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SJC-12203

RICHARD CROWELL vs. MASSACHUSETTS PAROLE BOARD.

Suffolk. January 6, 2017. - May 15, 2017.

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

Parole. Practice, Criminal, Parole. Americans with 

Disabilities Act. Practice, Civil, Action in nature of 

certiorari, Motion to dismiss.

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.

BUDD, J. On April 2, 2014, the plaintiff, Richard Crowell, 

filed a complaint in the nature of certiorari in the Superior 
2

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).

Background. 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 

1 We acknowledge the amicus brief of the American Civil 

Liberties Union of Massachusetts, the Center for Public 

Representation, the National Disability Rights Network, and 

Prisoners' Legal Services.

2 The plaintiff was the getaway vehicle's driver.

 
3

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 

3 The plaintiff was also sentenced to serve from fifteen to 

twenty years for assault with intent to rob or murder, from 

three to five years for assault by means of a dangerous weapon, 

and from fifteen to twenty years for armed robbery, all to be 

served concurrently with his life sentence.

 
4

"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 
5

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 life sentence or a 

sentence for a term of years. We transferred the case from the 

Appeals Court on our own motion.

Discussion. 1. The motion to dismiss. We review a 

judge's order granting a motion to dismiss de novo. Boston Med. 

Ctr. Corp. v. Secretary of the Exec. Office of Health & Human 

Servs., 463 Mass. 447, 450 (2012). The plaintiff asserts that 

the motion judge erroneously allowed the board's motion to 

dismiss because the board failed first to file the 

administrative record pursuant to a standing order of the 
6

Superior Court. Superior Court Standing Order 1-96(2) applies 

to actions in the nature of certiorari under G. L. c. 249, § 4, 

and requires the agency to file its administrative record within 

ninety days of service of the complaint.4 It also extends the 

deadline for certain motions, including those brought under 

Mass. R. Civ. P. 12 (b) and (e), 365 Mass. 754 (1974), to twenty 

days after service of the record. The board contends that it 

4 The relevant portions of Superior Court Standing Order 1-

96 provide:

"2. The administrative agency whose proceedings 

are to be judicially reviewed shall, by way of answer, 

file the original or certified copy of the record of 

the proceeding . . . within ninety (90) days after 

service upon it of the [c]omplaint. . . .

"3. The following motions raising preliminary 

matters must be served . . . not later than twenty 

(20) days after service of the record by the 

administrative agency.

"(a) Motions authorized by Mass. R. Civ. P. 12(b) 

or 12(e).

". . . .

"Any party failing to serve such a motion within 

the prescribed time limit, or within any court-ordered 

extension, shall be deemed to have waived any such 

motion . . . and the case shall proceed solely on the 

basis of the record. . . .

"4. A claim for judicial review shall be 

resolved through a motion for judgment on the 

pleadings, Mass. R. Civ. P. 12(c), . . . except as 

otherwise provided by this [s]tanding [o]rder, unless 

the [c]ourt's decision on any motion specified in part 

3 above has made such a resolution inappropriate. . . 

."

 
7

complied with both Superior Court Standing Order 1-96 and rule

12 (b) ("A motion making any of these defenses shall be made 

before pleading . . ."). Although the board was free to file a

motion to dismiss, it was error for the judge to allow it as the 

plaintiff had stated a claim upon which relief could be granted.

That is, he alleged in his complaint that the result of the 

parole board hearing (a quasi judicial administrative 

proceeding) was arbitrary or capricious, unsupported by 

substantial evidence, or otherwise an error of law. See Hoffer

v. Board of Registration in Med., 461 Mass. 451, 458 n.9 (2012) 

(discussing what plaintiff must show to obtain certiorari 

review).5

Given the plaintiff's allegations, the only appropriate way 

for the court to evaluate the claim is through a review of the 

administrative record upon a motion for judgment on the 

pleadings. See School Comm. of Hudson v. Board of Educ., 448 

Mass. 565, 575-576 (2007), citing St. Botolph Citizens Comm., 

Inc. v. Boston Redev. Auth., 429 Mass. 1, 7 (1999) ("Certiorari 

is a limited procedure reserved for correction of substantial 

errors of law apparent on the record created before a judicial 

5 A motion to dismiss may be appropriate, however, where a 

plaintiff has not met the time limitations for certiorari 

review, where the claim is moot, where a plaintiff lacks 

standing, or where certiorari review is not otherwise proper. 

See, e.g., Indeck v. Clients' Sec. Bd., 450 Mass. 379, 380-381

(2008).

 
8

or quasi-judicial tribunal"). Requiring a defendant agency to 

file the administrative record as a matter of course is an 

implicit acknowledgement of that fact.6 See Firearms Records

Bur. v. Simkin, 466 Mass. 168, 180 (2013), citing Cambridge 

Hous. Auth. v. Civil Serv. Comm'n, 7 Mass. App. Ct. 586, 587 

(1979). For this reason, we vacate the dismissal and remand for 

further proceedings.

2. The disability claim. In his Superior Court complaint, 

the plaintiff asserted that the board's decision to deny his 

parole petition was unlawful to the extent that the decision 

relied on his disability and faulted him for failing to seek out

an appropriate release plan. He claimed that the decision 

violated the ADA,7 as well as art. 1148 and G. L. c. 93, § 103.9 

6 Although it did not explain its reasoning, the Appeals 

Court came to the same conclusion in Doucette v. Massachusetts 

Parole Bd., 86 Mass. App. Ct. 531, 541 n.10 (2014). There, the 

Superior Court judge had a "near complete record" before him by 

the time he considered the board's motion to dismiss for failure 

to state a claim, and the Appeals Court affirmed the judge's 

decision, citing the parties' agreement to proceed on a partial 

record. Id. The court cautioned, however, that "[i]n future 

cases, certiorari review should be conducted under [Mass. R. 

Civ. P.] 12(c), in accordance with Superior Court Standing Order 

1-96, and not under rule 12(b)(6)." Id.

7 Title II of the Americans with Disabilities Act (ADA) 

provides: "[N]o qualified individual with a disability shall, 

by reason of such disability, be excluded from participation in 

or be denied the benefits of the services, programs, or 

activities of a public entity, or be subjected to discrimination 

by any such entity." 42 U.S.C. § 12132 (2012).

 
9

Because we vacate the dismissal on procedural grounds, we need 

not reach the merits of the plaintiff's disability claim. That 

being said, it is clear from the limited information we have --

i.e., a partial transcript and the board's written decision --

that the board's decision to deny the parole petition does not 

appear to have considered adequately the application of the ADA 

and our own relevant constitutional and statutory provisions. 

We therefore make the following observations.

The ADA and State provisions "prohibit the same conduct: 

disabled persons may not be 'excluded from participation in or 

be denied the benefits of' services, programs, or activities [of 

a public entity], and they may not 'be subjected to 

discrimination'" (citation omitted). Shedlock v. Department of 

Correction, 442 Mass. 844, 854 (2004). The plaintiff alleges, 

and the board clearly assumed (both during the review hearing 

and in its decision denying his petition for parole), that the 

8 Article 114 of the Amendments to the Massachusetts 

Constitution provides: "No otherwise qualified handicapped 

individual shall, solely by reason of his handicap, be excluded 

from the participation in, denied the benefits of, or be subject 

to discrimination under any program or activity within the 

commonwealth."

9 General Laws c. 93, § 103, provides in relevant part that 

"[a]ny person within the commonwealth, regardless of handicap 

. . . shall, with reasonable accommodation, have the same rights 

as other persons . . . to the full and equal benefit of all laws 

and proceedings . . . , including, but not limited to, the 

rights secured under [art. 114]."

 
10

plaintiff suffers from a disability: cognitive and behavioral 

limitations resulting from TBI. The plaintiff also alleges that 

he has been denied the benefits of a State program, i.e., a fair 

hearing and parole review decision process, to which he was 

statutorily entitled. See 42 U.S.C. § 12131(1)(B) (2012)

("public entity" includes State agencies); Pennsylvania Dep't of 

Corrections v. Yeskey, 524 U.S. 206, 210 (1998) (ADA applies to 

prisoners); Thompson v. Davis, 295 F.3d 890, 896-897 (9th Cir. 

2002), cert. denied, 538 U.S. 921 (2003) (ADA applies to parole 

proceedings, including substantive decision-making).10 

Therefore, the only open question is whether the plaintiff was 

excluded from the program, or discriminated against in the form 

of denial of parole, by reason of his disability. 

See Thompson, supra at 896, 898 n.4 (describing this inquiry as 

10 See also United States Department of Justice, Civil 

Rights Division, Examples and Resources to Support Criminal 

Justice Entities in Compliance with Title II of the Americans 

with Disabilities Act (Jan. 2017), https://www.ada.gov/cjta.html

[https://perma.cc/4W6S-9T5N] (DOJ Examples) (State programs may 

include "determining whether to revoke probation or parole, 

. . . parole and release programs, and re-entry planning"). The 

guidance document further explains that State entities must 

"[e]nsure that people with mental health disabilities . . . have 

an equal opportunity to participate in and benefit from the 

entities' programs, services, and activities." Id. To provide 

equal opportunities, State entities must "[m]ake reasonable 

modifications in policies, practices, or procedures when 

necessary to avoid disability discrimination in all interactions 

with people with mental health disabilities . . . , unless the 

modifications would fundamentally alter the nature of the 

service, program, or activity." Id.

 
11

asking whether prisoner was "otherwise qualified").

The board's decision to grant parole is limited by statute; 

it may only do so where it finds, "after consideration of a risk 

and needs assessment, that there is a reasonable probability 

that, if the prisoner is released with appropriate conditions 

and community supervision, the prisoner will live and remain at 

liberty without violating the law and that release is not 

incompatible with the welfare of society." G. L. c. 127, 

§ 130.11 No prisoner is entitled to parole, Deal v. Commissioner 

of Correction, 475 Mass. 307, 322 (2016), and we give the 

board's determination "considerable deference," Greenman

v. Massachusetts Parole Bd., 405 Mass. 384, 387 (1989).

However, this deference is not without limits. First, the 

board clearly may not categorically exclude any prisoner by 

reason of his or her disability. See Thompson, 295 F.3d at 898 

n.4. Second, both the ADA and the parole statute, G. L. c. 127, 

§ 130, require the board to take some measures to accommodate 

prisoners with disabilities. Where the board is aware that a 

11 General Laws c. 127, § 130, further provides:

"In making this determination, the parole board shall 

consider whether, during the period of incarceration, the 

prisoner has participated in available work opportunities 

and education or treatment programs and demonstrated good 

behavior. The board shall also consider whether risk 

reduction programs, made available through collaboration 

with criminal justice agencies would minimize the 

probability of the prisoner re-offending once released."

 
12

mental disability may affect a prisoner's ability to prepare an 

appropriate release plan in advance of a parole hearing, the 

board should make reasonable modifications to its policy, for 

example, by providing an expert or other assistance to help the 

prisoner identify appropriate postrelease programming. See 28 

C.F.R. § 35.130(b)(7) (2016);12 28 C.F.R. § 35.130(b)(8) (2016).13 

In accommodating prisoners with mental disabilities, the board 

should also consider whether there are risk reduction programs 

designed to reduce recidivism in those who are mentally 

disabled. See G. L. c. 127, § 130.

These provisions do not require the board to make 

modifications that would "fundamentally alter" the nature of 

parole. 28 C.F.R. § 35.130(b)(7). See 28 C.F.R. § 35.139 

12 Title 28 C.F.R. § 35.130(b)(7) (2016) provides:

"A public entity shall make reasonable modifications 

in policies, practices, or procedures when the 

modifications are necessary to avoid discrimination on the 

basis of disability, unless the public entity can 

demonstrate that making the modifications would

fundamentally alter the nature of the service, program, or 

activity."

13 Title 28 C.F.R. § 35.130(b)(8) (2016) provides:

"A public entity shall not impose or apply eligibility 

criteria that screen out or tend to screen out an 

individual with a disability or any class of individuals 

with disabilities from fully and equally enjoying any 

service, program, or activity, unless such criteria can be 

shown to be necessary for the provision of the service, 

program, or activity being offered."

 
13

(2016). To the contrary, those who would pose a danger to 

society even with risk reduction programs should not be released 

on parole. G. L. c. 127, § 130. In addition, the board's 

important role in protecting society from the early release of 

dangerous persons means that the board must be able to consider 

whether the symptoms of a prisoner's disability mean that he or 

she has a heightened propensity to commit crime while released 

on parole. See Thompson, 295 F.3d at 898 n.4.

The interaction of these requirements means that once the 

board became aware that the plaintiff's disability could 

potentially affect his ability to qualify for parole, it had the 

responsibility to determine whether reasonable modifications 

could enable the plaintiff to qualify, without changing the 

fundamental nature of parole.14 Here, the board indicated its 

14 In interpreting art. 114 and the ADA, we have previously 

examined whether the disabled individual requested reasonable 

accommodations from a State prison. See Shedlock v. Department 

of Correction, 442 Mass. 844, 856-859 (2004). In that case, 

however, we noted that prison officials, while aware of the 

prisoner's disability, might have been unaware that he needed 

further accommodation. Id. at 856-857. Here, the board -- as 

reflected in the board member's comments and in the board's

written decision -- was clearly aware of the plaintiff's 

disability and that he would need further accommodation if 

parole were to work. As a result, the board had an obligation 

to consider whether reasonable modifications could mitigate any 

risk that the plaintiff would pose were he released on parole. 

See DOJ Examples, supra ("The reasonable modification obligation 

applies when an agency employee knows or reasonably should know 

that the person has a disability and needs a modification

. . .").

 
14

awareness both of the plaintiff's disability and of how symptoms 

stemming from that disability could affect his behavior both in 

the parole hearing and on parole. In addition, while one board 

member discussed the possibility that the plaintiff would need 

to be in a "very structured setting" while on parole, there is 

no indication in the limited record before us whether the board 

actually considered any such modification and whether it would 

make him a more qualified candidate for parole. Further, the 

board negatively considered the plaintiff's attitude during the 

parole hearing and his own failure to identify what the board 

considered to be appropriate parole programs, without 

considering whether these behaviors were the result of his TBI.

In short, while the judge correctly noted that in its 

decision, the board had considered a broad set of factors, 

including the plaintiff's behavior before his TBI, the record 

before us shows no consideration of how the plaintiff's 

limitations affect his parole eligibility, whether these 

limitations could be mitigated with reasonable modifications,15

and whether other factors would nevertheless disqualify him from 

15 To the extent that the plaintiff's disability prevents 

him from seeking out such reasonable modifications himself, it 

may be inappropriate for the board to place the burden on him to 

put forward his own parole programming proposal.

 
15

parole.16 More importantly, it is impossible to determine the 

weight the board gave to the disability and associated 

limitations relative to other factors in its analysis. Once the 

board has submitted the administrative record, upon a motion for 

judgment on the pleadings, the motion judge will have a better 

basis for considering the plaintiff's claims.17

3. Frequency of parole review. General Laws c. 127, 

§ 133A, governs parole eligibility for "[e]very prisoner who is 

serving a sentence for life," with limited exceptions. It 

provides for an initial hearing fifteen years into a life term, 

and rehearings every five years if parole is not granted. Id.

120 Code Mass. Regs. § 301.01(5). In contrast, with limited 

16 In this case, at least with respect to the plaintiff's 

limitations due to TBI and how those limitations interact with 

the criteria for parole, it is difficult to see how the board 

could proceed without a professional evaluation of the 

plaintiff's condition and recommendation regarding a postrelease 

plan that might diminish the risk of recidivism. See 28 C.F.R. 

§ 35.130(h) (2016) (assessment whether safety requirements that 

exclude persons with disabilities are nevertheless legitimate 

must be "based on actual risks, not on mere speculation, 

stereotypes, or generalizations about individuals with 

disabilities"); 28 C.F.R. § 35.139(b) (2016) (assessment of 

whether individual poses "direct threat" must rely "on current 

medical knowledge or on the best available objective evidence

. . . to ascertain" nature of risk and whether it could be 

reasonably mitigated).

17 We note that, even if the plaintiff is successful in 

demonstrating a violation of the ADA upon a motion for judgment 

on the pleadings, he is not automatically entitled to the relief 

he seeks (release on parole), but rather to a parole hearing and 

decision that considers reasonable modifications in light of his 

disability.

 
16

exceptions not relevant here, all other prisoners denied parole 

are entitled to a rehearing on an annual basis. 120 Code Mass. 

Regs. § 301.01(2) (1997). The plaintiff argues that the 

commutation of his original sentence from life with the 

possibility of parole to thirty-six years to life reduced his 

sentence to an indeterminate one, such that it is no longer 

governed by § 133A, and that he is entitled to review on an 

annual basis.18 We disagree.

The case to which the defendant cites undermines his 

argument, as the court held that the nature of a prisoner's 

sentence depends on the maximum term, which sets "the maximum 

amount of time that the prisoner will serve in prison if he 

. . . is not granted parole," whereas the minimum term "serves 

18 The plaintiff also argues that because his commuted 

sentence is similar to that described in the home invasion 

statute, G. L. c. 265, § 18C ("for life or for any term of not 

less than twenty years"), his sentence should be governed by 

G. L. c. 127, § 133 (annual review), rather than G. L. c. 127, 

§ 133A (review every five years). He reasons that in 

Commonwealth v. Brown, 431 Mass. 772, 774-777 (2000), we 

mentioned that a defendant convicted under the home invasion 

statute was subject to § 133. However, the plaintiff ignores 

the fact that unlike himself, the defendant in Brown was not 

sentenced to life, but instead to from twenty years to twenty 

years and one day. Id. at 773.

The plaintiff further argues that we should adopt 

California's rule, citing three decisions in which that State's 

highest court held that a sentence of from a term of years to

life is not a life sentence. These decisions are 

distinguishable from the plaintiff's case, however, as all three 

involved crimes committed when the defendants in question were 

minors.

 
17

as a base for determining his parole eligibility date." Connery

v. Commissioner of Correction, 33 Mass. App. Ct. 253, 254 

(1992), S.C., 414 Mass. 1009, 1011 (1993), citing Commonwealth

v. Hogan, 17 Mass. App. Ct. 186, 189 (1983), and Commonwealth

v. Haley, 23 Mass. App. Ct. 10, 18 (1986). Because judges 

sentencing on convictions for murder in the second degree now 

must fix a minimum term as a parole eligibility date, G. L. 

c. 279, § 24, if we adopted the defendant's view it would 

essentially mean that no sentences other than a life sentence 

without the possibility of parole would be a "life sentence." 

This would render § 133A meaningless. See Boston Police 

Patrolmen's Ass'n v. Boston, 435 Mass. 718, 721 (2002), 

quoting Victory Distribs., Inc. v. Ayer Div. of the Dist. Court 

Dep't, 435 Mass. 136, 140 (2001) ("We interpret statutes so as 

to avoid rendering any part of the legislation meaningless"). 

Instead, the board has determined that § 133A and the associated 

regulations govern parole hearings for all "individuals serving 

a sentence that contains life as the maximum term of the 

sentence." 120 Code Mass. Regs. § 100.00 (2001). Therefore, 

the plaintiff's sentence remains a "life sentence," and his 

parole is governed by § 133A.

Conclusion. We reverse the dismissal of the complaint and 

remand for further proceedings consistent with this opinion.

So ordered.