Parole Revocation for Lifers

The parole revocation process is governed by Massachusetts statute and regulations. In general terms, these provisions lay out the following process:

Parole Revocation Process
The parole officer issues a warrant for temporary custody (also called a detainer) upon reasonable belief that a parolee has or is about to lapse into criminal ways, associate with criminal company, or violate the conditions of his parole. See M.G.L. c.127, §149A; 120 CMR 303.04.

A hearing officer conducts a preliminary revocation hearing within fifteen days, unless probable cause of a violation is established by other means, such as through criminal proceedings. Parolees may request postponement of this hearing in order to obtain legal representation or arrange for the attendance of witnesses. See 120 120 CMR 303.06-303.12.

The Parole Board reviews the hearing officer’s recommendation, and either releases the parolee, or issues a parole violation warrant and schedules a final revocation hearing to be held within approximately 60 days of its preliminary decision. See 120 CMR 303.13-303.18.

At the final revocation hearing, a panel of Parole Board members determines whether there has been a violation of parole conditions and, for non-lifers, decides whether to set a reparole date or deny reparole. Parolees are entitled to representation by an attorney or law student at the hearing, and may present witnesses and documentary evidence. See 120 CMR 303.23, 303.25. The Board notifies the parolee within 21 days of reaching a decision to revoke parole. See 120 CMR 303.26.

In the case of those serving second-degree life sentences, the Parole Board’s practice has been to hold an additional hearing on the question or whether or not to reparole the prisoner, after it finds that a violation occurred. These “reparole” hearings are often postponed for many months. However, this practice is not authorized by the regulations, and lifers in this situation should inform PLS of their individual circumstances.

In order to revoke parole, the Board must find that it is more likely than not that the parolee violated a condition of his parole, based on “any reliable and relevant information available to it.” 120 CMR 303.23(4). Additionally, when the Board finds a violation occurred and is deciding whether to grant or deny reparole, it must take into account “all relevant information regarding the parolee’s suitability to be returned to parole supervision”, including his or her institutional and criminal history. 120 CMR 303.24(2)(g); 120 CMR 300.05(1). The Parole Board is statutorily authorized to grant parole “only if the parole board is of the opinion that there is a reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society.” M.G.L. c.127, §130.

Prisoners’ Rights in Revocation Proceedings
Massachusetts prisoners have a protected liberty interest in remaining on parole, meaning due process protections apply to parole revocation proceedings. See Morrissey v. Brewer, 408 U.S. 471 (1972); cf. Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1 (1979). Accordingly, and as established in Massachusetts regulations, parolees are entitled to: written notice of the alleged violations of parole, disclosure of the evidence against them, an opportunity to speak and present witnesses and documentary evidence at a hearing before a neutral and objective decision maker, the right to cross-examine witnesses, and a written decision identifying the reasons for revoking parole. See 120 CMR 303.12, 303.23, 303.26; Commonwealth v. Maggio, 414 Mass. 193, 195-197 (1993). Further, the final revocation hearing must occur “within a reasonable time” after the parolee’s arrest. Morrissey v. Brewer, 408 U.S. at 488; see also United States v. Montalvo-Murillo, 495 U.S. 711 (1990).

At the preliminary and final revocation hearings, parolees must also be informed of their right to be represented by an attorney or law student, or by someone qualified to assist the parolee if he/she has a disability or condition that makes it difficult to understand or communicate. 120 CMR 303.12(2), 303.23(7). Under some circumstances, and particularly when an indigent parolee faces a significant risk of re-imprisonment in parole revocation proceedings, he or she has a right to appointed counsel paid for by the Commonwealth. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3, 790-91 (1973); Commonwealth v. Patton, 458 Mass. 119 (Mass. 2010); Marsh v. Mass. Parole Bd., No. Civ. A. 97-3751-B, 1997 WL 781443 (Mass. Super. Nov. 21, 1997). In order to be appointed counsel, you must make this request.

If counsel is not appointed, you may be able to obtain representation at a parole hearing.

Right to Appeal or Seek Reconsideration
Parolees have the right to appeal a revocation decision within 30 days of receiving notice of a decision to deny, rescind, or revoke parole or to grant parole subject to a postponed reserve date or special conditions. 120 CMR 304.02(1). If the initial appeal is denied, you may submit an additional appeal to the full Parole Board within thirty days of receiving notice of the denial of your first appeal. 120 CMR 304.02(2). The full Board’s decision is final.

All appeals must be made in writing and submitted to the Institutional Parole Officer, who will inform you of the outcome. Your appeal must specify one or more of the following reasons why you believe the decision is unfair or flawed: (a) the decision was not supported by the reasons or facts stated; (b) the decision was based on erroneous information; (c) the hearing panel came to the wrong conclusion because it did not follow correct procedure; (d) the hearing panel was not aware of significant relevant information; or (e) the special conditions are unfair and should be amended. See 120 CMR 304.02(3).

You may also request reconsideration of a Parole Board decision to deny or revoke parole or to grant parole subject to special conditions. If you submit your request for reconsideration together with an appeal, you must submit both within 30 days of receiving notice of the decision. 120 CMR 304.02, 304.03. Otherwise, if you submit a request for reconsideration on its own, you must wait at least 90 days from the date of notification to do so. A petition for reconsideration must not be based on the same grounds as an appeal or previously-rejected request for reconsideration, and must state facts supporting one or more of four specific grounds: (a) a material change in personal or other circumstances requires a different decision; (b) the tasks mandated by the parole hearing panel have been accomplished; (c) especially mitigating circumstances justify a different decision; or (d) there are compelling reasons that justify a more lenient decision. 120 CMR 304.03(1).

Potential Grounds for Legal Action
When the minimum due process rights mentioned above are not protected in the parole revocation proceedings – or if the Parole Board fails to comply with its own regulations, a parolee may file suit against the Parole Board for injunctive and declaratory relief in state court. When a court grants injunctive relief, it orders the defendant to take specific action or to refrain from taking specific action.

Declaratory relief is a statement by the court that the defendant’s actions violated the law or the plaintiff’s constitutional rights. In order to pursue declaratory or injunctive relief, a parolee must first exhaust administrative remedies by appealing or seeking reconsideration of the Parole Board’s decision. See, e.g., Washington v. Massachusetts Parole Bd., 54 Mass.App.Ct. 1114 (2002), rev. denied, 437 Mass. 1105 (2002).

The Parole Board’s decisions may also be challenged as arbitrary, capricious or based on an error of law through certiorari review. See M.G.L. c. 249, § 4; Scott v. Walsh, 68 Mass.App.Ct. 1108, *1-2 (Mass.App.Ct. 2007). An action for certiorari review must be filed within 60 days of the last administrative action (e.g., the Parole Board’s decision on appeal). However, the Parole Board has considerable discretion and courts are not eager to overturn its decisions. See Hudson v. Walsh, No. 2007–880–C, 2008 WL 517631 (Mass. Super. Feb. 4, 2008); Greenman v. Mass. Parole Bd., 405 Mass. 384, 387 (1989).

Federal habeas corpus may also be used to challenge allegedly unconstitutional parole revocation procedures, after exhausting state law remedies. Spencer v. Kemna, 523 U.S. 1 (1998); DeWitt v. Ventetoulo, 6 F.3d 31, 36-37 (1st Cir. 1993), cert. denied, 511 U.S. 1032 (1994). In order to prevent a petition for habeas corpus becoming moot when the prisoner wraps up his sentence, he or she must show he or she continues to suffer negative consequences (injury-in-fact) as a direct result of the revocation. Id. at 14-18.

Parolees cannot seek monetary damages or declaratory relief under Section 1983 (42 U.S.C. § 1983) where the plaintiff implies or argues that the revocation decision is invalid because of flaws in the proceedings, unless the revocation has already been invalidated by a state court or called into question by a grant of federal habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 490 (1994); White v. Gittens, 121 F.3d 803 (1st Cir. 1997); Ali v. Hubbard, 125 F.3d 841 (1st Cir. 1997) (table). However, Section 1983 may be used where the plaintiff simply challenges the proceedings, not the result, and the procedural flaws do not “necessarily imply the invalidity of” the revocation decision. Spencer v. Kemna, 523 U.S. 1, 17 (1998), quoting Heck, 512 U.S. at 487. Further, Section 1983 can be used to seek prospective declaratory or injunctive relief where a parolee seeks future compliance with constitutional requirements (rather than new proceedings or release). See Wilkinson v. Dotson, 544 U.S. 74 (2005); Phillips v. Conrad, 2011 WL 309677 (D.Mass. 2011).

Where a parolee believes that the Parole Board relied on inaccurate information and seeks a correction of the file and/or a new hearing where accurate evidence is used, he or she may also file a Section 1983 action. See Phillips v. Conrad, 2011 WL 309677 (D.Mass. 2011). However, in such cases, only declaratory relief is available, and the parolee cannot be granted injunctive relief against the Parole Board and cannot recover monetary damages or attorney’s fees. Id.

Right to Appeal or Seek Reconsideration
If you have not appealed the denial, please be advised that you have the right to do so within 30 days of receiving written notice of a decision to deny, rescind or revoke parole or to grant parole subject to a postponed reserve date or special conditions. 120 CMR 304.02(1). If the initial appeal is denied, you may submit an additional appeal to the full Parole Board within thirty days of receiving notice of the denial of your first appeal. 120 CMR 304.02(2). The full Board’s decision is final.

All appeals must be made in writing and submitted to the Institutional Parole Officer, who will inform you of the outcome. Your appeal must specify one or more of the following reasons why you believe the decision is unfair or flawed, including that the decision was not supported by the reasons or facts stated, it was based on erroneous information, the hearing panel came to the wrong conclusion because it did not follow correct procedure, the hearing panel was not aware of significant relevant information, or the special conditions are unfair. See 120 CMR 304.02(3).

You may also request reconsideration of a Parole Board decision to deny or revoke parole or to grant parole subject to special conditions. If you submit your request for reconsideration together with an appeal, you must submit both within 30 days of receiving notice of the decision. Otherwise, if you submit a request for reconsideration on its own, you must wait at least 90 days from the date of notification to do so. A petition for reconsideration must not be based on the same grounds as an appeal or previously-rejected request for reconsideration, and must state facts supporting one or more of four specific grounds, including: a material change in circumstances, fulfillment of the pre-conditions, mitigating circumstances, or compelling reasons for a different decision. See 120 CMR 304.03(1).