Lauren Watford
A major parole reform is now underway in Massachusetts after a win in Dinkins & Ivey v. Massachusetts Parole Board. Prisoners serving parole-eligible life sentences with consecutive sentences could be released years, possibly decades sooner, and will receive new parole hearings. Importantly, the Court held the Parole Board accountable for its injustices.
In Dinkins, the Massachusetts Supreme Judicial Court remedied a major flaw in the state’s parole system. Pre-Dinkins, if life-sentence prisoners who also had a consecutive sentence were granted parole, they were sent back to prison to serve any consecutive sentences. To be released, they had to win parole a second time. The Board could deny parole from the life sentence to the consecutive sentence indefinitely, thus preventing the person from ever asking for parole to the community and dramatically increasing their time in prison.
Last summer, I co-authored an amicus brief for Dinkins which included first-hand accounts of many of the affected prisoners. As you will see, the policy was confusing and heartbreaking and added years onto these prisoners’ sentences. Likely a remnant of the tough-on-crime era, the policy also affected only prisoners serving life sentences and thus disproportionately affected communities of color. The win in Dinkins is a major step toward parole reform.
I. How Does a Person Earn Parole?
Once a practical guarantee, parole for lifers is now rarely granted. Parole hearings are notoriously arbitrary and heartbreaking endeavors, left to the discretion of a seven-member Parole Board, appointees of the governor.
Parole hearings take about three hours and often devolve into a pseudo-criminal trial with board members rehashing the unpleasant details. The murder victims’ families can testify. The prisoner needs to convince the board that they are rehabilitated and ready for release to the community.
The Parole Board determines whether there is a reasonable probability that “the prisoner will live and remain at liberty without violating the law” and whether their release is not “incompatible with the welfare of society.” G.L. c. 127, § 30. The Board claims to rely on a list of factors, such as the crime, institutional history, and the parole plan.
In reality, a prisoner must talk their way out of prison. The Board judges the person’s manner of speech, choice of language, appearance, and behavior. There are a few inherent problems here. First, Black and Brown individuals face a majority-white board, most of which have a background in law enforcement, corrections or prosecution. The parole system is just another facet of institutional racism. Second, individuals with intellectual, physical or mental-health disabilities are given almost no leeway or accommodation. The Prisoners’ Rights Clinic assists many clients with learning disabilities. One such client told me he felt during his parole hearing like he was “going down a river in a canoe with no paddle.”
II. The Pre-Dinkins Policy: “Non-Aggregation” of Parole Eligibility Dates for Lifers
The Dinkins case affects a specific group of state prisoners: those serving a parole-eligible life sentence with a “consecutive” sentence. To explain the pre-Dinkins policy, I will use a fictional example. Say a criminal defendant, Brian, was convicted of second-degree murder and a weapons offense. The judge then sentenced Brian to serve a life sentence for the murder and a 3-to-4-year sentence for the firearm offense to be served after the life term. On a life sentence, there is a 15-year period of parole ineligibility and on the weapons charge, a three-year period of parole ineligibility.
The Parole Board normally deals with these consecutive prison terms by scheduling an initial parole hearing when the person is eligible on all of their sentences. The hearing date is set by “aggregating,” or adding together, the parole ineligibility periods of every sentence. G.L. c. 127, § 30. However, in the pre-Dinkins world, Brian would have fallen under the Parole Board’s “non-aggregation” policy.
That regulatory policy created an exception to the aggregation rule set forth in G.L. c. 127, § 30, for any “sentence for a crime committed on or after January 1, 1988 which is ordered to run consecutive to a life sentence.” 120 Code Mass. Regs. 200.08(3)(c).
As a result, the Parole Board had to first grant parole from the life sentence to the next sentence. The person went back to prison to serve the consecutive sentence before having a parole hearing where they could be released to the community.
The catch was that the Parole Board could decide never to parole the person from their life sentence to their consecutive sentence. Or the Board could take multiple hearings to do so. Many prisoners had three or more hearings, waiting one to five years between each hearing, before being “paroled” to their second sentence. By adding this years-long process, this regulation added many years, even decades to lifers’ prison sentences.
In Brian’s case, but for the challenged regulation, he would have been eligible for parole to the street after 18 years in prison (15 years plus 3 years). Instead, a prisoner like Brian would likely have seen the Board after 15 years to request parole on his life sentence to his consecutive sentence. Then, if unsuccessful, he would see the Board again in 5 years, and again in another 5 years, before being possibly “paroled” to serve his 3-year weapons conviction and see the Board again to ask for his release on parole on the consecutive sentence. By this point, 28 years would have passed before Brian’s chance at release, compared to only 18 years. The Parole Board’s regulation added an entire decade to Brian’s prison sentence.
For many Massachusetts prisoners, the Parole Board’s regulation greatly, and illegally, lengthened their prison sentences. Freedom was a faint hope at the end of a series of nearly impossible hurdles.
III. How Did this Policy Affect Individuals?
I helped write an amicus brief with other students on behalf of the Northeastern Prisoners’ Rights Clinic for the Dinkins case, and we spoke to individuals with life sentences facing the effects of this regulation. We identified 26 individuals from a published list of parole hearings between 2015 and 2018, and we interviewed 20 of them.
Of the 26 individuals, only 5 had finished the parole process and been released.
Another 3 individuals were on “parole” in prison, serving their consecutive sentence. The joy of being paroled was undercut by never leaving their prison cell. They also described living on thin ice. The Parole Board often set conditions on their parole, even though they were still in prison. They were told receiving a disciplinary report during this time can cause their parole to be revoked and their life sentence to resume. For prisoners who are immigrants facing deportation after release on parole, the stakes are very high. One client told us that a disciplinary report causing parole revocation would likely mean never seeing his family in his home country again. He mostly kept to himself to avoid rubbing any guard or prisoner the wrong way.
The remaining 18 individuals had undergone multiple parole hearings yet were not yet paroled to their consecutive prison term. For many prisoners, that meant serving over 30 years before they even began to serve their consecutive sentences, many of which are substantial prison terms. They lived in a real-life purgatory between two prison sentences, never knowing if they would be able to seek parole to the street.
Almost all the clients told us the act of convincing the Board they’re ready for reentry when they had years to serve on a consecutive sentence felt confusing, pointless, and demoralizing. Although not interviewed for this brief, we know some prisoners decided to stop attending parole hearings outright.
Several clients told us they never understood they had a consecutive sentence until they appeared before the Board at their first parole hearing. The parole hearing then felt like a cruel joke. Families were also devastated to hear that even if the hearing was successful, their family members would not be home to see them. The Board’s policy undermined confidence in the parole system for everyone involved.
Another major point of confusion was what lifers had to show at this first hearing. Did the Parole Board want to decide whether the prisoner was ready for release or ready to start the next prison term? The clients reported it was not clear the Board members themselves knew. Parole hearings were already a shot in the dark, and this inconsistent standard made securing parole seem even more arbitrary.
IV. Why Did the Parole Board Enact this Policy?
The underlying question left by this regulation is, what was the point? Why did the Board enact this regulation? For the amicus brief, our team was unable to track down enough prior Parole Board members from the 1980s to conclusively state the Board’s reasoning. What we do know is the regulation was enacted in the context of structural and systemic racism.
While we do not yet have race data about parole, we do know that Massachusetts judges give longer criminal sentences to Black and Brown residents. While admittedly a small sample size, 14 of 23 amicus brief interviewees, or sixty percent, were Black or Hispanic. A substantial percentage when you consider Black and Hispanic residents combined form just 20.4% of the Massachusetts population. In this context, it is no surprise that a regulation was passed to punish lifers with consecutive sentences more harshly than other prisoners.
V. The Dinkins Case
One source of hope for these lifers and their families was the Dinkins case, brought by William Dinkins, Jr. and Eugene Ivey, two individuals facing life sentences and consecutive sentences. The attorney, Ryan Schiff, is an alumnus of the Northeastern Prisoners’ Rights Clinic. The plaintiffs argued the Parole Board’s policy was unconstitutional and contravened the parole statute by requiring lifers to be paroled from one sentence to the next.
Two portions of the parole statute, in particular, supported their argument. First, General Laws c. 127 § 130 requires a prisoner granted parole “shall be allowed to go upon parole outside prison walls and inclosure upon such terms and conditions as the parole board shall prescribe.” Second, § 133 provides, “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.” (emphasis added).
The Parole Board argued that another section, § 133A, permitted the Board to make an exception to that statute for lifers. Section 133A provides “[e]very prisoner who is serving a sentence for life. . . where the second offense occurred subsequent to the first conviction, shall be eligible for parole at the expiration of the minimum term fixed by the court under [G. L. c. 279, § 24].” The Parole Board argued “the expiration of the minimum term” really meant the minimum term only on the life sentence, not the aggregate of all sentences. Therefore, lifers could be required to ask for parole from their life sentence to their second sentence.
On January 19, 2021, the Supreme Judicial Court held the regulation invalid because it contravened the plain meaning of the parole statutes. As the Court stated in fairly strong terms:
Put simply, we are not persuaded by the board’s interpretation of § 133A. General Laws c. 127, § 133, plainly requires that “a single parole eligibility shall be established” for inmates serving “two or more consecutive or concurrent state prison sentences.”. . . [T]here is no legislative history that we have found, nor any indication in the statutory language, that the Legislature intended the clear, mandatory language of § 133 to be supplanted by a hidden insinuation in § 133A that the phrase “all such sentences” did not truly mean “all,” but meant “all but those occurring consecutively to a life sentence.”
The Court also noted that invalidating the regulation produces the most practical result. The court noted “under the current system, [William] Dinkins is entitled to at least two identical parole hearings before he truly can be released” and likely “even more parole hearings.”
VI. Effects of Dinkins and the Path Forward
The successful Dinkins case was a significant victory and means that all Massachusetts prisoners serving life sentences who have consecutive sentences will have their parole eligibility dates recalculated and receive new hearings.
Many individuals serving life sentences will receive an actual chance of release for the first time. All prisoners affected by the case will receive a new hearing, the date of which depends on their sentence length and how long they have been in prison. Many are immediately eligible for a new parole hearing. Some who were already paroled to their consecutive sentence are eligible for immediate release to the community. The rest will wait longer to see parole, but when they do, they will be considered for actual release back into their communities and not to another prison sentence.
The Dinkins case has other benefits, too. Many people serving life sentences can now be moved to a minimum-security facility that has pre-release programs and is an easier place to live. Placement in minimum security also increases a prisoner’s parole chances, because it shows they are designated as a low-security risk. Under the old system, most lifers were not eligible for minimum security until they were granted parole to their consecutive sentence.
One of the clients interviewed for the amicus brief, Mac Hudson, who wrote for the Forum about efforts to combat racism in the state prison system, said because of the Dinkins decision, he now qualifies for placement in a minimum-security facility and he is immediately eligible for “a meaningful opportunity for release into society instead of to another sentence.” If not for Dinkins, he would have had to wait at least another 8 to 10 years before given a chance of release.
The successful Dinkins case is life-changing for many Massachusetts prisoners, not only because of its ramifications for those serving life sentences, but also because the Court held the Parole Board accountable. For too long, the Parole Board has operated as an extra-judicial arbiter of criminal sentences operating largely outside of public scrutiny and accountability. The Dinkins case signifies that there are limits to the Parole Board’s power to indefinitely prolong prisoners’ sentences.
Of course, there remain systemic issues with parole. A bill was recently proposed in the Massachusetts legislature to fix a core problem by establishing presumptive parole. Bill H.1541 suggests parole “shall be granted” unless the board has clear and convincing evidence the prisoner does not meet certain criteria. Presumptive parole limits the board’s discretion and typically creates a statutory right to parole enforceable in court. This proposed legislation and the Dinkins case are two promising steps moving the criminal legal system in the right direction, away from arbitrary, indefinite prison sentences and toward a reliable system of justice promising freedom for as many people as possible.
Lauren Watford is a law student at Northeastern University, class of 2021. She is primarily interested in abolition-focused criminal justice reform. During law school, she interned for immigration and labor law firms and for the Maricopa County Public Defender. Lauren was an editor of the Law Review Forum for 2020-2021. After graduation, Lauren will clerk for the Arizona Court of Appeals, and she hopes to pursue a career in public defense and prison reform.