Emma v. Mass. Parole Bd.

Citation174 N.E.3d 272,488 Mass. 449
Decision Date28 September 2021
Docket NumberSJC-13101
Parties Arnold EMMA v. MASSACHUSETTS PAROLE BOARD & another.
CourtUnited States State Supreme Judicial Court of Massachusetts

Kelly M. Cusack, for the plaintiff.

Tara L. Johnston, Assistant Attorney General, for Massachusetts Parole Board.

Edward J. O'Donnell, for Commissioner of Correction.

Jeffrey G. Harris, Boston, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

James R. Pingeon, David Milton, & Kristyn J.E. Henry, for Prisoners’ Legal Services of Massachusetts, amicus curiae, submitted a brief.

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


In this case, we consider whether the medical parole scheme set forth in G. L. c. 127, § 119A (medical parole act),2 authorizing the Commissioner of Correction (commissioner) to grant medical parole to terminally ill or permanently incapacitated prisoners, while delegating to the parole board (board) oversight of a medical parolee's compliance with the conditions of parole imposed, offends due process. We conclude that it does not.3

1. Background.4 The facts are drawn from the parties’ statement of agreed facts, "supplemented occasionally by other undisputed facts in the record." See Harmon v. Commissioner of Correction, 487 Mass. 470, 472, 168 N.E.3d 320 (2021).

The plaintiff was serving an eight-year sentence for breaking and entering a dwelling with the intent to commit a felony and armed assault with the intent to rob or murder. The sentence was due to terminate in 2024.

In 2020, the plaintiff was diagnosed with terminal cancer

. In June of that year, the commissioner denied the plaintiff's petition for medical parole. Upon reconsideration, she allowed the petition. The plaintiff was released on medical parole to a specialized long-term care facility on October 1, 2020; a special condition of his parole required that he reside in that facility. Approximately two months later, the plaintiff was arrested for violating the terms of his release. He was alleged to have absconded from a major medical center in Boston, where he was receiving medical treatment, and to have failed to comply with the conditions of his release plan by refusing return to the long-term care facility identified in that plan.

The board provisionally revoked the plaintiff's medical parole, and he remained in custody awaiting a final revocation hearing. While in custody, the plaintiff was hospitalized after he contracted COVID-19, and his health further deteriorated. He filed a second petition for medical parole on January 28, 2021.

On February 10, 2021, the board held a final parole revocation hearing; it determined that the plaintiff had violated his special condition of parole as alleged, and revoked his parole.5 The board also stated that it "strongly support[ed]" the plaintiff's release "as soon as possible." Thereafter, the commissioner denied the plaintiff's second petition for medical parole.

The plaintiff sought review of the board's decision to revoke his medical parole by filing a complaint in the nature of certiorari, G. L. c. 249, § 4, in the county court; he asked the single justice to order his reparole and release and to issue a declaratory judgment that, to the extent that the medical parole act prevents the board from considering reparole, and reserves decisions on reparole solely to the commissioner, the act is unconstitutional. The single justice denied the complaint as well as a motion for reconsideration.

Recognizing that the case raised novel statutory and constitutional questions capable of repetition yet evading review, the single justice reported three questions of law to the full court:

"1. Does the Parole Board have authority to reparole a medical parolee -- in other words, release him or her back into the community after it finds that the individual has violated his or her parole -- and, if so, what is the process by which it may do so[?]
"2. Does the Commissioner have authority to reparole an individual whose medical parole has been revoked by the board after he or she has violated parole, and, if so, what is the process by which she may do so[?]
"3. Does the statutory and regulatory scheme regarding the revocation of medical parole violate a parolee's due process rights, where it does not permit the board to release the parolee back into the community once it finds that he or she has violated the terms of his or her parole[?]"

The single justice ordered the parties to submit a statement of agreed facts "sufficiently comprehensive to enable the court to resolve the reported questions." The parties also were ordered to provide the court answers to other specific factual questions concerning the number of petitioners granted medical parole who had been found in violation and had their parole revoked, the processes in place for review of any such revocation and for seeking to be reparoled, and the number of petitioners whose medical parole had been revoked who subsequently applied for reparole and the results of any such applications.

The single justice also ordered that, if the plaintiff were to appeal from the denials, any such appeal should be consolidated with the report of the questions of law. The plaintiff subsequently filed an appeal in this court, which has been so consolidated. In his appeal, the plaintiff argues that the medical parole statute creates a protected liberty interest; once the board begins revocation proceedings based on a purported violation, the board also is required to consider the possibility of reparole; and a conclusion that the board has no authority to reparole a parolee who has been found in violation of medical parole would violate due process. Accordingly, the plaintiff argues that the single justice erred in denying his request for release from custody.

2. Statutory scheme. In light of our recent, detailed discussion of this process, see, e.g., Malloy v. Department of Correction, 487 Mass. 482, 484-487, 168 N.E.3d 330 (2021) ; Harmon, 487 Mass. at 472, 168 N.E.3d 320 ; Vazquez v. Superintendent, Mass. Correctional Inst., 484 Mass. 1058, 1058, 146 N.E.3d 371 (2020) ; Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 442 n. 17, 142 N.E.3d 525, S.C., 484 Mass. 1029, 143 N.E.3d 408 (2020) ; Buckman v. Commissioner of Correction, 484 Mass. 14, 16-19, 22-23, 138 N.E.3d 996 (2020), we review here only briefly the procedure to be followed in seeking medical parole. The process commences when a prisoner or other authorized person files a petition with the superintendent of the correctional facility or the sheriff in charge of the house of correction or jail where the prisoner is serving his or her sentence. See G. L. c. 127, § 119A (c ) (1), (d ) (1). Upon receipt of a petition, the superintendent or sheriff has twenty-one days in which to consider the petition and to submit a recommendation to the commissioner that the petition be allowed or denied. See id. The commissioner then has forty-five days to issue a decision. See G. L. c. 127, § 119A (e ). If the commissioner determines that the prisoner is terminally ill or permanently incapacitated, the prisoner will live peacefully in society and not violate the law if released, and the prisoner's release is not incompatible with the welfare of society, the prisoner "shall be released on medical parole." See id.

The board imposes any "terms and conditions" on the prisoner's medical parole that it deems necessary, and may alter or amend these as needed, see G. L. c. 127, § 119A (f ) ; these conditions are applicable through the date on which the prisoner's sentence would have expired, see G. L. c. 127, § 119A (e ). During the prisoner's release, the prisoner is placed "under the jurisdiction, supervision and control of the parole board, as if the prisoner had been paroled pursuant to [ G. L. c. 127, § 130 ]." G. L. c. 127, § 119A (f ). Apart from the implementing regulations issued by the Secretary of the Executive Office of Public Safety and Security, see 501 Code Mass. Regs. §§ 17.00 (2019), the board has promulgated regulations governing its oversight responsibilities for all parolees, including medical parolees, see 120 Code Mass. Regs. §§ 100.00 -900.00 (2017).

3. Discussion. We review the reported questions, which require interpreting statutory or constitutional provisions, de novo. See Commonwealth v. Soto, 476 Mass. 436, 438, 68 N.E.3d 1133 (2017) ; Schulman v. Attorney Gen., 447 Mass. 189, 191, 850 N.E.2d 505, S.C., 448 Mass. 114, 858 N.E.2d 1090 (2006). "[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" (citation omitted). Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518 (2006). "[W]here the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Sharris v. Commonwealth, 480 Mass. 586, 594, 106 N.E.3d 661 (2018), quoting Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444, 895 N.E.2d 446 (2008). "[T]he meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms." Soto, supra, quoting Commonwealth v. Dalton, 467 Mass. 555, 557, 5 N.E.3d 1206 (2014).

Certiorari is a "limited procedure reserved for correction of substantial errors of law apparent on the record created before a judicial or quasi judicial tribunal" (citation omitted). Indeck v. Clients’ Security Bd., 450 Mass. 379, 385, 879 N.E.2d 57 (2008). A plaintiff is entitled to certiorari review only if the plaintiff can demonstrate "(1...

To continue reading

Request your trial
3 cases
  • DiMasi v. Sec'y of the Commonwealth, SJC-13071
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 5 Enero 2023
    ...word "shall" as an imperative that indicates the Legislature's intent to prescribe a mandatory act. See Emma v. Massachusetts Parole Bd., 488 Mass. 449, 454 (2021), citing Hashimi v. Kalil, 388 Mass. 607, 609 (1983). In common usage, the word "automatic" has been defined as "having a self-a......
  • In re Simpson, 21-P-459
    • United States
    • Appeals Court of Massachusetts
    • 31 Marzo 2022
    ...387 Mass. 662, 666 (1982), quoting Caminetti v. United States, 242 U.S. 470, 485 (1917). See Emma v. Massachusetts Parole Bd., 488 Mass. 449, 453 (2021) (same). Here, § 1-401 (e) plainly requires an "affidavit." "'An affidavit is a statement in writing sworn before an officer authorized to ......
  • Rodriguez v. Dep't of Corr., 22-P-256
    • United States
    • Appeals Court of Massachusetts
    • 13 Diciembre 2022
    ...(quotation omitted). Buckman, 484 Mass. at 23. The language of the regulation is mandatory. See Emma v. Massachusetts Parole Board, 488 Mass. 449, 454 (2021) ("The word 'shall' indicates the absence of discretion"). However, the multidisciplinary review team did not provide a risk assessmen......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT