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SJC-13455
COMMONWEALTH vs. A.Z.
Norfolk. November 6, 2023. - January 25, 2024.
Present: Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.
Incompetent Person, Criminal charges, Commitment. Due Process
of Law, Competency to stand trial. Practice, Criminal,
Competency to stand trial. Moot Question.
Complaint received and sworn to in the Wrentham Division of
the District Court Department on July 9, 2018.
A hearing on an order for hospitalization and examination
was had before Steven E. Thomas, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Devorah Anne Vester, Committee for Public Counsel Services,
for the defendant.
Michael McGee, Assistant District Attorney, for the
Commonwealth.
Justin M. Woolf, Tatum A. Pritchard, Steven J. Schwartz,
Alex Bou-Rhodes, Phillip Kassel, & Jennifer Honig, for
Disability Law Center, Inc., & others, amici curiae, submitted a
brief.
2
LOWY, J. This case involves the constitutional rights of a
criminal defendant who was involuntarily hospitalized for a
competency determination pursuant to G. L. c. 123, § 15 (b)
(§ 15 [b]). An involuntary commitment infringes upon a
defendant's fundamental right to liberty and thus must satisfy
strict scrutiny under the Massachusetts Declaration of Rights
and the United States Constitution. See Matter of a Minor, 484
Mass. 295, 309 (2020). To pass strict scrutiny, the involuntary
commitment must be the least restrictive means available to
vindicate the governmental interest at stake. Id.
Accordingly, we conclude that substantive due process
mandates that a judge find that hospitalization is required
before involuntarily committing a criminal defendant to a
hospital for a competency determination. Specifically, we hold
that it is unconstitutional, as applied, for a court to
hospitalize a pretrial defendant under § 15 (b), for a clinical
evaluation and observation of competency, absent a finding by
the judge, by clear and convincing evidence, that
hospitalization is the least restrictive means available to
determine adequately a criminal defendant's competency to stand
trial.
We have not previously held that a District Court judge
acting pursuant to § 15 (b) must make such findings, and the
3
judge here did not do so. Accordingly, we conclude that the
defendant's constitutional rights were violated.1
1. Background. a. G. L. c. 123, § 15. As this court has
observed previously, G. L. c. 123, § 15, provides for two
categories of competency evaluations. See Garcia v.
Commonwealth, 487 Mass. 97, 106 n.15 (2021). First, pursuant to
G. L. c. 123, § 15 (a) (§ 15 [a]),
"a judge may order an evaluation of a defendant by a court
clinician before trial if the judge doubts whether the
defendant is competent to stand trial or criminally
responsible by reason of mental illness . . . . That
examination is typically brief and takes place in the court
house or in a place where the defendant is being detained
before trial."
Garcia, supra. Second, following a § 15 (a) evaluation and
pursuant to § 15 (b),
"the judge may then order that the person be involuntarily
hospitalized for up to twenty days, for observation and a
more detailed examination, if, based on the court
clinician's evaluation, the court 'has reason to believe
that such observation and further examination are necessary
in order to determine whether mental illness or mental
defect have so affected a person that he is not competent
to stand trial or not criminally responsible.'"
Garcia, supra, quoting G. L. c. 123, § 15 (b). The judge may
specifically order the person be hospitalized under § 15 (b) at
1 We acknowledge the amicus brief submitted by Disability
Law Center, Inc., Mental Health Legal Advisors Committee, Center
for Public Representation, and Massachusetts Association for
Mental Health.
4
Bridgewater State Hospital if the person is male and appears to
require strict security. G. L. c. 123, § 15 (b).
b. Facts. On July 9, 2018, the defendant was arraigned in
the Wrentham Division of the District Court Department for a
"bomb/hijack threat" in violation of G. L. c. 269, § 14 (b).2 On
January 10, 2019, while released on personal recognizance, she
underwent a § 15 (a) evaluation with a court clinician, Dr. Leah
Robertson. The District Court judge held a hearing later that
day to determine whether a § 15 (b) evaluation was necessary.
The defendant asserted that hospitalization was not
necessary for further evaluation of competency, and she
requested an outpatient § 15 (b) examination. In support of the
defendant's motion, defense counsel asserted that Dr. Patricia
Schmitz, an independently retained clinician, "told [counsel]
that she believes that she could complete a [§ 15] evaluation on
an outpatient basis."
Thereafter, Dr. Robertson testified as to her observations
of the defendant during the § 15 (a) evaluation. Dr. Robertson
specifically testified that, based on the § 15 (a) evaluation,
she did not believe the defendant "possesse[d] the ability to
consult with her attorney in a rational manner in her own best
2 On August 13, 2018, the Commonwealth amended the charge to
a "threat to commit crime: 'shoot someone'" in violation of
G. L. c. 275, § 2.
5
interest."3 She then recommended that the defendant receive
further evaluation at a psychiatric hospital. At the conclusion
of the hearing, the judge endorsed Dr. Robertson's
recommendation and ordered that the defendant be committed to
the Solomon Carter Fuller Mental Health Center for twenty days
for observation and further examination.
Although the defendant was ultimately found competent to
stand trial,4 the Commonwealth dismissed the case against her on
October 1, 2019.
2. Discussion. a. Mootness. The Commonwealth contends
that we need not reach the merits of this appeal because the
case has been dismissed and the defendant's appeal is moot. But
"[w]hen considering other statutory provisions that allow
involuntary civil commitment, we have determined that the
continuing stigma of a potentially wrongful commitment alone
sufficed to defeat a claim of mootness." Garcia, 487 Mass. at
102, quoting Matter of a Minor, 484 Mass. at 299. The same
3 A defendant is incompetent to stand trial if he or she
"lacks the capacity to understand the nature and object of the
proceedings against him [or her], to consult with counsel, and
to assist in preparing his [or her] defense." Commonwealth v.
Jones, 479 Mass. 1, 12 (2018), quoting Commonwealth v. Crowley,
393 Mass. 393, 398 (1984).
4 Following the defendant's commitment pursuant to § 15 (b),
she was found incompetent to stand trial. The defendant was
then committed for further observation and examination under
G. L. c. 123, § 16 (a), after which she was found to be
competent.
6
continuing stigma follows a wrongful, involuntary commitment
under § 15 (b), and therefore, the defendant has a surviving
personal interest in adjudicating whether the nature of her
confinement was wrongful. Further, "even absent the defendant's
surviving interest, 'it is well established that cases involving
the confinement of mentally ill persons present classic examples
of issues that are capable of repetition, yet evading review,
which thus warrant appellate review even after the confinement
ends.'" Garcia, supra, quoting Pembroke Hosp. v. D.L., 482
Mass. 346, 351 (2019). Accordingly, the defendant's appeal is
not moot.
b. Standard of commitment under G. L. c. 123, § 15 (b).
The defendant argues that § 15 (b) requires a judge to make two
factual findings before involuntarily committing a defendant:
(i) a finding of a likelihood of serious harm absent
hospitalization and (ii) a finding that hospitalization is the
least restrictive means of determining competency. We review
questions of statutory interpretation de novo. Pembroke Hosp.,
482 Mass. at 351.
i. Likelihood of serious harm. The defendant contends
that § 15 (b) only authorizes an involuntary commitment if the
failure to detain a defendant would create a likelihood of
serious harm to the defendant or others. We decline to adopt
this statutory interpretation.
7
"Our primary duty is to interpret a statute in accordance
with the intent of the Legislature." Pembroke Hosp., 482 Mass.
at 352, quoting Pyle v. School Comm. of S. Hadley, 423 Mass.
283, 285 (1996). Here, the Legislature expressly incorporated a
likelihood of serious harm standard in several nearby provisions
of c. 123. See, e.g., G. L. c. 123, §§ 7, 8, 9, 12. That the
Legislature chose to exclude this standard in § 15 (b)
demonstrates that the Legislature did not intend for this
standard to govern a § 15 (b) determination. See Commonwealth
v. Gagnon, 439 Mass. 826, 833 (2003), quoting 2A N.J. Singer,
Sutherland Statutory Construction § 46.06, at 194 (6th ed. rev.
2000) ("[W]here the legislature has carefully employed a term in
one place and excluded it in another, it should not be implied
where excluded").
The defendant argues that the Legislature's intent is
instead demonstrated through § 15 (b)'s reference to a "strict
security" standard, which incorporates a likelihood of serious
harm standard. Section 15 (b) provides for two independent
alternatives: "hospitaliz[ation] [(i)] at a facility or, [(ii)]
if such person is a male and appears to require strict security,
at the Bridgewater state hospital" (emphasis added). See G. L.
c. 123, § 15 (b); Miller v. Miller, 448 Mass. 320, 329 (2007),
quoting Bleich v. Maimonides Sch., 447 Mass. 38, 46-47 (2006)
("It is fundamental to statutory construction that the word 'or'
8
is disjunctive 'unless the context and the main purpose of all
the words demand otherwise'"). The latter "strict security"
standard is thus inapposite to the preceding clause of the
statute and provides no evidence of the Legislature's intent as
to commitments that, like the one in this case, do not take
place at Bridgewater State Hospital.
ii. Least restrictive means. The question we address next
is whether a defendant's hospitalization for twenty (or even
forty5) days for the purpose of determining competency is the
least restrictive means available to vindicate a compelling
governmental interest. The Commonwealth has a compelling
governmental interest in determining whether a defendant is
competent to stand trial, and a defendant has a constitutional
right not to be tried if he or she is incompetent. See Matter
of E.C., 479 Mass. 113, 119 (2018) (there is "a compelling
interest in [the defendant] not being tried if incompetent").
To further this compelling interest, § 15 (b) authorizes a
court to involuntarily hospitalize a defendant for up to twenty,
or forty, days. Section 15 (b) thus infringes upon a
5 Section 15 permits a court to extend the twenty-day period
to up to forty days if "an examining qualified physician or an
examining qualified psychologist believes that observation for
more than twenty days is necessary," "notif[ies] the court and
. . . request[s] in writing an extension of the twenty day
period, specifying the reason or reasons for which such further
observation is necessary." See G. L. c. 123, § 15 (b).
9
"paradigmatic fundamental right" -- "[t]he right of an
individual to be free from physical restraint." Garcia, 487
Mass. at 102-103, quoting Matter of E.C., 479 Mass. at 119.
Indeed, "[w]e have previously described a temporary
hospitalization as short as three days under G. L. c. 123, § 12,
as a 'massive curtailment' of liberty." Garcia, supra at 103,
quoting Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 784
(2008).6
As § 15 (b) encroaches upon a fundamental right, it is
subject to strict scrutiny. See Matter of a Minor, 484 Mass. at
309. To satisfy strict scrutiny, the law must be "narrowly
tailored to a compelling government interest," Garcia, 487 Mass.
at 103, and "be the least restrictive means available to
vindicate that interest," Matter of a Minor, supra, quoting
Commonwealth v. Weston W., 455 Mass. 24, 35 (2009).
We note that the analysis infra applies only to defendants
6
who are not detained pretrial. Pretrial detainees' "liberty is
curtailed" as soon as the individual is detained, see Velazquez
v. Commonwealth, 491 Mass. 279, 283 (2023), and therefore,
pretrial detainees have a different liberty interest from that
of defendants who have been released. Cf. Richardson v. Sheriff
of Middlesex County, 407 Mass. 455, 461 (1990) (restrictions or
conditions of confinement for pretrial detainees need only be
"reasonably related to a legitimate governmental objective" and
not constitute punishment).
10
Accordingly, for § 15 (b) to pass constitutional muster as
applied,7 a judge may only involuntarily hospitalize a defendant
if the judge finds that the Commonwealth, the party with the
burden of proof, demonstrates, "by clear and convincing
evidence, that there are no appropriate, less restrictive
alternatives that adequately would [allow for a determination of
a defendant's competency]." See Matter of a Minor, 484 Mass. at
310. See also Commonwealth v. O'Neal, 367 Mass. 440, 448, S.C.,
369 Mass. 242 (1975) (strict scrutiny requires "show[ing] [of]
the absence of less restrictive means to reach its compelling
goal"). Cf. Commonwealth v. Gomes, 407 Mass. 206, 213 (1990)
("before incarcerating a defendant for nonpayment, a judge must
inquire into reasonable alternatives to incarceration, such as a
long-term payment schedule or community service"). The "focus"
of a judge's analysis should be on whether there are any other
"viable, plausibly available options." See Matter of a Minor,
supra. Requiring judges to consider less restrictive
We recognize that we discussed the constitutionality of
7
§ 15 in Garcia, which concerned the interpretation of G. L.
c. 123, § 16 (§ 16). See Garcia, 487 Mass. at 106 n.15. We did
so because the Commonwealth argued that the court's
interpretation of § 16 would have an impact on the
interpretation of § 15. We disagreed and explained that § 15 is
distinguishable from § 16. See id. We specifically stated --
in dicta -- that, unlike § 16, § 15 is narrowly tailored because
"only defendants for whom a longer period of observation and
examination is needed will be hospitalized against their will."
Id. We did not resolve this issue in Garcia, and now, squarely
facing the issue, we do so.
11
alternatives "ensure[s], in accordance with the principle of due
process, that involuntary commitment remains a viable, but
carefully circumscribed, tool of last resort." See id. at 310-
311.
The Commonwealth may satisfy this burden through expert
opinion testimony. See Matter of a Minor, 484 Mass. at 310 ("As
a practical matter, in evaluating less restrictive alternatives,
judges may seek guidance from the qualified physicians,
psychologists, and social workers who already are required to
testify in these cases . . . [and] respondent's counsel may
argue [the] sufficiency [of various forms of treatment and
services]"). For example, with respect to whether an outpatient
evaluation may be sufficient, an expert may testify that long-
term observation in a hospital setting as opposed to sporadic
outpatient examinations is necessary to adequately determine
whether a defendant is competent to stand trial.
The Commonwealth also may meet its burden with other types
of evidence. A judge may find that outpatient evaluations are
not viable, for example, if the Commonwealth shows that the
defendant failed to comply with mental health counselling while
on pretrial release or the defendant had a history of not
appearing in court or for various treatment programs. See
Matter of a Minor, 484 Mass. at 310 (judge did not abuse her
discretion in hospitalizing juvenile despite existence of
12
voluntary program, "because she did not have confidence the
juvenile actually would attend that program"). The Commonwealth
may also prove that an alternative suggested by the defendant is
not plausibly available. See, e.g., United States v. Deters,
143 F.3d 577, 583-584 (10th Cir. 1998) (there were
"'sufficiently compelling' reasons to justify detaining the
defendant during her [competency] examination," including
concern that outpatient examination could not occur in State in
which trial was to take place because out-of-State defendant
could not secure place to live).
c. Application. Applying the interpretation of § 15 (b)
outlined supra, we conclude that a judge is required to make a
particularized finding that there are no less restrictive
alternatives before ordering hospitalization. "'[T]he
constitutional demands of due process' dictate that a 'statement
of findings and reasons, either in writing or orally on the
record, is a minimum requirement where a defendant faces a loss
of liberty." Matter of a Minor, 484 Mass. at 306, quoting
Brangan v. Commonwealth, 477 Mass. 691, 708, S.C., 478 Mass. 361
(2017). Specifically, the "judge must make clear, in writing or
orally on the record, the evidence he or she credited in support
of the legal conclusion" that it is necessary to hospitalize the
defendant pursuant to § 15 (b). See Matter of a Minor, supra at
307. This includes evidence the judge credited supporting the
13
conclusion that hospitalization is the least restrictive means
of determining competency. See Brangan, supra at 708-709
("Requiring a particularized statement as to why no less
restrictive condition will suffice to assure the defendant's
presence at future court proceedings is appropriate in light of
the applicable standard of substantive due process . . .").
At the conclusion of the hearing in this case, the District
Court judge made the following factual findings:
"I do understand Dr. Leah Robertson's presentation as [to]
her observations, her thoughts concerning the challenges
that you're presented with and the way in which she
observed your behavior and characteristics today and prior.
I understand that she does believe that you have this
illness, and that you are not in a position to be able to
confidently assist counsel, and therefore she is
recommending further evaluation and a work-up under [G. L.
c. 123, § 15 (a), (b)].
"I'm going to allow that and endorse her suggestion that
you be committed to the Solomon Carter Fuller Mental Health
. . . Center for further evaluation under the chapter and
section."
That is, the judge made a finding, based on Dr. Robertson's
testimony, that the defendant required further evaluation and
observation to determine whether she was competent to stand
trial.
However, the judge did not make an express finding that
hospitalization was, by clear and convincing evidence, the least
restrictive means to complete this further evaluation and
observation, and the clinician was not asked directly to opine
14
on the issue. Due process requires more, and the defendant's
constitutional rights were violated when she was involuntarily
committed absent such an express finding.8 Cf. Matter of a
Minor, 484 Mass. at 306-307 (judge's findings that "there [was]
no less restrictive alternative" to commitment insufficient
because judge did not "elucidate which subsidiary facts she
relied upon in reaching her conclusions").
3. Conclusion. Because the defendant's commitment was
unconstitutional, the order of commitment must be vacated and
set aside. The matter is remanded to the District Court for
entry of an order consistent with this opinion.
So ordered.
8 Hospitalization may well have been required in this case.
However, the Commonwealth did not meet its burden because the
clinician was never directly asked whether outpatient
examination was a viable alternative or whether long-term
evaluation and observation was necessary to adequately evaluate
the defendant.