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SJC-12203
RICHARD CROWELL vs. MASSACHUSETTS PAROLE BOARD.
Suffolk. January 6, 2017. - May 15, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Parole. Practice, Criminal, Parole. Americans with
Disabilities Act. Practice, Civil, Action in nature of
certiorari, Motion to dismiss.
Civil action commenced in the Superior Court Department on
April 2, 2014.
A motion to dismiss was heard by Raffi N. Yessayan, J., and
a motion for reconsideration was considered by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Tabitha Cohen (John D. Fitzpatrick also present) for the
plaintiff.
Todd M. Blume, Assistant Attorney General, for the
defendant.
James R. Pingeon, for American Civil Liberties Union of
Massachusetts & others, amici curiae, submitted a brief.
BUDD, J. On April 2, 2014, the plaintiff, Richard Crowell,
filed a complaint in the nature of certiorari in the Superior
2
Court, alleging that, in denying his petition for parole, the
Parole Board (board) had violated the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), and cognate
State provisions, art. 114 of the Amendments to the
Massachusetts Constitution and G. L. c. 93, § 103. A judge of
that court allowed the board's motion to dismiss and denied the
plaintiff's motion for reconsideration. We reverse and remand
for further development of the record. 1 Further, we conclude
that, contrary to the plaintiff's assertion, his commuted life
sentence remains a "life sentence" within the meaning of 120
Code Mass. Regs. § 301.01(5) (1997).
Background. The limited record before us, presented in the
form of exhibits to the plaintiff's complaint, includes the
following facts, which are undisputed by the parties.
1. Prior parole proceedings. The plaintiff pleaded guilty
to murder in the second degree in 1962 in connection with an
armed robbery that resulted in a homicide. 2 He was sentenced to
life imprisonment with the possibility of parole pursuant to
1
We acknowledge the amicus brief of the American Civil
Liberties Union of Massachusetts, the Center for Public
Representation, the National Disability Rights Network, and
Prisoners' Legal Services.
2
The plaintiff was the getaway vehicle's driver.
3
G. L. c. 265, § 2. 3 In 1974 the plaintiff's life sentence was
commuted to one that was from "[thirty-six] years to life." He
was paroled in November, 1975. Between 1975 and 1990 the
plaintiff was returned to custody on five occasions (1977, 1980,
1982, 1989, and 1990) for failing to adhere to his conditions of
parole, including repeated problems with alcohol and assaultive
behavior. In 1987 he sustained a traumatic brain injury (TBI),
which caused deficiencies in his memory, speech, and cognition.
He attributes the loss of his job while on parole as well as an
exacerbation of his alcohol problems to TBI.
The plaintiff was denied parole following review hearings
before the board in 1991, 1994, and 1997. In 2003, he was again
paroled on the condition that he complete a long-term
residential program and attend Alcoholics Anonymous meetings at
least three times per week. Less than one month later, his
parole was revoked for failure to complete the residential
program. He has been incarcerated since that time.
2. 2012 parole hearing and decision. In August, 2012,
the plaintiff had a review hearing before the board. During
that hearing, one of the board members noted that TBI had
3
The plaintiff was also sentenced to serve from fifteen to
twenty years for assault with intent to rob or murder, from
three to five years for assault by means of a dangerous weapon,
and from fifteen to twenty years for armed robbery, all to be
served concurrently with his life sentence.
4
"caused cognitive functioning [and] emotional functioning
deficits," resulting in uncooperative behavior that was
"secondary to [the plaintiff's] brain injury." The board member
stated that this was a chronic, life-long condition that "might
get worse . . . [s]o [the plaintiff] would need to be in some
sort of setting where [he] could be managed and cooperate with
people forever." She also expressed concern about the fact that
the programs the plaintiff's counsel had looked into were
voluntary programs that would require his full cooperation.
Ultimately the board issued its decision denying the
plaintiff parole, stating that the plaintiff "was unable to
offer any concrete, viable release plan that could assure the
[b]oard that he would be compliant on parole after his history
of defiance and non-compliance" and that he "has not sought or
achieved the rehabilitation necessary to live safely in the
community." The board also stated, "Crowell was unable to
address the concerns related to his combative attitude and . . .
gave the clear impression that he feels entitled to parole
. . . ." The board denied the plaintiff's request for
reconsideration.
3. Certiorari action. On April 2, 2014, the plaintiff
timely filed a complaint seeking certiorari review of the
board's decision by way of G. L. c. 249, § 4, alleging that the
board's denial was a violation of his rights under the ADA and
5
cognate State provisions, and that the board's decision to grant
him a review hearing only every five years (rather than
annually) was unlawful. He sought immediate release or a
hearing at which the board would be prohibited from considering
his disability as a reason to prevent him from being paroled.
The plaintiff further asked the court to direct the board to use
its resources to find an appropriate placement for him in the
community.
The judge allowed the board's motion to dismiss, concluding
that the board had not discriminated against the plaintiff in
its decision denying him parole because it considered many
factors, only one of which was his disability related to the
TBI. The plaintiff appealed and obtained a brief stay of the
appeal to pursue an unsuccessful motion for reconsideration on
the limited issue whether he is serving a life sentence or a
sentence for a term of years. We transferred the case from the
Appeals Court on our own motion.
Discussion. 1. The motion to dismiss. We review a
judge's order granting a motion to dismiss de novo. Boston Med.
Ctr. Corp. v. Secretary of the Exec. Office of Health & Human
Servs., 463 Mass. 447, 450 (2012). The plaintiff asserts that
the motion judge erroneously allowed the board's motion to
dismiss because the board failed first to file the
administrative record pursuant to a standing order of the
6
Superior Court. Superior Court Standing Order 1-96(2) applies
to actions in the nature of certiorari under G. L. c. 249, § 4,
and requires the agency to file its administrative record within
ninety days of service of the complaint. 4 It also extends the
deadline for certain motions, including those brought under
Mass. R. Civ. P. 12 (b) and (e), 365 Mass. 754 (1974), to twenty
days after service of the record. The board contends that it
4
The relevant portions of Superior Court Standing Order 1-
96 provide:
"2. The administrative agency whose proceedings
are to be judicially reviewed shall, by way of answer,
file the original or certified copy of the record of
the proceeding . . . within ninety (90) days after
service upon it of the [c]omplaint. . . .
"3. The following motions raising preliminary
matters must be served . . . not later than twenty
(20) days after service of the record by the
administrative agency.
"(a) Motions authorized by Mass. R. Civ. P. 12(b)
or 12(e).
". . . .
"Any party failing to serve such a motion within
the prescribed time limit, or within any court-ordered
extension, shall be deemed to have waived any such
motion . . . and the case shall proceed solely on the
basis of the record. . . .
"4. A claim for judicial review shall be
resolved through a motion for judgment on the
pleadings, Mass. R. Civ. P. 12(c), . . . except as
otherwise provided by this [s]tanding [o]rder, unless
the [c]ourt's decision on any motion specified in part
3 above has made such a resolution inappropriate. . .
."
7
complied with both Superior Court Standing Order 1-96 and rule
12 (b) ("A motion making any of these defenses shall be made
before pleading . . ."). Although the board was free to file a
motion to dismiss, it was error for the judge to allow it as the
plaintiff had stated a claim upon which relief could be granted.
That is, he alleged in his complaint that the result of the
parole board hearing (a quasi judicial administrative
proceeding) was arbitrary or capricious, unsupported by
substantial evidence, or otherwise an error of law. See Hoffer
v. Board of Registration in Med., 461 Mass. 451, 458 n.9 (2012)
(discussing what plaintiff must show to obtain certiorari
review). 5
Given the plaintiff's allegations, the only appropriate way
for the court to evaluate the claim is through a review of the
administrative record upon a motion for judgment on the
pleadings. See School Comm. of Hudson v. Board of Educ., 448
Mass. 565, 575-576 (2007), citing St. Botolph Citizens Comm.,
Inc. v. Boston Redev. Auth., 429 Mass. 1, 7 (1999) ("Certiorari
is a limited procedure reserved for correction of substantial
errors of law apparent on the record created before a judicial
5
A motion to dismiss may be appropriate, however, where a
plaintiff has not met the time limitations for certiorari
review, where the claim is moot, where a plaintiff lacks
standing, or where certiorari review is not otherwise proper.
See, e.g., Indeck v. Clients' Sec. Bd., 450 Mass. 379, 380-381
(2008).
8
or quasi-judicial tribunal"). Requiring a defendant agency to
file the administrative record as a matter of course is an
implicit acknowledgement of that fact. 6 See Firearms Records
Bur. v. Simkin, 466 Mass. 168, 180 (2013), citing Cambridge
Hous. Auth. v. Civil Serv. Comm'n, 7 Mass. App. Ct. 586, 587
(1979). For this reason, we vacate the dismissal and remand for
further proceedings.
2. The disability claim. In his Superior Court complaint,
the plaintiff asserted that the board's decision to deny his
parole petition was unlawful to the extent that the decision
relied on his disability and faulted him for failing to seek out
an appropriate release plan. He claimed that the decision
violated the ADA, 7 as well as art. 114 8 and G. L. c. 93, § 103. 9
6
Although it did not explain its reasoning, the Appeals
Court came to the same conclusion in Doucette v. Massachusetts
Parole Bd., 86 Mass. App. Ct. 531, 541 n.10 (2014). There, the
Superior Court judge had a "near complete record" before him by
the time he considered the board's motion to dismiss for failure
to state a claim, and the Appeals Court affirmed the judge's
decision, citing the parties' agreement to proceed on a partial
record. Id. The court cautioned, however, that "[i]n future
cases, certiorari review should be conducted under [Mass. R.
Civ. P.] 12(c), in accordance with Superior Court Standing Order
1-96, and not under rule 12(b)(6)." Id.
7
Title II of the Americans with Disabilities Act (ADA)
provides: "[N]o qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any such entity." 42 U.S.C. § 12132 (2012).
9
Because we vacate the dismissal on procedural grounds, we need
not reach the merits of the plaintiff's disability claim. That
being said, it is clear from the limited information we have --
i.e., a partial transcript and the board's written decision --
that the board's decision to deny the parole petition does not
appear to have considered adequately the application of the ADA
and our own relevant constitutional and statutory provisions.
We therefore make the following observations.
The ADA and State provisions "prohibit the same conduct:
disabled persons may not be 'excluded from participation in or
be denied the benefits of' services, programs, or activities [of
a public entity], and they may not 'be subjected to
discrimination'" (citation omitted). Shedlock v. Department of
Correction, 442 Mass. 844, 854 (2004). The plaintiff alleges,
and the board clearly assumed (both during the review hearing
and in its decision denying his petition for parole), that the
8
Article 114 of the Amendments to the Massachusetts
Constitution provides: "No otherwise qualified handicapped
individual shall, solely by reason of his handicap, be excluded
from the participation in, denied the benefits of, or be subject
to discrimination under any program or activity within the
commonwealth."
9
General Laws c. 93, § 103, provides in relevant part that
"[a]ny person within the commonwealth, regardless of handicap
. . . shall, with reasonable accommodation, have the same rights
as other persons . . . to the full and equal benefit of all laws
and proceedings . . . , including, but not limited to, the
rights secured under [art. 114]."
10
plaintiff suffers from a disability: cognitive and behavioral
limitations resulting from TBI. The plaintiff also alleges that
he has been denied the benefits of a State program, i.e., a fair
hearing and parole review decision process, to which he was
statutorily entitled. See 42 U.S.C. § 12131(1)(B) (2012)
("public entity" includes State agencies); Pennsylvania Dep't of
Corrections v. Yeskey, 524 U.S. 206, 210 (1998) (ADA applies to
prisoners); Thompson v. Davis, 295 F.3d 890, 896-897 (9th Cir.
2002), cert. denied, 538 U.S. 921 (2003) (ADA applies to parole
proceedings, including substantive decision-making). 10
Therefore, the only open question is whether the plaintiff was
excluded from the program, or discriminated against in the form
of denial of parole, by reason of his disability.
See Thompson, supra at 896, 898 n.4 (describing this inquiry as
10
See also United States Department of Justice, Civil
Rights Division, Examples and Resources to Support Criminal
Justice Entities in Compliance with Title II of the Americans
with Disabilities Act (Jan. 2017), https://www.ada.gov/cjta.html
[https://perma.cc/4W6S-9T5N] (DOJ Examples) (State programs may
include "determining whether to revoke probation or parole,
. . . parole and release programs, and re-entry planning"). The
guidance document further explains that State entities must
"[e]nsure that people with mental health disabilities . . . have
an equal opportunity to participate in and benefit from the
entities' programs, services, and activities." Id. To provide
equal opportunities, State entities must "[m]ake reasonable
modifications in policies, practices, or procedures when
necessary to avoid disability discrimination in all interactions
with people with mental health disabilities . . . , unless the
modifications would fundamentally alter the nature of the
service, program, or activity." Id.
11
asking whether prisoner was "otherwise qualified").
The board's decision to grant parole is limited by statute;
it may only do so where it finds, "after consideration of a risk
and needs assessment, that there is a reasonable probability
that, if the prisoner is released with appropriate conditions
and community supervision, the prisoner will live and remain at
liberty without violating the law and that release is not
incompatible with the welfare of society." G. L. c. 127,
§ 130. 11 No prisoner is entitled to parole, Deal v. Commissioner
of Correction, 475 Mass. 307, 322 (2016), and we give the
board's determination "considerable deference," Greenman
v. Massachusetts Parole Bd., 405 Mass. 384, 387 (1989).
However, this deference is not without limits. First, the
board clearly may not categorically exclude any prisoner by
reason of his or her disability. See Thompson, 295 F.3d at 898
n.4. Second, both the ADA and the parole statute, G. L. c. 127,
§ 130, require the board to take some measures to accommodate
prisoners with disabilities. Where the board is aware that a
11
General Laws c. 127, § 130, further provides:
"In making this determination, the parole board shall
consider whether, during the period of incarceration, the
prisoner has participated in available work opportunities
and education or treatment programs and demonstrated good
behavior. The board shall also consider whether risk
reduction programs, made available through collaboration
with criminal justice agencies would minimize the
probability of the prisoner re-offending once released."
12
mental disability may affect a prisoner's ability to prepare an
appropriate release plan in advance of a parole hearing, the
board should make reasonable modifications to its policy, for
example, by providing an expert or other assistance to help the
prisoner identify appropriate postrelease programming. See 28
C.F.R. § 35.130(b)(7) (2016); 12 28 C.F.R. § 35.130(b)(8) (2016). 13
In accommodating prisoners with mental disabilities, the board
should also consider whether there are risk reduction programs
designed to reduce recidivism in those who are mentally
disabled. See G. L. c. 127, § 130.
These provisions do not require the board to make
modifications that would "fundamentally alter" the nature of
parole. 28 C.F.R. § 35.130(b)(7). See 28 C.F.R. § 35.139
12
Title 28 C.F.R. § 35.130(b)(7) (2016) provides:
"A public entity shall make reasonable modifications
in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the
basis of disability, unless the public entity can
demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or
activity."
13
Title 28 C.F.R. § 35.130(b)(8) (2016) provides:
"A public entity shall not impose or apply eligibility
criteria that screen out or tend to screen out an
individual with a disability or any class of individuals
with disabilities from fully and equally enjoying any
service, program, or activity, unless such criteria can be
shown to be necessary for the provision of the service,
program, or activity being offered."
13
(2016). To the contrary, those who would pose a danger to
society even with risk reduction programs should not be released
on parole. G. L. c. 127, § 130. In addition, the board's
important role in protecting society from the early release of
dangerous persons means that the board must be able to consider
whether the symptoms of a prisoner's disability mean that he or
she has a heightened propensity to commit crime while released
on parole. See Thompson, 295 F.3d at 898 n.4.
The interaction of these requirements means that once the
board became aware that the plaintiff's disability could
potentially affect his ability to qualify for parole, it had the
responsibility to determine whether reasonable modifications
could enable the plaintiff to qualify, without changing the
fundamental nature of parole. 14 Here, the board indicated its
14
In interpreting art. 114 and the ADA, we have previously
examined whether the disabled individual requested reasonable
accommodations from a State prison. See Shedlock v. Department
of Correction, 442 Mass. 844, 856-859 (2004). In that case,
however, we noted that prison officials, while aware of the
prisoner's disability, might have been unaware that he needed
further accommodation. Id. at 856-857. Here, the board -- as
reflected in the board member's comments and in the board's
written decision -- was clearly aware of the plaintiff's
disability and that he would need further accommodation if
parole were to work. As a result, the board had an obligation
to consider whether reasonable modifications could mitigate any
risk that the plaintiff would pose were he released on parole.
See DOJ Examples, supra ("The reasonable modification obligation
applies when an agency employee knows or reasonably should know
that the person has a disability and needs a modification
. . .").
14
awareness both of the plaintiff's disability and of how symptoms
stemming from that disability could affect his behavior both in
the parole hearing and on parole. In addition, while one board
member discussed the possibility that the plaintiff would need
to be in a "very structured setting" while on parole, there is
no indication in the limited record before us whether the board
actually considered any such modification and whether it would
make him a more qualified candidate for parole. Further, the
board negatively considered the plaintiff's attitude during the
parole hearing and his own failure to identify what the board
considered to be appropriate parole programs, without
considering whether these behaviors were the result of his TBI.
In short, while the judge correctly noted that in its
decision, the board had considered a broad set of factors,
including the plaintiff's behavior before his TBI, the record
before us shows no consideration of how the plaintiff's
limitations affect his parole eligibility, whether these
limitations could be mitigated with reasonable modifications, 15
and whether other factors would nevertheless disqualify him from
15
To the extent that the plaintiff's disability prevents
him from seeking out such reasonable modifications himself, it
may be inappropriate for the board to place the burden on him to
put forward his own parole programming proposal.
15
parole. 16 More importantly, it is impossible to determine the
weight the board gave to the disability and associated
limitations relative to other factors in its analysis. Once the
board has submitted the administrative record, upon a motion for
judgment on the pleadings, the motion judge will have a better
basis for considering the plaintiff's claims. 17
3. Frequency of parole review. General Laws c. 127,
§ 133A, governs parole eligibility for "[e]very prisoner who is
serving a sentence for life," with limited exceptions. It
provides for an initial hearing fifteen years into a life term,
and rehearings every five years if parole is not granted. Id.
120 Code Mass. Regs. § 301.01(5). In contrast, with limited
16
In this case, at least with respect to the plaintiff's
limitations due to TBI and how those limitations interact with
the criteria for parole, it is difficult to see how the board
could proceed without a professional evaluation of the
plaintiff's condition and recommendation regarding a postrelease
plan that might diminish the risk of recidivism. See 28 C.F.R.
§ 35.130(h) (2016) (assessment whether safety requirements that
exclude persons with disabilities are nevertheless legitimate
must be "based on actual risks, not on mere speculation,
stereotypes, or generalizations about individuals with
disabilities"); 28 C.F.R. § 35.139(b) (2016) (assessment of
whether individual poses "direct threat" must rely "on current
medical knowledge or on the best available objective evidence
. . . to ascertain" nature of risk and whether it could be
reasonably mitigated).
17
We note that, even if the plaintiff is successful in
demonstrating a violation of the ADA upon a motion for judgment
on the pleadings, he is not automatically entitled to the relief
he seeks (release on parole), but rather to a parole hearing and
decision that considers reasonable modifications in light of his
disability.
16
exceptions not relevant here, all other prisoners denied parole
are entitled to a rehearing on an annual basis. 120 Code Mass.
Regs. § 301.01(2) (1997). The plaintiff argues that the
commutation of his original sentence from life with the
possibility of parole to thirty-six years to life reduced his
sentence to an indeterminate one, such that it is no longer
governed by § 133A, and that he is entitled to review on an
annual basis. 18 We disagree.
The case to which the defendant cites undermines his
argument, as the court held that the nature of a prisoner's
sentence depends on the maximum term, which sets "the maximum
amount of time that the prisoner will serve in prison if he
. . . is not granted parole," whereas the minimum term "serves
18
The plaintiff also argues that because his commuted
sentence is similar to that described in the home invasion
statute, G. L. c. 265, § 18C ("for life or for any term of not
less than twenty years"), his sentence should be governed by
G. L. c. 127, § 133 (annual review), rather than G. L. c. 127,
§ 133A (review every five years). He reasons that in
Commonwealth v. Brown, 431 Mass. 772, 774-777 (2000), we
mentioned that a defendant convicted under the home invasion
statute was subject to § 133. However, the plaintiff ignores
the fact that unlike himself, the defendant in Brown was not
sentenced to life, but instead to from twenty years to twenty
years and one day. Id. at 773.
The plaintiff further argues that we should adopt
California's rule, citing three decisions in which that State's
highest court held that a sentence of from a term of years to
life is not a life sentence. These decisions are
distinguishable from the plaintiff's case, however, as all three
involved crimes committed when the defendants in question were
minors.
17
as a base for determining his parole eligibility date." Connery
v. Commissioner of Correction, 33 Mass. App. Ct. 253, 254
(1992), S.C., 414 Mass. 1009, 1011 (1993), citing Commonwealth
v. Hogan, 17 Mass. App. Ct. 186, 189 (1983), and Commonwealth
v. Haley, 23 Mass. App. Ct. 10, 18 (1986). Because judges
sentencing on convictions for murder in the second degree now
must fix a minimum term as a parole eligibility date, G. L.
c. 279, § 24, if we adopted the defendant's view it would
essentially mean that no sentences other than a life sentence
without the possibility of parole would be a "life sentence."
This would render § 133A meaningless. See Boston Police
Patrolmen's Ass'n v. Boston, 435 Mass. 718, 721 (2002),
quoting Victory Distribs., Inc. v. Ayer Div. of the Dist. Court
Dep't, 435 Mass. 136, 140 (2001) ("We interpret statutes so as
to avoid rendering any part of the legislation meaningless").
Instead, the board has determined that § 133A and the associated
regulations govern parole hearings for all "individuals serving
a sentence that contains life as the maximum term of the
sentence." 120 Code Mass. Regs. § 100.00 (2001). Therefore,
the plaintiff's sentence remains a "life sentence," and his
parole is governed by § 133A.
Conclusion. We reverse the dismissal of the complaint and
remand for further proceedings consistent with this opinion.
So ordered.