-: SJC-13101,
Arnold Emma v. Massachusetts Parole Board.
-: Thank you.
Attorney Cusack.
-: Good morning your honors.
May it please the court.
Kelly Cusack on behalf of the petitioner, Arnold Emma.
Arnold Emma is going to die.
This court has the opportunity to decide
whether he dies with dignity or he dies in prison.
Mr. Emma is a convicted burglar
who was granted medical parole
because he was terminally ill and dying.
His condition was that he was so debilitated.
He did not pose a public safety risk when he was released.
And at this point no one is contesting,
confined to a wheelchair in the MCI-Shirley nursing unit
that he would ever burgle again.
This court has to consider the gravity
of the parole board's decision to revoke his medical parole.
Is not the consequence to have him serve
the remaining four years of his sentence,
it is a consequence of sentencing him to death.
-: But counsel can't the commissioner re-parole,
give him medical parole again, right away?
-: That is a possibility.
However, in practice, it does not seem
that the statute so permits.
-: Right, but the parole statutes don't seem to permit
the parole board to release somebody on medical parole.
And,
Mr. Emma did violate parole,
the medical parole conditions.
And so he was appropriately brought back into the system.
I don't see how we can rewrite the statutes
to give the parole board the power
that the commissioner has on medical parole.
-: It's not about the power to initially release
someone on medical parole.
And I think all of the parties have called
this something different including the Amicus.
-: It's called re-parole or whatever.
-: And I think that that is the wrong terminology
to use here.
The re-parole does not appear
in the medical parole statute or regulations.
The only place that re-parole appears
is in the parole board's own regulations
that were promulgated around discretionary parolees.
Re-parole should be defined as I stated in my reply brief
at just what it sounds like.
A person who has been granted a parole permit
goes through the revocation proceedings
is determined to have violated the parole,
and then the parole board takes a discretionary second step
determining that that person should be reincarcerated.
And then is granted a second parole
through a discretionary parole hearing.
-: I have another question for you though.
Sorry, Justice Gaziano, go ahead.
Is that you stated that the defendant
had a liberty interest in this medical parole.
Is that different than a regular
parolee's liberty interest?
Is there a difference in these liberty interests?
-: I would suggest that there isn't a difference
in these liberty interests.
There are two separate liberty interests
and I raised the statutory release for liberty interests
because this court still has under discretion,
Racine and Harmon, it hasn't yet been decided.
But the main liberty interests that we're discussing
is the one that comes from that conditional release.
Upon a parolee or probationer's release,
the both federal and Massachusetts courts have held
there is a protected, conditional liberty
interest upon release.
And that should be attained and that the medical parolee
should have a right to preserve that liberty interest.
-: So, it's the same,
that's all I wanted to know, it's the same.
So you can take Justice Gaziano's question.
-: Can you explain to me further
'cause the statutory language is against you
but I understand you're making a due process argument.
Can you explain to me why the person
couldn't apply for medical parole anew?
-: I certainly think that someone
could apply for medical parole anew,
but I think that the court
has to consider medical parolees are unique.
These are individuals who are terminally ill, incapacitated,
potentially suffer from dementia,
have other cognitive limitations to have someone
who is going through those medical issues
brought back into custody during a global pandemic
and then suggest that they should take that over.
-: The problem you have is that
they've been granted medical parole, then they violated it.
And then the parole board found a violation, correct?
-: They have found.
Well, I guess your honor's question was about whether
and when they can start the petition for medical parole.
So I think the statute, the way that it's written
and the way that the respondents previously
under Harmon and Racine have taken
is that they don't have an opportunity
to file a second petition after being denied.
Now they're taking a contrary petition.
-: I apologize 'cause I know the bottom line of every scene
but anyway.
So, your position is that the way
it's interpreted by DOC, at least right now,
is that there's no ability to serial refile.
-: They're taking a contrary position in this particular case
and saying, yes, there is nothing to limit
a second medical parole petition but that's assuming
that someone has already been revoked.
So if you're looking at the timeline of these two statutes
and requiring when they should actually file
for a second medical parole petition,
if you haven't been revoked yet,
and you're waiting for that decision,
we're talking about 66 days
or 60 days until the parole revocation decision.
And then 66 days from there.
126 days for someone like Arnold Emma
who's prognosis as of February was three to six months
but he will likely succumb before then.
It's just not a fundamentally fair to put that on him
and have him file
for another second medical parole petition.
The issue before this court.
-: They don't find a violation the first time though.
So they exercise some flexibility here.
They sort of give him a warning.
Does that sort of suggest that they're using the violation,
they're wibbly interpreting violation to take into account
what you're talking about, which is it doesn't really amount
to a violation that justifies reimprisoning?
-: No, I would disagree with, your honor.
And I think that part of that discretion
that they're reading into that same section of the statute,
if you read 119 AF, the line prior says,
if a parole officer receives credible information
that a prisoner has failed to comply by a condition,
the parole officer shall immediately arrest...
-: They gave him a break though, right?
Attorney Kelly: He did. -: He did.
So they have, I mean, we'll be asking
your opposing counsel some of that
but they do seem to have some flexibility here.
At least they've exercised some,
whether they legally should have.
Is it your view that they should have automatically violated
him the first time?
-: No, my view is that the board is not applying the law
as written and does read into it discretion.
Which why would that discretion then not apply
to the two-step Morrissey process revocation proceedings.
-: Well, but I guess the question I have is,
are they really without saying it, doing it?
And by deciding that a violation is something
that justifies reimprisoning,
they're doing what you're asking them to do, anyway.
-: I would disagree with that.
The graduated sanctions and warning tickets
are discretionary, and they're supposed to be
the least restrictive means possible at the time.
But once you get to the revocation process
and once it commences, there was a two-step process
under Morrissey that's required.
First, is that fact finding process.
Was there in fact a violation?
And that doesn't happen with the graduates
or warning ticket.
That is, they have a case conference,
they determine what the sanction should be.
But at an actual revocation hearing, they have to determine
whether or not there was an actual violation.
Then the second step requires whether or not that violation
should warrant reincarceration.
And here the parole board and the department of correction
take the position that they lack that discretion
for the second step.
That it should only have discretion,
it can only determine whether there's an actual violation.
The proposal is this bifurcated hearing
which frankly is just completely unworkable.
I think you have to consider, and they should have.
-: So, I understand your point,
but how do we do it with the statutory language?
That's what I'm...
The statutes unconstitutional unless we read that in,
or is there some way you read
this flexibility into the statute?
'Cause I have the same problem Justice Gaziano does
which is just the language is so explicit.
-: I would agree with your honor that the language is,
says shall.
And I think that the Amicus brief filed
by the prisoner legal services does point out a way
that this court can interpret some discretion
and that the shall is really a directive
and has the discretion.
-: Well, without playing with the language
and being cute that way.
Can we just say that there's because parole
is at play here and there's a parole hearing,
there's a due process overlay
and then apply the two-step Morrissey process?
-: Absolutely.
-: That doesn't require us to take
a machete to the statute, correct?
-: I agree with you, your honor that Morrissey requires
the two-step process
along with the bare minimum procedural of concepts.
And the statute is clear that the decision to first release
a medical parolee is by the commissioner.
Every decision stemming from that release
is to the parole board.
The parole board monitors the home plan,
sets the terms and conditions,
can alter the terms and conditions.
And also is scheduled to supervise
and proceed over reputation.
-: Just to wrap up this thought in what you're arguing
as I understand it is that,
the ability to seek subsequent medical parole
is not a substitute for the second part of Morrissey.
-: That's correct.
And I think the best way,
and I phrase this in my reply brief is,
this is really about the authority not to revoke.
to make that decision to not end somebody's medical parole,
take them out of their palliative care,
away from their medical providers
and put them back in prison
where they're likely going to die
before they reach their actual parole eligibility
or their sentence max state.
And I would suggest to the court
that Morrissey does allow for that discretion
and it actually requires it.
The parole board owned regulations
and in the agreed statement of facts,
agree that once someone begins the revocation proceedings,
it goes under the SMRs regarding revocation proceedings.
And I would suggest that this needs to happen
in the same proceeding.
Morrissey requires not only this two-step process
but also that it happen in a reasonable amount of time.
And as I've already pointed out, having this onerous burden
on a medical parolee to start the clock over at some point,
whether it's day one
from the the beginning of parole revocation proceedings
or day 60 is just a fundamentally unfair.
Any day a prisoner who is eligible for medical parole
remains in prison is unreasonable and unconstitutional.
This bifurcated hearing that's proposed
not only causes an delay, but is wasteful and cumbersome.
And as this court has held before in Dinkins,
where it struck down the exception for any sentences
to have be held after consecutive life sentences
would be wasteful of the board's limited time and resources
creating additional burdens
on those who are seeking parole.
Here, those same issues would apply.
If it is not the same fact-finder,
simultaneously making that decision,
we also leave open room for error,
which is in fact on this record,
what happened with Mr. Emma.
In the respondent's brief, they claim...
-: Counsel can I ask you a question that it does seem to me
that's the really thrust of your argument.
That it's not the same fact-finder making the decision
whether to parole again
or revoke it.
Where in Morrissey does it say
it has to be the same fact-finder?
-: It's not specifically explained in Morrissey
that it has to constitutionally be the same fact-finder
as the decision maker.
-: Okay, so, I guess I'm trying to figure out given
the statutory language, which I agree is clear
at why the due process clause requires the same fact-finder?
-: Because there's this issue of unreasonable delay
and the opportunity for error.
And for medical parolees,
who are you're taking off the street,
who are the most vulnerable, the most infirm,
the most that this court has found...
-: And what is the delay again, required by statute?
-: The delay, the beginning of revocation proceedings.
-: Like, what's the number?
Attorney Kelly: 60 days.
-: 60 days.
So 60 days is a constitutional violation?
-: 60 days, plus another 66.
So if the medical parole petition...
-: So 126 days, if I do the math right
is a constitutional violation?
-: I would suggest yes.
On these facts, particularly on these facts
where Arnold Emma has...
-: Where do you see that in Morrissey?
126 days is too much.
-: There's no specific number in Morrissey.
-: I know but you're reading that into Morrissey.
That seems to be the crux of your argument.
What is that?
-: The crux of my argument is based
on the facts of Mr Emma's case
and that he had three to six months to live
and that diagnosis and prognosis came down in February.
So if we're talking about 126 days,
we're talking about potentially the end of his life
before he has any finality or decision from the time
that he's seeking re-release,
or in my opinion the authority for the parole board
not to revoke.
-: So it's the coincidence
of your particular client's illness and expected lifespan
with the 126 days that constitutes
the due process violation.
I'm not suggesting it's not,
I'm just trying to figure it out.
-: That and there's this issue about the
room for error.
Because if you have the commissioner,
it's clear on these facts that the commissioner
has no influence, isn't present, doesn't make,
have any part of the parole revocation proceedings.
She's not there.
She's doesn't know what facts are presented.
She's only given a record of decision
plus potentially a hearing summary,
depending on whether it's the provisional
or the final revocation.
And on this record you can see where there is room for error
because Mr. Emma, while his provisional revocation hearing
there was found on both counts for probable cause
to hold him pending a final hearing.
At his final hearing, the only violation
that was affirmed was his failure to abide by his home plan,
mainly because he was wheeled out
of the Boston Medical Center
and taken back into department of custody,
department of corrections custody.
So the parole board and the respondent's brief
now states that part of the reason
and the violations were both that he absconded from parole
and he was terminated from his home plan.
That is not what actually happened at the hearing.
It's clear in this transcripts, it's clear in the record,
that the only reason that the violation was affirmed
was on the second ground
that he was terminated from his home care plan.
So consider someone in Mr. Emma's position,
who now you have the decision maker
relying on a mistake of fact.
There's nothing in the statute or regulations
that allow for any kind of remedy.
And so reading those into Morrissey, the reasonableness
should also include that this fact finding
and the decision making happen
by the same body simultaneously,
and that's what Morrissey should require.
-: Well, if the body made the wrong...
You're saying that the board
concluded something incorrectly?
-: Correct.
All right, so your solution to that
is having the board decide whether or not to revoke?
-: And I'm sorry, I misheard you.
The respondents in their brief before this court
have stated that their position
is that the two violations were affirmed,
that is not correct on the record.
And I don't know if it's a joint brief,
so I don't know if that's coming from DOC
or from the parole board.
But there is room for error where the person
who is the fact-finder is not also the decision maker.
And then there's left for medical parolees,
the most infirm vulnerable prisoners in Massachusetts
were left without any remedy to fix that error
while they're also dying.
The court should also consider,
and I realize my time is up,
that the legislature's intent should not have also thought
about these minor, technical, non-willful violations.
I think the court should consider hypothetical situations
where you have someone who has dementia and fails
and gets lost or fails to meet
with his supervising parole officer
or wanders out of his facility so many times,
that he gets terminated and has nowhere else to go.
Or a situation where is subject to GPS monitoring,
and they need an ambulance for emergency care to a hospital,
on the way their batteries die.
Is this what the legislator intended when they implemented
and wrote this compassionate release statute?
Did those people violated their conditions
and therefore they must resume their sentence?
-: Okay, I'm gonna ask Attorney Johnston
to respond to those points.
So thank you.
-: Thank you your honor.
First, your honor, I would like to respond
to my sister's contention that Mr. Emma
was not revoked because of the violation
for not agreeing to go back to the treatment center.
I wanna make clear that although the basis was a violation
of his home plan, the entire discussion
at the final revocation hearing,
the violation of the home plan
was refusing to go back to BMC treatment center.
It was trying to abscond for treatment.
That was the entire discussion
at the final revocation hearing.
My sister is trying to make a distinction,
it's a distinction without a difference, essentially.
The basis for the violation was the fact
that he refused to go back to BMC for treatment.
He admitted that at the hearing himself, he admitted that.
He stated that he wasn't happy with this placement,
he should have consulted the parole board about that.
That was clearly the basis
for the board's determination of the violation.
Whether we call it the absconding from treatment,
whether we call it a violation of a home plan,
that is why he was taken back into custody,
that is why he was not allowed back at the Farren Center.
There's really no question about that.
And if this court looks at the transcripts
from the final revocation hearing, this court will see that.
Turning to the clear language of the medical parole statute,
I think, and it's been noted by this court,
based on the language of the medical parole statute,
it is clear what the parole statute says,
and I specifically refer this court to chapter 127, 119 AF
where it states that upon a finding of a violation.
And assuming that this is a violation
that warrants revocation.
-: Suppose we agree with you that the statute says
what the statute says, right?
What about the due process component of the statute?
How is that satisfied?
-: Yes, your honor.
And I don't think there is any issue here with the process
that is set forth in the regulations.
Oh, I'm sorry, the statute and the regulations
violating Morrissey versus Brewer.
Morrissey versus Brewer provides
for certain due process protections.
The parole board absolutely agrees
that the medical parolee is entitled to those.
Those include and they're listed in the brief.
The right to a neutral body,
notice of the hearing, a right to neutral body,
a right to cross examine witnesses and present evidence,
a right to represent it if they want
and a notice of the reasons for the revocation.
-: Yeah, your opposing counsel suggest that Morrissey
also holds that there needs to be this two-step process.
And that that two-step process is required
by the constitution and that in this case,
the second step is missing.
-: See your honor, first of all,
I think that it's far from clear from Morrissey
that there has to be this two-step process.
So what Morrissey says is that
they have the right to, first,
you look at whether or not there's a violation.
And then yes, if there's any mitigating circumstance.
But it would seem from Morrissey
that mitigating circumstance goes to the violation itself.
Now the parole board's position here is certainly not that
the parole board panel can't make a determination
that it doesn't constitute a violation
because say, the person was under duress when this happened.
What the parole board's position is that,
the parole board hearing panel
can not take into kind of extraneous
or totality of the circumstances type,
determination where the parole board says,
yes, he committed this violation.
It's a violation that warrants revocation,
but we still make a determination,
our discretion that we don't think this person should be...
-: But I think the parolee board saying
that any violation requires reimprisoning, right?
Any violation.
So if they find, I mean, they exercise the little discretion
by giving a warning for the first violation.
But even that probably is contrary
to your interpretation here, right?
-: No, your honor.
So here, I would say that once there's a violation
that the parole board,
it's up to the parole board to find if there's a violation
that warrants revocation.
Here, they did so, and that was based on,
in this case based on the information,
the evidence presented.
Now the parole board hearing members did say
if it was up to us,
we would allow you to go forward on this new home plan.
But that isn't a determination
that there wasn't a violation that warranted revocation.
-: I understand.
But the hard question in the case is,
is there some kind of, I guess,
procedural due process right for
them to do the second step,
that not only was there a violation,
but did that violation rise to the level
where it requires you to reimprison?
They're saying it does
'cause Morrissey always talks
about the two-step process, right?
-: Yes, and the violation, whether it not,
if it's a violation that warrants revocation,
then, yes, they parole board does have to,
if that point the prisoner
according to the language of the statute
resumed serving their sentence.
-: But the legislature seems to have made a determination
that every violation requires reimprisoning.
But the Supreme Court and Morrissey
seems to think that the parole process itself
has to have a second step to it, right?
-: Right, and I think Morrissey versus Brewer
has to be looking at content, taking a context, your honor.
Morrissey versus Brewers is a 1972 Supreme Court case
that is discussing traditional parole.
It is not a situation where they're looking at a situation
where the parole board is the one
that grants that discretionary parole.
And they make that additional determination.
Morrissey verses Brewer is not,
this is prior to any medical parole statutes,
is prior to any compassionate release type statutes.
-: I get it, I get it.
The context here is much more confusing
'cause you have two different entities involved
in the decision to medically parole.
But at the same time, we will get all the context,
your opposing counsel says, well, this guy's gonna die.
He's in the category of the terminally ill medical parole,
impaired medical parole is no longer dangerous.
And therefore this 126 day process
is gonna end up with him basically dying, no matter what.
-: Your honor and I definitely understand.
So one point I wanna make
and as this court has already pointed out,
Morrissey versus Brewer itself does not say
that one specific agency,
that that there's a due process requirement.
That one specific agency makes that determination
in terms of that second step as my sister calls it,
of whether or not someone is entitled to be re-paroled,
or whatever term we'll use, released to the community,
after a violation that warrants revocation.
So Morrissey versus Brewer
certainly doesn't say anything like that.
And my sister would be reading something into Morrissey
or anybody would be reading something
into Morrissey versus Brewer to claim that.
-: Right, and I agree with you on that point
but I think her better argument is that the 126 day process
doesn't make any sense
when we're dealing with terminally ill parolees.
Meaning, I wouldn't say it doesn't make any sense.
It doesn't protect the due process rights properly
of these prisoners 'cause they're going to die
in that 126 days.
-: I understand, your honor, absolutely.
So one thing this court has already pointed out,
there no time limits set in Morrissey versus Brewer.
But I understand that there's a concern with 126 days.
But what my sister is arguing that there it's 126 days
necessarily but that's not actually the case.
The petitioner does not have to wait
until after the final revocation hearing
to file any petition.
In fact, Mr. Emma, in this case did not.
I think he filed his petition in late January.
The actual final revocation decision
was decided on February 10th.
-: So your review was that he could file,
it's a 66 days
because he could file for re-parole immediately.
-: Yes, your honor.
I'm not sure that will always be within the 66 days
in a situation like this, where say,
I could imagine the commissioner of the DOC,
if there's a final revocation hearing
happening would want that decision
of the parole board's final revocation hearing decision,
because imagine,
if they did not end up finding that he violated.
So I can imagine the commissioner wanting
that decision in advance of making her own decision
on a medical parole petition,
but it's in we're not necessarily looking at 126 days here.
And Mr. Emma himself here filed a second medical parole
petition before the final revocation hearing.
So this idea that it's necessarily gonna be 126 days,
that's just doesn't bear out, and there is nothing
in the statute to support that reading.
Also, I want to point out here that with respect
to Mr Emma's case, I wanna point out that
and with respect to any medical parolee
who has violated their medical parole,
the parole board's determination
will not necessarily be the same
as the DOC commissioner's determination.
And that bears out in the facts
that they've reported to this court about what happened
that the court asks, cursor and question,
how many people violated parole?
How many people were brought back
and returned to custody and filed new petitions?
And we forward it to the court.
Six people,
four of those individuals for violating the parole.
Three of those people, including Emma filed new petitions
and the DOC commissioner denied those new petitions.
That just in itself shows
that the DOC commissioner's determination
may not be the same as the board,
because she's taking into consideration
certain factors at that time.
And the fact that someone violated those conditions
may change those factors.
We don't just look to whether or not,
the DOC commissioner doesn't just look to whether or not
someone is terminally ill, permanently incapacitated.
They look to see whether that person
could live in liberty...
-: Again, and unlike some of my colleagues
who put on conditions of parole at sort of,
30 times a day, I didn't.
But there are all kinds of very specific,
violations out there.
So basically, we're just gonna automatically
put all these guys back in?
-: Absolutely not your honor.
-: As long as it's intentional.
I mean, I know you described one where your car breaks down
and you don't make it to your parole officer.
But if there's an intentional violation of any kind,
you're out of luck and back in prison.
-: Absolutely not your honor.
I think we speak to that in our brief, in that,
even in Mr. Emma's case, and as this court has noted,
first of all, the first stages that a parole officer
finds if there's a violation.
Now we refer also to the statute 127, 130
and we look at that and we see that the parole officer
in consultation with the parole supervisor
makes a determination as to whether or not
this is a violation that warrants revocation proceedings.
-: Hold on, that second part is not really true, right?
Where is the warrants revocation?
The statute says just any violation results in revocation,
not warrants revocation.
There's no discretion built in.
I know they kind of did some discretion here
but there isn't any build in, is there?
'Cause then if that's the case, aren't they right?
Shouldn't we just come right out and say it.
If you're saying that they make a determination
that it warrants revocation.
-: Not when it's a violation of their actual
medical parole plan.
So I think there's something different
between a minor infraction of say what happened with Mr.Emma
originally in November of being rude to staff
and a violation of the actual person's medical parole plan.
Here, this is his home plan, it's his actual treatment.
The parole plan is one of the considerations
that the commissioner of the DOC takes into consideration
when weighing the question of whether
or not this person should be given medical parole.
-: Wait, that's not in the statute, right?
-: [Attorney Johnson] No.
-: It just says any violation of probation, right?
If there's a limitation will be helpful to know...
Could you articulate what the limitation
that Commonwealth says isn't there
'cause I don't really get it, I thought it was automatic.
-: So, and this is reading in combination,
reading in combination the statutes with the regulations,
with the parole board policies.
And as this court knows the court.
-: You talk, I've been listening to you for 20 years
or 10 years, you talk so fast and this is really important.
Could you slow this down?
Tell me what the limitation is 'cause I wanna note it.
-: Right.
If the board finds this as an actual violation
of the person's say home plan,
than their actual plan
for their medical parole.
And there is some discretion I would say...
-: So it's limited to violations of home plan.
Is that what you're saying?
-: Or a significant violation of their medical parole?
I don't know if there is.
I would say there is some discretion built in.
-: That we should read the word significant into the statute.
-: No, I mean the parole board
is definitely taking a cautious common sense view here
and not taking the view that any minor infraction
is going to admit it amount to a considered violation
enough to revoke parole.
And I think that's important
and I think that should factor in to why this...
-: So, but does is it a significant violation
that merits reimprisonment
or is it just a significant violation?
I'm just trying to understand
what you interpret the statute to require.
-: A violation that would warrant revocation of their parole.
A violation that would be significant enough that it would,
so first of all, before it ever gets to the parole board,
before it ever gets, to that point,
a parole officer makes a determination here.
The parole officer makes a determination
that this is a violation to go forward
on revocation proceedings.
-: Again and I don't mean to belabor this.
I know it's going over, but their argument is,
that you have to have a second part.
You can't just decide there's a violation.
Rather it needs to be a violation
that warrants reimprisonment.
It sounds like you agree with that,
that their violations need to warrant
reimprisonment to be found.
-: I think that's right, your honor.
I think the parole board's disagreement here is that
the board doesn't have discretion to consider extraneous
factors like whether they themselves, he
or the court is, specifically Emma.
And this is a suggestion, I think, my sister is making
for all cases that even when
there is this significant violation of medical parole,
the parole board found that here
it's a violation of his home plan.
It's one of the key reasons why,
one of the reasons at least that he was allowed
out on medical parole,
is that he was gonna comply with this plan.
He did not comply with it, that is a serious violation.
What my sister is asking for is not
a finding that has to be that kind of violation.
If that was the case, there would be no appeal here
in this case 'cause he certainly violated
an important part.
This wasn't a mere technical violation.
My sister's argument, and I think
what the parole board is disputing is that there has to be
an entirely different, different second step,
which is in a sense what is allowed
in discretionary parole.
And that's saying, look there's this violation,
serious violation, it warrants revocation.
But we don't care about that because we think
there are other outside mitigating circumstances,
outside mitigating circumstance
that have nothing to do with this violation,
they don't excuse this violation,
they don't justify this violation.
That is a basis for granting him medical parole,
that is essentially taking away
the authority of the commissioner of the DOC,
that is within her discretion.
And whatever we call this, whether we call it re-parole
or whether we call it rerelease, whatever we call it,
it's the same thing.
What my sister is asking for is that you take into consider,
the parole board gets to consider outside considerations
that have nothing to do with the violation and say,
should this person go back to prison or not?
But that is not what the statute stands for.
And there's no due process right to that.
There is no due process right to that in Morrissey.
Court shouldn't read into a due process right for that.
So there is that certainly, the prisoner is entitled
or can be entitled to consideration of that
on a new petition but he's not entitled to that.
-: Okay.
Thank you so much, we're gonna wrap it up here.
And I'll just ask Attorney O'Donnell,
if Attorney Johnson has covered it for you?
I'm joking, I'm joking, go ahead.
(laughing)
-: I'll address the second question
that was reported by the single justice.
And the question was does the commissioner
have the ability to and I'll use the word,
re-parole someone that has been returned and revoked
on a medical parole?
And if so, what's the process that's followed
for an individual in that circumstance?
As you may have gathered or so far,
certainly from within the brief,
certainly the commissioner has the ability to consider
another medical parole petition on someone
that's returned for this type of a matter.
You heard Attorney Johnson mention there are six.
The other question referred by the single justice was,
of parolees who had been revoked,
how many have put in another request
for a medical parole and what was the outcome?
So four of the folks that were returned into the prison,
of them three had filed a new medical parole petition.
And in none of those cases, did the commissioner assert
that she was unable to consider the matter
because she was prohibited or something like that.
In each of the three cases she denied
the new medical parole petition for substantive reasons,
public safety reasons.
The fourth individual, he had started
to put in a medical parole petition
but then his regular parole date came up.
And so he withdrew it and he got released on regular parole.
They were two individuals whose medical conditions improved
while out on parole,
such that they were deemed to be no longer eligible.
So they returned to the DOC
and they haven't as yet put in a medical parole petition.
The process is the exact same
that's followed for an initial medical parole petition.
So an individual submits a petition
to the superintendent of the facility.
-: May I stop you their counsel,
when can that petition be submitted?
-: They can file at any time, your honor.
It does make sense though, to focus on this context.
If you have an alleged revocation pending,
you can file it as soon as you come in.
But I know the commissioner is gonna wanna know
was that an established fact, whatever was alleged?
It really doesn't make sense.
I know Mr. Emma filed it beforehand.
And he got revoked formally on February 10th.
His medical parole petition was denied
by the commissioner on March 29th.
So that's not 66 days, that's shorter.
But it's not really a practical approach to take,
I would suggest, for the individual to immediately refile
because the commissioners wanna know
is that an established fact, whatever was alleged,
whatever caused the person to come back?
That's gonna be a factor.
The reason that the commissioner should...
-: The reason I ask is because your opposing counsel
seems to be taking the position that 126 days
in the context of a terminally ill patient, prisoner,
is a due process violation.
And so if there's no gating issue
when somebody can file a petition for rerelease
or re-parole as soon as they enter the revocation process
then the 126 days gets shortened.
-: They certainly can.
And every situation is different and unique.
Not everybody that gets granted a medical parole
is terminally ill, some are.
The key point is, and it's a public safety matter,
for someone to be released on medical parole,
the commissioner is persuaded that there are so debilitated
that they're released.
They could be expected to remain at liberty,
not violate the law.
There's no public safety aspect risk.
So,
every case is different.
So if you have a person returned, he could immediately file,
the case could immediately be looked at
and the commissioner can immediately rule.
She doesn't have to take the 66 days
but that is usually probably what's gonna happen
because she wants to know has the alleged parole
reasoning for return, has that been formally adjudicated?
Yeah, he's revoked.
This is what we determined that he did.
Now, that's gonna be a factor
in play in the commissioner's decision-making
because that fairly might call into question,
how debilitated is he not?
Maybe he's improved to some respect if he's able to,
like in Mr. Emma's case.
And I know there has to be some factual dispute as to
but clearly his place of residence, he was terminated.
So here you have a guy that requires medical attention,
terminated from his assigned placement,
where else but in a correctional facility
is he gonna get medical care in the immediate term?
So, I mean, it makes sense.
But, so he comes back in and the commissioner
certainly can and does look at
any new medical parole petition submitted,
and basically that's it.
Are there any other questions?
I have a small part to play,
it's mostly the parole board's case.
-: Okay, thank you very much.
-: [Attorney O'Donnell] Thank you, your honors.
Man: All rise.
(indistinct)