From Homicidal Youths to Reformed Adults: Parole Hearing Procedures for Juvenile Homicide Offenders in Diatchenko v. District Attorney for the Suffolk District

IntroductionOn May 9, 1981, seventeen-year-old Gregory Diatchenko stabbed Thomas Wharf to death near Kenmore Square in Boston.1 A jury convicted Diatchenko of murder in the first degree and sentenced him to a mandatory term of life imprisonment without the possibility of parole.2 Five years later, on July 29, 1986, Jeffrey Roberio, also seventeen, beat and strangled seventy-nine year old Lewis Jennings to death.3 As with Diatchenko, a jury found Roberio guilty of murder in the first degree and sentenced him to life in prison without the possibility of parole.4Nearly thirty years after Diatchenko's and Roberio's convictions, the United States Supreme Court decided Miller v. Alabama, holding that sentencing a juvenile to life without parole is a violation of the Eighth Amendment's "prohibition on 'cruel and unusual punishments.'"5 Consequently, Diatchenko filed a petition for post-conviction relief, seeking retroactive application of Miller, with the Supreme Judicial Court of Massachusetts ("Diatchenko IF)6 The court held that Miller had retroactive application for cases on collateral review and that sentencing juvenile homicide offenders to life without parole was an unconstitutionally disproportionate punishment in violation of article XXVI, part 1 of the Massachusetts Constitution's prohibition on "cruel or unusual punishments."7The holding in Diatchenko II acknowledged that giving life without parole was a disproportionate punishment considering that the offense was committed by a juvenile, yet it left open the issue concerning how a juvenile homicide offender's opportunity for release on parole would be protected.8 To ensure that their opportunity for release through parole would be meaningful, Diatchenko and Roberio filed petitions with the Supreme Judicial Court of Massachusetts ("Diatchenko III") arguing that access to counsel, funds for expert witnesses, and an opportunity for judicial review of the decision on their parole applications were necessary.9 In Diatchenko III, the court's majority agreed and held that, given the significance of a mandatory life sentence to juvenile homicide offenders, the parole process takes on a constitutional liberty interest.10 Thus, juvenile homicide offenders should have access to counsel, fees for expert witnesses, and judicial review of parole board decisions.11 The dissent argued that, by imposing additional procedural protections on the parole process, the court usurped the executive power's regulation of parole hearings, incorporating it into the sentencing process.12Part I of this Comment briefly summarizes the factual and procedural history of Diatchenko III. Part II discusses the reasoning of the majority in holding that parole hearings for juvenile homicide offenders require due process procedural protections in contrast to the dissent's opinion, which argued that parole is an executive action separate and distinct from a judicial sentence. Finally, Part III argues that the approach taken by the majority was appropriate given the inherent differences between juveniles and adults.I. Juvenile Homicide Offenders and the Path to ParoleOn the evening of May 9, 1981, Boston police officer Peter Jerome responded to a radio call at approximately 9:45 p.m. directing him to Kenmore Square.13 Upon arriving, the officer found Thomas Wharf "unconscious and bleeding in the driver's seat of a red Cadillac automobile."14 At trial the paramedic on the scene "described Wharf's body as 'filleted open' . . . and when the paramedics opened the driver's-side door, more blood poured from [the victim's] chest onto the ground."15 At 10:40 p.m. Thomas Wharf was declared dead.16 An autopsy showed that Wharf had "nine stab wounds, including one penetrating [his] left lung . . . and another piercing [his] heart."17 Three witnesses to the crime-Ronald Gray, Lori Pearlman and James Ryan-testified at trial.18 At around 10:15 p.m. that night, while waiting at a public transportation stop, James Ryan saw a young light-haired man with a brown leather jacket walking away from the scene of the murder. …