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SJC Strikes Down Lifetime Community Parole for Sex Offenders

justice-srb-1-1040136-mUp until this week, Massachusetts law allowed for the imposition of community lifetime parole (CPSL) under G. L. c. 127 § 133D. CPSL is intensive parole supervision by the parole board. It may only be imposed after a defendant is convicted of a sex offense. A CPSL sentence begins after a defendant has completed a committed or probationary sentence on the underlying criminal offense, and lasts for life. While on CPSL, a defendant is subject to a set of mandatory conditions, as well as various other conditions, that may imposed at the discretion of the parole board. If a defendant violates a condition of CPSL, the parole board is required to send him back to jail – for 30 days for the first violation, 180 days for the second violation, and 1 year for every violation after that.

This past week, however, in Commonwealth v. Cole, the Supreme Judicial Court determined that the statute authorizing CPSL is unconstitutional because it violates the separation of powers doctrine. In Cole, the defendant pled guilty to a sex offense and was classified as a level 2 sex offender. He was required to register with the Sex Offender Registry Board (SORB), and provide SORB with notice of any change of address. The defendant failed to notify SORB that he had moved from Brockton to Taunton and was charged with failure to register. He pled guilty and was sentenced six months probation and CPSL. The defendant completed his probationary term and began his CPSL sentence. Once his CPSL sentence was imposed, the defendant filed a motion to correct his sentence on the ground that he should not have been sentenced to CPSL for several reasons, including the fact that CPSL is unconstitutional under the separation of powers doctrine.

In its decision, the SJC noted that even though CPSL is referred to as “parole,” it is much more similar to probation. Specifically, when a person is on parole, the parole board has the authority to release a person from his committed sentence if the board finds that that person will live and remain at liberty without violating the law and the release is not incompatible with public safety. The board can establish and enforce conditions of parole. If a person violates those conditions, the board has the authority to send him back to jail, but only for the remainder of the original committed sentence – for example, if the person was sentenced to 2 years in prison, was paroled after 1 year, and violated a condition of parole, the board could only send him back to jail for the remaining year left on the sentence – the board does not have the ability to extend the original term of incarceration, and therefore could not order the person to be serve anything beyond the original 2 years. In contrast, with CPSL, the board does have the authority to send a person back to jail for longer than the original sentence, thereby increasing the term of imprisonment and ordering additional incarceration above and beyond what the court originally ordered – as stated above, 30 additional days for the first violation, 180 additional days for the second violation, and an additional year for every violation after that.

The separation of powers doctrine, laid out under Article 30 of the Massachusetts Declaration of Rights, states that, in the criminal context, the legislature has the authority to define crimes and establish the penalties. The judicial branch has the authority to try those charged with crimes and sentence those who are convicted. The executive branch has the authority to execute the sentences. In applying the doctrine to the CPSL statute, the SJC determined that the statute is unconstitutional because it allows the parole board, which is part of the executive branch, the authority to increase the original term of incarceration, thereby sentencing defendants. Because only the judicial branch has the authority to sentence defendants, the SJC held that the statute violates the separation of powers doctrine. The SJC also noted the important procedural consequences of treating those on CPSL as parolees rather than probationers – specifically, probationers have the right to counsel at a probation violation hearing, the right to judicial review if there is a finding of a violation, and the right to a public hearing. Parolees have none of these procedural safeguards.

The SJC went on to point out that changes could be made to the language of the CPSL statute that could make it constitutional – specifically, the SJC stated that if the statute required that a judge, rather than the parole board (or another executive agency), determine whether a sex offender has violated a condition of supervised release, and whether a new sentence should be imposed, the separation of powers doctrine would not be violated.

The SJC then stated that the entirety of the statute must be struck down, as the unconstitutional portions of the statute were too intertwined with the remaining portions to let the remaining portions stand.

Finally, the Court stated that while re-sentencing for those illegally sentenced to CPSL could be done in some circumstances, if such re-sentencing increased the aggregate punishment imposed on a defendant, it would be barred by double jeopardy. In Cole’s case, because he had already completed the probationary sentence, any re-sentencing would increase the aggregate punishment imposed, and therefore could not be done.

If you or a loved one is charged with a sex offense, the Cole decision may have a significant impact on any potential sentence that may be imposed. You will need an experienced attorney who is aware of the changes in the law and who can use them to your benefit. Attorney Daniel Cappetta is such an attorney. Call him today for a free consultation.

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