-: SJC-1 3197, Jose Rodriguez V Massachusetts Parole Board.
Justice Budd: Great. Attorney Celli.
-: May I remove my mask? -: Yeah.
-: May it please the court,
Melissa Allen Celli for the plaintiff,
Jose Rodriguez in this case.
This case presents many issues, your Honors,
but all of the issues have one thing in common.
And that thing is that at every juncture,
the parole board has taken the option
that involves less transparency.
In denying Mr. Rodriguez' parole
and giving him a five-year setback,
the parole board says that it has implicitly rejected
the findings of Mr. Rodriguez's expert on sexual recidivism.
The parole board has given no indication
why it rejected that opinion.
In denying Mr. Rodriguez' parole,
the parole board says that it implicitly rejected
the scientific research that-
Justice Budd: Wait, wait.
You say, "they say they implicitly rejected it"?
-: I think that's-
Justice Budd: Or are you saying
they implicitly rejected it?
-: I think that the only way,
the only possible way that they have addressed it at all,
giving them the benefit of the doubt,
is an implicit rejection.
-: So, they didn't say we are implicitly rejecting it, right?
Got it.
Male Justice: They just said they considered Dr. Plowed.
-: That is what they said.
They said that they considered Dr. Plaud's opinion, yes.
-: Dr. Plaud, I'm sorry. -: I'm sorry?
-: [Justice Wendlandt] Why isn't that enough
to know that they've considered it?
-: Well, your Honors,
their governing statute says
that they must provide a record of decision
that states their reasons for their decision.
Just saying that they considered it,
provides no guidance as to what they did
with that consideration.
And so, I think that they can't just say
that they considered it.
-: Does the statute say that they have to give reasons?
-: In fact, it does.
The statute reads,
this is General Law, chapter 127, section 130,
and I think that this is actually something
that's misconstrued often by the parole board, also,
they say that it's a summary decision.
That's not actually what the statute says.
What the statute says is,
"the record of the board's decision
shall contain a summary statement of the case,
indicating the reasons for the decision".
It doesn't say that the decision itself
is a summary decision.
It does need to provide its reasons for-
Justice Gaziano: Can I ask you Ms. Celli?
-: Of course.
Justice Gaziano: Just the bigger picture on this.
So this decision was rendered before Diehl?
Am I wrong on that?
Decision came out?
-: So, what happened, the timeline is that in November,
the Diehl decision was argued before this court.
And at that time,
the parole board made certain representations.
Two months later, the record of decision
in this case was issued.
-: Right, the Diehl issues.
-: And then the Diehl,
your decision in Diehl issued subsequent to that.
-: Right, that was my understanding.
So the question I have is,
why isn't this Diehl?
It seems to me when I read your well written brief
is that you are arguing the Diehl concurrence,
which isn't the law,
it's the Diehl majority that's the law.
-: So, I think there are a few answers to that.
First of all, the Diehl majority decision
did not repudiate the deal concurrence.
In fact, the Diehl majority decision does say
that the better practice is something akin to-
-: That's why I started with the parole board
didn't have Diehl.
I get the issues, but in fairness,
I think if this issued post Diehl, there might be an issue,
but here, they didn't have that guidance
and then Diehl, the majority literally says,
"Hey, the better practice is to spell out these things".
And you're right, you've got a three page
of very short, single spaced opinion to work with,
and you're making all sorts of inferences
based upon what they say,
same as Diehl majority, correct?
-: Yes, though there is a large difference.
If you actually go back and read the record of decision
in Mr. Diehl's case and compare it
with the record of decision in this case.
And I want to just,
I can't state this strongly enough,
in November of 2019,
the parole board stood in front of this court
and said that the one thing that,
the one area where it felt like its record of decision
in Mr. Diehl's case was deficient
was in the area of explaining the expert testimony.
And then two months later,
it issued Mr. Rodriguez's to decision
that gives not more detail about the expert testimony,
but actually arguably less detail.
And if you look at the records of decision
in Mr. Diehl's case and Mr Rodriguez's case,
in Mr. Diehl's case, the board said things like,
"The board recommends that Mr. Diehl partake
in more programming, such as criminal thinking
and restorative justice."
That is along the lines of what the parole board said
that it needed to do at oral argument in the Diehl case.
It said that it needed to provide some basis
that the inmate could use for improving himself
before his next parole board hearing.
If you contrast that with what is said
in Mr. Rodriguez's decision,
Mr. Rodriguez's decision, in the actual decision section,
there are four sentences, four sentences.
One says, "Mr. Rodriguez has a history
of sexual assault cases."
That is a static factor that can never change.
Two, "Most notably, he committed the brutal rape
of a stranger and then committed two serious sexual assaults
while on bail."
That is also a static risk factor that can never change.
Three, "He has completed the sex offender treatment program,
but only after several failures over the decades."
Again, that is a static risk factor that cannot change,
Justice Cypher: How is that a static risk factor?
-: Because, let me say,
the completion of the sex offender treatment program
I think is arguably a dynamic risk factor
that he has rehabilitated himself.
But the second part of that sentence,
where he says, where they say that,
where they focus on his failures,
that's something that can never-
Justice Cypher: So you say his history is all static?
-: Indeed it is.
And then the last sentence is,
"He has made progress in his rehabilitation,
but has yet to demonstrate a level
of rehabilitative progress that would make his release
compatible with the welfare of society."
The entire rest of the decision section
is entirely boilerplate.
It's the same boilerplate that was discussed in Diehl.
And if you contrast those two decisions,
you see that in Mr. Diehl's case,
there was some reasoning given.
There was some consideration given
to what Mr. Diehl could to make himself a better candidate
for parole the next time around.
In this decision, in Mr. Rodriguez's decision,
there's nothing analogous to that.
They've provided no guidance.
-: Counsel. -: Yes?
-: I have two questions.
One, given your recitation of the things
in the decision section of the board's decision,
is there something in the statute
or otherwise that requires substance in a decision section,
that is if something's in the background section,
then ergo, it wasn't part of the decision?
And then, my second question is,
I'm not quite sure that I now understand your difference
between static and dynamic?
-: So, okay, let me start with the first part
of that question.
I don't think that everything needs to be said
in the decision section.
-: [Justice Wendlandt] Okay so why are you focused on that?
-: Because what they've said in the prior sections
are virtually entirely static risk factors.
This is the fear
and the thing that I would like to see
alleviated is we can't allow the severity of the offense
to overwhelm the parole board's decision
when we're talking about a juvenile lifer
whose rehabilitative progress needs to be considered.
Justice Budd: Well, he's not really
a juvenile lifer.
He went in, didn't he, around age 21?
-: He is incarcerated for an offense
that he committed prior to his 18th birthday.
And thus, he is absolutely a juvenile offender.
That is his governing offense in Massachusetts.
He stands on no different footing than someone
who goes into prison at 17 years old
and commits another crime while incarcerated.
Justice Gaziano: But on the rehabilitative side,
as the parole board entitled to take into account
his flight to California and his offenses
as an adult in California?
-: Of course they can take that into account
to the extent that it bears on his rehabilitation.
-: That's why I asked as to his rehabilitation.
-: So as to what weight that that can be given
in terms of what that means for his rehabilitation,
I don't know, but I will say that even this court has held
that even very serious offenses cannot form the basis
for a life without parole sentence.
And it cannot, the sentencing court cannot say
at sentencing when they, by the way know, in detail,
the severity of the offense at hand,
that sentencing court cannot say,
"This person is categorically deserving
of life without parole".
And it's not clear to me what extent the parole board
can rely solely on the severity of the offense
in determining that this person is not ready for parole.
-: Just one question,
because I thought I had the difference too,
but when you talk about whether or not
the sex offender treatment was actually satisfied
and not there being static,
I got a little bit confused.
-: I'm sorry.
I think that that sentence, I would categorize it actually
as half static and half dynamic.
The fact that he has rehabilitated himself
in taking the SOTP, that is a dynamic risk factor
or that is something that he has done.
However, the fact that he had many failures
or as they characterize it, many failures along the way,
now that is something that can't change.
You know, we can't, I don't think it is fair
to forever deny someone parole because they weren't perfect
on their sex offender treatment the very first time around.
You know, by definition, progress means
that you weren't perfect the first time around.
-: [Justice Wendlandt] So is that the difference
between dynamic and static?
-: I think dynamic is something that has happened in the past
and is something that can never change.
-: That's dynamic? -: Static.
-: Okay.
Attorney Celli: Something that has happened
in the past and can never change.
-: Isn't hat true of everything that's happened in the past?
-: I mean, I think in some sense that's, you know,
that's not wrong though, as you know,
to the extent that we're looking at rehabilitation.
And to be honest, you know, perhaps it's fair
to categorize the sex offender treatment statement
as being a dynamic risk factor.
The point being, whether it's categorized as a static
or a dynamic risk factor is not necessarily that important.
The fact is that if they are continually
going to deny parole on the basis of the fact
that he had some stumbles along the way,
but then ultimately did finish
the sex offender treatment program, that-
-: So, what do you think a fair amount of time
would be between the stumbles and the successful completion?
Or do you think they should never consider the stumbles?
-: No, I don't know.
I don't know, your Honor.
And frankly, it's really not my job to figure out
how long a time he needs.
However, what we-
-: The parole board decided he needed more time.
It is their job, right?
-: But that is actually not what they said in their decision
and that's the important thing.
I am not here to ask this court to dictate
what the parole board needs to do.
I certainly am not here to dictate
what the parole board needs to do.
However, we cannot know what the parole board
actually did on the basis of this decision.
-: Can I ask you on that point?
Just to clarify for me, you criticized the use
of the assessment instrument, correct?
Attorney Celli: Yes.
-: The risk assessment instrument as it relates to juveniles.
And that was part of the Diehl concurrence at least
that said you should use an assessment tool,
which was used in this case.
Is that something within the discretion of the parole board,
or is it in your view, something that is inadequate
and denies a meaningful right of parole?
-: So again, if we look to the statute
that governs parole board decisions,
it's chapter 127, section 130,
and that's that statute is what calls
for the parole board to use a risk and needs assessment.
It is illogical
to think that the parole board
could use a risk assessment tool
and satisfy that statutory requirement
if the risk assessment tool itself has no basis.
There's no resemblance to the reality
of whether or not someone is going to recidivate.
So whether or not the parole board can use-
-: But whether it's a valid or invalid risk assessment tool
is something that you criticize,
but do we have any case law on this?
I mean.
-: We don't because we don't have any information on this.
The parole board is opaque on the use of the LS/CMI.
You know, we don't even get an unredacted copy.
-: You say the trouble of having,
because you're basically saying
this is a horrible instrument.
It's not correlated to juvenile offenders.
So just, they can't use it.
And I'm trying to look at this and say,
well, how do I decide whether or not?
I'm not an expert in this area?
How do we decide this?
-: I would argue that I'm not here to say they can never use
the LS/CMI for juvenile offenders.
What I am here to say is that if they're going to use that,
they should show why it's valid or how it's valid,
which they haven't done
and I don't know whether they can do.
-: And as far as your overall argument goes,
when you talk about static versus non-static factors
and the like, the parole board doesn't have any obligation
to distinguish between static and non-static,
but our job is to see whether or not their opinion,
whether or not their decision is constitutional
and that it gives meaningful right
to parole for juvenile offenders.
That's what we're here for, correct?
-: Absolutely. Absolutely.
And that depends on the inmate's behavior
over the course of his life.
We cannot allow the seriousness of the offense
to play to emotions and govern.
-: Is that really,
if you take a step out from this case,
whether it's the use of LS/CMI
or every issue we've talked about
other than the procedural issues
and how much support there should be in the decision
and issues of the advanced date.
What seems to be driving this though,
is I understand that the designated offense
is the juvenile offense.
What seems to be driving this
is the two offenses as an adult.
And that's sort of powerful in the whole case, isn't it?
-: I suppose it is, your Honor.
But if they are relying on those two offenses,
all I'm asking for is for them to explain
their reasons for denying parole.
You're guessing that their reason for denying parole
is the basis of these two other offenses in California,
or even worse yet, as the parole board has indicated
in its briefing, possibly some acquitted conduct
that he was unable to describe in a manner
that the parole board found to be adequate or sufficient,
even though it was acquitted conduct.
The parole board's job is not to sit as a sentencing body.
Its job is the sentencing body had the benefit
of knowing about those California offenses.
The sentencing body had the benefit of knowing
about whatever prior conduct the parole board alleges
that by the way, is not present
in either the administrative record
or to any real detail in the parole file itself.
You know, the sentencing body had all of that information
at its disposal.
It created a sentence on that basis.
It is not the parole board's job
to sit as a super sentencing court.
-: And just to get back to our job,
can you just explain to us what basis we would use
to determine that the board's decision is unconstitutional?
-: Well, I think you've really nailed the problem here.
The board's decision is unconstitutional
because it doesn't provide a basis for determining
what it made its decision, how it made its decision.
You cannot know whether it is constitutional or not,
because it didn't follow the due process requirements
outlined in Diachenko and the legislative mandate
of giving its reasons
Justice Gaziano: Because it's cursory.
-: Because it is cursory. That's correct.
And I see that my time is up, your Honors.
Thank you very much.
Justice Budd: Thank you.
-: [Justice Wendlandt] Okay, attorney Blume.
-: Good morning, may I please the court,
Assistant Attorney General Todd Blume
on behalf of the Massachusetts Parole Board.
The board's decision in this case is in compliance
with this court's decision in Diehl.
However, the decision was issued prior to Diehl.
So the board did not have the benefit
of this court's guidance of better practices
in the Diehl decision.
Respectfully, what Diehl requires of the board
and how it might apply to future decisions
is not before this court
and the court to respectfully reserve these questions
for a future matter,
where the board did have the benefit
of the court's guidance in the Diehl decision.
-: Counsel, if I could interrupt you on that.
Even without Diehl though,
you know that if they're going to petition for parole
and they get denied, there's some interval
that they have to wait before they can reapply.
So, in order to turn this into something
where someone has some real idea of what they can do
if they have been denied,
forgetting about Diehl for a minute,
just, we're denying you and in preparation
for whatever else may come,
here's what you could work on,
here are what our concerns are.
How is a petitioner supposed to be able to do that
with this decision?
-: Well, your Honor, respectfully putting aside
the reasons why Mr. Rodriguez was denied in this case,
on the face of the decision,
the board did not say specifically what is required
of Mr. Rodriguez besides working
towards his full rehabilitation.
However, there are reasons for that, your Honor.
The board does not necessarily want to list
or state different programs that he can take to complete
for an obvious potential problem
that might cause in the future,
saying like, "You told me that I would do X, Y, and Z.
I did those and I was denied parole."
A person can be denied parole
even though they've completed many programs
is my understanding.
So in this case-
-: Okay.
Does that run into the constitutional issue
of not having a meaningful right for parole,
if no matter what they do,
and we obviously just talking about juvenile offenders,
Attorney Blume: I'm sorry, could you repeat?
-: Does that violate the Diachenko?
-: No, it doesn't your Honor,
because here, the board issued a decision
that was in compliance with Diachenko
and this court's decision in Diehl.
So if I may briefly just go back to Diehl briefly,
this court in Diehl affirmed
that juvenile homicide offenders are sentenced
to a mandatory term of life in prison,
are entitled to a meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.
However, the right of a juvenile felon
in relation to parole is limited.
It is not a guarantee of eventual release
or an entitlement to parole release.
It means that the board provides this constitutionally
guaranteed meaningful opportunity to obtain release
so long as it is given the offender a chance
to demonstrate maturity and rehabilitation,
and in reaching its decision,
has considered the Miller factors.
-: How are we supposed to know?
And I guess, how is the petitioner supposed to know
if the goal posts keep getting moved?
That's what I don't understand.
I mean, you have a cursory decision like this.
I understand that you say you may not want to box,
the parole board may not want to box itself in
by saying, "If you do these five things,
we'll see you in five years
and we're gonna prove the petition for parole".
That's not what I'm saying.
If you just lead with the conclusion and say,
"You haven't met the criteria
for safe release into the public".
Great. What does that mean?
So in five years, it's not going to get any more clear.
So how could they have a meaningful chance of parole
without getting some kind of specificity
as to what the deficiencies are?
-: Your Honor, it's my understanding from the board
that it is also on the plaintiff to take additional programs
and to do that on his own.
He completed one program in this case,
but there were many reasons why he was denied parole
in this decision.
And it's apparent-
Justice Budd: Where are those set forth?
-: Yes, your Honor.
So, here, there were concerns that led the board
to conclude that he had not rehabilitated himself.
The first thing, the board was primarily concerned
with his history of adult sexual cases.
This is the first thing mentioned
under the decision in section three.
They say, "most notably".
And then they mention the adult defenses.
This is permissible under Diehl.
After that, they also state on page 23 of the record
that it took him a few times
to complete the sex offender treatment program.
And he admitted at the review hearing
that when he was on parole in California,
he used a different name and never disclosed
that he was on the run for a rape charge in Massachusetts-
-: How do we know that that's part
of the decision making for the board?
-: Section two, your Honor.
Because it is the board's position
that it is the entire record of decision
that shows that they considered the Miller factors
in this case.
-: So if it came into evidence and I summarized it,
it's part of my decision making?
-: Well, it was also thrown out at the hearing, your Honor,
at the parole hearing.
So, the record can also-
-: So, if it comes into evidence
and I summarize the evidence,
ergo I made it part of my decision.
That's the board's position?
-: Can you repeat that, your Honor?
I'm sorry.
-: If it comes into evidence
and I just summarize the evidence,
ergo it's part of my decision making
that is I, as a justice on the SJC can say
it was necessarily part of the board's decision making
that they summarized the evidence.
Attorney Blume: That is correct, your Honor.
-: Okay.
-: The board was also troubled by the fact
that Mr. Rodriguez could not remember the names
of some of his victims which is also in the record,
and could not recall the details of some of his offenses
and provide-
-: So, anything that came in
as part of the board's decision making.
So if it came in,
it's enough to satisfy the constitutional requirements?
-: It's our position that the record can supplement
the board's summary statement of reasons, your Honor.
-: Can I ask you about the risk assessment?
Attorney Blume: Yes, your Honor.
-: Where is that?
How do I know how that works?
-: Well, okay, so first regarding the LS/CMI, your Honor,
the board concedes that it is not specifically designed
for juveniles, that is in the record below.
There is no detailed information in the record
about how the LS/CMI is conducted.
I would first state that here-
-: So, it could just be a random number generator?
-: Well, how the score is tallied
is in our brief, your Honor,
and we do have a commitment summary here
that does show information that was available
to Mr. Rodriguez in section one.
-: I don't know the algorithm used by the LS/CMI, do I?
Is that in the record?
-: I don't believe so, your honor.
No, it's not.
-: And is that something that's given to the applicant?
-: It is not.
It is proprietary information and confidential.
-: But was it used by the board in its decision making?
-: It was. It is used by the board in every case,
including juvenile cases.
-: All right, and we have no idea how it works?
-: We do have some idea how it works
from the studies that are cited by the appellant.
The study that is heavily relied on by Mr. Rodriguez
does in that study, give details as to
how the LS/CMI is conducted,
and that's pretty much the extent of that
in the record in this case.
-: Okay so, based on those studies,
it's the board's position that
that's a legitimate risk assessment tool?
-: Yes.
The board has the discretion to use that tool
and is a tool that was used-
-: [Justice Wendlandt] Does the board know
how the tool works?
-: Yes, your Honor.
-: Okay so, the board knows,
the maker of the risk assessment presumably knows,
the only person who has to rely on outside studies
is the parolee applicant?
-: Well, your Honor, it's our position that in this case,
Mr. Rodriguez has enough information
from the information provided to them
to understand his score.
The remainder of the score is confidential
and proprietary information.
-: [Justice Wendlandt] And why is that?
-: I can answer your question, your Honor,
but I would have to venture outside the record for that.
So-
-: No, I don't want you to venture outside the record.
This is all that the applicant has.
-: So, I would just briefly state-
-: [Justice Wendlandt] How is that not arbitrary?
-: Sorry, how is what not arbitrary?
-: The use of a risk assessment tool
whose algorithm is entirely unknown, it's proprietary,
could be, for example, a random number generator,
as far as I know, based on the record,
how is that not arbitrary?
-: Your Honor, the board is conceding
that it is not a perfect tool-
-: No, no, no.
It need not be perfect.
I'll concede that,
but if I don't know how it works,
studies show that it's not appropriate
for juvenile offenders and you're conceding as such.
It was part of the record and ergo part
of the decision making in this case.
How is that,
how do I take from all of those things that I do know
and conclude that the decision to rely on it
is not arbitrary and capricious and an abusive discretion?
-: Well, in this particular case, your Honor,
Mr. Rodriguez, as Justice Wilkins points out,
was also charged with other subsequent sex offenses
as an adult.
So, it's not clear that a properly normed assessment
would treat him just as a juvenile-
-: [Justice Wendlandt] Right, that's the point.
It's not clear.
Attorney Blume: So, the board used a tool in this case
that was useful appropriate to Mr. Rodriguez
as an adult sex offender.
-: How do I know that?
-: Your Honor, I mean, it is confidential
and proprietary information in terms of the specifics
of how it is conducted.
-: So it could be, as I said,
a random number generator for all I know,
for all you know.
Attorney Blume: Your Honor, it's not in the record.
I'm sorry.
-: Okay. I understand.
-: So it is not, again, it's not a perfect tool
and there-
Justice Kafker: Well, are there any judicial decisions
on this tool outside of this?
Are there any,
was this tool used in other cases, in other states?
-: Yes, your Honor.
Justice Kafker: And has it been,
been questioned, its validity,
rational basis for this tool?
I mean, you're sort of,
you're walking into trap doors here if you're not careful.
-: Your Honor, there are other cases cited in our brief
that do explain more about the terms of-
-: But my question is,
are there other cases in other states
where they've validated the use of this tool for adults
as opposed to juveniles?
-: Your Honor, I don't have that inform information
with me today, but I can get that
if the court would like me to give-
-: That seems to be a pretty important,
that seems to be a pretty important factor.
-: There are cases in other states saying
that it does weigh both static and dynamic risk factors.
And again, there's a case like People versus Misner,
which define terms more appropriately
that are not in this record.
-: There's other tools that are proprietary,
that are used sometimes at trials,
but nothing tenacious like,
whether somebody lingering for instance,
but there's enough information that's given to the parties
that they're able to have some sort of analysis
of whether or not there's any logic and reason,
any rationale to them so-
Attorney Blume: That's correct.
In this case, the LS-
-: But here, it doesn't seem that that information
is forthcoming from the board, from the parole.
-: I would disagree with that, your Honor, respectfully.
Here, besides the unredacted comments in section one
of the LS/CMI, it shows that Mr. Rodriguez scored
in the medium-risk range to re-offend.
And then what he received a high score on
were criminal history, leisure, and companions,
and a low score on education, employment, family, marital,
alcohol, drug problems, pro-criminal attitude
and anti-social pattern.
So he can tell from this,
how the score was tallied, what the information is.
And there are comments under section one as to-
-: So, he knows the input and the output,
but he does not know the algorithm used.
And it's your position that that is a rational thing
for the board to rely on?
-: Well, yes, it's our position that
that everything after section one,
sections two through five, which is the redacted information
is proprietary and confidential information.
The board has to redact it under contract.
And so, that information would not be available
to Mr. Rodriguez.
-: If I could just briefly go to another subject.
I know that you say that the 10 months it took
to make a decision and those 10 months are now not available
to be able to engage in rehabilitation wasn't raised
in this particular occasion?
Attorney Blume: Yes, your Honor,
-: When you have five years in between hearings
and 10 months for a decision, isn't that a concern
that the inmate is really just completely losing 10 months
to be able to respond to the reasons parole's been denied?
-: Your Honor, here we have a regulation
under 120 CMR 30108 that says,
"the board should provide the inmate written notice
within 21 calendar days after the decision
has been rendered."
And in this case, the board did that.
They provided him notice within 21 days
after their decision.
So, after the January 29th decision,
so there was no violation of the regulations in this case.
And respectfully, the 10 months
between the hearing and the decision,
the allegations by Mr. Rodriguez do not show
that he suffered legal prejudice, your Honor.
-: Okay, can you just go through that timeline?
So, he got the decision within 21 days of the hearing?
-: The board sent him within 21 days-
-: So it's like some sort of interim decision
and then the summary to follow?
-: They sent him,
they sent him-
-: That's okay. -: 21 days.
-: I can put it together, thank you.
-: Yes. -: Sorry.
Justice Budd: Okay. Thank you.
Attorney Blume: Thank you, your Honor.