Quegan v. Massachusetts Parole Bd.

• Decision Date: 05 December 1996
• Citation: 423 Mass. 834,673 N.E.2d 42
• Parties: Edward L. QUEGAN v. MASSACHUSETTS PAROLE BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 42

673 N.E.2d 42

423 Mass. 834

Edward L. QUEGAN v. MASSACHUSETTS PAROLE BOARD.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 9, 1996.

Decided Dec. 5, 1996.

Benjamin H. Keehn, Committee for Public Counsel Services, for plaintiff.

R. Michael Cassidy, Assistant Attorney General, for Massachusetts Parole Board.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

WILKINS, Chief Justice.

A Superior Court judge dismissed the complaint of the plaintiff (Quegan) which, as amended, sought a declaration that the defendant, Massachusetts Parole Board (board), in deciding whether to grant Quegan parole, may not consider his refusal to admit his guilt of the crimes for which he was sentenced. ¹ Quegan appealed. The board has appealed the denial of its motion to disqualify the Committee for Public Counsel Services (CPCS) from representing Quegan. We allowed Quegan's application for direct appellate review.

The complaint alleged that Quegan appeared before a parole hearing panel (see 120 Code Mass.Regs. § 301.07 [1993] ) for an initial parole release hearing on September 2, 1993, where, when asked, he denied having committed the offenses for which he had been incarcerated. Quegan was denied parole, for the following reason:

"[A]lthough Mr. Quegan was tried and found guilty he does not take any responsibility for his offense toward his five year old daughter. The Board noted that Mr. Quegan claims innocence and is currently seeking relief through the courts. Mr. Quegan also stated that he attends sex offender counseling only to prevent a return to high security. The panel felt that Mr. Quegan showed no insight into his behavior."

Quegan appealed the decision administratively, and the board denied the appeal on the stated ground that Quegan "had committed a serious offense and was at a high risk to reoffend." On appeal, the board did not rely on, or even discuss, the reasons given for denial of parole by the initial parole hearing panel.

1. Quegan argues that the denial of parole because a prisoner maintains his innocence violates rights protected by the United States Constitution and the Constitution of the Commonwealth. The board responds first that we should not discuss the merits of Quegan's claim because the controversy is moot. We agree that the controversy is moot. See Commissioner of Correction v. Ferguson, 383 Mass. 651, 653-654, 421 N.E.2d 444 (1981); Blake v. Massachusetts Parole Bd., 369 Mass. 701, 706-707, 341 N.E.2d 902 (1976). In June, 1996, a Superior Court judge granted Quegan a new trial on the criminal charges on which he was sentenced, and he has been released from custody. The Commonwealth, however, has appealed the allowance of the motion for a new trial. If the Commonwealth succeeds in its appeal, the issue of the board's right to consider Quegan's unwillingness to admit his guilt could again become a live issue. The basic question presents an issue, in any event, that is likely to recur, is of general importance, and has been fully briefed. In our discretion, we elect to discuss it. Cf. Ott v. Boston Edison Co., 413 Mass. 680, 683, 602 N.E.2d 566 (1992).

2. Quegan advances two constitutionally based challenges to the board's right to deny a prisoner parole on the ground that he maintains his innocence. One claim is that it violates due process of law to deny parole because a prisoner will not admit his guilt of the crime for which he is serving a sentence. The other claim is that a denial of parole because a prisoner maintains his innocence penalizes him for exercising his constitutional rights to be free from compelled self-incrimination.

Quegan has no effective due process of law argument. Federal due process protections are inapplicable because Quegan does not have a constitutionally protected liberty interest in receiving parole. See Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 2104-06, 60 L.Ed.2d 668 (1979); Greenman v. Massachusetts Parole Bd., 405 Mass. 384, 388-389 n. 3, 540 N.E.2d 1309 (1989); Commonwealth v. Hogan, 17 Mass.App.Ct. 186, 191, 456 N.E.2d 1162 (1983). Nothing in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), calls for a different conclusion. While art. 12 of the Massachusetts Declaration of Rights might extend greater procedural protections to Quegan than does the Federal Constitution (see Lanier v. Massachusetts Parole Bd., 396 Mass. 1018, 1019, 489 N.E.2d 670 [1986] ), consideration in a parole decision of a prisoner's acknowledgment of his wrongdoing or of his refusal to acknowledge his guilt is not arbitrary or unfair. Cf. United States v. De Leon Ruiz, 47 F.3d 452, 455-456 (1st Cir.1995) (consideration in sentencing of a defendant's pretrial responsibility for his offense where defendant pleaded guilty, but no consideration of a postconviction acknowledgment of responsibility after a guilty finding, presents tough choice for defendant "but it is not unconstitutional"). The Legislature has indicated that, among the relevant considerations for the parole board, is "how the prisoner then regards the crime for which he is in prison." G.L. c. 127, § 136 (1994 ed.). It must be remembered that, although the system is not infallible, a jury found such a prisoner guilty beyond a reasonable doubt.

Certainly, a prisoner's acknowledgment of guilt would be a relevant factor in deciding whether the prisoner is likely to be rehabilitated. The absence of such an acknowledgment provides no weight on the scale in favor of parole, and thus, in a sense, has a negative effect on a prisoner's parole application. We leave to a later case, if it should ever arise, the question whether due process forbids denial of parole solely because a prisoner, who was otherwise fully qualified for release on parole, did not acknowledge his guilt. In Commonwealth v. Fernandes, 390 Mass. 714, 715 n. 1, 459 N.E.2d 787 (1984), the court questioned the wisdom and fairness of any practice that denied parole because a prisoner maintained his innocence. That is not what the board relied on in rejecting Quegan's administrative appeal. Rather, the board's decision implicitly rejected the reasoning of the initial parole release hearing panel.

Quegan argues that a requirement that a prisoner take responsibility for his wrongdoing, before the board will grant him parole violates the prisoner's right against self-incrimination under the Fifth Amendment to the Constitution of the United States and art. 12. He points out that, if a prisoner were to admit his guilt, he would be prejudicing his position if a judge were to grant him a new trial. Indeed, if he were to admit guilt he could well prejudice any attempt to obtain a new trial.

The problem with Quegan's argument is that the denial of parole has not been viewed as a penalty for Fifth Amendment purposes. Hence, a prisoner who is denied parole is not punished for his unwillingness to admit his guilt. The result of Quegan's unwillingness would be that he would continue to serve the sentence already imposed. The prohibition against imposing substantial penalties because a person has elected to exercise his Fifth Amendment right not to give incriminating testimony against himself (see Minnesota v. Murphy, 465 U.S. 420, 434, 104 S.Ct. 1136, 1145-46, 79 L.Ed.2d 409 [1984] ), has no application in these circumstances. See, e.g., United States v. Hull, 792 F.2d 941, 943 (9th Cir. 1986) (denial of probation because defendant did not express remorse did not punish her for exercising her Fifth Amendment right against self-incrimination); Gollaher v. United States, 419 F.2d 520, 530-531 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969) (Fifth Amendment right not infringed where defendant, who insisted on innocence, was "unwilling to take the first step toward rehabilitation" and was sentenced accordingly); Knowles v. Warden, N.H. State Prison, 140 N.H. 387, 666 A.2d 972, 977 (1995) (prisoner, who declined to participate in sexual offender program because to do so required him to admit guilt, not compelled to participate in program and hence privilege against self-incrimination not violated). Cf. Paz v. Warden, Fed. Correctional Inst., Englewood, Colo., 787 F.2d 469, 473 (10th Cir.1986) ("We recognize that an offender's inability to accept responsibility for the wrongfulness of his conduct may properly be considered by the Parole Commission in determining that the offender has not been rehabilitated"). Opinions concerning the loss of liberty because of revocation of parole present a different free speech...