-: SJC 1 1 6 93 Commonwealth v Sheldon Mattis.
(shuffling papers)
-: Okay, Attorney Schiff, whenever you're ready.
-: [ Attorney Schiff] Thank you.
(shuffling papers)
-: Good morning. And may it please the court,
I'm Ryan Schiff and I'm here on behalf of Sheldon Mattis.
With me are Ruth Greenberg and Paul Rudolph.
I'd like to begin by addressing Justice Lowy's questions
about why 21 should be the cutoff.
-: Why, to be specific,
why the court should consider 21 as the cutoff
'cause there is
Attorney Schiff: Correct.
-: all sorts of reasons.
Good darn good reasons for your position
about 18 to 20 year olds.
Very good arguments that were well made.
Attorney Schiff: Yes.
-: It's not whether they should be parole eligible,
it's whether the court should decide whether
they should be parole eligible
'cause it's a constitutional issue.
-: Correct, your Honor.
So we're the place where we think the court should look for
a model of the kind of analysis is
to the Supreme Court's decision in Roper.
And the reason we think that is most relevant,
there are two reasons.
The first reason is that in that case, as in this case,
the court was looking at whether it should raise the age in
Thompson versus Oklahoma in 1988,
the Supreme Court said that the death penalty was
unconstitutional for those under the age of 16.
So in Roper, the court was in the same position
as this court, deciding whether
it should raise that age to 18.
And then the second is that this whole line of cases,
from Roper to Graham, to Miller, to Diatchenko,
all use 18 without any analysis of why.
And Roper is the only case that
actually looks at why that should be.
And the Roper decision looked at two things.
First, it said that 18 is appropriate because it is, quote,
the a, the point where society draws a line,
for many purposes, between childhood and adulthood.
So that's where we look.
And then the court look to whether the logic of Thompson,
it's 1988 case about those under the age of 16,
applied equally to those under the age of 18.
And that's exactly the dialysis we think you should do here.
When John Adams helped set the groundwork for the formation
of the Boston Bar Association,
an organization that supported us in an amicus brief,
he and every other boss, every other lawyer in Boston,
would've understood, just as Blackstone understood,
that 21 was the age of majority and
that continued to be the age of majority
well into the 20th century.
-: I'm surprised you're focused this way because to me,
Diatchenko supports what, what you, the result you want.
But this starts to sound like just what Justice Lowe
is concerned about, which is policy choices.
I mean, if it's being driven by science,
that's different than if it's being driven
by a policy choice of when you're an adult,
'cause that's what the legislature does.
-: So I don't think it's a policy choice.
I think what we're doing is we're looking at two things.
One is that you're making this decision,
as you said in Diatchenko with the science in mind.
So it is a decision that is informed by science,
but is not ultimately it's a legal determination.
It's not, you're not deferring to science for the answer.
And I think the reason that we're looking
at this long tradition of setting 21,
is for the same reason that the court did in Roper,
we're looking to these kind of societal norms
and then applying the science to that.
And that does a couple things.
One, it avoids some of these concerns of the
Essex County District Attorney's office about,
about a possible slippery slope because we have something
we're looking to and it's something that's firmly grounded
in our society's understanding.
-: As the third separate point on proportionality.
Attorney Schiff: Yes.
-: Would your position as far as a hard stop on 21,
be supported by the 25 states who don't allow for juveniles
to be convicted of first degree murder?
-: I I I think that's a, I think that's a good question.
I I think it does.
I I don't think this court's case law has not done
the kind of head counting that the Supreme Court has done,
looking counting other, and I think for good reason,
that you independently interpret your article 26, but that.
-: The, the third prong of Cepulonis by memory at least,
looks to other jurisdictions.
-: That that is true.
I, I think the more relevant thing to look to though
is the growing consensus,
and certainly the consensus in Massachusetts,
the Judge Holman's findings were correct,
that late adolescents are different than other adults
in very important ways that are relevant to sentencing.
-: He also had a lot of caveats, didn't he?
About some of his finding about the whole conclusion.
Attorney Schiff: He he did,
-: He listed a bunch of things that.
-: So, so he, well he, I don't know if they're problems,
he did talk about these as caveats. I don't know.
I would use the same language.
-: He different, he thought there's a difference
between the subject and the study, right?
In the sub in the prisons and the sub in the
studies that they weren't randomized.
That there's difference in individual brain development
versus groups when you look at them that way.
That the situation was different,
which I guess is your cold in your heart,
and that it is only a correlation, not a causation.
And then finally, I think he said that
there were problems in some of the original studies, right?
So he said there were some that some of the original,
the pre 2013 studies had some problems with their machines.
-: So yeah, I'll, I'll try to address some
of those individual concerns.
The, the global answer to that is the one that he said,
which is that most of these are just sorts of issues that
are true about any kind of science
and they're not unique to this particular science.
And I think he was right to say that, but I,
I do want to address some of these individual concerns.
So the issue with the machines was that it was the way
statistical analysis was done with MRI prior to 2013.
The, the studies that are being relied on here,
the most important ones are post 2013.
And the findings in pre 2013 studies have been,
well while he said like not replicated in that
they did the exact same study,
similar studies have been done
and have found the same kind of results.
Now in terms of the correlation versus causation,
these are correlational studies,
but they're not weaker studies.
Every medical study that's done to figure out
what a good treatment is for any particular disease,
is a correlational study.
You give the, you have two groups, you give the, the,
the treatment to one, you don't give it to the other.
And you see that those people get better.
That's correlation.
And that's what we have here, where they look at the brain.
This is true the FMRI,
not the structural MRI, to get a little bit
into the weed studies.
But with the FM MRI studies,
you expose the person to a particular stimuli,
then you look at the scan and you see that
this part of the brain is lighting up.
Do we know that that means that that is, you know,
or is this causation? No, but it's correlation.
You do X and Y happens,
and we can't do causation studies with living subjects,
with their brains.
That would be unethical.
Now, in terms, I do wanna address the issue
of real world, you know, this is laboratory stuff.
So what about the real world?
And this is one of the great things
about the record in this case.
And I think why you were right to send this back for
creation of the record last two years have shown
us as we've dug into this science,
how much more robust our understanding.
And I hope the understanding we've been able to bring to the
court is about what this science actually shows.
And if there's one thing that's important,
it's that this isn't one field of study
that we're relying on.
Instead there's a convergence of evidence
from multiple scientific disciplines.
And for this point, most importantly, real world data.
So we look at real world data for crime statistics
and also other kinds of risky behaviors in late adolescence.
And what we see is that the stuff that we would expect
to see from the laboratory studies
actually is true in the real world.
There's something called the age crime curve that shows that
as adolescents, as we see this is group data,
but as people move into adolescents,
crime starts to take off and they commit a lot more crimes
that then peaks out sometime in late adolescence and then
drops off exactly what we would expect to see from the
laboratory studies looking at the brains and looking at
behavior through developmental psychology.
-: Isn't that true of 21 year olds too, though?
Justice Lowy: Is that true of 21 year olds?
So the age crime curve starts,
probably starts to drop off a little bit early.
But this is the importance of
what I was talking about before when I was, you know,
talking about the common law understanding,
but it's not only the common law understanding
of the age of majority.
So then with the record, you know,
there's been great scholarship,
and this was cited by the Washington Supreme Court,
of where our age of majority comes from.
And what it shows is that,
you know, Blackstone said that
the age of majority was 21, the founding, the age is 21.
And it continued to be for
-: Yeah, but they also had a age of consent
at like 10 in some states.
So we can't really rely on that.
-: So let me, if, if I may,
I I, the important thing about that,
is that we then see that continuing into the 20th century,
and then around World War II, there's a need for soldiers.
So the age of majority lowers so that
we can have people to go fight the war.
-: Again. Isn't that a legis, that's a legislative judgment.
That's, you know what I mean?
I understand driving the science driving things,
but I don't understand, you know, okay.
The legislature keeps changing its mind.
You know, you could drink at 18, now you can drink at 21.
You know, you could be a soldier
when we need you in World War II.
But those are policy calls.
I I I'm just worried that you're,
you're straying into something that
Diatchenko wasn't relying on and,
and you're looking at a Supreme Court jurisprudence that
allows just what Ms. Campbell's about to argue,
which is this individualized inquiry.
It just seems like you're getting to the wrong spot here.
-: Well, I do think that you need to look to, you.
I, I, I absolutely understand.
I I do think we need to look to the science and the science
needs to, I don't know if drive is the right word,
but certainly inform every step of this analysis.
But for these kinds of, and,
and maybe this is a way also address dressing some of your
concerns, Justice Lowy about Cepulonis.
So the body of case law that this is based on is case law
that came about after 1982 when Cepulonis was decided.
These are categorical bars originally on the death penalty,
but for very serious punishments.
And for those kinds of categorical bars,
two things are important.
One, and this relates to the Cepulonis factors,
is that for these kind, this is the most serious offense.
I'm not shying away from that.
And our argument, just as this court made clear
in Diatchenko, is not that there's dis proportionality
between the offense and the punishment,
rather between the offender and the punishment.
And that's different than the issue that was before the
court court in Cepulonis and those cases that
have strictly applied the Cepulonis factors.
So I think we should look to Diatchenko
for that kind of analysis. So.
-: Have we, so does Diatchenko modify that?
Because if you apply the Cepulonis factors,
the first factor, and again, I'll, I defer to Justice Lowy,
but the first factor is the crime, right?
How serious it is. And this is first degree murder.
The, when we look around the country,
we're way ahead of everyone else.
So that factor also cuts against you.
What the, the, if Diatchenko isn't converting
this into a science-based analysis,
you've got an uphill climb, don't you?
-: I, so I'm, I'm happy to have you decide
this is a science issue because I think we absolutely win.
I, the reason that I'm looking to
the societal norms is because that gives you
a way of saying, well what is that number?
And this is the thing about these categorical rules,
is that there does need to be a definition
of what category it applies to, so well.
-: But that's not what Diatchenko,
Diatchenko did the opposite, right?
It, it didn't try to put a cap.
It, it left it open.
And I'm, I'm surprised you're, 'cause I,
I suspect in two years we're gonna have 23 year olds,
you're gonna be back doing the 23 year old argument.
-: Well, I, I certainly won't be back
making the same argument and I won't be back, I don't think,
because I think it's a harder argument to make
for a 23 year old for death.
-: But it wouldn't be after we decided this case
if we went in your favor.
-: I'm sorry?
-: It wouldn't be that hard if you win today.
-: I, so here, here's why I think 21 is really important.
So after World War II goes to 18, then about 40 years later,
we start to see the problems with having at 18, you know,
in 1980s, President Reagan sets up
for presidential commission to look at traffic fatalities.
And they find that if we raise
the drinking age to 21, guess what?
We're gonna reduce the traffic fatalities.
And they set 21 as the age for purchasing
alcohol across the United States,
the Massa in Massachusetts, when the, the age for raising,
for having a license to carry a firearm was raised.
It was from 18 to not 22, not 2021, when.
-: So you're saying we should raise the age for homicide?
I mean, I don't understand
-: No, no, no. I'm, this is for, this is solely,
you can sentence people to life, right?
It's just whether they're parole consideration that,
you know, what I, what I'm saying is that
just like the court did in Roper,
you look to these commonplace, you know,
where is the distinction between adulthood and childhood set
for many purposes.
And it is just not true that it, that is solely 18.
It's also not true that it's 22 or it's 20 there.
21 was the common law age 21 continues.
It's not a mis it's not arbitrary that when all of these
ages have been ray, are raised or set for marijuana,
for casino gambling, it was set at 21.
That's not a mistake, that's a return to the common law.
And by setting at 21, you have a principled reason
for doing it based in this long tradition of setting 21
as a cutoff between adulthood and childhood.
And you also are firmly rooted in the science in a way that
18 is not, the science does not support keeping it at 18,
but it does support keeping it at 21.
It, I, I, if I may, I do wanna return
to the Cepulonis issue, so.
-: By the way to, to, in complete candor,
science is part of step one of Cepulonis and, and,
Attorney Schiff: Absolutely.
And how it applies to the particular offender.
It's part of, it's part of the three steps.
-: That, that's absolutely correct.
That was the first thing I was gonna say is that the kinds
of concerns that we're raising here are
built into the Cepulonis factor.
It's the first factor asks us to look not only at the
offense, but also at the offender.
But I think the reason why we need to be very careful about
applying that in the same way that you might in some other
contexts is that we can look at Diatchenko case.
And interestingly back in 1982 when he was on direct appeal,
he raised an Article 26 challenge
to his life without parole sentence.
The same one that he later brought in 2012 13.
And at that time the court rejected that challenge applying
strictly the Cepulonis factors
and said he was convicted of murder.
There's nothing more serious than this.
-: Also twice rejected this issue.
And then in Watts said, basically given the passage of time,
maybe it's time for a, a second look, correct?
-: Correct. And I I think that was, yeah,
I think you were right to do it the way you did,
which was not to just decide this based on, you know,
amicus brief setting out the science,
but actually send it back for development of the record.
We now have before the court,
the testimony of Adriana Galvan,
one of the leading neuroscientists in the world,
runs the UCLA developmental Neuroscience Lab.
Larry Steinberg, probably the world's leading
developmental psychologist studying adolescents.
Robert Kinser, who is Massachusetts leading
forensic psychologist looking at issues of adolescents.
And then Steven Morris, the commonwealth expert
as the world's leading neuro skeptic.
The person who says, hold on, let's,
maybe we shouldn't use neuroscience as much.
And you have the testimony of all these people.
And there as doc, as Judge Oman found,
there is no real dispute about ultimately,
what the science shows.
And that's that development continues
past the age of 18, but it.
-: Continues all our life in some way, doesn't it?
-: Yeah, abs absolutely.
Development changes and we change throughout life.
But the three characteristics, you know,
as this court defined them that were of
constitutional significance in Diatchenko,
those are present during that time.
And, and the first one of those, so the,
the way the court talked about them was less the way science
necessarily talks about them and more in terms of
justifications for, for sentences.
And I think this goes to the issue of
hot cold cognition and sensation seeking.
These are, these both fit into that first concern
about culpability, but they're two different things.
So, and what the studies have shown is
that late adolescences,
when their reward systems in their brain go off,
that leads to greater sensation seeking
not only than older adults,
but also than the younger adolescents
who are at issue in Diatchenko.
-: So in some ways, as I was questioning your,
your opposing counsel before that sensation seeking science
indicates that this particular age cohort is actually less
able to control themselves than the so-called juveniles.
-: That's absolutely correct.
And they, you know, that this is a more vulnerable age
than the younger juveniles in,
in many ways because that sensation seeking
then leads to criminality.
It also seeks leads to seeking up peers,
which then increases their risk taking
and probably puts them into situations where
they're going to be relying on hot cognition more.
So all of this feeds in into.
-: Why are we limiting this to life sentences then?
-: You're limiting this to the life sentences because the,
that line of cases that I was talking about before,
those categorical challenge,
categorical rules have only ever been applied to life
sentences in the death penalty.
-: Yeah. -: Which is a unique, you know,
as you correctly found in Diatchenko.
Justice Gaziano: This will raise Perez issues.
Justice Lowy: Exactly.
-: Going forward, right?
-: Correct. Wait, well I I I do agree that Perez would apply.
I was trying to think through what are the additional,
-: So someone that was convicted of an armed robbery
who got a 20 year sentence could come back and,
and say it's disproportionate under.
Under Robinson Mattis?
-: I, I I I think that's, so the two cases that I, well,
three cases that I could come up with that would have
implications are Perez Costa,
and then Diatchenko too, those kinds of.
-: That's, that's down the road, if.
Attorney Schiff: I'm sorry?
-: That's down the road.
Justice Lowy: It's down the road, right?
But 18 to 20 on a, on a, on a child sexual assault case
has to be with a juvenile 18 to 20 year old.
We're gonna have to have a Perez has to be a Perez analysis.
-: I I I I do think that's true.
You, you know, I don't represent somebody in that situation.
So I think you should decide that
when that case comes before the court.
But in candor, I do think it would apply.
Now in the, the juvenile, our experience with Perez
has said that that has not actually turned out to be
all that many cases for juveniles.
And I, yeah, I think there have been
fewer than half a dozen Perez hearings.
So the number of Perez hearings that would have to be held,
even with this group where there is,
Justice Gaziano: Well, given the crime curve,
I think there'd be a lot.
-: Well, there'd be more, I I I don't, I don't have
that number I don't have.
-: The number of, of, of, of murder cases,
of first degree murder cases for 18 to 20 year olds,
I assume are exceeds the number
of murder cases for juveniles.
-: It is significantly more. Yeah.
As of October of last year as 203 cases
that would be impacted by this,
I believe there are about 80 Diatchenko cases.
Justice Gaziano: Right. -: Just so there'd be more,
but I don't think it's going to over be overwhelming,
the number of Perez re sentencings there would be.
And I think it's, I think we have to
also remember those are people,
-: Well we have, we have an Article 26
duty anyway, so that's,
-: I I think that's right. And, and I, you know,
those are people who got really long sentences without these
important issues being taken into account.
So I don't think it's a bad thing that they would get this
constitutional remedy and I think it would be a small enough
number of cases that wouldn't create
any kind of undue burden on the courts.
I I, if I may, I,
I would like to address just one issue that came up earlier,
and this is this distinction between soft and hard science.
I, I respectfully disagree that any of this is soft science.
Dr. Steinberg testified a little bit about this,
that this distinction is kind of an artificial distinction,
but certainly the science that we're talking is about,
you know, using sophisticated technologies
to look at living brains
and conduct sophisticated statistical analysis
of those results.
And then also to have these very carefully planned out
developmental psychology studies,
including the one that involved 5,000 subjects and was, and,
you know, as great as large a study as
I've ever seen in any field
looking at these things in very sophisticated ways.
And I don't think there's anything soft about that.
And there's also nothing soft about when criminologists look
at FBI crime data and make these kinds of determinations
that have been made across societies for a hundred more than
a hundred years and see that the age crime curve is
a real thing that exists across cultures.
You, you have before you six amicus briefs
and five of those support our position
and they lay out some very important concerns,
including from scientists, from retired judges,
from juvenile justice organizations,
from racial justice organizations.
But I think perhaps the most important thing that you have
before you from Amici is in the last few pages
of the CPCS brief and there you hear about
three of the 203 people who
will be impacted by your decision in this case.
And those three men who are
in their forties, sixties and seventies,
not only have proven that these people who commit
these kinds of serious crimes at this age
are capable of rehabilitation,
but that they're capable of truly transforming themselves
into extraordinary people, people who've given,
already given back to their society from inside prison and
have so much more to give back outside of prison.
And we're not asking you to release anybody from prison.
All we're asking is that rather than
throwing away the key, you place that key under
the careful guard of the parole board.
If there are no further questions, I'll rest it by brief.
-: Thank you.
Attorney Schiff: Thank you.
-: Okay, attorney Campbell, once again.
-: Thank you. And just for the record,
Caitlin Campbell appearing as the
special assistant district attorney
on behalf of Suffolk County.
With me again is ADA John Verner,
who is the motion prosecutor.
I would also like to acknowledge
I'm in the rare position of,
there is disagreement amongst the district attorneys.
Essex filed a, an Amicus and Plymouth County
joined that as well,
urging that the sentence be declared constitutional.
And so I, I think it's important to
just mention that before I start.
I'd like to go back to your question,
Justice Kafker about this individualized sentencing hearing
and the science in the individualized sentencing hearing.
And I think that's just one part of it.
Even if you look at Miller, if you look at the factors,
and they would be similar factors that would be considered
an individualized sentencing hearing in this instance,
but they do talk about the science including age,
immaturity, impetuosity, I can't say that word,
failure to appreciate risk and consequences.
But there are other factors that the judge
would look at as well.
And I think that would make it more like an individualized
sentencing hearing that judges engage in everything.
-: I, I understand that except for, I,
I can't reconcile it with Diatchenko because
it seems to me that the sciences just moved the problem
from under 18 to 20 here.
So I can't rational, I can't get to your result.
You gotta help me get to where you want to get because
Diatchenko is the case right on point.
-: [Attorney Campbell] Correct.
-: And it's so analogous and it just seems
like the science has moved.
So I, I don't understand how I can come
to your result consistent with Diatchenko.
But go ahead.
-: Counsel. Certainly counsel, before you answer that,
can I ask you to address one other aspect of that?
-: [Attorney Campbell] Yep.
-: When, when we just heard from the presentation
that even with the Commonwealth expert,
there isn't any disagreement about the underlying science.
I mean the vast majority of it.
So it would seem, if you're,
if you're advocating for a Miller like hearing
for 18 to 21 year olds,
you've gotta tell us where that science diverges
in order to support that.
And I, I know you made some individualized references
the last time you were up to certain things,
particularly when you were talking about the sensation
seeking and, and what prompts that.
But really could you tell us,
if we get to where you're asking,
you've gotta tell us that the science is different,
wouldn't you?
-: Certainly. Two different questions.
I'll start with Justice George's question.
Justice Kafker: Absolutely.
-: Okay.
And so I, I think that there is agreement, so,
so I disagree with what my brother said,
that there's an absolute consensus.
I think there is an agreement that
the brain is maturing during this point,
but I think there's disagreement as to
what that maturation point is.
And I think there's disagreement and specifically largely
this can be found on pages 36 and 37 of my brief,
but brief, but specifically,
I would say that the difference is that
different brain functions mature at different rates.
For example, cognitive capacity reaches
an adult level prior to psychosocial maturity.
I think that's important when you're thinking about murder.
And murder is a unique crime in
the different ways it can be committed.
And murder is a unique crime.
If you look at specifically first degree murder,
there really is a difference between a deliberate
premeditated murder as opposed to an extreme atrocity
or cruelty as opposed to a felony murder.
These factors definitely come into play if you're looking at
the type of murder, the type of cognition,
the type of planning that we need to come into play.
The type of specifically.
-: Science scientists and lawyers talk in different terms.
I mean, I understand that premeditation can happen quickly,
but I'm not sure that's the same thing as cold cognition.
-: So, so there, but I, I would say Dr. Kiner,
and this can be found at pages one 13 and one 14
of his testimony,
explained that a murder that was planned
over a period of time or
an individual who commits a murder
and uses thoughtful means to evade detection
would be committed in cold cognition.
So there was a recognition from at least
Dr. Kiner and there was a consensus that
a murder could be committed in.
-: I understand in cognition,
you focused on that point in your brief as justifying this.
But there are other things that are,
there is consensus on which is that
the brain is continually maturing
and doesn't that go to this incorrigible depravity issue?
We that every, there seems to be
a consensus that these 18 to 20 year olds
can make this kind of leap to maturity
even if they've done something heinous
in a premeditated way when
they were 18 or 19 years old.
-: Certainly.
So I think that, I think the answer to that
is that is but one factor, right? That is.
-: Always, there's a consensus, again, I,
you correct me if I'm misstating the science cause I don't
fully understand the science.
-: [ Attorney Campbell] Okay.
-: But from what I understand from the record
is there's a consensus that even
that there's this potential redemption quality out there,
even for the people who've committed these heinous
premeditated crimes that that's in the,
and that you haven't sort of gotten around and,
and then I feel for this poor trial judge, if,
if that's the case,
how is this trial judge gonna
do this individualized inquiry?
I understand the Supreme Court's telling them to do that.
-: [Attorney Campbell] Correct.
-: But we've not under Article 26.
-: [Attorney Campbell] Correct.
-: We've created a more protective environment.
-: So I think, I think in terms of the record, the,
I think here, here's my answer to that.
You can't say with any certainty that a 20 year old,
as opposed to a 19 year old,
as to an 18 year old necessarily has not fully matured.
The, the, all of the experts agreed
that there was a difference in variation
of maturity of individuals.
-: They also say you can't make that determination,
who is and who isn't.
-: Correct. Correct.
I would say if you look at the actual.
-: They can't, how can the trial judge.
-: Correct. I, I think though,
if you look at the phrase ir irretrievable depravity
and sort of it's evolution,
it's first articulated in Roper in 2005 and in Roper,
and this can be specifically found at page 570,
they say the reality that juveniles still struggle to define
their identity means it is less supportable to conclude that
even a heinous crime committed by a juvenile is evidence of
irretrievably depraved character.
And then they go on to talk about how the signature
qualities of youth are transient.
So that's why you can't draw that conclusion.
It's repeated again in Graham,
and this is specifically at page 76.
And in Graham they articulate that you can't just look to
the facts of the crime itself to conclude that
there is irretrievable depravity that language,
the first time it appears in Massachusetts
is in Diatchenko and in Diatchenko,
well it's in Miller, but it's interesting,
it's not in the ma the majority opinion in Miller.
It's in a concurrence in Miller where they're discussing it
in the felony murder context, how it,
a felony murder wouldn't be evidence of that.
The first appearance of it in Massachusetts
isn't Diatchenko, they cite back to Roper
and they say simply put the brain of
a juvenile is not fully developed
either structurally or functionally by the age of 18.
And a judge could not find with confidence that a particular
offender at that point in time is irretrievably depraved.
I think it has to do with those transient qualities of
youth, which you, you can't look at
just the facts of the crime itself, correct?
But I think you could look at a confluence of factors as a
judge is asked to do in many individualized sentencing
hearing and saying not just the facts of this crime,
not just how it was committed, but,
but things about this defendant,
which of course in an individualized sentencing hearing,
a judge would hear things about this individual's life that
now they don't, with a mandatory sentence.
-: It, it seems like this is core Diatchenko that,
that that that taking that responsibility away from trial
judges because the person's not yet fully formed in putting
it on the parole board 15, 20 years later.
So I don't get how, given the history of that, you know, as,
as you well stated of that phrase,
we have to deal with Diatchenko
and the Diatchenko remedy
and what we've already said in the past.
It's not for the trial judge, it's for the parole board.
-: I think. I think,
and that's where the differences in the record, and I'm,
I'm not doing a good job of explaining what those
differences are in part because
it's so complicated and voluminous.
But if you look at the differences in the record
as it relates to those under 18
and that sort of categorically,
the experts agree that those transient qualities of youth
are more uniform across the board.
That applies to those under 18.
So that applies to Diatchenko when you get to 18, 19 and 20.
Yes, the record shows that the brain is still developing,
but it shows that these individuals are more capable of
making mature decisions that these individuals,
there is a variance in the rate with which they mature and
that these individuals in very relevant circumstances
can have a brain and make decisions
that is functioning like an adult.
I think it's because those key differences exist that it
makes it different from Diatchenko.
Now the commonwealth is not saying.
-: Are are those key sig differences
significant enough to not have a Diatchenko remedy though?
I mean, I suppose if you say that statistically
there's gotta be some number that's not going to fit right,
there's gotta be some, so, but if we're looking to,
to doing something constitutional, forget about the, the,
the unicorns and the lightning that occasionally strikes
isn't the, the,
the vast majority of these folks are being able to say,
we just can't,
we just can't principally define or delineate the line.
-: You know, that's a good question
and I think that if we weren't talking
about first degree murder and we weren't talking about
the most serious offense that could happen in the common in
the commonwealth of Massachusetts or anywhere,
my, my answer might be different.
I, I think the problem is
any proportionality test has to view
not just the nature of offender,
but the harm it has to society
and the harm that it has on a victim.
And I think as often happens in these type of crimes
where there is a victim,
there isn't enough focus on the harm
that has happened to them.
And the crime in this case has caused an irretrievable harm
to both the victim, but to their.
-: Talk about that for a minute because I I I honestly don't
get why it wouldn't be a Diatchenko hearing.
If we are going to say 18 to 20,
it seems to me that that the,
that Diatchenko does speak to that,
but Cepulonis step one takes into account
the harm to society.
-: [Attorney Campbell] It does.
-: And Graham, Florida versus Graham recognizes
that it's an arbitrary number
and that the brain continues to develop after 18.
But the, what is it about, and and then Roper recognizes,
no, we we're just picking.
-: [Attorney Campbell] 18. -: 18. We're picking a number
because that's societal norms, right?
-: [Attorney Campbell] Correct.
-: So what is it about Diatchenko specifically that says the
delineation isn't, we're talking about juveniles here.
Where's that in Diatchenko?
-: I think it's because Diatchenko,
so explicitly does it say that?
No, I don't think so,
but I think if you look at what the court was focused on,
on Diatchenko, which was the science,
and if you look at what the remand in this case is,
which is the science, that's how you get there.
-: Science is important.
-: [Attorney Campbell] And the science is important.
-: And no one's saying that.
-: I, I think that there is actually an answer
to the law as to this differentiation
because it's interesting because as
been discussed in both arguments,
it's not a clean age of majority.
There's not a consistent history of an age of a majority.
Even now there's some things that are 18,
there's some things that are 21.
So there is a recognition that there is a variance among
this age group and there is a variance as to 18 and 21
in levels of maturity.
So I think even looking at that sort of legislatively,
is it a legislative question?
Yes, there is support that there is both 18 to 21.
And there is something about this,
this group and that cohort and that age.
-: Delineation that you say isn't clean
when you can be on jury duty, for instance,
when you can vote that,
that that line moves depending on the policy.
You're 18 and over, you're an adult.
This all sorts of legislation suggesting
that that should, should move.
-: [Attorney Campbell] Correct.
-: And, you know,
-: [Attorney Campbell] Correct.
-: And Roper, I mean, my gosh,
putting aside all the horrors of the death penalty,
who wants to see 19 and 20 year olds be be, be put to death?
That's not what they're analyzing.
They're analyzing that there is a number
and that social norm is X.
And I think it's that fascinating debate to see if that
social norm is 18 or 21.
But why is that not legislative?
-: I think insofar, you know, the,
the traditional commonwealth argument would be
it absolutely is legislative.
This is a question for the legislature.
That's where you leave it.
I think the record here shows that there is,
if you're really talking about proportionality and you're
really looking at the nature of the offender,
the record here is developed enough that it,
it does show that in ways that it relates to culpability.
There is an enough in this record to say, okay,
maybe this subset of people have a lesser culpability
than those over 21.
So, so that's what I would draw to you.
Now it could be,
that there is also consensus in the record
that they are more mature
and more capable of making better decisions
than those under 18.
So that's where that differentiation comes
and that's why the Commonwealth has proposed the,
I guess I would call it intermediate suggestion
that we have, which is to
treat the subset of group of people,
recognize that they do have some similarities
with those under 18, but they are a maturing group.
And that an individualized sentencing hearing would be a,
a cons, cons, constitutional and proportionate way
to deal with sentencing this group of individuals.
I am over and so unless there are no further questions,
Commonwealth will rest on its brief.