Update
This post explains the terms of Senate 2246, the Senate’s response to the Diatchenko case. Diatchenko struck down the Commonwealth’s sentence of life without parole for first degree murder by juveniles, finding that life without parole is an unconstitutional sentence as applied to juveniles. The House has already passed a similar response, House 4184.
Under Diatchenko and the companion case Brown, the Supreme Judicial court determined that, until the legislature enacts a new sentencing regime, juveniles convicted of first degree murder should be sentenced as if they had been convicted of second degree murder. Currently, the penalty for second degree murder is life with initial parole eligibility between 15 and 25 years. The court called for the legislature to enact a new sentencing scheme stating:
. . . As a result of our decision today, in the case of juvenile defendants convicted of homicide crimes committed after August 2, 2012, both murder in the first degree and murder in the second degree are mandatory life-sentence crimes with parole eligibility to be set between fifteen and twenty-five years. Thus, until the statutory sentencing scheme is further amended, sentencing judges effectively will be required to apply one discretionary parole eligibility range to juveniles convicted of two different crimes. This requirement could well give rise to disparate sentencing for juveniles convicted of murder in the first degree and murder in the second degree. . . . [A]s a result of applying the same discretionary parole-eligibility range . . . a juvenile convicted of the lesser crime of murder in the second degree could be sentenced to a lengthier minimum term than the juvenile convicted of the more severe crime of murder in the first degree. . . . Consequently, we emphasize that the application of severability principles in sentencing juveniles like Brown is a temporary remedy–one that we hope the Legislature will soon address by creating a new, constitutional sentencing scheme for juveniles convicted of homicide crimes.
Basically, the Senate proposes to punish the crime of first degree murder by life in prison with an initial parole eligibility range that would still overlap, but exceed at both ends, the range for second degree murder.
Section by Section Analysis of House 2246
Section 1 makes a housekeeping change to reflect that juveniles convicted of murder in the first degree are now eligible for parole.
SECTION 1. Section 133A of chapter 127 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the word “degree”, in line 5, the following words:- who had attained the age of 18 years at the time of the murder.
Sections 2 and 3 of the bill provide that if a juvenile convicted of first degree murder is denied parole, they must have another parole hearing within 10 years. The otherwise generally applicable maximum setback after a denial of parole is currently 5 years. Note that the House version of the bill applied the extended setback more broadly to all prisoners serving life sentences (juveniles and adults convicted of murder in the second degree and adults convicted of other life felonies). Existing parole board rules allow prisoners the opportunity to petition for a rehearing based on changed circumstances.
SECTION 2. Said section 133A of said chapter 127, as so appearing, is hereby further amended by inserting after the word “granted”, in line 47, the following words:- “to a prisoner, except a prisoner serving a life sentence for murder in the first degree committed by the prisoner on or after the prisoner’s fourteenth birthday and before the prisoner’s eighteenth birthday”.
SECTION 3. The third paragraph of said section 133A of said chapter 127, as so appearing, is hereby further amended by adding the following 2 sentences:- If such permit is not granted to a prisoner serving a life sentence for murder in the first degree committed by the prisoner on or after the prisoner’s fourteenth birthday and before the prisoner’s eighteenth birthday, the parole board shall, at least once in each ensuing 10-year period, consider carefully and thoroughly the merits of each such case on the question of releasing such prisoner on parole and may by a vote of 2/3 of its members grant such parole permit.
Section 4 of the bill makes a further housekeeping change to reflect that juveniles convicted of murder in the first degree are now eligible for parole (and so permits family members of a deceased victim to represent the victim at parole hearings).
SECTION 4. Section 133C of said chapter 127, as so appearing, is hereby amended by inserting after the word “degree”, in line 6, the following words:- who had attained the age of 18 years at the time of the murder.
Section 5 of the bill rewrites the section of the General laws that defines the penalty for murder.
SECTION 5. Chapter 265 of the General Laws is hereby amended by striking out section 2, as so appearing, and inserting in place thereof the following section:-
It makes no substantive change as to adults — it preserves the penalty of life without parole for murder in the first degree; it omits mention of the death penalty, which appears in the current version, but is unconstitutional.
Section 2. (a) Except as provided in subsection (b), any person who is found guilty of murder in the first degree shall be punished by imprisonment in the state prison for life and shall not be eligible for parole under subsection (a) of section 133A of chapter 127.
As to juveniles, it alters the penalty, removing life without parole, preserving the life sentence, but allowing parole eligibility as defined further below.
(b) Any person who is found guilty of murder in the first degree who committed the offense on or after the person’s fourteenth birthday and before the person’s eighteenth birthday shall be punished by imprisonment in the state prison for life and shall be eligible for parole after the term of years fixed by the court pursuant to section 24 of chapter 279.
It makes no change for murder in the second degree or in the handling of commuted sentences.
(c) Any person who is found guilty of murder in the second degree shall be punished by imprisonment in the state prison for life and shall be eligible for parole after the term of years fixed by the court pursuant to section 24 of chapter 279.
(d) Any person whose sentence for murder is commuted by the governor and council under section 152 of chapter 127 shall thereafter be subject to the laws governing parole.
Section 6 of the bill makes juveniles convicted of murder in the first degree eligible for parole after a term to be set by the sentencing judge between 20 and 30 years.
SECTION 6. Section 24 of chapter 279 of the General Laws, as so appearing, is hereby amended by adding the following paragraph:-
In the case of a sentence to life imprisonment for murder in the first degree committed by a person on or after the person’s fourteenth birthday and before the person’s eighteenth birthday, the court shall fix a minimum term of not less than 20 years nor more than 30 years.
Sections 7 and 8 address retroactivity, stating that the new minimum parole eligibility date should applied prospectively (as required by constitutional law, see footnote 10 of Brown), but that the optionally increased setback should be applied retroactively (as permitted by constitutional law)
SECTION 7. Sections 1, 5 and 6 shall apply only to people who commit a murder after the effective date of this act.
SECTION 8. Sections 2, 3 and 4 shall apply to prisoners convicted of murder in the first degree regardless of when the murder for which the prisoner was convicted took place.
Additional resources:
- A review of all the published juvenile life without parole cases.
- A discussion of the current wave of sentencing reform designed to reduce harshness of sentencing of juveniles.
- Chart mapping recent variations in scheme for first and second degree murder sentencing for juveniles and adults.
A couple of updates:
After making this mix of adjustments, the Senate adopted the bill by a vote of 37-2. The basic 20-30 year parole eligibility frame in the bill remained intact and the close roll-calls and/or intense floor negotiations on measures to move to either side of that range showed how down-the-middle that range is. The measure now moves to the conference process between the House and Senate.
Thank you for this detailed explanation of the senate bill. As for one of the amendments adopted, is “extreme atrocity” a term defined by statute or case law?
Extreme atrocity is defined by case law. There is a good argument that it is not a good thing to base sentencing decisions on. It doesn’t always work in the common sense way one would think it would. I’m of the view that we are better with a wide range, leaving it to the court process to sort out each unique case. But that’s not where the votes were; we had to compromise on that vote — a near majority of the body would have put the minimums even higher.
does this apply to state law? (Virginia)
Most of this is an explanation of new Massachusetts law. If you read the Diatchenko and Brown cases cited above, you’ll understand the relationship of state law to the federal constitutional background.