Diatchenko v. Dist. Attorney for the Suffolk Dist.

• Decision Date: 24 December 2013
• Parties: Gregory DIATCHENKO v. DISTRICT ATTORNEY FOR the SUFFOLK DISTRICT & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 655

1 N.E.3d 270

Gregory DIATCHENKO

v.DISTRICT ATTORNEY FOR the SUFFOLK DISTRICT & others.¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted Sept. 4, 2013.

Decided Dec. 24, 2013.

Limited on Constitutional Grounds

M.G.L.A. c. 265, § 2

Benjamin H. Keehn, Committee for Public Counsel Services, for the petitioner.

John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District.

Amy L. Karangekis, Assistant Attorney General, for chair of the Massachusetts Parole Board & another.

The following submitted briefs for amici curiae:

Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District.

Annie L. Owens, of the District of Columbia, & Emily R. Schulman, Boston, for Massachusetts Association of Criminal Defense Lawyers & others.

David J. Apfel & Kunal Pasricha, Boston, for American Civil Liberties Union of Massachusetts & others.

Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman, Boston, for Citizens for Juvenile Justice & others.

John J. Barter, Boston, for Herby J. Caillot.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

On the evening of May 9, 1981, Gregory Diatchenko, who was seventeen years old at the time, stabbed Thomas Wharf nine times as Wharf sat in his red Cadillac automobile near Kenmore Square in Boston. Wharf was pronounced dead at 10:40 p.m. A Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). He was sentenced to a mandatory term of life imprisonment without the possibility of parole, pursuant to G.L. c. 265, § 2.² On direct appeal, this court affirmed Diatchenko's conviction. See Commonwealth v. Diatchenko, 387 Mass. 718, 719, 443 N.E.2d 397 (1982). Among other claims, we rejected his contention that his sentence violated the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.³Id. at 721–727, 443 N.E.2d 397. Diatchenko's conviction thus became final.⁴

Thirty years later, the United States Supreme Court decided Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)( Miller ), in which it held that imposition of a mandatory sentence of life in prison without parole on individuals who were under the age of eighteen at the time they committed murder is contrary to the prohibition against “cruel and unusual punishments” in the Eighth Amendment. Id. at 2460. Consequently, on March 19, 2013, Diatchenko filed a petition in the county court pursuant to G.L. c. 211, § 3, and G.L. c. 231A, challenging the constitutionality of the sentencing scheme for murder in the first degree set forth in G.L. c. 265, § 2, as it applied to Diatchenko.⁵ He also sought a declaration that art. 26 categorically bars the imposition of a sentence of life without parole on offenders who were under the age of eighteen when they committed murder in the first degree. The single justice reserved and reported the entire matter to the full court without decision.⁶ We now consider whether Miller is retroactive and, if so, the import of the rule announced in that case on the constitutionality of the sentencing scheme set forth in G.L. c. 265, § 2, and the appropriate remedy for Diatchenko and other similarly situated individuals to the extent that they currently are serving mandatory life sentences without the possibility of parole.⁷ For the reasons that follow, we conclude that the Supreme Court's decision in Miller has retroactive application to cases on collateral review. We further conclude that the mandatory imposition of a sentence of life in prison without the possibility of parole on individuals who were under the age of eighteen when they committed the crime of murder in the first degree violates the prohibition against “cruel or unusual punishments” in art. 26 of the Massachusetts Declaration of Rights, and that the discretionary imposition of such a sentence on juvenile homicide offenders also violates art. 26 because it is an unconstitutionally disproportionate punishment when viewed in the context of the unique characteristics of juvenile offenders.⁸

1. Miller analysis of Eighth Amendment landscape. In Miller, 132 S.Ct. at 2460–2463, two fourteen year old offenders were convicted of murder, and each was sentenced to life in prison without the possibility of parole.⁹ In both cases, the sentencing authority did not have any discretion to impose a different punishment that would take into consideration the unique characteristics of juvenile offenders. Id. The Supreme Court's holding that “mandatory life without parole for those under the age of [eighteen] at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments,’ ” id. at 2460, was based on “two strands of precedent reflecting [the Court's] concern with proportionate punishment.” Id. at 2463.

The first strand of precedents “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Id. See, e.g., Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)( Graham ) (Eighth Amendment prohibits imposition of life in prison without parole on juvenile offenders convicted of nonhomicide crimes who were under eighteen years of age when crimes were committed); Kennedy v. Louisiana, 554 U.S. 407, 421, 446–447, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (Eighth Amendment prohibits imposition of death penalty for crime of rape of child where crime did not result, and was not intended to result, in death of victim); Roper v. Simmons, 543 U.S. 551, 568, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)( Roper ) (Eighth Amendment prohibits imposition of death penalty on juvenile offenders who were under eighteen years of age when crimes were committed); Atkins v. Virginia, 536 U.S. 304, 318–321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (Eighth Amendment prohibits execution of “mentally retarded” offenders). Of particular significance here, the decisions in Graham and Roper established that juvenile offenders are “constitutionally different from adults for purposes of sentencing” because they have “diminished culpability and greater prospects for reform,” and, therefore, they do not deserve “the most severe punishments.” Miller, 132 S.Ct. at 2464. See Graham, supra at 68, 130 S.Ct. 2011;Roper, supra at 569–571, 125 S.Ct. 1183.

Relying on science, social science, and common sense, the Supreme Court in Miller pointed to three significant characteristics differentiating juveniles from adult offenders for purposes of Eighth Amendment analysis. Miller, supra. First, children demonstrate a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking.” Id., quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183. Second, children “ ‘are more vulnerable ... to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’[;] and [they] lack the ability to extricate themselves from horrific, crime-producing settings.” Miller, supra, quoting Roper, supra. Finally, “a child's character is not as ‘well formed’ as an adult's; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ ” Miller, supra, quoting Roper, supra at 570, 125 S.Ct. 1183. In essence, these distinctive characteristics of youth, which do not vary based on the nature of the crime committed, “diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Miller, supra at 2465.

The second strand of precedents underpinning Miller “prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death.” Miller, 132 S.Ct. at 2463–2464. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 105, 110–112, 116, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (Eighth Amendment prohibits imposition of death penalty absent individualized consideration of relevant mitigating evidence, including character and record of defendant and circumstances of offense); Lockett v. Ohio, 438 U.S. 586, 604–605, 608, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion) (same); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion) (same). The Supreme Court recognized in Miller, based on its death penalty jurisprudence, that a defendant who is going to be subjected to a State's harshest penalty must “have an opportunity to advance, and the judge or jury a chance to assess, any mitigating factors, so that the death penalty is reserved only for the most culpable defendants committing the most serious offenses.” Miller, supra at 2467. In particular, “a sentencer [must] have the ability to consider the ‘mitigating qualities of youth.’ ” Id., quoting Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).

The confluence of these two strands of precedents led the Supreme Court to conclude in Miller that a sentencing scheme that punishes offenders who commit murder when they are under the age of eighteen by imposing a mandatory sentence of life in prison without the possibility of parole wholly precludes consideration of the unique characteristics of juvenile offenders and “disregards the possibility of rehabilitation even when the circumstances most suggest it.” Id. at 2468. Such a sentencing scheme violates the principle of proportionality and, therefore, the Eighth Amendment's prohibition against cruel and unusual punishment. Id. at 2469, 2475. The Supreme Court declined to consider whether the Eighth Amendment...