-: SJC-13437 Conrad Murphy v. Carol A. Mici and others.
-: Good morning, Madam Chief Justice
and members of the court.
In enacting the medical parole statute,
the legislature was concerned with providing
a potential avenue for release
for prisoners who became debilitatingly ill
and whose only other recourse
was an executive clemency process,
which was highly discretionary,
and as this court noted in Harmon and in other cases,
largely unsuccessful, highly unlikely to lead to release.
And this court, in construing the medical parole statute,
determined that prisoner,
as that term is used in the statute in Harmon,
the court said it applies only to committed offenders
serving a criminal sentence.
And that that interpretation does not frustrate
the legislative intent of the medical parole statute,
which is to provide an avenue for those prisoners
who have no other recourse.
Commissioner Malone, excuse me, Commissioner A. Mici-
-: Just one fact point,
he's already finished his criminal sentence, right?
He is just being held at Bridgewater as an SDP, right?
-: He is civilly committed as a sexually dangerous person.
-: Right. -: So therefore,
he's seeking release through the wrong statutory process
through the wrong decision maker.
And Commissioner Mici was correct in rejecting
the medical parole petition,
because under this court's own determination,
he is not a prisoner, as that term is used.
And this court rejected the definition
of prisoner contained in chapter 125, section 1M,
which has a broader meaning,
and in Justice Gaziano's opinion in Harmon said,
"We reject that.
"The context otherwise requires."
And that was for pretrial detainees.
Justice Lowy: So assume that's right for for a moment.
-: Thank you.
(everyone laughing)
Ms. Murray: It was unanimous.
It was unanimous. -: Yeah, you joined it.
-: We brought up detainees and civil
aren't paroled, assume all that's right,
is the problem here that when you
get to the constitutional issue,
it's not equal protection being argued?
But substantive due process?
-: There was a substantive due process claim,
as we understood it, raised below,
but there is no- -: Or equal protection.
-: At the Superior Court,
at the hearing at the Superior Court,
there was a discussion that could be
tinged as equal protection.
And the amicus certainly brings up equal protection,
but there is no equal protection violation.
SDP, sexually dangerous persons,
are all held on a finding beyond a reasonable doubt
that they are likely to re-offend due to a condition,
a mental abnormality or personality disorder,
and therefore they are not similarly situated
to ordinary inmates under sentence,
for whom there is no such finding.
So there is no equal protection issue.
And as for substantive due process,
SDPs have available to them,
this particularly menacing subset of sex offenders,
have available to them a robust process
that this court has found to comport with due process
through Section 9. -: What's the
alacrity with which that robust process works
when the civil detainee is saying,
"I need my Section 9 hearing.
"I need my qualified examiner really quickly,
"because I am medically unable to re-offend."
-: And a petition can be filed,
and it can be filed by the department,
and it has been filed by the department on occasion.
A petition can be filed,
and a trial will be given.
And in the ordinary course,
probably about a two-year timeframe.
However, the SDP has available to him
the opportunity to move to expedite
the qualified examiner evaluations.
The qualified examiners, as this court has said,
are the independent accountable experts.
They serve as the gatekeepers to that process.
And if the qualified examiners opine that the person
is not sexually dangerous due to age, infirmity,
or some other combination of factors,
the SDP is entitled to unqualified release
from the SDP commitment.
-: So if the person is, like Chapman, for instance, right?
That's yes the case that all- -: Yes.
-: So if the person is so ill
that they would get medical parole, were they a prisoner,
the two QEs, you posit, would say,
"This person has three months to live," essentially.
-: The qualified examiners have access
to the medical records.
They have access to all records
by statute of the person being evaluated,
and routinely in cases where medical issues are of concern,
and the court's own record in Chapman shows this,
consult with the medical providers,
review the medical records,
interview medical staff at different times,
depending on the circumstance,
and questions they might have,
and render those opinions.
And as the record in this case shows,
although Mr. Murphy did not avail himself of that-
-: But it seems like the issue is the time.
The only difference in the process is the time, right?
And does that...
Does that mean you have a right to expedited review?
And if you don't get expedited review, there's a problem?
'Cause I get your argument that (coughing)
this person's no longer a prisoner.
His criminal sentence is over with,
he's only being held civilly,
and now we're dealing with the issue
that sort of bothered the trial court judge,
which is there's no way,
you're not guaranteed that expedited process
in the SDP context
that you're guaranteed in the medical parole process.
-: Well, there's two differences,
and I just want to address the first one first,
which is who is the decision maker?
So in the medical parole context,
the discretion is vested in the commissioner.
In the SDP process,
which this court has said requires expert opinion,
it requires expert opinion on the way in
and it requires expert opinion in the discharge process,
because the conditions at issue are not conditions
that are susceptible to lay judgment.
They require expert opinion.
So that is one distinction.
But in terms of the timing,
and there's no record here with respect to Mr. Murphy,
'cause he did not avail himself,
despite a suggestion from the defendants,
that he had the opportunity to seek
expedited qualified examiner evaluations.
And as the record in the defendant's 16L letter shows,
he was found to remain sexually dangerous
at the jury trial in July.
-: But so back to Justice Lowy's sort of original question,
though, about substantive due process, or I don't know.
You also, there's a cruel
or unusual punishment component to this, too.
I think an argument.
So if we have a dying SDP,
you know, he's got leukemia,
and he's gonna be dead in four months,
does he have a right under the Cnstitution
to an expedited review?
Because otherwise he's gonna be dead
before he can be released.
-: He has a statutory right to seek to expedite his case,
and as Justice- -: But what happens
if they don't?
Do we deal with the issue of...
'Cause it's all discretionary, right?
You point to the fact that he could get one.
Ms. Murray: Yes.
-: Again, I'm,
unlike my colleagues who sat in those sessions
in Superior Court, my sense is they're quite backed up.
And do you have a constitutional right
to expedite that thing when you're being held as an SDP,
which is a civil commitment
after you've finished your criminal sentence.
-: You have a right to a speedy hearing,
and that takes into account a variety of factors
in what is speedy. -: What does mean that mean?
-: So there's not a set deadline.
In this court's cases from Trimmer to LeSage,
have never set a timeframe.
However, one of the reasons you don't see speedy trial cases
on these matters very often is because
of the way that the actual SDP session works.
And for the benefit of those of you
who haven't sat in the session, it's a unified session.
So all Section 9 petitions are concentrated
in Suffolk Superior Court where they're managed,
and they're generally assigned a trial date
as the next petition date,
in order that the petitions are filed.
But as the record in this court shows,
when it is appropriate to file a motion,
and there have been joint motions to expedite,
there have been assented to motions to expedite
qualified examiner reviews,
then the court largely grants those.
-: Yeah, but let me ask Justice Kafker's question
in a slightly different way.
What is the best case scenario
how quickly you can get two qualified examiner reports?
-: Typically, and we haven't had some,
a case where death was imminent,
so I just wanna be very clear.
Typically we would,
we would typically ask and have agreed to 60 days,
which is shorter than
the medical parole statute process by six days.
Typically we would agree to 60 days.
Sometimes it's a little bit less.
Depending on a variety of circumstances,
it could be a little bit longer.
But we have typically agreed to 60 days.
And that's what you see in the record
of the other examples that have happened.
-: I'm sorry, what are the circumstances
under which you agree to the 60 days, typically?
When the two QEs say something?
-: No, the QE evaluations would be triggered
by this expedited order.
Typically it would be when the Community Access Board,
which reviews SDPs annually,
and if the CAB renders, the Community Access Board,
CAB for short, renders an opinion
that the person is not sexually dangerous
and if the person is- -: But that's
the problem, isn't it?
I'm not saying it is a legal problem,
but it's a practical problem.
So you've got, again, somebody gets
that terrible diagnosis that they're gonna be dead shortly.
Really, you've gotta pick the QEs, right?
Gotta pick the QEs, they gotta analyze them.
But is there really a realistic 60-day process?
Or what you're describing is something that happens
when it's already teed up, meaning...
Right, I mean, is there...
Again, I get my diagnosis or whatever,
you get the diagnosis that you're dying
or that you're paralyzed
and you can no longer cause any trouble.
Can you really do this in 60 days?
-: The qualified examiners? Yes.
And it has been done on multiple occasions.
I think seven times-
-: Multiple occasions from- -: In the last year.
-: The moment you learn that you're dying
or that you're physically incapable of
the predator behavior you demonstrated before.
-: So 60 days from the date that
the court orders that the request is made.
And typically, I'll give you an example, one of the ones
that's in the record. -: But could you finish
the answer, please?
-: Yeah. -: Yeah, thank you.
-: 60 days from the date
that the request is made to the court,
which would typically come from either the Commonwealth
reaching out to the other side's attorney,
or the attorney reaching out
to the Commonwealth and the court.
But yes, 60 days
is the timeframe that we have generally requested.
If there's a reason to suggest 45 days...
But to be clear, you want some reasonable process,
which is why even in the medical parole statute,
it's not here's the petition act on it tomorrow,
because you want to have a reasonable process
so that the risk to the community is looked at
as well as whether the medical condition is debilitating,
whether, for the purposes of
an SDP finding or a medical- -: Can I just clarify that?
'Cause that's very helpful.
I just wanna understand.
So if your opposing counsel had sent a letter
to the court saying, "My client's dying,"
then within 60 days you can create a QE review
and tee this up,
so that we don't have the timing problem
that bothered the trial judge in this case.
-: Yes.
And that's normally what we would agree to when we...
And as you can see from the record,
assented to or joint motions, and generally speaking,
I work or we work with the opposing attorney
to pick a date that's reasonable
based on the medical condition as well as
the need to get the evaluations completed.
-: Can I ask you,
would you agree that we should clarify the time standard
as to satisfy substantive due process
in these circumstances?
-: No, because there's not a record before you
that there's any due process problem here.
The petitioner, Mr. Murphy,
never sought to expedite the SDP process.
And Judge Ham in the Superior Court
alluded to one of the reasons why not,
because an SDP might not want a QE saying
that he remains sexually dangerous,
which would ultimately not very much
help medical parole even if he were
relevant for it. -: So we need wait for
a case where this issue is raised.
-: Yes.
And one of the reasons you don't see cases
with this issue raised
is because the process works so well in the Superior Court.
And anybody can bring a motion to advance their petition,
as Justice Cowin said, sitting as the single justice
in pet large in this court
before you can advance it ahead of anybody else,
then you need to show a likelihood of success.
With a medical issue like that, as the record shows,
they're assented to and joint motions on occasion.
But that issue is not right
because it's not before the court.
-: I understand that point,
and just would be a lot more comfortable
to have a record that says
an expedited QE report is going to get to
basically the same place as a medical parole evaluation
in approximately the same amount of time.
-: Right, and that's what the record shows in other cases
where such a remedy was requested,
but even if the court were inclined-
-: Are there any published decisions related to that?
Do we have any guidance out there where that happened?
Even Superior Court decisions that we can turn to on that?
-: Superior Court decisions where the order was-
-: Just what you said happened?
-: Sure, in the record itself,
we have included in the record
instances where expedited requests were made,
they were either joint motions or assented to motions,
and they were granted, and by my count,
according to the court records that we have,
there were seven such instances
where motions were made last year.
Not all of which may be in the record,
but certainly the court could take
judicial notice of the dockets,
and they were all granted and the cases then proceeded.
Because once you have a qualified examiner opinion,
then the Commonwealth can proceed to trial,
which would tend to suggest that the condition
does not warrant release,
or at least a fact finder or the jury should decide that.
-: But if a person clearly has six months to live
and the two QEs come back and say,
"They're no longer sexually dangerous
"because they're so infirm," the person's released.
-: The person is unqualifiedly released
from the initial for, excuse me, from the SDP commitment,
and unless they're held on some other custody
awaiting trial for something,
they would be unqualifiedly released to the community.
But even if the court were to be concerned about that,
the remedy for a problem in the SDP process
is not to expand the medical parole statute
beyond what this court has already said it applies to.
That would be the province of the legislature,
and in the nearly two and a half years
since Harmon was issued,
the legislature has not amended the statute.
And because the SDPs have a robust process to seek release,
including to expedite it, and I would invite
the attention to Justice Cowin's opinion in pent large,
included in the record,
because they have a robust process
there's no constitutional violation here.
-: Okay, thank you. -: Thank you.
-: Attorney Koes.
-: Good morning, Your Honors.
May it please the court,
Matthew Koes here on behalf of the appellee, Conrad Murphy.
We are asking this court to uphold
the Superior Court's decision,
which merely gave Mr. Murphy the opportunity
to be released on supervised release
and that his medical parole petition
be reviewed and considered on the merits.
-: Well, given the holding in Harmon,
I don't understand that position under the statute.
-: Well, I'm glad you asked that question, Justice Wendlandt,
because I think that,
I read Harmon to be a little bit different.
I see the analysis under Harmon
as being kind of a two-step analysis.
We first look at the question of whether or not
the individual qualifies as a prisoner,
and that definition is,
"A committed offender and such other person
"as is placed in custody in a correctional facility
"in accordance with the law." -: Unless context requires.
-: Exactly, Your Honor, unless context requires.
So I think context does matter in this case.
I think you have to look at the nature of individuals
who've been civilly committed under Chapter 123a,
and I think you also have to look at
the nature of the sexually dangerous proceedings
and the medical parole statute itself.
So- -: We've said
time and time again that they are civil commitments.
-: That's correct.
But I would suggest in the context of medical parole,
that they should qualify as prisoners
under the more broader statutory definition
under 125 Section 1,
as opposed to what is required under 123a to get the-
-: Didn't we already reject doing that in Harmon?
-: In Harmon?
I disagree, Your Honor.
I think that Harmon was specific to pretrial detainees.
-: I know that was what the subject of Harmon was.
But if Justice Gaziano discussed on behalf of the court,
very much so, that the nexus between that term and parole,
and that parole was the chief driver here.
And clearly when you're talking about someone
who's already committed a sentence or done a sentence,
finished the custodial sentence,
and now they're being held civilly, they're not on parole.
So how could you work backwards and shoehorn SDPs
into the definition we laid out in Harmon for prisoner?
-: Well, again, I think that they do meet
the broader definition under 125 Section 1M,
but again, as the statute itself says, context matters.
So sexually dangerous persons
are essentially serving an extension
of their original criminal sentence.
-: But that'd be a due process...
That's a double jeopardy violation, come on.
-: Yeah, not doing that.
Matter of fact- -: That would
be unconstitutional.
-: I mean maybe you had a better argument
when DOC was running the treatment center, I don't know.
But it's not an extension of a criminal sentence.
It can't be.
-: I'm arguing from an objective standpoint.
We have- -: Well,
try a legal standpoint. (person laughing)
Justice Lowy: It isn't.
-: So assuming that argument
isn't gonna hold water with this court,
can you explain to me why...
I don't really understand
your substantive due process argument.
Can you explain that?
-: Well, I think the substantive due process argument
is essentially born out of the concept of equal protection.
-: (laughing) Well, those are two different concepts.
So can you stick to one?
which one is it,
equal protection or substantive due process?
-: Well, I think the substantive due process
gets to the context of the medical parole proceedings,
as judge- -: Your opposing counsel
did point out, I thought, quite well,
that they are differently situated.
SDPs are differently situated
than your garden variety inmate.
Do you agree with that?
-: Correct. -: Okay, so given that,
how could it be a substantive due process problem
to treat them differently?
How does it shock the conscience to treat an SDP,
who has a whole series of other procedural protections,
beyond a reasonable doubt, annual reviews,
different than the regular inmate?
-: So there's no process under the SDP statute
which allows the civilly committed individuals
to be reviewed or evaluated
solely upon their medical condition.
-: No, but doesn't it tie to the fact
to whether or not they continued to be an SDP,
whether the public continues to be at risk
because of this person?
If they're so incapacitated
by their medical disability
that they can no longer function,
doesn't that have an effect
on whether the QE is gonna be able to say
that they are still an SDP?
-: Correct, Your Honor.
-: It is part of that process
that's been laid out by the legislature.
-: It is part of the, the analysis,
but it is not the entire analysis.
The entire analysis under chapter 123a
is mental abnormality.
-: So anybody with a mental abnormality is an SDP?
-: A mental abnormality that
kind of propels them or compels them
to commit some sort of repetitive sexual-
-: What about Chapman?
-: Pardon? -: What about Chapman?
-: Well, I think Chapman is a good explanation in,
or example of why an individual who is
physically incapacitated or terminally ill
may not render themselves sexually dangerous.
But I think it's the process here that is different.
Ultimately in the chapter 123a process,
these individuals are looking for absolute freedom.
Where under the medical parole process,
they're looking for supervised release.
It's a much speedier process,
it focuses more on the medical condition,
and it provides individuals with-
-: But if these people are differently situated,
as you just agreed,
why are they entitled under the Constitution,
U.S. or otherwise, to the same process?
-: Perhaps I misspoke when I said
that they were differently situated.
I think when you look at individuals
who are civilly committed, they're in a building,
which is secured by the Department of Correction.
A lot of times, such as in Mr. Murphy's case,
he's in a building or a unit that also houses
other prisoners who are serving their sentences.
They're subject to many of the same rules and regulations
that individuals who are serving sentences.
-: And they also had get once annually
a possibility of getting out.
Do the inmates have that? -: Inmates do not,
but I think that- -: So they're
differently situated.
They're there under different rules.
Like I said, I still don't understand the Constitution-
-: And they get a better deal.
If they get released,
they're not subject to the parole process.
So, again, back to your substantive due process
or cruel or unusual punishment or equal protection argument,
the only issue that bothered the trial judge,
and seems to be an issue, was the timing.
But your sister's just got up and said
you can get this done in an expedited way.
So there can't be really a constitutional problem
based on timing here.
So is this like a solution in search of a problem?
Or I don't know, or a problem in search of a solution.
It just doesn't seem to make any sense that we're not,
that we're gonna warp one statute
when we have a statute that works perfectly fine
that's directed at the problem.
-: Well, I disagree with that, Your Honor, because,
the timing that my sister elucidates on sounds attractive,
but I don't think in reality it can always be the case.
Justice Gaziano: But do we have a record for that
to decide that issue?
-: Well, I would point to the record that-
Justice Gaziano: 'Cause you didn't raise that
below, right?
-: Did not raise that below, Your-
-: My concern, I think you might be,
and I think Judge Ham focused on that,
and it's worth talking about and may be meritorious,
but in order for us to do so,
we need to know is this solution
that Ms. Murray tells us is the constitutional answer,
is it illusory in that expedited doesn't mean expedited?
You jump the line,
which I think is a line for what you said in your brief,
so that we really can't hang our hat on that,
but we just don't know.
'Cause you didn't raise it and there's no evidence below
as to what went on, correct?
-: I think that's fair.
But I would point to the statute itself.
I think we can look to the statute
and look and see if there's anything within the statute 123a
allows for- -: Expedited is in
the statute, correct?
-: Well, I believe it says speedy hearing,
but I think we have to kinda look at
what the statutory language is
and then also look at reality.
-: I'd hate to make a constitutional rule in the dark
where we don't know if...
And you may be right.
Maybe expedited means 120 days,
and we have people who are infirm who should be released
who aren't being released,
and then we'd have constitutional issues
of substantive due process and/or equal protection.
But we just don't know,
given the posture of this case.
That's what troubles me.
-: Well, I would say that the examples
that the defendants have given in this case
don't necessarily show all of the possibilities.
They're talking about joint motions or assented to motions
that may have been filed.
There could certainly be circumstances where
civilly committed individual would have
severe medical issues,
and the Department of Correction might choose to oppose it.
And a judge sitting in that session might want to-
-: Well, it could have one QE says yes and one QE says no.
Right, that could be a- -: That's correct, Your Honor.
Or a judge might say,
"Well, I don't know if I want to expedite
"this particular Section 9 case and jump the line
"unless we have concrete medical diagnosis
"and a concrete medical opinion."
-: The other one's saying that
if your statutory argument doesn't work on prisoner
and it's a pretty steep hill,
you're the one saying that there's
a substantive due process problem.
So, I think the record has to come from you that there is,
that this expedited QEs aren't going to
ultimately get to the same issue
as to whether this person is so,
in such a state medically
that they're not going to re-offend,
and it gets you to the same place as medical parole.
And by the way, that's an easier standard
than medical parole,
because in medical parole,
even if you satisfy the medical issue,
the Commissioner of the Department of Corrections
still has to analyze the welfare of society of the release.
So the Section 9 route actually might be easier
to satisfy than the medical parole route.
It doesn't have that welfare of society overhang on it.
-: Well, I would argue against that in two ways.
I think one is the timing issue.
Again, we have kind of the best circumstances
that have been laid out by the defendants in this case,
but there could be situations where it gets drawn out.
And also an individual who's been civilly committed
doesn't have the opportunity to seek reconsideration.
-: Can I ask you just a quick question on this?
In what part of substantive due process jurisprudence,
is there anything about the time?
-: Well, I think- -: That requires
the government to act within a particular
60-day window, 120-day window.
I don't understand the nexus between
the time that you're arguing for
and substantive due process
or any of the law in that regard.
-: Right, so the Superior Court's concern
in this particular case was twofold.
It was the length of time and the opportunity.
And so in the statute
it sets forth an opportunity for individuals
who are also in custody,
and they get this opportunity to go before the Commissioner
and present their petition and have it judged on the merits.
That same particular opportunity
is not available to somebody who's civilly committed.
And also the process that's in place through 123a
does not- -: No, now where
in substantive due process jurisprudence
I might find it has to be done on 60-day window
or 120-day window?
And it has to be done by this particular decision maker,
the Commissioner, as opposed to
beyond a reasonable doubt at trial.
-: Not in the medical parole context.
I think this is a unique case,
and we're asking that it be-
-: For the first time, yeah. -: Decided on-
Justice Gaziano: Because the time standards
all revolve in Buckman around the statute, correct?
-: I'm sorry, Your Honor, could you say that one more time?
-: Buckman, the medical parole statute,
when we talk about the the time standards,
it's meant to meet the legislative mandate
of giving meaningful medical parole
before people die, essentially.
-: Exactly, Your Honor, and I think,
just to conclude- -: But doesn't that
also shift you to the SDP statute,
because there you have a better
substantive due process argument.
This person shouldn't be in the treatment center
unless they're dangerous,
'cause they fulfilled their criminal sentence.
That would be the substantive due process thing.
The person's dying and is no longer dangerous
and shouldn't be in jail.
That's your best argument.
But that shifts you over to the SDP statute
as the appropriate place to deal with this, doesn't it?
-: I disagree, Your Honor,
because I think that the SDP doesn't,
the SDP statute doesn't adequately address
both the resources that are available
under medical parole and the timing issues
that are in there. -: But that gets back to
Justice Gaziano's and Justice Lowy's point about
the absence of proof and how that plays out.
'Cause you haven't shown
that the other process doesn't work.
I don't know which way that cuts.
But you haven't raised the issue
that they can't do it in an expedited way over there
in the SDP,
and therefore, you want us to find
that we have to treat these SDPs
under the medical parole statute.
I just don't know if that works
when you haven't proven that the SDP thing
doesn't work on its own.
-: Well, judge, I recognize that
we're stuck with the record that we have
on this particular case,
but I would again point to the SDP statute
that says speedy hearing.
But what we know through LeSage and the other cases is that,
and Mr. Murphy's case itself,
we're looking at about two to three years,
and we never know what might be right around the bend.
You know, Mr. Murphy could suffer a stroke
shortly after his SDP trial or after the QE evaluations,
and he would have no recourse to
have a second look at it,
where he would have
if the medical parole statute were in play.