Parole

Parole

Parole matters have historically fallen outside of PLS’ priority areas. However, beginning in January 2011, the Parole Board membership and procedures changes made it much more likely than before that people would be denied parole, spend long periods waiting for decisions, and be revoked or denied parole unfairly. Following a much-publicized incident in which a parolee killed, and was killed by, a police officer in December 2010, the Parole Board came under intense scrutiny.  With the replacement of five of its seven members, the Parole Board has been granting parole much less frequently and revoking parole more often – particularly regarding those sentenced to life with the possibility of parole. The current Board has also continued at least some of the, arguably, extralegal practices of previous boards.

In light of these circumstances, PLS is now involved in educating the Parole Board, policymakers, and the public. PLS is also advising and advocating on behalf of some parolees seeking release or re-release on parole.

An area of particular concern for PLS is the revocation and rescission of parole. In the case of individuals sentenced to second-degree life sentences, the Parole Board has not been abiding by the procedural requirements established by regulation and Constitutional doctrine. The Board’s improvised procedures add steps to the decision-making process, sometimes flout fixed time limits, significantly delay a final resolution, and do not conform to the Board’s obligations to provide written explanations of its decisions or to assess a parolee’s right to appointed counsel.  As a result, such proceedings may last a year or more and very often yield unfavorable decisions, even where the alleged violations have no objective relationship with the parolee’s likelihood of success in the community. We are also concerned about possible discrimination against those with disabilities, such as substance abuse disorder or mental illness.

Here is some helpful information we have gathered so far

About Parole in Massachusetts

Parole is a major concern for incarcerated people and their families. The minimum requirements for parole eligibility, rescission, and revocation are set out in G.L. c. 127, §§ 128 -136, as well as in 120 CMR 1.00 – 902.  Information about the Parole Board and its upcoming public hearings and decisions in second-degree life sentence cases can be found on the Parole Board’s website.

Generally speaking, people serving second-degree life sentences are eligible for parole upon serving the minimum number of years set at sentencing (between fifteen and twenty-five years). People serving life sentences for first-degree murder who were under eighteen at the time the crime was committed are eligible for parole upon serving the minimum number of years set at sentencing (between twenty and thirty years). If denied parole, they will have a review parole hearing within five years. See G.L. c. 127, § 133A. Other people sentenced to a term of sixty days or more are eligible for parole upon serving the minimum sentence, and get review hearings every year. See G.L. c. 127, § 133. People declared to be habitual offenders are eligible for parole at half the maximum sentence and will be reviewed again within two years of a denial. G.L. c. 127, § 133B.

The Massachusetts Parole Board is the government agency that determines if and when a person is released on parole, what conditions a parolee must comply with to stay out on parole, and whether his or her parole should be revoked for a violation of those conditions. The composition and powers of the Parole Board are detailed in G.L. c. 27, §§ 4 and 5.

The Parole Board may grant parole if it “is of the opinion, after consideration of a risk and needs assessment, that there is a reasonable probability that, if such a person is released with appropriate conditions and community supervision, the person will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society.” G.L. c. 127, § 130.

Information for Incarcerated Individuals, Parolees, and Families

The following information is intended to help incarcerated people, parolees, and their family members understand the Parole Board’s procedures on:

  • Parole Revocation for Lifers
  • Parole Denial
  • Representation at Parole Hearings
  • Contact the Parole Board

To contact the Parole Board for information on your case or the case of a loved one, call or write:

Massachusetts Parole Board
12 Mercer Road
Natick, MA 01760
Phone: (508) 650-4500
Fax: (508) 650-4599

Life Sentence Unit
Director: Joyce Crosby: (508) 650-4515

You may also contact the prison where you or your loved one lives and ask to speak with the Institutional Parole Officer.

Parole Denial

The Parole Board is statutorily authorized to grant parole “only if the parole board is of the opinion, after consideration of a risk and needs assessment, that there is a reasonable probability that, if such a person is released with appropriate conditions and community supervision, the person will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society.” G.L. c. 127, § 130. “No prisoner shall be granted a parole permit merely as a reward for good conduct.” G.L. c. 127, § 130. The Board is authorized to consider a wide range of materials and factors in making parole determinations, including:

  1. reports and recommendations from parole staff;
  2. official reports of the inmate’s prior criminal record, including a report or record of earlier probation and parole experiences;
  3. any pending cases;
  4. pre-sentence investigation reports;
  5. official reports of the nature and circumstances of the offense including, but not limited to, police reports, grand jury minutes, decisions of the Massachusetts Appeals Court or the Supreme Judicial Court, and transcripts of the trial or the sentencing hearing;
  6. statements by any victim of the offense for which the offender is imprisoned about the financial, social, psychological, and emotional harm done to or loss suffered by such victim;
  7. reports of physical, medical, mental, or psychiatric examination of the inmate;
  8. any information that the inmate may wish to provide the parole hearing panel, including letters of support from family, friends, community leaders, and parole release plans; and
  9. information provided by the custodial authority, including, but not limited to, disciplinary reports, classification reports, work evaluations, and educational achievements. 120 CMR 300.05(1).

Those incarcerated in Massachusetts have no protected liberty interest in parole, meaning due process protections are inapplicable. See Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836-37, N.E.2d 42 (1996). Nonetheless, the Parole Board’s decisions may be challenged through certiorari review when they are allegedly arbitrary, capricious, or based on an error of law. See M.G.L. c. 249, § 4; Scott v. Walsh, 68 Mass.App. Ct. 1108, *1-2, 861 N.E.2d 811 (Mass.App.Ct., 2007). An action for certiorari review must be filed within 60 days of the last administrative action (e.g., the decision on appeal). However, the Parole Board has considerable discretion, and courts are not eager to overturn its decisions. See, e.g. See Hudson v. Walsh, No. 2007–880–C, 2008 WL 517631 (Mass. Super. Ct Feb. 4, 2008); Greenman v. Mass. Parole Bd., 405 Mass. 384, 387 (1989).

However, you have the right to appeal the denial of parole or the imposition of special conditions within 30 days of receiving written notice of the decision. See 120 CMR 304.02(1). Specifically, the regulations state:

“An inmate may appeal a decision of a parole hearing panel to deny, rescind or revoke parole. An inmate may also appeal the grant of parole when such release is granted on a date other than the initial parole eligibility date, and/or the imposition of special conditions of parole. Any appeal must be made in writing and within 30 days of the subject’s receipt of written notice of the decision.”

120 CMR 304.02(1). If the initial appeal is denied, “the inmate may further appeal to the Full Board within 30 days of receiving notice of the appeal.” 120 CMR 304.02(2). The full Board’s decision is final.

All appeals must be made in writing and submitted to the Institutional Parole Officer, who will inform you of the outcome. Your appeal must specify one or more of the following reasons (120 CMR 304.02(3)):

  1. That the decision was not supported by the reasons or facts as stated.
  2. That the decision was based on erroneous information and the facts justify a different decision.
  3. That the hearing panel did not follow the correct procedure in deciding the case, and a different decision would have resulted if the error had not occurred.
  4. There was significant relevant information in existence but not known to the parole hearing panel at the time of the hearing.
  5. The special conditions of parole are unfair and cannot be obeyed under the circumstances and should be amended by the Parole Board Members.

You may also request reconsideration of a Parole Board decision to deny parole or to grant parole subject to special conditions. If you submit your request for reconsideration together with an appeal, you must submit both within 30 days of receiving notice of the decision. Otherwise, if you submit a request for reconsideration on its own, you must wait at least 90 days from the date of notification to do so. A petition for reconsideration must not be based on the same grounds as an appeal or previously rejected request for reconsideration and must state facts supporting one or more of the following four grounds (120 CMR `304.03(1)):

  1. There is a material change in personal or other circumstances which requires a different decision.
  2. The tasks mandated by the parole hearing panel have been accomplished.
  3. Especially mitigating circumstances justify a different decision.
  4. There are compelling reasons why a more lenient decision should be rendered.

Representation at Hearings

Incarcerated people are entitled to legal representation at parole hearings on a second-degree life sentence, parole rescission hearings, preliminary parole revocation hearings, and final parole revocation hearings, but are generally not entitled to legal representation at other parole release hearings. At the preliminary and final revocation hearings, parolees must be informed of their right to be represented by an attorney or law student or by someone qualified to assist the parolee if he/she has a disability or condition that makes it difficult to understand or communicate. 120 CMR 303.12(2), 303.23(7) [PDF].

Although incarcerated people do not ordinarily have the right to counsel at a release hearing, the parole hearing panel may, in its discretion, permit a qualified individual to represent an inmate who, because of a mental, psychiatric, medical, physical condition or language barrier, is not competent to offer testimony at or understand the proceedings of an initial release or review hearing. 120 CMR 308(2)(b).

Under some circumstances, and particularly when an indigent parolee faces a significant risk of re-imprisonment in parole revocation proceedings, he or she has a right to appointed counsel paid for by the Commonwealth. See Gagnon v. Scarpelli, 411 U.S. 778, 782, n.3 (1973); Commonwealth v. Patton, 458 Mass. 119 (Mass. 2010); Marsh v. Mass. Parole Bd., No. Civ. A. 97-3751-B, 1997 WL 781443 (Mass. Super. Nov. 21, 1997). To be appointed counsel, a parolee must request it.

If you or your loved one is facing a hearing on a second-degree life sentence, rescission or revocation, while PLS cannot represent you, you may be able to obtain representation through one of the following law school programs:

PLAP (Prisoner Legal Assistance Project) at Harvard Law School
6 Everett Street, Suite 5107
Harvard Law School
Cambridge, MA 02138
(617) 495-3969
(617) 495-3127 (prisoner hotline; collect)

Provides representation at disciplinary hearings, parole rescission/ revocation, and 15-year (second-degree lifer) parole hearings, as well as some DDU hearings, assistance with sentence calculation, lost property, and denial of visitation. Covers all Massachusetts prisons.

Parole Revocation for Lifers

The parole revocation process is governed by Massachusetts statute and regulations. In general terms, these provisions lay out the following process:

Parole Revocation Process

The parole officer issues a warrant for temporary custody (also called a detainer) upon reasonable belief that a parolee has or is about to lapse into criminal ways, associate with criminal company, or violate the conditions of his parole. See M.G.L. c.127, §149A; 120 CMR 303.04.

A hearing officer conducts a preliminary revocation hearing within fifteen days unless probable cause of a violation is established by other means, such as through criminal proceedings. Parolees may request postponement of this hearing in order to obtain legal representation or arrange for the attendance of witnesses. See 120 120 CMR 303.06-303.12.

The Parole Board reviews the hearing officer’s recommendation and either releases the parolee or issues a parole violation warrant and schedules a final revocation hearing to be held within approximately 60 days of its preliminary decision. See 120 CMR 303.13-303.18.

At the final revocation hearing, a panel of Parole Board members determines whether there has been a violation of parole conditions and, for non-lifers, decides whether to set a reparole date or deny reparole. Parolees are entitled to representation by an attorney or law student at the hearing and may present witnesses and documentary evidence. See 120 CMR 303.23, 303.25. The Board notifies the parolee within 21 days of reaching a decision to revoke parole. See 120 CMR 303.26.

In the case of those serving second-degree life sentences, the Parole Board’s practice has been to hold an additional hearing on the question of whether or not to reparole the person after it finds that a violation occurred. These “reparole” hearings are often postponed for many months. However, this practice is not authorized by the regulations, and lifers in this situation should inform PLS of their individual circumstances.

In order to revoke parole, the Board must find that it is more likely than not that the parolee violated a condition of his parole, based on “any reliable and relevant information available to it.” 120 CMR 303.23(4). Additionally, when the Board finds a violation occurred and is deciding whether to grant or deny reparole, it must consider “all relevant information regarding the parolee’s suitability to be returned to parole supervision,” including his or her institutional and criminal history. 120 CMR 303.24(2)(g); 120 CMR 300.05(1). The Parole Board is statutorily authorized to grant parole “only if the parole board is of the opinion that there is a reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society.” M.G.L. c.127, §130.

Prisoners’ Rights in Revocation Proceedings

Those incarcerated in Massachusetts have a protected liberty interest in remaining on parole, meaning due process protections apply to parole revocation proceedings. See Morrissey v. Brewer, 408 U.S. 471 (1972); cf. Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1 (1979). Accordingly, and as established in Massachusetts regulations, parolees are entitled to written notice of the alleged violations of parole, disclosure of the evidence against them, an opportunity to speak and present witnesses and documentary evidence at a hearing before a neutral and objective decision-maker, the right to cross-examine witnesses, and a written decision identifying the reasons for revoking parole. See 120 CMR 303.12, 303.23, 303.26; Commonwealth v. Maggio, 414 Mass. 193, 195-197 (1993). Further, the final revocation hearing must occur “within a reasonable time” after the parolee’s arrest. Morrissey v. Brewer, 408 U.S. at 488; see also United States v. Montalvo-Murillo, 495 U.S. 711 (1990).

At the preliminary and final revocation hearings, parolees must also be informed of their right to be represented by an attorney or law student or by someone qualified to assist the parolee if he/she has a disability or condition that makes it difficult to understand or communicate. 120 CMR 303.12(2), 303.23(7). Under some circumstances, and particularly when an indigent parolee faces a significant risk of re-imprisonment in parole revocation proceedings, he or she has a right to appointed counsel paid for by the Commonwealth. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3, 790-91 (1973); Commonwealth v. Patton, 458 Mass. 119 (Mass. 2010); Marsh v. Mass. Parole Bd., No. Civ. A. 97-3751-B, 1997 WL 781443 (Mass. Super. Nov. 21, 1997). To be appointed counsel, you must make this request.

If counsel is not appointed, you may be able to obtain representation at a parole hearing.

Right to Appeal or Seek Reconsideration

Parolees have the right to appeal a revocation decision within 30 days of receiving notice of a decision to deny, rescind, or revoke parole or grant parole subject to a postponed reserve date or special conditions. 120 CMR 304.02(1). If the initial appeal is denied, you may submit an additional appeal to the full Parole Board within thirty days of receiving notice of the denial of your first appeal. 120 CMR 304.02(2). The full Board’s decision is final.

All appeals must be made in writing and submitted to the Institutional Parole Officer, who will inform you of the outcome. Your appeal must specify one or more of the following reasons why you believe the decision is unfair or flawed: (a) the decision was not supported by the reasons or facts stated; (b) the decision was based on erroneous information; (c) the hearing panel came to the wrong conclusion because it did not follow correct procedure; (d) the hearing panel was not aware of significant relevant information; or (e) the special conditions are unfair and should be amended. See 120 CMR 304.02(3).

You may also request reconsideration of a Parole Board decision to deny or revoke parole or to grant parole subject to special conditions. If you submit your request for reconsideration together with an appeal, you must submit both within 30 days of receiving notice of the decision. 120 CMR 304.02, 304.03. Otherwise, if you submit a request for reconsideration on its own, you must wait at least 90 days from the date of notification to do so. A petition for reconsideration must not be based on the same grounds as an appeal or previously-rejected request for reconsideration and must state facts supporting one or more of four specific grounds: (a) a material change in personal or other circumstances requires a different decision; (b) the tasks mandated by the parole hearing panel have been accomplished; (c) especially mitigating circumstances justify a different decision; or (d) there are compelling reasons that justify a more lenient decision. 120 CMR 304.03(1).

Potential Grounds for Legal Action

When the minimum due process rights mentioned above are not protected in the parole revocation proceedings – or if the Parole Board fails to comply with its own regulations, a parolee may file suit against the Parole Board for injunctive and declaratory relief in state court. When a court grants injunctive relief, it orders the defendant to take specific action or to refrain from taking specific action.

Declaratory relief is a statement by the court that the defendant’s actions violated the law or the plaintiff’s constitutional rights. To pursue declaratory or injunctive relief, a parolee must first exhaust administrative remedies by appealing or seeking reconsideration of the Parole Board’s decision. See, e.g., Washington v. Massachusetts Parole Bd., 54 Mass.App.Ct. 1114 (2002), rev. denied, 437 Mass. 1105 (2002).

The Parole Board’s decisions may also be challenged as arbitrary, capricious, or based on an error of law through certiorari review. See M.G.L. c. 249, § 4; Scott v. Walsh, 68 Mass.App.Ct. 1108, *1-2 (Mass.App.Ct. 2007). An action for certiorari review must be filed within 60 days of the last administrative action (e.g., the Parole Board’s decision on appeal). However, the Parole Board has considerable discretion, and courts are not eager to overturn its decisions. See Hudson v. Walsh, No. 2007–880–C, 2008 WL 517631 (Mass. Super. Feb. 4, 2008); Greenman v. Mass. Parole Bd., 405 Mass. 384, 387 (1989).

Federal habeas corpus may also be used to challenge allegedly unconstitutional parole revocation procedures after exhausting state law remedies. Spencer v. Kemna, 523 U.S. 1 (1998); DeWitt v. Ventetoulo, 6 F.3d 31, 36-37 (1st Cir. 1993), cert. denied, 511 U.S. 1032 (1994). To prevent a petition for habeas corpus from becoming moot when the person wraps up his sentence, he or she must show he or she continues to suffer negative consequences (injury-in-fact) as a direct result of the revocation. Id. at 14-18.

Parolees cannot seek monetary damages or declaratory relief under Section 1983 (42 U.S.C. § 1983) where the plaintiff implies or argues that the revocation decision is invalid because of flaws in the proceedings unless the revocation has already been invalidated by a state court or called into question by a grant of federal habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 490 (1994); White v. Gittens, 121 F.3d 803 (1st Cir. 1997); Ali v. Hubbard, 125 F.3d 841 (1st Cir. 1997) (table). However, Section 1983 may be used where the plaintiff simply challenges the proceedings, not the result, and the procedural flaws do not “necessarily imply the invalidity of” the revocation decision. Spencer v. Kemna, 523 U.S. 1, 17 (1998), quoting Heck, 512 U.S. at 487. Further, Section 1983 can be used to seek prospective declaratory or injunctive relief where a parolee seeks future compliance with constitutional requirements (rather than new proceedings or release). See Wilkinson v. Dotson, 544 U.S. 74 (2005); Phillips v. Conrad, 2011 WL 309677 (D.Mass. 2011).

Where a parolee believes that the Parole Board relied on inaccurate information and seeks a correction of the file and/or a new hearing where accurate evidence is used, he or she may also file a Section 1983 action. See Phillips v. Conrad, 2011 WL 309677 (D.Mass. 2011). However, in such cases, only declaratory relief is available, and the parolee cannot be granted injunctive relief against the Parole Board and cannot recover monetary damages or attorney’s fees. Id.

Right to Appeal or Seek Reconsideration

If you have not appealed the denial, please be advised that you have the right to do so within 30 days of receiving written notice of a decision to deny, rescind or revoke parole or to grant parole subject to a postponed reserve date or special conditions. 120 CMR 304.02(1). If the initial appeal is denied, you may submit an additional appeal to the full Parole Board within thirty days of receiving notice of the denial of your first appeal. 120 CMR 304.02(2). The full Board’s decision is final.

All appeals must be made in writing and submitted to the Institutional Parole Officer, who will inform you of the outcome. Your appeal must specify one or more of the following reasons why you believe the decision is unfair or flawed:

  • The decision was not supported by the reasons or facts stated
  • The decision was based on erroneous information
  • The hearing panel came to the wrong conclusion because it did not follow the correct procedure.
  • The hearing panel was not aware of significant relevant information, or the special conditions are unfair. See 120 CMR 304.02(3)

You may also request reconsideration of a Parole Board decision to deny or revoke parole or to grant parole subject to special conditions. If you submit your request for reconsideration together with an appeal, you must submit both within 30 days of receiving notice of the decision. Otherwise, if you submit a request for reconsideration on its own, you must wait at least 90 days from the date of notification to do so. A petition for reconsideration must not be based on the same grounds as an appeal or previously rejected request for reconsideration and must state facts supporting one or more of four specific grounds ( 120 CMR 304.03(1))

  • A material change in circumstances
  • Fulfillment of the pre-conditions
  • Mitigating circumstances
  • Compelling reasons for a different decision. 

If you have additional questions or concerns that you would like assistance with, please call us during our intake hours on Monday (or Tuesday if Monday is a holiday):

1:00pm – 4:00pm

or write us a letter to:

50 Federal Street
4th Floor
Boston, MA 02110


PRISONERS’ LEGAL SERVICES

50 Federal St., 4th Floor, Boston MA 02110