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March 24, 2014

What procedural rights should juve killers have at parole proceedings?

The question in the title of this post is prompted by this intriguing article in the Boston Herald headlined "Killers convicted as teens could make bids for parole concessions." The piece highlights some of the intriguing and potentially controversial procedural issues that necessarily arise if and whenever a state has to figure out just what it means to give serious juvenile offenders a meaningful chance to secure parole release from a life sentence.  Here are the details:

A killer whose court victory cleared the way for dozens of lifers convicted as teens to seek freedom is expected to make new demands before a judge today, including giving cons the opportunity to cross-examine anyone who argues against their release. But Suffolk District Attorney Daniel F. Conley said Gregory Diatchenko — who was 17 in 1981 when he plunged a knife through the face and heart of 55-year-old Thomas Wharf in Kenmore Square while screaming, “Give me your money, you (expletive),” — is asking too much.

“What he’s asking for would essentially give him a new trial on a first-degree murder charge for which he was already found guilty. This is a case of a convicted killer being given an inch and now demanding a mile,” Conley said.

The Supreme Judicial Court, in a controversial bombshell decision dropped on Christmas Eve that mirrored a 2012 ruling by the U.S. Supreme Court, ruled that keeping teen killers behind bars without a chance of parole was cruel and unusual punishment because children under age 18 lack the ability to appreciate their crimes. The court, ruling on an appeal by Diatchenko, found teen killers should be given a “meaningful opportunity to be considered for parole suitability” after 15 years of incarceration.

A single SJC justice, Margot Botsford, will hear Diatchenko’s arguments today for new Parole Board rules for those convicted of murder as teens. Lawyers for Diatchenko and the Parole Board did not respond to requests for comment. Conley’s office said Diatchenko’s requests include having an appointed hearing attorney, expert defense witnesses, and the opportunity to cross-examine witnesses against him.

Conley contends, “The SJC has determined that this defendant is entitled to a parole hearing.  He shouldn’t also be afforded an unprecedented array of tactics to use at that hearing.”

Steve Brodie of Groveland, whose daughter Beth was bludgeoned to death in 1992 at age 15, told the Herald he is alarmed to learn hearings could include cross-
examination. “We don’t know where it ends,” Brodie said. Richard Baldwin, 37, who was 16 when he killed Beth Brodie, is among 61 lifers whose hearings for parole are expected to begin soon.

Personally, I do not view a defendant's request for an attorney and an opportunity to present and cross-examine witnesses at a significant sentencing proceeding to amount to a demand to "be afforded an unprecedented array of tactics."  But then again, it is easy for a lawyer and law professor like me to say that the traditional trial procedures secured for defendants by the Sixth and Fourteenth Amendments ought to be given very broad application in parole proceedings. 

The US Supreme Court has never thoroughly considered or carefully articulated exactly which traditional trial rights defendants retain or lack throughout traditional parole decision-making, though SCOTUS jurisprudence suggests that all defendants retain at least some minimal due process rights in parole proceedings.  Critically, though, these important procedural issues have not (yet) been seriously explored in the wake of the Supreme Court's recent substantive and procedural Eighth Amendment decisions in Graham and Miller concerning limits on juve LWOP sentencing. 

March 24, 2014 at 05:34 PM | Permalink


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I would be delighted to allow the killer to have the right of cross examination at a parole hearing.

I'm perfectly sincere about that. There will be some real eye-opening when the Parole Board sees and hears for itself what an arrogant, callous, remorseless thug it has before it rather than the abused choir boy I hear so much about on this blog.

Really. I can't wait for Mr. Nicey to ask the mother of the victim why, if she cared for her son so much, she only got him a $10,000 funeral instead of the $20,000 deluxe.

Go for it.

Posted by: Bill Otis | Mar 24, 2014 6:43:07 PM

Where will Justice Scalia stand on this issue? We are not reviewing the conviction, we are inquiring into a right to release. So, I predict that Scalia will say that the Confrontation Clause is not applicable.

Posted by: Liberty1stl | Mar 24, 2014 9:20:06 PM

I would certainly not expect these hearing to have any different character than any other parole hearing. And I will be amazed if SCOTUS were to ever get in the business of saying what the outcome of a particular parole hearing should be, process by which a decision is to be made, yes, actual decision no. Even if that process pretty much forces a particular decision, I just don't see the Court coming out and saying that.

Posted by: Soronel Haetir | Mar 24, 2014 10:46:25 PM

I have opposed victim impact statements as trivial (we know the crime caused great pain), inflammatory, and not subject to cross examination, therefore being unacceptable to Fifth Amendment due process ex parte communications, rather than the euphemism of the Supreme Court, an attestation.

For the sake of accuracy, anyone bring up a fact during a parole hearing should be allowed to speak and to undergo cross examination, including experts. These may testify 1) the prisoner has a defect which cannot be restored; 2) any decent behavior was in the structured setting of the prison, to which sociopaths respond, and therefore of no predictive value once released from structure; 3) all parole officials should be personally held liable for the crimes of these convicts which have the foreseeability of planetary orbits, as the sun will rise in the East tomorrow, so shall these prisoners hurt more people, spawn many children like themselves, and drop the real estate values anywhere they stay, even for a short time, by the $millions. Home owners should be able to sue the parole board for their negligent releases damaging property values. Let the parole board get professional liability insurance if afraid for their assets. To deter.

Posted by: Supremacy Claus | Mar 24, 2014 11:23:40 PM

Supremacy - I am pleased to see we are largely at one on your stated view:
"I have opposed victim impact statements as trivial (we know the crime caused great pain), inflammatory, and not subject to cross examination, therefore being unacceptable to Fifth Amendment due process ex parte communications, rather than the euphemism of the Supreme Court, an attestation." Where I would differ is on your description of the impact statements as "trivial". I think we can all, unreservedly, accept that views of impact are likely to be honest and heartfelt. There is no question of not respecting those views and the loss they have suffered. I would therefore substitute the word "trivial" with that of "inappropriate". I agree that 'hurt suffered' is self-evident, and that all concerned at trial and parole are capable of understanding and empathizing without the need for direct involvement of those concerned. It is my strong belief that "closure" is best achieved in private or with the help and support of organizations specializing in these matters. To retain and renew hatred and a sense of wishing revengeful actions on others is deeply destructive and makes closure impossible.
For the criminal, parole may be the one opportunity to accept the damage they have previously inflicted on society, and to demonstrate they are ready and capable of accepting the responsibilities of freedom. For society, it is the one opportunity to assess the progress of the inmate and the success of the penal regime imposed on that individual over the length of sentence. Accountability should work both ways. But at the end of the day, human judgements are just that ..... and we should not be afraid of making them in this context. Parole is a just and proper process under the law, and those concerned should not be afraid to explain their views and assessments, or to be subject to cross examination. To avoid institutional bias, it is also fair and reasonable for inmates or their nominated professionals to be permitted opportunities to play a full part in the process of review. I would personally go further and say that for a parole hearing to be meaningful, there should be the presumption of grant unless there is overwhelming evidence that the penal regime has failed to improve the successful re-integration chances of the individual concerned. If that is proved, then a review and reform of the penal regime for that individual and others may be appropriate, to seek better outcomes in the future. No doubt such views may be controversial, and such practices rarely happen today. However, in every other field of life, this process of accountability would be the norm.

Posted by: peter | Mar 25, 2014 6:22:44 AM


You are making the assumption that prison is in fact meant to change the offender's outlook. We disagree at a very basic level, I see prison merely as a place to separate those unwilling or unable to live by society's rules. And making an assumption that offenders have in fact changed their outlook is, I believe, an incredibly unwise -- stupid (and I do not use that word lightly) even - position. Prison does not change prisoners for the better, prisoners change themselves for the better, prison programs might help with that but it is the offender that has to want to change their behavior.

Posted by: Soronel Haetir | Mar 25, 2014 9:13:44 AM

| “including giving cons the opportunity to cross-examine anyone who argues against their release.” |
------ The scum hath inherited the earth.

Does anyone recall that parole is the gift of an early release (supervised),
instead of serving the entire term which was earned by the convict?
… That the original sentence was more times than not a compromise, a bargain
struck below the crime actually perpetrated?

Dunno much about the law, but is not every parolee’s case <res judicata> so that his sentence was fully earned, behoving him to convince others of
an early release, not entitling him to confront those who oppose early release.

o Update: Why wasn't Romeo Williams charged with murder in Elmwood attack? (video) By Douglass Dowty | ddowty@syracuse.com
o Knockout Game victim's eye kicked out of socket - www.wnd.com/.../knockout-game-victims-eye-ki...‎ By Colin Flaherty

Posted by: Adamakis | Mar 25, 2014 11:14:18 AM

I doubt anyone is going to cross-examine a victim in any but the most cursory way (particularly if the parole applicant has counsel). I assume the cross-examination right is included more to allow the applicant to challenge/inquire into expert evaluations and other prison records generated by the DOC that bear on parole. In some states, you don't even get to *see* these things, so you may never even know what basis the parole board denies you on. And it's not like most DOCs are running an operation with a low tolerance for error. I've seen files on inmates with LARNA scores ranging from -3 to 3, with no change in the underlying facts, just different evaluators applying the somewhat flexible LARNA criteria each year. I've seen files conflating an inmate's prior criminal record or role in the crime with one of his co-defendant's. I mean, the kinds of factual inaccuracies that can creep into a prison jacket can get pretty egregious.

And these factual errors can be compounded when later, very consequential evaluations are based on them. For example, I had a client who was working on a outdoor detail and relieving himself by a tree. An officer wrote him up for a charge that is basically worded as exposure in front of an officer and is usually used for masturbation. He appealed, and the review board believed his version of events and dismissed the charge.[Fn] But the way the record was constructed, you had to pull the full narrative to find the dismissal. The cover sheet listed the original offense without noting (as it should have) that it was successfully appealed. So subsequent psych/adjustment evaluations on this inmate were mixed, largely because any kind of sexual-related disciplinary charge is a red flag for these folks. Of course, the inmate never committed any sexual-related DR, either factually or as a matter of the official prison record, but that was not clear from the cursory review of the disciplinary record the evaluators would do. I was able to clear this up but it took a lot of work and it was really just by luck that I was able to identify the misunderstanding.

I explain all this at length because I think folks need to understand that these kinds of details matter a lot. Parole adjudications, like many other legal determinations, are extremely fact-specific and are subject to being inaccurate and unreliable to the extent that the process is not designed to create an accurate and complete factual record for the decision maker.

I think that the fact that the courts have taken such a hands-off, "almost anything goes" approach to due process rights around parole is sometimes understood as an indication that a parole adjudication is somehow different and can be reliably accomplished without significant procedural rules. That is not the case. Rather, the hands-off approach is actually a reflection that we don't really *care* very much (at least as a matter of constitutional mandate) how reliable or unreliable the adjudication is, because the state is justified in holding you for your full sentence if it wants to and parole is sort of a bonus, from a constitutional point of view.

But, as Doug notes, all of the prior parole/due process doctrine was based on the 14th Amendment requirements for parole consideration of adults. The 8th Amendment requirements for parole consideration of juveniles may be quite different (for example, see Graham's requirement of a "meaningful" opportunity to obtain release, etc.).

In any event, with regard to the proposed protections in this Massachusetts case, the request for live cross examination may be the easiest to caricature as extreme, but I don't think it is the real crux of the issue here. Whether or not there is live cross-examination at the parole hearing is not that important. What is important is that there be *some* kind of discovery/notice of the factual evidence against you and an opportunity to test that evidence or rebut it if it is false or misleading. Good parole lawyers can sometimes achieve that under the current systems, but with no vested rights it is a challenge and not always possible. (And of course there is no right to counsel, so most applicants have no lawyer at all, let alone a good one.)

[Fn] This does happen -- while they certainly start on opposite ends of the credibility spectrum by default, both officers and inmates build reputations over time, so it is not entirely unheard of that a board takes the inmate's word over the CO's. Indeed, in comparison to courts, I think that a review board is more likely to discredit an officer and credit an inmate, because the review board is made up of captains and wardens who often know the players intimately.

Posted by: anon | Mar 25, 2014 11:39:38 AM

Soronel - with that attitude it is little wonder that re-offending rates are so high. You waste tax payers money with over-the-top sentencing, and for lower-level crimes and some others almost guarantee a revolving door on release. What else would you expect if you turn people out of prison unprepared for often a very different and certainly more difficult environment to that which they found so difficult before. And that without addressing the problems that landed then in jail in the first place. Do you own shares in the private prison business by any chance?

Posted by: peter | Mar 25, 2014 6:14:19 PM


No, I am not invested in private prison companies, though it wouldn't be that bad an idea.

The only thing I find particularly about our revolving prison door culture is that it lets offenders out at all, not that it lets them out unprepared to do any better. If we are going to let them out I actually think it is a good thing we do so little to prepare them to do better because that way we know that any improvement that is demonstrated is real rather than yet another con. Also, someone who is unprepared and has not changed is likely to show that more quickly and thus can be returned to the environment they belong in.

Something to keep in mind, under my preferred policies there would be little chance for offenders to improve because I would choose a one strike and execute system for the vast majority of cases. What we have now is simply the closest I see us getting to my desired alternative.

Posted by: Soronel Haetir | Mar 25, 2014 6:36:44 PM

belive it or not soronel I like your suggestion. Of course I also want it applied to lieing politicians. First time they are caught they get prison. 2nd time we kill em!

Posted by: rodsmith | Mar 25, 2014 7:30:23 PM

peter --

Nice job of impugning Soronel's motives by implying (falsely) that he holds his opinions because he profits from private prisons.

If anyone still has doubts about what slimy liberal McCarthyism looks like, now you know.

Posted by: Bill Otis | Mar 26, 2014 2:16:32 AM

Bill - tut, tut ...... you are clearly trapped in a time loop. I was seeking a rational explanation for Soronel's views. Unfortunately, not even the one I suggested was correct. That just leaves the irrational .... as of course I knew all along.

Posted by: peter | Mar 26, 2014 5:06:04 AM

peter --

"Bill - tut, tut ...... you are clearly trapped in a time loop. I was seeking a rational explanation for Soronel's views."

Pretty lame, peter; you should just have left it alone. When you asked Soronel whether, "by any chance," he owned shares in private prisons, you directly implied that the reason he disagrees with you is that he has an undisclosed self-interest in their success. And the implication from that is that his posting is dishonest, because he's not saying what he actually thinks; instead, he's just cobbling together an excuse to satisfy his wallet.

That is a classic of impugning motives.

Welcome to Joe McCarthy-land, albeit with a difference: McCarthy at least was rooting for the United States.

Posted by: Bill Otis | Mar 26, 2014 10:21:54 AM


I don't see being unforgiving as at all irrational. You have someone who has demonstrated that they are unwilling or unable to conform their behavior to the very minimal requirements of US society I say give them what they want and send them someplace where they no longer need to do so. I don't favor prison or execution so much as punishment but instead as expulsion.

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