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Crowell v. Massachusetts Parole Board

Supreme Judicial Court of Massachusetts, Suffolk

May 15, 2017


          Heard: January 6, 2017.

         Civil action commenced in the Superior Court Department on April 2, 2014.

         A motion to dismiss was heard by Raffi N. Yessayan, J., and a motion for reconsideration was considered by him.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Tabitha Cohen (John D. Fitzpatrick also present) for the plaintiff. Todd M. Blume, Assistant Attorney General, for the defendant.

          James R. Pingeon, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          BUDD, J.

         On April 2, 2014, the plaintiff, Richard Crowell, filed a complaint in the nature of certiorari in the Superior Court, alleging that, in denying his petition for parole, the Parole Board (board) had violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), and cognate State provisions, art. 114 of the Amendments to the Massachusetts Constitution and G. L. c. 93, § 103. A judge of that court allowed the board's motion to dismiss and denied the plaintiff's motion for reconsideration. We reverse and remand for further development of the record.[1] Further, we conclude that, contrary to the plaintiff's assertion, his commuted life sentence remains a "life sentence" within the meaning of 120 Code Mass. Regs. § 301.01(5) (1997).


         The limited record before us, presented in the form of exhibits to the plaintiff's complaint, includes the following facts, which are undisputed by the parties.

         1. Prior parole proceedings.

         The plaintiff pleaded guilty to murder in the second degree in 1962 in connection with an armed robbery that resulted in a homicide.[2] He was sentenced to life imprisonment with the possibility of parole pursuant to G. L. c. 265, § 2.[3] In 1974 the plaintiff's life sentence was commuted to one that was from "[thirty-six] years to life." He was paroled in November, 1975. Between 1975 and 1990 the plaintiff was returned to custody on five occasions (1977, 1980, 1982, 1989, and 1990) for failing to adhere to his conditions of parole, including repeated problems with alcohol and assaultive behavior. In 1987 he sustained a traumatic brain injury (TBI), which caused deficiencies in his memory, speech, and cognition. He attributes the loss of his job while on parole as well as an exacerbation of his alcohol problems to TBI.

         The plaintiff was denied parole following review hearings before the board in 1991, 1994, and 1997. In 2003, he was again paroled on the condition that he complete a long-term residential program and attend Alcoholics Anonymous meetings at least three times per week. Less than one month later, his parole was revoked for failure to complete the residential program. He has been incarcerated since that time.

         2. 2012 parole hearing and decision.

         In August, 2012, the plaintiff had a review hearing before the board. During that hearing, one of the board members noted that TBI had "caused cognitive functioning [and] emotional functioning deficits, " resulting in uncooperative behavior that was "secondary to [the plaintiff's] brain injury." The board member stated that this was a chronic, life-long condition that "might get worse . . . [s]o [the plaintiff] would need to be in some sort of setting where [he] could be managed and cooperate with people forever." She also expressed concern about the fact that the programs the plaintiff's counsel had looked into were voluntary programs that would require his full cooperation.

         Ultimately the board issued its decision denying the plaintiff parole, stating that the plaintiff "was unable to offer any concrete, viable release plan that could assure the [b]oard that he would be compliant on parole after his history of defiance and non-compliance" and that he "has not sought or achieved the rehabilitation necessary to live safely in the community." The board also stated, "Crowell was unable to address the concerns related to his combative attitude and . . . gave the clear impression that he feels entitled to parole . . . ." The board denied the plaintiff's request for reconsideration.

         3. Certiorari action.

         On April 2, 2014, the plaintiff timely filed a complaint seeking certiorari review of the board's decision by way of G. L. c. 249, § 4, alleging that the board's denial was a violation of his rights under the ADA and cognate State provisions, and that the board's decision to grant him a review hearing only every five years (rather than annually) was unlawful. He sought immediate release or a hearing at which the board would be prohibited from considering his disability as a reason to prevent him from being paroled. The plaintiff further asked the court to direct the board to use its resources to find an appropriate placement for him in the community.

         The judge allowed the board's motion to dismiss, concluding that the board had not discriminated against the plaintiff in its decision denying him parole because it considered many factors, only one of which was his disability related to the TBI. The plaintiff appealed and obtained a brief stay of the appeal to pursue an unsuccessful motion for reconsideration on the limited issue whether he is serving a ...

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