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SJC-13495
COMMONWEALTH vs. QUASIM HASTINGS & another.1
Berkshire. January 8, 2024. – May 13, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.
Indigent. Parole. Imprisonment, Parole, Disabled prisoner. Constitutional Law, Parole. Practice, Criminal, Parole. Statute, Construction. Mental Health. Social Worker.
Indictment found and returned in the Superior Court Department on May 14, 2003.
An ex parte motion for funds to retain an expert, filed on August 12, 2022, was considered by Douglas H. Wilkins, J.; a motion for reconsideration was heard by him; and the case was reported by him to the Appeals Court.
The Supreme Judicial Court granted an application for direct appellate review.
Sharon Dehmand for the defendant. Andre A. Janiszewski, Assistant Attorney General, for the intervener. Benjamin H. Keehn, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
1 Massachusetts Parole Board, intervener. 2
GAZIANO, J. This appeal concerns the scope of the
constitutionally mandated exception to G. L. c. 261, §§ 27A-27G
(indigency statute), carved out in Diatchenko v. District
Attorney for the Suffolk Dist., 471 Mass. 12, 26-27 (2015)
(Diatchenko II). In particular, we address whether the
exception authorizes a judge to allow an indigent prisoner's
motion for funds to retain an expert witness for an upcoming
parole hearing.
Quasim Hastings, convicted of murder in the second degree
in 2004, is eligible to be considered for release on parole. He
has been diagnosed with a mental disability and, therefore, is
entitled to a parole hearing that affords him protections
secured by art. 114 of the Amendments to the Massachusetts
Constitution as well as Federal and State statutes prohibiting
discrimination on the basis of disability. See Crowell v.
Massachusetts Parole Bd., 477 Mass. 106, 110-112 (2017).
Prior to a 2023 parole hearing, appointed counsel for
Hastings filed, in the original criminal case, a motion for
funds to retain a forensic psychologist under Crowell. A
Superior Court judge allowed the motion.
Hastings's counsel filed a second motion for funds to
retain a social services advocate to assist with preparing a
prerelease plan. A different Superior Court judge denied this
request for public funds. The judge reasoned that the plain 3
language of the indigency statute limits his authority to
approve funds to pending proceedings or appeals in any court.
He found also that this court's constitutionally mandated
exception does not extend to Hastings's statutory right to
parole consideration. The judge reported to the Appeals Court
his denial of the motion for funds, and we granted Hastings's
application for direct appellate review.
For the following reasons, we conclude that Hastings's
motion for funds to retain a social services advocate implicates
his State constitutional right to reasonable disability
accommodations. Because the constitutionally mandated exception
to the indigency statute applies, the order denying Hastings's
motion for funds is reversed.2
Background. In 2004, Hastings pleaded guilty in the
Superior Court to murder in the second degree and was sentenced
to life with the possibility of parole in fifteen years. See
G. L. c. 265, § 2; G. L. c. 127, § 133A. Hastings, in 2015, was
diagnosed with mental illnesses, including major depressive
disorder with psychotic features. Prior to Hastings's initial
2019 parole hearing, the Massachusetts Parole Board (board)
2 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services in support of Hastings and the amicus letter submitted by the Committee for Public Counsel Services and Prisoners' Legal Services of Massachusetts. 4
requested an appointment of counsel from the Committee for
Public Counsel Services (CPCS) based on Hastings's mental health
disability. CPCS assigned Hastings counsel. In 2018,
Hastings's counsel filed in his Superior Court criminal case a
motion for funds to retain the services of a forensic
psychiatrist to assist in the parole hearing. See Commonwealth
vs. Hastings, Mass. Super. Ct., No. 0376CR00106 (Berkshire
County May 14, 2003). A Superior Court judge allowed the
motion. The board denied Hastings's petition for parole in
2019, and he was given a four-year setback. See Roberio v.
Massachusetts Parole Bd., 483 Mass. 429, 432 (2019) (period
between board's denial of parole and prisoner's statutory right
to subsequent review is referred to as "setback").
Hastings's counsel, in advance of the 2023 parole hearing,
filed two additional motions for funds in Hastings's Superior
Court criminal case. In the first motion, filed on June 6,
2022, $5,000 was requested to retain a forensic psychologist.
Counsel represented that "[a]n updated evaluation and testimony
by a forensic psychologist are necessary for . . . Hastings to
adequately present his case for parole." A Superior Court judge
allowed the motion on June 10, 2022.
Next, on August 12, 2022, Hastings's counsel filed a motion
for funds to retain a social services advocate to assist with
preparing a release plan. According to counsel, "[p]art of 5
. . . Hastings'[s] application for parole will involve having an
extensive release plan which requires application and acceptance
by the Department of Mental Health as well as placement,
housing, and other mental health services." A different
Superior Court judge (motion judge), on September 22, 2022,
denied the motion for funds as exceeding the Superior Court's
statutory authority. He explained, "The [c]ourt's authority
under G. L. c. 261, [§ 27B,] is limited to 'any civil, criminal
or juvenile proceeding or . . . appeal in any court.' A parole
hearing is not 'in any court.'"
Hastings's counsel, on October 19, 2022, moved for
reconsideration. The motion was supported by affidavits of a
social worker and the director of the CPCS parole advocacy unit.
The social worker noted that "[c]lients with disabilities often
require experts specialized in services for people with
disabilities." She explained the advantages of retaining a
clinician to identify appropriate support networks and services
to assist a client's successful reentry into the community. The
director of the CPCS parole advocacy unit noted that the board
"often relies upon expert evaluations and reports obtained by
counsel via a motion for funds in determining the suitability of
disabled prisoners for release on parole." She added that it
therefore is "imperative" for disabled parole candidates to
present comprehensive release plans crafted by social services 6
experts capable of navigating complex intra-agency referrals,
assessments, and specialized residential care. She also
submitted a list of docket numbers of over thirty cases in which
Superior Court judges across the Commonwealth had allowed
motions for funds to retain experts, including social workers,
psychiatrists, and psychologists, to assist nonjuvenile disabled
prisoners in parole hearings.
The motion judge denied Hastings's motion for
reconsideration. The phrase "in any court" within G. L. c. 261,
§ 27B, he reasoned, "limits the authority to authorize payment
by the Commonwealth" to pending court proceedings. Moreover, he
determined that the constitutional exception to this rule, set
forth in Diatchenko II, does not apply. The motion judge stated
that Hastings's right to parole consideration after serving
fifteen years of a life sentence "arises by statute." See G. L.
c. 127, § 133A. In contrast, he stated, a juvenile homicide
offender's parole eligibility arises out of "a constitutional
limitation on the court's authority to order a life sentence."
While recognizing the board's duty to accommodate Hastings's
disability, the motion judge concluded that "[t]he fact that the
Legislature and [board] had provided no statutory avenue for
relief against the Executive does not require disregarding the
plain language of G. L. c. 261, § 27B[,] or the controlling 7
authority under that statute." The motion judge reported the
denial of the motion for funds for appellate consideration.3
Discussion. The indigency statute provides a mechanism for
indigent litigants to obtain public funds to hire expert
witnesses. See Reade v. Secretary of the Commonwealth, 472
Mass. 573, 574, 578 (2015), cert. denied, 578 U.S. 946 (2016).
Under G. L. c. 261, § 27C (4), on a finding of indigency, the
court "shall not deny any request with respect to extra fees and
costs if it finds the document, service or object is reasonably
necessary to assure the applicant as effective a prosecution,
defense or appeal as he would have if he were financially able
to pay." "Extra fees and costs" include the costs of "expert
assistance." G. L. c. 261, § 27A. See generally Commonwealth
v. Matranga, 455 Mass. 45, 50-51 (2009) (discussing judge's role
in approving request for expert witness funds). The indigency
statute embodies the principle of "equal justice under the law"
by ensuring that court house doors are not closed to the poor.
Edwards, petitioner, 464 Mass. 454, 461 (2013).
The text of G. L. c. 261, §§ 27A-27G, as the motion judge
determined, refers solely to fees and costs associated with
3 The motion judge expressed some doubt as to whether Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), was the proper mechanism by which his ruling could be reported. In any event, Hastings subsequently consented to the reporting of the case to the Appeals Court. See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004). 8
pending trials and appeals. Despite its salutary purpose, the
indigency statute does not apply every time an indigent litigant
seeks public funds to assert a legal claim. See Doe, Sex
Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd.,
452 Mass. 764, 779 (2008) ("G. L. c. 261, §§ 27A-27G, read as a
whole, makes clear that it is concerned with fees and costs that
relate directly to the prosecution or defense of actions and
appeals pending in a court . . . not an underlying adjudicatory
proceeding before an administrative agency"). Section 27B
provides in relevant part: "Upon or after commencing or
answering to any civil, criminal or juvenile proceeding or
appeal in any court," a party may file an affidavit of indigency
and request "waiver, substitution or payment by the commonwealth
of fees and costs" (emphasis added). G. L. c. 261, § 27B.
Section 27C (4) authorizes the payment of expert witness fees
that are reasonably necessary "to assure the applicant as
effective a prosecution, defense or appeal as he would have if
he were financially able to pay" (emphasis added). G. L.
c. 261, § 27C (4). And § 27A defines "extra fees and costs" as
fees and costs "in addition to those a party is normally
required to pay in order to prosecute or defend his case"
(emphasis added). G. L. c. 261, § 27A. See Commonwealth v.
Dubois, 451 Mass. 20, 33 (2008) (G. L. c. 261, § 27C, does not
authorize payment of funds to hire handwriting expert for motion 9
for new trial); Commonwealth v. Carter, 429 Mass. 266, 270
(1999) ("Section 27C does not authorize a judge to allow costs
in connection with the presentation of a new trial motion based
on a claim of ineffective assistance of counsel").4
In Diatchenko II, 471 Mass. at 25-26, we held that the
indigency statute did not, on its face, authorize the
expenditure of public funds for expert witnesses to assist
juveniles in the context of an administrative hearing.
"[General Laws] c. 261, §§ 27A-27G, the statutory provisions
generally authorizing the payment of public funds to cover costs
and fees of indigent litigants, apply most directly to costs and
fees relating to court proceedings, not proceedings before
administrative or executive agencies like the [parole] board."
Id. at 26.
The next question to address is whether Hastings's request
for funds for expert witness services falls within the
constitutionally mandated exception to the indigency statute
carved out in Diatchenko II. Notwithstanding the plain language
of §§ 27A, 27B, and 27C (4), we held in Diatchenko II, 471 Mass.
at 27-28, that a judge is authorized to grant funds for an
expert witness whose assistance the judge deems "reasonably
4 By amendment in 2001, Mass. R. Crim. P. 30 (c) (5), as appearing in 435 Mass. 1501 (2001), allows for the payment of costs associated with preparation of a new trial motion. See Reporter's Notes to Mass. R. Crim. P. 30. 10
necessary" to protect an indigent juvenile homicide offender's
constitutional right to a "meaningful opportunity for release"
at an initial parole hearing.
This holding was foreshadowed by prior case law. In
Commonwealth v. Davis, 410 Mass. 680, 681-682 (1991), the
defendant filed a postappeal motion in the Superior Court for
deoxyribonucleic acid (DNA) testing of physical evidence in the
Commonwealth's possession. He maintained that the test results
would constitute newly discovered evidence sufficient to support
a motion for a new trial. Id. at 682. A Superior Court judge
denied the motion. Id. In opining on the defendant's
substantive claim, this court stated that the defendant's motion
for DNA testing costs "is not cognizable under [G. L.] c. 261,
§ 27C (4), because the funds sought are not related to a pending
trial or appeal." Id. at 684. We acknowledged that this
interpretation of § 27C "may work a hardship on convicted
indigents seeking the funds to carry out a newly discovered
scientific technique which could yield exculpatory evidence."
Id. We concluded that "[w]here the Legislature has chosen not
to fund certain procedures not constitutionally mandated,
however, this court may not rewrite the statute to do so." Id.
Likewise, in Carter, 429 Mass. at 270, we observed that the
defendant "makes no claim that he was entitled constitutionally
to funds for an investigator." 11
The Diatchenko II court carved out an exception to the
indigency statute to safeguard a parole-eligible, indigent
juvenile homicide offender's right under art. 26 of the
Massachusetts Declaration of Rights to a meaningful parole
review. See Diatchenko II, 471 Mass. at 27-28. We explained:
"Because the postconviction proceeding at issue here, a parole hearing for a juvenile homicide offender, is required in order to ensure that an offender's life sentence conforms to the proportionality requirements of art. 26, the proceeding is not available solely at the discretion of the State. Rather, it is constitutionally mandated, and as such, it requires certain protections not guaranteed in all postconviction procedures. It is appropriate, therefore, to construe G. L. c. 261, §§ 27A- 27G, to authorize a Superior Court judge, upon motion of a parole-eligible, indigent juvenile homicide offender, to allow for the payment of fees to an expert witness . . . ."
Id. at 27.5
In this case, we agree with the motion judge's conclusion
that Hastings's right to parole consideration arises by
operation of G. L. c. 127, § 133A. Statutory parole eligibility
stands in contrast to parole eligibility that is "required in
order to ensure that an offender's life sentence conforms to the
proportionality requirements of art. 26." Diatchenko II, 471
Mass. at 27. The constitutionally mandated exception to the
5 In 2018, as part of the comprehensive criminal justice reform act, the Legislature amended G. L. c. 127, § 133A, to provide indigent juvenile homicide offenders with the "right to have appointed counsel at the parole hearing" and "the right to funds for experts pursuant to chapter 261." G. L. c. 127, § 133A, as amended through St. 2018, c. 69, § 98. 12
indigency statute, as outlined in Diatchenko II, does not sweep
so broadly as to fund all requests for fees and costs whenever
an indigent prisoner reaches statutory parole eligibility.
Article 114, however, adds a "constitutional dimension" to
Hastings's funding request "that does not exist for other
offenders whose sentences include parole eligibility."
Diatchenko II, 471 Mass. at 19. Accordingly, we hold that a
judge has the discretion to allow a motion for funds to pay for
expert assistance as reasonably necessary to safeguard the
indigent prisoner's constitutional rights prohibiting
discrimination on the basis of disability.
We examined the board's duty to accommodate prisoners with
disabilities in Crowell, 477 Mass. at 112-113. In that case,
Crowell asserted that the board's failure to properly consider
the effects of his traumatic brain injury violated art. 114 as
well as rights secured by Federal and State handicapped
discrimination statutes. Id. at 110. See G. L. c. 93, § 103;
42 U.S.C. §§ 12101 et seq. (Americans with Disabilities Act or
ADA).6 This court vacated the dismissal of Crowell's complaint
6 Article 114, ratified in 1980, provides: "No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth." See Carleton v. Commonwealth, 447 Mass. 791, 811 (2006). "Actions to enforce the rights guaranteed by art. 114 . . . are authorized by G. L. c. 93, § 103," the Massachusetts Equal Rights Act. Shedlock v. 13
challenging the denial of parole on procedural grounds and
remanded for further findings. Crowell, supra at 110-111.
Nonetheless, we took the opportunity to discuss the board's
constitutional and statutory obligations to accommodate
Crowell's mental disability. See id. at 111-112 ("the only open
question is whether the plaintiff was excluded from the program
[a fair hearing and parole review decision process], or
discriminated against in the form of denial of parole, by reason
of his disability"). See also Shedlock v. Department of
Correction, 442 Mass. 844, 855-856 (2004) (art. 114 and ADA
require reasonable accommodation in prison setting with due
regard for penological concerns); Layne v. Superintendent, Mass.
Correctional Inst., 406 Mass. 156, 160 (1989) (art. 114 claim
brought by disabled prisoners unable to access library).
As an example of a reasonable disability accommodation, the
Crowell court cited expert witness funds, such as those sought
by Hastings in advance of his 2023 parole hearing. See Crowell,
477 Mass. at 112. Discussing the board's duty to accommodate
disabled prisoners, we stated that "[w]here the board is aware
Department of Correction, 442 Mass. 844, 852 n.6 (2004). See Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction, 406 Mass. 156, 159-160 (1989).
Title II of the Americans with Disabilities Act also prohibits public entities from excluding qualified disabled persons from participation in, or being denied the benefits of, services, programs, or activities. See 42 U.S.C. § 12132. 14
that a mental disability may affect a prisoner's ability to
prepare an appropriate release plan in advance of a parole
hearing, the board should make reasonable modifications to its
policy, for example, by providing an expert or other assistance
to help the prisoner identify appropriate postrelease
programming." Id. The Crowell court did not, as the issues
were not raised, identify a source of funding for needed expert
assistance or consider that the board neither receives funds nor
has a mechanism to authorize expert witness expenditures.
This case squarely presents that issue. A failure to fund
a disabled prisoner's access to expert witness services would
render hollow the constitutional right to "participat[e] in" and
not be "denied the benefits of, or be subject to discrimination
under any program or activity within the commonwealth." Art.
114 of the Amendments to the Massachusetts Constitution.
Applying the constitutionally mandated exception set forth in
Diatchenko II, we construe the indigency statute to authorize a
Superior Court judge, on motion by a parole-eligible, disabled
prisoner, to allow for the payment of funds for expert services
that are reasonably necessary to safeguard the prisoner's
constitutional right to a parole hearing free of discrimination
on the basis of disability.
Conclusion. The order dated September 22, 2022, denying
Hastings's motion for funds to retain a social services advocate 15
to assist with preparing a prerelease plan for his upcoming
parole hearing, is reversed.
So ordered.