-: SJC 13247, James B. Carver V Carol MICI and others.
-: Wait.
Okay. Attorney Sullivan Puccini.
-: May it please the court.
Sharon Sullivan Puccini on behalf of James Carver.
James Carver is an inmate who has multiple serious
medical conditions.
Including the removal of a brain tumor.
That later led to his incontinence, vertigo, tremors,
leg neuropathy, and ultimately his confinement
to a wheelchair.
He has a pusher who assists him.
He has a catheter, medical briefs, a helper for tasks,
and he must be housed
in a facility with 24 hour health staff.
He has no other crimes committed in the past 38 years.
And his only disciplinary report that was referred in the
superintendent's recommendation to the commissioner
was in 2019 for being out of place,
which had been due to issues with his wheelchair.
And before that, there had been about a
a decade before for any disciplinary infractions.
He was assessed by the department of corrections,
own risk assessment and recidivism low.
And he was found to be low risk for recidivism and violence.
And he was classed to a minimum security facility.
And as this court found in Buckman, research shows that
elderly and infirm prisoners are considered less likely to
re-offend when released.
He is eligible for, for medical parole. Now he.
-: Now but Counsel our, our question isn't eligibility.
The question for us is whether or not there is an abusive
discretion, is that right?
-: Correct.
Correct.
-: Given the January, 2020 incident, which,
which I have not yet seen the video of, but as described,
why would it be an abusive discretion for the commissioner
to determine that, that the,
that your client still poses a risk to public safety?
-: Okay, so
there's no,
there's no issue about whether he's permanently
incapacitated.
The Dr. Strauss has already determined that.
So what the dis,
what the commissioner was required to do.
-: Well you mean permanent incapacity is defined as,
not just what the licensed physician determines,
but also that it is so debilitating that the prisoner does
not pose a public safety risk.
-: Correct.
-: Which is why I was focused on the January incident.
-: Correct. And, and I'm just gonna correct you it's,
it was June, 2020 incident. Okay.
-: Okay, so June. Even sooner.
-: Okay. But why that's important
is because the classification report
that was done, that was submitted in this case,
happened after that incident, that was June, 2020,
and then they, he was classified after that.
There's no mention of that,
of that incident and that incident, which you have not seen
my,
my review and obviously is different from what the D.O.C.'s
review is of that incident, as well as
the district attorney.
-: Either is really relevant on my abusive discretion.
-: Okay.
-: Standard.
-: So abuse, her abusive discretion.
Deference is not abdication.
She does not have unlimited discretion.
And you can see that by the numerous different opinions
that she,
or decisions she's made
and other superior court cases
have come down with superior court judges saying
that she has abused her discretion.
She's made arbitrary decisions.
And, and we have given you some examples of that in,
in the record.
So she has made, okay, so for her
abusive discretion, in this case,
she has, what is she required to do?
She's supposed to get a medical parole plan from the D.O.C
as well as a written diagnosis from the physician.
Which she has. And the assessment of the risk of violence.
There's no medical parole plan in this case.
-: Can you, you not,
can you not lump the different issues together?
Let's try to do them separately.
So the, the first point made
is about the classification plan.
Right?
And the classification plan was to determine what level of
security was appropriate for him. Right?
-: Correct.
-: So that's different than whether he is being released,
whether they manage him in a minimum security versus a high
security environment is a different issue than whether he's
so debilitated that he doesn't present
a public safety risk. Right?
-: Correct. But they also had the 2000,
he also in included the 2009
risk assessment done by the D.O.C,
that was sent to the commissioner from the superintendent,
with his package that he gives the D.O.C.
And that shows that he's at low risk of recidivism,
low risk for the violence.
-: But again, that purpose of that was,
and I may be confusing the two cases.
And if I am, you let know, but
I thought the purpose of that classification was to
determine the level dexterity in a business.
Is that wrong or correct?
-: But, but the classification report in the record,
you'll see that it has numerous indications of,
of his,
what, what he is capable of and his medical restrictions.
There's all kinds of different things in it.
The, so with both together,
those are show that he is a low risk
and that's actually one of, one of the things that.
-: And okay, can I, I, I get that.
Can I shift you to the role of the offense for a sec because
your client is, was convicted of arson, right?
-: Correct.
-: So, and I'm trying to understand
the role of the offense in cause we're so debilitating,
that he doesn't oppose a danger, don't we have to take into
account the offense that was, that he committed.
-: Correct. You do it.
You could, you have to consider the offense.
So in this case, it.
-: Like, cause if he was a bank robber,
I understand he's not gonna be a bank robber anymore,
but arson presents a different set of risks, doesn't it?
-: It does. But it's not just the offense that it's,
it's a risk for, to the public sec,
a public safety risk in general.
Also they can, you can consider the,
you should the, the offense.
But in his condition,
is he able to get to a, a place, get materials?
Would he be able to commit an arson?
-: Let's let's, let's look at that in given, I mean,
all he needs is matches, right?
And.
-: Okay. But.
-: Some sort of an accelerant.
-: And, and how would he be able to do that?
But I, but I have to make the, the more important point is
why the commissioner in this case
committed a substantial error of law.
Is that she had no
medical parole plan from the D.O.C.
This court has said,
is supposed to be a collaborative process with.
-: I, I, I agree. She dropped the ball on that.
It doesn't make any difference cause didn't
the client provide a medical plan?
-: Correct. But the,
but that is not a substitute
for what the D.O.C is required to do.
And you have said that in, in both Buckman and Malloy.
So she has committed a substantial error of law.
So in not having the plan,
in not doing a plan.
Because the plan,
an appropriate plan can make the,
can reduce the risk to zero.
If, if the plan had included for Mr. Carver
to go to some place, say Mission,
Mission Hospital,
Mission Care.
He would be in a facility that there would be no matches.
Any, any nursing home,
there would be no matches.
He would not be able to. So that risk is zero.
He needs to find an,
there needs to be an appropriate placement.
The people, the,
the people who are, the inmates do not have to be totally
incapacitated to the point where they cannot function.
Mr. Carver meets the standard for permanent incapacitation.
His risk of, of re-offending is low in his physical state.
And as well as, if there had been a plan
put in place for him,
his risk would be at zero.
So I'm gonna move on to
the point that permanent incapacitation
does not mean total incapacitation.
So the, the commissioner and the D.O.C and their brief make,
they make a lot of arguments about
ADLs and, and what, what an inmate can do.
What can they do?
It's not total abstinence of functioning,
that's required under the statute.
It's and it's what they're trying to do with the
debilitating condition.
And, and keep going back to those ADLs
is they're narrowing the class of inmates
who would be eligible under the statute.
And that is not what the legislative the legislature wanted
with this statute.
So getting to
the video,
and I understand if you have not watched the video,
I do wanna make a few points about that.
We have provided the prison's legal services,
and CPCs has provided a Amicus brief that discusses
that in the incident on June 20th,
that Mr. Carver was in a apparent psychiatric disability.
And we know from your cases, and from the ADA,
that it applies to medical parole, and that the,
the commissioner cannot discriminate against Mr. Carver.
I would suggest if you, when you watch the video,
you can see that it, it,
it is an obvious overreaction by staff.
And I will, again,
will say that he was not given a disciplinary charge for
that action.
He suffered a wrist injury from the risk of force.
-: And, you know, counsel,
I go back to the standard of review,
which is where I started. You know,
if I would make a different decision, it doesn't matter.
The question is whether or not the commissioner abused her
discretion in making this decision.
-: Well, she has to consider all the,
all the factors and her weighing in this case,
our position is that she did not weigh appropriately.
I know that she can give whatever weight she wants, but
what she found in the video, she,
she basically takes what the district attorney says and
verbatim says, this is what, but basically what she saw.
And then at the end of her decision, she says,
when she goes through the reasons,
the last thing is "nothing in the video.
Use of force incidents demonstrates that Mr. Carver is,
is either terminally ill or permanently incapacitated."
But it, but our position is that
when you see the video that he does appear to be, he's,
he's not as strong and combative as the district attorney
makes out in her letter to the, to the commissioner.
You know, there's an awkward arm raise,
which they call a punch to the, but,
but when you see his condition and the way he's moving in
that video, it shows that he is incapacitated.
Again, that video, the, the D.O.C. has argued,
is only one point in her, and it's not dispositive of her,
her decision.
But again, the what's the abusive discretion?
It's the, it's the weighing again, the weighing of the,
the factors.
And she has to do a reasonable weighing of factors.
And she has, in opposition is, she has not done that.
She has not considered an appropriate plan.
Which this court has said has to be done.
And we are here again. And these,
these cases that keep happening over and over again,
this numerous remands,
these cases are being dragged out, this continuous delay,
not just my case, my case,
and the case that you're gonna hear next,
but there's numerous cases that, that just keeps happening.
There's a statute that should be followed.
The commissioner is not following the statute.
She's not following the intent of the legislature.
-: Do you know counsel,
are there any civil suits pending in any,
in the federal jurisdiction or anything
collectively for the prisoners on this issue?
-: Not that I know of.
And if there are no other questions,
I will rest on my brief.
-: Okay.
-: Thank you.
-: Okay. Attorney McClain.
-: Good morning. Your honors.
They may please the court. Scott McClain for the respondent
appellees Carol Mici,
the commissioner of the department of correction and
Steven Kennedy, the superintendent of the old colony
correctional center.
Respondent appellees respectfully asked this court
to affirm the lower court's decision
to uphold the commissioner's decision,
to deny medical parole for the petitioner appellant,
James Carver.
As the, the court properly found that the
commissioner's decision in denying parole, medical parole
for Mr. Carver was not arbitrary and capricious.
As has already been mentioned by this bench.
In order to be, in order to be found,
in order to qualify, excuse me, for medical parole,
a commissioner must find that a prisoner is,
that a prisoner,
is terminally ill or permanently incapacitated.
Such that if he were released,
he would not, he would live and remain at Liberty
without violating the law.
And as released would not be incompatible
with the welfare of society.
In order to meet this threshold,
one must be permanently incapacitated.
`Which as this bench is just noted in,
in Ms. Sullivan Puccini's case,
that permanent incapacitate is not only a
physical or cognitive incapacitation that appears
irreversible as, as is determined by a licensed physician.
But that, that incapacitation is so debilitating,
that the prisoner does not pose a public safety risk.
That second component, that he does not pose a public safety
risk, is the purview of the commissioner.
As this court recognized in Emma,
it is the commissioner who determines whether an individual
is eligible for medical parole.
The very.
-: Can I ask you a quick question about your regulation?
Cause I find the statute clear,
but I get a little worried when I read
the sixth part of your regulation.
Which says requires the prisoner's placement of facility or
home with access to specialized palliative or medical care.
Why is, why is that required?
-: Well, your honor,
I,
would say that that is required insofar as it indicates
the individual is, suffers.
Well, that's goes to the first prong, your honor.
That the individual requires ongoing medical care.
And then to make sure that if the individual is released on
medical parole, that he would be in an,
an environment appropriate for that care.
-: I mean, if, I mean, I mean, if his family is providing,
you know, if he's,
if he's in a wheelchair and he's so weak that he can't
commit any crimes.
Why can't his family be able to take care of him?
Why does he have to be in an institution
to meet this requirement?
-: Well, it is not the,
it is not the department's position that he has to be an
institution.
It is individuals have been released to family situations.
-: But so the, what is the access?
So access to medical care means that the family can get him
to a doctor.
-: Well, for example, in Mr Carver's case,
if you were to be released to his family environment,
which was the proposed medical parole plan,
their house would have to be outfitted. I imagined to be,
to accommodate that a wheelchair ramp,
the other medical accommodations that would be required.
-: So that provision doesn't require institutionalization.
It just requires the appropriate level of care person.
Is that right?
-: Exactly your honor. And that,
and that leads me into another point,
which is the purpose of the medical parole plan itself.
Attorney Sullivan Puccini said in her,
in her argument that the, the commissioner is A required,
or that the D.O.C. rather is A required to author a medical
parole plan.
And B,
that that plan can in turn mitigate the individual's risk.
Thereby, rendering him permanently incapacitated
per the statute.
I disagree with Ms. Sullivan Puccini on both counts.
Nothing in Buckman or in the statute requires
that the D.O.C. author specifically a medical parole plan.
-: But haven't we said that,
haven't, we said in our two opinions,
that the D.O.C. has to prepare a plan?
-: Well, in this case, your honor,
the medical parole plan was provided.
And,
and, and if
I would,
I would analogize it to my lawyer, your honor,
where in this case, in that case, I believe it was well,
this court stated that there can be a lot of shifting and
changing in a medical parole plan from the time that the
petition is filed to the time that the inmate,
if he is determined to be eligible is actually released.
And that there,
there can be a lot of time, and there there's a lot of
time in between.
And so a lot of factors can change and shift.
So a medical parole plan that
either even that the petitioner files
or is filed on behalf of the petitioner,
or even that the superintendent for that matter prepares and
for the prepares to send up to the commissioner in a case
that a that a plan was not provided in the petition.
That might be insufficient by the time you get to when the
day of release.
Beds might not be available.
Doctors might change.
So the,
so if an individual is determined to be
permanently incapacitated,
and is by the commissioner, and is determined
to be eligible, then yes, the department is,
is required by the statute
to make sure that at the day of release,
there is a medical parole plan in place.
Now that does not necessarily mean that the,
that the D.O.C. needs to author a medical parole plan
that goes up to the commissioner specifically with the
superintendent's recommendation,
especially where as here,
a medical parole plan was provided.
Now, if it was, if the commissioner determined that
Mr. Carver was in fact eligible for release,
was in fact permanently incapacitated.
-: Can I,
can I ask a question about, what is your understanding of
what,
so as just wetland pointed out, there are two components.
You have to be,
so you need to be impaired,
but you also have to be so impaired, you can't, you know,
basically commit a crime. But on the first part, I'm,
I'm a little confused of what,
what the commissioner is requiring now. Is it that you are,
are you permanently incapacitated in all functions or just
an individual function?
-: So, your honor, it's a,
it's a fact intensive case point point point case this bench
made the point earlier that Mr. Carver's crime is a,
was arson. Specifically what was before the commissioner was
that he rolled up some, some, well, it was more than arson.
It was arson and murder. He rolled up some newspapers,
put 'em in an.
-: I, I get the second part of this.
I'm asking about how,
the definition under the CMR says,
so debilitated causes of risk or significant and serious
impairment of strength or ability to perform daily life
functions, such eating, breathing, toileting, walking.
Is, are any one, one of those sufficient, if it,
or does have, I mean, I'm,
I'm trying to get a sense of what the commissioner is
requiring.
-: Sure, your honor.
So it, and again, I go back to my previous answer.
It's individualized, and that's why I was explaining the,
the,
the circumstances of Mr. Carver's particular crime.
He rolled up some newspapers,
threw him in a building entrance way, lit a match,
burn down a building, 15 people died.
So to this bench previous point,
what physical capacity is required to commit that
or a similar crime. And in Mr. Carver's case.
-: But let me post hypothetical.
This this first physical conditions
are clearly debilitating in numerous ways, right?
-: Correct. Yes, your honor.
-: Now he can't rob a bank anymore, but it would he,
is there any issue of whether it's so debilitating that he
could rob, if he were a bank robber,
I think that he'd meet the requirements, right?
-: Well, and again, your honor, I don't,
I also don't necessarily, it's the individual does not need
to commit the exact same crime.
In this case, in Mr. Carver's case.
The commissioner's position is as strong as it is because he
is capable of committing the same or similar crime.
But it does not have to be, be the same crime.
It doesn't have to even be a similar crime.
It has to be a risk,
whether the individual poses a risk to the public.
-: But, but we're not looking at every possible crime
for every possible petitioner. Are we?
-: No, you're looking at this particular situation.
This is a, this is whether or not Mr. Carver
specifically qualifies for medical parole and
whether or not the
commissioner's decision to deny that parole was
arbitrary and capricious.
-: Again, I'm just trying to break out the elements.
So the in, so the crime that the person has committed
is a relevant factor, obviously.
Are they free to consider other crimes?
I think they are right?
-: I would agree with that, your honor.
And the reason I say that is because of the,
the definition of permanent incapacitation.
That is so debilitating that the prisoner does not pose a
public safety risk. It's a public safety risk.
There's no, there's no quantum there.
The commissioner has to make in her, in her discretion,
whether an individual, if released,
could pose a public safety risk.
And Mr. Car to go back to Mr. Carver's case,
Mr. Carver is, there's no doubt.
There's no,
there's no contest that he has a number
of debilitating conditions.
-: Right?
However, what the medical number.
-: Number of serious debilitating conditions, most crimes,
there are a lot of crimes he can't commit anymore. Right?
-: I would certainly,
well,
not being a, an expert in criminal law,
but I, I think, yes, I would say that.
-: So the, in this case,
because the crime of art is so easy to commit physically,
he meets the requirement that he's a risk. Is that,
is that your argument?
-: Yes, that was the commissioner's ultimate finding
was that she, there was nothing in the record to show her,
that in his current physical condition,
Mr. Carver could not commit a crime or the crime that he did
commit or a similar crime.
And so the,the,
in insofar as,
that physical capability,
that physical capacity is concerned.
That is where an index offense does come into play.
So.
-: But again, we, if he were a bank robber, he would,
they'd be required to let him go. Right?
-: I would say your honor, that again, that's why I,
I want to point out that though in Mr. Carver's case,
the case, the commissioner's decision was so obvious on the
record, so to speak, because of the nature of the crime.
Even if an individual was a bank robber, and he were in
Mr. Carver's position, the,
the commissioner could certainly still find,
based on on the totality of the record.
-: Really! That's what, that's what worries me is,
he is so debilitated.
He's gotta be, there gotta be limit's if he were, you know,
in how we evaluate.
But because otherwise no one's gonna get
released for anything.
Which isn't the purpose of the statute.
-: I, I agree with that, your honor, and respectfully,
that's not the situation individuals have been released on
medical parole to date.
I believe the individuals have been released on medical
parole.
The commissioner has decided looking at the totality of an
indivi again and to, to go keep going back, harping on this.
It is an individualized analysis of the, of the prisoner,
excuse me, who is in front of the commissioner,
who's petitioning at that time.
In Mr. Carver's case,
notably the ADLT, he is capable of dressing himself,
feeding, toileting. He is mobile in his wheelchair.
All indicate a certain level, for example,
of dexterity. That an individual looking at his case
would look at and say, yes,
an individual like this could, if so inclined,
still commit an arsony.
-: Right, he's dexterous enough to be,
he's dexterous enough to be an arsonist,
but he's not dexterous enough to
commit crimes that require physical force. Is he?
-: Well your honor,
I would refer you to the video on that,
on the commissioner did show,
did the commissioner said that the video demonstrated that
there was certainly nothing in the video to demonstrate that
he was not incap,
that he was not so physically incapacity as to
commit the current,
the, the un the index offense, excuse me.
It showed a level of physical combativeness.
Whether that would amount to that,
whether that would rise to the level, for example,
of criminal assault and battery?
I, again, I cannot say. This is a,
this is an individual where, this is a situation where this
court is being asked to determine whether the commissioner's
decision in a very specific situation with very specific
facts was arbitrary and capricious.
So I will go back. So.
I will mention go going to the use of force incident,
the court, also the court,
the lower court properly held that the commissioner's use of
that was not arbitrary and capricious.
This, there was some mention of an Amicus brief.
I will, I will.
I will say that perhaps, the ADA component was not fully
fleshed out in the lower record, but to the,
to any extent that this court is considering it,
that it's not applicable here for two reasons.
One, the use of force incident was not a, a,
a primary factor in the, in the,
in the commissioner's decision.
As I already mentioned,
there is the medical evaluation that was before the
commissioner.
Which showed Mr. Carver's current physical cap capacity.
And in the commissioner's mind,
he still had that ability to perform again.
An offense similar to, or like the index offense.
However, that being said,
her consideration of the video was not improper,
in any event and of the incident reports for that matter,
that described it because the incident reports themselves as
the lower court found, reviewing the video,
there was nothing inconsistent between the incident reports
that had been written by correctional officers and the video
itself.
The correctional officers had firsthand experience
of the situation.
And again, the,
the commissioner was not, was not,
did not deny Mr. Carver based on the use of force incident,
because he was had a mental,
because he was in a mental health episode.
It was because of his physical capacity that was
demonstrated through the use of force video.
-: Okay. And yeah, we're, I mean,
-: If anyone, if no one has any other questions,
I would rest on my brief.