Is Community Parole Supervision for Life (CPSL) for sex offenders constitutional? Does CPSL violate the Separation of Powers principle?

These questions are being considered by the Massachusetts Supreme Judicial Court (SJC). The issues are best analyzed by first answering the obvious question - what is CPSL?

CPSL is the power given to the parole board to supervise certain sex offenders for as long as the sex offender is alive. CPSL also gives the parole board authority to sentence an individual to jail if that person violates his or her parole. Massachusetts general law chapter 127, section 133D was created by the legislature. As the law exists, people convicted of certain sex offenses are place on CPSL as part of their sentence. From there the parole board monitors the individual for life. The parole board has broad discretion to set any number of conditions on the individual's parole: "The board is authorized to establish such conditions of community parole supervision for life, on an individual basis, as may be necessary to ensure public safety." With this sort of discretion, a parole officer may set any condition he or she wishes, no matter how unreasonable or burdensome. After a person is placed on CPSL, that person will, for the remainder of his or her life, be subject to the authority of the parole board. If the individual is accused of violating a condition of parole, there is no right to a hearing before a judge, nor is there a right to be represented by an attorney. The punishments for a parole violation are imposed by the parole board, not by a court. Under the current statute, when the parole board finds that a person violates his or her parole conditions that person is sentenced to 30 days in jail. If a person violates a condition a second time he or she is sentenced to 180 days in jail. If a person violates a condition a third time that person is sentenced to 1 year in jail. Each sentence is imposed by the parole board, not by a judge.

So, what's the problem? The problem is that the parole board is part of the executive branch, not the judiciary. A constitutional scholar I am not, but I do know that sentencing people to jail/prison is exclusively a judicial function. CPSL gives power to the executive branch as it takes power away from the judiciary. By sentencing people to jail under the CPSL statute, the executive branch effectively usurps a judicial power. Article 30 of the Massachusetts Declaration of Right "forbids encroachment by the executive branch...into the essential functions of the judicial branch." Allowing parole board members to sentence people to jail offends the well-established principle of "Separation of Powers."

On November 5, 2013 this issue (amongst others regarding CPSL and sex offender legislation) was argued in front of the SJC.

I currently represent a person for whom CPSL is a real possibility if convicted. A great concern at the individual level is that CPSL effectively sentences a person to life in jail "on the installment plan." It is so easy for a parole board member to establish an unrealistic condition, declare that the person did not follow the condition, then send the person to jail. The parole board can do this over and over. There is no check against that power. In my opinion, it is unfair and unconstitutional.