Will the man who inspired Mario's Law win early parole? Why the state and ACLU are at odds

PROVIDENCE – Rep. Julie Casimiro first met Mario Monteiro when he graduated as valedictorian from the gang step-down program in the medium-security unit at the Adult Correctional Institutions.

For years, Casimiro championed legislation that would provide Monteiro and others who committed crimes in their teens an avenue to seek parole earlier, given their youth. In 2021, the Youthful Offender Act – informally known as Mario’s Law – became law, providing people serving long sentences for crimes they committed before they turned 22 a chance to seek release after 20 years.

Despite passage of the law and a court determination that he met the standards to be paroled to the community, Monteiro, the law's namesake, remains behind bars. A judge paused his release amid the state’s contention that he be paroled not to the community, but to serve another consecutive sentence.

“The intention of the bill was to parole Mario to the community. It was never my intention to parole him to the next sentence,” said Casimiro, who was the lead House sponsor of the bill.

“I’m angry and disappointed. They knew what my intention was,” Casimiro said. She expressed frustration that she had worked with the state on the legislation and even met with Monteiro at the prison with Stephen Dambruch, chief of the criminal division at the attorney general’s office, and the office’s then director of legislative affairs prior to its passage.

Brian Hodge, spokesman for Neronha's office, did not respond to email, phone and text inquiries.

In the meantime, Casimiro says she remains focused on getting Monteiro, now 40, out.

Supreme Court set to hear the state’s appeal

Now, the state Supreme Court is set to hear arguments in the case on April 2.

The state has asked the high court to review Superior Court Judge Stephen P. Nugent’s determinations that Monteiro and three other youthful offenders should be released on parole under Mario’s Law due to their rehabilitation efforts in prison. While Joao Neves, Pablo Ortega and Keith Nunes were freed, Nugent put Monteiro’s release on hold.

In ruling, Nugent rejected the state’s arguments that the law didn’t apply to the men because it referred to a person sentenced for “any” offense, not to individuals such as the men who were serving consecutive sentences for multiple crimes.

Courts: ACLU fights for release of youthful offender; RI officials say law doesn't apply to him

Nugent similarly struck down separation-of-powers arguments that Mario’s Law, in effect, would “reduce” sentences by allowing state lawmakers to encroach on duties reserved for the judiciary.

“Most importantly, it bears mention that Petitioner’s parole does not amount to a get-out-of-jail-free card; rather, Petitioner will remain subject to revocation of his parole and being ordered to serve inside the walls of the ACI if he violates the conditions of his parole,” Nugent wrote in ruling for Monteiro’s release.

Law refers to 'singular offense'

The state, joined by the Department of Corrections, is taking up the same arguments before the Supreme Court.

“The plain and ordinary meaning of this provision, specifically, the reference to the singular ‘offense,' indicates that the General Assembly intended [Mario’s Law] to apply to individuals serving a single sentence and not to individuals such as the defendants who are serving consecutive sentences,” Christopher Bush and Judy Davis argue for state.

The state asserts that Nugent’s interpretation conflicts with state law governing parole for people serving consecutive life sentences that dictates that an individual serving consecutive life sentences must serve a minimum amount of time on each sentence before becoming eligible for parole.

More: Ex-court 'fixer' says he was 'forced' out after stopping side jobs for judge. Now he's suing.

“There are few acts that constitute more of an impermissible encroachment on judicial power than an attempt by the legislature to reverse or vacate a state court judgment,” the state said.

It would violate the separation of powers by impinging on the domain of the court, they say.

If the high court sides with the state, Neves, Ortega and Nunes would likely have to be sent back to prison, according to the state affiliate of the American Civil Liberties Union.

Mario faces a double life sentence

Monteiro was 17 years old when he fatally shot a Cambodian immigrant, Rom Peov, on July 3, 2001, during an ongoing gang feud in Providence. Sitting on a stoop with friends on Hanover Street drinking a beer, Peov, 31, was an innocent bystander to the gang conflict.

A jury convicted Monteiro in 2002, and he was sentenced to two mandatory consecutive life terms.

Under the state's thinking, he now begins serving his second life term.

ACLU: 'Nonsensical and would produce absurd results'

The ACLU – through lawyers Lisa Holley, Lynette Labinger and Sonja Deyoe –  faults the state’s arguments as illogical, arguing that, in practice, that reading of the law would waste resources by requiring multiple parole hearings and notices to victims. They accuse corrections officials of arbitrarily changing the way they calculated parole eligibility without notice in 2018 to no longer aggregate consecutive sentences.

“The State’s claim that the legislature only intended to apply [Mario’s Law] to those youthful offenders serving a single sentence where initial parole eligibility is more than 20 years is, respectfully, nonsensical and would produce absurd results,” they wrote.

“If a parolee were only moving to a consecutive sentence, notice to the public would be unnecessary because the person would still be behind bars. Release clearly means to the community,” the ACLU continued, adding that the law “is intended and designed to provide an earlier path to initial parole consideration for all youthful offenders who meet its terms, without regard to the minimum amount of time they would otherwise be required to serve before initial parole consideration.”

They similarly dismiss separation-of-powers arguments.

“The State’s position is grounded in its view that the grant of parole is equivalent to a sentence reduction. It is not. As discussed at length … the grant of parole does not reduce or modify the sentence imposed by the court; it modifies the location where the sentence is served,” they wrote.

Medical and geriatric parole – which allow individuals meeting those definitions to be brought before the Parole Board at any time, regardless of the sentence – would also be barred under the state’s argument, they said.

Does Mario's Law violate separation of powers?

The state Supreme Court asked the state Department of Corrections and the Parole Board to weigh in.

The corrections department stood by its decision to no longer aggregate sentences in cases involving life terms plus consecutive time.

“Simply stated, the prisoner does not begin his or her consecutive term of year sentence until he or she is paroled from their life sentence,” Nicole DiLibero wrote.

“Specifically, a prisoner sentenced to a life sentence plus a consecutive term of years … would be eligible for consideration of parole after twenty (20) years and, if paroled, would never serve a single day of their consecutive sentences, thereby nullifying the consecutive sentence ordered by the Superior Court,” she added.

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The department cautioned that Nugent’s interpretation of the law “fails to recognize the Superior Court’s exercise of its judicial power to impose consecutive sentences” and “could run afoul of the separation of powers doctrine.”

According to the corrections officials, there are 17 people in state custody that this ruling could potentially apply to – 16 of these individuals are serving only one controlling and one consecutive sentence, and one individual is only serving his consecutive sentence at this time after being paroled to his consecutive sentence, Monteiro.

There are 96 offenders all together who were committed at the age of 21 or less, who, based on their controlling sentence, were sentenced to a term of 20 years or greater. Of those, 83 offenders were serving on a single charge.

'Uncertainty' is complicating Parole Board decisions

The Parole Board argues that it’s bound by the Department of Corrections’s determination about parole eligibility under state law, and that changes in the way that’s aggregated has created uncertainty.

“This uncertainty affects not just the Board’s ability to make fully informed parole determinations, but also its ability to make referrals for rehabilitative programs. … This uncertainty about whether the Board’s grant of parole release will result in the prisoner being released into the community or their next sentence constricts the Board’s ability to make fully informed parole determinations," Special Assistant Attorney General Patrick Reynolds wrote.

The board looked to the high court to be the final arbiter.

National groups weigh in to support ACLU's position

A host of national groups and the Rhode Island Public Defender’s office filed briefs in support of the ACLU’s position.

The public defender’s office emphasized that the parole system saves Rhode Islanders money, as the cost per incarcerated offender for fiscal year 2023 varied from $88,282 to $256,534 per year, with an average of $107,969 per offender.

“To put it plainly, there are significant benefits to providing parole opportunities to young offenders with lengthy sentences, both in terms of safe reintegration and costs,” Kara J. Maguire wrote.

“Despite the state’s insistence, there is nothing in the plain language of the statute that excludes those serving consecutive sentences,” she said, adding, “Indeed, the legislation would impact very few – if any – young offenders were it not to apply to those serving consecutive sentences. This is especially true considering the mandatory consecutive sentences for offenses involving guns.”

Consecutive sentences should be aggregated, and a single parole eligibility date calculated, under state law, she said.

“When consecutive sentences are disaggregated, the process is turned on its head, with the Parole Board “paroling” an offender back into prison. The result is an inefficient and confusing process that undermines the goals of a parole system,” the office said.

The other organizations include The Campaign for the Fair Sentencing of Youth; Human Rights for Kids; The Juvenile Law Center; the National Association of Criminal Defense Lawyers; The Center for Law, Brain and Behavior, at Massachusetts General Hospital; and the Prisoners’ Rights Clinic at Roger Williams University School of Law, among others.

Many of the briefs examine recent U.S. Supreme Court cases that highlight scientific evidence of “structural differences” in the brains of youth that lead to impulsivity and that immaturity diminishes their culpability, making it appropriate that the law seeks to treat them differently.

Another argues that the state’s position that the law doesn’t apply to juveniles serving more than one sentence for the same act encourages prosecutorial use of “charge stacking” to increase sentence length, which is especially harmful for youthful offenders.

The state Supreme Court has not yet ruled on whether the national briefs will be admitted.

What crimes were the three men released under Mario's Law convicted of?

Neves, now 41, was convicted of murder in the shooting death of John Cumiskey on Jan. 15, 1999.

Cumiskey, a University of Massachusetts Dartmouth student known as Cuff, was visiting Providence with friends when they were accosted by Neves and 18-year-old Eliecer Ortiz. Cumiskey lunged at the men as they tried to rob them and Neves shot him in the chest and head. Neves and Ortiz were also implicated in a series of muggings on the East Side.

The Parole Board agreed to release Neves in August 2021 to begin serving “his next consecutive sentence” – a 10-year term for the muggings.

Nunes, 42, was 18 when he got into an argument and fired a handgun into a crowd in 1999, killing 36-year-old Mark D. Pierce. Nunes, too, was sentenced to serve life plus 10 years.

The Parole Board in 2019 also found that he met the criteria for release based on his rehabilitation and remorse. The board agreed to parole him from his life sentence to his next consecutive sentence of 10 years, meeting minutes show.

Ortega, 41, was 19 in 2001 when he fatally shot shopkeeper Franklin Mercado as he and two other teenagers attempted to rob a convenience store. He received a life sentence plus five years for conspiracy.

The Parole Board in 2021 agreed to release him on the life sentence to begin to serve the five years based on his rehabilitation and progress. An immigration detainer has been placed on Ortega upon his release.

This article originally appeared on The Providence Journal: State, ACLU at odds over RI's early parole law for youthful offenders