-: I just wanna note for the record,
that Justice Gaziano is not participating in this case,
he's recused.
Justice Lowe is participating in this case,
but he is having problems with his video feed.
And the Chief is also watching,
and will be participating in the sample of this case.
So if I can ask clerk Canary to call the next case.
Court Clerk: That's case 12882,
William Dinkins and another, the Massachusetts Parole Board.
-: Great. Thank you.
Mr. Schiff...
-: Thank you Justice Budd and may I please (mumbles)
My name's Ryan Schiff.
And I along with Lisa Newman-Polk,
represent the plaintiffs, William Dinkens and Eugene Ivy.
At first glance, the Parole Board regulation in this case
looks like nothing more than a boring,
mundane, rule governing parole eligibility captions.
But what it actually does is far more radical.
It creates a new kind of parole,
for a whole category of prisoners,
that is incompatible
with what the law has traditionally understood parole to be.
And more importantly, is in direct conflict
with multiple Massachusetts statutes governing parole.
This regulation creates a new legal entity.
Incarcerated parolee, kind of like Schrodinger's cat,
this person is simultaneously at liberty on parole,
and at the same time deprived of their liberty,
locked in a prison cell,
inside the prison walls and enclosure.
This regulation is in the teeth
of two clear statutory mandates.
First, chapter 127 section 133,
contains an explicit aggregation mandate requiring,
"that where an inmate is serving two
"or more consecutive recurrent state prison sentences,
"a single parole eligibility shall be established,
"for all such sentences."
This aggregation mandate is clear,
and by its own terms applies to all consecutive sentences.
The second statutory problem for this regulation,
is well illustrated by Eugene Ivy's situation
right now as we speak.
Section 130 of chapter 127 says that,
"A prisoner to whom a parole permit is granted,
"shall be allowed to go upon parole,
"outside prison walls and enclosure."
On March 26th of this year,
the Parole Board issued a parole decision
granting Mr. Ivy parole from his life sentence.
A few days after that,
he was called into the institutional parole officer's office
at his prison,
and he was handed a permit, issued by the Parole Board.
Yet despite literally having that parole permit in his hand,
when he walked out of that office that day,
he was not permitted to go upon parole
outside the walls and enclosure.
But rather was sent back to his prison cell,
locked inside prison walls and enclosure.
Outside the prison walls and enclosure,
does not mean inside the prison walls and enclosure.
This reality simply cannot be squared,
with the clear mandate of section 130.
All we ask--
-: Mr. Schiff can...
-: Yes.
-: I appreciate and I really like the way you're walking
through the different statutes.
But I'd like you to take out the third statutory provisions.
-: Yes, Your Honor.
-: Which is, why this case is heard.
Every prisoner...
This is 133a.
Every prisoner who's serving a sentence for life,
and then those prisoners shall be eligible
for parole at the expiration of the minimum term
fixed by the court under section 24 of chapter 279.
So isn't that...
Don't we have a conflict between these different read
of statutory provisions that we gotta work out?
-: No, Your Honor.
I don't think there's any conflict whatsoever,
and I'm glad that we're going to the (mumbles)
which is the statute itself.
That's what I was going to propose we do.
Because as it is,
I think it's important that we look at the details
of the language that the legislature actually used.
So this section 133a is reproduced in the blue brief
for the addendum 68 and the red brief at addendum 63.
And the first sentence of that statutory...
Of that section really does...
It does a very important thing.
And the primary thing it does,
is actually the thing that it does in the middle.
which then says,
"people are eligible for parole,
"who have life sentences in Massachusetts all of them,
"except for three categories."
And then the other part,
which is really grammatically,
the main part of the sentence,
is a rather straightforward thing,
which is that they are eligible for parole at the time set
by the court under section 24 of chapter 279.
And then if we turn to chapter 279 section 24,
that is a statute that governs not just the imposition of...
or establishment of parole eligibility
for people serving life sentences,
but for all prison sentences.
And they do not specify here anything about one part
of that statute over the other.
Then if we move to the second sentence,
and this is really at the meat of this case
and the Parole Board's...
The Parole Board whole case is a second sentence.
It says that the Parole Board shall,
and now we're turning,
if you just read the statute,
not from what the sentence...
What sentence has been imposed by the court,
but now what happens when it turns over to the Parole Board.
I'm sorry, Your Honor.
-: (mumbles) trying to understand.
So when it says prisoners shall be eligible to parole
at the expiration of the minimum term fixed
by the court under section 24 of 279,
you say that's not...
Not the minimum term fixed by the court
for the life sentence,
but rather the aggregate sentence?
Is that your...?
-: I was going to get to that just in a second.
I think it becomes important once we get
to the second sentence,
and it shows why there's no conflict here whatsoever.
-: All right, you get there as you (mumbles)
So once we get to second, I'm sorry, Your Honor.
-: Go ahead and get there as you see fit.
-: Okay. Thank you, Your Honor.
So the second sentence then says
that the Parole Board shall
within 60 days before the expiration
of such minimum term,
and now we're pointing exactly back
to what Justice Kafker was talking about,
to the minimum term that was fixed
by the court under section 24 of chapter 279.
So we agree that, that 60 day requirement is important,
but it's a requirement on timing
of when parole hearings take place.
It doesn't speak to aggregation.
And the way to read that such minimum term consistently
with the aggregation mandate in section 133,
and the outside the wall prison walls
and enclosure mandate of section 130,
is to read that, to say the minimum term
after normal aggregation principles have applied.
But then it goes on to say,
that the Parole Board shall conduct a public hearing.
Now that public hearing is important,
because with one other exception,
public hearings generally are not held by the Parole Board.
Usually they're nonpublic.
So here using very clear, explicit, unequivocal language,
the legislature has shown,
that for people serving life sentences,
it knows how to create clear unequivocal exceptions.
And then it goes on to create another exception,
which is for people serving life sentences.
Only they are entitled to hearings before the full board.
Everybody else gets hearings before part of the board.
So here we have, in that one sentence,
the legislature showing
that it knows how to create clear exceptions,
and creating two clear exceptions,
to the normal rules that apply.
What it doesn't do, is in any explicit
or even implicit way,
say anything about aggregation.
That's the 60 day rule.
And we discussed this in our reply brief.
The purpose of that,
particularly when you go then to the next sentence,
which says that they can delay until 30 days,
based on the proper findings.
The purpose of that,
is to have a parole hearing early enough,
that if you're granted parole,
you can meet the standard for parole.
Cause there's at least a possibility
that you'll get out of prison,
and go outside the prison walls and enclosure upon parole on
or about your parole eligibility date.
But what that doesn't do is say anything about aggregation.
And we know, from the statute itself,
that the Parole Board knows how to create clear exceptions
for life sentences.
But we also know more generally,
that when the legislature does want to create exceptions,
it doesn't do so in cryptic language,
it doesn't speak in code.
It doesn't, as the Supreme court has said,
hide elephants in mouse holes.
So if there is any question now left about
whether what this is actually doing is creating an exception
to the aggregation rule,
through this kind of cryptic coded language,
it's put to rest by the very next section.
And this is reproduced in our reply brief
at addendum 21 and that's section 133b.
So just like how 133a,
sets out special rules that apply for life sentence cases,
this is setting out special rules that apply
for people who've been sentenced as habitual criminals.
And in its very first sentence,
uses almost identical language.
It says the Parole Board shall within 60 days,
before the expiration of two thirds of the maximum sentence,
of a prisoner sentenced under section 25 of chapter 279,
which is the habitual criminal statute,
and thereafter at least,
once in each ensuing two year period,
carefully and thoroughly...
Consider carefully and thoroughly the merits
of releasing such person on parole.
So we have almost identical language.
And in fact, if anything, this language more
supports the exception to the aggregation rule.
Cause it's not saying as 133a says,
at the minimum sentence fixed by the court
or rather a specific time,
which is two thirds of that single sentence.
The one imposed as a habitual criminal.
Yet the Parole Board does not interpret this language,
to create an exception to the aggregation rule.
And it's offered no explanation for why it would have
that radically inconsistent interpretation
of almost identical language.
Now it gets even more difficult,
I think for the Parole Board,
if we turn to section 136,
of chapter 127, because this is, you know,
once again we have, you know...
The Parole Board acts as though, 133a is kind of unique.
In that it established its separate rules
for life sentence hearings,
and therefore don't pay any attention
to the aggregation rule, because it's in a separate statute,
or a separate section,
but that's not--
-: (mumbles) break your flow here for a second?
-: Yes.
-: Is there some value...
So you're...
For the person with the life sentence,
you're saying we don't want you to have this parole hearing
until we aggregate these two sentences?
-: Yes.
-: It's gonna be pointless.
We're gonna have two hearings.
But is there some, at least, I mean,
maybe esoteric, but value,
that the life sentence is being put behind,
and it's being done earlier,
in the sense that this is the big 3,600 pound grill,
of a life sentence.
And is there a value of having that parole hearing earlier,
so that, you know, the prisoner understands, okay,
now we're on a fixed time schedule at this point.
We're not having this life sentence,
hanging over indeterminate for another couple
of years or, you know...
There's some value of pushing that forward.
And is that what the legislature
was intending when it required...
I know you read out...
You have this reading of 133a,
that it's somehow an aggregation,
but I'm not sure I get there.
I'll wait to hear the Commonwealth on that, but..
-: Okay. So well, I'll answer that in two parts.
The first part is we certainly are not reading anything
about of section 133a.
As I said, we think that the 60 day rule
does something very important.
Now, the other question of
whether there's some kind of benefit.
No, I don't think there's any benefit whatsoever
for anybody who is serving one of these sentences.
I'm not gonna speak to the psychological benefit
that any of the dozens, if not hundreds,
of people impacted by this regulation feel,
that there are real, real world negative impacts
for the people impacted.
The first one is,
the one that was pointed out in a single Justice's decision,
in relation to Mr. Dinkins re-sentencing.
Which was that...
Is that people are sent back
to prison with no defined parole eligibility day.
So you can go into a prison,
and you can ask a group of prisoners,
"When are you going to be eligible for parole?"
And you go around the table and all of them say...
Can tell you the date when they're eligible for parole.
Until you get to the person impacted by this statute,
and they cannot tell you when they will be able
to sit before the Parole Board,
and make their case for release into the community,
which is the only thing that really matters to a prisoner.
But there is also another more tangible downside to this.
And this is the point
that was made in the Prisoner Legal Services,
Amicus Brief, which is...
I'm gonna take William Dinkins as an example,
because he has two life sentences,
with parole eligibility at 15 years.
Now Mr. Dinkins is now either 47 or 48 years old.
And he has not been paroled from his first life sentence.
If the Parole Board, when he's 50 years old,
decided that it was going to then parole him,
from his first life sentence.
And that would be a decision that would be based
on its ordinary parole decision of whether...
whether he can...
There's a reasonable probability that he can live
and remain at liberty without violating the law.
And that his release is compatible
with the welfare of society.
So they made a determination that,
he can live at liberty with, without violating the law.
They would then send him back to prison
and it would be another 15 years before he could go
before the Parole Board, when he's 65 years old,
and actually ask for release into the community.
And there is no ability of the Parole Board
to look that far into the future,
make that kind of prediction that it's going
to take another 15 years
for him to be ready to be released
when it's already made the
determination that he's ready to be released.
I'm sorry. Justice Cypher,
-: Thank you. Two questions,
The first is there...
I see that there's pending legislation amending this.
Do you know if that affects this problem in any way?
It's kind of hard to tell from the way they've written it,
but they strike the first paragraph,
and then say the aggregate...
There's 133a, section 127,
Are you familiar with the pending legislation?
-: I am not, Your Honor.
-: There's several different kinds pending,
for different issues.
But this one pertains to people serving life sentences
for murder who have attained the age of 18,
unless they preserve the exception,
for more than one life sentence.
(mumbles)
Putting that aside,
my other questions really,
"So if we just took that regulation away,
"how would you, if you...
"How would you implement these statutes in this case?
"What are you saying should be done?"
-: Yeah, okay. Thank you, Your Honor.
So what I think should be done is the same thing
that's done in just about every other type
of case and done successfully.
And that is just to aggregate the sentences.
So let's take for example,
William Dinkins situation once again.
So he has two life sentences
with parole eligibility of 15 years, you know.
As it stands now he has no real set parole eligibility date.
He doesn't know when he can walk before the Parole Board,
and ask for his release into the community.
If they're aggregated,
then you just add together the first 15 and the second,
And you have a single parole eligibility at 30 years.
And that's the fact
that they're consecutive sentences serves its purpose.
There's a big difference between a person being sentenced
to life in prison,
and having parole eligibility 15 years later,
and having a chance to be released 15 years later,
compared to somebody whose much harsher sentence,
a sentence that fully, you know,
if we aggregate, still takes into account the intent
of the sentencing judge,
of having to wait three decades rather than a decade
and a half to go before the Parole Board.
And what that does, you know,
it serves everybody's purposes
because as we have it now,
we're having these per Lifer Parole Hearings
are extremely resource intensive.
And the Parole Board,
at a time when it's taking close to a year
to release life or parole decisions,
is having to conduct unnecessary life sentence hearings,
where there's no chance that the person's going to get out,
in some cases for decades to come.
And then if they deny parole,
then they have to do it all again,
somewhere between one and five years later.
So it doesn't help the Parole Board,
because it wastes its resources,
it doesn't help the DA's offices because they have
to spend the resources deciding whether
to weigh in on these cases.
And that if they decide to,
writing letters, sending an Assistant District Attorney
to spend a good chunk of the day, waiting to testify.
And then testifying usually against parole.
It also doesn't serve the interests of victims' families,
who are forced to go and make a decision about whether
to appear for parole hearings decades
before they might otherwise have to,
and hearings that don't have any chance
of releasing the person from prison.
They, instead of waiting until 30 years,
after the conviction and sentencing,
they could go in at 15 years rather than 30 years.
And it certainly for all the reasons
that are set out in law,
the Law School Clinics Brief, Amicus Brief.
Doesn't benefit prisoners at all.
It dramatically interferes with their interests.
So this is...
I don't think,
where we have clear, unequivocal, statutory language,
there is any bet weighing of costs and benefits,
but this is a regulation with all costs and no benefits.
So it isn't as though this is filling in some gap,
that was left there by the legislature.
Aggregating, as this court made clear,
in 1975 in Hanshaw, makes little sense.
And the reason why the court said it made little sense is
because of the actual standard for parole.
The standard for parole is, are you...
"Is there a reasonable probability that you can live
and remain at liberty without violating the law?
"And that your release is not incompatible
"with the welfare of society."
So what that standard is asking is,
"is this person as this court made clear
in Hanshaw, and will the same standard apply?
Is whether the person is ready for release.
But that standard makes no sense,
when the result of the hearing is
that the person isn't released,
but rather goes back to prison.
And that's why this court explicitly,
and quite literally said, this process makes little sense.
-: Does anyone have any other questions?
-: No.
-: Okay, Attorney Zalnasky.
-: Thank you.
-: Thank you. Good morning.
Jennifer Zalnasky representing,
the Massachusetts Parole Board.
The plaintiff claims that the Board's long standing policy
and regulation is in conflict with chapters 127
section 130 and 133,
but the plaintiff do seem to overlook,
that it is actually chapter 127, section 133a,
that governs all aspects of parole eligibility
for those serving life sentences.
The regulation clarifies that statute,
and the Board has done so consistently,
since it implemented this as a policy in 1988,
and then as a regulation in the early 1990s.
We often talk about parole eligibility,
but what really the Board does,
is calculate a parole ineligibility period when it comes
to those serving sentences with a minimum and maximum term.
And this determines the time period,
a prisoner must serve before he is eligible for parole.
But with life sentences, under section 133a,
this minimum term is actually fixed by the court.
And that leads to the differences
in between the two statutes.
And what this case ultimately comes down to,
our common principles of statutory
and regulatory interpretation--
-: Before you leave that, I just wanna...
Cause, and I'll be honest.
I didn't fully understand the defense counsel's attempt.
But when you look at section 24, 279, it has two parts.
It's not just the life sentence part,
it also has an ordinary sentence part.
So I think his argument was,
no, no 133a still requires you,
because of the first paragraph maybe,
you can do this aggregation under that,
the first part of 24, 279
is talking about ordinary sentences too.
So can you address that?
-: Yes, Your Honor.
I think that if you actually look at the language,
and that particular statute has also recently been amended,
I believe it was 2014,
specifically to address minimum sentences
for juvenile homicide offenders,
following the Diachenko cases.
So it specifically sets out minimum sentences,
for those that have been sentenced
to life on first degree murder.
But in addition--
-: But it also has another part of it,
which is talking about ordinary sentences,
so why, -: It does.
-: And we have to reconcile 133a,
with this sort of more straightforward language in 133,
"where an inmate is serving two or more consecutive
"or concurrent state prison sentences,
"a single parole eligibility shall be established,
"for all such sentences."
So I'm just trying...
Cause we're stuck with a bunch of statutory languages,
not completely reconcilable, right?
-: Well, I would disagree,
that it's not reconcilable, Your Honor.
I think if you look at 133,
that (chuckles) that would (mumbles)
-: Go ahead.
-: I'm sorry.
Section 133 is certainly a more general statute,
that addresses prison sentences.
And as we pointed out in our brief,
and continue to assert here,
the legislature then enacted a totally separate statute,
133a that addresses every prisoner
that's serving a life sentence.
And this court recognized that in Crowell,
that there is a difference,
and that that statute does set apart life sentences.
So I think that's important.
And there's a time difference there.
So the life sentence one comes later.
I also think that if you look at section 133a,
and compare to 133,
there is significant language that's missing in 133a,
that which discusses the single parole eligibility date,
the consecutive sentences and aggregate.
Those words don't appear in section 133a.
The Board's position is that was intentional
by the legislature.
That this is not how they wanted life sentences
to be treated.
When they amended 133 in 1993,
they didn't include those words in 133a,
despite the fact that they've already created this statute,
to address every prisoner who serving a life sentence.
So our position is that 133a,
sets out specific mandates for those prisoners separate
from those that are serving a prison sentence
for a minimum or maximum term.
So they are reconcilable,
because we're treating these as different categories.
-: We all in 130 though.
Is that...
Cause it does use the word all.
-: It does use the word, Your Honor,
but it also doesn't say anything about life sentences.
And it only talks about state prison sentences in terms
of minimum and maximum.
So I think that's where 133a comes in,
to clarify that exception.
That the legislature is saying,
there's this section of prisoners,
and then there's this other section,
that are serving life sentences
and we're gonna address them in this statute.
-: Okay, so I'm still confused,
by these two statutes and I'm just not sure.
And I'm trying to create some kind of
coherent logical system.
Why would we have two parole...
What's the value of having this sort
of premature parole hearing where we know not...
We know the person's not gonna be released
by the state system at all?
He's just gonna have a do over of the exact same thing,
two years later, or four years later,
or in the case of this defendant, 15 years later?
-: I'm not sure that it comes down to a value base.
I think when you're looking at the language
of the statutes and the regulations,
this is how the legislature intended it to be.
They intended to treat life sentences differently.
Just like they have a bunch of different criteria,
that they have to meet in order to be paroled,
and that they have the five-year setback,
and there are different criteria
for those serving life sentences.
And I think that is how the legislature has wanted it to be.
They want them to serve their life sentence,
and then to serve a consecutive sentence,
and it's not unusual, for somebody
to serve a consecutive sentence.
-: But all of what they're doing for the life sentences,
deciding the...
I understand they're serving the minimum term certainly,
but they're also deciding whether they're ready
to be released you know.
They've done amount of time,
they've shown they've understood,
they're ready to be in public,
but then we're gonna,
instead of waiting for that moment,
for when they're actually going
to be released into the public,
we're gonna have it...
We're gonna do it twice.
The second proceeding is going
to be completely odd, isn't it?
So we've decided this person's ready for parole.
And then 15 years later in this case,
we're gonna do it exactly over again.
-: Think it's... -: Yeah.
-: I'm sorry. I didn't mean to cut you off.
-: No, no. Go ahead.
-: I think that part of that has to do
with the standard has to be the same.
You can't have a different standard just
because they're gonna serve another sentence.
So the standard has to be the same
that this is what, if they meet these requirements,
this is how they get paroled from this sentence.
And that makes sense.
Whether they're going to serve their second sentence.
That's how the judge ordered that sentencing to take place.
-: May I interrupt and ask you a question about this?
Suppose somebody doing their first life sentence,
receives a favorable parole determination at 15 years,
and now their second life sentence's starting.
Is there anything that could happen
to them in the second sentence,
while they're serving the second sentence,
that could retroactively affect that parole the first time,
so that it is revoked or something?
Is there...
Could they get in trouble and ...
-: Certainly, Your Honor.
-: Loose their first parole.
-: Certainly, Your Honor.
I think that 133a actually addresses
some potential for that.
For example, if you were paroled into your second sentence,
and the Parole Board issues certain conditions for you
to follow while you're paroled
from your first life sentence, if you will,
and now you're serving your second life sentence.
And you're to remain drama court-free,
you are to attend certain types of programming,
those types of things, not commit any other crimes.
If you violate those,
the Parole Board can violate your parole,
and they go through all the regular procedures
that they would on any parole violation and revoke that,
and set you back into your first life sentence.
And that is a possibility.
-: Do you know how many of these, there have been,
parole hearings in these circumstances?
-: Of life sentences? -: Yeah.
-: Moving into a second sentence?
-: Yeah.
-: I believe part of the record does include several copies
of the decisions,
I don't have an exact number, -: Of course.
I could certainly get that from the (mumbles).
-: I'm sorry. Thank you.
-: Certainly.
-: Judge Lowy.
-: Thank you Justice Budd,
I understand your argument about 133a,
and I follow the way that you get there.
But isn't it a much simpler,
and straightforward analysis to say,
well, 133a doesn't mention aggregation,
it doesn't mention consecutive sentences.
133 references 279 section 24 that refers
to life and not life sentences.
And 133, defines
when an inmate's eligible for parole
for all state prison sentences,
because murder is a state prison sentence.
So isn't that the more straightforward way?
I understand why you did it,
but isn't it just much simpler the way
that I just stated it?
-: I would disagree with you, Your Honor.
I think it's just too simple to look
at the two different statutes
that address two separate categories of sentencing.
I think-- -: But 133a
doesn't have aggregation or consecutive sentences
-: Right. -: In it.
-: Right. And it's the Board's position that,
that's an intentional...
That was intentional by the legislature
because they don't want life sentences
to be aggregated with consecutive sentences.
So that is an intentional omission from that section
of the statute when addressing parole eligibility,
for those serving life sentences.
And I think the fact that the opening line,
for section 133a says,
"every prisoner who is serving life sentences."
So while I understand 133 has the word all in it,
you also have to address,
that 133a says every prisoner
who's serving a life sentence.
And then the court goes on to say...
or the legislature goes on to say,
"shall be eligible for parole at the expiration
of the minimum term fixed by the court,
under chapter 279, section 24.
Now the plaintiffs like to push this,
that we're relying heavily on the 60 day part,
that that's the mandate of 133
that we're relying heavily on.
But actually if you look at the history,
and go back to the 1988 policy,
and the 1990 memorandum,
and the 1994 memorandum from the Board,
what they were really focused in on,
when they were originally enacting this,
was that part of the statute.
Now that part of the statute has changed.
Initially at one point in time,
it specifically said the minimum term was 15 years
for a life sentence.
And that has since been amended,
to the minimum term fixed by the court.
And it makes the reference to, 279 section 24.
But in that section,
it does lay out what minimum sentences are appropriate,
for life sentences.
So I think that all makes sense.
That's really the purpose of the Board's regulation,
dating back from its initial inception in 1988.
It's that date that they're focused in on,
that when a prisoner is serving a life sentence,
that's the day that becomes his parole eligibility date,
on that life sentence.
And if a judge chooses to order a sentence
to be served consecutively from that life sentence,
it doesn't get aggregated.
And that is the Board's interpretation.
And it's a reasonable and logical interpretation
when you look at all of the statutes together,
and under the principles of regulatory interpretation,
we would ask that this court deem
that the regulation is valid.
-: Go ahead, Justice Kafker.
-: In terms of the deference issue,
so we have a change in policy right?
They use the aggregate and then they (mumbles)it.
And what triggered the change?
What, from the record can we determine,
why they stopped aggregating life and other sentences?
-: Your Honor, I don't believe there's anything concrete
in the record.
My recollection from when this case
was in the superior court was there was some discovery
that was done to try and attempt
to find more history for these cases.
But as it turns out,
it appears that before 1977,
the Board did not aggregate the sentences.
And then after Hanshaw, it did aggregate these sentences,
and the Board reviewed that policy again.
And in 1988, came out with its policy,
that it was gonna follow what the statute said.
And that, that would be that the...
-: That statute, when did that statute pass?
When did 133a pass?
-: The first version of it I believe was 1955, Your Honor.
-: So, -: I have it in my brief,
I might be blanking on the date.
-: So it's not a statutory change,
that generated the change in policy,
they just changed their policy?
It could have been... -: I believe...
-: Get a hold of one of those hearings, and (mumbles)
-: (laughs) Well, I believe there was some statutory change,
but I don't think it affected,
that part of the statute other than,
I think the dates changed at one point in time.
And I believe at one point in time in the 60s,
the minimum sentence for a life sentence was 20.
Then it changed to 15 and now it's changed again.
So I think that's why the court...
why the legislature has gone
with the minimum term fixed by the court.
-: Why would we show any deference if the Parole Board
is like ping ponging around on this issue?
-: Well, I would certainly disagree with the characterization
that they ping ponged around, Your Honor.
This policy-- The document has
changed three times without any sort of clear reason why...
The first change makes sense.
Hanshaw triggers the aggregation.
The second change (mumbles)
We can't discern any reason for it.
-: Right? But as an administrative agency,
and as a government agency, Your Honor,
the board certainly does have the authority
to address corrections in their regulations
and their interpretations.
And they've changed it...
They've only--
-: Don't they have to provide some explanations,
if they want us to defer to it.
I mean, I would be happy if they said,
"oh, because of the language in this amendment,
we will this change."
Then we say, "great deference."
But they just change it out of nowhere.
Do we owe any deference to that?
-: Yes, Your Honor.
I believe that the case law would still suggest some level
of deference to the Board's decision,
especially since it's been such a long standing policy.
It's been in place since 1988 and then has been implemented
into the regulations since then.
I do think that the Board as an agency does have
that authority to,
and the discretion to look at the statute
and determine that...
When we look at Hanshaw,
it doesn't actually talk about specifically 133a.
And if the Board then reviews that,
and says, "this isn't what it says."
And as they explained in their regulation policies...
I'm sorry, in their policy manual in 1988,
that's why the policy became what it was.
It was because of that minimum term.
And if they aggregated it,
those prisoners serving a life sentence,
wouldn't get their hearing at that particular date.
And that's been their policy since then.
And I think it does deserve a certain amount
of deference, especially in light
of the fact that not only has the policy guide changed,
but when the statute...
when section 133 was changed in 1993,
133a didn't change at all.
And I think at that point in time,
if you're going to make that kind of legislative change,
that the legislature didn't make that change,
and the Board continued with that policy,
certainly deserves some deference based
on a legislative acquiescence.
And that's addressed in our brief this far, Your Honor.
-: A question has come over the transcom from the Chief,
-: Okay. (lady laughs)
-: so I'll ask that on his behalf.
-: (laughs ) Sure.
-: Is there an inherent contradiction in having
a parole hearing which cannot yield a parole release,
where parole is defined as a release from custody?
-: I don't think that it is an inherent contradiction.
I think, and we referenced this in our brief as well.
I think the superior court provides some helpful analysis
that not every prisoner is paroled to the community.
That certain parts of the statute can apply
to a specific sentence.
I think the superior court addressed it,
maybe a little more eloquently here
than I'm doing right now.
But what they're getting at,
and I agree with their position is,
you can be paroled from one sentence,
to serve another sentence.
We've had consecutive sentences before.
I don't think it's a contradiction that, that happens.
It may not happen in every instance,
but I also don't think the fact that,
that language appears in 130,
it certainly isn't enough to,
under Regulatory Interpretation Standards,
to deem the whole regulation invalid.
It may not be a perfect fit,
but I don't think it's a contradiction
that somebody can be paroled
from one sentence into serving a consecutive sentence.
-: Does anyone have any other questions?
-: Okay, great. Thank you Counsel.
-: Thank you.