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Changes sought in parole hearings for ex-juveniles

A dozen Massachusetts inmates sentenced as juveniles to life sentences for first-degree murder have received invitations to appear before the state Parole Board, the first time such offenders have had a chance to seek freedom. But just how these unprecedented parole hearings will be structured is causing its own challenges.

The inmates, convicted for crimes committed when they were teens, are getting a shot at parole because of a Supreme Judicial Court ruling in December 2013 declaring it was unconstitutional to put them behind bars for life without a chance to earn release.

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At issue is how to set up the hearings. Advocates for the inmates, including their lawyers, argue that parole hearings for people given life sentences as juveniles require a special approach — one that takes into account the science of the teenage brain and provides more resources and procedural flexibility to make the case to the parole board.

“The court really stressed that these are not the same as any other parole hearings because they are supposed to have a special focus on the extent to which this person matured and rehabilitated themselves,” said Joshua Dohan, director of the youth division for the state Committee for Public Counsel Services, Massachusetts’ public defender agency.

“The [high court] went out of its way to say there has to be meaningful opportunities for release,” he said.

The lawyer for Gregory Diatchenko, the inmate at the heart of the SJC decision, has asked a justice with the court to establish a set of clear guidelines for the Parole Board to follow. That request is pending.

State parole officials readily acknowledge the differences between young inmates and hardened adults, and say they are willing to conduct parole hearings with those differences in mind. But they are reluctant to institute all of the changes being sought.

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“There’s no reason to reinvent the system, because the system allows for flexibility,” said Josh Wall, the chairman of the Parole Board, who was appointed in 2011 with a directive to restrict the way the board scrutinizes parole requests.

With no agreement in place, the first of several rounds of parole hearings for juveniles serving life have already been delayed once, as their lawyers scramble to determine the best way to present their cases for release. Further delays are likely.

Of the 65 people in state prison who were sentenced as juveniles to life in prison with no parole, approximately 45 have already served 15 years; that is the standard for typical eligibility under a murder conviction, making them immediately eligible for parole. The first 12 of them have already been offered hearings.

Among them is Alfred Brown, who was 15 when he shot his parents and his sister in 1978, and Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He is now 49 years old, two credits shy of a bachelor’s degree, and has been a Buddhist for 10 years, according to his lawyer, Benjamin Keehn, the one who sought clarification from the high court.

With Massachusetts having some of the toughest sentencing laws for juveniles in the country following a series of killings by teens in the 1990s, Diatchenko’s case looms large in the legal history of sentencing young murderers.

The landmark Massachusetts court case of last December is known as the Diatchenko decision. It dovetailed with a 2012 US Supreme Court decision that found it was unconstitutional to sentence a teenager to life in prison without the possibility of parole, citing new science showing a teenager’s brain is “not fully developed.”

The courts found that the new research established that a teenager, because of the lack of brain development, should be treated differently than adults because they are less culpable for the crimes and fail to understand the consequences and also because they could be rehabilitated quicker – a key purpose of sentencing.

In Massachusetts, the high court went further and requested a “meaningful opportunity” for parole based on “demonstrated maturity and rehabilitation.”

Justice Barbara A. Lenk wrote in a concurring opinion that “the meaningful nature of the opportunity for release may be compromised” if the science was not considered at the hearings.

Naoka Carey, executive director of Citizens for Juvenile Justice, said Massachusetts joins other states that are scrambling to enact new laws and procedures following the US Supreme Court precedent. California, which had a high rate of sentencing teenagers to life in prison, last year established a separate parole board for juveniles. That board hears other cases in addition to the murder cases, however. The Massachusetts Parole Board would only hear murder cases.

“There are so many different states trying to grapple with this,” Carey said. “The court has said this is where we are, this is what you need to do, and we’re trying to flush that out in a way that makes sense and does what the court intended.”

One of the biggest disagreements between prisoners’ advocates and the Parole Board is the advocates’ request to provide considerable resources to the prisoners, to help them make a strong case for their release.

Keehn’s court filing, among other things, asked that prisoners who are about to go before the Parole Board have access to funds for expert testimony, have an appointed lawyer, and have the ability to cross-examine witnesses — guidelines that are not allowed at hearings for adults. The request also asks that a judge oversee the Parole Board decisions, to make sure they incorporate the court’s guidelines. There is no current appellate avenue for prisoners except to the same board.

Wall, the parole chief, said he would not oppose the right to a lawyer or for an expert opinion that would be submitted in the record, though a court would have to approve funding.

“I have assured the lawyers that every inmate will have a right to consultation, that every inmate will receive full discovery of documents, and every inmate will be able to provide expert opinion through documents and testimony.”

But, he said, the idea of cross-examination could be too extreme.

“This is not an adversarial proceeding, and we don’t approach it that way,” he said. “It’s an opportunity for an inmate and his lawyer to present information, and for the parole board members to ask for additional information.”

One underlying issue is prisoners’ security classification. Prisoners serving life in prison are, under state policy, held in maximum or medium security.

Wall follows a “transitional” parole policy requiring that security classification be reduced in steps before the inmates are released to a community. That means an inmate’s first appearance before a parole board would be a request to step down in classification, and then the Department of Correction would have to follow through with that reclassification. Then the inmate would have to wait a set time frame before going before the parole board again.

Wall says inmates often even ask for the transition before their release.

“Every person coming down before the Parole Board has a meaningful opportunity for parole,” he said, noting he has already amended his board’s guidelines to account for the court’s definition of “meaningful opportunity.”

He added, “They may be a good candidate, they may not be a very good candidate, but every person who comes down has an opportunity for parole.”

Milton J. Valencia can be reached at mvalencia@globe. com. Follow him on Twitter @miltonvalencia.

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