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SJC-12053

TIMOTHY DEAL & others1 vs. COMMISSIONER OF CORRECTION

& another.2

Suffolk. May 3, 2016. - August 25, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.3

Commissioner of Correction. Constitutional Law, Sentence, 

Parole. Due Process of Law, Sentence, Parole, Prison 

classification proceedings. Imprisonment, Reclassification 

of prisoner. Parole. Youthful Offender Act. Practice, 

Criminal, Sentence, Parole.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on July 14, 2015.

The case was reported by Botsford, J.

Barbara Kaban (Benjamin H. Keehn, Committee for Public 

Counsel Services, & James W. Rosseel with her) for the 

petitioners.

Charles Anderson, Jr., for the respondents.

 

1 Siegfried Golston and Jeffrey Roberio.

2 Assistant Deputy Commissioner of Correction.

3 Justice Cordy participated in the deliberation on this 

case and authored this opinion prior to his retirement. 

Justices Spina and Duffly participated in the deliberation on 

this case prior to their retirements.
2

David J. Apfel & Eileen L. Morrison, for American Civil 

Liberties Union of Massachusetts & others, amici curiae, 

submitted a brief.

CORDY, J. This case is before us on the reservation and 

report of the single justice. The petitioners, Timothy Deal, 

Siegfried Golston, and Jeffrey Roberio, are juvenile homicide 

offenders4 who are serving mandatory indeterminate life sentences 

and who have a constitutional right to a "meaningful opportunity 

to obtain release based on demonstrated maturity and 

rehabilitation." Diatchenko v. District Attorney for the 

Suffolk Dist., 466 Mass. 655, 674 (2013) (Diatchenko I), quoting 

Graham v. Florida, 560 U.S. 48, 75 (2010). This right also 

extends to juveniles convicted of murder in the second degree. 

See Diatchenko v. District Attorney for the Suffolk Dist., 471 

Mass. 12, 32 (2015) (Diatchenko II). This case concerns the 

manner in which juvenile homicide offenders are classified and 

placed in Department of Correction (department) facilities.

The issue before us is whether the department's practice of

using "discretionary override codes" to block qualifying 

 

4 In an earlier decision, we used the term "juvenile 

homicide offender" to refer to a person who has been convicted 

of murder in the first degree and was under the age of eighteen 

at the time that he or she committed the murder. See 

Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 

12, 13 n.3 (2015). In this case, we use the term to refer to 

individuals who have been convicted of either murder in the 

first degree or murder in the second degree and were under the 

age of eighteen at the time of the offense.
3

juvenile homicide offenders from placement in a minimum security 

facility unless and until the individual has received a positive 

parole vote violates (1) G. L. c. 119, § 72B, as amended by St. 

2014, c. 189, § 2; or (2) their right to a meaningful 

opportunity to obtain release based on demonstrated maturity and 

rehabilitation under the Eighth and Fourteenth Amendments to the 

United States Constitution, arts. 12 and 26 of the Massachusetts 

Declaration of Rights, or both Constitutions.

We conclude that the department's current classification 

practice violates G. L. c. 119, § 72B, as amended by St. 2014, 

c. 189, § 2, because the department's failure to consider a 

juvenile homicide offender's suitability for minimum security 

classification on a case-by-case basis amounts to a categorical 

bar as proscribed by the statute. We further conclude that the 

department's practice does not violate the petitioners'

constitutional right to a meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation 

because there is no constitutionally protected expectation that 

a juvenile homicide offender will be released to the community 

after serving a statutorily prescribed portion of his sentence.

5

 

5 We acknowledge the amicus brief submitted by the American 

Civil Liberties Union of Massachusetts; Boston College Juvenile 

Rights Advocacy Project; Campaign for Fair Sentencing of Youth; 

Charles Hamilton Houston Institute, Harvard Law School; Citizens 

for Juvenile Justice; Coalition for Effective Public Safety; 

Communities for People; Harvard Prison Legal Assistance Project; 
4

Background. 1. Department classification process. In 

2002, the National Institute of Corrections provided technical 

assistance to the department to "revise and validate the 

classification instrument for both males and females." The 

final product, entitled "Objective Point Base ClassificationReclassification Form" (objective classification form), consists 

of "objectively defined criteria" that are "weighed, scored, and 

organized into a valid and reliable classification instrument 

accompanied by an operational manual for applying the instrument 

to inmates in a systematic manner." 103 Code Mass. Regs. 

§ 420.06 (2007).

On commitment, and annually thereafter, the department 

determines the appropriate security placement level for each 

prisoner through the classification process, called the 

"Internal Classification Status Review." 103 Code Mass. Regs. 

§§ 420.08, 420.09 (2007). The twin goals of the process are to 

promote "public safety" and "the responsible reintegration of 

offenders." 103 Code Mass. Regs. § 420.07 (2007). To achieve 

these goals, the process "objectively assess[es] the inmate's 

custody requirements and programmatic needs and match[es] those 

to the appropriate security level in a manner that minimizes the 

 

Justice Resource Institute; Massachusetts Association of 

Criminal Defense Lawyers; Northeastern Prisoners' Assistance 

Project; Prisoners' Legal Services of Massachusetts; Roca, Inc.; 

Roxbury Youthworks, Inc.; Span, Inc.; Dr. Frank DiCataldo; Dr. 

Robert Kinscherff; and Francine Sherman, Esq.
5

potential for escape, prison violence and inmate misconduct," 

by, inter alia, "[r]ationally using a reliable, validated set of 

variables to support classification decisions." 103 Code Mass. 

Regs. § 420.07(a). Based on the outcome of the classification 

process, a prisoner is assigned to a maximum, medium, or minimum 

security facility.

The classification process proceeds in several steps.

First, a correctional program officer (CPO) is responsible for 

gathering the information required to score each variable 

contained in the prisoner's objective classification form. 103 

Code Mass. Regs. § 420.09.6 The CPO computes the total score and 

compares it to a set of cut-off values to determine the 

 

6 The variables and their scoring ranges are:

1. severity of current offense (possible score 1-6);

2. severity of convictions within the last four years 

(possible score 0-6);

3. history of escapes or attempts to escape (possible 

score 0-7);

4. history of prior institutional violence within the 

last four years (possible score 0-5);

5. number of guilty disciplinary reports within the 

last twelve months (possible score 0-4);

6. most severe guilty disciplinary report within the 

last eighteen months (possible score 0-7);

7. age (possible scores -2, 0, 1); and

8. program participation or work assignment (possible 

scores -2, -1, 0).
6

prisoner's preliminary custody level. Twelve or more points 

qualify a prisoner for maximum security; seven to eleven points 

qualify the prisoner for medium security; and six or fewer 

points qualify the prisoner for minimum security.

After calculating the prisoner's objective score, the CPO 

reviews the "non-discretionary" restrictions to determine if any 

apply. If the prisoner is not subject to a nondiscretionary 

restriction, the CPO then reviews the "discretionary overrides" 

to determine if any apply. The CPO also schedules an interview 

with the prisoner to discuss "matters related to classification 

and custody status." 103 Code Mass. Regs. § 420.09(1)(f).

Following the review process, the CPO makes recommendations 

and enters the results of the review into the department's 

computerized inmate information system. 103 Code Mass. Regs. 

§ 420.09(2), (3). The institution's director of classification 

will review and then approve, modify, or deny the 

recommendations made by the CPO. 103 Code Mass. Regs. 

§ 420.09(2). Prisoners who disagree with the internal 

classification status review results may appeal to the 

superintendent. 103 Code Mass. Regs. § 420.09(3).

If a review of the inmate's objective classification form 

and other factors set forth in the regulations indicate a need 

for a change in placement to a higher or lower security level, a 

hearing is conducted by a three-person classification board 
7

consisting of institutional employees deemed qualified to make 

custody level determinations. 103 Code Mass. Regs. 

§§ 420.08(3)(a), 420.09(4). The prisoner appears before and 

participates in the hearing with the classification board, which 

reviews the prisoner's objective point base classification score 

and any cited restrictions or overrides. 103 Code Mass. Regs. 

§ 420.08(3)(e)-(f). The classification board members then vote, 

with the board's final recommendation reflecting the majority 

vote of the three-person panel, and the prisoner is notified of 

the decision both orally at the time of the hearing and 

subsequently in writing. 103 Code Mass. Regs. § 420.08(3)(f). 

Prisoners may appeal the classification board's placement 

decision to the Commissioner of Correction (commissioner) or her 

designee. 103 Code Mass. Regs. § 420.08(3)(h).

State law provides that the purpose of classification 

boards is to make recommendations for inmate classification. 

G. L. c. 127, § 20A. Accordingly, the classification board's 

decision is a "final recommendation to the [c]ommissioner," 103 

Code Mass. Regs. § 420.08(3)(f), subject to approval or 

rejection by the commissioner or her designee, who "shall 

utilize the scored custody level and any applicable restrictions 

or overrides to render a final placement decision." 103 Code 

Mass. Regs. § 420.08(3)(i). The assistant deputy commissioner 

of classification (assistant deputy commissioner) is one of 
8

several department employees authorized by the commissioner to 

act as her designee, and rendered classification decisions in 

each of the petitioners' cases.

The department's classification system includes seven 

discretionary override codes (P through V), any one of which may 

be the basis for the commissioner or her designee to reject a 

classification board's final recommendation. The definitional 

section of the department's classification regulations, 103 Code 

Mass. Regs. § 420.06, defines "[d]iscretionary [o]verride" as

"[a]n override of a scored custody level, based on the 

professional judgment of trained classification staff. 

Discretionary [o]verrides should account for [five to fifteen 

per cent] of all custody level decisions and are detailed in the 

Objective Classification Operational Manual." According to the 

department, the final decision of the commissioner or her 

designee balances the classification board's recommendation 

against the interests of the public, the department, and the 

inmate. The decision of the commissioner or her designee is 

final and cannot be appealed. 103 Code Mass. Regs. 

§ 420.08(3)(i).

2. 2014 amendment and department response. In 2013, this 

court held that art. 26 of the Massachusetts Declaration of 

Rights prohibits the imposition of a life sentence without 

possibility of parole on a person younger than the age of 
9

eighteen at the time of offense. Diatchenko I, 466 Mass. at

658-659. On July 25, 2014, the Legislature amended G. L. 

c. 119, § 72B, the statute which provides the penalties for 

juveniles convicted of murder, by inserting the following text 

at the end of the statute:

"The department of correction shall not limit 

access to programming and treatment including, but not 

limited to, education, substance abuse, anger 

management and vocational training for youthful 

offenders, as defined in [G. L. c. 119, § 52], solely 

because of their crimes or the duration of their 

incarcerations. If the youthful offender qualifies for 

placement in a minimum security correctional facility 

based on objective measures determined by the 

department, the placement shall not be categorically 

barred based on a life sentence."

St. 2014, c. 189, § 2.

At the time the statute was amended, the department had a 

categorical bar which specifically prevented persons serving 

life sentences -- whether juveniles or adults at the time of 

offense -- from being housed in minimum security. This 

categorical bar, "Non-Discretionary Minimum Custody Code E"

(code E), stated the following: "Non-Discretionary Minimum 

Custody Restriction Code E: 1st Degree Lifer -- 1st Degree 

lifers are not to be considered for minimum or below." Code E's 

prohibitive sweep extended to all inmates serving a life 

sentence for murder in the first degree (designated by the 

department as "1st Degree lifers" [lifers]), and did not 
10

discriminate based on the inmate's age at the time of the 

offense.

Also at the time the amended statute became effective, the 

Department's "Non-Discretionary Minimum Custody Code F" (code F)

restriction prohibited offenders from being considered for 

minimum security based on aspects of the crime. It stated the 

following: "Non-Discretionary Minimum Custody Restriction Code 

F: Inmates currently convicted of murder of a public official, 

a crime while incarcerated or a crime involving loss of life are 

not to be considered for minimum unless a positive parole 

decision has been granted or are within two years of a defined 

release date." Based on the language of code F, juvenile lifers 

who committed a crime involving loss of life were restricted; 

those lifers who had committed other offenses such as rape or 

armed robbery were not restricted. Classification staff do not 

have the authority to disregard restrictions.

In addition to these restrictions, the department then had, 

and still has, amongst others, two discretionary overrides, 

codes R and S, which take into account aspects of the crime or 

an offender's criminal history warranting retention in higher 

custody:

"Discretionary Over-Ride -- Higher Custody . . . Code 

R: Nature of Offense/High Notoriety -- The facts or 

notoriety of the offense presents a seriousness that 

cannot be captured in the score.
11

" Code S: Prior Criminal History -- The criminal 

history presents a seriousness that cannot be captured 

in the score."

All of these codes -- E, F, R, and S -- were in effect on 

July 25, 2014, the effective date of the amended statute.

The Legislature, recognizing that juveniles serving life 

sentences were restricted from minimum security throughout their 

incarcerations due to code E, specifically addressed this 

"categorical bar" by enacting the amended statute: the 

department could no longer bar juvenile homicide offenders from 

minimum security categorically based on a life sentence, but 

could consider them for minimum security if and when their 

objective (point-based) score warranted such consideration. See 

G. L. c. 119, § 72B.

On September 5, 2014, then Acting Commissioner Thomas 

Dickhaut issued a memorandum implementing both the holding in 

Diatchenko I and § 72B. The memorandum stated that codes E and 

F could not be used for juvenile first- and second-degree 

homicide offenders, and those who had those codes would need to 

be reclassified.

3. The petitioners. Timothy Deal, now age thirty-one, was 

convicted of murder in the second degree for an offense 

committed in 2002, when he was the age of seventeen. Sentenced 

to life imprisonment, Deal will be parole eligible as a matter 

of law as of January 29, 2017, when he will have been 
12

incarcerated for fifteen years. He is currently imprisoned at 

the Massachusetts Correctional Institution at Concord, a medium 

security facility. On September 23, 2014, a classification 

board unanimously voted that Deal be placed in a minimum 

security facility. The board noted that Deal had an objective 

classification score of four, had "[p]ositive housing/work 

evaluations," and was "program compliant." Seven months later, 

the assistant deputy commissioner rejected the classification 

board's recommendation, citing "code R," i.e., "serious nature 

of offense."

Siegfried Golston, now age fifty-eight, was convicted of 

murder in the first degree in 1976 for an offense committed when 

he was the age of seventeen. Originally sentenced to life 

without the possibility of parole, Golston has been imprisoned 

for forty years, mostly (and currently) at Old Colony 

Correctional Center (Old Colony), a medium security facility.

For many years, Golston's objective point base classification 

scores have qualified him for placement in minimum security. In 

2014, a classification board again determined that Golston 

qualified for minimum security and recommended that he be so 

placed, noting his objective classification score of two, 

positive institutional adjustment, and program participation. 

The assistant deputy commissioner rejected the recommendation, 

citing code R: "The facts or notoriety of the offense presents 
13

a seriousness that cannot be captured in the score." After 

becoming eligible for parole by virtue of Diatchenko I, Golston 

was considered for parole at a hearing held on January 29, 2015.

On May 1, 2015, the parole board denied Golston's application 

for parole "with a review in two years from the date of the 

hearing."

Jeffrey Roberio, now age forty-seven, was convicted of 

murder in the first degree in 1987, for an offense committed 

when he was the age of seventeen. Originally sentenced to life 

imprisonment without the possibility of parole, Roberio has been 

incarcerated for almost thirty years, mostly (and currently) at 

Old Colony. On October 9, 2014, a classification board 

recommended by a unanimous vote that Roberio be placed in a 

minimum security facility based on his objective classification 

score of three, his "positive institutional adjustment," and his 

"program participation." Four months later, the assistant 

deputy commissioner rejected the classification board's 

recommendation, as follows: "Serious nature of offense; several 

disciplinary reports throughout incarceration noted. Override 

code R and T;

[7] attorney letter and inmate appeal reviewed." 

After becoming eligible for parole as a result of Diatchenko I, 

 

7 "Discretionary Over-ride -- Higher Custody . . . Code T"

provides: " Institutional Negative Adjustment -- The 

institutional adjustment presents a seriousness that cannot be 

captured in the score."
14

Roberio was considered for parole at a hearing held on June 25, 

2015. On November 4, 2015, the parole board denied Roberio's 

request for release on parole "with a review in five years from 

the date of the hearing," i.e., June 25, 2020.

4. Procedural history. As of the effective date of the 

Legislature's amendment of § 72B (July 25, 2014), the 

petitioners each were "youthful offender[s]," see Commonwealth

v. Okoro, 471 Mass. 51, 62 n.18, who "qualifie[d] for placement 

in a minimum security correctional facility based on objective 

measures determined by the department." G. L. c. 119, § 72B, as 

amended by St. 2014, c. 189, § 2. However, in each case, the 

assistant deputy commissioner invoked one or more of the 

department's "discretionary overrides" to reject the 

petitioners' respective requests for placement in minimum 

security (Deal, rejected on the basis of code R; Golston, 

rejected on the basis of code R; Roberio, rejected on the basis 

of codes R and T).

Because the assistant deputy commissioner's use of 

discretionary overrides to prevent the petitioners' placement in 

a minimum security facility is "final and cannot be appealed,"

103 Code Mass. Regs. § 420.08(3)(i), the petitioners filed the 

instant petition for relief in July, 2015, seeking relief 

pursuant to G. L. c. 211, § 3, and G. L. c. 231A, alleging that 

the department's practice of categorically excluding all 
15

objectively qualifying juvenile homicide offenders who have not

received a positive parole vote from minimum security placement 

contravenes the 2014 amendment to G. L. c. 119, § 72B, and 

violates the petitioners' "meaningful opportunity for release 

based on demonstrated maturity and rehabilitation," Diatchenko 

II, 471 Mass. at 20, quoting Graham, 560 U.S. at 75, as

guaranteed by the Eighth and Fourteenth Amendments and arts. 12 

and 26.

In October, 2015, the department filed an opposition to the

petition, asserting (1) that the commissioner or her designee 

has discretion to reject a juvenile homicide offender's request 

to be placed in a minimum security facility; (2) that department

"practice" forbids any prisoner serving a life sentence with a 

possibility of parole from being placed in minimum security 

"unless and until" the prisoner has obtained a positive parole

vote, and (3) that the department treats "juvenile murderers" 

who wish to be placed in a minimum security facility "no 

differently" from adult offenders, notwithstanding the 

Legislature's 2014 amendment to §72B.

Following the filing of a response by the petitioners, and 

two hearings before the single justice, the matter was reserved

and reported to the full court.

Discussion. The petitioners argue that the department's 

practice of requiring a positive parole vote prior to placing 
16

juvenile homicide offenders in minimum security contravenes the 

plain language of § 72B. In their view, the "qualifying" event 

for minimum security placement is the inmate's objective 

classification score. Thus, by requiring a positive parole 

vote, the department has added a condition to the statute that 

the Legislature did not intend. Moreover, the petitioners 

argue, where the positive parole vote requirement is not a 

component of a statute, regulation, or the objective point base 

classification system, the department may not invoke 

discretionary placement restrictions to effectuate a practice 

otherwise proscribed by § 72B. The petitioners also assert that 

the department's stated reasons for requiring juvenile homicide

offenders to receive a positive parole vote prior to placement 

in a minimum security facility are not supported by the record.8 

Lastly, they argue that the department's practices violate the 

petitioners' constitutional right to a "meaningful opportunity" 

to obtain release on parole, because the parole board will not 

grant a parole permit to a juvenile homicide offender who has 

not successfully proved himself or herself in a minimum security 

facility.

The respondents counter that the petitioners' reading of 

§ 72B conflates the provisions of the statute and thus 

 

8 Because we conclude that the classification practice of 

the department violates G. L. c. 119, § 72B, we do not address 

this contention.
17

misinterprets what it requires. The department also 

acknowledges that it is department "practice" to "not permit 

those serving a life sentence to be housed in minimum security 

unless and until they receive a positive parole vote." 

According to the respondents, this practice has been in place 

since 2006, and is based on the department's efforts to balance 

resource allocation (reserving beds in minimum security 

facilities for those inmates who have dates of discharge to the 

community) and inmate risk management (preventing escapes and 

further crimes while on escape). Despite this admitted 

practice, the respondents contend that juvenile homicide 

offenders are being provided with a "meaningful opportunity to 

obtain parole release based on demonstrated maturity and 

rehabilitation" because several juvenile homicide offenders have

received a positive parole vote and been placed in minimum 

security facilities.9

1. Section 72B. The parties' dispute over the 

department's classification practices turns largely on their 

divergent interpretations of G. L. c. 119, § 72B. Accordingly, 

we begin our analysis by considering the language of the 

statute. "[S]tatutory language should be given effect 

 

9 As discussed infra, since Diatchenko v. District Attorney 

of Suffolk County, 466 Mass. 655 (2013) (Diatchenko I), was 

decided, eleven juvenile homicide offenders originally sentenced 

to life without the possibility of parole have been granted 

parole by the parole board.
18

consistent with its plain meaning and in light of the aim of the 

Legislature unless to do so would achieve an illogical result" 

(citation omitted). Commonwealth v. Parent, 465 Mass. 395, 409 

(2013). "Courts must ascertain the intent of a statute from all 

its parts and from the subject matter to which it relates, and 

courts must interpret the statute so as to render the 

legislation effective, consonant with reason and common sense." 

Commonwealth v. George W. Prescott Publ. Co., 463 Mass. 258, 264 

(2012).

Section 72B contains two separate decrees: first, the 

department may not limit youthful offenders' access to certain 

programming solely because of their crimes or the duration of 

their incarceration; and second, the department may not 

categorically bar, based on a life sentence, the placement of a 

youthful offender in minimum security where the individual 

qualifies for such placement based on objective measures. See 

G. L. c. 119, § 72B.

Quoting our decision in Okoro, 471 Mass. at 62, the 

petitioners ask us to interpret § 72B as requiring the 

department to ensure "that youthful offenders who are 

incarcerated are not restricted in their ability to take part in 

educational and treatment programs, or to be placed in a minimum 

security facility, solely because of the nature of their 

criminal convictions or the length of their sentences" (footnote 
19

omitted). This language was used in Okoro merely to summarize 

the statute, and not to interpret it definitively. Id. The 

petitioners' reading of it, however, would import the mandate of 

the first statutory provision into the second, and prohibit the 

department from considering the petitioners' crimes or duration 

of their incarceration in rendering a classification decision. 

We disagree, and conclude that the criteria in the first 

sentence -- the inmate's crime or duration of their 

incarceration -- do not carry over into the second sentence.

"[W]here the Legislature has carefully employed a term in one 

place and excluded it in another, it should not be implied where 

excluded" (citation omitted). Commissioner of Correction v. 

Superior Court Dep't of the Trial Court for the County of 

Worcester, 446 Mass. 123, 126 (2006). We cannot ignore the 

Legislature's use of different criteria in each sentence, and do 

not read the statute to provide that the department may not

consider a youthful offender's crimes or the duration of his or 

her sentence in determining whether that individual qualifies 

for placement in minimum security.

The language of § 72B plainly states that the department

may not absolutely bar juvenile homicide offenders from 

placement in minimum security housing based on the fact that 
20

they are serving a life sentence.10 We reject the petitioners'

argument that an individual's receipt of an objective 

classification score qualifying for minimum security 

classification requires the department to so classify that 

individual. It is apparent from regulatory framework that the 

initial objective classification score is a recommendation, and 

not a mandate, and thus merely qualifies an inmate for 

consideration for classification in minimum security.

It follows, then, that § 72B requires the department to

make an individualized determination of a juvenile homicide 

offender's suitability for placement in minimum security.11 As

the petitioners concede, however, the department's consideration 

 

10 Although we need not resort to extrinsic aids to discern 

the Legislature's intent, the legislative history of G. L. 

c. 119, § 72B, also supports our interpretation. An earlier 

version of the bill stated: "If the department of correction 

and the department of youth services objectively determine that 

the person qualifies for placement in a minimum security 

correctional facility, the placement shall not be prohibited on 

the nature or status of the offense or the age of the person at 

the time of the commission of the crime." See 2014 Senate Doc.

No. 2258, § 2. By removing the terms "nature or status of the 

offense" and "age of the person at the time of the commission of 

the crime," it appears that the Legislature did not intend to 

prohibit the department from considering these factors in its 

classification determinations.

11 This conclusion is consistent with the department's own 

regulations, which emphasize that classification is an 

individualized process. See 103 Code Mass. Regs. § 420.08 

(classification process "shall provide an opportunity for the 

reception staff members to become acquainted with each inmate 

through individual assessment, testing, and structured 

interviews").
21

of individuals may include the measures embodied in 

discretionary override codes R and S, that is, the facts of the 

inmate's crime or the prior criminal history of a juvenile 

homicide offender insofar as these criteria bear on their

suitability for classification in minimum security. Moreover, 

by permitting the department to consider such factors, the 

Legislature ensured that the twin goals of the classification

process -- promoting "public safety" and "the responsible 

reintegration of offenders," see 103 Code Mass. Regs. § 420.07 -

- are furthered, rather than undermined.

2. Department practice. Having concluded that § 72B 

requires the department to make individualized, case-by-case 

classification determinations for juvenile homicide offenders, 

we consider whether the department's practice of requiring a 

positive parole vote prior to placement in minimum security, as

well as its use of codes R and S to effectuate this practice, 

violates the language of the statute. We conclude that it does

because it fails to undertake the type of individualized 

evaluation contemplated by the statute.

Section 72B prohibits the department from categorically 

barring a juvenile homicide offender based on a life sentence, 

and requires it to consider them for minimum security if and 

when their objective (point-based) score warrants such 

consideration. As discussed, such consideration must take place 
22

on a case-by-case basis. However, by the department's own 

stated practice, the petitioners have not received an 

individualized evaluation as to their suitability for minimum

security classification because the department will not consider 

them unless and until they receive a positive parole vote. 

Additionally, although the petitioners concede that the 

department may consider the criteria embodied in discretionary 

override codes R and S, in rendering its decision, we agree with 

the petitioners that the record supports the conclusion that the 

department is currently using the codes solely as a means to 

effectuate its policy of requiring a positive parole vote. 

Indeed, the department acknowledges that the same juvenile 

offender whose placement in minimum security is blocked on the 

basis of a discretionary override would otherwise become 

transferable to minimum security on receipt of a positive parole 

vote.

The department's current classification practice therefore 

violates § 72B because it precludes the petitioners from being 

given the individualized consideration for minimum security due 

to them based on the language of the statute and the 

department's own regulations. We note that, according to the 

objective point base classification manual, a "rationale for any 

discretionary override MUST be provided" (emphasis in original). 

We agree with the petitioners that the provided rationale must 
23

go beyond the mere recitation of the discretionary override. 

Otherwise, the use of the codes to block objectively qualifying 

youthful offenders from minimum security who have not received a 

positive parole vote amounts to a categorical bar based on a 

life sentence, as proscribed by § 72B.

Generally speaking, the classification process vests the 

commissioner or her designee with broad discretion to classify 

inmates. See Hastings v. Commissioner of Correction, 424 Mass. 

46, 49-50 (1997). Therefore, nothing in this opinion should be 

construed to prohibit the department from considering a variety 

of factors in reaching a classification decision, including 

considerations such as public safety and resource allocation. 

However, in light of the language and purpose of § 72B, we 

conclude that the department must memorialize its rationale for 

denying placement in minimum security in writing, and may not

preclude objectively qualifying juvenile homicide offenders from 

being considered for minimum security solely because they have

not received a positive parole vote. Nor may the department use 

discretionary override codes R and S to effectuate this policy. 

Instead, the department must individually consider each inmate's 

suitability for classification in minimum security and provide a 

written explanation for its decision.12

 

12 This case is before us on the reservation and report of 

the single justice, pursuant to our general superintendence 
24

3. Constitutional challenges. The petitioners also 

contend that the department's practice of not classifying 

juvenile homicide offenders to minimum security unless and until 

they receive a positive parole vote violates the petitioners'

constitutionally protected right to a meaningful opportunity to 

obtain release on parole.

13 Since December, 2013, when 

 

powers under G. L. c. 211, § 3. Nothing in this opinion should 

be interpreted as creating a right of judicial review of an 

individual decision by the commissioner or her designee denying 

classification in minimum security, which is final and cannot be 

appealed. See 103 Code Mass. Regs. § 420.08(3)(i).

13 In their petition to the single justice, the petitioners 

argued that the department's classification practices violate 

juvenile homicide offenders' constitutionally protected right to 

a meaningful opportunity for parole release based on 

demonstrated maturity and rehabilitation as guaranteed by the 

Eighth and Fourteenth Amendments to the United States 

Constitution and arts. 26 and 12 of the Massachusetts 

Declaration of Rights. The single justice used the same 

language in reporting the matter to the full court.

Our prior decisions addressing the right to a "meaningful 

opportunity to obtain release" have not discussed the right's 

origin as deriving from the language of either the Fourteenth 

Amendment or art. 12, but rather from the prohibition against 

cruel and unusual punishments in both art. 26 of the 

Massachusetts Declaration of rights and the Eighth Amendment. 

See, e.g., Diatchenko I, 466 Mass. at 668. The petitioners do 

not make any argument -- in either their petition below or in 

their appellate brief -- as to whether either the Fourteenth 

Amendment or art. 12 creates a special liberty interest for 

juvenile homicide offenders serving life sentences with a 

possibility of parole. Accordingly, our discussion here

addresses an individual's right to a "meaningful opportunity to 

obtain release" only as provided by the Eighth Amendment and 

art. 26. See Schulman v. Attorney Gen., 447 Mass. 189, 199 n.2

(2006) ("issues not briefed and argued should not be decided, 

especially when a question of constitutional law . . . is 

involved").
25

Diatchenko I was decided, eleven juvenile homicide offenders 

originally sentenced to life without the possibility of parole 

have been granted parole by the parole board. In each case, 

these individuals were not immediately released to the community 

on a parole permit, but rather were required to meet various 

conditions, including having spent a specified period of 

incident-free time in a minimum security facility. The 

petitioners argue that the department's practice of prohibiting 

placement in minimum security unless and until a juvenile 

homicide offender receives a positive parole vote effectively 

extends the life sentences of juvenile homicide offenders who 

are eligible for parole by delaying indefinitely their ability 

to begin the period of time that they will be required to serve 

in a minimum security facility. This, in the petitioners' view, 

prevents juvenile homicide offenders from "prov[ing] themselves 

in minimum," which in turn prevents such juveniles from 

obtaining a meaningful hearing in the first place. We disagree

that any constitutionally protected interest is implicated by 

the department's practice.

In Diatchenko I, we held that the mandatory imposition of a 

life sentence without parole violates the prohibition against 

cruel and unusual punishments in both art. 26 and the Eighth 

Amendment. Diatchenko I, 466 Mass. at 668, citing Miller v. 

Alabama, 132 S. Ct. 2455, 2467-2469 (2012). We also held that a 
26

juvenile homicide offender who is convicted of murder in the 

first degree and receives a mandatory sentence of life in prison 

must be afforded a "meaningful opportunity to obtain release 

based on demonstrated maturity and rehabilitation," and this 

opportunity must come through consideration for release on 

parole. Diatchenko I, supra at 674, quoting Graham, 560 U.S. at 

75.

In Diatchenko II, we further determined that, in order to 

ensure that a juvenile homicide offender's opportunity for 

release through parole is meaningful, he or she must, in 

connection with an initial petition for release before the 

parole board, be afforded certain procedural protections, 

including access to counsel, access to funds for counsel and for 

expert witnesses if he or she is indigent, and, in limited 

circumstances, an opportunity for judicial review of the 

decision on their parole applications. Diatchenko II, 471 Mass. 

at 14. It appears that the petitioners now seek to expand this 

right further by asking the court to hold that juvenile homicide 

offenders have a constitutionally protected interest in being 

released to the community at the conclusion of their minimum 

duration of confinement. We decline to do so.

There is "no constitutional or inherent right of a 

convicted person to be conditionally released before the 

expiration of a valid sentence." Greenholtz v. Inmates of the 
27

Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979). Accord 

Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836 (1996). 

Accordingly, in Diatchenko I, 466 Mass. at 674, we made clear 

that "[o]ur decision should not be construed to suggest that 

individuals who are under the age of eighteen when they commit 

murder . . . should be paroled once they have served a 

statutorily designated portion of their sentences." The 

petitioners' argument, however, amounts to a request to the 

court to find that juvenile homicide offenders have a 

constitutionally protected expectation to be released to the 

community after serving the statutorily prescribed portion of 

their sentences. The case law is clear, however, that no such 

expectation exists. See id. See also Graham, 560 U.S. at 75

(juvenile homicide offender is afforded "meaningful opportunity 

to obtain release" insofar as Eighth Amendment "prohibit[s] 

States from making the judgment at the outset that those 

offenders never will be fit to reenter society"; however, "[t]he 

Eighth Amendment does not foreclose the possibility that [a 

juvenile convicted of murder in the first degree] will remain 

behind bars for life" [emphasis added]).

Moreover, there is nothing in the record before us to 

indicate that the parole board considers a juvenile homicide 

offender's security level in determining parole suitability, as 

evidenced in the criteria of the parole board in issuing parole 
28

decisions for lifers, as well as the written decisions of the 

parole board for juvenile homicide offenders. See Parole Board, 

Guidelines for Life Sentence Decisions, 

http://www.mass.gov/eopss/agencies/parole-board/guidelines-forlife-sentence-decisions.html [https://perma.cc/F6NZ-WUC3]. To 

the contrary, the decision to deny parole to petitioner Golston 

indicates that the parole board denied parole on the bases of 

Golston's lack of specific anger management and violence 

reduction programming, as well as the parole board's finding 

that Golston's parole plan was formative and not yet viable. 

Similarly, the decision as to petitioner Roberio indicates that 

the parole board denied parole because Roberio had failed to 

pursue rehabilitative programming to address his issues of 

substance abuse, anger, and violence, leaving the board with a 

"serious concern of whether he still presents a risk of harm to 

the community, and whether his release is compatible with the 

best interests of society."14

Accordingly, we reject the petitioners' constitutional 

challenge to the department's practice. Although the department 

may not continue to bar consideration of juvenile homicide 

offenders from classification in minimum security solely on the 

basis of their failure to receive a positive parole vote, the

 

14 The petitioner Timothy Deal will not be eligible for 

parole until 2017.
29

practice does not amount to a constitutional violation because 

there is no constitutionally protected expectation that a 

juvenile homicide offender will be released to the community 

after serving a statutorily prescribed portion of his or her

sentence. See Diatchenko I, 466 Mass. at 674.

Conclusion. For these reasons, we conclude that the 

department's current practice of using discretionary overrides 

to block objectively qualifying juvenile homicide offenders from 

placement in a minimum security facility unless and until the 

juvenile has received a positive parole vote contravenes the 

language and purpose of G. L. c. 119, § 72B, because it 

forecloses the individualized consideration of an inmate's 

suitability for classification in minimum security. The matter 

is remanded to the county court, where the single justice will 

enter a judgment consistent with this opinion.

So ordered.