Supreme Judicial Court, December 24, 2013

Brown was charged with murder in the first degree that he committed when he was seventeen years of age.  While he was awaiting trial, the Supreme Court decided Miller.  He was convicted of murder in the first degree and the sentencing judge determined in light of Miller, the only appropriate sentence would be a lifetime sentence with the possibility of parole pursuant to G.L. c. 265, § 2 and G.L. c. 127, § 133A.   The Court reviewed its concerns for judicial law making and its preference for severability and agreed with this approach.  Brown should be sentenced under G. L. c. 265, § 2; however, the fourth sentence does not apply under Miller and Diatchenko.  Since the sentence now includes the possibility of parole, the sentencing judge must refer to the parole eligibility statute, G.L. c. 127, § 133A.  “Thus, juveniles like Brown who are convicted of murder in the first degree shall be eligible for parole within the time period provided under G.L. c. 127, § 133A.” 

The Court acknowledged the possibility of disparate sentencing based on the 2012 Crime Bill’s amendments to G.L. c. 127, § 133A.  With these amendments, a judge sentencing offenders for either first or second degree murders committed after August 2, 2012, will have the discretion to set parole eligibility between fifteen and twenty-five years.   Therefore it is possible for a defendant convicted of murder in the first degree to have a shorter parole eligibility date than a defendant convicted of murder in the second degree.  The Court indicated it hopes this is a temporary remedy that will soon be addressed by the Legislature creating a new constitutional sentencing scheme for juveniles convicted of homicide crimes.