McCauley v. Superintendent, Massachusetts Correctional Institution, Norfolk ( 2023 )

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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.
27at 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
debilitating that the prisoner does not pose a public safety
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").