Philip Chism’s alleged murder of Colleen Ritzer may have added fuel to the fire, but legislative sausage-making is about to bring us a new juvenile sentencing law.

                                Photo via barfblog.com

Massachusetts Juvenile Judge Jay D. Blitzman got it right when he wrote in Gault’s Promise “As the public and media react to the crime du jour, there is an unfortunate tendency to legislate by anecdote.”  Bad cases can lead to bad laws.

Less than a year after the tragic death of Colleen Ritzer by the alleged fourteen-year-old killer, Philip Chism, this week or next, the Governor is expected to sign into law: “An Act relative to juvenile life sentences for first-degree murder.” Some are wondering if this will prove another rash reaction to the grief and anger over horrendous crimes (see Cinelli) —not the science and reason needed to make good legislation.

The Bill, a concoction from the House and Senate, is an attempt by the Legislature to respond to two recent high court rulings. In 2012, the U.S. Supreme Court issued its landmark decision, Miller v. Alabama. Miller said science had proven juveniles were different from adults; they needed a judge’s thorough consideration, case by case, and could not automatically be sentenced to life without a meaningful chance at parole.

Then in 2013, Massachusetts’ Supreme Judicial Court (SJC) went further in its interpretation of Miller with the Diatchenko v. District Attorney decision. The SJC struck down all sentences of life without parole eligibility for juveniles. This made sense; no other country allows juveniles to live behind bars until they die. A Massachusetts juvenile first-degree lifer was to serve at least 15 years before parole eligibility— a number deemed to allow a meaningful chance at rehabilitation.

But the new law, if signed as is, will be harsher than Diatchenko (and harsher in some ways than the one Governor Patrick first filed in 2013 where he set a minimum of fifteen years for juvenile first-degree lifers). It provides for initial parole eligibility at 20-30 years in felony murder cases — i.e. you were there but didn’t pull the trigger. It requires 25-30 years in cases of premeditation — i.e. first-degree murder; and it sets a mandatory 30 years for extreme cruelty and atrocity (EAC).

Rep. John Keenan (Salem) who filed a bill in 2013, prior to the Chism case, but hails from the district next to Danvers where Colleen Ritzer was murdered, wanted 35 years before parole eligibility. Keenan said his bill was in response to Miller, and feels the new law will be a “solid compromise — it pays respect to victims and to the nature of juvenile minds.”

However, according to a brief written by attorneys Patty Garin and Dave Nathanson in 2011, EAC “encompasses almost all violent murders.” 30 years, they say, is in essence, a de facto life without parole sentence. And they and other activists say the bill of Patrick’s desk ignores the mind of a child as discussed in the recent court cases and a meaningful chance for rehabilitation.

If fourteen-year old Chism is convicted of 30 years, he would be sentenced to almost twice the number of years he has lived before getting a chance to see the Parole Board — with no guarantee of release.

Naoka Carey, Executive Director of the advocacy group, Citizens for Juvenile Justice, said in an interview that the Legislature, “in a sense, felt that they had to do something after Diatchenko.” Families of victims experienced Diatchenko decision as “somehow too light for their grief—they felt the ground shifted underneath them,” she said. “This happens when constitutional decisions get interpreted. Most of the time, we recognize that kids are different but when they do terrible things, we forget.”

Sen. James Eldridge (Acton), one of four in the Senate and eighteen in the House who voted against the bill, agrees. He said in an interview, “A horrific murder pressures, pushes people to be tough on crime.” He pointed out that the amendment passed by the Senate with a right to counsel was ultimately not in the final version of the bill.” While gladdened with some options for juvenile lifers — eligibility for education and treatment, and no maximum ten-year wait if a juvenile lifer is refused parole— said sentences are too harsh and that “there was little discussion about the distinct nature of juvenile development.”

This past May, many families of murder victims who wanted no juvenile first-degree lifer to ever get parole, descended on the State House with 15,000 signatures decrying the ruling in Diatchenko. Chism’s case only added fuel to their fire.

There is already talk of litigation to determine what Diatchenko requires and to sort out the mishmash; if the Governor does sign it, this new law is likely to end up in the courts.

The Conference Committee (3 members of the House and 3 members of the Senate) will be meeting as soon as Tuesday to resolve differences between the House and Senate versions of the juvenile sentencing bill: “An Act relative to juvenile life sentences for first-degree murder.” WE NEED YOUR CALLS MONDAY to flood our Legislature with what we want for youth!

While we wanted 15 years before parole eligibility, we realize we have to work with what will be debated in the Conference Committee. We need you too to step up to the plate once again! While we recognize that both Senate and House versions of the bill have some problems for fair sentencing for youth, the Senate version of the bill that was passed with amendments is much better with one major exception. You can see here the Senate version and the  amendments that passed: https://malegislature.gov/Bills/188/Senate/S2246.

We need TO STOP THE HOUSE VERSION which has more years prior to parole eligibility, a ten year setback for all lifers (not just juveniles), and no gains for juveniles.

We need to SAY NO to SENATE AMENDMENT 14: That amendment calls for all juveniles convicted of murder with extreme atrocity or cruelty (EAC) to get an automatic 30 years before parole eligibility!  However, since virtually all first-degree murder cases can be charged as committed with EAC, this amendment will serve to enhance all sentences for convictions of juvenile first-degree murder to sentences of thirty years to life.  Please see the explanation below on what “extreme atrocity and cruelty” really means in the courtroom and how cases involving only a single gunshot, a single stab wound, or a single blow have resulted in convictions for murder committed with extreme atrocity or cruelty. This explanation was written by attorneys Dave Nathanson and Patty Garin.
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WHAT WE WANT:
1. Parole eligibility between 20 to 30 years for all juveniles convicted of first degree murder.  This will GIVE JUDGES THE DISCRETION TO DECIDE THE CASE based on the facts before them.

2. NO MORE THAN A FIVE YEAR SETBACK between reviews by the parole board.
3. Juveniles need the RIGHT TO COUNSEL at Parole Hearings.

4. There must be a provision for meaningful PROGRAMMING & TREATMENT provided for all juvenile lifers, and classification to minimum security as appropriate.

WHAT WE DO NOT WANT:
1. NO 10 YEAR SETBACKS

2. NO REQUIRED 30 YEARS FOR ANYONE CONVICTED OF EXTREME ATROCITY OR CRUELTY. Let judges decide the number of years between 20-30, based on the facts of the case.
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CALLS

We ask that you call your senator and rep and ask them to contact the Conference Committee members with the above 4 requests. Find your legislators here: https://bitly.com/yourMAlegislators.

Then, if you can, please make more calls! Call as many members of the Conference Committee that you can and send the same message.

1. Sen. William Brownsberger, 617-722-1280, William.Brownsberger@masenate.gov
2. Sen. Bruce Tarr, 617-722-1600, Bruce.Tarr@masenate.gov
3. Sen. Jennifer Flanagan,  617-722-1230, Jennifer.Flanagan@masenate.gov
4. Rep Christopher Markey, 617-722-2396, Christopher.Markey@mahouse.gov
5. Rep. Bradford Hill, 617-722-2100, Brad.Hill@mahouse.gov
6. Rep. Garrett Bradley, 617-722-2520, Garrett.Bradley@mahouse.gov

Please keep the pressure on. Your calls ARE MAKING A DIFFERENCE
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INFO ON MURDER COMMITTED WITH EXTREME CRUELTY OR ATROCITY
 Drafted by attorneys Dave Nathanson and Patty Garin, 7/11/2012

The Senate version of “An act relative to juvenile life sentences for first degree murder” calls for juveniles convicted of first degree felony murder and premeditated murder to receive sentences of 20 to 30 years to life, with the sentencing judge determining the period of parole ineligibility. The bill, however, ALSO mandates a sentence of 30 years to life for murder committed with extreme atrocity or cruelty (“EAC”) by a juvenile. This enhanced punishment for juveniles convicted of murder EAC is contrary to both the interests of justice and to everything we know about the juvenile brain.

I.  SUBJECTING JUVENILES TO AN ENHANCED PENALTY FOR MURDER WITH
     EAC IS CONTRARY TO THE INTERESTS OF JUSTICE AND TO EVERYTHING
     WE KNOW ABOUT THE JUVENILE BRAIN

1. A.  Murder EAC encompasses almost all violent murders; enhancing its penalty would serve to enhance most all juvenile first-degree murder sentences to 30 years to life.

1. B.   Murder committed with EAC is not somehow worse than murder committed with premeditation.  It is an alternative theory for first degree murder – not a more egregious theory, as the below cases demonstrate. 

1. C.   In light of the fact that an intent to act with EAC is not an element of the crime, it is incorrect for legislators to presume that murder EAC is more egregious. 

1. D.  In murder with EAC, the results of the juvenile’s actions are what is being judged, not the juvenile’s intent. Teenagers, however, do not think about results; they do not contemplate what is happening to the victim.  They act and react impetuously.

II. THE LAW ON EXTREME ATROCITY OR CRUELTY
In a case that is charged as murder committed with extreme atrocity or cruelty, “the inquiry focuses on the [juvenile’s] action in terms of the manner and means of inflicting death, and on the resulting effect on the victim.” Model Homicide Jury Instructions (SJC, March 2013) p. 47.  The inquiry is not on whether the juvenile intended that the killing be atrocious or cruel. Significantly, there is no requirement of a premeditated intent to kill (malice aforethought).  Rather, the jury uses objective factors to judge the results of the juvenile’s actions, not his intent.

In deciding whether the Commonwealth has proved beyond a reasonable doubt that a juvenile caused the death of the deceased with extreme atrocity or cruelty, the jury needs to find that only one of the following factors is present:

1. “Whether the [juvenile] was indifferent to or took pleasure in the suffering of the deceased;
2. The consciousness and degree of suffering of the deceased;
3. The extent of the injuries to the deceased;
4. The manner, degree and severity of the force used;
5. The nature of the weapon, instrument, or method used; and
6. The disproportion between the means needed to cause death and those employed.
   Id. at 47-48; Com. v. Cunneen, 389 Mass. 216 (1983) (the “Cunneen factors”).

Factors 2-6 are purely objective factors that permit a jury to convict a juvenile of first-degree murder with EAC “without considering the [juvenile’s] mental state beyond the finding of malice that underlies all murder convictions.” Com. v. Riley, 467 Mass. 799, 828 (2014) (Duffly, concurring); Com. v. Cunneen, 389 Mass. 216, 227 (1983). To find that a juvenile acted with malice in a case of EAC, the jury does not need to find that the juvenile intended to kill or intended to cause grievous bodily harm, but only that “a reasonable person in the [juvenile’s] circumstances would have known that his conduct created a plain and strong likelihood death.” Riley, at 828-829.

Because of the objective factors, a jury could completely accept that a juvenile has a mental impairment preventing a finding of premeditation and still find extreme atrocity based on nothing to do with the juvenile’s intent — such as basing the finding on the instrument employed in the killing.  See Com. v. Berry, 466 Mass. 763 (2014); Com. v. Riley, 467 Mass. 799 (2014).

Because the Cunneen factors sweep so broadly, almost all violent murders are captured under the EAC theory of murder.  Cases involving only a single gunshot, a single stab wound, a single blow, an unconscious victim, and a defendant who did not physically participate in the victim’s death have resulted in convictions for murder committed with extreme atrocity or cruelty.  An enhanced penalty for murder EAC would likely serve to enhance the sentences for almost all convictions of juvenile first degree murder to sentences of thirty years to life. 

Single Shot
Com. v. Candelario, 446 Mass. 847, 849 (2006) The two shots were fired quickly, “[o]ne after the other.” Both shots were to the victim’s head. (SJC refuses to decide sufficiency b/c convicted on other theories).

Com. v. Blackwell, 422 Mass. 294, 300 (1996) (defendant convicted of EAC based on single shot, SJC refuses to decide b/c convicted on felony murder); Com. v. Cruz, 424 Mass. 207, 209 (1997) (same); Com. v. Barbosa, 463 Mass. 116, 135 (2012) (same)

Com. v. Donahue, 430 Mass. 710, 715 (2000) (victim struck twice while asleep)

Commonwealth v. Doherty, 353 Mass. 197, 213, 229 N.E.2d 267 (1967), cert. denied, 390 U.S. 982, 88 S.Ct. 1106, 19 L.Ed.2d 1280 (1968) (sleeping victim roused and then shot at close range; jury could conclude that victim “had some awareness of what was being done to him”). In addition, the court explicitly declined to announce a rule of law that a single gunshot could never be sufficient for submission on the theory of extreme atrocity or cruelty. See Commonwealth v. Blackwell, 422 Mass. 294, 299–300, 661 N.E.2d 1330 (1996) (“we cannot now imagine all the circumstances in which the Cunneen factors might be satisfied by such a single gunshot”)

Single stab
See Commonwealth v. Noeun Sok, 439 Mass. 428, 431, 788 N.E.2d 941 (2003) (fifteen year old defendant; juvenile and victim in rival fighting gangs; sufficient evidence of extreme atrocity or cruelty where single stab would to back where victim was conscious after stabbing and experienced pain).

Single blow
Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978) (“A murder may be committed with extreme atrocity or cruelty even though death results from a single blow”).

Com. v. Auclair, 444 Mass. 348, 363 (2005) (single blow to infant, then leaving her crying sufficient)

Unconscious victim
The possibility that [the victim] may have been sleeping, and that he therefore might not have endured any conscious suffering, does not prevent the jury from finding extreme atrocity or cruelty based on other factors. See Commonwealth v. Podlaski, 377 Mass. 339, 348-349, 385 N.E.2d 1379 (1979) (“suffering has never been an indispensable element of the crime of murder with extreme atrocity or cruelty”).

Com. v. Patterson, 432 Mass. 767, 774 (2000)

Commonwealth v. Garabedian, 399 Mass. 304, 311, 503 N.E.2d 1290 (1987) (suffering of victim not required for extreme atrocity or cruelty)

Physical participation
Com. v. Chhim, 447 Mass. 370, 378 (2006) (defendant punched victim with two others, then left and sat in victim’s car while others continued beating, reduced to second degree in “interest of justice” not due to insufficiency)

Com. v. Olsen, 452 Mass. 284, 294 (2008) (defendant convicted of EAC as joint venture, wife abused by victim asked stepson to kill husband, wife in house when stepson beat husband to death in barn)

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