-: SJC-13296, Martin McCauley v. Nelson Alves, and another.
-: Okay, Attorney Harris, whenever you're ready.
-: Good morning, Your Honors, my name is Jeff Harris.
Madam Chief Justice, and may it please the court,
I'm here representing Martin McCauley
on his medical parole case.
I know Your Honors have already gone through some
of the issues involved in this case already.
There's two issues in Mr. McCauley's case.
One of them is the abuse of discretion
by the DOC commissioner.
The other one is the validity of 501-CMR-1702.
I think probably I should just jump right
to Justice Wendlandt's issue,
because I'm sure you all have the same question.
In my case, isn't this a question of discretion?
Why is this, how can we overrule the lower,
not even the lower court, the agency?
And I think that's the central question here, for sure.
There's abuse of discretion,
and then there's abuse of discretion.
There's different kinds.
In this case-
-: [Justice Wendlandt] But don't we need the actionable kind?
-: We need, I think we have all the kinds here, actually.
I'll start with what I think is maybe
the most straightforward, which is
the agency head here needs to take into account
all of the inputs that the statute requires her
to take into account.
One of those things, obviously, is risk assessment.
Risk assessment is the most,
perhaps the most important issue, 'cause there's no question
about whether or not he is permanently incapacitated.
Everyone agrees he is.
So the DOC has been charged with doing a risk assessment,
and then taking that into account.
Here, I raise that they didn't do a risk assessment,
and then the DOC has said,
"Actually, we did complete a risk assessment."
I would just ask the court to look at RA-522,
where I think quite clearly in their own words,
"A risk assessment was not completed."
I don't know, I think that speaks for itself.
They didn't do it.
It's something that they have to take into account
when they do an analysis of a particular individual,
and they didn't do it.
So that's one example of an abuse of discretion,
and you don't have to overrule the DOC's discretion.
It's just that they didn't take into account.
It's a little bit like this court ruled in deal,
where they look at the Diatchenko factors
that the parole board is looking at, and they say,
"We're not gonna look into how well you looked
at those factors, but you definitely have to look at them,
and if you don't, that's a constitutional error."
This isn't a constitutional question.
This is a statutory question, but indisputably,
that's something that she has to take into account,
and didn't bother to do.
The second abuse, unless Your Honors have questions
about that, the second-
-: [Justice on Speaker] Will you remind what was the response
of the Commonwealth on that?
I thought they said that they looked
at another document to measure the risk of reoffence.
Is that wrong on that one?
Am I confusing this other case?
-: In fact, I referred to that document
as a potential risk assessment, and the DOC said,
"You are mistaking the classification."
As Justice Kafker, as you said earlier,
that is a qualitatively different kind of assessment.
Now, that is all that was left up,
that was all that I had to work with,
and that was all that Superintendent Alves had to work with,
so that's what he sent along.
That's what he had, but that was-
-: [Justice on Speaker] So you're saying, okay,
regardless of anything else,
they should have to redo this.
You realize you're gonna just lose again,
if we do that, right?
That they clearly have at least implicitly considered
the risk of his reoffence, right?
-: I will tell you why they're not going to find
that he has a risk, because he has 30 years
of institutional history that are successful.
-: But aren't they gonna say, I mean,
I'm predicting what he's gonna do,
but aren't they gonna say he did the original murder
because he was in a drug-induced state,
and his disciplinary history indicates problems
with drugs that are ongoing,
and therefore that poses a risk again of criminal behavior.
I don't mean to jump ahead, but why don't you address that?
-: Yeah, I suppose there's always going to be a way
to characterize the facts, some of the facts
as suggesting future criminal behavior.
The man is 65, he has lumbar stenosis.
He's got pain in his extremities 'cause of neuropathy.
He can't walk without a walker, he has a hernia belt.
He's got all these things that are wrong with him.
He also doesn't have a history that suggests any recidivism.
He used drugs in prison, and that was rule break,
and he shouldn't have done it,
but as soon as he got medicated by the DOC,
as soon as he got a prescription for narcotics
that alleviated that pain, which is extensive,
he's had four lumbar back surgeries,
he hasn't had any problem since that time.
-: [Justice on Speaker] So we should be pressed
to Commonwealth when they get up
saying, "Look okay, he had a drug history,
but once he got permissible legal drug,
that's no longer a risk."
Is that what you're saying?
-: That's right, yeah.
You know, and I don't wanna get into the facts,
because I agree with you that as soon as I start arguing
the facts, you can say, "Well,
that's a matter of discretion," and that's fine.
I don't think it's actually a close call as to whether
or not there's a history of violence
and what they call an extensive history of violence,
but maybe that's left up the DOC.
The other abuse of discretion which I believe is
qualitative, not quantitative, but like, an error of law,
not just something that they did where they used
their discretion wrongly, is to say that
by giving someone accommodations,
they have recapacitated them.
And I've tried to explain this in my brief,
but basically, the regulation allows them to give someone
accommodations who's permanently incapacitated
so that they can do the things
that they believe are proxies for violence.
So if the person can brush their teeth, if they can toilet,
if they can shave, whatever, if they can get
around their cell, therefore they are, they have,
they can do the ADLs, and because of that,
they're by definition not permanently disabled.
That is just wrong.
I mean, as Your Honors, I think, have noted
in your solicitation, it narrows the statute.
It's like we have a group of people who should be
permanently, who should be considered for medical parole.
What this does is it takes the term debilitating
out of the statute, and purports to redefine that
somewhere else in a regulation.
And that redefinition narrows the group of people
to only people who can't do activities of daily living.
That is contrary to the statute, I think.
In Harmon and in Buckman, you have said,
"We want to broadly construe all of this."
-: [Justice Wendlandt] But don't, we have to consider
whether something can be ameliorated
in determining whether it's so debilitating
that the prisoner does not pose a public safety risk,
or stated differently, is it arbitrary and capricious
for the commissioner to so do?
-: What I think is arbitrary and capricious is to say,
and which they've done, and I would point you to RA-547,
where they say, "If the person satisfies the definition
of not having a debilitating condition,
if that's the consideration,
whether they satisfy that definition in our regulation,
if they do, then they are not eligible for medical parole."
That's the error.
They're not saying, "Do they satisfy that definition,
and are they also not a risk?"
That would be permissible.
That would be saying, "We're not gonna narrow the statute.
We're gonna look at our regulation, and try to determine
whether or not the person can manage some of the activities
of daily living."
But really, the larger question here has to be,
are they risk to the public?
And if they're only looking at the question of ADLs,
that's an error of law.
That's not what the statute says.
Statute says public risk.
They have to figure out whether
or not the person's a public risk,
and the reason it's a problem here is because
they don't give themselves any wiggle room.
They say the reason he's not eligible is because he can do
the ADLs, very specifically, and that's at 547.
So I guess I've already kind of talked about both.
The first issue is abuse of discretion.
I've given you three examples of abuse of discretion,
the risk assessment, the "violent history,"
and the way that accommodations really can't recapacitate
someone in the use of the regulation in that way.
I think the other issue, which is sort of the same issue,
really, it's just the other side
of the coin, is whether it's a valid statute.
And I think all you have to look at is your instructions
in Buckman and and in Harmon to say,
"This has to be broadly construed.
You can't narrow narrow it," and it clearly narrows the-
I think what Your Honors' solicitation said it
exactly the way I would say it is it narrows the definition.
-: How do you measure permanent incapacitation
if you don't use proxies such as ADL?
-: That's a very good question.
In a way that doesn't narrow the statute.
I mean, I know I'm not answering your question, but I'm not-
-: Whether it's reasonable for them to use that.
-: I think it's reasonable for them
to take it into account, for sure.
Whether or not someone can walk is certainly important.
Whether or not someone, but I mean,
think about the Alzheimer's patient, right?
I think that's the most kind of quintessential example
of where you can see there's a problem with the regulation,
'cause it comes to an observed result.
The person can do all these things, can get around,
can shuffle around his cell, and you know,
and he should be medically paroled.
Everyone would agree.
-: Are those people not being paroled?
-: Those well, no they're not being paroled,
because those people, the DOC will say,
"Well, they satisfy my regulation."
But I didn't write the amicus,
so I don't know exactly who those people are.
Justice Gaziano: I'll certainly take another look at it,
but go back to the first question I asked you.
How do we measure this?
-: Well, it is a question of whether or not they,
it should be similar to what the parole board does,
and they don't take into account someone's,
whether someone can do ADLs.
They consider broadly whether or not someone is a risk
to the public, and I don't dispute that those are-
-: But it has to be no longer risk to public
because of permanent incapacitation, correct?
-: Yeah, and you know, I cannot at this pulpit right now,
tell you how the regulation should be rewritten,
but I do know that the regulation is invalid,
and there's no question about that,
and that Mr. McCauley is kind of exactly the person
who is suffering from the fact
that the regulation was invalidly written,
and with that, I stand on my brief.
-: Thank you.
Okay, Attorney Caffrey.
-: Good afternoon, Your Honors, and may it please the court,
my name is Stephanie Caffrey on behalf
of Nelson Alves and Superintendent Carol Mici.
Mr. McCauley, in inmate in general population is
not permanently incapacitated
as defined by the medical parole statute,
as his condition is not so debilitating
that he does not pose a public safety risk.
In defining permanent incapacitation,
there are two components,
first, that the inmate's incapacitation cannot be reversed.
That's the medical assessment that is conducted.
Second, the incapacitation must be so debilitating
that the inmate no longer poses a threat to society.
That is a discretionary function of the commissioner,
and that's exactly what she has done in this case.
The definition of debilitating condition does not constitute
an impermissible narrowing of the scope
of the medical parole statute,
where it merely provides a global definition
of what constitutes a debilitating condition.
I apologize.
Chapter 127, section 119-AH provides that the security
of the executive office of public safety and security
with express statutory authority to promulgate rules
and regulations necessary for enforcement
and administration.
-: So can I ask you to apply the regulation
to a patient that has Alzheimer's?
-: Certainly, Your Honor.
So I will disagree with my brother counsel
in that the commissioner will certainly,
in a medical assessment that's conducted by Wellpath,
if there is a mental or cognitive impairment,
that is most certainly considered.
I can state that there have been inmates with dementia
or Alzheimer's that have been released on medical parole,
but again, it's looking at the totality of the circumstance.
As you can see before you-
-: Do you have decisions that say that?
-: Court decisions?
-: Or DOC decisions that say that, where it's been granted,
where they have dementia at Alzheimer's.
-: There have been those decisions, yes, Your Honor.
-: And can you supplement the court with those?
Because we have the cases in the amicus brief
that say otherwise.
I'd like to know what the universe is.
-: Certainly, and that's something
that I can look into supplementing.
The only concern that I would express is the fact
that they do involve, obviously, HIPAA and CORI,
so they would need to be done under a motion.
-: I assume you would redact them, right?
Atty. Caffrey: Yes.
-: We can impound them, right?
-: In turning to the risk assessment that was conducted
in this case, Mr. McCauley claims that DOC did not bother
to follow its own regulation
and conduct a risk assessment on Mr. McCauley.
Counsel did refer this panel to the administrative record.
I would suggest that there are two distinct risk assessments
that are conducted.
One that is conducted is the COMPAS risk assessment,
which I believe is what my brother was referring to
in the administrative record.
Part of the package that was sent
by the superintendent included the classification report,
the personalized program plan,
and within the personalized program plan is
where the COMPAS risk assessment comes into play,
as that is utilized in establishing programs for inmates.
It is not conducted for those
that are serving life sentences.
In this case-
-: [Justice on Speaker] Okay, but I'm confused.
Is there a risk assessment for this petitioner?
-: There is a risk assessment for this petitioner.
-: [Justice on Speaker] Where is it in the record?
-: I would turn the court's attention
to the commissioner's decision where the,
or the superintendent's recommendation rather,
where he conducted a risk assessment.
-: [Justice on Speaker] So your opposing counsel's comment is
just inaccurate, is that-
-: That it was, I'm sorry, I didn't hear the last part of it.
-: [Justice on Speaker] Was inaccurate,
so this is a factual issue, it's easy.
There is a risk assessment here
that we're gonna look at, right?
-: Yes, Your Honor,
and in the superintendent's recommendation,
as noted in the commissioner's June 2020 decision,
the superintendent reviewed the classification report,
as well as the personalized program plan,
as well as observations of a unit officer,
and all of those encompass the risk assessment conducted
by the superintendent.
-: [Justice on Speaker] All right, so let's talk
about this person clearly has debilitating conditions,
lots them, so the issue is whether
with those debilitating conditions, he's no longer a risk.
Tell me why he's a risk.
-: In terms of Mr. McCauley in particular,
Mr. McCauley is able to ambulate with the use of a walker.
He is able to bathe, he is able to dress himself,
he is able to conduct the ADLs.
Furthermore, in looking at the totality
of the circumstances again,
as to whether or not Mr. McCauley poses a risk to society,
the commissioner did note his institutional history,
which involved drug use as well as an assault on staff.
-: [Justice on Speaker] So what is your response
to your opposing counsel who says,
"Okay, he had a drug problem because of a pain problem,
and once he got prescription medicine, that disappeared."
Is that inaccurate?
-: That, I don't see support for that allegation
within the record.
I believe that was-
-: [Justice on Speaker] Are there any drug offenses
after he receives his prescription for painkillers?
-: It's my understanding that Mr. McCauley had
spinal surgery starting in 2013.
I believe that he also had a guilty report for suboxone
in 2016, if memory serves me correctly.
-: [Justice on Speaker] Okay, so again it's a factual issue
whether there's post drug conduct.
So then I get to the issue of the role of his crime.
So he's convicted of first degree murder, but it sounds,
and he's a one time criminal.
He had no priors,
and he has no crimes of violence in prison, right?
-: He has had at least one incident in which he assaulted
a correction officer with a food tray.
-: [Justice on Speaker] Okay, all right,
but so are we measuring a risk
that he's gonna get involved in drugs?
Are we measuring a risk that he's going
to hurt somebody again?
What are we measuring?
And what is the universe
that we're supposed to consider there?
'Cause it can't be all crimes.
Like, we shouldn't be worried
about him being an arsonist, right?
-: And it-
-: [Justice on Speaker] He hasn't,
I understand with Mr. Carver, he was an arsonist.
We need to take that possibility into account.
What do we need to take to account for Mr. McCauley?
-: Well, in Mr. McCauley's case, it was a murder by the use
of a firearm where he shot at the victim who was a stranger
point blank in the head.
-: [Justice on Speaker] Right, so his debilitating conditions
here don't impact on his ability to use a firearm.
Is that how we analyze?
I'm just trying to get a sense of what we're supposed to do.
-: That's certainly part of the analysis, yes,
whether he has the physical capacity to commit a crime
again, whether it be a similar crime or the same crime.
-: [Justice on Speaker] Okay, but he can't commit again.
He's not gonna rob any restaurants anymore, right?
-: I can't definitively answer that in the affirmative.
-: [Justice on Speaker] Well, he doesn't have
the physical capacity to move quickly, right?
-: Yeah, I mean, it is noted.
Within the superintendent's recommendation,
the unit officer did note that Mr. McCauley was known
to frequently walk outside with a walker,
but that he was able to move quite quickly.
-: [Justice on Speaker] We don't have many bank robberies
with a walker, do we, or restaurant robberies with walkers?
-: That I cannot answer.
-: Counsel, could I follow up on Justice Kafker's point,
because it goes back to the prior case too.
What are the rails for the superintendent when they're,
if we're trying to evaluate the discretion
and whether there was any abuse, what are the rails
to that consideration for the superintendent?
Because there's always some potential hypothetical
or conceptual crime that they could commit,
so how do we gauge that?
Let's take Mr. McCauley's condition.
Your opposing counsel said
that the drug issues were related to pain,
so I'm gonna assume that they're heavy duty drugs
that to ameliorate his pain.
So let's just say that you could say conceptually,
he's got a prescription for suboxone.
He's got a prescription
for really heavy duty pain medications
that could be really valuable on the street,
and so now we say, "Well, if we released him
and he's got this prescription,
he could be selling his pain medication."
How do we gauge that?
Because I think that's the point of justice Kafker,
and I think we all have the same consideration.
If it's not apples to apples,
and he's no longer a bank robber, he's no longer a murderer,
there's still a universe of crimes that he could commit
in his current condition, so how do we measure that?
-: And that is correct, and to your point, you know,
the focus is sometimes on whether
or not the inmate is committing
violent institutional offenses.
In Mr. McCauley's case, he was committing drug offenses,
and he continued to violate the rules and regulations
of an institution, so that is again taken into consideration
when looking at the totality of the circumstances
and the risk that the inmate poses to society.
-: So that could always be a factor
that would work against an applicant, wouldn't it?
-: It could be, it could be considered,
and again, in medical parole petitions,
they are very, very individualized.
Again, the record in this case is over 600 pages.
They are very fact-intensive.
There's a lot that goes into the review of them,
so the commissioner looks at the totality
of the circumstances in determining whether
or not a person poses that risk to society.
-: But the question is, how do we decide?
How do we figure out whether the choice made
by the superintendent is an abuse of discretion?
Sounds like you're saying it won't be,
because she's doing what she's supposed to do.
-: Well, I think that the record shows
that there is substantial support for the decision
that both the commissioner made, and the recommendation
that the superintendent made.
-: So I guess the problem is there's terminal illness,
which we don't have, but then there's incapacitation,
and unless someone has Alzheimer's dementia,
or is incredibly incapacitated and bedridden,
there's this group of people,
which I think these next last two defendants fall into,
where hypothetically, you could commit a crime.
I mean, anybody that's in a wheelchair
and a walker could commit, you know, any type of crime.
They could be on the phone and, you know,
doing scamming people, you know,
so there's always a hypothetical crime
that could be committed.
When is it an abuse of discretion for the commission to say,
"Well, they could commit a crime, because they don't have
Alzheimer's or they're not bedridden."
-: And I think that's where it becomes again,
the individualized assessment, where you're looking
at the institutional history,
the index crime of that particular inmate, any offenses
that they committed while they were incarcerated.
I think that that's where
all of those analysis come in as well.