Murphy v. Commissioner of Correction

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SJC-13437

    CONRAD MURPHY   vs.   COMMISSIONER OF CORRECTION & others.1



        Suffolk.     October 2, 2023. - December 14, 2023.

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


Parole. Sex Offender. Commissioner of Correction.
     Constitutional Law, Parole, Sex offender. Due Process of
     Law, Parole, Sex offender, Commitment. Practice, Civil,
     Sex offender, Civil commitment, Action in nature of
     certiorari. Statute, Construction.



     Civil action commenced in the Superior Court Department on
February 15, 2022.

     The case was heard by Catherine H. Ham, J., on motions for
judgment on the pleadings.

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


     Mary P. Murray for the defendants.
     Matthew J. Koes for the plaintiff.
     Rebecca Rose, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.




    1  Superintendent, Massachusetts Treatment Center; and
Secretary of the Executive Office of Public Safety and Security.
                                                                    2


    GAZIANO, J.   The issues before this court stem from a

policy of the Department of Correction (DOC) declaring that

civilly committed individuals categorically are ineligible for

medical parole under G. L. c. 127, § 119A.   The plaintiff, a

civilly committed sexually dangerous person, petitioned the DOC

for medical parole.   The DOC denied his petition, writing:     "Per

the DOC's Medical Parole Policy . . . persons awaiting trial and

persons civilly committed pursuant to [G. L.] c. 123A shall not

be deemed inmates for purpose of [determining eligibility for

medical parole under] this regulation, therefore [the plaintiff]

is not eligible for medical parole."   After the plaintiff sought

review of this denial pursuant to G. L. c. 249, § 4, a Superior

Court judge allowed his motion for judgment on the pleadings,

concluding that his due process rights had been violated.     The

judge ordered the DOC to conduct a hearing on the plaintiff's

medical parole petition.   We reverse the judge's order and hold

that the medical parole statute applies only to committed

offenders serving a criminal sentence, not civilly committed

sexually dangerous persons.   Furthermore, sexually dangerous

persons may seek release due to terminal illness or physical or

mental incapacity under G. L. c. 123A, § 9 (§ 9); denying them
                                                                  3


an additional avenue for relief by means of the medical parole

statute does not offend substantive due process.2

     1.   Background.   a.   Criminal case.   The plaintiff was

convicted of indecent assault and battery in September 1987.

After two additional convictions for sexually violent conduct,

the plaintiff pleaded guilty to charges of mayhem, indecent

assault and battery, assault with intent to rape, armed assault

with intent to murder, and assault and battery with a dangerous

weapon in December 1989.     The 1989 convictions arose from an

incident in which the plaintiff induced a sixteen year old girl

to enter his apartment, beat her with a hammer, threatened to

kill her, and sexually assaulted her.     He was sentenced to

concurrent prison terms of from fourteen to seventeen years on

the convictions of mayhem, assault with intent to rape, and

armed assault with intent to murder; a concurrent term of from

three to five years on the conviction of indecent assault and

battery; and a term of from eight to ten years, suspended with

three years of probation, on the conviction of assault and

battery with a dangerous weapon.

     b.   Civil commitment.   Near the end of the plaintiff's

sentence, the Commonwealth moved to commit him as a sexually

dangerous person.   The plaintiff was adjudged to be a sexually


     2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services in support of the plaintiff.
                                                                    4


dangerous person on August 6, 2010, and civilly committed to the

Massachusetts Treatment Center (treatment center) for a period

of from one day to life.    See G. L. c. 123A, § 14 (d).    He since

has filed two petitions for examination and discharge under § 9,

one in 2016 and the other in 2020.    Both times, a jury found

that the plaintiff remained a sexually dangerous person.

     c.   Medical parole petition.   In January 2022, the

plaintiff also filed a petition pursuant to G. L. c. 127, § 119A

(medical parole statute).   Due to the plaintiff's health issues,

including lymphedema (i.e., swelling caused by lymphatic system

damage or blockage), venous insufficiency, and spinal stenosis,

he alleged that his medical condition had deteriorated to the

point of physical incapacity.   In support of his petition, the

plaintiff submitted medical records, including his treatment

plan, laboratory results, and medical status forms from October

2021 to January 2022.   The DOC denied the plaintiff's medical

parole petition the day after he submitted it, citing the DOC's

policy that those awaiting trial or those civilly committed

pursuant to G. L. c. 123A are ineligible for medical parole.3


     3 The DOC policy provides that although "an inmate may be
eligible for medical parole due to terminal illness or permanent
incapacitation," 103 DOC § 603.02(A) (2022), persons who have
been civilly committed (such as sexually dangerous persons) are
not included within the definition of an "inmate." See 103 DOC
§ 603.01 (2022) ("Persons who are awaiting trial and persons
civilly committed shall not be deemed inmates for the purposes
of this policy"). Title 501 Code Mass. Regs. § 17.02 (2022), a
                                                                   5


    The plaintiff sought review of the DOC's denial in the

Superior Court pursuant to G. L. c. 249, § 4, naming the

Commissioner of Correction (commissioner), the superintendent of

the treatment center, and the Secretary of the Executive Office

of Public Safety and Security as defendants in his petition.

After the parties filed cross motions for judgment on the

pleadings, in November 2022 the judge granted the plaintiff's

motion in part, denied the defendants' motion, and ordered that

the DOC conduct a hearing to consider the merits of the

plaintiff's medical parole petition.

    The defendants timely appealed from the judge's decision to

the Appeals Court.   Thereafter, the judge granted a request by

the defendants to stay her order, pending the defendants'

appeal.   We transferred the appeal to this court on our own

motion.

    2.    Discussion.   The plaintiff appeals from the denial of

medical parole under G. L. c. 127, § 119A (g), which provides

that a prisoner who is aggrieved by such a denial may petition

for relief by filing an action in the nature of certiorari

pursuant to G. L. c. 249, § 4.   Certiorari is a "limited




regulation promulgated by the Executive Office of Public Safety
and Security pursuant to G. L. c. 127, § 119A (h), similarly
provides that "[p]ersons who are awaiting trial and persons
civilly committed shall not be deemed prisoners," as that term
is used under the medical parole statute.
                                                                    6


procedure" reserved for correcting "substantial errors of law"

(citation omitted).    Abner A. v. Massachusetts Interscholastic

Athletic Ass'n, 

, 546 (2022).    While "[t]he proper

standard of review under the certiorari statute is flexible and

case specific, . . . ultimately [the review must] turn on

whether the agency's decision was arbitrary and capricious,

unsupported by substantial evidence, or otherwise an error of

law" (citation omitted).    Langan v. Board of Registration in

Med., 

 (2017).     Here, whether the DOC's

decision to deny the plaintiff's petition for medical parole was

based on an error of law depends on a reading of the statutory

schemes at issue -- G. L. c. 123A and G. L. c. 127, § 119A.

    a.   Applicable law.    General Laws c. 123A (SDP statute) is

a civil statute that sets out the care, treatment, and

rehabilitation of sexually dangerous persons.    See Dutil,

petitioner, 

 (2002) ("We have repeatedly held

that the Legislature intended G. L. c. 123A as a civil

statute").    This statute balances the dual concerns of

protecting the public, on the one hand, and preserving

individual liberty, on the other.    Chapman, petitioner, 

 (2019).     See LeSage, petitioner, 

,

181-182 (2021) (government has legitimate and compelling

interest in protecting public from those likely to be sexually

dangerous).
                                                                     7


    Once an individual is found to be a sexually dangerous

person, that individual may be released from civil commitment

only after a finding that the individual no longer is sexually

dangerous.    See Conlan v. Commonwealth, 

(1981).     See also G. L. c. 123A, § 14 (d) (sexually dangerous

person "shall be committed to the treatment center . . . until

discharged pursuant to the provisions of [§] 9").     Under § 9, a

sexually dangerous person may file an annual petition for

examination and discharge.     See G. L. c. 123A, § 9.   See also

Trimmer, petitioner, 

 (1978) (purpose of § 9

is to provide "periodic redeterminations" whether individual

remains sexually dangerous).     Section 9 does not set out an

explicit timeline under which this petition must be heard,

although a petitioner has an express right to a "speedy

hearing."    G. L. c. 123A, § 9 ("The petitioner shall have a

right to a speedy hearing on a date set by the administrative

justice of the superior court").     See LeSage, 488 Mass. at 180.

See also Chapman, 

 (noting that it may take

years to schedule § 9 petition for trial).

    Once a sexually dangerous person files a § 9 petition, the

judge then orders examination of the petitioner by two qualified

examiners.    See G. L. c. 123A, § 9.   Qualified examiners are

experts who, after evaluating the petitioner, opine whether the

petitioner remains sexually dangerous.     See Johnstone,
                                                                     8


petitioner, 

 (2009).      See also Chapman, 

.    Qualified examiners serve a uniquely "central"

role in the commitment process, and the Legislature requires

them to possess certain minimum qualifications.     See 

 ("The statutory scheme therefore expressly sets

the qualified examiners apart from other sources of expert

evidence").    Qualified examiners consider a variety of factors

in their assessments whether an individual remains sexually

dangerous, including a sexually dangerous person's age and

medical status.    See 

.

    If both qualified examiners opine that an individual is no

longer sexually dangerous, that individual must be discharged;

if at least one qualified examiner instead opines that an

individual remains sexually dangerous, a trial is held on the

§ 9 petition.    See LeSage, 488 Mass. at 180.   If the matter

proceeds to trial, the qualified examiner reports are admissible

at trial.     G. L. c. 123A, § 9.   The Commonwealth must then prove

beyond a reasonable doubt that the petitioner remains sexually

dangerous at the time of trial.     See LeSage, supra at 180-181.

See also Commonwealth v. Fay, 

, 585 n.13, cert.

denied, 

 (2014).    There is no provision for

conditional release once a sexually dangerous person is found no

longer sexually dangerous.     See G. L. c. 123A, § 14 (d).   See

also Commonwealth v. Bruno, 

 (2000).
                                                                   9


    Petitioners may move the court to expedite the date of the

§ 9 hearing, which the court then may allow pursuant to its

inherent authority.   See Commonwealth v. Rosa, 

,

372-373 (2023) (courts have wide discretion on setting timeline

for when case goes to trial); Bower v. Bournay-Bower, 

 (2014) ("courts possess inherent power to 'manage their

own affairs so as to achieve the orderly and expeditious

disposition of cases'" [citation omitted]).   See also Rule

20(2)(c), (3) of the Rules of the Superior Court (2018) (parties

may request "[i]mmediate scheduling of a prompt and firm trial

date").

    Different factors motivated the Legislature in enacting the

medical parole statute in 2018.   Specifically, the Legislature

was concerned with several trends, notably, "the aging prison

population, the rising cost of health care, and the fact that

elderly infirm prisoners are 'considered among the least likely

to re-offend when released'" (citation omitted).   Buckman v.

Commissioner of Correction, 

, 21 (2020).    See Harmon

v. Commissioner of Correction, 

, 472 (2021).     Under

the medical parole statute, prisoners are eligible for medical

parole if they are either terminally ill or permanently

incapacitated.   See G. L. c. 127, § 119A (b).   A prisoner or

authorized person may file a petition with either the

superintendent of the correctional facility or the sheriff in
                                                                       10


charge of the house of correction or jail where the prisoner is

serving his sentence.    See Emma v. Massachusetts Parole Bd., 

, 452 (2021), citing G. L. c. 127, § 119A (c) (1),

(d) (1).   After receiving a petition, the superintendent or

sheriff has twenty-one days to consider the petition and make a

recommendation to the commissioner.       Emma, supra.   The

commissioner then has forty-five days to issue a written

decision accompanied with a statement of reasons.        See id.,

citing G. L. c. 127, § 119A (e).    If the petition is granted,

the prisoner is then released subject to any necessary

conditions.    See Emma, supra at 453.    See also G. L. c. 127,

§ 119A (f).    If the petition is denied, the prisoner may seek

certiorari review.   See G. L. c. 127, § 119A (g).

    b.     Statutory interpretation.     The issue before this court

is whether the medical parole statute applies to civilly

committed sexually dangerous persons.       This is not the first

time we have been called on to interpret the medical parole

statute for purposes of determining its applicability to a

particular class of persons.    In Harmon, 487 Mass. at 478, we

addressed whether the medical parole statute applied to pretrial

detainees.    We held it did not.   Id. at 481.    We began with

examining the statute's plain language and found the term

"prisoner" ambiguous.    Id. at 479.     After considering the

Legislature's intent in enacting this statute, we held that the
                                                                   11


"most important term" in the statute was not "prisoner" but,

rather, "parole."   Id.   Based on the ordinary definition of

parole, we held that the medical parole statute applied only to

prisoners eligible for ordinary parole.     Id. at 480.4   We further

reasoned that because pretrial detainees had an alternative

avenue to seek relief, this interpretation was consistent with

the purpose underlying the medical parole statute.     See id.

(Legislature was concerned with aging prison population whose

sole recourse for release was executive clemency).

     Our interpretation of the medical parole statute in Harmon

controls the outcome here.    Simply put, sexually dangerous

persons are ineligible for ordinary parole.     See Bruno, 

 (G. L. c. 123A "does not provide less restrictive

alternatives to commitment").    Thus, like pretrial detainees,

sexually dangerous persons are not eligible for medical parole

under G. L. c. 127, § 119A.     Furthermore, because sexually

dangerous persons "who develop terminal or debilitating medical

issues . . . have another avenue by which to seek relief" --

that is, § 9 -- excluding sexually dangerous persons from

eligibility for medical parole does not frustrate the

Legislature's purpose in enacting G. L. c. 127, § 119A.      Harmon,


     4 The plaintiff argues that the prisoner definition in G. L.
c. 125, § 1 (m), should control our interpretation of the
medical parole statute. That argument was addressed and found
unavailing in Harmon, 487 Mass. at 479.
                                                                    12


487 Mass. at 480.   See Chapman, 

 (former

sexually dangerous person released from civil commitment based

on qualified examiners' findings that his age and medical

condition rendered him no longer sexually dangerous).

Accordingly, because civilly committed sexually dangerous

persons are categorically ineligible for medical parole under

G. L. c. 127, § 119A, the DOC's denial of the plaintiff's

petition for medical parole was not an error of law.

    c.    Substantive due process.   The judge concluded in her

order, and the plaintiff argues on appeal, that the plaintiff's

substantive due process rights were violated when the DOC failed

to consider the plaintiff's medical parole petition on its

merits.   It bears noting at the outset that we have repeatedly

held that the civil commitment of sexually dangerous persons

under the SDP statute does not violate substantive due process

under the State or Federal constitution.     See Commonwealth v.

Knapp, 

 (2004) ("we conclude that the

confinement of [a sexually dangerous person] is narrowly

tailored to the Legislature's expressed interest in protecting

the public from harm by persons convicted of sexual offenses who

are likely to be sexually dangerous").    See also LeSage, 488

Mass. at 181, 190; Commonwealth v. G.F., 

(2018); Bruno, 

.     Neither does the categorical

ineligibility of civilly committed sexually dangerous persons to
                                                                      13


petition for medical parole under G. L. c. 127, § 119A, violate

their due process rights.

    "Substantive due process prohibits governmental conduct

that 'shocks the conscience' or infringes on rights 'implicit in

the concept of ordered liberty'" (citation omitted).       G.F., 

.   The nature of the right at stake determines the

standard of review we apply.   See Vega v. Commonwealth, 

, 231 (2022).   Because the process outlined in § 9

infringes on a fundamental right -- freedom from physical

restraint -- we apply strict scrutiny.    Id.    See Kligler v.

Attorney Gen., 

, 55 (2022).    To withstand strict

scrutiny, "government conduct that infringes on a fundamental

right must be narrowly tailored to further a compelling and

legitimate government interest."   LeSage, 488 Mass. at 181.      See

Commonwealth v. DiBenedetto, 

, 401-402 (2023).       The

government interest animating the SDP statute is the protection

of the public from harm by persons likely to be sexually

dangerous.   See LeSage, supra at 181-182.      See also Bruno, 

 (SDP statute reflects "Legislature's concern with

protecting the public from harm by persons who are soon to be

released and who are likely to be sexually dangerous").

    The judge held that § 9 violates the plaintiff's

substantive due process rights due to both the plaintiff's

inability to petition for release solely based on his medical
                                                                  14


condition and the length of time the plaintiff must wait to be

heard on his § 9 petition.   We disagree.   If a sexually

dangerous person can show that his medical condition is so

compromised that he no longer is sexually dangerous, § 9

provides that such an individual will be released.    For

instance, in Chapman, 

, a sexually dangerous

person was found no longer sexually dangerous due to "the

combination of [his] age and his deteriorating physical

condition resulting in him no longer being able to manage

independently."   Moreover, the plaintiff may seek expedited

review of a decision denying release based on terminal illness

or physical or mental incapacity.5   See part 2.a, supra.

     3.   Conclusion.   For the reasons discussed, we conclude

that civilly committed sexually dangerous persons categorically

are ineligible for medical parole under G. L. c. 127, § 119A,

and that this ineligibility does not violate sexually dangerous

persons' due process rights.   Accordingly, the order granting

the plaintiff's motion for judgment on the pleadings is

reversed, and judgment shall enter for the defendants.

                                     So ordered.




     5 Here, the plaintiff has not attempted to expedite his § 9
petition.