Deal, et al. v. Commissioner of Correction (Lawyers Weekly No. 10-180-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12246   TIMOTHY DEAL & another[1]  vs.  COMMISSIONER OF CORRECTION.       Suffolk.     April 3, 2017. – November 9, 2017.   Present:  Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ.[2]     Commissioner of Correction.  Due Process of Law, Prison classification proceedings.  Imprisonment, Reclassification of prisoner.  Youthful Offender Act.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2016.   The case was reported by Botsford, J.     Barbara Kaban for the petitioner. Benjamin H. Keehn, Committee for Public Counsel Services (Dulcineia Goncalves, Committee for Public Counsel Services, also present) for the intervener. Charles W. Anderson, Jr., for the respondent. James R. Pingeon, for Prisoners’ Legal Services of Massachusetts, amicus curiae, submitted a brief.          BUDD, J.  The Department of Correction (department) has adopted procedures to determine, on a periodic basis, the security classification of every inmate, including juvenile homicide offenders.[3]  Approximately one year ago we examined the department’s then procedure used to classify juvenile homicide offenders, and concluded that, as pertaining to that cohort, the procedure violated G. L. c. 119, § 72B, as amended by St. 2014, c. 189, § 2, which prohibits the department from categorically barring juvenile homicide offenders from being placed in minimum security facilities.  See Deal v. Commissioner of Correction, 475 Mass. 307, 312 (2016) (Deal I).  The department has since developed a modified process for classifying juvenile homicide offenders, which the petitioner and intervener in this case (collectively, petitioners) — juvenile homicide offenders who also were petitioners in Deal I — continue to challenge. Applying our holding in Deal I to these updated procedures, we conclude that the department still falls short of the requirements of § 72B.  Given that the department continues to block the majority of objectively qualifying juvenile homicide offenders from placement in a minimum security facility, its written explanations for doing so do not go far enough to ensure that the classification procedure is actually individualized and that no juvenile homicide offender is categorically barred from classification to a minimum security facility.  We also conclude that the department must make a recording of the initial classification hearing and make that recording (or a transcription of that recording) available at any subsequent stage of review so that the final classification decision may include the same level […]

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