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.
_______________________________________________________________
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.
________________________________________________________________
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
_______________________________________________________

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)

________________________________________________________

This was sent to me by The Committee for Public Counsel Services and has some new good language for your calls (See below) and tweets to #stopH4184. The Senate did not take this up this week, but they only have a short time before the session ends so we need to keep up the calls!

ELIGIBILITY FOR PAROLE IS NOT RELEASE ON PAROLE

The Massachusetts Supreme Judicial Court’s decision in Diatchenko recognized the unique capacity of youth to change and be rehabilitated.  Consistent with the Court’s decision, statutory changes should include:

• A sentencing scheme that does not does not create de facto life.
  ♦ A range of not less than 18 years nor more than 22 years would adhere to the spirit of Diatchenko.

• Indices the court must consider, and make findings on the record, when determining the minimum term of a life sentence should include:
  ♦ The age at the time of the offense.
  ♦ Hallmark features of adolescence, including immaturity, impetuosity, and the ability to appreciate the risks and consequences.
  ♦ Family and home environment prior to and at the time of the offense.
  ♦ Extent of said person’s participation in the offense.
  ♦ The impact of family and peer pressure.
  ♦ History of prior felony convictions or adjudications.
  ♦ The potential for rehabilitation.

• Holding a youth found guilty of murder at the Youthful Offender Division of DYS until his 21^st birthday.

• Assuring any sentence imposed for offenses arising out of the same transaction and occurrence run concurrently.

• Placing such cases under juvenile court jurisdiction.

• Providing a right to counsel and experts for the complex parole hearings.
  ♦ Being incarcerated at a very young age and spending most of their lives in prison greatly diminishes the ability of these youth to mount (prepare and communicate) an effective presentation to the parole board that would demonstrate the appropriateness of their release.  Experts, such as psychologists and psychiatrists, are critical because they are best able to assist the parole board in assessing these individuals’ rehabilitation and of risk recidivism.

• Guaranteeing that parole hearings occur with regularity in order to motivate prisoners to grow and change.
  ♦ Evidence-based practices tell us that parole hearings should occur with regularity and should motivate prisoners to grow and change. Parole hearings should be used to acknowledge a prisoner’s challenges, provide guidance and identify attainable goals, and measure the prisoner’s progress.  Ten years in prison can feel like a lifetime and successfully rehabilitating oneself in a prison environment takes strength and commitment. By allowing a prisoner to receive the Parole Board’s guidance only once every decade lessens their likelihood of success. Right now, over sixty percent of the parole denials for lifers are the maximum setback – 5 years. A 10 year setback is simply unnecessary and would compromise the system of parole.

ELIGIBILITY FOR PAROLE IS NOT RELEASE ON PAROLE

 The Massachusetts Supreme Judicial Court ruled that sentencing children to life in prison without the possibility of eventual release is unconstitutional and violates the Massachusetts Declaration of Rights.

• Massachusetts’s extreme sentencing statute was declared unconstitutional because it did not recognize that youth are “constitutionally different from adults for purposes of sentencing” and did not provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.

• Our Court found, consistent with extensive scientific evidence and prior rulings of the U.S. Supreme Court, that it is impossible to determine, at the time of sentencing, which youth are capable of rehabilitation and which are not.

• The Court’s ruling now allows judges to impose life sentences with parole eligibility between 15 and 25 years in cases involving the conviction of children for 1st degree murder.

• Because all children – even those who commit the most serious crimes – are still in the process of developing, all have the potential for transformation and redemption.

• Requiring youth to wait as long as 30 years before they can even approach the Parole Board, and providing for reviews up to 10 years after that, means that a person convicted when a child would reach their late 50s having had only one opportunity to go before the Parole Board.

• A sentencing range of 20 to 30 years, coupled with 10 year setbacks for parole eligibility, is de facto life without parole and is contrary to the Supreme Judicial Court’s prohibition against cruel or unusual punishment.

H.4184 – An Act Relative to Juvenile Sentences

• Creates de facto life sentences for children:
  ♦ Sentencing juveniles convicted of 1^st degree murder to 25 to 30 years before being eligible for consideration for parole and juveniles convicted of felony murder to 20 to 25 years

• Undermines the letter and spirit of the Massachusetts Supreme Judicial Court’s ruling that sentencing children to life in prison without a meaningful opportunity for release is:
  ♦ Unconstitutional and violates our Massachusetts Declaration of Rights

• Fails to acknowledge the Court’s recognition that: Young people have a unique capacity to change and to be rehabilitated

• Doubles the waiting period from 5 to 10 years before any lifer denied parole can return to the board:
  ♦ Encompasses both juveniles and adults
  ♦ Applies to anyone serving a life sentence for any offense, such as unarmed robbery

The copy below is from Fair Sentencing for Youth and folks this needs ACTION ASAP. Many other MA groups are supporting this too–criminal defense attorneys, ACLU folks, many youth orgs., activists and those who care about justice in Massachusetts! HERE IS THE NEW BILL proposed by Rep Chris Markey that puts together other previous versions and you can download and read the .pdf file. PLEASE TAKE ACTION and also you can tweet #stopH4184 and #maleg to your reps’ and senators’ twitter accounts, etc.

________________________________________________________________
“We just learned today that the Massachusetts Joint Committee on the Judiciary is reporting a bill (called now H.4184, redrafted from other bills) out to the House for a floor vote this Wednesday.  .

Unfortunately, the redrafted bill contains several provisions which significantly undermine the Supreme Judicial Court’s recent decision granting individuals sentenced under Massachusetts unconstitutional former sentencing scheme a meaningful chance at parole after they had served at least 15 years in prison.

The bill sets the earliest period of parole eligibility at 20 years for those convicted of felony murder, and 25 years in other cases.  The bill also gives the Parole Board the unprecedented ability to impose a 10 year wait before an individual who is denied parole has the chance to go before the parole board again. We believe these provisions profoundly undermine the letter and spirit of the SJC’s decision, failing to recognize the unique capacity of youth to change and rehabilitate themselves, and allowing for excessively long time periods between parole hearings.

THIS TEN YEAR SETBACK APPLIES TO PERSONS SENTENCED AS ADULTS AS WELL AS THOSE SENTENCED AS JUVENILES – ALL LIFERS. Evidence-based practices tell us that parole hearings should occur with regularity and should motivate prisoners to grow and change. Parole hearings should be used to acknowledge a prisoner’s challenges, provide guidance and identify attainable goals, and measure the prisoner’s progress.  Extending the setback period for lifers to 10 years would do exactly the opposite.  

In addition THIS 10 YEAR SETBACK APPLIES TO PERSONS SENTENCED AS ADULTS AS WELL AS THOSE SENTENCED AS JUVENILES – ALL LIFERS. Evidence-based practices tell us that parole hearings should occur with regularity and should motivate prisoners to grow and change. Parole hearings should be used to acknowledge a prisoner’s challenges, provide guidance and identify attainable goals, and measure the prisoner’s progress.  Extending the setback period for lifers to 10 years would do exactly the opposite.

Please CONTACT YOUR LEGISLATORS TODAY to urge them to reject these extreme sentencing provisions for youth.  Let them know that you support these critical ingredients to fair sentencing for youth:

1.  No youth should have to wait longer than 15 years before having a first opportunity to go before the Parole Board.

2.  No person should be made to wait longer than 5 years between parole hearings.

TIME IS RUNNING SHORT, SO PLEASE CALL or EMAIL YOUR LEGISLATORS IMMEDIATELY. 

If you have a moment, please let us know how your calls go by emailing lindamalik@cfjj.org.  Thank you for supporting fair sentencing for youth!

Linda Malik
Fair Sentencing Campaign Coordinator
lindamalik@cfjj.org”
__________________________________________________________________

Please see my new post at the Women Review of Books Blog: “Money, Justice, and Bail:”

“I met Zoe Giannousis on a wintry evening at the community college in Lowell, Massachusetts, where I facilitate my Changing Lives Through Literature (CLTL) program. Along with Zoe, there were eight women, all struggling with court issues, family conflicts, and the dark well of abuse, addiction, and crime. In CLTL they gather with a judge, two probation officers, and me for a reading group—an alternative sentencing collaboration between academia and the courts that began almost 25 years ago, and that has now spread across the state and the country, and across the Atlantic to England. For the next fourteen weeks, as a condition of probation, they dive into animated discussions of books including Toni Morrison’s The Bluest Eye and Ann Tyler’s Dinner at the Homesick Restaurant.

Unlike the majority of the women in CLTL, however, Zoe had served time. This was not because of an actual crime she had committed. She had been locked up in the Massachusetts Correctional Institution (MCI)-Framingham in the Awaiting Trial Unit, where, according to the Massachusetts Women’s Justice Network (MWJN), more than forty percent of the women being held have not been found guilty.”  MORE

It’s been a challenging month in Massachusetts, if you care about meaningful opportunities for prisoners to change. While there was the wonderful passage (finally) of the anti-shackling bill, and the history-making juvenile lifer bids for release (which I will be writing more about at a later date), there was also the recent Legislative Judicial Committee hearing on a truly wrong-headed bill insisting that juveniles who who commit homicide should have to serve thirty-five years before parole. That bill goes against prevailing trends across the country as I wrote about in “Massachusetts Legislature: Don’t Set Back the Clock” which appeared here, on Truthout, and with a Texas-style twist, at The Rag Blog.

It is hard to imagine that another disaster-in-the-making would come down the pike so quickly. But on Wednesday, May 28, the Judiciary Committee heard H4084, “An Act relative to limiting recurring parole hearings for persons convicted of second degree murder.” While the Massachusetts Parole Board can currently make potential parolees wait five years if they receive a No vote from the Board (i.e. get a setback) this bill would insist that they wait 10 years in between hearings. In order to receive parole under any circumstance a parolee would still need to receive positive votes from 2/3 of the Parole Board members.

Research across the U.S. shows that those behind bars thrive on hope. Many work to change their attitudes through self-reflection, programming, and hard work, and even more so, when they have the hope of early release. For lifers this is particularly significant because they do so much time in prison before eligibility. A five-year setback is a long time, but it is not out of line with national standards. But hope for a meaningful chance for parole—not automatic release but opportunity— is certainly part of what motivates prisoners and what the newest parole proposal lacks.

Backed by Rep. Garrett J. Bradley (Hingham), H4084 if enacted, would be called “Leslie’s Law” in reference to the murder of Leslie Haynes who was tragically killed at age twenty. Bradley wants to stop what he feels is the “reoccurring nightmare every five years” for families and friends of loved ones who were murder victims. This is not to say that advocates who oppose this bill have no sympathy for families like the Haynes family of Hingham whose daughter and sister, Leslie, was killed. Nothing can replace such a loss or ease such pain.

But it is to say, as noted parole expert and Attorney Patricia Garin pointed out, representing the Coalition for Effective Public Safety at the hearing, that there are many ways victims can offer their opposition without actually attending hearings. Garin also pointed out that there is really not a “tradeoff” here. Victims’ advocates can read letters at hearings from people who feel it is too difficult to attend. When Representative Christopher Markey (Dartmouth), House Vice-Chair, asked Garin if it might be a good idea to give the Board discretion to go up to 10 years for a setback but not require it, she said that in 1996 when the 5 year setback was established, it became the setback most commonly used by the Parole Board. This would certainly happen with a 10 year setback. She also stated here was no support anywhere in the literature for a this kind of paroling policy.

Patricia Garin and Max Stern testifying at the Judiciary Committee.

Max D. Stern, also a partner at Stern, Shapiro, Weissberg & Garin LLP, represented the Massachusetts Association Committee of Defense Lawyers as he testified against the bill. He made the excellent point that this bill would actually be a sentencing tool. It would conflate 1st and 2nd-degree murders, making them “almost equivalent” adding to the length of time behind bars. Since the intended purpose of the Parole Board is not to sentence people but to judge their behavior in prison and their growth, this could be problematic. Plus, judges currently have the ability to sentence 2nd degree murder defendants anywhere from 15-25 years before parole eligibility. In other words, they have latitude already. If someone who was sentenced to 25 years came up for parole and was denied, they then would have to wait 10 more years. Since most applicants are turned down the first time they come up for parole, the Parole Board would edge closer to being a sentencing body. Said Stern, in his opinion, “2nd degree murder pleas would become extinct.”

Committee Chair, Sen. William Brownsberger (Belmont) seemed interested to see the science from Stern and Garin. He might begin with the fact that lifers are rearrested much less than all other prisoners. As I wrote in Boston Magazine in 2013, “the best case for parole actually comes from those who have committed some of the worst crimes. According to a 2009 study by the Michigan-based Citizens Alliance on Prisons and Public Spending, parolees originally convicted of homicide re-offended the least of all groups of ex-prisoners. Of 2,558 homicide parolees in that state, only 2.7 percent were returned to prison for any new crime, and only 0.5 percent were returned for another homicide. Other states have observed similar trends.”

Joel Thompson of Prisoners Legal Services (PLS), and a Harvard student from the Prison Legal Assistance Project also testified against the bill, as did Susan Tordella of Toastmasters, a volunteer group that goes behind bars.

Massachusetts is just beginning to come back from low paroling rates which hinder public safety, increase over-crowding, and are exorbitantly expensive for taxpayers. Not to mention that correction officers do not want to work in overcrowded prisons with people who feel despair. According to a White Paper on Parole written by Garin and attorneys at PLS in 2013: “The U.S. Department of Justice’s National Institute of Corrections (NIC) and the Pew Center on the States recognize that success increases and, accordingly, recidivism rates decrease” when Parole Boards motivate prisoners and parolees to change.

Massachusetts need not make another backwards criminal justice move—away from what is proven good policy, the national trend, and certainly, the right thing to do.