Heard: January 6, 2017.
action commenced in the Superior Court Department on April 2,
motion to dismiss was heard by Raffi N. Yessayan, J., and a
motion for reconsideration was considered by him.
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
R. Pingeon, for American Civil Liberties Union of
Massachusetts & others, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
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. 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).
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.
Prior parole proceedings.
plaintiff pleaded guilty to murder in the second degree in
1962 in connection with an armed robbery that resulted in a
homicide. He was sentenced to life imprisonment with
the possibility of parole pursuant to G. L. c. 265, §
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.
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.
2012 parole hearing and decision.
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
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.
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
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 ...