Clay v. Massachusetts Parole Board , 475 Mass. 133 ( 2016 )

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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.