role in it, and admitted that the victim's cooperation

with the police, which resulted in Deal's arrest for drug and

firearms possession, created substantial friction in what had

once been a close relationship with a neighbor he had thought of

as an older brother.   He also said that this was not the first

time that he had visited the victim's house after learning that

the victim had provided information to the police about him.

    If the board believed that, despite his denials, Deal

entered the victim's home on the day of the killing planning to

kill him because of the victim's cooperation with the police, or

that he stabbed the victim with the intent to kill, it should

say so and identify the evidence in the parole record that

supports such a finding.   It should be noted that Deal was

charged with murder in the first degree on the theory of

premeditation but found guilty only of murder in the second

degree.   As a result, we can infer that the jury, after hearing

the evidence at trial, had a reasonable doubt whether Deal acted

with premeditation or with an intent to kill, or both.     Where,
                                                                    8


as here, the jury did not convict the parole applicant of the

crime charged, the board should act with caution and care before

it concludes that the applicant was nonetheless guilty of the

crime charged.

    Moreover, even if the board had an adequate factual basis

to conclude that the killing occurred differently from what was

described by Deal, that alone cannot suffice to establish that

Deal poses a significant risk of recidivism.   Here, Deal

accepted his guilt; the board only challenges his version of

events.   However, even if he had denied his guilt, there is

little, if any, empirical support for a link between acceptance

of guilt and a decreased likelihood of recidivism.     See, e.g.,

Hanson & Morton-Bourgon, The Characteristics of Persistent

Sexual Offenders:   A Meta-Analysis of Recidivism Studies, 73 J.

Consulting & Clinical Psych. 1154, 1159 (2005) (meta-analysis of

sex offender recidivism studies concluding that denial of guilt

"had little or no relationship with recidivism"); Harkins,

Howard, Barnett, Wakeling, & Miles, Relationships Between

Denial, Risk, and Recidivism in Sexual Offenders, 44 Archives

Sexual Behav. 157, 157 (2015) ("the presumption that denial

represents increased risk, which is common in much of the

decision making surrounding sex offenders, should be

reconsidered").
                                                                      9


    Even before these studies, we recognized the limited role

that the failure to acknowledge guilt should play in a parole

decision:     "The absence of such an acknowledgment [of guilt]

provides no weight on the scale in favor of parole, and thus, in

a sense, has a negative effect on a prisoner's parole

application."    Quegan v. Massachusetts Parole Bd., 423 Mass.

834, 837 (1996).     And although we did not reach the question, we

recognized that due process might forbid "denial of parole

solely because a prisoner, who was otherwise fully qualified for

release on parole, did not acknowledge his guilt."     Id.   Indeed,

if a prisoner's failure to acknowledge guilt alone were to

suffice to support a denial of parole, a prisoner wrongfully

convicted of murder as a juvenile might never be paroled unless

he or she falsely accepted responsibility for a crime he or she

never committed.    See Medwed, The Innocent Prisoner's Dilemma:

Consequences of Failing to Admit Guilt at Parole Hearings, 93

Iowa L. Rev. 491, 529 (2008) ("Proclaiming innocence at a parole

hearing typically harms one's chances for release . . . while

'admitting' guilt can serve as a mitigating factor").

    Third, § 130 requires the board to consider "a risk and

needs assessment" in evaluating the prisoner's risk of

recidivism.    G. L. c. 127, § 130.   The parole record reflects

two risk assessments.     The first is the Department of

Correction's own objective risk assessment, which assesses
                                                                  10


Deal's risk of recidivism as low, and also assesses his criminal

thinking, his anger, and his substance abuse as low.   The second

was conducted by Deal's expert witness, Dr. Ira Packer, who

administered several tests, most importantly, the HCR-20 3d ed.

(Historical, Clinical, Risk Management) Scale, which Packer

described as "the most commonly used instrument for assessing

violence risk" and which placed Deal at "low risk" for violent

recidivism.   Having conducted these tests, as well as a clinical

interview, Packer reached the opinion that Deal "would be at low

risk for recidivism if paroled."

    At the parole hearing, parole member Dr. Charlene Bonner

declared that she was "in forensics," and "in the world I'm

in . . . [Packer is] regarded as . . . one of the best."     Bonner

also noted that Packer provided risk assessments that were

"objective" and were "not an opinion," which were "very

favorable" to Deal.   She also noted that Packer "did something

that a lot of evaluators won't do," and provided his opinion

that Deal "would be at low risk to reoffend."

    The board in its decision declared that it had "considered

a risk and needs assessment," and considered Packer's testimony

and findings.   Yet, nowhere in its decision did it address why

it rejected the risk assessment by the Department of Correction

or the HCR-20 test, or Packer's expert opinion regarding the

risk of recidivism.   The board is not required to accept the low
                                                                  11


recidivism risk determined by a risk assessment or opined by a

prisoner's expert.    See Doe, Sex Offender Registry Bd. No. 10800

v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011) ("The

opinion of a witness . . . need not be accepted by the hearing

examiner . . .").    But where it effectively rejects that

estimation of risk by denying parole, it should explain why and

identify the evidence it relied on to find a higher estimation

of risk.   See Doe, Sex Offender Registry Bd. No. 23656 v. Sex

Offender Registry Bd., 483 Mass. 131, 136 (2019), quoting Police

Dep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012) ("an

agency must 'explain[] on the record its reasons for rejecting

portions of [an expert's] testimony'").    See also Langlitz v.

Board of Registration of Chiropractors, 396 Mass. 374, 381

(1985), citing Arthurs v. Board of Registration in Med., 383

Mass. 299, 310 (1981) ("an agency or board may not sit as a

silent witness where expert testimony is required to establish

an evidentiary basis for its conclusions"); New Boston Garden

Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981) ("The

board may not reject [the] testimony without a basis for such

rejection in the record"); Robinson v. Contributory Retirement

Appeal Bd., 20 Mass. App. Ct. 634, 639 (1985) ("where . . .

there is uncontradicted testimony concerning a subject which is

beyond the common knowledge and experience of the finder of

fact, that testimony may not be rejected without a basis for
                                                                     12


such rejection in the record").   Otherwise, without such

meaningful individualized analysis, a court cannot ensure that

the board has truly considered risk assessments in reaching a

parole decision.

    I concur in the court's judgment only because, at the time

of this parole decision, we had yet to articulate what the board

must do to demonstrate through its findings that it gave

meaningful individualized consideration to the Miller factors

and the likelihood that age and maturity will diminish these

attributes of youth and reduce the risk of recidivism.      In the

absence of this guidance, where the board declared that it

considered all that it should consider, I cannot say that it

abused its discretion in denying parole.   And I recognize that

Deal is entitled to a new parole hearing in December 2020 where,

if his parole were denied, we would expect meaningful

individualized findings that are far less conclusory and

perfunctory than here.
