Devlin v. Commissioner of Correction

• Decision Date: 20 December 1973
• Citation: 305 N.E.2d 847,364 Mass. 435
• Parties: Arthur DEVLIN et al. v. COMMISSIONER OF CORRECTION et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 847

305 N.E.2d 847

364 Mass. 435

Arthur DEVLIN et al. v. COMMISSIONER OF CORRECTION et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1973.

Decided Dec. 20, 1973.

Max D. Stern (Matthew Feinberg and Richard Shapiro, Boston, with him), for plaintiffs.

Terence P. O'Malley (Walter H. Mayo, III, Asst. Attys. Gen., with him), for defendants.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The plaintiffs challenge the determination by the defendants that an inmate who is serving a sentence of life imprisonment imposed after his conviction of murder in the first degree is not permitted under any circumstances to temporary release under clause (f) of G.L. c. 127, § 90A, as appearing in St.1972, c. 777, § 18.

The case comes to us on a reservation and report without decision from a justice of this court on a bill in equity for declaratory and injunctive relief and a statement of agreed facts. ²

Section 90A of G.L. c. 127, which appears in its entirety in the margin, ³ sets forth those circumstances under which a committed offender at any State correctional facility may be permitted to be away from that correctional facility for a specified period or periods of time. Of the purposes for which such a furlough may be granted under § 90A the only one directly involved here is that set forth in clause (f), authorizing a furlough 'for any other reason consistent with the reintegration of a committed offender into the community.' Each plaintiff is serving a sentence of life imprisonment imposed after conviction of murder in the first degree under G.L. c. 265, § 1. He, therefore, is not entitled to parole unless and until his sentence is commuted by the Governor and Council. G.L. c. 265, § 2. ⁴

The defendants argue that because a person serving a life sentence for murder in the first degree is not entitled to ree ntry into the community on parole there is no authority to grant a clause (f) furlough to prisoners such as the plaintiffs. They say that clause (f) is concerned with furloughs for reasons consistent with reintegration of a committed offender into the community and that, therefore, the Legislature did not intend to authorize furloughs under clause (f) to 'first degree lifers.' The plaintiffs agrue in response that, as often happens, the sentence of a person serving a life term for murder in the first degree may be commuted, and, if that occurs, he or she is then eligible for parole. The plaintiffs further agree that § 90A contains no explicit restriction on clause (f) furloughs for prisoners serving life sentences for murder in the first degree, and none should be implied.

The sole question for decision is whether § 90A authorizes a clause (f) furlough for a 'first degree lifer.' Under § 90A the commissioner is authorized to 'extend the limits of the place of confinement of a committed offender at any state correctional facility by authorizing such committed offender under prescribed conditions to be away from such correctional facility' for certain limited periods of time. Section 90A continues by stating that 'no committed offender who is serving a life sentence,' or a sentence for certain listed offences, shall be eligible for temporary release 'except on the recommendation of the superintendent on behalf of a particular committed offender and upon the approval of the commissioner.'

Section 90A then continues by listing six purposes for which authorization for temporary release may be permitted. Clause (a) concerns attendance at a funeral of a relative; clause (b) relates to a visit to a critically ill relative; and clause (c) involves obtaining needed medical or social services available neither at the correctional facility nor through existing statutory provisions for hospitalization. Clause (d) involves a furlough 'to contact prospective employers'; clause (e) is concerned with a furlough 'to secure a suitable residence for use upon release on parole or discharge.' The parties agree that furloughs may be granted to persons serving life sentences for murder in the first degree for the purposes stated in clauses (a), (b), and (c) but not for the purposes stated in clauses (d) and (e). We come then to the language of clause (f) which authorizes temporary release 'for any other reason consistent with the reintegration of a committed offender into the community.'

The plaintiffs assert that the administrative practice of the department to grant furloughs to 'first degree lifers' should be given weight in resolving any ambiguity in the intended scope of clause (f). The then commissioner of corrections and members of his staff participated in the drafting of St.1972, c. 777, and particularly in the amendment of G.L. c. 127, § 90A. From the initiation of the furlough program on November 6, 1972, until it was suspended for 'first degree lifers' on September 12, 1973, 184 furloughs were granted to fortynine 'first degree lifers.' ⁵ These furloughs were granted under policies and procedures of the department when the superintendent of the respective institution and the commissioner of correction determined in their discretion that the particular inmate qualified under the relevant criteria and deserved to be granted a furlough.

The plaintiffs argue that these circumstances justify application of the principle that in resolving an ambiguity in a statute, weight may be given to consistent administrative application of that statute, especially if the interpretation is contemporaneous with its enactment and is long continued. Cleary v. Cardullo's, Inc., 347 Mass. 337, 343, 198 N.E.2d 281 (1964). Assessors of Holyoke v. State Tax Comm., 355 Mass. 223, 243--244, 244 N.E.2d 287 (1969). Here the department of correction, which actively participated in the enactment of § 90A in its present form, made an interpretation contemporaneous with the enactment of § 90A that clause (f) permits the temporary release of persons serving life sentences for murder in the first degree, and that department has, as far as appears, consistently maintained that position. The department's interpretation of clause (f), however, although applied in numerous instances in the months following the effectiveness of the amendment to § 90A, is not one of long standing. In spite of this limiting circumstance, we believe that the department's construction of § 90A, a statute whose administration is in its charge, is entitled to some weight in resolving any ambiguity in the scope of clause (f). See SCHOOL COMM. OF SPRINGFIELD V. BOARD OF EDUC., MASS. (1972) 287 N.E.2D 438^A.

We hold that clause (f) of § 90A authorizes the granting of a furlough to a person who is serving a life sentence for murder in the first degree. Clause (f) contains no express limitation as to the committed offenders who may be granted temporary release for the purpose there stated. '(U)nless the context otherwise requires' (emphasis supplied), committed offender means any 'person convicted of a crime and committed, under sentence, to a correctional facility.' G.L. c. 125, § 1, as appearing in St.1972, c. 777, § 8. ⁶ The words 'committed offender' in the context of clause (f) are not required to have a more limited meaning. In fact, the context may suggest that all persons serving life sentences, including persons serving such terms for murder in the first degree, are included in the words 'committed offender' in clause (f). In an earlier portion of § 90A the Legislature adverted to persons serving life sentences, set forth a special requirement of recommendation and approval of their temporary release, and did nothing further to limit the rights of persons serving life sentences. ⁷

Looked at simply in terms of the words of clause (f), the temporary release of a person serving a life sentence for murder in the first degree could be found by the appropriate superintendent and the commissioner of correction to be 'consistent with the reintegration of . . . (the) offender into the community.' A clause (f) furlough is permitted for any reason consistent with such reintegration. There is no requirement in clause (f) that integration into the community be imminent or certain. In short, clause (f) seems clearly designed to authorize the penal authorities, as experts in the field, to grant furloughs to any committed offender, on a case by case basis and subject to limitations and safeguards, whenever those authorities conclude that such a furlough is deserved and will be consistent with reintegration of the offender into society. ⁸

The defendants urge that the context of clause (f) requires a construction which denies authorization for a clause (f) furlough for any person serving a life term for murder in the first degree. They correctly point out that such a prisoner cannot be paroled until his or her sentence is commuted and that commutation may never occur. However, we know that life sentences for murder in the first degree are from time to time commuted. One plaintiff has had his petition for commutation of sentence approved by the advisory board of pardons and by the Governor and is awaiting action on his petition by the Governor's Council. Other plaintiffs have filed petitions for commutation of sentence which have not been acted on. The fact that a committed offender who is serving a life sentence for murder in the first degree has an additional legal barrier to clear before he may be paroled may have a bearing on the reasonableness of the granting of a particular furlough. However, because that barrier is not insurmountable, ⁹ we see no justification for concluding that the temporary release of a 'first degree lifer' can never be 'consistent with . . . (his) reintegration into the community.' In fact a furlough may produce information, not otherwise obtainable, about the capacity of such an offender to become a law abiding, effective member of the community.

The defendants...