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SJC-13495

COMMONWEALTH vs. QUASIM HASTINGS & another.1

Berkshire. January 8, 2024. – May 13, 2024.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

Indigent. Parole. Imprisonment, Parole, Disabled prisoner. 

Constitutional Law, Parole. Practice, Criminal, Parole. 

Statute, Construction. Mental Health. Social Worker.

Indictment found and returned in the Superior Court 

Department on May 14, 2003.

An ex parte motion for funds to retain an expert, filed on 

August 12, 2022, was considered by Douglas H. Wilkins, J.; a 

motion for reconsideration was heard by him; and the case was 

reported by him to the Appeals Court.

The Supreme Judicial Court granted an application for 

direct appellate review.

Sharon Dehmand for the defendant.

Andre A. Janiszewski, Assistant Attorney General, for the 

intervener.

Benjamin H. Keehn, Committee for Public Counsel Services, 

for Committee for Public Counsel Services, amicus curiae, 

submitted a brief.

1 Massachusetts Parole Board, intervener.
2

GAZIANO, J. This appeal concerns the scope of the

constitutionally mandated exception to G. L. c. 261, §§ 27A-27G 

(indigency statute), carved out in Diatchenko v. District 

Attorney for the Suffolk Dist., 471 Mass. 12, 26-27 (2015)

(Diatchenko II). In particular, we address whether the

exception authorizes a judge to allow an indigent prisoner's 

motion for funds to retain an expert witness for an upcoming 

parole hearing.

Quasim Hastings, convicted of murder in the second degree

in 2004, is eligible to be considered for release on parole. He 

has been diagnosed with a mental disability and, therefore, is

entitled to a parole hearing that affords him protections 

secured by art. 114 of the Amendments to the Massachusetts 

Constitution as well as Federal and State statutes prohibiting 

discrimination on the basis of disability. See Crowell v. 

Massachusetts Parole Bd., 477 Mass. 106, 110-112 (2017).

Prior to a 2023 parole hearing, appointed counsel for 

Hastings filed, in the original criminal case, a motion for 

funds to retain a forensic psychologist under Crowell. A 

Superior Court judge allowed the motion.

Hastings's counsel filed a second motion for funds to 

retain a social services advocate to assist with preparing a 

prerelease plan. A different Superior Court judge denied this 

request for public funds. The judge reasoned that the plain 
3

language of the indigency statute limits his authority to 

approve funds to pending proceedings or appeals in any court. 

He found also that this court's constitutionally mandated 

exception does not extend to Hastings's statutory right to 

parole consideration. The judge reported to the Appeals Court

his denial of the motion for funds, and we granted Hastings's

application for direct appellate review.

For the following reasons, we conclude that Hastings's

motion for funds to retain a social services advocate implicates 

his State constitutional right to reasonable disability 

accommodations. Because the constitutionally mandated exception 

to the indigency statute applies, the order denying Hastings's

motion for funds is reversed.2

Background. In 2004, Hastings pleaded guilty in the 

Superior Court to murder in the second degree and was sentenced 

to life with the possibility of parole in fifteen years. See 

G. L. c. 265, § 2; G. L. c. 127, § 133A. Hastings, in 2015, was 

diagnosed with mental illnesses, including major depressive 

disorder with psychotic features. Prior to Hastings's initial 

2019 parole hearing, the Massachusetts Parole Board (board) 

2 We acknowledge the amicus brief submitted by the Committee 

for Public Counsel Services in support of Hastings and the 

amicus letter submitted by the Committee for Public Counsel 

Services and Prisoners' Legal Services of Massachusetts.
4

requested an appointment of counsel from the Committee for 

Public Counsel Services (CPCS) based on Hastings's mental health 

disability. CPCS assigned Hastings counsel. In 2018, 

Hastings's counsel filed in his Superior Court criminal case a 

motion for funds to retain the services of a forensic 

psychiatrist to assist in the parole hearing. See Commonwealth 

vs. Hastings, Mass. Super. Ct., No. 0376CR00106 (Berkshire 

County May 14, 2003). A Superior Court judge allowed the 

motion. The board denied Hastings's petition for parole in 

2019, and he was given a four-year setback. See Roberio v. 

Massachusetts Parole Bd., 483 Mass. 429, 432 (2019) (period 

between board's denial of parole and prisoner's statutory right 

to subsequent review is referred to as "setback").

Hastings's counsel, in advance of the 2023 parole hearing, 

filed two additional motions for funds in Hastings's Superior 

Court criminal case. In the first motion, filed on June 6, 

2022, $5,000 was requested to retain a forensic psychologist. 

Counsel represented that "[a]n updated evaluation and testimony 

by a forensic psychologist are necessary for . . . Hastings to 

adequately present his case for parole." A Superior Court judge 

allowed the motion on June 10, 2022.

Next, on August 12, 2022, Hastings's counsel filed a motion 

for funds to retain a social services advocate to assist with 

preparing a release plan. According to counsel, "[p]art of 
5

. . . Hastings'[s] application for parole will involve having an 

extensive release plan which requires application and acceptance 

by the Department of Mental Health as well as placement,

housing, and other mental health services." A different 

Superior Court judge (motion judge), on September 22, 2022, 

denied the motion for funds as exceeding the Superior Court's 

statutory authority. He explained, "The [c]ourt's authority 

under G. L. c. 261, [§ 27B,] is limited to 'any civil, criminal 

or juvenile proceeding or . . . appeal in any court.' A parole 

hearing is not 'in any court.'"

Hastings's counsel, on October 19, 2022, moved for 

reconsideration. The motion was supported by affidavits of a 

social worker and the director of the CPCS parole advocacy unit. 

The social worker noted that "[c]lients with disabilities often 

require experts specialized in services for people with 

disabilities." She explained the advantages of retaining a 

clinician to identify appropriate support networks and services 

to assist a client's successful reentry into the community. The 

director of the CPCS parole advocacy unit noted that the board 

"often relies upon expert evaluations and reports obtained by 

counsel via a motion for funds in determining the suitability of 

disabled prisoners for release on parole." She added that it 

therefore is "imperative" for disabled parole candidates to 

present comprehensive release plans crafted by social services 
6

experts capable of navigating complex intra-agency referrals, 

assessments, and specialized residential care. She also 

submitted a list of docket numbers of over thirty cases in which 

Superior Court judges across the Commonwealth had allowed 

motions for funds to retain experts, including social workers, 

psychiatrists, and psychologists, to assist nonjuvenile disabled 

prisoners in parole hearings.

The motion judge denied Hastings's motion for 

reconsideration. The phrase "in any court" within G. L. c. 261, 

§ 27B, he reasoned, "limits the authority to authorize payment 

by the Commonwealth" to pending court proceedings. Moreover, he 

determined that the constitutional exception to this rule, set 

forth in Diatchenko II, does not apply. The motion judge stated 

that Hastings's right to parole consideration after serving 

fifteen years of a life sentence "arises by statute." See G. L. 

c. 127, § 133A. In contrast, he stated, a juvenile homicide 

offender's parole eligibility arises out of "a constitutional 

limitation on the court's authority to order a life sentence." 

While recognizing the board's duty to accommodate Hastings's

disability, the motion judge concluded that "[t]he fact that the 

Legislature and [board] had provided no statutory avenue for 

relief against the Executive does not require disregarding the 

plain language of G. L. c. 261, § 27B[,] or the controlling 
7

authority under that statute." The motion judge reported the 

denial of the motion for funds for appellate consideration.3

Discussion. The indigency statute provides a mechanism for 

indigent litigants to obtain public funds to hire expert 

witnesses. See Reade v. Secretary of the Commonwealth, 472 

Mass. 573, 574, 578 (2015), cert. denied, 578 U.S. 946 (2016). 

Under G. L. c. 261, § 27C (4), on a finding of indigency, the 

court "shall not deny any request with respect to extra fees and 

costs if it finds the document, service or object is reasonably 

necessary to assure the applicant as effective a prosecution, 

defense or appeal as he would have if he were financially able 

to pay." "Extra fees and costs" include the costs of "expert 

assistance." G. L. c. 261, § 27A. See generally Commonwealth

v. Matranga, 455 Mass. 45, 50-51 (2009) (discussing judge's role 

in approving request for expert witness funds). The indigency 

statute embodies the principle of "equal justice under the law"

by ensuring that court house doors are not closed to the poor. 

Edwards, petitioner, 464 Mass. 454, 461 (2013).

The text of G. L. c. 261, §§ 27A-27G, as the motion judge 

determined, refers solely to fees and costs associated with 

3 The motion judge expressed some doubt as to whether Mass. 

R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), was the 

proper mechanism by which his ruling could be reported. In any 

event, Hastings subsequently consented to the reporting of the 

case to the Appeals Court. See Mass. R. Crim. P. 34, as 

amended, 442 Mass. 1501 (2004).
8

pending trials and appeals. Despite its salutary purpose, the 

indigency statute does not apply every time an indigent litigant 

seeks public funds to assert a legal claim. See Doe, Sex 

Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 

452 Mass. 764, 779 (2008) ("G. L. c. 261, §§ 27A-27G, read as a 

whole, makes clear that it is concerned with fees and costs that 

relate directly to the prosecution or defense of actions and 

appeals pending in a court . . . not an underlying adjudicatory 

proceeding before an administrative agency"). Section 27B 

provides in relevant part: "Upon or after commencing or 

answering to any civil, criminal or juvenile proceeding or 

appeal in any court," a party may file an affidavit of indigency 

and request "waiver, substitution or payment by the commonwealth 

of fees and costs" (emphasis added). G. L. c. 261, § 27B. 

Section 27C (4) authorizes the payment of expert witness fees 

that are reasonably necessary "to assure the applicant as 

effective a prosecution, defense or appeal as he would have if 

he were financially able to pay" (emphasis added). G. L. 

c. 261, § 27C (4). And § 27A defines "extra fees and costs" as 

fees and costs "in addition to those a party is normally 

required to pay in order to prosecute or defend his case"

(emphasis added). G. L. c. 261, § 27A. See Commonwealth v. 

Dubois, 451 Mass. 20, 33 (2008) (G. L. c. 261, § 27C, does not 

authorize payment of funds to hire handwriting expert for motion 
9

for new trial); Commonwealth v. Carter, 429 Mass. 266, 270 

(1999) ("Section 27C does not authorize a judge to allow costs 

in connection with the presentation of a new trial motion based 

on a claim of ineffective assistance of counsel").4

In Diatchenko II, 471 Mass. at 25-26, we held that the 

indigency statute did not, on its face, authorize the 

expenditure of public funds for expert witnesses to assist 

juveniles in the context of an administrative hearing.

"[General Laws] c. 261, §§ 27A-27G, the statutory provisions 

generally authorizing the payment of public funds to cover costs 

and fees of indigent litigants, apply most directly to costs and 

fees relating to court proceedings, not proceedings before 

administrative or executive agencies like the [parole] board." 

Id. at 26.

The next question to address is whether Hastings's request 

for funds for expert witness services falls within the 

constitutionally mandated exception to the indigency statute 

carved out in Diatchenko II. Notwithstanding the plain language 

of §§ 27A, 27B, and 27C (4), we held in Diatchenko II, 471 Mass. 

at 27-28, that a judge is authorized to grant funds for an 

expert witness whose assistance the judge deems "reasonably 

4 By amendment in 2001, Mass. R. Crim. P. 30 (c) (5), as 

appearing in 435 Mass. 1501 (2001), allows for the payment of 

costs associated with preparation of a new trial motion. See 

Reporter's Notes to Mass. R. Crim. P. 30.
10

necessary" to protect an indigent juvenile homicide offender's

constitutional right to a "meaningful opportunity for release" 

at an initial parole hearing.

This holding was foreshadowed by prior case law. In 

Commonwealth v. Davis, 410 Mass. 680, 681-682 (1991), the 

defendant filed a postappeal motion in the Superior Court for 

deoxyribonucleic acid (DNA) testing of physical evidence in the 

Commonwealth's possession. He maintained that the test results 

would constitute newly discovered evidence sufficient to support 

a motion for a new trial. Id. at 682. A Superior Court judge 

denied the motion. Id. In opining on the defendant's 

substantive claim, this court stated that the defendant's motion 

for DNA testing costs "is not cognizable under [G. L.] c. 261, 

§ 27C (4), because the funds sought are not related to a pending 

trial or appeal." Id. at 684. We acknowledged that this 

interpretation of § 27C "may work a hardship on convicted 

indigents seeking the funds to carry out a newly discovered 

scientific technique which could yield exculpatory evidence." 

Id. We concluded that "[w]here the Legislature has chosen not 

to fund certain procedures not constitutionally mandated, 

however, this court may not rewrite the statute to do so." Id. 

Likewise, in Carter, 429 Mass. at 270, we observed that the 

defendant "makes no claim that he was entitled constitutionally 

to funds for an investigator."
11

The Diatchenko II court carved out an exception to the 

indigency statute to safeguard a parole-eligible, indigent 

juvenile homicide offender's right under art. 26 of the 

Massachusetts Declaration of Rights to a meaningful parole 

review. See Diatchenko II, 471 Mass. at 27-28. We explained:

"Because the postconviction proceeding at issue here, a 

parole hearing for a juvenile homicide offender, is 

required in order to ensure that an offender's life 

sentence conforms to the proportionality requirements of 

art. 26, the proceeding is not available solely at the 

discretion of the State. Rather, it is constitutionally 

mandated, and as such, it requires certain protections not 

guaranteed in all postconviction procedures. It is 

appropriate, therefore, to construe G. L. c. 261, §§ 27A27G, to authorize a Superior Court judge, upon motion of a 

parole-eligible, indigent juvenile homicide offender, to 

allow for the payment of fees to an expert witness . . . ."

Id. at 27.5

In this case, we agree with the motion judge's conclusion 

that Hastings's right to parole consideration arises by 

operation of G. L. c. 127, § 133A. Statutory parole eligibility 

stands in contrast to parole eligibility that is "required in 

order to ensure that an offender's life sentence conforms to the 

proportionality requirements of art. 26." Diatchenko II, 471 

Mass. at 27. The constitutionally mandated exception to the 

5 In 2018, as part of the comprehensive criminal justice 

reform act, the Legislature amended G. L. c. 127, § 133A, to 

provide indigent juvenile homicide offenders with the "right to 

have appointed counsel at the parole hearing" and "the right to 

funds for experts pursuant to chapter 261." G. L. c. 127,

§ 133A, as amended through St. 2018, c. 69, § 98.
12

indigency statute, as outlined in Diatchenko II, does not sweep 

so broadly as to fund all requests for fees and costs whenever 

an indigent prisoner reaches statutory parole eligibility.

Article 114, however, adds a "constitutional dimension" to

Hastings's funding request "that does not exist for other 

offenders whose sentences include parole eligibility." 

Diatchenko II, 471 Mass. at 19. Accordingly, we hold that a 

judge has the discretion to allow a motion for funds to pay for 

expert assistance as reasonably necessary to safeguard the 

indigent prisoner's constitutional rights prohibiting 

discrimination on the basis of disability.

We examined the board's duty to accommodate prisoners with 

disabilities in Crowell, 477 Mass. at 112-113. In that case, 

Crowell asserted that the board's failure to properly consider 

the effects of his traumatic brain injury violated art. 114 as 

well as rights secured by Federal and State handicapped 

discrimination statutes. Id. at 110. See G. L. c. 93, § 103;

42 U.S.C. §§ 12101 et seq. (Americans with Disabilities Act or 

ADA).6 This court vacated the dismissal of Crowell's complaint 

6 Article 114, ratified in 1980, 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." See Carleton v. 

Commonwealth, 447 Mass. 791, 811 (2006). "Actions to enforce 

the rights guaranteed by art. 114 . . . are authorized by G. L. 

c. 93, § 103," the Massachusetts Equal Rights Act. Shedlock v. 
13

challenging the denial of parole on procedural grounds and 

remanded for further findings. Crowell, supra at 110-111. 

Nonetheless, we took the opportunity to discuss the board's 

constitutional and statutory obligations to accommodate 

Crowell's mental disability. See id. at 111-112 ("the only open 

question is whether the plaintiff was excluded from the program 

[a fair hearing and parole review decision process], or 

discriminated against in the form of denial of parole, by reason 

of his disability"). See also Shedlock v. Department of 

Correction, 442 Mass. 844, 855-856 (2004) (art. 114 and ADA 

require reasonable accommodation in prison setting with due 

regard for penological concerns); Layne v. Superintendent, Mass.

Correctional Inst., 406 Mass. 156, 160 (1989) (art. 114 claim 

brought by disabled prisoners unable to access library).

As an example of a reasonable disability accommodation, the 

Crowell court cited expert witness funds, such as those sought 

by Hastings in advance of his 2023 parole hearing. See Crowell, 

477 Mass. at 112. Discussing the board's duty to accommodate 

disabled prisoners, we stated that "[w]here the board is aware 

Department of Correction, 442 Mass. 844, 852 n.6 (2004). See 

Layne v. Superintendent, Mass. Correctional Inst., Cedar 

Junction, 406 Mass. 156, 159-160 (1989).

Title II of the Americans with Disabilities Act also 

prohibits public entities from excluding qualified disabled 

persons from participation in, or being denied the benefits of, 

services, programs, or activities. See 42 U.S.C. § 12132.
14

that a 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." Id. The Crowell court did not, as the issues

were not raised, identify a source of funding for needed expert 

assistance or consider that the board neither receives funds nor 

has a mechanism to authorize expert witness expenditures.

This case squarely presents that issue. A failure to fund 

a disabled prisoner's access to expert witness services would 

render hollow the constitutional right to "participat[e] in" and 

not be "denied the benefits of, or be subject to discrimination 

under any program or activity within the commonwealth." Art. 

114 of the Amendments to the Massachusetts Constitution. 

Applying the constitutionally mandated exception set forth in 

Diatchenko II, we construe the indigency statute to authorize a 

Superior Court judge, on motion by a parole-eligible, disabled 

prisoner, to allow for the payment of funds for expert services 

that are reasonably necessary to safeguard the prisoner's 

constitutional right to a parole hearing free of discrimination 

on the basis of disability.

Conclusion. The order dated September 22, 2022, denying 

Hastings's motion for funds to retain a social services advocate
15

to assist with preparing a prerelease plan for his upcoming 

parole hearing, is reversed.

So ordered.