McCauley v. Superintendent, Massachusetts Correctional Institution, Norfolk

• Court: Massachusetts Supreme Judicial Court
• Decided: April 3, 2023
• Docket: SJC 13296
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-13296

MARTIN McCAULEY vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, NORFOLK, & another.1

Suffolk. September 9, 2022. - April 3, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Parole. Imprisonment, Parole. Commissioner of Correction. Statute, Construction. Regulation. Administrative Law, Regulations. Practice, Civil, Relief in the nature of certiorari. Constitutional Law, Separation of powers. Words, "Debilitating."

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 1, 2021.

Following transfer to the Superior Court Department, the case was heard by Maureen Mulligan, J., on motions for judgment on the pleadings.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Jeffrey G. Harris for the plaintiff. Stephanie M. Caffrey for the defendants. Mara Voukydis, Committee for Public Counsel Services, Tatum A. Pritchard, Jacob Addelson, David Milton, Lauren Petit, & Ada

1 Commissioner of Correction. 2

Lin, for Prisoners' Legal Services of Massachusetts & others, amici curiae, submitted a brief.

CYPHER, J. Martin McCauley, the plaintiff, is a sixty-six

year old man serving a life sentence without the possibility of

parole for his conviction of murder in the first degree. He

petitioned for medical parole under G. L. c. 127, § 119A (§ 119A

or statute), and the Commissioner of Correction (commissioner)

denied his petition. After two requests for reconsideration,

which also were denied, he brought this action in the nature of

certiorari in the Superior Court against the commissioner and

the superintendent of the Massachusetts Correctional Institution

at Norfolk (collectively, defendants). In this opinion, we

consider whether 501 Code Mass. Regs. § 17.02 (2019), which, in

relevant part, defines "debilitating condition" for purposes of

applying the statute, impermissibly narrows the group of

prisoners who qualify for medical parole, and whether the

commissioner abused her discretion in denying the plaintiff's

request for medical parole. We conclude that the regulation

does not impermissibly narrow the scope of the statute, but that

in spite of the commissioner's proper consideration of numerous

relevant factors in making her decision, she abused her

discretion in denying the plaintiff's petition where she did not 3

have the benefit of the standardized risk for violence

assessment required by the regulations.2

Background. 1. Petition for medical parole and

proceedings below. On April 2, 2020, the plaintiff filed his

initial pro se petition for medical parole pursuant to § 119A

with the deputy superintendent of the Massachusetts Correctional

Institution at Norfolk (MCI-Norfolk). On April 17, 2020, his

attorney filed a new petition on the plaintiff's behalf. The

plaintiff argued that he was permanently incapacitated, citing

the opinions of Dr. Steven Descoteaux, the Wellpath3 medical

director for the Department of Correction (department), and Dr.

Michael Moore, medical director of MCI-Norfolk, and adding

additional ailments from which the plaintiff reported he was

suffering. He urged that he is unlikely to return to violating

the law if released because he is no longer "hooked on illegal

drugs," he is older and wiser, and he has strong family support.4

2 We acknowledge the amicus brief submitted by Prisoners' Legal Services of Massachusetts, the Disability Law Center, and the Committee for Public Counsel Services.

3 The Department of Correction's (department's) medical provider.

4 In the memorandum drafted in support of the plaintiff's petition, his attorney mentioned a 2015 disciplinary report related to the plaintiff's attempt to take pills from the hand of an officer, which resulted in his being "brought to the floor." This report did not appear in the administrative record. 4

The plaintiff asserted that because of his "crippling

challenges," his release was not incompatible with the welfare

of society. The plaintiff included a release plan recommending

release to a family member.

On April 28, 2020, the former superintendent of MCI-

Norfolk, Steven Silva, recommended against releasing the

plaintiff on medical parole.5 In making his recommendation,

Silva noted observations of a correction officer working on the

unit where the plaintiff resides, who stated that the plaintiff

does not need any assistance dressing, showering, or toileting,

and that he walks outside frequently with his "rollator" walker,

"at times quickly." "Regarding the required assessment of the

risk for violence that the inmate poses to society pursuant to

G. L. c. 127, [§ 119A (c)]," Silva enclosed a copy of the

plaintiff's most recent classification report and personalized

program plan. He noted that the plaintiff "does not receive a

Risk or Needs Assessment" due to his sentence of life without

parole.6 Because the plaintiff refused to participate in the

5 Nelson Alves, the current superintendent of MCI-Norfolk, is the superintendent named in the commissioner's letters denying medical parole in August 2020 and February 2021.

6 In the administrative record, there is a placeholder page that states, in large font, "Due to Inmate [McCauley] current sentence of First Degree Life A Risk Assessment was not completed." 5

Texas Christian University Drug Screen evaluation (TCUD),7

recommended to address the plaintiff's substance use concerns,

Silva could not provide information about the plaintiff's risk

for improper substance use. The plaintiff's 2020 classification

report, discussed infra, indicated that the TCUD assessment

would help to address concerns over his substance use, but that

he declined to participate in 2017.

The plaintiff's 2020 classification report resulted in a

score of one, which suggested that he be placed in minimum

custody.8 The classification report stated that he received a

six for his current offense (murder in the first degree, armed

robbery, and unlawfully carrying a firearm); a zero for severity

of convictions within the last four years, history of escape

attempts, history of prior institutional violence within the

last three years, number of disciplinary reports within the last

7 The evaluation consists of a form in which participants answer a series of substance use-related questions. TCU Institute of Behavioral Research, TCU Drug Screen 5 (Sept. 2020), https://ibr.tcu.edu/wp-content/uploads/2020/09/TCU-Drug- Screen-5-Sept20.pdf [https://perma.cc/BC33-N8VL].

8 A prisoner can get a score of up to twenty-nine points on an initial classification and thirty-six points on reclassification. A score of twelve or higher indicates that maximum custody is recommended; seven to eleven recommends medium custody; six or fewer recommends minimum custody. Department of Correction, Male Objective Point Base Classification Manual 8-17 (Nov. 18, 2019), https://www.mass .gov/doc/male-objective-point-base-classification-manual /download [https://perma.cc/DD5J-RQRM]. 6

twelve months, and most severe disciplinary report within the

last twelve months; a minus three for his age; and a minus two

for program participation and work assignment. Because the

plaintiff received a sentence of life without parole, a

department restriction prevents him from being placed in minimum

custody. Therefore, it was recommended that he remain where he

was and "[c]ontinue positive behavior and pursue the recommended

programming." The plaintiff's personalized program plan

indicated that, among other things, anger and criminal thinking

were not considered a "need area" for programming for the

plaintiff.

A department staff member spoke with the family member with

whom the plaintiff planned to live, who stated that she lived on

the second floor of a building with seventeen steps leading to

the condominium. The condominium itself easily is accessible

with a rollator walker. The plaintiff told his family member

"that he has no issues using the stairs and that being on the

second floor [would] not be a problem."

Silva recommended that the plaintiff's petition for medical

parole be denied, pointing to "his criminal history, the

disturbing facts underlying [his] conviction, . . .

institutional violence and extensive disciplinary issues,

especially those involving drug transactions and the attempted

introduction of heroin into the" facility. Despite his medical 7

condition, the superintendent opined that the plaintiff

presented a significant risk to public safety.9

On June 5, 2020, the commissioner denied the petition. She

found that the plaintiff's medical conditions were not so

debilitating that he did not pose a public safety risk. As

reasons therefore, she referenced the facts of the plaintiff's

conviction, considering that he "has never agreed with the facts

of his conviction"; his disciplinary history while incarcerated;

the medical assessment conducted by Descoteaux and Moore; the

accommodations that have been put in place to mitigate the

effects of the plaintiff's medical condition; the plaintiff's

various suggestions for home placement; Silva's submissions and

recommendation; letters in support of the plaintiff's release;

and the opinions of the district attorney's office as well as

those of a relative of the victim. Although the commissioner

recognized both doctors' opinions that the plaintiff is

permanently incapacitated, she stated that, given his

accommodations including a leg brace, walker, and lower bunk

assignment, "his permanent incapacitation is not so debilitating

that he does not pose a public safety risk." She also noted

9 The office of the district attorney for the Suffolk district sent an e-mail message to the department regarding the plaintiff's application, stating that the office was unable to conclude, at that time, that the plaintiff satisfied the statutory criteria of § 119A. 8

that the plaintiff, allegedly, was suffering from his "left hand

paralysis" when he killed the victim.

On June 10, 2020, five days after the initial denial, the

plaintiff requested reconsideration of the petition. On

August 17, 2020, the commissioner denied the petition again,

considering additional medical records submitted by the

plaintiff and the unchanged positions of the district attorney's

office and the victim's wife. The commissioner incorporated by

reference all her reasons for denial in her June 2020 decision,

and she noted that she did not find a material change in

circumstances warranting reconsideration of her decision.10 On

December 18, 2020, the plaintiff filed a second request for

reconsideration of his petition, which the commissioner denied

on February 2, 2021. She considered the updated medical

assessment conducted by Moore and Descoteaux. She also

considered the statement from the district attorney's office,

which no longer opposed the plaintiff's request for medical

parole, and which referenced the medical assessment indicating

that he is permanently incapacitated and "the existence of a

10In Harmon v. Commissioner of Correction, 487 Mass. 470, 477 (2021), we held that the mandatory language of G. L. c. 127, § 119A (c) (1), does not permit the department to require "a significant and material decline in medical condition" to submit a new petition. Consequently, we do not consider this reason in determining whether the commissioner's decision was an abuse of discretion. 9

sufficiently detailed release plan that provides for the

reintegration of the defendant and, most importantly, the safety

of the public."11 Despite these additional considerations, the

commissioner determined that there was not "a significant and

material" change in the plaintiff's circumstances, and denied

the request for the reasons articulated in her previous

decisions. Because the plaintiff was able to care for himself

with the accommodations provided to him, and referencing the

reasons set forth in her prior decisions, she found that he

would be unlikely to "live and remain at liberty without

violating the law" and that his release would be "incompatible

with the welfare of society."

On March 1, 2021, the plaintiff commenced an action in the

nature of certiorari in the county court pursuant to G. L.

c. 249, § 4. A single justice transferred the case to the

Superior Court. In May 2021, the plaintiff filed a motion for

judgment on the pleadings; the defendants filed an opposition to

the motion and a cross motion for judgment on the pleadings.

After a hearing, a Superior Court judge denied the plaintiff's

motion and granted the defendants' cross motion. The judge

found that the commissioner's decision was reasonable in the

circumstances, in light of the plaintiff's prison disciplinary

11The commissioner again incorporated by reference her June and August 2020 decisions. 10

history, his ability to care for himself on a daily basis in the

general prison population, and his ability to ambulate with the

accommodation of a rollator walker. The plaintiff appealed from

the judge's decision to the Appeals Court, and we transferred

the case to this court on our own motion.

2. Criminal case. Following a jury trial, the plaintiff

was convicted of murder in the first degree, two counts of armed

robbery, and unlawfully carrying a firearm, and was sentenced to

life in prison in March 1982.12 We affirmed his convictions.

Commonwealth v. McCauley, 391 Mass. 697, 697-698 (1984), cert.

denied, 534 U.S. 1132 (2002). Those convictions stemmed from an

incident in June 1981, in which two masked men entered a closed

restaurant, brandished guns, and ordered employees to lie face

down on the floor. Id. at 698. One of the gunmen encountered

the victim, a comanager of the restaurant, who walked from the

office to the dining room as his wife was hiding behind the

office door. Id. The victim told the gunman, after being

questioned, that the woman had left for the evening. Id. As

the victim was directed to lie on the floor, he yelled for his

wife to run. Id.

12Including the murder charge, the plaintiff has had twenty-two adult arraignments and three juvenile arraignments. These resulted in six convictions, comprised of the following categories of crimes: person, property, weapons, and drug offenses. 11

Subsequently, one gunman directed the employees, including

the victim, out a side door into an alley after seizing their

wallets and cash receipts. McCauley, 391 Mass. at 698-699. In

the alley, the gunman, later identified as the plaintiff, said

to the victim, "I like you. You think you're smart." The

gunman then raised the revolver and shot the victim between the

eyes from within six inches.13 Id. at 699. The plaintiff was

arrested three days later. Id. at 700. At a hearing on a

pretrial motion to suppress the statements he had made to

police, the plaintiff testified that, from the time of the crime

until the time of his arrest, "he had not slept and had ingested

at various times amounts of alcohol, heroin, Valium, cocaine,

and methadone." Id. at 701.

3. Plaintiff's medical condition. According to the

medical parole assessment conducted by Descoteaux and Moore,

dated and updated January 4 and February 1, 2021, respectively,

the plaintiff's medical conditions included chronic pain

syndrome resulting from multiple failed back surgeries, spinal

13The employees testified that the shooter fired the gun with his right hand. McCauley, 391 Mass. at 699. The plaintiff told police that the shooting was an accident, and that he transferred the gun from his right to his left hand, causing the gun to fire accidentally because his hand was "paralyzed." Id. A doctor testified that he had performed surgery on the plaintiff's left wrist five or six years earlier, which left the plaintiff with some numbness, but his hand was not "technically paralyzed." Id. 12

stenosis,14 migraine15 headaches, benign prostatic hypertrophy

(BPH),16 severe neuropathy17 confirmed by electromyography,

abdominal wall incisional hernias,18 and peripheral leg swelling

secondary to varicose veins. Descoteaux reported that the

plaintiff's migraine headaches and BPH are controlled with

medication. His hernias cause him discomfort. He has foot

drop,19 managed with a brace, related to permanent nerve damage.

The swelling of his leg is treated with compression stockings.

14"Stenosis" is "[a] stricture of any canal or orifice," which, modified by "spinal," "[r]elating to any spine or spinous process" would mean a narrowing or restriction of the spine. Stedman's Medical Dictionary 1805, 1832 (28th ed. 2006).

15"Migraine" is defined as "[a] familial, recurrent syndrome characterized usually by unilateral head pain, accompanied by various focal disturbances of the nervous system, particularly in regard to visual phenomenon, such as scintillating scotomas." Stedman's Medical Dictionary 1212.

16"Hypertrophy" is the "[g]eneral increase in bulk of a part or organ, not due to tumor formation." Stedman's Medical Dictionary 929.

17"Neuropathy" is "a disease involving the cranial nerves or the peripheral or autonomic nervous system." Stedman's Medical Dictionary 1313.

18A hernia is a "[p]rotrusion of a part or structure through the tissues normally containing it." Stedman's Medical Dictionary 879.

19"Foot drop" is the "[p]artial or total inability to dorsiflex the foot." Stedman's Medical Dictionary 756. 13

The plaintiff's ability to ambulate20 is compromised

severely due to his condition, and he requires the use of a

walker for his unsteady gait, caused by neuropathy resulting

from spinal stenosis. A walker was assigned to him in 2014,

when the department classified him as "handicapped." In January

2020, the plaintiff reported that "[i]f it weren't for [his]

walker, [he] would be falling a lot." In February 2020, the

plaintiff saw a neurosurgeon at Boston Medical Center. The

neurosurgeon recognized that "[h]is medical history is

remarkable for [three] lumbar spine fusions," but determined

that he was not a viable candidate for spinal cord stimulation

due to the extent of his lumbar surgery.21 In October 2020, the

plaintiff fell in his cell, injuring his shoulder, after his

knee "gave out on him." His unsteadiness is persistent, and he

has fallen several times. Despite his weakness, a Wellpath

nursing progress note from July 2020 indicated that he was able

to ambulate "with a steady gait with the assistance of a

rollator walker without incident."

20Webster's Third New International Dictionary 67 (1993) defines "ambulate" as "to move from place to place."

21During a prior consultation with a doctor from Spaulding Rehabilitation Hospital, the doctor noted that the plaintiff was "able to walk without [an] assistive device," but expressed doubt that he would "have a good response to stimulation." 14

Given his limited mobility, several accommodations were

made for the plaintiff at MCI-Norfolk. In addition to his foot

brace and his walker, he was given a knee sleeve (2004), first-

floor housing close to the health services unit (2005), a bottom

bunk (2006), a hernia belt (2017), and an extra mattress and

pillows (2018). Since 2017, an order has been on file that

ankle restraints are not to be used on him, and he requires

transport by a State car.

The plaintiff is prescribed "strong pain medication, which

enables him to perform daily living activities." The

administrative record indicates that, at least as far back as

May 2018, the plaintiff has been "maxed out in terms of his

medications." Among other things, he is prescribed oxycodone

and morphine.

The plaintiff completed a comprehensive mental health

evaluation with Wellpath in March 2020, during which he

presented "anxious and depressive symptomology." In 2008, while

incarcerated, the plaintiff was placed on mental health watch

after he made a "suicidal gesture." Later, he stated that he

made this gesture "while drunk on straight vodka." He also was

placed on mental health watch on October 21, 2013, after

suffering a drug overdose in prison.22

22The evaluation lists several positive factors that the plaintiff possessed, including, among others, family support, 15

Both Descoteaux and Moore found that the plaintiff is

"significantly and permanently incapacitated" due to his lumbar

spinal stenosis for which neurological consultation offered no

significant improvement, particularly considering his four prior

back surgeries. This determination was characterized by his

"permanent limitations and inability to walk unassisted" and

indicated that he likely has been "incapacitated for months to

years." Despite his significant medical conditions, including

his neuropathy, which is "expected to worsen with advancing

age," he was not expected to die within the next eighteen months

from his known diagnoses.

4. Plaintiff's disciplinary history. The plaintiff's

disciplinary history during his incarceration is extensive, but

dated. It consists of refusing to provide urine; possession of

controlled substances; "insolence"; possession of contraband,

such as weapons and a syringe; participating in a drug

transaction; acting as a lookout while other inmates used

controlled substances; "accumulating meds"; an assault on a

correction officer with a food tray; and destruction of State

property. In September 1984, he was transferred after he was

positive peer relationships, positive goal orientation, and treatment compliance. It is worth noting, however, that the evaluation also indicates that the current charge or prior sentences did not relate to violent behavior, despite the plaintiff's conviction of murder in the first degree. 16

found to be in possession of valium. In May 1986, he tested

positive for methadone. In December 1987, the plaintiff

received a one and one-half year placement in the departmental

segregation unit (DSU) for possessing six packets of marijuana

and a syringe and being involved in a drug transaction with

another inmate who possessed eighteen glassine packets of

heroin. In August 1990, he was placed in the DSU for another

year after he was found in possession of "an eight and a half

inch pick-type weapon" concealed in his mattress. In July 1992,

the plaintiff was transferred from MCI-Norfolk to Old Colony

Correctional Center (Old Colony) because of his disruptive

behavior. In December of that same year, he was sent to the

Massachusetts Correctional Institution at Cedar Junction after

he was found to be involved in illicit drug activity in Old

Colony, during which he orchestrated the transfer of $850 from

his friend to a recreation officer for the introduction of

heroin into the facility. In June 1993, the plaintiff received

a thirteen-month placement in the departmental disciplinary unit

for this infraction.

Once back at MCI-Norfolk, in January 2007, he was reported

for being out of place in a vacant, dark, and empty floor of the

facility with another inmate. In September 2008, he cut a foam

mattress and tested positive for alcohol on his arrival in the

special management unit, and in October 2008, he was found in 17

possession of alcohol that he bought from another inmate. After

he was transferred to the Souza-Baranowski Correctional Center

in March 2009, he received positive reviews, did not incur any

disciplinary reports, and attended Alcoholics Anonymous meetings

and church services. In October 2013, after he had returned to

MCI-Norfolk, he was taken to a local hospital for a medical

emergency, and he admitted to consuming one-eighth of a piece of

suboxone. In October 2014, he admitted to having a large piece

of rock on his walker.

In February 2016, he admitted to damaging State property:

another mattress. That same year in September, he admitted to

being in possession of another inmate's headphones, and in

November, he admitted to showering during an unauthorized time

period.

Discussion. 1. Legislative purpose and medical parole

statute. General Laws c. 127, § 119A, provides for a prisoner's

ability to apply for, and be granted, medical parole where

several requirements are met:

"If the commissioner determines that a prisoner is terminally ill or permanently incapacitated such that if the prisoner is released the prisoner will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society, the prisoner shall be released on medical parole."

G. L. c. 127, § 119A (e). "Permanent incapacitation" is defined

by the statute as "a physical or cognitive incapacitation that 18

appears irreversible, as determined by a licensed physician, and

that is so debilitating that the prisoner does not pose a public

safety risk." G. L. c. 127, § 119A (a).

The statute commands that the superintendent of a

correctional facility "shall" consider a written petition for

medical parole. G. L. c. 127, § 119A (c) (1). The

superintendent "shall" transmit to the commissioner, along with

a recommendation, three different items: a medical parole plan,

a written diagnosis by a physician licensed to practice medicine

under G. L. c. 112, § 2, and "an assessment of the risk for

violence that the prisoner poses to society."23

After receipt of a petition, the commissioner has forty-

five days in which to issue a written decision. G. L. c. 127,

§ 119A (e). "If the commissioner determines that a prisoner is

terminally ill or permanently incapacitated such that if the

prisoner is released the prisoner will live and remain at

liberty without violating the law and that the release will not

be incompatible with the welfare of society, the prisoner shall

be released on medical parole" (emphasis added). Id.

The statute gives the Secretary of the Executive Office of

Public Safety and Security (Secretary) the authority to

promulgate rules and regulations necessary for the statute's

23There are equivalent requirements for a sheriff. G. L. c. 127, § 119A (d) (1). 19

enforcement. G. L. c. 127, § 119A (h). It also commands that

the commissioner and Secretary file an annual report with the

Legislature indicating information regarding those who applied

for medical parole and those who were granted or denied medical

parole, excluding any personally identifiable information.

G. L. c. 127, § 119A (i).24 If a prisoner, sheriff, or

superintendent is aggrieved by the decision of the commissioner,

24Pursuant to the reporting requirement of § 119A (i), five annual reports have been released by the department regarding medical parole: for fiscal years 2018, 2019, 2020, 2021, and 2022. In 2018, five prisoners petitioned for medical parole, and none of them was released. Report Regarding Medical Parole Required by MGL Chapter 127 § 119A to the Clerks of the House and Senate, the Senate and House Committees on Ways and Means, and the Joint Committee for the Judiciary (Mar. 1, 2019), https://www.mass.gov/doc/fy18-doc-medical-parole-report/download [https://perma.cc/ND8G-4JQE]. In 2019, twenty-four prisoners petitioned for medical parole, and four were granted release. Report Regarding Medical Parole (Mar. 10, 2020), https://www .mass.gov/doc/fy19-doc-medical-parole-report/download [https: //perma.cc/JLR9-2N68]. In 2020, 270 prisoners petitioned for medical parole, twenty-six were released, and as of the report's release date, a total of fifty-two prisoners had been granted medical parole. Report Regarding Medical Parole (Dec. 1, 2021), https://www.mass.gov/doc/fy20-doc-medical-parole-report /download [https://perma.cc/9HN2-WL24]. In 2021, 211 prisoners petitioned for medical parole, seventeen were granted release, and a total of fifty-six inmates had been granted medical parole as of the date of the report. Report Regarding Medical Parole (Feb. 8, 2022), https://www.mass.gov/doc/fy21-doc-medical- parole-report/download [https://perma.cc/88DS-7GT5]. In 2022, sixty-seven prisoners petitioned for medical parole, seventeen were released, and as of the date of the report, sixty-nine total prisoners had been granted medical parole. Report Regarding Medical Parole (Dec. 1, 2022), https://www.mass.gov /doc/fy22-doc-medical-parole-report/download [https://perma.cc /5CX2-5LYR]. 20

he or she may petition for relief in the nature of certiorari

pursuant to G. L. c. 249, § 4 (§ 4). G. L. c. 127, § 119A (g).

2. Regulations. Since promulgation by the Secretary on

July 26, 2019, the original regulations have undergone several

changes, in large part due to decisions from this court

declaring them partially or wholly invalid. On April 15, 2022,

an updated version of the regulations became effective.25

At the time of the plaintiff's request for medical parole,

the regulations provided that the superintendent's risk for

violence assessment "shall" take several factors into

consideration: a prisoner's terminal illness or permanent

incapacitation and prognosis; the prisoner's current housing

situation; clinical management of the prisoner's medical

condition; assessment for mobility, gait, and balance

(considering the prisoner's confinement to bed or whether he or

she is able to ambulate with the use of accommodations); any

medically prescribed devices; the prisoner's ability to manage

activities of daily living; a psychological assessment; advanced

directives, such as a "do not resuscitate" order (DNR); and the

prisoner's height, weight, and ability to eat on his or her own.

501 Code Mass. Regs. § 17.05 (2019).

25The definition for "permanent incapacitation" in the regulation is identical to the definition in the statute, with the exception of "and" before "that is so debilitating." 501 Code Mass. Regs. § 17.02 (2022). 21

The current version of the regulations indicates

consideration of the same factors, minus the factor of advanced

directives. 501 Code Mass. Regs. § 17.04(3) (2022). The older

version of the regulations, formerly at 501 Code Mass. Regs.

§ 17.03(7)(d) (2019), required the superintendent to transmit to

the commissioner the assessment for the risk of violence, "which

shall utilize standardized assessment tools that measure

clinical prognosis, such as the LS/CMI assessment tool and/or

COMPAS, as well as risk level for classification evaluation

purposes." The current version, 501 Code Mass. Regs.

§ 17.04(2)(d), (e) (2022), requires a multidisciplinary review

team to provide information to the superintendent regarding the

risk assessment, "which must be based upon the results of a

standardized assessment tool that measures clinical prognosis,

such as the LS/CMI assessment tool and/or COMPAS," in addition

to a recent classification report.26

3. Validity of 501 Code Mass. Regs. § 17.02. a. Standard

of review. Where a statute authorizes the Secretary to

promulgate rules and regulations to enforce and administer the

statute, and where those regulations are duly promulgated, they

"are presumptively valid." Buckman v. Commissioner of

Correction, 484 Mass. 14, 23 (2020), quoting Craft Beer Guild,

26There is no further description of these tools in the regulation or the record. 22

LLC v. Alcoholic Beverages Control Comm'n, 481 Mass. 506, 520

(2019). "Only an 'agency regulation that is contrary to the

plain language of the statute and its underlying purpose may be

rejected by the courts.'" Massachusetts Teachers' Retirement

Sys. v. Contributory Retirement Appeal Bd., 466 Mass. 292, 301

(2013), quoting Duarte v. Commissioner of Revenue, 451 Mass.

399, 408 (2008). We apply a deferential review of the

regulation, "and it is therefore 'unimportant whether we would

have come to the same interpretation of the statute as the

agency.'" Massachusetts Teachers' Retirement Sys., supra,

quoting Goldberg v. Board of Health of Granby, 444 Mass. 627,

633 (2005).

"[R]egulations are not to be declared void unless their

provisions cannot by any reasonable construction be interpreted

in harmony with the legislative mandate." Harmon v.

Commissioner of Correction, 487 Mass. 470, 476 (2021), quoting

Dowell v. Commissioner of Transitional Assistance, 424 Mass.

610, 613 (1997). "Our deference is especially appropriate

where, as here, the statute[] in question involve[s] an

explicit, broad grant of rule-making authority." Goldberg, 444

Mass. at 634.

We employ a two-step test to evaluate the legality of an

agency's regulations. Harmon, 487 Mass. at 476. We first look

to statutory language. Id. at 476-477. Where the statute 23

"speaks clearly on the topic in the regulation, we determine

whether the regulation is consistent with or contrary to the

statute's plain language." Buckman, 484 Mass. at 24. Where the

relevant statute is ambiguous or leaves a gap in statutory

guidance, we move to the second step, to "determine whether the

regulation may 'be reconciled with the governing legislation.'"

Id., quoting Craft Beer Guild, LLC, 481 Mass. at 520.

"Statutory silence, like statutory ambiguity, often requires

that an agency give clarity to an issue necessarily implicated

by the statute but either not addressed by the Legislature or

delegated to the superior expertise of agency administrators."

Goldberg, 444 Mass. at 634.

b. Analysis. Here, the plaintiff argues that 501 Code

Mass. Regs. § 17.02 is invalid because its definition of

"debilitating condition" impermissibly narrows the class of

persons available for medical parole, by limiting availability

to those who are unable to conduct basic activities of daily

living. He asserts that the statute's use of the term

"debilitating" is "unambiguous," as it is modified by the phrase

"that the prisoner does not pose a public safety risk." The

defendants argue that the regulation is valid because it

reasonably fills a gap in the statute, which does not expressly

define "debilitating" and includes a further description of the

meaning of "debilitating." We first examine whether the statute 24

is unambiguous with respect to its reference to "debilitating"

conditions.

The statute defines "permanent incapacitation" as "a

physical or cognitive incapacitation that appears irreversible,

as determined by a licensed physician, and that is so

debilitating that the prisoner does not pose a public safety

risk" (emphasis added). G. L. c. 127, § 119A (a). It further

defines "terminal illness" as "a condition that appears

incurable, as determined by a licensed physician, that will

likely cause the death of the prisoner in not more than

[eighteen] months and that is so debilitating that the prisoner

does not pose a public safety risk" (emphasis added). Id.

Those are the only two occasions where the word "debilitating"

appears in the statute.

Typically, "[w]hen a statute does not define its words we

give them their usual and accepted meanings, as long as these

meanings are consistent with the statutory purpose. . . . We

derive the words' usual and accepted meanings from sources

presumably known to the statute's enactors, such as their use in

other legal contexts and dictionary definitions." Williams v.

Board of Appeals of Norwell, 490 Mass. 684, 693-694 (2022),

quoting Commonwealth v. Morasse, 446 Mass. 113, 116 (2006).

Where, however, as here, the statute expressly provides the

power to the Secretary to "promulgate rules and regulations 25

necessary for the enforcement and administration" of the

statute, the Secretary's interpretation of an important,

undefined word, particularly where other important words and

phrases are defined by the statute, warrants some deference.

G. L. c. 127, § 119A (h). "[I]f the Legislature has not

addressed directly the pertinent issue [in the statute], we

determine whether the agency's resolution of that issue may 'be

reconciled with the governing legislation.'" Zoning Bd. of

Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748,

759-760 (2010), quoting Goldberg, 444 Mass. at 633. At this

stage in the analysis, we apply "'substantial deference' to the

expertise and statutory 'interpretation of [the] agency charged

with primary responsibility' for administering a statute. . . .

[A] '[S]tate administrative agency in Massachusetts has

considerable leeway in interpreting a statute it is charged with

enforcing,' unless a statute unambiguously bars the agency's

approach." Zoning Bd. of Appeals of Amesbury, supra, quoting

Goldberg, supra.

The fact that the word "debilitating," in the statute, is

modified by the phrase "that the prisoner does not pose a public

safety risk" does not foreclose the Secretary, tasked with

enforcement and administration of the statute, from further

defining the term, and attempting to answer the unanswered

question: in what instance would someone be so debilitated that 26

he or she would not pose a public safety risk? This is

particularly true where the statute declines to define "public

safety risk." The importance of defining what "debilitates"

someone to the point where he or she no longer poses a "public

safety risk" is significant. A more detailed definition of

"debilitating" facilitates the administration of the statute by

providing objective criteria that can be applied consistently

from petition to petition in making a determination whether an

individual poses a risk to public safety.

Taking into consideration the statute's mandate that the

Secretary promulgate regulations to enforce and administer the

medical parole process, and given the fact that the statute

defines "permanent incapacitation" and "terminal illness," the

Legislature's silence on the definition of "debilitating"

indicates that the Secretary had the discretion to identify

factors that would assist the superintendent in determining

whether a prisoner has a debilitating condition. See, e.g.,

Massachusetts Teachers' Retirement Sys., 466 Mass. at 300. We

"view the Legislature's silence here as an invitation to [the

Secretary] to fill the gap with appropriate regulation." Id. at

301.

Next, where the statute leaves a gap for the Secretary to

fill, we must "determine whether the regulation may 'be

reconciled with the governing legislation.'" Buckman, 484 Mass. 27

at 24, quoting Craft Beer Guild, LLC, 481 Mass. at 520 ("Where

the statute relevant to the regulation is ambiguous or where

there is a gap in the statutory guidance, we" move on to next

step in our analysis of regulation). The regulation defines

"debilitating condition" as

"[a] physical or cognitive condition that appears irreversible, resulting from illness, trauma, and/or age, which causes a prisoner significant and serious impairment of strength or ability to perform daily life functions such as eating, breathing, toileting, walking or bathing so as to minimize the prisoner's ability to commit a crime if released on medical parole, and requires the prisoner's placement in a facility or a home with access to specialized medical care" (emphasis added).27

501 Code Mass. Regs. § 17.02. The plain reading of the

regulation is consistent with the legislative purpose of the

statute to show compassion to those individuals who are least

likely to offend, considering the poor health and age of the

prisoner, while also considering savings in costs of health care

for those who need serious care. The plain language of the

regulation does not require that a prisoner be incapable of

performing all daily life functions, but some daily life

functions.

27 We discuss the regulation in effect at the time of the plaintiff's request for medical parole, with the understanding that the regulation has undergone minor changes. The updated version, effective April 15, 2022, removed the language "resulting from illness, trauma, and/or age," and added "palliative or" before "medical care." 501 Code Mass. Regs. § 17.02 (2022). 28

Contrary to the plaintiff's assertion that the regulation

"redefined" the term "so debilitating" by limiting it to a

question of ability to perform activities of daily living, the

language used in the regulation indicates that the activities

mentioned are examples for the commissioner to consider rather

than an exclusive list. Webster's Third New International

Dictionary 2283 (2002) defines "such" as "someone or something

that has been or is being stated, implied, or exemplified," and

"such a one" as "one of a kind to be indicated or specified."

Interpreting this phrase in the regulation according to its

definition, the regulation does not limit daily life functions

to those mentioned, but rather provides examples of what some

daily life functions may be. Accordingly, we remind the

commissioner that a reasonable interpretation of the regulation

would not require a prisoner to be unable to perform all

activities of daily living, but only those that diminish the

public safety risk a prisoner poses on release.

We do not agree with the plaintiff that consideration of

the ability to perform activities of daily living is not

"logically related" to the determination whether a medical

condition is "debilitating." G. L. c. 127, § 119A (a).

"Debilitate" is defined as "to weaken, . . . to impair the

strength of." Webster's Third New International Dictionary 582.

As such, the regulation's discussion of ability to perform daily 29

life functions reasonably flows from the language used within

the statute. We can conclude that, by using the word

"debilitating" in defining both "terminal illness" and

"permanent incapacitation," the Legislature contemplated an

individual's weakened ability to function.

The plaintiff further argues that the regulation "serves to

narrow the class of persons available for medical parole." That

the regulation provides examples of particular daily life

functions does not reduce the number of persons who otherwise

would qualify under the statute. To the contrary, the

regulation demonstrates the Secretary's appropriate use of

expressly granted power to "promulgate rules and regulations

necessary for the enforcement and administration of" the statute

to provide guidelines to the commissioner in determining when

individuals may suffer from a "debilitating" condition. G. L.

c. 127, § 119A (h).28

28Consideration of the ability to perform activities of daily living is contemplated in other statutes when defining similar terms. General Laws c. 151B, § 1 (17), the unlawful discrimination code, defines "handicap" as "a physical or mental impairment which substantially limits one or more major life activities of a person," among other considerations (emphasis added). In the same statute, "major life activities" are defined as "functions, including, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." G. L. c. 151B, § 1 (20). Similarly, 42 U.S.C. § 12102(1), the Federal equivalent, defines "disability" as, in part, "a physical or mental impairment that substantially limits one or more major life activities of such individual." Title 42 U.S.C. § 12102(2) 30

Although statutes from other States allowing for some form

of medical parole are written and implemented differently,

several of those statutes and regulations use language

discussing activities of daily living similar to our own.

California's medical parole statute provides for release in

certain circumstances for prisoners who are "permanently

medically incapacitated with a medical condition that renders

[them] permanently unable to perform activities of basic daily

living." Cal. Penal Code § 3550(a). The regulation expands on

this by identifying several activities of daily living:

"breathing, eating, bathing, dressing, transferring,

elimination, arm use, or physical ambulation." 15 Cal. Code

Regs. § 3359.1(a)(1). See In re Martinez, 210 Cal. App. 4th

800, 817-818 (2012) (discussing considerations that are part of

medical parole decision and stating that determination of

whether inmate is "permanently medically incapacitated" as set

forth in statute is "more explicitly defined" in regulations).

The New Jersey medical parole statute defines "permanent

physical incapacity" as a medical condition that renders one

"permanently unable to perform activities of basic daily

defines "major life activities" as including, but not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 31

living." N.J. Stat. Ann. § 30:4-123.51e. Neither the

regulation nor the statute defines "activities of basic daily

living." N.J. Admin. Code § 10A:16-8.5. See State v. F.E.D.,

251 N.J. 505, 511, 528 (2022) (construing statute "to require

clear and convincing evidence that the inmate's condition

renders him permanently unable to perform two or more activities

of basic daily living, necessitating twenty-four-hour care" and

looking to other laws in New Jersey that define "activities of

basic daily living" to determine how to define it for medical

parole purposes). See also Ohio Rev. Code Ann. § 2967.05 & Ohio

Admin. Code 5120:1-1-40 (statute states "medically

incapacitated" includes consideration of disability that

"prevents the inmate from completing activities of daily living

without significant assistance," regulation sets out procedural

process, and neither defines "activities of daily living").29

Although Montana's medical parole statute does not use the

language "activities of daily living," the administrative rules

identify factors the decision-making body may consider. See

Mont. Code Ann. § 46-23-210; Mont. Admin. R. 20.25.307. See

29Other jurisdictions whose medical parole statutes mention activities of daily living include Rhode Island (R.I. Gen. Laws § 13-8.1-3), Colorado (Colo. Rev. Stat. § 17-1-102), Kentucky (Ky. Rev. Stat. Ann. § 439.3405), Louisiana (La. Rev. Stat. Ann. § 15:574.20), Michigan (Mich. Comp. Laws § 791.235), Mississippi (Miss. Code Ann. § 47-7-4), and Oklahoma (Okla. Stat. tit. 57, § 332.18). 32

also Madsen vs. Guyer, No. 18-0699 (Mont. Dec. 27, 2018)

(medical parole "defined by statute"); Holm vs. Salmonsen, No.

18-0557 (Mont. Oct. 16, 2018) (directing plaintiff to

administrative rules concerning medical parole to provide

guidance). In Kansas, the medical parole statute lists factors

to consider in determining whether a person is "functionally

incapacitated." Kan. Stat. Ann. § 22-3728(a)(8). The

regulations direct the decision-making party to consider the

factors identified in the statute, "and the following additional

factors[,]" naming the prisoner's age, medical condition, health

care needs, custody classification, risk of violence, and

effective capacity to cause physical harm as additional relevant

factors. Kan. Admin. Regs. § 45-700-2(b)(1)(C). The statutes

and regulations of these other States support our determination

that consideration of ability to perform activities of daily

living correlates with an individual's permanent incapacitation.

Because § 119A contemplates cognitive incapacitation, we

must address whether the regulation impermissibly excludes those

who suffer from a qualifying cognitive condition in determining

whether the regulation is valid. G. L. c. 127, § 119A (a)

(defining "permanent incapacitation"). The proper

interpretation of this regulation, which contemplates a

"cognitive condition," would not lead to the exclusion of those

who are eligible for medical parole by reason of cognitive 33

incapacitation. As discussed supra, the use of "such as" in the

regulation indicates that the daily life functions mentioned in

the statute are only examples of what may contribute to

qualifying someone for medical parole.

Consideration of other daily life functions, such as

thinking, planning, concentrating, and working, may be more

applicable when examining prisoners who are cognitively

incapacitated, along with other daily life functions that are

explicitly indicated in the regulations. Indeed, functions such

as thinking, planning, concentrating, or working may have an

impact on the daily life functions that explicitly are indicated

in the regulations, such as ability to breathe, eat, or walk on

one's own. We list other potential daily life functions solely

to provide an illustration of those that may be connected to

cognitive incapacitation.

Notably, in response to questioning at oral argument,

counsel for the defendants later submitted thirteen medical

parole decisions in which the commissioner released petitioners

on medical parole who suffered from various forms of cognitive

incapacitation, such as dementia and Alzheimer's disease.30 In

four of those decisions, the commissioner released petitioners

primarily suffering from dementia, recognizing that it had an

30Only one of those decisions was a result of a remand following judicial review. 34

impact on those petitioners' comprehension, reasoning, judgment,

memory, and insight. In two petitions, the commissioner

specifically noted that despite needing prompting, the

petitioners still were able to perform all or most physical

activities of daily living independently, but released them

nonetheless due to their cognitive incapacities.

We advise the commissioner to continue to analyze each

petition individually, and to consider all activities of daily

living, including those that could be implicated by cognitive

incapacitation, not just those enumerated in the regulation as

examples, as she appeared to do properly in the petitions

discussed in the preceding paragraph. Giving substantial

deference, as we must, to the Secretary, the statute "may 'be

reconciled with the governing legislation.'" Buckman, 484 Mass.

at 24, quoting Craft Beer Guild, LLC, 481 Mass. at 520.

After considering whether a prisoner petitioning for

medical parole has an irreversible physical or cognitive

condition, as set out by 501 Code Mass. Regs. § 17.02 and the

statute, the commissioner then must consider whether this

condition is so debilitating that the prisoner "does not pose a

public safety risk," § 119A, and "minimize[s] the prisoner's

ability to commit a crime if released," 501 Code Mass. Regs.

§ 17.02. 35

Contrary to the plaintiff's assertion that the ability to

perform activities of daily living is disconnected from an

individual's risk to public safety, those who suffer from

conditions that prevent or hinder their performance of certain

activities of daily living are objectively less likely to pose a

public safety risk, making it an appropriate consideration in

determining whether to release a prisoner on medical parole. It

is difficult to neatly describe the nexus between physical

incapacitation and the inability to commit a crime. Different

debilitating conditions likely would incapacitate an individual

in different ways. For example, a petitioner who is

quadriplegic likely would not be able to shoot a gun, and a

petitioner who cannot walk may not be able to rob a bank.

Activities of daily living that may be hindered in those cases

may include, among others, bathing and walking, which are listed

explicitly in 501 Code Mass. Regs. § 17.02.

A petitioner who suffers from severe dementia may have

difficulty writing a "bad" check or robbing a bank. For that

individual, the activities of daily living he or she may have

difficulty performing may include speaking, thinking, reading,

writing, or expressing thoughts that, in turn, may implicate the

functions mentioned in 501 Code Mass. Regs. § 17.02, such as

eating, breathing, or toileting. The regulation's discussion of

activities of daily living does not narrow impermissibly the 36

scope of the statute; rather, it facilitates the statute's

administration in a consistent manner by aiding in the

determination of when a prisoner's condition may implicate the

risk posed to public safety on his or her release.

The Supreme Court of New Jersey recently endeavored to

construe two requirements of its medical parole statute: that a

prisoner be "permanently physically incapable of committing a

crime if released" and "would not pose a threat to public

safety."31 F.E.D., 251 N.J. at 531, quoting N.J. Stat. Ann.

§ 30:4-123.51e(f)(1). The court reasoned that the "physically

incapable" language could not require that a prisoner be

incapable of committing any criminal offense, because, in that

case, "only an inmate who is so debilitated or incapacitated

that he cannot speak with a co-conspirator to plan a crime or

type on a computer to commit an offense could be eligible for

compassionate release," which would contravene the intent of the

Legislature and render superfluous the language regarding a

threat to public safety. F.E.D., supra at 531-532. For a

prisoner asserting a "permanent physical incapacity," in order

for the "public safety" requirement to have meaning, the court

interpreted the "physically incapable" language to mean whether

31New Jersey's medical parole statute is unique in that it allows a court to determine whether a prisoner qualifies for compassionate release. N.J. Stat. Ann. § 30:4-123.51e. 37

the prisoner is physically incapable, either alone or with

assistance, of committing the same crime or similar crimes to

those of which he or she was convicted. Id. at 532-533. Then,

in analyzing the public safety risk the prisoner presents, the

"inquiry is not limited to the threat that the inmate may commit

any specific crime or category of crimes," but instead involves

a "comprehensive assessment" of all the relevant factors. Id.

at 533.

Our statute is not so limiting; it requires a determination

not that the prisoner is "physically incapable" of violating the

law, but that he or she "will live and remain at liberty without

violating the law" and that the prisoner's release is not

"incompatible with the welfare of society." G. L. c. 127,

§ 119A (e). Both prongs require a more comprehensive look, on a

case-by-case basis, at various considerations. The regulations

and the statute do not explicitly list the factors that the

commissioner should consider in making this determination,

unlike the medical parole statutes and regulations of some other

States.32

32For example, Montana's administrative rules provide factors to consider in the public safety analysis, such as whether a prisoner's physical condition renders him or her unable to engage in criminal activity, any statement from the victim, the progression of his or her medical condition documented by a licensed physician, a prisoner's "conduct, employment, and attitude" in prison, any physical or mental evaluations that have been completed, a prisoner's social and 38

Nonetheless, in addition to the ability to perform

activities of daily living, the commissioner's decision should

include discussion of the following factors: a written

diagnosis from a licensed physician (501 Code Mass. Regs.

§ 17.04); any proposed medical parole plan (same); a risk for

violence assessment, which should consider all the circumstances

mentioned supra (same); a classification report (same); the

superintendent's recommendation (same); and written statements

and opinions submitted by a district attorney, victim, or family

member of a victim (501 Code Mass. Regs. § 17.06).33 The

superintendent's recommendation, risk for violence assessment,

or classification report, as in this case and in Carver v.

Commissioner of Correction, 491 Mass. (2023), may

incorporate the prisoner's disciplinary record and the severity

of his or her crime, which may in turn be considered by the

commissioner in making a decision.34 The commissioner's

criminal record, and the circumstances of the offense for which a prisoner is incarcerated. Mont. Admin. R. 20.25.307.

33We cite the factors where they appear in the current version of the regulations.

34Title 103 Code Mass. Regs. § 420.08 (2017) discusses factors to consider in the reclassification of prisoners, including, but not limited to, the prisoner's criminal history, the personalized program plan, work and housing evaluations, disciplinary history, and segregation placements. Thus, where 501 Code Mass. Regs. § 17.04 specifically mentions the provision of a classification report to the commissioner, she may consider the information contained within that report. 39

determination as to whether a prisoner is so debilitated that he

or she does not pose a public safety risk should result from a

comprehensive approach, considering all the factors implicated

by the particular case.

4. Denial of plaintiff's petition. a. Standard of

review. "The standard of review for a certiorari action depends

on the nature of the action for which review is sought."

Mederi, Inc. v. Salem, 488 Mass. 60, 67 (2021). "[W]here, as

here, the decision being reviewed implicates the exercise of

administrative discretion, the court applies the 'arbitrary or

capricious' standard, which is more deferential to the party

defending the administrative action it took." Id., quoting

Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591, 605

(2017).35 This standard is generous to the decision-making

35The medical parole process is not "adjudicatory." For example, the Administrative Procedure Act "defines '[a]djudicatory proceeding' as 'a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing'" (emphasis added). Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 494 (1965), quoting G. L. c. 30A, § 1 (1). Section 119A permits a hearing where the prisoner was charged with a particular crime and the district attorney or victim's family requests it. G. L. c. 127, § 119A (c) (2). Title 501 Code Mass. Regs. § 17.07 (2022) allows the commissioner to hold a hearing, but does not require her to, and largely leaves the procedure and permissible attendees of the hearing to the discretion of the commissioner; she "shall not be bound by the laws of evidence observed by the courts of the Commonwealth." "Unless an adjudicatory hearing is required by constitutional right or statute, the fact that some 40

party, and only requires "that there be a rational basis for the

decision." Mederi, supra.

The commissioner does not have unbridled discretion. The

statute demands:

"The commissioner shall issue a written decision . . . . If the commissioner determines that a prisoner is terminally ill or permanently incapacitated such that if the prisoner is released the prisoner will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society, the prisoner shall be released on medical parole" (emphasis added).

G. L. c. 127, § 119A (e). Nonetheless, the commissioner has

discretion, as set out by statute, to determine whether the

prisoner meets the three criteria set out by statute, namely,

(1) whether the prisoner is terminally ill or permanently

incapacitated such that (2) he or she will live and remain at

liberty without violating the law, and (3) that release will not

be incompatible with the welfare of society. Id. "The medical

parole statute vests the commissioner with the authority to

grant medical parole and requires the commissioner to do so

where the commissioner finds that certain conditions have been

met." Emma v. Massachusetts Parole Bd., 488 Mass. 449, 455

(2021).

type of hearing is permitted or required does not imply that it is adjudicatory. We must look to the nature of the proceeding below." Sierra Club v. Commissioner of the Dep't of Envtl. Mgt., 439 Mass. 738, 746 (2003). 41

Although the commissioner "shall" release the prisoner when

she finds that the three criteria are satisfied, the discretion

that she retains in determining whether the prisoner meets those

criteria should not be disregarded. Particularly, the second

two prongs -- whether the prisoner will live and remain at

liberty without violating the law, and whether the prisoner's

release will be incompatible with the welfare of society -- are,

as discussed supra, comprehensive fact-intensive questions that

leave room for differences in opinion among those analyzing the

same record. The commissioner's discretion is not a small

component of the criteria to be applied; to the contrary,

prisoners are released under the statute in her discretion

alone, on her consideration of the factors mentioned by the

statute or the regulations. G. L. c. 127, § 119A (e) ("If the

commissioner determines . . ." [emphasis added]). In light of

the discretionary nature of these determinations, an "arbitrary

or capricious" standard is appropriate. Compare Diatchenko v.

District Attorney for the Suffolk Dist., 471 Mass. 12, 31 (2015)

(Diatchenko II) ("Because the decision whether to grant parole

to a particular juvenile homicide offender is a discretionary

determination by the board, . . . an abuse of discretion

standard is appropriate"), Sierra Club v. Commissioner of the

Dep't of Envtl. Mgt, 439 Mass. 738, 745-748 (2003) (applying

arbitrary or capricious standard to commissioner's findings 42

where nonadjudicatory process and exercise of powers and duties

delegated to him for purpose of implementing legislative

policy), and Forsyth Sch. for Dental Hygienists v. Board of

Registration in Dentistry, 404 Mass. 211, 217 (1989) (applying

arbitrary and capricious standard of review because "board is

free to use its judgment in determining when and to whom to

grant exemptions from its regulations" in exercise of its

administrative discretion), with Black Rose, Inc. v. Boston, 433

Mass. 501, 503-505 (2001) (reviewing decision suspending

entertainment license under substantial evidence test, relying

on cases applying that standard to license revocation

proceedings under same statute), Saxon Coffee Shop v. Boston

Licensing Bd., 380 Mass. 919, 924-925 (1980) (applying

substantial evidence test to revocation of common victualler's

license as revocation proceedings are required by statute and

adjudicatory in nature), Lovequist v. Conservation Comm'n of

Dennis, 379 Mass. 7, 8, 17-18 (1979) (reviewing decision of town

conservation commission denying application to construct access

road over old cranberry bog under substantial evidence

standard), and Boston Edison Co. v. Boston Redev. Auth., 374

Mass. 37, 50-54 (1977) (substantial evidence test appropriate

where projects approved under G. L. c. 121A primarily are

"conceived of and implemented by" private corporations who

receive large public benefits and where tendency exists to 43

review "in more depth the decisions of urban renewal agencies").

Where this discretion explicitly is conferred on the

commissioner by the Legislature, we must give the commissioner's

decision regarding the release of a prisoner under the statute

deference.36 See, e.g., Ciampi v. Commissioner of Correction,

452 Mass. 162, 168 (2008) ("Each of the challenged regulations

and policy is entirely within the commissioner's broad grant of

authority . . . to maintain prison discipline and is consistent

with the Legislature's intent"); G. L. c. 27, § 5 (granting

parole board power to determine who shall be released on

parole).

b. Analysis. The plaintiff argues that the commissioner's

decision to deny him medical parole was erroneous because the

department did not conduct a risk assessment on him; he does not

have a history of institutional violence; his disciplinary

history is not extensive, and was heavily drug-related, which

ceased when he was prescribed pain medication; his ability to

move around with a walker does not make him a threat to the

36The defendants argue that the plaintiff's assertion that the commissioner's decision is due no deference was raised for the first time on appeal. Arguably, the plaintiff raised this in his motion for judgment on the pleadings where he stated: "The [c]ommissioner's expertise is limited to institutional order alone, and the deference required to be given to the [c]ommissioner's judgment on issues of public safety . . . is minimal." Nonetheless, we conclude that this argument has no merit. 44

public; and the accommodations he has been given in prison

should not have been considered. The defendants counter that

the commissioner's decision was not arbitrary or capricious,

because her determination that the plaintiff is not so

"permanently incapacitated" within the meaning of the medical

parole statute that he "does not pose a public safety risk" was

reasonable in light of the record. The defendants point to the

plaintiff's physical ability to conduct daily living activities,

with the assistance of the restrictions put in place by the

prison, and argue that a risk assessment that satisfies the

statute was conducted by the superintendent in his

recommendation letter.

At the outset, and as discussed supra, § 119A requires the

commissioner to determine three things: whether the prisoner is

(1) "terminally ill or permanently incapacitated such that"

(2) "if the prisoner is released the prisoner will live and

remain at liberty without violating the law" and (3) "that the

release will not be incompatible with the welfare of society."

G. L. c. 127, § 119A (e). The definition of permanent

incapacitation in the statute refers to "a physical or cognitive

incapacitation that appears irreversible" and "that is so

risk." G. L. c. 127, § 119A (a). Given this language, it

appears that the commissioner must consider, generally, whether 45

a prisoner is likely to abide by the law. Additionally, the

commissioner must consider the public safety risk imposed by the

prisoner's release. The third prong of subsection (e) appears

to subsume the "public safety risk" concern; if an individual's

release poses a public safety risk, then naturally his or her

release is incompatible with the welfare of society. It is with

this standard in mind that we consider whether the

commissioner's decision in the plaintiff's case was arbitrary or

capricious.

An "assessment of the risk for violence that the prisoner

poses to society" is required by § 119A. G. L. c. 127,

§ 119A (c) (1), (d) (1). Despite its mention in the statute,

only the regulations specify what that assessment should entail.

As discussed supra, at the time of the plaintiff's request for

medical parole, 501 Code Mass. Regs. § 17.05 indicated that the

risk for violence assessment conducted by the supervisor must

take several factors into consideration, including the

prisoner's medical condition, management of that medical

condition, the prisoner's housing situation, assessment of the

prisoner's ability to ambulate with or without accommodation,

medical devices prescribed for the prisoner, the prisoner's

ability to manage daily living activities, a psychological

assessment, advanced directives or DNR, and the prisoner's

physical characteristics and his or her ability to eat 46

independently. Additionally, 501 Code Mass. Regs. § 17.03(7)(d)

required the superintendent to transmit a risk for violence

assessment utilizing "standardized assessment tools . . . , such

as the LS/CMI assessment tool and/or COMPAS, as well as risk

level for classification evaluation purposes."

Although the classification report was provided, there is

nothing in the record to indicate that the superintendent used

"standardized assessment tools . . . , such as the LS/CMI

assessment tool and/or COMPAS." In fact, the superintendent

stated in his recommendation:

"Regarding the required assessment of the risk for violence that the inmate poses to society . . . , I have enclosed for your review a copy of [the plaintiff's] most recent Classification Board and Personalized Program Plan. Due to his sentence of life without parole, he does not receive a Risk or Needs Assessment, therefore, one could not be provided" (emphasis added).

A risk for violence assessment is required by the regulation, as

evidenced by the word "shall."37 The superintendent must follow

the specific requirements as promulgated by the Secretary. In

this case, Silva (or the multidisciplinary review team, as

37In the current version, 501 Code Mass. Regs. § 17.04(2)(d) uses the phrase "must be based upon" when referring to a standardized assessment tool. See 501 Code Mass. Regs. § 17.04(2)(d) ("a risk for violence assessment, which must be based upon the results of a standardized assessment tool that measures clinical prognosis, such as the LS/CMI assessment tool and/or COMPAS"). As the parties did not raise the issue of the validity of this regulation, we assume without deciding that it is valid for the purposes of our analysis. 47

mentioned in the current regulation) should have ensured that a

risk assessment, based on a standardized assessment tool, was

conducted in order to comply with the regulations. If the

plaintiff had not received a risk for violence assessment based

on a standardized assessment tool as specified in the

regulation, the superintendent needed to facilitate such an

assessment before he sent his recommendation to the

commissioner. When the commissioner reviewed the record and saw

that it had not been completed, she should have inquired further

about obtaining such an assessment.38

Silva did address many of the factors set out by the

regulation in his recommendation. He discussed the plaintiff's

medical condition, the medical assessments performed by

department physicians, the accommodations put in place to assist

the plaintiff in conducting daily living activities -- including

his housing placement -- and the plaintiff's ability to

ambulate, as viewed by prison staff. He also discussed the

medical parole plan developed by the plaintiff, and provided the

classification report to the commissioner. A number of these

38We recognize that the strict timeline set out by the statute in processing petitions for medical parole may make it difficult to conduct assessments that have not yet been administered. See G. L. c. 127, § 119A (c) (1) (superintendent shall send recommendation not more than twenty-one days after receipt of petition). Even so, the regulation, drafted by the Secretary, requires such an assessment. 48

factors specifically were mentioned in 501 Code Mass. Regs.

§ 17.05 at the time of the plaintiff's petition, and therefore

are proper to consider in determining whether the absence of the

standardized assessment invalidated the commissioner's decision.

Nonetheless, the statute requires an assessment for the risk of

violence that the prisoner poses to society, and the regulations

specify that this must be based on a standardized assessment

tool. See G. L. c. 127, § 119A (h) (Secretary to promulgate

regulations "necessary for the enforcement and administration of

this section"). Although the commissioner had a classification

report, a recommendation from the superintendent, and other

documentation that comprehensively catalogued the plaintiff's

medical condition, his substance use concerns, his convictions,

and his disciplinary history, the absence of the standardized

risk assessment required by the regulation compels us to remand

the petition for reconsideration after such an assessment is

conducted.39 Despite the fact that a standardized risk

39We may not presume that the "[r]isk [a]ssessment" defined in the regulations pertaining to classification of prisoners is the equivalent of the "risk for violence" assessment required by the medical parole statute in the absence of any language in the medical parole regulations referencing this definition, despite the superintendent's mention of a "Risk or Needs Assessment." See 103 Code Mass. Regs. § 420.05 (defining risk assessment as "[t]he identification, evaluation, and estimation of the levels of criminogenic risk factors which are characteristic of an inmate or his or her situation which then assist in predicting future criminal behavior"). Contrast 501 Code Mass. Regs. § 17.04(2)(d) (2022) ("a risk for violence assessment, which 49

assessment is but one relevant factor that the commissioner

could have considered in making her decision, it is a

consideration required by the regulation, and we cannot

acquiesce to its absence.

Notwithstanding our conclusion that the petition must be

remanded for the administration and consideration of a risk for

violence assessment based on a standardized assessment tool, we

analyze the commissioner's consideration of the other factors

that are disputed by the parties. "A decision is not arbitrary

and capricious unless there is no ground which 'reasonable

[persons] might deem proper' to support it." Garrity v.

Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012),

quoting T.D.J. Dev. Corp. v. Conservation Comm'n of N. Andover,

36 Mass. App. Ct. 124, 128 (1994). The commissioner's

consideration of other factors discussed infra was reasonable

given the entire administrative record.40

must be based upon the results of a standardized assessment tool that measures clinical prognosis, such as the LS/CMI assessment tool and/or COMPAS").

40That the district attorney's office opined that the plaintiff should be released does not render the commissioner's decision an abuse of discretion. Although the opinion of the relevant district attorney is a factor provided for in the regulations, the commissioner alone has the discretion to decide whether a prisoner qualifies for medical parole. See G. L. c. 127, § 119A (e); 501 Code Mass. Regs. § 17.06(2) (2022). 50

One of the factors that the commissioner properly

considered was the plaintiff's disciplinary history, as

indicated in his classification report and described in the

superintendent's recommendation. The plaintiff's early years of

incarceration were marked with extensive disciplinary

violations, resulting in numerous transfers of correctional

facilities due to his behavior. Although many of those

violations were drug and alcohol related, some of them could be

characterized as "violent," namely, the report of his assault on

a correction officer, his possession of "an eight and a half

inch pick-type weapon," and his having a large piece of rock on

his walker in 2014. Although these infractions are not recent,

it was not unreasonable to consider them. We may not substitute

our judgment as to the weight or value of the infractions for

that of the commissioner. Cf. Diatchenko II, 471 Mass. at 30

("The purpose of judicial review here is not to substitute a

judge's or an appellate court's opinion for the board's judgment

on whether a particular juvenile homicide offender merits

parole, because this would usurp impermissibly the role of the

board").

Similarly, it was not unreasonable to consider the

plaintiff's ability to perform seemingly all his daily life

functions using the accommodations provided to him, another

factor mentioned by the regulations. This indicates that he is 51

not bedridden and that he is able to perform tasks on his own,

which is relevant to his ability to "violat[e] the law" on his

release. G. L. c. 127, § 119A (e). As discussed supra, a

person who is confined to bed and unable to perform any tasks on

his or her own would be less able to violate the law than one

able to move around with a walker. This is not to say that

those who can perform some activities of daily living on their

own may not be released on medical parole. Nonetheless, the

consideration of this ability is a factor pertinent to the

commissioner's decision. The record indicated that a correction

officer observed the plaintiff walking "outside a lot with a

rollator [walker], at times quickly." It is not the fact that

accommodations were provided to the plaintiff that is relevant,

but his ability to function independently in society with proper

accommodations.

Further, it was not an abuse of discretion to consider the

severity and the facts of the plaintiff's crime for which he is

incarcerated as a factor in determining whether he would be a

risk to the safety of the public, which was included in both his

classification report and the superintendent's recommendation.

The statute does not exclude those who have been convicted of

murder in the first degree from receiving medical parole. G. L.

c. 127, § 119A. Nonetheless, where someone has been convicted

of the most serious crime, punished by a mandatory sentence of 52

life without the possibility of parole, the facts of that crime

are relevant to the determination whether the person will be a

risk to the safety of the public on release. G. L. c. 265,

§ 2 (a) (if convicted of murder in first degree, person "shall

be punished by imprisonment in the [S]tate prison for life and

shall not be eligible for parole").

Given the purpose of medical parole, a petitioner's refusal

to admit guilt should not be counted against him in the medical

parole context.41 See, e.g., Deal v. Massachusetts Parole Bd.,

484 Mass. 457, 469-470 (2020) (Gants, C.J., concurring), quoting

Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 837 (1996)

("although we did not reach the question, we recognized that due

process might forbid 'denial of parole solely because a

prisoner, who was otherwise fully qualified for release on

parole, did not acknowledge his guilt'"); Commonwealth v. Mills,

436 Mass. 387, 400 & n.9 (2002) ("a judge may not punish a

defendant for refusing to confess before sentencing" as it is

"impermissible [to] enhance[] a defendant's punishment for his

exercise of a constitutional right"). "Indeed, if a prisoner's

failure to acknowledge guilt alone were to suffice to support a

denial of parole, a prisoner wrongfully convicted of murder

41The commissioner's passing reference to the plaintiff "never agree[ing] with the facts of his conviction" does not invalidate the other, more prevalent factors discussed throughout the decisions. 53

. . . might never be paroled unless he or she falsely accepted

responsibility for a crime he or she never committed." Deal,

supra at 470. Nonetheless, the commissioner may consider a

petitioner's acceptance and acknowledgement of the facts of his

or her conviction in determining whether he or she will pose a

public safety risk on release, as suggesting some level of

reform or personal growth. See Mills, supra at 400 n.9 ("a

defendant's willingness to admit guilt is a proper factor for

consideration in more lenient sentencing").

The facts of the plaintiff's conviction in the present

case, notwithstanding its age, are a particularly important

factor to consider where he shot a stranger in the head with a

firearm from less than six inches away in the course of an armed

robbery. McCauley, 391 Mass. at 699. Even though his medical

condition likely would make it much more difficult to commit a

crime of this nature, it is not such that it would render him

incapable of using a firearm to kill another, or incapable of

committing various other crimes.

The plaintiff also points to the fact that, since he has

been prescribed oxycodone and morphine, he has not had any

disciplinary reports for illicit drug use. That the plaintiff

no longer is consuming unprescribed medication does not

alleviate completely the danger of his drug dependence. It is

fair to assume that if he is granted medical parole, his 54

consumption of pain medication will not be as restricted as in a

prison setting.42 This is particularly of concern where the

record indicates discipline for "accumulating meds."43

This is not to say that drug dependence alone, or concerns

surrounding illegal drug use, would suffice to suggest a public

safety risk or imply that a prisoner would not be able to live

and remain at liberty with the law if released. Nonetheless, in

this case, where the plaintiff himself stated at a hearing on a

motion to suppress that during the crime he was under the

influence of numerous substances, the plaintiff's drug

dependence closely relates to the risk that he poses to the

public on release, and his extensive disciplinary history

surrounding drug activity was an appropriate factor for the

commissioner to consider.

Putting that aside, the statute demands release where the

prisoner is "permanently incapacitated such that if the prisoner

42It also bears notice that the plaintiff, in the past (2008), was placed on mental health watch after making a "suicidal gesture" when he, in his own words, was "drunk on straight vodka" while being monitored in prison.

43We do not presume that any drug testing that could be ordered by the parole board on release could prevent a public safety risk posed by the plaintiff's substance use concerns. Of course, drug testing does not prevent an individual from consuming drugs; it merely enables the court or the parole board to remedy a violation after it already has occurred. It is for the parole board to revise, alter, or amend conditions of release if a prisoner is granted release pursuant to the statute. G. L. c. 127, § 119A (f). 55

is released the prisoner will live and remain at liberty without

violating the law and that the release will not be incompatible

with the welfare of society" (emphasis added). G. L. c. 127,

§ 119A (e). The statute does not require contemplation whether

the prisoner will commit the same crime, but, in a more general

sense, as discussed supra, requires the commissioner to consider

whether the prisoner's condition renders him or her unlikely to

violate the law, and whether release would be compatible with

the welfare of society.

The plaintiff shot and killed a stranger from within six

inches while under the influence of numerous substances.

McCauley, 391 Mass. at 699, 701. He committed this crime while

suffering from numbness in his hand. Id. at 699. In prison, he

has garnered extensive disciplinary reports, including refusing

to provide urine, possession of controlled substances and

contraband, participating in a drug transaction, accumulating

medication, assaulting a correction officer with a food tray,

and possession of a weapon. He suffered from a drug overdose

and made a "suicidal gesture" when impaired by alcohol. Despite

his admitted history with substance use concerns, in 2017, he

refused to participate in a drug screen recommended to address

those concerns. Although he is permanently incapacitated from a

medical perspective, he is able to perform nearly all daily

living activities with accommodations. The above factors 56

support the commissioner's decision that he would be unable to

remain at liberty without violating the law and that his release

would be incompatible with the welfare of society, and are

proper to be considered on remand along with the risk for

violence assessment.

Even so, we think it would be beneficial for the

commissioner to be more explicit about the factors considered

and her reasoning when making a determination whether to release

a prisoner on medical parole. Here, it appears that the

commissioner considered the above-mentioned factors, in addition

to the plaintiff's medical condition at the time of his

conviction, the medical assessment conducted by licensed

physicians, the plaintiff's medical parole plan, letters in

support of the plaintiff's release, and the opinions of the

victim's family and the district attorney's office. The

commissioner noted that she was "in receipt" of all the above

information, but failed to explain why she concluded that the

plaintiff did not meet the requirements of the statute and did

not mention the absence of a risk assessment as it relates to

meeting the requirements of the regulation. Such an explanation

is imperative not only so the prisoner may prepare a relevant

response, but also so the court may properly analyze whether the

determination is arbitrary or capricious. We urge the 57

commissioner to prepare a more detailed explanation of her

decision going forward.

5. Certiorari review under G. L. c. 249, § 4. Finally,

the defendants argue that the court lacks the authority to grant

medical parole on certiorari review or to order the commissioner

to grant a prisoner medical parole. The plaintiff argues that

the court does have this authority, pointing to a handful of

Superior Court judges who already have done so and comparing the

grant of parole, a discretionary act, to the grant of medical

parole, which the plaintiff characterizes as a nondiscretionary

act. Although we are remanding the petition for the

commissioner to consider a risk for violence assessment to be

conducted in accordance with the regulations, we address this

issue to provide clarification going forward. Lynn v. Murrell,

489 Mass. 579, 583 (2022).

As is a decision by the parole board to grant parole,

"[t]he decision [to grant medical parole] is a discretionary one

for the [commissioner] 'with which, if otherwise

constitutionally exercised, the judiciary may not interfere.'"

Diatchenko II, 471 Mass. at 21, quoting Commonwealth v. Cole,

468 Mass. 294, 302 (2014). Again, the commissioner has the

discretion to determine whether the petitioner poses a public

safety risk on release: a multifaceted decision considering a

wide array of relevant factors. On review pursuant to § 4 of a 58

decision regarding medical parole, an appellate court or a judge

of the Superior Court does not have the power to substitute its

judgment for that of the commissioner regarding whether a

prisoner merits release on medical parole. To do so would

"usurp impermissibly the role of the" commissioner and would

violate art. 30 of the Massachusetts Declaration of rights

requiring strict separation of judicial and executive powers.

See Diatchenko II, supra at 28, 30.44

We recognize the plaintiff's assertions that several

Superior Court judges already have taken this action. This

decision is to be applied to actions in certiorari decided after

the issuance of this decision. Going forward, judges who review

the commissioner's decision to grant or deny medical parole may

not independently grant or deny medical parole, nor may they

44In Diatchenko II, the court held in the parole context that a reviewing court may not reverse a decision by the parole board even where it finds an abuse of discretion; rather, it must remand the case to the board for rehearing. Id. at 31. In making this determination, the court addressed the dissent's concern that "without the affirmative power to grant parole after a denial by the board, this limited form of judicial review has the potential to result in an endless cycle of board hearings and actions for certiorari, until the board ultimately grants parole." Id. at 31 n.33. The court expressed that it was unlikely this would happen, as such decisions would be rare, given the deference that is afforded to the board and the limited scope of judicial review. Id. If that were to occur, the court "assume[d] that at a new hearing, the board [would] remedy the error or errors that caused the matter to be remanded." Id. We think that a remand to the commissioner in a medical parole case would follow the same pattern, for the reasons set forth in Diatchenko II. Id. 59

command the commissioner to grant or deny medical parole. Where

a judge finds that the commissioner's decision is arbitrary or

capricious, such that there is no reasonable ground to support

it or because it is not in compliance with the regulations, the

judge must remand the petition to the commissioner for

reconsideration of the prisoner's petition. A remanding judge

should plainly indicate what, within the commissioner's original

decision, is arbitrary or capricious or violative of the medical

parole regulations, so that the commissioner may squarely

address the problem identified by the judge.

Conclusion. Title 501 Code Mass. Regs. § 17.02 does not

impermissibly narrow the scope of G. L. c. 127, § 119A, when

applied properly by the commissioner. In addition, a judge

reviewing a decision granting or denying medical parole may not

substitute his or her judgment for the commissioner and order

that medical parole be granted. Instead, the proper procedure

is to remand to the commissioner for reconsideration consistent

with the opinion of the reviewing court. Determining that the

commissioner's decision to deny the plaintiff medical parole was

arbitrary and capricious because it was made without the benefit

of a standardized risk assessment required by the regulation, we

remand the matter to the commissioner for reconsideration of the

petition and require that a standardized assessment be

conducted. 60

So ordered. BUDD, C.J. (concurring). I agree that the regulations

concerning the definition of "debilitating condition" as found

in 501 Code Mass. Regs. § 17.02 (2019) are valid under the

medical parole statute. I further agree that the matter must be

remanded so that the statutorily mandated risk for violence

assessment may be completed and taken into consideration.

However, in light of the ordered remand, it is my view that the

court should refrain from analyzing the decision of the

Commissioner of Correction (commissioner) at this juncture.

As the court acknowledges, at the time of the plaintiff's

request for medical parole, 501 Code Mass. Regs. § 17.03(7)(d)

(2019), required that an assessment of a petitioner's risk for

violence "utilize standardized assessment tools that measure

clinical prognosis, such as the LS/CMI [(Level of Service/Case

Management Inventory)] assessment tool and/or COMPAS

[(Correctional Offender Management Profiling for Alternative

Sanctions)], as well as risk level for classification evaluation

purposes." The plaintiff's potential risk for violence is the

crux of his appeal; thus, such an assessment would have been

particularly relevant to the commissioner's evaluation of the

petition. Nevertheless, the court goes on to analyze in

piecemeal fashion the commissioner's evaluation of the

information she had at her disposal without regard for the fact

that a risk for violence assessment was not a factor in her 2

decision. Prematurely providing an analysis of the

commissioner's decision risks depriving the defendant of an

opportunity to have all of the statutorily required factors

evaluated in a comprehensive manner because it sends a message

that the factors need not be considered in their totality.

Having said that, and keeping in mind that the arbitrary

and capricious standard of review requires a rational basis for

the commissioner's decision, I note a few areas where the

commissioner's decision appears to lack support. First, to the

extent that the commissioner relies on the plaintiff's

disciplinary history as an indicator of future risk to public

safety, I do not see a rational basis to conclude that the

plaintiff is unlikely to live without violating the law based on

the vague and dated incidents contained in the plaintiff's

disciplinary record.1 The only reported incidents in the record

1 Although it is unclear whether the commissioner gave any weight to the sporadic instances of institutional rule violations (e.g., being out of place in 2007 and showering during an unauthorized time and damaging a mattress in 2016), to the extent she did base her decision on these technical rule violations as indicators of an inability to live within the law, such a conclusion is without rational support. Not only are these instances too old in time to be useful, but even if they were recent, at most they suggest the potential for technical violations of any conditions of release that may be set by the parole board, a process governed separately from the commissioner's responsibility and authority under G. L. c. 127, § 119A (e). See Emma v. Massachusetts Parole Bd., 488 Mass. 449, 458-459 (2021) (parole board has "same authority over medical parolees as it does over standard parolees" and retains 3

suggesting the potential for violence is an infraction from

August 1990, where the plaintiff was found in possession of "an

eight and a half inch pick-type weapon" concealed in his

mattress. As this infraction was over twenty years ago, it is

too stale to be relevant to a decision on the plaintiff's

petition.2 Absent any recent infractions that suggest a current

risk for violent or unlawful behavior, the plaintiff's

disciplinary report did not contain information to rationally

support the commissioner's conclusion that, if released, the

plaintiff likely would not live in the community without

violating the law. Similarly, the commissioner's reference to

the fact that the plaintiff "never agreed with the facts of his

conviction," without more, is not specific evidence of likely

recidivism.

Requiring the commissioner to base her decision on recent

information to assess risk is rational. For example, in the

context of the Sex Offender Registry Board (SORB), tasked with

"determining the level of risk of reoffense and the degree of

discretion "not to initiate revocation proceedings for a 'technical violation'").

2 The certified record indicates that the plaintiff had a rock on his walker in 2014 and also includes a reference to "assaulting a [correction officer] with a food tray." No further details were provided regarding the latter incident, including the date that it occurred. However, the location of the referenced incident within the record suggests it dates back to the 1980s. 4

dangerousness posed to the public" for individuals who come

before SORB for classification review, G. L. c. 6, § 178K (1),

we have stated that "[e]nsuring that a sex offender's final

classification reflects a level of risk and dangerousness that

is current at a time when the offender's release is imminent

furthers both SORB's interest, and that of the public," Doe, Sex

Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472

Mass. 475, 488 (2015). To that end, we have held that

information predating SORB's classification consideration by

three years is too stale to be reasonably relied on for a

determination of risk to public safety. Doe, Sex Offender

Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass.

492, 501 (2015). Accord Doe, Sex Offender Registry Bd. No. 6904

v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 78 (2012)

(risk and recidivism information four years prior to release was

stale). Although the SORB classification process differs in

many ways from the medical parole process, the same sound logic

as to how to assess rationally present and future risk to public

safety applies to both. This is true especially where the

concept of medical parole is premised on "the fact that elderly

and infirm prisoners are 'considered among the least likely to

re-offend when released.'" Buckman v. Commissioner of

Correction, 484 Mass. 14, 21 (2020), quoting Brownsberger,

Extraordinary Medical Release in the Criminal Justice Package 5

(June 30, 2018), https://willbrownsberger.com

/extraordinary-medical-release [https://perma.cc/K9SJ-MLPW].

Similarly, the plaintiff's disciplinary record indicates

that his substance use disorder has been under control for

almost a decade. Thus, to the extent the commissioner relies on

this history to conclude that the plaintiff poses a public

safety risk, the record offers no rational support for a present

or future risk of substance use disorder. Moreover, reliance on

this historical evidence of substance use disorder also ignores

the statutory provisions authorizing and directing both the

commissioner and the parole board to implement and maintain

appropriate supervision conditions, including drug testing.3 See

G. L. c. 127, § 119A (e), (f). See also Malloy v. Department of

Correction, 487 Mass. 482, 486 & n.9 (2021) (noting that "the

parole board must take steps to prepare for adequate supervision

of the prisoner," including, but not limited to, "supervision

for drugs and alcohol"). Failing to consider an applicable

3 Where the purported concern for this plaintiff is to prevent overuse of medications properly prescribed by a physician, consideration of drug testing as a condition of release may even fall within the Department of Correction's burden to produce a "proposed course of treatment" within the medical parole plan. G. L. c. 127, § 119A (a). See Buckman, 484 Mass. at 29. 6

statutory provision that would ameliorate any potential relapse

concerns is arbitrary and capricious.4

Finally, because in the medical parole context even a

single instance of remand and reconsideration may consume time a

petitioner does not have, I urge both the commissioner and any

reviewing Superior Court judge to move expeditiously in this

process, lest the right to judicial review, and the statute's

purpose itself, be rendered illusory by unnecessary delays. Cf.

Malloy, 487 Mass. at 492 ("For terminally ill prisoners entitled

to spend their final days in freedom, each day is critical");

Harmon v. Commissioner of Correction, 487 Mass. 470, 478 (2021)

(commissioner's "inexplicable delay" in acting on petition for

reconsideration "effectively eliminated [petitioner]'s

opportunity to seek judicial review before his death").

4 We need not speculate whether the commissioner is aware of the role and purpose of § 119A (e) and (f), as the examples provided postargument show that she has utilized these provisions to condition release in other cases. Thus, any attenuated concern over the plaintiff's potential for relapse seems patently arbitrary where the commissioner did not avail herself of § 119A (e) or (f) in this case, but did so in others. Cf. Fafard v. Conversation Comm'n of Reading, 41 Mass. App. Ct. 565, 568 (1996) ("agency has acted arbitrarily because the basis for action is not uniform, and, it follows, is not predictable").