By Matt Murphy

STATE HOUSE NEWS SERVICE

STATE HOUSE -- In an opinion authored by its next chief justice, the Supreme Judicial Court on Wednesday struck down lifetime parole sentences for sex offenders, ruling that a law authorizing the Parole Board to impose additional prison terms for parole offenders violates the state's constitutional separation of powers.

Justice Ralph Gants, who was confirmed on Wednesday to be the next chief justice of the Supreme Judicial Court, wrote that judges alone have the power to sentence criminals to prison, and vacated the sentences of those sex offenders currently living under the "community parole supervision for life" program.

In his opinion for the 6-1 majority, Gants said community parole supervision for life "constitutes an impermissible delegation to the executive branch of the core judicial function of imposing sentences, and therefore violates the mandate of art. 30 of the Massachusetts Declaration of Rights."

Justice Robert Cordy wrote a dissenting opinion, arguing that while he agrees the Parole Board should not have the power to impose additional sentences beyond the original sentence handed down by a judge, he disagreed with his colleagues that the Parole Board could not continue its parolee monitoring functions under the law.

The case stemmed from a motion filed by Casey Cole, who was classified as a Level 2 sex offender, seeking to "correct" his sentence by arguing community parole supervision for life was unconstitutional.


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Cole in 2011 pleaded guilty to failing to update the Sex Offender Registry Board when he moved from West Bridgewater to Taunton.

Cole was sentenced by a judge to six months of supervised probation and community parole supervision for life, but challenged the sentence after completing his probation without incident. The Massachusetts Association of Criminal Defense Attorneys and Prisoners' Legal Services of Massachusetts filed amicus briefs in the case.

Unlike traditional parole which is granted by the Parole Board as an alternative to serving the remainder of a prison sentence, the law authorizing lifetime community parole for sex offenders who have served their initial sentences gives the Parole Board the power to determine when a sex offender has violated the terms of that supervision and to order them back to prison for 30 days to a year depending on whether it's a first, second or third offense.

Community parole supervision for life was established as part of 1999 law that created the state's Sex Offender Registry, and expanded in 2006.

"If the Legislature wishes to mandate a period of supervised release for sex offenders following the expiration of their sentences, and to authorize a term of imprisonment after the original term of imprisonment where a sex offender violates a condition of supervised release, the Legislature may do so without violating art. 30," Gants wrote for the majority. "Such legislation simply must require that a judge, rather than the parole board or another executive agency, determine whether a sex offender has violated a condition of supervised release, and whether a new or suspended term of imprisonment should be imposed."

Gov. Deval Patrick, asked about the decision on Wednesday, said he had not yet read the opinion, but Attorney General Martha Coakley responded in the afternoon.

"Post-incarceration supervision of high risk sex offenders is a critical tool to protect the public, particularly our children. We are committed to acting quickly to update our laws to maintain this important protection, using the roadmap the SJC laid out in its decision," Coakley said.

The court, citing Parole Board figures, said there are currently 275 to 300 individuals sentenced to CPSL, about half of whom are incarcerated and half are under parole board supervision. Gants said resentencing of defendants without violating their "double jeopardy" rights in certain cases would be a "substantial, but manageable, burden."

While the state argued to the SJC that community parole supervision for life - and the punishments for violating that parole - are part of a defendant's original sentence, Gants said the law makes clear that the Legislature considered it additional to the original sentence, not a suspended penalty. Furthermore, Gants wrote that the "fact-finding determination" to impose a suspended sentence is the domain of the judicial branch, not the executive.

Cordy argued that the SJC could have struck down the sentencing powers of the Parole Board without stripping it of the ability to monitor sex offenders for life after they have served their sentences.

"The court's decision not to sever....fails to consider adequately the importance of those monitoring provisions, deprives the Legislature of the opportunity to remedy the constitutional defect as to the many CPSL sentences previously imposed, and will result in an unnecessary burden on our judicial system in what likely will be a largely futile effort to resentence hundreds of sex offenders," he wrote in his dissent.

Cordy also argued that CPSL sentences serve an "important and central monitoring purpose, facilitating public safety by permitting and requiring intensive supervision of the sex offender population."

Citing a News Service article from 1999 to show legislative intent, Cordy noted that conditions put on sex offenders could include participation in sex offender treatment, submission to polygraph examinations, restrictions on Internet and computer usage, and restrictions on unsupervised socialization with minors.

Former Sen. Robert Bernstein said at the time that, "The objective is to ... keep tabs on them. We will know where and what they are doing and who they are."

Cordy also referenced statements made by former Rep. Paul Haley who was quoted saying the 1999 law would serve "the compelling need of the general citizenry to be assured those offenders posing the greatest risk are ... closely monitored with lifetime parole," and by former Sen. William Keating, who is now a Congressman, who said, "Sex offenders are never cured of their destructive impulses."

Gants said it was "plain" that the Legislature would not have enacted CPSL without giving the Parole Board the means to enforce violations of parole. Without the power to jail, the justice said parole officers could notify police of violations, but "could only cajole a CPSL parolee to obey a noncriminal condition."

Gants was confirmed unanimously on Wednesday by the Governor's Council to become the next chief justice of the SJC when Chief Justice Roderick Ireland retires in late July.