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SJC-13437
CONRAD MURPHY vs. COMMISSIONER OF CORRECTION & others.1
Suffolk. October 2, 2023. - December 14, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Parole. Sex Offender. Commissioner of Correction. Constitutional Law, Parole, Sex offender. Due Process of Law, Parole, Sex offender, Commitment. Practice, Civil, Sex offender, Civil commitment, Action in nature of certiorari. Statute, Construction.
Civil action commenced in the Superior Court Department on February 15, 2022.
The case was heard by Catherine H. Ham, J., on motions for judgment on the pleadings.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Mary P. Murray for the defendants. Matthew J. Koes for the plaintiff. Rebecca Rose, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
1 Superintendent, Massachusetts Treatment Center; and Secretary of the Executive Office of Public Safety and Security. 2
GAZIANO, J. The issues before this court stem from a
policy of the Department of Correction (DOC) declaring that
civilly committed individuals categorically are ineligible for
medical parole under G. L. c. 127, § 119A. The plaintiff, a
civilly committed sexually dangerous person, petitioned the DOC
for medical parole. The DOC denied his petition, writing: "Per
the DOC's Medical Parole Policy . . . persons awaiting trial and
persons civilly committed pursuant to [G. L.] c. 123A shall not
be deemed inmates for purpose of [determining eligibility for
medical parole under] this regulation, therefore [the plaintiff]
is not eligible for medical parole." After the plaintiff sought
review of this denial pursuant to G. L. c. 249, § 4, a Superior
Court judge allowed his motion for judgment on the pleadings,
concluding that his due process rights had been violated. The
judge ordered the DOC to conduct a hearing on the plaintiff's
medical parole petition. We reverse the judge's order and hold
that the medical parole statute applies only to committed
offenders serving a criminal sentence, not civilly committed
sexually dangerous persons. Furthermore, sexually dangerous
persons may seek release due to terminal illness or physical or
mental incapacity under G. L. c. 123A, § 9 (§ 9); denying them 3
an additional avenue for relief by means of the medical parole
statute does not offend substantive due process.2
1. Background. a. Criminal case. The plaintiff was
convicted of indecent assault and battery in September 1987.
After two additional convictions for sexually violent conduct,
the plaintiff pleaded guilty to charges of mayhem, indecent
assault and battery, assault with intent to rape, armed assault
with intent to murder, and assault and battery with a dangerous
weapon in December 1989. The 1989 convictions arose from an
incident in which the plaintiff induced a sixteen year old girl
to enter his apartment, beat her with a hammer, threatened to
kill her, and sexually assaulted her. He was sentenced to
concurrent prison terms of from fourteen to seventeen years on
the convictions of mayhem, assault with intent to rape, and
armed assault with intent to murder; a concurrent term of from
three to five years on the conviction of indecent assault and
battery; and a term of from eight to ten years, suspended with
three years of probation, on the conviction of assault and
battery with a dangerous weapon.
b. Civil commitment. Near the end of the plaintiff's
sentence, the Commonwealth moved to commit him as a sexually
dangerous person. The plaintiff was adjudged to be a sexually
2 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services in support of the plaintiff. 4
dangerous person on August 6, 2010, and civilly committed to the
Massachusetts Treatment Center (treatment center) for a period
of from one day to life. See G. L. c. 123A, § 14 (d). He since
has filed two petitions for examination and discharge under § 9,
one in 2016 and the other in 2020. Both times, a jury found
that the plaintiff remained a sexually dangerous person.
c. Medical parole petition. In January 2022, the
plaintiff also filed a petition pursuant to G. L. c. 127, § 119A
(medical parole statute). Due to the plaintiff's health issues,
including lymphedema (i.e., swelling caused by lymphatic system
damage or blockage), venous insufficiency, and spinal stenosis,
he alleged that his medical condition had deteriorated to the
point of physical incapacity. In support of his petition, the
plaintiff submitted medical records, including his treatment
plan, laboratory results, and medical status forms from October
2021 to January 2022. The DOC denied the plaintiff's medical
parole petition the day after he submitted it, citing the DOC's
policy that those awaiting trial or those civilly committed
pursuant to G. L. c. 123A are ineligible for medical parole.3
3 The DOC policy provides that although "an inmate may be eligible for medical parole due to terminal illness or permanent incapacitation," 103 DOC § 603.02(A) (2022), persons who have been civilly committed (such as sexually dangerous persons) are not included within the definition of an "inmate." See 103 DOC § 603.01 (2022) ("Persons who are awaiting trial and persons civilly committed shall not be deemed inmates for the purposes of this policy"). Title 501 Code Mass. Regs. § 17.02 (2022), a 5
The plaintiff sought review of the DOC's denial in the
Superior Court pursuant to G. L. c. 249, § 4, naming the
Commissioner of Correction (commissioner), the superintendent of
the treatment center, and the Secretary of the Executive Office
of Public Safety and Security as defendants in his petition.
After the parties filed cross motions for judgment on the
pleadings, in November 2022 the judge granted the plaintiff's
motion in part, denied the defendants' motion, and ordered that
the DOC conduct a hearing to consider the merits of the
plaintiff's medical parole petition.
The defendants timely appealed from the judge's decision to
the Appeals Court. Thereafter, the judge granted a request by
the defendants to stay her order, pending the defendants'
appeal. We transferred the appeal to this court on our own
motion.
2. Discussion. The plaintiff appeals from the denial of
medical parole under G. L. c. 127, § 119A (g), which provides
that a prisoner who is aggrieved by such a denial may petition
for relief by filing an action in the nature of certiorari
pursuant to G. L. c. 249, § 4. Certiorari is a "limited
regulation promulgated by the Executive Office of Public Safety and Security pursuant to G. L. c. 127, § 119A (h), similarly provides that "[p]ersons who are awaiting trial and persons civilly committed shall not be deemed prisoners," as that term is used under the medical parole statute. 6
procedure" reserved for correcting "substantial errors of law"
(citation omitted). Abner A. v. Massachusetts Interscholastic
Athletic Ass'n, 490 Mass. 538, 546 (2022). While "[t]he proper
standard of review under the certiorari statute is flexible and
case specific, . . . ultimately [the review must] turn on
whether the agency's decision was arbitrary and capricious,
unsupported by substantial evidence, or otherwise an error of
law" (citation omitted). Langan v. Board of Registration in
Med., 477 Mass. 1023, 1025 (2017). Here, whether the DOC's
decision to deny the plaintiff's petition for medical parole was
based on an error of law depends on a reading of the statutory
schemes at issue -- G. L. c. 123A and G. L. c. 127, § 119A.
a. Applicable law. General Laws c. 123A (SDP statute) is
a civil statute that sets out the care, treatment, and
rehabilitation of sexually dangerous persons. See Dutil,
petitioner, 437 Mass. 9, 20 (2002) ("We have repeatedly held
that the Legislature intended G. L. c. 123A as a civil
statute"). This statute balances the dual concerns of
protecting the public, on the one hand, and preserving
individual liberty, on the other. Chapman, petitioner, 482
Mass. 293, 308 (2019). See LeSage, petitioner, 488 Mass. 175,
181-182 (2021) (government has legitimate and compelling
interest in protecting public from those likely to be sexually
dangerous). 7
Once an individual is found to be a sexually dangerous
person, that individual may be released from civil commitment
only after a finding that the individual no longer is sexually
dangerous. See Conlan v. Commonwealth, 383 Mass. 871, 872
(1981). See also G. L. c. 123A, § 14 (d) (sexually dangerous
person "shall be committed to the treatment center . . . until
discharged pursuant to the provisions of [§] 9"). Under § 9, a
sexually dangerous person may file an annual petition for
examination and discharge. See G. L. c. 123A, § 9. See also
Trimmer, petitioner, 375 Mass. 588, 591 (1978) (purpose of § 9
is to provide "periodic redeterminations" whether individual
remains sexually dangerous). Section 9 does not set out an
explicit timeline under which this petition must be heard,
although a petitioner has an express right to a "speedy
hearing." G. L. c. 123A, § 9 ("The petitioner shall have a
right to a speedy hearing on a date set by the administrative
justice of the superior court"). See LeSage, 488 Mass. at 180.
See also Chapman, 482 Mass. at 302 (noting that it may take
years to schedule § 9 petition for trial).
Once a sexually dangerous person files a § 9 petition, the
judge then orders examination of the petitioner by two qualified
examiners. See G. L. c. 123A, § 9. Qualified examiners are
experts who, after evaluating the petitioner, opine whether the
petitioner remains sexually dangerous. See Johnstone, 8
petitioner, 453 Mass. 544, 553 (2009). See also Chapman, 482
Mass. at 303. Qualified examiners serve a uniquely "central"
role in the commitment process, and the Legislature requires
them to possess certain minimum qualifications. See Johnstone,
supra at 551-552 ("The statutory scheme therefore expressly sets
the qualified examiners apart from other sources of expert
evidence"). Qualified examiners consider a variety of factors
in their assessments whether an individual remains sexually
dangerous, including a sexually dangerous person's age and
medical status. See Chapman, supra at 297.
If both qualified examiners opine that an individual is no
longer sexually dangerous, that individual must be discharged;
if at least one qualified examiner instead opines that an
individual remains sexually dangerous, a trial is held on the
§ 9 petition. See LeSage, 488 Mass. at 180. If the matter
proceeds to trial, the qualified examiner reports are admissible
at trial. G. L. c. 123A, § 9. The Commonwealth must then prove
beyond a reasonable doubt that the petitioner remains sexually
dangerous at the time of trial. See LeSage, supra at 180-181.
See also Commonwealth v. Fay, 467 Mass. 574, 585 n.13, cert.
denied, 574 U.S. 858 (2014). There is no provision for
conditional release once a sexually dangerous person is found no
longer sexually dangerous. See G. L. c. 123A, § 14 (d). See
also Commonwealth v. Bruno, 432 Mass. 489, 502 (2000). 9
Petitioners may move the court to expedite the date of the
§ 9 hearing, which the court then may allow pursuant to its
inherent authority. See Commonwealth v. Rosa, 491 Mass. 369,
372-373 (2023) (courts have wide discretion on setting timeline
for when case goes to trial); Bower v. Bournay-Bower, 469 Mass.
690, 699 (2014) ("courts possess inherent power to 'manage their
own affairs so as to achieve the orderly and expeditious
disposition of cases'" [citation omitted]). See also Rule
20(2)(c), (3) of the Rules of the Superior Court (2018) (parties
may request "[i]mmediate scheduling of a prompt and firm trial
date").
Different factors motivated the Legislature in enacting the
medical parole statute in 2018. Specifically, the Legislature
was concerned with several trends, notably, "the aging prison
population, the rising cost of health care, and the fact that
elderly infirm prisoners are 'considered among the least likely
to re-offend when released'" (citation omitted). Buckman v.
Commissioner of Correction, 484 Mass. 14, 21 (2020). See Harmon
v. Commissioner of Correction, 487 Mass. 470, 472 (2021). Under
the medical parole statute, prisoners are eligible for medical
parole if they are either terminally ill or permanently
incapacitated. See G. L. c. 127, § 119A (b). A prisoner or
authorized person may file a petition with either the
superintendent of the correctional facility or the sheriff in 10
charge of the house of correction or jail where the prisoner is
serving his sentence. See Emma v. Massachusetts Parole Bd., 488
Mass. 449, 452 (2021), citing G. L. c. 127, § 119A (c) (1),
(d) (1). After receiving a petition, the superintendent or
sheriff has twenty-one days to consider the petition and make a
recommendation to the commissioner. Emma, supra. The
commissioner then has forty-five days to issue a written
decision accompanied with a statement of reasons. See id.,
citing G. L. c. 127, § 119A (e). If the petition is granted,
the prisoner is then released subject to any necessary
conditions. See Emma, supra at 453. See also G. L. c. 127,
§ 119A (f). If the petition is denied, the prisoner may seek
certiorari review. See G. L. c. 127, § 119A (g).
b. Statutory interpretation. The issue before this court
is whether the medical parole statute applies to civilly
committed sexually dangerous persons. This is not the first
time we have been called on to interpret the medical parole
statute for purposes of determining its applicability to a
particular class of persons. In Harmon, 487 Mass. at 478, we
addressed whether the medical parole statute applied to pretrial
detainees. We held it did not. Id. at 481. We began with
examining the statute's plain language and found the term
"prisoner" ambiguous. Id. at 479. After considering the
Legislature's intent in enacting this statute, we held that the 11
"most important term" in the statute was not "prisoner" but,
rather, "parole." Id. Based on the ordinary definition of
parole, we held that the medical parole statute applied only to
prisoners eligible for ordinary parole. Id. at 480.4 We further
reasoned that because pretrial detainees had an alternative
avenue to seek relief, this interpretation was consistent with
the purpose underlying the medical parole statute. See id.
(Legislature was concerned with aging prison population whose
sole recourse for release was executive clemency).
Our interpretation of the medical parole statute in Harmon
controls the outcome here. Simply put, sexually dangerous
persons are ineligible for ordinary parole. See Bruno, 432
Mass. at 502 (G. L. c. 123A "does not provide less restrictive
alternatives to commitment"). Thus, like pretrial detainees,
sexually dangerous persons are not eligible for medical parole
under G. L. c. 127, § 119A. Furthermore, because sexually
dangerous persons "who develop terminal or debilitating medical
issues . . . have another avenue by which to seek relief" --
that is, § 9 -- excluding sexually dangerous persons from
eligibility for medical parole does not frustrate the
Legislature's purpose in enacting G. L. c. 127, § 119A. Harmon,
4 The plaintiff argues that the prisoner definition in G. L. c. 125, § 1 (m), should control our interpretation of the medical parole statute. That argument was addressed and found unavailing in Harmon, 487 Mass. at 479. 12
487 Mass. at 480. See Chapman, 482 Mass. at 297 (former
sexually dangerous person released from civil commitment based
on qualified examiners' findings that his age and medical
condition rendered him no longer sexually dangerous).
Accordingly, because civilly committed sexually dangerous
persons are categorically ineligible for medical parole under
G. L. c. 127, § 119A, the DOC's denial of the plaintiff's
petition for medical parole was not an error of law.
c. Substantive due process. The judge concluded in her
order, and the plaintiff argues on appeal, that the plaintiff's
substantive due process rights were violated when the DOC failed
to consider the plaintiff's medical parole petition on its
merits. It bears noting at the outset that we have repeatedly
held that the civil commitment of sexually dangerous persons
under the SDP statute does not violate substantive due process
under the State or Federal constitution. See Commonwealth v.
Knapp, 441 Mass. 157, 166 (2004) ("we conclude that the
confinement of [a sexually dangerous person] is narrowly
tailored to the Legislature's expressed interest in protecting
the public from harm by persons convicted of sexual offenses who
are likely to be sexually dangerous"). See also LeSage, 488
Mass. at 181, 190; Commonwealth v. G.F., 479 Mass. 180, 192-193
(2018); Bruno, 432 Mass. at 504. Neither does the categorical
ineligibility of civilly committed sexually dangerous persons to 13
petition for medical parole under G. L. c. 127, § 119A, violate
their due process rights.
"Substantive due process prohibits governmental conduct
that 'shocks the conscience' or infringes on rights 'implicit in
the concept of ordered liberty'" (citation omitted). G.F., 479
Mass. at 191. The nature of the right at stake determines the
standard of review we apply. See Vega v. Commonwealth, 490
Mass. 226, 231 (2022). Because the process outlined in § 9
infringes on a fundamental right -- freedom from physical
restraint -- we apply strict scrutiny. Id. See Kligler v.
Attorney Gen., 491 Mass. 38, 55 (2022). To withstand strict
scrutiny, "government conduct that infringes on a fundamental
right must be narrowly tailored to further a compelling and
legitimate government interest." LeSage, 488 Mass. at 181. See
Commonwealth v. DiBenedetto, 491 Mass. 390, 401-402 (2023). The
government interest animating the SDP statute is the protection
of the public from harm by persons likely to be sexually
dangerous. See LeSage, supra at 181-182. See also Bruno, 432
Mass. at 504 (SDP statute reflects "Legislature's concern with
protecting the public from harm by persons who are soon to be
released and who are likely to be sexually dangerous").
The judge held that § 9 violates the plaintiff's
substantive due process rights due to both the plaintiff's
inability to petition for release solely based on his medical 14
condition and the length of time the plaintiff must wait to be
heard on his § 9 petition. We disagree. If a sexually
dangerous person can show that his medical condition is so
compromised that he no longer is sexually dangerous, § 9
provides that such an individual will be released. For
instance, in Chapman, 482 Mass. at 297, a sexually dangerous
person was found no longer sexually dangerous due to "the
combination of [his] age and his deteriorating physical
condition resulting in him no longer being able to manage
independently." Moreover, the plaintiff may seek expedited
review of a decision denying release based on terminal illness
or physical or mental incapacity.5 See part 2.a, supra.
3. Conclusion. For the reasons discussed, we conclude
that civilly committed sexually dangerous persons categorically
are ineligible for medical parole under G. L. c. 127, § 119A,
and that this ineligibility does not violate sexually dangerous
persons' due process rights. Accordingly, the order granting
the plaintiff's motion for judgment on the pleadings is
reversed, and judgment shall enter for the defendants.
So ordered.
5 Here, the plaintiff has not attempted to expedite his § 9 petition.