Diatchenko v. District Attorney for the Suffolk District Commonwealth v. Roberio

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SJC-11688
SJC-11689

GREGORY DIATCHENKO & another1 vs. DISTRICT ATTORNEY FOR THE
SUFFOLK DISTRICT & others.2

COMMONWEALTH vs. JEFFREY S. ROBERIO.

Suffolk. November 6, 2014. - March 23, 2015.

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

Constitutional Law, Sentence, Parole, Assistance of counsel,
Judicial review. Due Process of Law, Sentence, Parole,
Assistance of counsel. Parole. Practice, Criminal,
Sentence, Parole, Assistance of counsel. Witness, Expert.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 19, 2013.

The case was reported by Botsford, J.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 10, 2014.

The case was reported by Botsford, J.

1
Jeffrey S. Roberio, intervener.
2
Chair of the Massachusetts Parole Board (board) and
Commissioner of Correction (commissioner).
 2

Benjamin H. Keehn, Committee for Public Counsel Services,
for Gregory Diatchenko & another.
Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.
Amy L. Karangekis, Assistant Attorney General, for
Massachusetts Parole Board.
John P. Zanini, Assistant District Attorney, for District
Attorney for the Suffolk District.
The following submitted briefs for amici curiae:
Kenneth J. Parsigian for Citizens for Juvenile Justice &
others.
David J. Apfel, Kristen A. Kearney, Kunal Pasricha, &
Katherine Connolly Sadeck for Campaign for the Fair Sentencing
of Youth & others.
Afton M. Templin for Massachusetts Association of Criminal
Defense Lawyers.

BOTSFORD, J. In Diatchenko v. District Attorney for the

Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), this court

considered the constitutionality of a life sentence without

parole when applied to a juvenile homicide offender,3 and,

following Miller v. Alabama, 132 S. Ct. 2455 (2012), determined

that the mandatory imposition of such a sentence violates the

prohibition against cruel and unusual punishments in the Eighth

Amendment to the United States Constitution as well as art. 26

of the Massachusetts Declaration of Rights.4 Diatchenko I, supra

3
The term "juvenile homicide offender" refers in this
opinion 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.
4
This court also concluded in Diatchenko v. District
Attorney for the Suffolk Dist., 466 Mass. 655, 671 (2013)
(Diatchenko I), that the discretionary imposition of a sentence
 3

at 668. The court held that a 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. Id. at 674, quoting Graham

v. Florida, 560 U.S. 48, 75 (2010).

The court's opinion in Diatchenko I has given rise to

questions concerning how the opportunity for release on parole

will be protected for juvenile homicide offenders.

Specifically, Gregory Diatchenko and Jeffrey S. Roberio,5 each of

whom was convicted of murder in the first degree many years ago

for a crime committed when he was seventeen years old,6 argue

that in order to ensure that their opportunity for release

through parole is meaningful, they must have, in connection with

a petition for release before the parole board (board), access

to counsel, access to funds for counsel and for expert witnesses

of life in prison without parole violates art. 26 of the
Massachusetts Declaration of Rights, which forbids the
infliction of "cruel or unusual punishments."
5
As discussed infra, in September of 2014, Roberio moved to
intervene as a petitioner in Gregory Diatchenko's case, and the
motion was allowed.
6
For further discussion of the crimes for which Diatchenko
and Roberio were convicted, see Commonwealth v. Diatchenko, 387
Mass. 718 (1982), and Commonwealth v. Roberio, 428 Mass. 278
(1998), S.C., 440 Mass. 245 (2003).
 4

because they are indigent, and an opportunity for judicial

review of the decision on their parole applications. For the

reasons discussed below, we agree in substance with Diatchenko

and Roberio.7

1. Procedural history. a. Diatchenko. In March of 2013,

Diatchenko filed the present action in the county court, seeking

a declaration that, because he was convicted of murder in the

first degree and was seventeen at the time he committed the

offense, his mandatory sentence of life without parole was

unconstitutional following the United States Supreme Court's

decision in Miller, 132 S. Ct. at 2469. The single justice

reported the case to the full court.

The court issued its opinion in December, 2013. See

Diatchenko I, 466 Mass. at 655. Having determined that juvenile

homicide offenders could not validly be sentenced to life in

prison without parole, the court turned to the task of finding

an appropriate way to achieve a constitutionally permissible

result, while still recognizing the Legislature's primary role

7
We acknowledge the two amicus briefs submitted in support
of Diatchenko and Roberio by Citizens for Juvenile Justice, the
Children's League of Massachusetts, Prisoners' Legal Services of
Massachusetts, the Campaign for the Fair Sentencing of Youth,
the Justice Resource Institute, the Coalition for Effective
Public Safety, the Lawyers' Committee for Civil Rights and
Economic Justice, Professor Daniel Medwed, and the Hon. Gail
Garinger (ret.); as well as the amicus brief submitted in
support of Diatchenko by the Massachusetts Association of
Criminal Defense Lawyers.
 5

in establishing sentences for criminal offenses. The approach

we took was to declare invalid, as applied to juvenile homicide

offenders, certain language in G. L. c. 265, § 2, creating an

exception to parole eligibility for those convicted of murder in

the first degree and leaving in full effect the remainder of the

statute that imposed a mandatory sentence of life imprisonment.

See Diatchenko I, supra at 673. The result was that any

juvenile offender previously convicted of murder in the first

degree, including Diatchenko, became eligible for parole after

serving fifteen years of his or her sentence. See id. See also

G. L. c. 265, § 2, as amended through St. 1982, c. 554, § 3;

G. L. c. 127, § 133A, as amended through St. 1965, c. 766, § 1.

Because Diatchenko had already served approximately thirty-one

years of his life sentence, he became eligible for parole

immediately. See Diatchenko I, supra.8

Pursuant to the opinion's rescript, the case was remanded

to the single justice with the direction to enter a judgment

8
In Commonwealth v. Brown, 466 Mass. 676 (2013), decided
the same day as Diatchenko I, the remedy in Diatchenko I was
extended to include juvenile offenders sentenced to life in
prison for murder in the first degree going forward, such that
they also are entitled to a parole hearing. Brown, supra at
688. The Legislature has since responded to these decisions by
amending G. L. c. 265, § 2, and G. L. c. 127, § 133A, to
incorporate into the statutes parole eligibility for juvenile
offenders convicted of first-degree murder. See G. L. c. 265,
§ 2, as amended through St. 2014, c. 189, § 5; G. L. c. 127,
§ 133A, as amended through St. 2014, c. 189, § 3.
 6

consistent with the court's opinion in the case and to "take

such further action as is necessary and appropriate." On

February 27, 2014, Diatchenko filed a motion for entry of a

judgment that would include a number of orders of specific

relief, and also filed a motion for funds to retain an expert in

connection with his hearing before the board. The district

attorney for the Suffolk District (district attorney), the chair

of the board, and the Commissioner of Correction (commissioner)

filed oppositions. After a hearing, the single justice reserved

and reported Diatchenko's case as well as Roberio's case, next

discussed, to the full court.

In connection with the Diatchenko case, the single justice

reported the following questions:

"1. Whether, in order to ensure that the petitioner and
other similarly situated juvenile homicide offenders
receive the 'meaningful opportunity to obtain release' that
is required by the court's opinion [in Diatchenko I], they
must be afforded:

"a. the right to assistance of counsel at their parole
hearings, including the right to have counsel appointed if
they are indigent; and

"b. the right to public funds, if they are indigent, in
order to secure reasonably necessary expert assistance at
the hearings.

"2. Whether, in order to ensure that the petitioner and
other similarly situated juvenile homicide offenders
receive the 'meaningful opportunity to obtain release' that
is required by the court's opinion, there must be an
opportunity for the petitioner or a similarly situated
individual who is denied parole to obtain judicial review
 7

of the parole board's decision, and if so, what form the
judicial review will take."

b. Roberio. Following the Supreme Court's decision in

Miller, in June, 2013, Roberio sought relief from his mandatory

sentence of life without parole by moving in the Superior Court

for resentencing under Mass. R. Crim. P. 30, as appearing in 435

Mass. 1501 (2001). He also filed a motion for funds pursuant to

rule 30 (c) (5) to pay an expert neuropsychologist for

assistance in connection with his motion for resentencing. The

motion for funds was allowed, but Roberio's motion for

resentencing was stayed pending the release of our decision in

Diatchenko I, at which point he was resentenced to life with

parole eligibility after fifteen years in prison. Because

Roberio had been in prison for more than fifteen years, he was

immediately eligible for parole.

On February 27, 2014, Roberio filed another motion for

funds pursuant to rule 30 (c) (5) to retain the services of a

second neuropsychologist because the previous neuropsychologist

had died; Roberio sought to retain the expert in order to

continue to seek to have his sentence reduced to a term of years

or, alternatively, to assist him in connection with seeking

parole. A second Superior Court judge allowed the motion after

hearing, but stayed the order to permit the Commonwealth to seek

relief from the single justice. On March 10, 2014, the
 8

Commonwealth filed a petition for relief under G. L. c. 211,

§ 3, challenging the orders allowing Roberio's requests for

funds to retain the experts. As indicated, on May 23, 2014, the

single justice reserved and reported the Roberio case to the

full court for decision, to be paired with the Diatchenko case.

In September, 2014, Roberio filed a motion to intervene in the

Diatchenko case. The single justice allowed the motion.

2. Suggestion of mootness. "Litigation ordinarily is

considered moot when the party claiming to be aggrieved ceases

to have a personal stake in its outcome." Acting Supt. of

Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000),

quoting Attorney Gen. v. Commissioner of Ins., 403 Mass. 370,

380 (1988). The chair of the board, the commissioner, and the

district attorney suggest that the case is moot with respect to

Diatchenko because on October 31, 2014, the board approved his

application for parole, and therefore, they contend, Diatchenko

no longer has a personal stake in the resolution of the present

case. See Massachusetts Parole Board, No. W38579, at 1 (Oct.

31, 2014). However, Diatchenko has not yet been released on

parole; rather, the board required that Diatchenko first spend

twelve months in a lower security prison before he may be

released, so that he may "transition gradually to the

community." Id. at 7. Since Diatchenko has not yet been

released, he continues to have a personal stake in the outcome
 9

of the case, and therefore his petition is not moot. Moreover,

Roberio has been permitted to intervene in the Diatchenko case,

and he has not yet had a parole hearing. Even if the case were

moot as to Diatchenko, therefore, it is not moot with respect to

Roberio. We proceed to consider the reported questions and

related claims raised on their merits.

3. Discussion. a. Right to assistance of counsel. The

first reported question asks whether a juvenile homicide

offender must be afforded the assistance of counsel in

connection with his or her initial parole hearing.9 It is

important to view the question in context. The court's

conclusion in Diatchenko I, that juvenile homicide offenders

could not permissibly be subjected to life in prison without any

opportunity for parole, flowed from the "fundamental '"precept

of justice that punishment for crime should be graduated and

proportioned" to both the offender and the offense,'" a central

tenet of the Eighth Amendment and of art. 26. Diatchenko I, 466

Mass. at 669, quoting Miller, 132 S. Ct. at 2463. Drawing from

the United States Supreme Court's recent decisions that focused

on the requirement of proportional sentencing of youth, and in

9
The reported questions do not specify the initial parole
hearing, but we understand that to be the intended focus, and
consider it as such. We therefore do not consider here whether
the procedural rights that we discuss in this opinion only apply
with respect to a juvenile homicide offender's initial parole
hearing.
 10

particular the decisions in Miller and Graham,10 Diatchenko I

observed that "children are constitutionally different from

adults for purposes of sentencing" and that the "distinctive

attributes of juvenile offenders" render suspect the traditional

justifications for imposing sentences of life without parole on

these individuals. Diatchenko I, supra at 670-671, quoting

Miller, supra at 2465. Therefore, in Diatchenko I, we held that

Diatchenko and all juvenile homicide offenders serving mandatory

life sentences deserve at least a "meaningful opportunity to

obtain release based on demonstrated maturity and

rehabilitation," and that accordingly, at the appropriate time,

they must be considered for parole suitability. Diatchenko I,

supra at 671, 674, quoting Graham, 560 U.S. at 75. In other

words, the conclusion we reached was that parole eligibility is

an essential component of a constitutional sentence under art.

26 for a juvenile homicide offender subject to mandatory life in

prison.11

10
In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), as
noted previously, the United States Supreme Court held that the
Eighth Amendment to the United States Constitution prohibits
mandatory sentences of life without parole for those who were
under the age of eighteen at the time they committed murder; in
Graham v. Florida, 560 U.S. 48, 75 (2010), the Court held that
those who committed a nonhomicide offense before the age of
eighteen can never receive such sentences.
11
Justice Spina's dissent argues that because Miller refers
specifically to the requirement of proportionality in
 11

In general, there is no constitutionally protected liberty

interest in a grant of parole. See Greenholtz v. Inmates of the

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

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

v. Massachusetts Parole Bd., 405 Mass. 384, 388 n.3 (1989).

However, the Supreme Court has acknowledged that in some cases,

a liberty interest in parole requiring at least some minimal due

process rights may derive from language in a State's parole

statute that creates a "protectible expectation of parole." See

Greenholtz, supra at 11-12 (statutory language and structure of

Nebraska parole statute created expectancy of release

constituting liberty interest entitled to protection of due

process clause). See also Board of Pardons v. Allen, 482 U.S.

369, 371-372, 381 (1987).

Here, G. L. c. 127, § 130, does not create an expectation

of release through parole, as Justice Spina's dissent points

out. See post at . Rather, what is at issue is art. 26's

"sentencing," unless a parole hearing is viewed as part of the
sentencing process, there can be no constitutional basis for the
procedural protections in parole hearings that the petitioners
seek. See post at . However, in concluding that all
juvenile homicide offenders must have access to a "meaningful
opportunity to obtain release," Diatchenko I identified under
art. 26 a substantive requirement concerning the nature of the
sentences that juvenile homicide offenders must receive. See
Diatchenko I, 466 Mass. at 671, 674, quoting Graham, 560 U.S. at
75. This requirement goes beyond the procedural issue that
Miller identified under the Eighth Amendment.
 12

requirement that a juvenile homicide offender serving a

mandatory life sentence be provided a meaningful opportunity to

obtain release, so that his or her sentence is not effectively

one of straight life in prison -- an outcome that art. 26

prohibits. In this context, where the meaningful opportunity

for release through parole is necessary in order to conform the

juvenile homicide offender's mandatory life sentence to the

requirements of art. 26, the parole process takes on a

constitutional dimension that does not exist for other offenders

whose sentences include parole eligibility.12

Thus, for example, in the case of an adult defendant

convicted of armed robbery and sentenced to a term of not less

than sixteen nor more than twenty years in prison, the defendant

12
The fact that the opportunity for release through parole
is essential in order to guarantee the constitutionality of a
juvenile homicide offender's mandatory sentence of life in
prison does not "transform[] the conduct of the parole hearing
into part of the sentencing process" in this context, as Justice
Spina's dissent suggests. See post at . Rather, for a
juvenile homicide offender -- as for virtually any offender
except an adult convicted of murder in the first degree -- the
offender's sentence is fixed at the time of sentencing, and the
opportunity to seek parole is merely a component of the sentence
that the offender receives from a judge. See Commonwealth v.
Cole, 468 Mass. 294, 298-299, 302 (2014). See also G. L.
c. 279, § 24. Our decision today does not undermine this
relationship between sentencing and parole, but rather explores
further the purpose that parole eligibility serves in the
context of a juvenile homicide offender’s mandatory life
sentence, and the additional protections that juvenile homicide
offenders require in order to ensure that that purpose is fully
achieved.
 13

would be eligible for parole in sixteen years,13 but if the

defendant were denied a meaningful opportunity for release on

parole, this would not render the sentence cruel or unusual and

therefore unconstitutional under art. 26. This is so because a

State has no obligation to provide a parole system, see

Greenholtz, 442 U.S. at 7-8, and if the defendant were to serve

his or her entire sentence of twenty years with no opportunity

at all for release on parole, that would have been a permissible

sentence for the judge to have imposed at the outset. The same

is not true for juvenile homicide offenders; under G. L. c. 265,

§ 2, they must be sentenced to life in prison, but art. 26 does

not allow either the Legislature or a judge to sentence such an

offender to life in prison without the possibility of parole.14

13
See G. L. c. 127, § 133; G. L. c. 279, § 24.
14
Justice Spina's dissent emphasizes, post at , that our
decisions in Diatchenko I, Brown, Commonwealth v. Ray, 467 Mass.
115 (2014), and Commonwealth v. Keo, 467 Mass. 25 (2014), each
applied the mandatory life sentence as specified in G. L.
c. 265, § 2, for murder in the first degree to juvenile homicide
offenders, albeit with the added instruction that these
offenders must be eligible for parole in accordance with the
parole statute. See Ray, supra at 140; Keo, supra at 46-47.
See also Diatchenko I, supra at 674 ("At the appropriate time,
it is the purview of the . . . board to evaluate the
circumstances surrounding the commission of the crime, including
the age of the offender, together with all relevant information
pertaining to the offender's character and actions during the
intervening years since conviction. By this process, a juvenile
homicide offender will be afforded a meaningful opportunity to
be considered for parole suitability"). From this, the dissent
concludes that these decisions stand for the propositions that
 14

We turn, then, to the question of what is procedurally

required in order to protect a juvenile homicide offender's

expectation of "a meaningful opportunity to obtain release based

on demonstrated maturity and rehabilitation." Graham, 560 U.S.

at 75.15 "The extent of procedural due process which must be

the existing parole procedures already afford a meaningful
opportunity for release and that juvenile homicide offenders are
"entitled only to the same parole hearing process as other
inmates." See post at . The dissent then contends that
today's decision improperly changes course and affords something
more. See post at . We disagree that we have changed
course. The cited decisions focused explicitly on the
substantive punishment that the defendants in those cases must
receive; in none of them did the court address any issue
regarding the nature of the parole process for juvenile homicide
offenders. See Diatchenko I, supra at 674 n.18 ("The heart of
this case is the constitutional validity of Diatchenko's
sentence for murder in the first degree"). Moreover, as
discussed infra, nothing in this opinion suggests that the
procedures described in G. L. c. 127, § 133A, no longer apply to
juvenile homicide offenders. Rather, today's decision
identifies additional procedural protections that must be
afforded to these offenders within the context of the existing
parole process, and an opportunity for a limited review of the
board's decision.

Similarly, today's decision in no way conflicts with the
Supreme Court's holdings in Miller and Graham. Each of those
cases addressed a specific context in which the Eighth Amendment
prohibits the imposition of a sentence of life without parole on
a juvenile offender. See Miller, 132 S. Ct. at 2471; Graham,
560 U.S. at 75. Parole was not the subject of Miller and
Graham; life without parole was. Those cases leave open the
question of how to ensure that Miller's and Graham's requirement
of a "meaningful opportunity to obtain release" for certain
juvenile offenders is to be realized. See Miller, supra at
2469; Graham, supra at 75.
15
We emphasize that the offender does not have a
protectable expectation that he or she necessarily will be
 15

afforded in any situation varies with the nature of the private

and governmental interests at stake . . . , but basic to due

process is the right to be heard 'at a meaningful time and in a

meaningful manner.'" Department of Pub. Welfare v. J.K.B., 379

Mass. 1, 3-4 (1979) (J.K.B.), quoting Armstrong v. Manzo, 380

U.S. 545, 552 (1965). This court has concluded, for example,

that an "indigent parent facing the possible loss of a child

cannot be said to have a meaningful right to be heard in a

contested proceeding without the assistance of counsel."

J.K.B., supra at 4. See Adoption of Meaghan, 461 Mass. 1006,

1007-1008 (2012) (where child's guardians filed petition for

adoption that, if granted, would terminate parental rights, both

nonconsenting indigent father and consenting child entitled to

appointed counsel to provide meaningful opportunity to be

heard). See also Guardianship of V.V., 470 Mass. 590, 592-593

(2015). For reasons we discuss next, the court's reasons for

deeming appointment of counsel necessary in this context are

instructive here: "[t]he petition may well involve complex

questions of fact and law, and require the marshalling and

rebutting of sophisticated expert testimony"; and "[p]rovision

released at a particular time, or even at all. See Diatchenko
I, 466 Mass. at 674. As discussed infra, the determination of
whether a juvenile homicide offender merits parole requires
consideration of many factors, which may or may not indicate
that release is appropriate for any particular individual.
 16

of appointed counsel not only safeguards the rights of the

parents, but it assists the court in reaching its decision with

the 'utmost care' and 'an extra measure of evidentiary

protection,' required by law." J.K.B., supra, quoting Custody

of a Minor (No. 1), 377 Mass. 876, 877, 884 (1979).

By statute, the board is required to determine an

individual's suitability for parole based on whether there is,

in the opinion of the board, a "reasonable probability that, if

[a] prisoner is released with appropriate conditions and

community supervision, the prisoner will live and remain at

liberty without violating the law and that release is not

incompatible with the welfare of society." G. L. c. 127, § 130.

The decision is a discretionary one for the board "with which,

if otherwise constitutionally exercised, the judiciary may not

interfere."16 See Commonwealth v. Cole, 468 Mass. 294, 302

(2014). In rendering a parole decision, the board is entitled

to obtain significant amounts of information, including the

following: recommendations from parole staff; the inmate's

prior criminal record; reports concerning the nature and

circumstances of the offense, such as police reports, grand jury

16
We return to this point infra. Nothing in this opinion
is intended to suggest that a judge or a court has the authority
to decide whether a particular juvenile homicide offender is
entitled to release on parole; judicial review is limited to the
question whether the board has "constitutionally exercised" its
discretion. Cole, 468 Mass. at 302.
 17

minutes, and trial transcripts; victim statements; information

about the inmate's physical, medical, mental, and psychiatric

status; disciplinary reports; classification reports; work

evaluations; and records of educational achievements. See 120

Code Mass Regs. § 300.05 (1997). See also G. L. c. 127, § 135.

The Department of Correction (department) maintains much of this

information in a so-called "six-part folder" for the individual

inmate that dates back to when the inmate was first detained in

a Massachusetts correctional institution. See 103 Code Mass.

Regs. §§ 155.07, 155.08 (2004). However, an inmate's access to

certain evaluative information contained in this folder as well

as other types of information available to the board may be

restricted. See 103 Code Mass. Regs. §§ 155.10, 157.08 (2005);

120 Code Mass. Regs. §§ 301.04, 500.06 (2001).

The full board conducts initial parole hearings for

individuals serving life sentences. 120 Code Mass. Regs.

§ 301.06(1) (2001). Notice of the hearing is provided to

government officials, including the Attorney General, the office

of the district attorney in whose district the inmate's sentence

was imposed, the chief of police of the municipality where the

crime was committed, and the Executive Office of Public Safety,

as well as to the victim or the victim's immediate family

members. See G. L. c. 127, § 133A; 120 Code Mass. Regs.

§ 301.06(3) (2001). During the parole hearing, the inmate or
 18

his or her representative has an opportunity to make an opening

statement, and then the inmate responds to questions from the

board. 120 Code Mass. Regs. § 301.06(4) (2001). The board also

may pose questions to any individual who appears in support of

the inmate. Id. After the inmate has completed his or her

presentation, the victim or victim's family has an opportunity

to speak, as do public officials, and the board is tasked with

eliciting "available evidence and testimony unfavorable to the

inmate upon any relevant subject." Id. The board may permit

the inmate to make a closing statement and may allow parties to

submit memoranda or other documentation after the hearing. 120

Code Mass. Regs. §§ 301.06(4), (5) (2001). The board permits

attorneys to represent inmates serving life sentences at their

parole hearings, although currently there is no provision for

providing counsel to those who are indigent.17 120 Code Mass.

Regs. § 300.08 (1997).

The question the board must answer for each inmate seeking

parole, namely, whether he or she is likely to reoffend,

requires the board to weigh multiple factors and consider a wide

17
The board and the commissioner recognize in their brief
that "certain benefits flow from access to counsel and experts,"
and therefore have taken no position on the first two questions
reported by the single justice in the Diatchenko case. The
district attorney for the Suffolk District, however, argues that
Diatchenko and Roberio are not entitled to counsel, funds to
retain counsel, or funds to retain experts.
 19

variety of evidence. In the case of a juvenile homicide

offender -- at least at the initial parole hearing -- the task

is probably far more complex than in the case of an adult

offender because of "the unique characteristics" of juvenile

offenders. Diatchenko I, 466 Mass. at 674. See Miller, 132 S.

Ct. at 2464. A potentially massive amount of information bears

on these issues, including legal, medical, disciplinary,

educational, and work-related evidence. In addition, although a

parole hearing is unlike a traditional trial in that it does not

involve direct and cross-examination of witnesses by attorneys,

because the inmate's parole application may well be opposed by

both the victim's family and public officials, it would be

difficult to characterize this as an uncontested proceeding.

Thus, like a proceeding to terminate parental rights, a

parole hearing for a juvenile homicide offender serving a

mandatory life sentence involves complex and multifaceted issues

that require the potential marshalling, presentation, and

rebuttal of information derived from many sources. See J.K.B.,

379 Mass. at 4. An unrepresented, indigent juvenile homicide

offender will likely lack the skills and resources to gather,

analyze, and present this evidence adequately.18 Furthermore,

18
A juvenile homicide offender -- who will have spent his
or her entire adult life and presumably some of his or her
teenage years in prison -- also will likely need to overcome a
 20

although parole hearings are not contested in the strictest

sense, the juvenile homicide offender seeking parole is likely

to be required to overcome arguments by both victims' family

members and government officials opposed to the offender's

release; the former of these parties may present as particularly

sympathetic, while the latter will likely have greater advocacy

skills than the offender seeking parole.19

In sum, given the challenges involved for a juvenile

homicide offender serving a mandatory life sentence to advocate

effectively for parole release on his or her own, and in light

of the fact that the offender's opportunity for release is

critical to the constitutionality of the sentence, we conclude

host of personal challenges in order to be able to present a
persuasive case for parole on his or her own. The challenges
could include a lack of formal education, as well as undeveloped
critical thinking and organizational skills; a history of
trauma, drug use, or mental illness; a limited ability to access
his or her own psychiatric or other record information regarding
the impact or context of this history; and balancing the need to
take responsibility and express remorse for the crime, while at
the same time pointing out all the factors that may have made
him or her, as a juvenile, less morally culpable. See Russell,
Review for Release: Juvenile Offenders, State Parole Practices,
and the Eighth Amendment, 89 Ind. L.J. 373, 419-421 (2014). An
especially significant challenge is likely to be the juvenile
offender's isolation from the outside community, making it
difficult to present a solid release plan. See id. at 421.
19
Additionally, as noted in the context of parental rights
termination cases, the availability of counsel in a case may
help to clarify for the decision maker some of the more
complicated issues involved. See Department of Pub. Welfare v.
J.K.B., 379 Mass. 1, 4 (1979).
 21

that this opportunity is not likely to be "meaningful" as

required by art. 26 without access to counsel.

Turning to the question of appointment of counsel for

indigent juvenile homicide offenders like Diatchenko and

Roberio, G. L. c. 211D, § 5, authorizes the Committee for Public

Counsel Services (committee) to maintain a system for

appointment of counsel at any stage of a criminal or noncriminal

proceeding in which "the laws of the commonwealth or the rules

of the supreme judicial court require that a person in such

proceeding be represented by counsel . . . provided . . . that

such person is unable to obtain counsel by reason of his

indigency." In light of our conclusion here that a juvenile

homicide offender serving a mandatory life sentence must have

access to counsel in connection with an initial application for

parole, § 5D offers legislative authorization and an appropriate

mechanism, through the work of the committee, for the

appointment of counsel for indigent juvenile homicide

offenders.20

20
We acknowledge that Quegan v. Massachusetts Parole Bd.,
423 Mass. 834 (1996), appears to contradict this conclusion.
See id. at 840 ("[The Committee for Public Counsel Services
(CPCS)] has no right, however, to represent an indigent prisoner
before the parole board unless there is a criminal proceeding
pending in which CPCS represents the prisoner and representation
of the prisoner-defendant before the parole board is appropriate
in order to protect the defendant's interests in the pending
criminal matter"). However, Quegan was decided in the context
 22

b. Access to funds for expert witnesses. The second

reported question concerns access to expert witnesses.21

Diatchenko and Roberio contend that, like access to counsel, it

is necessary, in order to secure a meaningful opportunity for

release, to have access to the assistance of expert witnesses.

Specifically, they argue that, as juvenile offenders convicted

of murder, they need experts to be able to explain and offer

opinions on issues concerning the relationship between

neurobiological immaturity and culpability in general as well as

factors relating to each of their individual and family

circumstances that may help both to explain past conduct and

assess future risk of reoffending. As this court acknowledged

in Diatchenko I, scientific research on adolescent brain

development has revealed "myriad significant ways that this

development impacts a juvenile's personality and behavior," some

of which suggest decreased moral culpability for certain

of a prisoner seeking parole who had no constitutionally
protected interest that entitled him to any due process
protections. See id. at 836, 839. Here, we have concluded that
a juvenile homicide offender is entitled to representation by
counsel in connection with the initial parole hearing. Legal
representation of an indigent juvenile homicide offender is thus
required by law. See id. at 839. In addition, the court in
Quegan was interpreting a section of G. L. c. 211D that has
since been repealed by the Legislature. See id.; G. L. c. 211D,
§ 14, repealed by St. 2011, c. 68, § 117.
21
The second reported question, in substance, raises many
if not all of the issues of concern to the Commonwealth in its
G. L. c. 211, § 3, petition in the Roberio case.
 23

juvenile homicide offenders or indicate a greater potential for

them to mature to a point where they no longer engage in the

behaviors that led to their crimes. See Diatchenko I, 466 Mass.

at 669-670.22 While the assistance of a psychologist or other

expert witness may not be necessary for every juvenile homicide

offender serving a life sentence who seeks parole, in some cases

such assistance may be crucial to the juvenile's ability to

obtain a meaningful chance of release.23

22
See also Miller, 132 S. Ct. at 2464-2465 (research on
adolescents showing "transient rashness, proclivity for risk,
and inability to assess consequences . . . both lessened a
child's 'moral culpability' and enhanced the prospect that, as
the years go by and neurological development occurs, his
'deficiencies will be reformed'" [citation omitted]); Graham,
560 U.S. at 68 ("[D]evelopments in psychology and brain science
continue to show fundamental differences between juvenile and
adult minds. For example, parts of the brain involved in
behavior control continue to mature through late adolescence").
23
Roberio's case offers a good example of how a juvenile
homicide offender's mental health and cognitive development
history could become a central issue in a parole hearing. At
Roberio's second murder trial, he presented a defense that, at
the time of his crime, he lacked the substantial capacity to
conform his conduct to the requirements of the law due to an
attention deficit hyperactivity disorder, an oppositional
defiant disorder, and a learning disability, all of which were
exacerbated by alcohol use. See Commonwealth v. Roberio, 440
Mass. 245, 247 (2003). A psychological reevaluation of Roberio
in 2013, when he was forty-four years old, suggested to the
neuropsychologist performing the evaluation that many of the
neurological and behavioral challenges Roberio experienced in
his teenage years had resolved. In these circumstances, it may
be essential that Roberio be in a position to present the board
with an expert opinion explaining the path of his apparent
growth in cognitive and emotional maturity and its relationship
to the question of whether he would be likely to reoffend if
 24

Neither G. L. c. 211D, § 5, nor any other statute expressly

authorizes the expenditure of funds for expert witnesses to

assist such a juvenile in the context of a parole hearing.

Roberio argues that the allowance of the fee request is

authorized under Mass. R. Crim. P. 30 (c) (5), which in relevant

part provides: "The court, after notice to the Commonwealth and

an opportunity to be heard, may also exercise discretion to

allow the defendant costs associated with the preparation and

presentation of a motion under this rule." However, we agree

with the Commonwealth that in its current form, rule 30 (c) (5)

does not authorize the allowance of funds to a defendant to

retain an expert witness in connection with a parole hearing,

because a parole hearing is not a "motion under this rule [i.e.,

rule 30]."24

It is also the case that G. L. c. 261, §§ 27A–27G, the

statutory provisions generally authorizing the payment of public

funds to cover costs and fees of indigent litigants, apply most

directly to costs and fees relating to court proceedings, not

proceedings before administrative or executive agencies like the

released on parole. As previously indicated, the board
acknowledges that the availability of expert witnesses may be
beneficial in the parole hearing context.
24
The motions specifically described in Mass. R. Crim. P.
30, as appearing in 435 Mass. 1501 (2001), are a motion under
rule 30 (a) for immediate release or to correct sentence and a
motion for a new trial under rule 30 (b).
 25

board. See, e.g., Doe, Sex Offender Registry Bd. No. 89230 v.

Sex Offender Registry Bd., 452 Mass. 764, 778-780 (2008). In

addition, this court has held that G. L. c. 261, § 27C (4),

provides "extra fees and costs," including funds for expert

witnesses,25 only in the context of a "prosecution, defense or

appeal." See, e.g., Commonwealth v. Davis, 410 Mass. 680, 684

(1991). See also Commonwealth v. Arriaga, 438 Mass. 556, 569

(2003). However, these cases have generally addressed the

availability of costs for indigent defendants pursuing

nonconstitutionally mandated procedures.26 Moreover, even where

a defendant's right to a particular postconviction procedure is

not constitutionally guaranteed, as is the case, for example,

with motions for a new trial, this court has still required that

indigent defendants nevertheless have meaningful access to

whatever postconviction proceedings the State makes available.

See Commonwealth v. Conceicao, 388 Mass. 255, 261-262 (1983).27

25
General Laws c. 267, § 27A, defines "extra fees and
costs" as including fees for expert assistance.
26
See Commonwealth v. Davis, 410 Mass. 680, 684 & n.7
(1991) (posttrial motion at issue was not "constitutionally
mandated," and therefore indigent defendant had "no
constitutional right to State funding to support investigations
in anticipation of such a motion").
27
Justice Spina's dissent notes that the result in
Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983), was that
counsel was not guaranteed for every defendant seeking to file a
motion for a new trial, but that provision of counsel to
 26

See also Reporter's Notes to Rule 30 (c) (5), Mass. Rules of

Court, Rules of Criminal Procedure, at 223 (Thomson Reuters

2014) (discussing 2001 amendments to rule 30 allowing judges

discretion to authorize costs for indigent defendants pursuing

postconviction procedures).

Because the postconviction proceeding at issue here, a

parole hearing for a juvenile homicide offender, is required in

order to ensure that an offender's life sentence conforms to the

proportionality requirements of art. 26, the proceeding is not

available solely at the discretion of the State. Rather, it is

constitutionally mandated, and as such, it requires certain

protections not guaranteed in all postconviction procedures. It

is appropriate, therefore, to construe G. L. c. 261, §§ 27A–27G,

to authorize a Superior Court judge, upon motion of a parole-

eligible, indigent juvenile homicide offender, to allow for the

indigent defendants was within the discretion of the motion
judge. See post at . While that is true, Conceicao
emphasized that because "a State has no obligation to provide a
procedure enabling defendants to make motions for a new trial,
it need not place poor and wealthy defendants on an absolutely
equal level in terms of the services available to them in
pursuing a motion for a new trial." Conceicao, supra. Since
art. 26 requires that juvenile homicide offenders have a
meaningful opportunity for release through parole, that
reasoning does not apply here. Rather, we cite Conceicao and
Reporter's Notes to Rule 30 (c) (5), Mass. Rules of Court, Rules
of Criminal Procedure, at 223 (Thomson Reuters 2014), for the
premise that judges have discretion to authorize costs to
defendants when necessary to guarantee meaningful access to
postconviction procedures.
 27

payment of fees to an expert witness to assist the offender in

connection with his or her initial parole proceeding in certain

limited contexts -- specifically, where it is shown that the

juvenile offender requires an expert's assistance in order

effectively to explain the effects of the individual's

neurobiological immaturity and other personal circumstances at

the time of the crime, and how this information relates to the

individual's present capacity and future risk of reoffending.

The judge may exercise discretion to do so when the judge

concludes that the assistance of the expert is reasonably

necessary to protect the juvenile homicide offender's meaningful

opportunity for release.28

c. Availability of judicial review. The third reported

question asks whether there must be an opportunity for judicial

review of a decision denying parole to a juvenile homicide

offender and, if so, what form judicial review will take. The

board, the commissioner, and the district attorney argue that

art. 30 of the Massachusetts Declaration of Rights prohibits

judicial review in this context. Article 30 requires strict

separation of judicial and executive powers, and the power to

28
We request this court's standing advisory committee on
the rules of criminal procedure to propose a procedure that will
permit an indigent juvenile homicide offender to seek funds for
an expert witness or witnesses to support the offender's
requests for parole, consistent with this opinion.
 28

grant parole, being fundamentally related to the execution of a

prisoner's sentence, lies exclusively within the province of the

executive branch. See Cole, 468 Mass. at 302-303; Commonwealth

v. Amirault, 415 Mass. 112, 116-117 (1993). However, as we have

noted, the right of the executive branch to exercise this power

without intervention from the judiciary is subject to the

provision that the power must be "constitutionally exercised."

See Cole, supra at 302. This is not to suggest that the board

is unconstitutionally exercising this power currently,29 or is

likely to do so in the future, but only that this court retains

the responsibility with respect to parole hearings to ensure

that any constitutional requirements are met. Thus, this court

has never held that art. 30 precludes any type of judicial

review of parole board decisions. In fact, Massachusetts courts

have engaged in limited review of parole proceedings,

consistently if not frequently. See, e.g., Quegan, 423 Mass. at

835 (prisoner sought declaration that board may not consider

refusal to admit guilt in parole determination); Greenman, 405

Mass. at 386 (prisoner challenged basis of parole denial as

beyond board's statutory authority); Blake v. Massachusetts

Parole Bd., 369 Mass. 701, 702 (1976) (prisoner sought

29
We agree with Justice Cordy's dissent that there is no
"hint" in this record that the board is exercising its authority
in an unconstitutional manner. See post at .
 29

declaration of right to appear personally before board in order

to argue for early parole eligibility); Doucette v.

Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 532 (2014)

(prisoner pursued civil rights claim alleging violation of due

process in parole revocation proceeding as well as certiorari

action challenging merits of board's decision to revoke

parole).30,31

As previously stated, the parole hearing acquires a

constitutional dimension for a juvenile homicide offender

because the availability of a meaningful opportunity for release

on parole is what makes the juvenile's mandatory life sentence

constitutionally proportionate. In this particular context,

judicial review of a parole decision is available solely to

30
It bears noting that courts frequently rule on certiorari
petitions by prisoners claiming that the Department of
Correction (department) has violated their constitutional
rights. See, e.g., Ciampi v. Commissioner of Correction, 452
Mass. 162, 163 (2008); Puleio v. Commissioner of Correction, 52
Mass. App. Ct. 302, 305-306 (2001); Drayton v. Commissioner of
Correction, 52 Mass. App. Ct. 135, 135-137 (2001). The board is
located within the department (although not subject to its
jurisdiction). See G. L. c. 27, § 4. Given this, it is
difficult to accept the proposition that actions of the
department are subject to judicial review to assure compliance
with the Federal and State Constitutions, but that art. 30
prohibits any form of judicial review of decisions of the board.
31
The chair of the board and the commissioner point out
that a judge may not "revise or revoke sentences when the parole
board does not act in accordance with a judge's expectations."
See Commonwealth v. Amirault, 415 Mass. 112, 116 (1993). We
agree, and we do not suggest anything to the contrary in this
case.
 30

ensure that the board exercises its discretionary authority to

make a parole decision for a juvenile homicide offender in a

constitutional manner, meaning that the art. 26 right of a

juvenile homicide offender to a constitutionally proportionate

sentence is not violated.32

That being said, the art. 26 right of a juvenile homicide

offender in relation to parole is limited. To repeat: it is

not a guarantee of eventual release, but an entitlement to a

meaningful opportunity for such release based on demonstrated

maturity and rehabilitation. See Diatchenko I, 466 Mass. at

674. That entitlement arises directly from the recognition that

32
In light of Diatchenko I, the board has adopted
guidelines for parole determinations for juvenile homicide
offenders serving life sentences, and these guidelines take into
account the unique characteristics of youth. See Massachusetts
Parole Board, Guidelines for Life Sentence Decisions (updated
Mar. 3, 2014), available at http://www.mass.gov/eopss/agencies/
parole-board/guidelines-for-life-sentence-decisions.html
[http://perma.cc/K33Z-YSEA]. The board is to be commended for
doing so, but its adoption of guidelines does not preclude or
render unnecessary the need for judicial review. The guidelines
are not binding and are subject to change. More importantly,
the board is not in a position to make a determination that the
art. 26 right of a juvenile homicide offender to a proportionate
sentence has been protected.

Nor does the existence of appeal procedures before the
board adequately protect this right. The board's regulations
permit inmates denied parole to request an appeal before the
same hearing panel that rendered the initial denial, or to
request reconsideration by a staff member of the board. See 120
Code Mass. Regs. §§ 100.00, 304.1 (2001). Neither of these
processes provides the same opportunity for review by a neutral
decision maker that judicial review affords.
 31

children are constitutionally different from adults, with

"diminished culpability and greater prospects for reform,"

Miller, 132 S. Ct. at 2464, based on their "distinctive

attributes" of youth. See Diatchenko I, supra at 660, 671.

These include children's "lack of maturity and an underdeveloped

sense of responsibility, leading to recklessness, impulsivity,

and heedless risk-taking"; vulnerability "to negative influences

and outside pressures, including from their family and peers;

. . . limited contro[l] over their own environment[;] . . .

[lack of] the ability to extricate themselves from horrific,

crime-producing settings"; and unique capacity to change as they

grow older (citations and quotations omitted). Id. at 660.

Absent consideration of these attributes, a juvenile homicide

offender may not be permitted a real chance to demonstrate

maturity and rehabilitation. See id. at 675 (Lenk, J.,

concurring), citing Miller, 132 S. Ct. at 2468. The purpose of

judicial review here is not to substitute a judge's or an

appellate court's opinion for the board's judgment on whether a

particular juvenile homicide offender merits parole, because

this would usurp impermissibly the role of the board. Rather,

judicial review is limited to the question whether the board has

carried out its responsibility to take into account the

attributes or factors just described in making its decision.
 32

With this in mind, we consider the form of judicial review

of a board decision denying initial parole to a juvenile

homicide offender. Diatchenko and Roberio suggest that judicial

review in this context should be in the nature of certiorari, as

described in G. L. c. 249, § 4, rather than through an action

for declaratory relief under G. L. c. 231A. We agree that

certiorari is appropriate here, although we do not agree with

their view of the scope or standard of that review.

"[A] complaint for declaratory relief is an appropriate way

of testing the validity of regulations or the propriety of

practices involving violations of rights, which are consistent

and repeated in nature. . . . It is not, however, an

appropriate remedy where the validity of an adjudication . . .

in an individual case is being challenged. There relief in the

nature of certiorari is to be sought." (Citation omitted.)

Averett v. Commissioner of Correction, 25 Mass. App. Ct. 280,

287 (1988), S.C., Averett, petitioner, 404 Mass. 28 (1989). See

Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 135-

136 (2013). As discussed, the type of limited judicial review

contemplated would focus on the parole determinations relating

to a particular juvenile homicide offender. It thus falls into

the category of cases appropriate for certiorari review.

The standard of review to be applied is a separate

question, because the "standard of review for an action in the
 33

nature of certiorari depends on 'the nature of the action sought

to be reviewed.'" Rivas v. Chelsea Hous. Auth., 464 Mass. 329,

334 (2013), quoting Black Rose, Inc. v. Boston, 433 Mass. 501,

503 (2001). See G. L. c. 249, § 4. Because the decision

whether to grant parole to a particular juvenile homicide

offender is a discretionary determination by the board, see

Cole, 468 Mass. at 302; G. L. c. 127, § 130, an abuse of

discretion standard is appropriate. See Forsyth Sch. for Dental

Hygienists v. Board of Registration in Dentistry, 404 Mass. 211,

217 (1989) (review of discretionary administration or decision

in certiorari action limited to whether act or decision was

"arbitrary and capricious"); Doucette, 86 Mass. App. Ct. at 541.

See generally L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014). The question for the reviewing judge will be whether

the board abused its discretion in the manner in which it

considered and dealt with "the distinctive attributes of youth

[that] diminish the penological justifications for imposing the

harshest sentences on juvenile offenders," as they relate to the

particular circumstances of the juvenile homicide offender

seeking parole. Miller, 132 S. Ct. at 2465. Accord Diatchenko

I, 466 Mass. at 671. In this context, a denial of a parole

application by the board will constitute an abuse of discretion

only if the board essentially failed to take these factors into

account, or did so in a cursory way. A judge may not reverse a
 34

decision by the board denying a juvenile homicide offender

parole and require that parole be granted. Rather, if the judge

concludes that the board's consideration of the juvenile

offender's status as a juvenile and the distinctive attributes

of his or her youth did constitute an abuse of discretion -- was

arbitrary and capricious -- a remand to the board for rehearing

would be appropriate.33

It remains for us to address Diatchenko's argument that

juvenile homicide offenders seeking review of a parole denial

should be able to bring an action for certiorari to a single

justice of this court as a matter of course. Although this

court and the Superior Court have concurrent jurisdiction to

entertain actions in the nature of certiorari under G. L.

c. 249, § 4, as with most original actions for certiorari, these

actions are most appropriately brought in the Superior Court.

Finally, we summarize the scope of our opinion in this

case, and clarify what the opinion does not say. First, we

33
Justice Spina, in his dissent, expresses concern that
without the affirmative power to grant parole after a denial by
the board, this limited form of judicial review has the
potential to result in an endless cycle of board hearings and
actions for certiorari, until the board ultimately grants
parole. See post at . This outcome is unlikely. Given the
limited scope of judicial review in this context, and the
deference that must be afforded to the board, we think decisions
to vacate a parole denial will be rare; moreover, should that
occur, we assume that at a new hearing, the board will remedy
the error or errors that caused the matter to be remanded.
 35

consider here only the initial parole hearing available to

juvenile homicide offenders. For the reasons discussed supra,

the procedural protections of representation by counsel and the

opportunity to obtain expert assistance in connection with that

initial parole hearing are necessary for such offenders in light

of their mandatory life sentences and the constitutional

requirement of proportionality in sentencing. See Diatchenko I,

466 Mass. at 669-671; id. at 675 (Lenk, J., concurring). In

Commonwealth v. Okoro, post , (2015), also decided

today, and for the same reasons, we afford the same procedural

protections to juvenile offenders convicted of murder in the

second degree, who also are subject to mandatory life sentences

with eligibility for parole. Nothing in this opinion, however,

is intended to suggest that any other class of offenders is also

entitled to these protections in connection with the parole

hearing process.

Second, in affording juvenile homicide offenders the

procedural protections at issue here, we emphasize that the

determination whether to grant a parole application of an

individual juvenile homicide offender is, and remains, a

discretionary decision for the board to make. As previously

noted, that standard is governed by G. L. c. 127, § 130, which

prohibits a prisoner from receiving parole unless the board

concludes that if the prisoner is released, "the prisoner will
 36

live and remain at liberty without violating the law and that

release is not incompatible with the welfare of society."

Third, and relatedly, the board remains fully authorized to

determine, consistent with legislative mandates,34 the rules and

procedures it deems appropriate for the conduct of its parole

hearings, and free to reach whatever decision in each case it

deems appropriate. The dissents suggest that in establishing

minimal requirements of due process for juvenile homicide

offenders in their parole hearings, the court interferes

unnecessarily and improperly with the operations of the parole

board, an executive agency, trenching on principles of

separation of powers. Post at , . Our decision does not

commit this offense. Insofar as we conclude that the provision

of counsel and of funds for expert witnesses is required for

juvenile homicide offenders, these are procedures whose sole

purpose is to protect the constitutional entitlement that these

juvenile offenders have to a meaningful opportunity for parole

release.35 Finally, the limited judicial review provided here

does not authorize judges to substitute their judgment with

respect to the parole release decision for the board's. As

34
See, e.g., G. L. c. 127, §§ 130, 133A.
35
As we have noted, see note 17, supra, the chair of the
board and the commissioner recognize "certain benefits
flow[ing]" from these procedures, and do not view them as
interfering with the board's authority.
 37

discussed, the judiciary's only role in these cases will be to

ensure that the board's determination whether to grant or deny

parole to a juvenile homicide offender is "constitutionally

exercised," Cole, 468 Mass. at 302, in the sense that the board

properly has taken into account the offender's status as a child

when the crime was committed.

4. Applicability of this decision. Diatchenko and Roberio

appear to confine their requests to the limited group of

individuals who were convicted of murder in the first degree and

sentenced to mandatory life without parole prior to the Supreme

Court's decision in Miller, and who became eligible for parole

pursuant to this court's decision in Diatchenko I. We do not

share the view that the decision in this case applies only to

that limited group. Rather, it applies more generally to all

juvenile offenders convicted of murder.

5. Conclusion. The matter is remanded to the county

court, where the single justice will enter a judgment consistent

with this opinion.

So ordered.
 SPINA, J. (dissenting, with whom Cordy, J., joins). I

respectfully dissent from the decision of the court today. The

court has misconstrued Diatchenko v. District Attorney for the

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

required only a "meaningful opportunity to obtain release" in

the form of a parole hearing for juveniles convicted of murder

in the first degree. The court instead has created a path by

which such an offender may obtain, as of right, access to

counsel, funds for expert witnesses, and, if denied parole,

judicial review of the decision of the parole board (board).

The solution at which the court arrives today ignores previous

statements of the law on this matter. Our decision in

Diatchenko I did not create a significant liberty interest in

the outcome of the parole hearing. Diatchenko I stood solely

for the proposition that the exception to parole eligibility in

G. L. c. 127, § 133A, no longer applies to Gregory Diatchenko

and Jeffrey S. Roberio and left the remainder of the statutory

scheme unchanged. That statutory scheme continues to apply

unaltered to them and similarly situated inmates.

1. Meaningful opportunity. In Diatchenko I, we addressed

the United States Supreme Court's holding in Miller v. Alabama,

132 S. Ct. 2455 (2012), that juveniles convicted of murder in

the first degree could no longer receive life sentences without
 2

the possibility of parole unless a court determined they were

incorrigible. We adopted the language in Miller, first

expressed in Graham v. Florida, 560 U.S. 48, 75 (2010), that a

juvenile offender receiving a life sentence must receive "some

meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation." Inherent in this line of cases is

the judicial recognition that "children are constitutionally

different from adults for purposes of sentencing." Diatchenko

I, 466 Mass. at 670, quoting Miller, supra at 2464. The Supreme

Court reasoned that a sentence of life in prison without the

possibility of parole removes any penological justification for

the sentence because it "forswears altogether the rehabilitative

ideal." Graham, supra at 74.

The court says "the meaningful opportunity for release

through parole is necessary in order to conform the juvenile

homicide offender's mandatory life sentence to the requirements

of art. 26 [of the Massachusetts Declaration of Rights]." Ante

at . I agree. After Diatchenko I, a juvenile convicted of

murder in the first degree, like every juvenile who is sentenced

to incarceration, is eligible for parole, whereas before such a

juvenile was not. The thrust of Diatchenko I was an expectation

of parole eligibility, and no more.

The court improperly synthesizes two premises to arrive at

a more significant but now constitutionally untenable
 3

conclusion. The court correctly recognizes that (1) children

are "constitutionally different from adults for purposes of

sentencing" and (2) that a life sentence for a juvenile

convicted of murder in the first degree is cruel and unusual

under art. 26 without a meaningful opportunity for release

through a demonstration of rehabilitation. Fusing these

propositions together, the court concludes that the "meaningful

opportunity" for release for juveniles convicted of murder in

the first degree has a "constitutional dimension" that exists

for no others and requires "additional procedural protections."

Ante at & n.14. This conclusion is erroneous because the

court applies the first premise to the second when, in fact, the

second premise flows from the first.

The court states that other sentences, except life

sentences for juveniles convicted of murder in the first degree,

"include parole eligibility." Ante at . The opposite is

true. Parole is an executive action separate and distinct from

a judicial sentence. See Commonwealth v. Cole, 468 Mass. 294,

302 (2014) ("[The granting of parole] is a function of the

executive branch of government with which, if otherwise

constitutionally exercised, the judiciary may not interfere").

Cf. Simms v. State, 65 Md. App. 685, 689 (1986) ("A parole is an

act of executive clemency. It does not involve the sentencing

function or any other judicial function"). Cf. also Knight v.
 4

United States, 73 F.3d 117, 119 (7th Cir. 1995), cert. denied,

519 U.S. 827 (1996) ("Parole is an extension of the

[c]onstitutional grant of clemency power given to the

President"); State v. Hewett, 270 N.C. 348, 352 (1967)

("Probation relates to judicial action taken before the prison

door is closed, whereas parole relates to executive action taken

after the door has closed on a convict"). Were Massachusetts to

abandon its system of parole, art. 26 would only require that

juveniles convicted of murder in the first degree -- and thus

sentenced to life -- be afforded some opportunity for release

from imprisonment through a demonstration of rehabilitation, the

only constitutionally available penological justification for

the State's harshest penalty. Miller, 132 S. Ct. at 2468 ("this

mandatory punishment [of life without parole] disregards the

possibility of rehabilitation even when the circumstances most

suggest it"). In such a hypothetical scenario, art. 26 would

not require parole for any juvenile sentenced to a term of years

because that sentence -- or any other lesser sentence -- has a

penological justification other than rehabilitation. See id. at

2465-2466 (outlining penological justifications of sentences as

applied to juveniles).

In constitutionally guaranteeing that juveniles convicted

of murder in the first degree are eligible for parole, we have

already previously respected juveniles' constitutional
 5

distinctiveness from adults convicted of murder in the first

degree by the imposition of a sentence that is not cruel and

unusual. By imposing today these additional procedural

protections, the court reaches beyond the judicial function of

sentencing to regulate the conduct of the initial parole hearing

itself, the manifestation of the executive prerogative to

execute the sentence. In so doing, the court transforms the

conduct of the parole hearing into part of the sentencing

process, at least for juveniles convicted of murder in the first

degree, and implicates the action of the board in the sentence

itself.

The Legislature never intended such a relationship between

sentence and parole. Moreover, it is something that we

expressly said in Cole, 468 Mass. at 302, is forbidden, because

sentencing is "a quintessential judicial power." Id., quoting

Commonwealth v. Rodriguez, 461 Mass. 256, 264 (2012). In Cole,

we held that the executive branch's imposition of punishments

under G. L. c. 127, § 133D (c), against those who violated

community parole supervision for life improperly interfered with

the judicial power to impose a sentence. Cole, supra. Today we

are dealing with the opposite scenario, in which the court

subsumes the executive power to regulate the conduct of a parole

hearing into part of the sentencing process.
 6

If the court's decision should be considered not to have

rendered the conduct of the initial parole hearing of a juvenile

convicted of murder in the first degree part of the sentencing

process, then the court's justification for "additional

procedural protections" in such a hearing fails because

"children are constitutionally different from adults for

purposes of sentencing" (emphasis added). Diatchenko I, 466

Mass. at 670, quoting Miller, 132 S. Ct. at 2465. Parole is not

part of the sentencing process and thus the parole hearing need

not recognize the difference between children and adults for

purposes of art. 26.

The Supreme Court specifically identified traditional

parole hearings as capable of providing that "meaningful

opportunity to obtain release." Graham, 560 U.S. at 75. In

both Graham and Miller, the Court even went so far as to

explicitly state that "a State is not required to guarantee

eventual freedom." Miller 132 S. Ct. at 2469; Graham, supra.

The term "meaningful opportunity" was a warning that the Eighth

Amendment to the United States Constitution "forbid[s] States

from making the judgment at the outset that those offenders

never will be fit to reenter society" (emphasis added). Graham,

supra. "The Eighth Amendment does not foreclose the possibility

that [a juvenile convicted of murder in the first degree] will

remain behind bars for life." Id. Read together these cases
 7

stand for the proposition that Diatchenko and Roberio, and

similarly situated inmates, must be afforded a standard parole

hearing, and by implication, this hearing will provide these

individuals with the "meaningful opportunity" of release.

This warning is in congruence with the Court's previous

statements that "no constitutional or inherent right of a

convicted person to be conditionally released before the

expiration of a valid sentence" exists. Greenholtz v. Inmates

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

Accord Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836

(1996). Indeed, in Diatchenko I we recognized that "[o]ur

decision should not be construed to suggest that individuals who

are under the age of eighteen when they commit murder in the

first degree necessarily should be paroled once they have served

a statutorily designated portion of their sentences."

Diatchenko I, 466 Mass. at 674. These statements cannot be

reconciled with the court's reasoning today that the "process"

of the initial parole hearing of a juvenile convicted of murder

in the first degree "takes on a different constitutional

dimension that does not exist for other offenders whose

sentences include parole eligibility." Ante at .

Absent the recognition of a new liberty interest in the

outcome of parole, the court does not explain the constitutional

necessity of these additional protections but simply inserts a
 8

new "constitutional dimension." This "constitutional dimension"

identified by the court is the foundation for the new

constitutional rule that juveniles convicted of murder in the

first degree require different procedural protections from those

given to other offenders. The court provides juveniles under a

mandatory life sentences with enhanced procedures that no others

receive, yet there has been no suggestion that the parole

hearing others receive falls short of a meaningful opportunity.

We have never previously stated or hinted at such a difference

in procedural safeguards. In Diatchenko I, we determined that

the appropriate remedy to the defendant's challenge under Miller

was to leave intact as much of the statutory scheme designed by

the Legislature as possible, so far as it remained

constitutional. Diatchenko I, 466 Mass. at 673. Accordingly,

we struck down only the provision making juveniles ineligible

for parole and let the remaining provisions of the statute

stand. Id. In Commonwealth v. Brown, 466 Mass. 676 (2013), and

Commonwealth v. Ray, 467 Mass. 115 (2014), we affirmed our

intent to interfere with the enacted legislation as little as

possible and do nothing more than invalidate the exception for

parole eligibility.

In Brown, this court held that the rules of severability

require trial judges to apply the parole statute as written with

the exclusion of the one unconstitutional provision. Brown, 466
 9

Mass. at 680. In so doing, this court upheld the trial judge's

decision to impose "as much of the sentencing scheme set forth

in [the statute] as would be permissible in light of Miller's

prohibition against mandatory sentences of life without parole

for juveniles." Id. We would not have instructed trial judges

to apply the statute in a manner that preserved as much of the

expressed intent of the Legislature as possible if we intended

to create a process different from that provided for in the

then-existing statutory scheme.

More recently, in Ray, we expressed a view that the normal

procedures governing consideration of parole release would apply

to juveniles convicted of murder in the first degree. Ray, 467

Mass. at 139-140. "Pursuant to our holding in Diatchenko, . . .

the defendant's life sentence remains in force, but the

exception in G. L. c. 265, § 2, rendering him ineligible for

parole, no longer applies. The defendant is eligible for parole

in accordance with the terms of G. L. c. 127, § 133A." Id. See

Commonwealth v. Keo, 467 Mass. 25, 47 (2014) ("the lesser

punishment under G. L. c. 265, § 2, of mandatory life in prison

with the possibility of parole, set pursuant to the parole

eligibility statute in effect at the time of the juvenile

offender's crime, would apply"). This language strongly

suggests that the court intended for the remainder of the

statutory scheme to apply to Diatchenko and Roberio and that
 10

they are entitled only to the same parole hearing process as

other inmates.

Undoubtedly, Diatchenko and Roberio have a right to a

"hearing that shall afford [them] a meaningful opportunity to

obtain release," Diatchenko I, 466 Mass. at 674, but only via

the same processes and established procedures that all other

inmates serving life sentences have, and not through a new

liberty interest in parole with accompanying greater

constitutional protections. The court today seemingly "ignores

the distinction, adopted by the Supreme Court, between

[potentially] being deprived of a liberty that one already has

and being denied a conditional liberty that one desires."

Greenman v. Massachusetts Parole Bd., 405 Mass. 384, 388 n.3

(1989).

Moreover, in Diatchenko I, we outlined the process

necessary to afford a juvenile convicted of murder in the first

degree such a "meaningful opportunity," saying only that

"it is the purview of the Massachusetts parole board to
evaluate the circumstances surrounding the commission of
the crime, including the age of the offender, together with
all relevant information pertaining to the offender's
character and actions during the intervening years since
conviction. By this process, a juvenile homicide offender
will be afforded a meaningful opportunity to be considered
for parole suitability."
 11

466 Mass. at 674.1 We did not hold that the Massachusetts

Constitution requires a new kind of parole hearing; and we said

nothing about changing the standard process in any respect (much

less requiring appointed counsel or granting funds for expert

testimony) in order for the juvenile offender to obtain his

"meaningful opportunity." Instead, we said that a process that

considers the above mentioned factors provides juvenile

offenders with a "meaningful opportunity to obtain release."

This understanding is in line with decisions of

Massachusetts and Federal courts that have long held that the

possible release arising under the parole statute does not

create a liberty interest in parole. See Greenman, 405 Mass. at

388 n.3 ("The individual characteristics of the Massachusetts

statutory parole scheme do not give rise to a liberty interest

under Federal law"). See also Doe v. Massachusetts Parole Bd.,

82 Mass. App. Ct. 851, 858 (2012) ("A prisoner in the

Commonwealth does not have a liberty interest in the future

1
The parole board (board) updated its "Guidelines for Life
Sentence Decisions," available at http://www.mass.gov/eopss/
agencies/parole-board/guidelines-for-life-sentence-
decisions.html [http://perma.cc/K33ZYSEA], most recently on
March 3, 2014. These guidelines reflect the mandates of our
decision in Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655 (2013) (Diatchenko I), specifically
providing that "an inmate who committed the offense as a
juvenile will be evaluated with recognition of the distinctive
attributes of youth, including immaturity, impetuosity, and a
failure to appreciate risks and consequences."
 12

grant of parole"); Lynch v. Hubbard, 47 F. Supp. 2d 125, 127-128

(D. Mass. 1999) (Massachusetts parole statute's negative

phrasing prevents an expectation or presumption of release).

Essentially, under G. L. c. 127, § 133A, Diatchenko and Roberio

do not have an expectation or presumption of release and

Diatchenko I did nothing to overtly change the statutory scheme.

If we had intended to create an entirely new liberty interest in

parole where there had been none previously, we would have

explicitly said so. We did not, and Diatchenko I did not create

a liberty interest in parole for juveniles convicted of murder

in the first degree.

2. Right to counsel. The court concludes that juveniles

convicted of murder in the first degree who seek parole

constitutionally are entitled to representation by counsel

because a parole hearing is a contested, complex proceeding

similar to that involving the termination of parental rights.

Therefore, because juveniles convicted of murder in the first

degree -- imprisoned at a young age -- are unlikely to advocate

as fully as possible for themselves and a parole hearing is

similar to a proceeding terminating parental rights, the court

concludes that constitutionally guaranteed access to counsel

best ensures that the parole hearing is a "meaningful

opportunity." I disagree.
 13

The court's analogy between parental right termination

proceedings and parole hearings does not withstand closer

scrutiny. The proceedings we examined in Department of Pub.

Welfare v. J.K.B., 379 Mass. 1 (1979), can result in the loss of

rights to conceive and raise one's children -- rights that are

"essential . . . basic civil rights of man . . . far more

precious . . . than property rights." Id. at 3, quoting Stanley

v. Illinois, 405 U.S. 645, 651 (1972). In J.K.B., supra at 4,

we affirmed that one cannot lose a right without due process,

and we ensured that due process be observed by access to counsel

for indigent parents. Parole hearings, however, do not result

in the loss of any rights. As explained above, an expectation

of parole simply does not exist in these proceedings and our

decision in Diatchenko I has not changed that fact.2 Without an

2
The court's acknowledgment that Quegan v. Massachusetts
Parole Bd., 423 Mass. 834, 840 (1996), contradicts its proposed
funding mechanism and its rationalization that a juvenile
convicted of murder in the first degree is entitled to
representation "thus required by law" stems from characterizing
the plaintiff in Quegan as "a prisoner seeking parole who had no
constitutionally protected interest that entitled him to any due
process protections." Ante at n.20. The only reason Quegan
contradicts the court's conclusion that G. L. c. 211D, § 5, is
the appropriate authorization mechanism is because the court
baldly asserts that the class of inmates at issue requires a
different sort of parole hearing with additional procedural
protections from a hearing available to any other class applying
for parole. Juveniles convicted of murder in the first degree
do not merit anything more than a chance to appear before the
board in the same manner as other inmates do. To grant them
greater protection creates a perverse incentive.
 14

expectation of parole, a juvenile convicted of murder in the

first degree has no protected liberty interest, or right, to

lose.3

Our decision in Diatchenko I did not suggest that the

current parole process did not adequately provide a "meaningful

opportunity to obtain release." We most certainly did not

suggest that publicly funded counsel is necessary to protect

one's interest in a fair hearing. The right to counsel based in

the Sixth Amendment to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights does not

traditionally have an application to parole hearings. The

United States Supreme Court explicitly noted that the right to

counsel does not extend to postconviction collateral

proceedings, see Douglas v. California, 372 U.S. 353, 356

(1963), and that "[i]n the context of parole . . . the

procedures required are minimal." Swarthout v. Cooke, 131 S.

Ct. 859, 862 (2011).

3
We also consistently have held in our cases dealing with
postconviction rights in other contexts that a defendant is not
entitled to a full array of due process. See Commonwealth v.
Arriaga, 438 Mass. 556, 569 (2003) (no right to public funds to
obtain postconviction relief); Jackson v. Commonwealth, 430
Mass. 260, 264 (1999), cert. denied, 528 U.S. 1194 (2000) (no
absolute right to counsel in moving for new trial); Commonwealth
v. Conceicao, 388 Mass. 255, 263-264 (1983) (no absolute right
to appointed counsel in obtaining postconviction relief under
Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 [2001]).
 15

We consistently have rejected claims that an inmate is

entitled to counsel at parole hearings. See Cole, 468 Mass. at

306; Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 840

(1996) (no right to representation before board unless there is

independent and pending criminal proceeding that could be

affected by parole proceedings).4 Parole is not a part of the

criminal prosecution or the adversarial process, but rather

arises subsequently and is supervised by an executive

administrative agency rather than the court. Because parole is

separate and apart from criminal proceedings for those convicted

of murder in the first degree as juveniles, the full breadth of

due process rights, including the right to counsel, does not

apply during such hearings.

Further, at this juncture, Diatchenko and Roberio have not

made a sufficient showing that the parole hearing process

available to them is inadequate or that the unique skills of a

lawyer are necessary in order to have a "meaningful opportunity

to obtain release." This is particularly so given that the

4
Courts in other jurisdictions similarly have rejected
claims that an inmate is entitled to counsel at parole release
hearings. See Warren v. United States Parole Comm'n, 659 F.2d
183, 195 (D.C. Cir. 1981); Holup v. Gates, 544 F.2d 82, 85 (2d
Cir. 1976); Bearden v. South Carolina, 443 F.2d 1090, 1095 (4th
Cir. 1971). Hawaii is the only State to grant a right to
counsel at parole release and review hearings by statute. Haw.
Rev. Stat. § 706-670(3)(b), (c). Should the Massachusetts
Legislature take similar action, the debate here would be moot.
 16

current parole process requires the board to consider the

circumstances of the crime, including whether Diatchenko and

Roberio were juveniles at its commission, and whether they have

been rehabilitated. Additionally, numerous inmates convicted of

murder in the second degree as juveniles have been paroled after

release hearings conducted without the aid of appointed counsel.

While "lifer hearings" certainly require considerable

preparation, the board is not called upon to resolve disputed

issues of fact, strict rules of evidence do not apply, and

witnesses need not be subjected to cross-examination.

The court maintains that an attorney is needed to collect

materials pertaining to a juvenile homicide offender's criminal

history and personal development after conviction. However, at

the time of a parole hearing, the factual record in these cases

already has been well established either in a trial transcript

or in a decision of this court. Additionally, the Department of

Correction (department) keeps a historical record containing

detailed medical, psychiatric, and disciplinary records in each

inmate's six-part folder. 103 Code Mass. Regs. § 155.07 (2014).

These records are available to Diatchenko and Roberio before

their hearings and to the board for review.5 See G. L. c. 127,

5
The court highlights that an inmate's access to this
information may be restricted. Ante at . The issue of what
may or may not be restricted in these circumstances is best left
 17

§ 135; 103 Code Mass. Regs. § 157.08 (2005); 120 Code Mass.

Regs. § 300.05(1)(i) (1997). Finally, and notably, the court

does not suggest that the statutory standard for granting parole

or the requirements for membership to the board are

unconstitutional.

3. Expert witness funds. The court also concludes that a

parole-eligible juvenile convicted of murder in the first degree

may petition a Superior Court judge to authorize the payment of

fees to retain an expert witness to explain effectively "the

effects of the individual's neurobiological immaturity and other

personal circumstances at the time of the crime, and how this

information relates to the individual's present capacity and

future risk of reoffending." Ante at . The majority derives

this right from the same mistaken interpretation that a

"meaningful opportunity" of parole grants juveniles convicted of

murder in the first degree more rights in a parole hearing than

any other class of inmate. For substantially the same reasons

that a juvenile convicted of murder in the first degree is not

guaranteed access to counsel, neither is he or she guaranteed

access to funds for expert witness testimony.

to another day, but I note that the Department of Correction
must "make every effort to disclose all evaluative information
which is reasonably segregable from" certain enumerated
categories to an inmate. 103 Code Mass. Regs. § 157.08(4)
(2005).
 18

The power to allocate and direct public funding among

competing public purposes is traditionally within the purview of

the Legislature. See Opinion of the Justices, 430 Mass. 1201,

1202 (1999); County of Barnstable v. Commonwealth, 422 Mass. 33,

45 (1996). The court construes G. L. c. 261, §§ 27A-27G, as

authorizing the expenditure of public funds because the parole

hearing at issue is constitutionally mandated. Ante at .

For support, the court cites our cases that guaranteed

"meaningful access to whatever postconviction proceedings the

State makes available" for indigent defendants who sought

postconviction relief. Ante at , citing Commonwealth v.

Conceicao, 388 Mass. 255, 261-262 (1983). At issue in Conceicao

was the question whether "meaningful access" included access to

counsel as of right. Id. at 258. We concluded that the

decision to grant access to counsel for the preparation of a

motion for a new trial was within the discretion of the motion

judge. Id. at 262. We recommended counsel only in the event

the defendant demonstrated a colorable or meritorious issue.

Id. Importantly, we recognized that not every inmate need be

placed on exactly the same footing as any other by providing

counsel in order to guarantee meaningful access. Id. at 261.

General Laws c. 261, § 27C (4), echoes the legislative

acknowledgment that "meaningful access" does not necessarily

require the blanket authorization of public funds in support of
 19

a defendant's efforts following his direct appeal. This section

authorizes provision of public funds needed by an indigent

applicant for an "effective . . . prosecution, defense or

appeal." Yet funds under the statute are generally not

available to support a defendant's effort to obtain

postconviction relief, because those proceedings are not a part

of the prosecution, defense, or appeal. See Commonwealth v.

Arriaga, 438 Mass. 556, 569 (2003).

Finally, according to its enabling statute, members of the

board must come from a diverse background, including the fields

of psychology or psychiatry. G. L. c. 27, § 4. Additionally,

at least one member of the board must now have experience in

forensic psychology, St. 2014, c. 189 (1), and the board must

consider scientific and technical factors at its hearings. The

board now is obligated to consider youth-related factors in

order to fulfil the mandates of both Miller and Diatchenko.6

These requirements assist in ensuring that Diatchenko's and

Roberio's hearings provide a truly "meaningful opportunity" for

release, without a need for their own experts.

4. Certiorari. The court today establishes judicial

review of the denial of parole to a juvenile convicted of murder

in the first degree through an action for certiorari.

6
As noted previously, the board has updated its guidelines
to reflect our decision in Diatchenko I. See note 1, supra.
 20

Certiorari is available when there is "(1) a judicial or quasi-

judicial proceeding, (2) from which there is no other reasonably

adequate remedy, and (3) a substantial injury or injustice

arising from the proceeding under review." Indeck v. Clients'

Sec. Bd., 450 Mass. 379, 385 (2008). Such review conflicts with

our previous understanding of the separation of powers enshrined

in art. 30 of the Massachusetts Declaration of Rights. "The

granting of parole, or conditional release from confinement, is

a discretionary act of the parole board" and "is a function of

the executive branch of government with which, if otherwise

constitutionally exercised, the judiciary may not interfere."

Cole, 468 Mass. at 302. See Stewart v. Commonwealth, 413 Mass.

664, 669 (1992). We previously have stated that a statute that

"impermissibly allocates a power held by only one branch to

another" violates art. 30. Cole, supra. Today's holding

violates art. 30 because it permits a judge to "nullify the

discretionary actions of the parole board." Commonwealth v.

Amirault, 415 Mass. 112, 116-117 (1993). Accord Woods v. State

Bd. of Parole, 351 Mass. 556, 559 (1967) ("Even by a writ of

mandamus, the board may be required merely to consider a

prisoner's petition for parole. The board may not be required

to exercise any discretion for the benefit of a prisoner").

As detailed above, Diatchenko I did not create any

additional rights for a juvenile convicted of murder in the
 21

first degree more expansive than those possessed by any other

class of inmate. The use of certiorari to ensure that a parole

hearing provides a "meaningful opportunity" for release ignores

the existence of a "reasonably adequate remedy." Indeck, 450

Mass. at 385. An inmate may seek relief from decisions of the

board by means of an action for declaratory relief under G. L.

c. 231A. See Gangi v. Massachusetts Parole Bd., 468 Mass. 323,

324 (2014); Massachusetts Parole Bd. v. Brusgulis, 403 Mass.

1010, 1011 (1989). Chapter 231A provides inmates with the

opportunity to challenge the "practices or procedures [of the

board] . . . alleged to be in violation of the Constitution of

the United States or of the constitution or laws of the

commonwealth." G. L. c. 231A, § 2. Accordingly, Diatchenko,

Roberio, and similarly situated inmates may contest the board's

practices that fail to consider the unique characteristics of

juvenile offenders as well as displayed growth and change from

adolescence, as required by Diatchenko I.

Certiorari is limited to correcting substantial errors of

law that affect material rights and are apparent on the record.

Gloucester v. Civil Serv. Comm'n, 408 Mass. 292, 297 (1990).

The only material right at stake to juveniles convicted of

murder in the first degree is the expectation of parole

eligibility, not the substance of the board's decision.

Moreover, the use of certiorari permits the reviewing court only
 22

to affirm or set aside a decision of the tribunal whose actions

are under review. Commonwealth v. Ellis, 11 Mass. 462, 466

(1814) ("this Court . . . can only affirm the proceedings . . .

or quash them"); Commonwealth v. Blue-Hill Turnpike Corp., 5

Mass. 420, 423 (1809) ("on certiorari we can enter no new

judgment"); Melvin v. Bridge, 3 Mass. 305, 306 (1807) ("If the

Court were to consider these proceedings as certified on a

certiorari, the plaintiff in error could not be relieved, as a

judgment for costs could not be rendered, but only the

proceedings affirmed or quashed"). Consequently, lacking any

affirmative power, a court could only set aside a decision of

the board and then remand the matter to the board, a process

that could be repeated ad infinitum until the board grants

parole. See Woods, 351 Mass. at 559. Not only are courts ill-

equipped to decide whether parole should be granted, but such a

decision -- both historically and legally -- has been reserved

for the executive branch.

The court notes that judicial review by an action for

certiorari would not encompass whether a particular juvenile

convicted of murder in the first degree is entitled to release

on parole but rather would be limited to the question whether

the board has "constitutionally exercised" its discretion. Ante

at n.16, citing Cole, 468 Mass. at 302. If the reviewing

judge is not concerned with the individual outcome of the matter
 23

before him or her, then the judge is by default only reviewing

the procedure of that matter. "[A] complaint for declaratory

relief is an appropriate way of testing the validity of

regulations or the propriety of practices involving violations

of rights, which are consistent and repeated in nature." Nelson

v. Commissioner of Correction, 390 Mass. 379, 388 n.12 (1983).

This mechanism has been utilized in previous challenges to the

procedures by which the board exercises its discretion. See

Quegan, 423 Mass. at 835; Blake v. Massachusetts Parole Bd., 369

Mass. 701, 702-703 (1976).

The court -- and Diatchenko and Roberio -- do not contend

that the board has failed in this respect such that a request

for declaratory relief is warranted at this time. Importantly,

the review process for granting parole is currently based on

comprehensive, individualized assessments. In determining

whether a particular inmate is suitable for parole, the board is

charged by statute with ascertaining the extent to which the

inmate has been rehabilitated, and the extent to which, if

released, he or she would pose a risk to the community.7 See

7
"Decisions of the Executive Branch, however serious their
impact, do not automatically invoke due process protection;
there simply is no constitutional guarantee that all executive
decisionmaking must comply with standards that assure error-free
determinations." Greenholtz v. Inmates of the Neb. Penal &
Correctional Complex, 442 U.S. 1, 7 (1979). "[T]he state may be
specific or general in defining the conditions for release and
 24

G. L. c. 127, § 130. The board performs a "risk and needs

assessment" as well. Id. In so doing, it has the authority to

review and evaluate an inmate's entire record. See Greenman,

405 Mass. at 387. As required by statute, the board must be

provided with the complete criminal record of the inmate as well

as reports on the inmate's social, physical, mental, and

psychiatric condition and history. G. L. c. 127, § 135.

Moreover, in making its determination, the board "shall consider

whether, during the period of incarceration, the prisoner has

participated in available work opportunities and education or

treatment programs and demonstrated good behavior." G. L.

c. 127, § 130. Finally, the board "shall also consider whether

risk reduction programs, made available through collaboration

with criminal justice agencies would minimize the probability of

the factors that should be considered by the parole authority.
It is thus not surprising that there is no prescribed or defined
combination of facts which, if shown, would mandate release on
parole. . . . In parole releases . . . few certainties exist.
In each case, the decision differs from the traditional mold of
judicial decision-making in that the choice involves a synthesis
of record facts and personal observation filtered through the
experience of the decision maker and leading to a predictive
judgment as to what is best both for the individual inmate and
for the community. This latter conclusion requires the board to
assess whether, in light of the nature of the crime, the
inmate's release will minimize the gravity of the offense,
weaken the deterrent impact on others, and undermine respect for
the administration of justice. The entire inquiry is, in a
sense, an 'equity' type judgment that cannot always be
articulated in traditional findings" (footnote omitted). Id.
at 8.
 25

the prisoner re-offending once released." Id. All inmates are

provided subsequent parole hearings if parole is initially

denied. 120 Code Mass. Regs. § 300.01 (1997). These hearings

are open to the public and parole-eligible offenders serving

life sentences are permitted representation by counsel. 120

Code Mass. Regs. §§ 300.02(2), 300.08 (1997). Eventually, the

board's decision becomes a public record. G. L. c. 127, § 130.

Further, in January, 2014, in response to Miller, the

Legislature passed "An Act relative to juvenile life sentences

for first degree murder" (act). St. 2014, c. 189. The act

imposed a series of statutory changes affecting juveniles

convicted of murder in the first degree including new sentencing

and parole eligibility standards; mandating that at least one

member of the board have experience in forensic psychology;

authorizing the department to provide treatment and programming

for youthful offenders irrespective of their crimes or duration

of incarceration; and allowing the placement of qualified

youthful offenders in a minimum security correctional facility,

irrespective of their life sentence. The act further

established a commission to

"study and determine the usefulness and practicality of
creating a developmental evaluation process for all cases
of first degree murder committed by a juvenile [between the
ages of fourteen and eighteen]. The evaluation process
shall determine the developmental progress and abilities of
the juvenile offender at the time of sentencing and parole
eligibility and the parole board shall utilize the
 26

evaluation process for future parole decisions regarding
the juvenile offender."

In addition, the board, on its own initiative, amended its

"Guidelines for Life Sentence Decisions" (guidelines) in light

of Diatchenko I, requiring consideration of age-related factors

in all parole cases involving juveniles convicted of murder in

the first degree and incorporating the specific factors that the

concurring justices considered when evaluating parole

suitability for such individuals. See note 1, supra.

Accordingly, inmates like the defendant now must be "evaluated

with recognition of the distinctive attributes of youth,

including immaturity, impetuosity, and a failure to appreciate

risks and consequences." See Diatchenko I, 466 Mass. at 675

(Lenk, J., concurring). The guidelines now provide that the

board can and should consider, among other things, the specific

facts of the crime and rehabilitation. Finally, in determining

whether the inmate has been rehabilitated, the guidelines

provide that the board shall consider his or her conduct while

incarcerated.

Had this court intended to directly oversee the board's

consideration of parole, we would have specifically provided

guidance concerning the proper balance of the necessary factors

or when to find that parole is warranted. Yet, we declined to

do so, specifically holding that it was in the board's "purview"
 27

to evaluate the unique circumstances and conditions of the

defendant. Diatchenko I, 466 Mass. at 674. See Doe v.

Massachusetts Parole Bd., 82 Mass. App. Ct. 851, 861 (2012).

This the board has done by revising its guidelines.

Accordingly, a complaint for declaratory relief remains the best

manner to ensure the meaningfulness of parole hearings by

allowing challenges to procedural elements of these hearings

such as the guidelines. See Nelson, 390 Mass. at 388 n.12.

There has been no showing that declaratory relief would be

appropriate at this time.

For the foregoing reasons, I respectfully dissent.
 CORDY, J. (dissenting, with whom Spina, J., joins). I join

and agree completely with Justice Spina's dissent. I write

separately only to underscore my strongly held view that the

judicial branch should not intrude on what is plainly an

executive branch function in the absence of a showing that that

branch has failed to fulfil its legal or constitutional

obligations. There is not a hint of such a showing in this

case. To the contrary, all indicators of executive branch

intentions support the conclusion that "meaningful

opportunit[ies] to obtain release" on parole have been and will

continue to be provided to individuals serving life sentences

for murders they committed when they were juveniles. There is

no demonstrated need for the court to construct and order funded

a special parole and appellate process for such prisoners.1

While the directives in the court's ruling regarding

counsel, appeals, and the funding of experts may seem relatively

benign to some, in unnecessarily intruding on the functions of

another branch the court steps over the line that separates the

powers accorded to each in our constitutional structure -- a

separation we have proudly proclaimed as a necessary element of

a constitutional democracy that ensures our government shall be

1
Indeed, as the court's opinion has noted, Gregory
Diatchenko already has been granted parole.
 2

one of laws and not of men.2 In doing so, the court also fails

to accord the other branches the respect necessary to the proper

functioning of a government where each has its own

constitutional responsibilities. While the role of the

judiciary may often include being a check on the other branches

when they exceed or fail in the execution of those

responsibilities, it is distinctly not to exercise them.3

Although we occasionally declare that the Massachusetts

Declaration of Rights creates certain duties in other branches,

such as ensuring a meaningful opportunity for release on parole,

we leave it to those branches "to define the precise nature of

the task[s] which they face in fulfilling" those duties.

McDuffy v. Secretary of the Exec. Office of Educ., 415 Mass.

545, 620 (1993). To hold that such a meaningful opportunity can

only occur in the context of a parole hearing with counsel

appointed, experts on retainer, and a special appellate process,

2
See art. 29 of the Massachusetts Declaration of Rights.
3
Last year, we were quick to declare that the community
parole supervision for life law (G. L. c. 127, § 133D [a]) was
an unconstitutional delegation of a quintessential judicial
function, sentencing, to the parole board, an executive branch
of government, in violation of the constitutional separation of
powers clause at issue here. Commonwealth v. Cole, 468 Mass.
294, 302 (2014). In so doing, we also underscored and confirmed
that the granting of parole is "a discretionary act" and a
"function of the executive branch of government with which, if
otherwise constitutionally exercised, the judiciary may not
interfere" (emphasis added). Id.
 3

is to declare that we know best how to perform the tasks

constitutionally assigned to others, in the absence of any

evidence of failure or excess.4 This substitution at this

juncture of our judgment for that of the parole board as to the

expertise and advocacy necessary for it to properly exercise its

executive discretion is a slippery slope, and one down which we

should not embark.

4
There is no suggestion in the court's opinion that the
standard for determining an individual's suitability for parole
for persons convicted of murder when they were juveniles is any
different from the standard of suitability that any other
prisoner must satisfy in order to obtain release on parole,
i.e., that there is a "reasonable probability that, if the
prisoner is released with appropriate conditions and community
supervision, the prisoner will live and remain at liberty
without violating the law, and that release is not incompatible
with the welfare of society." G. L. c. 127, § 130.