Commonwealth v. DonohueCommonwealth v. Donohue
Lead Opinion
At issue in this case is whether the use of Policy and
1. The GPS program.
Every inmate participating in the GPS program shall be required to wear a tamper-proof transmitter, which enables the sheriffs staff to monitor the inmate twenty-four hours each day, and shall be required to have, among other things, an approved home and work plan and a reliable means of transportation, either private or public. See Policy and Procedure 467.06, 467.09(1). Each inmate’s activities are supervised by a GPS monitoring officer who approves the inmate’s itinerary and any changes thereto, and who conducts random checks on the inmate, both by telephone and by onsite visits. See Policy and Procedure 467.09(2), 467.09(4). All inmates participating in the GPS program shall be supervised for “out of place” violations and for the use of alcohol and illegal drags, and they shall be required to submit to random and frequent “urine surveillance.” See Policy and Procedure 467.09(5).
Inmates must report to the house of correction in person as scheduled or whenever so ordered, at which time they are required to submit, for approval, their itineraries for the following week. See Policy and Procedure 467.09(6). Inmates also must agree to abide by the roles of conduct of the GPS program, and they are required to read and sign an agreement that specifies those roles. See Policy and Procedure 467.08(1). A disciplinary report may be issued whenever there is an infraction of any role of conduct, and if such a report is issued, the inmate shall be returned to the house of correction and be placed in administrative segregation pending a hearing. See Policy and Procedure 467.08(2), (3). The GPS program provides that an inmate will be declared to have escaped if that inmate fails to report to a designated destination within two hours of his established time, if the designated administrator believes that the inmate has escaped, or if there is confirmation that the inmate has destroyed or otherwise rendered inoperable the GPS monitoring equipment. See Policy and Procedure 467.11(1). In addition to escape, an inmate can be terminated from the GPS program for, among other reasons, a new
2. Background. On March 8, 2007, following a jury trial, Edward Donohue was found guilty of operating a motor vehicle while under the influence of alcohol, third offense, in violation of
On September 19, 2007, Donohue’s case was placed on the Superior Court’s hearing list for a determination of indigency because he had requested the appointment of counsel to appeal from his conviction. The court issued a writ of habeas corpus to the house of correction for Donohue to appear in the Superior Court in Middlesex County for a hearing. Donohue arrived in court accompanied by a deputy sheriff, and the judge learned that Donohue had been released from the house of correction on a GPS monitoring bracelet. On September 20, 2007, the judge issued an order for the sheriff to show cause why Donohue was not serving the sentence that had been imposed by the court on March 20. The sheriff filed an opposition to the court’s order, claiming that it constituted judicial interference with his authority to determine the manner by which defendants serve their sentences in violation of the separation of powers principles expressed in art. 30 of the Massachusetts Declaration of Rights.
At the show cause hearing on September 21, 2007, the sheriff took the position that he had the authority to confine Donohue
A further hearing on the matter was held on September 27, 2007. At this proceeding, the sheriff confirmed that Donohue’s earliest release date on parole, after application of all statutory credits, would be November 27, 2007. The sheriff further stated that, at any given time, ten to fifteen inmates under sentence to the house of correction were “classified” to the GPS program and, therefore, were not being housed in a facility maintained by the sheriff.
On October 2, 2007, the judge issued a memorandum of decision and order in which she found that, to the extent Policy and Procedure 467 authorized the release from custody of committed offenders who had not completed their sentences as imposed by a court, it impermissibly intruded on the core judicial function of sentencing in violation of art. 30.
On October 4, 2007, the sheriff filed a notice of appeal, as well as a motion for reconsideration of the October 2 order and a motion to stay the order pending appeal. On November 9, 2007, the same Superior Court judge denied the sheriff’s motions for reconsideration and for a stay.
Generally, however, once a judge has sentenced a defendant, authority over the defendant passes from the judicial branch to the executive branch of government in that the defendant becomes subject to the sheriff’s control.
Referring to these principles, the sheriff contends that, once a defendant has been sentenced to the house of correction, the sheriff has the authority under art. 30 to set the conditions of an inmate’s incarceration as the sheriff deems appropriate, subject to any mandatory sentence requirements or other restrictions
We are not required to resolve in this case whether the sheriff is correct that art. 30, or his broad statutory authority to determine the place of confinement of inmates within his custody and control, permits him generally to “confine” an inmate in his home before the inmate has served the committed portion of his sentence at the house of correction or other correctional facility. We reach this conclusion because, in our view,
The Legislature has mandated that administrators of county correctional facilities establish and maintain education, training, and employment programs for persons committed to these facilities. See
Because Donohue had served 195 days of his sentence in the house of correction at the time he was admitted into the GPS program, he had satisfied the legislative requirement, set forth in
The parameters of some programs are described with particularity by the Legislature. One such program is a “work release program.”
As set forth in the “[pjolicy” of Policy and Procedure 467, the GPS program is “designed to promote reintegration and to test the readiness of inmates for release by maximizing an inmate’s time in the community prior to his actual parole or discharge. The program allows an inmate to demonstrate his competence in a realistic living environment while monitored under strict conditions of accountability.” Thus, where deemed appropriate by the sheriff in accordance with statutory authority, an inmate in the GPS program is allowed to participate in significant societal reintegration, subject to rigorous monitoring, rather than simply being employed in the community for several hours a day and returning to the house of correction at night. Put another way, the GPS program is simply not a “work release program” as described in
Here, when the sheriff permitted Donohue to participate in the GPS program, the sheriff did not impermissibly change the sentence imposed by the court. The statutory scheme pursuant to which the sheriff derives his authority does not mandate that the sheriff physically confine all offenders within the four walls of the house of correction for the entire length of the “committed” portions of their sentences. To the contrary, the statutory scheme confers on the sheriff the authority to permit certain eligible inmates to participate in a variety of programs outside the correctional facility. Because Donohue’s placement on the GPS program was authorized by
So ordered.
Notes
The predecessor to the GPS program, known as the “day reporting system,” was first implemented by the sheriff in 1988. For a discussion of the expansion of the day reporting system, see note 12, infra.
Policy and Procedure 467 has been revised since the October 1, 2007, order of the Superior Court. None of the changes affects this appeal.
Policy and Procedure 467 states that it is consistent with 103 Code Mass. Regs. § 952.01 (1999), a regulation promulgated by the Department of Correction that relates to “community release programs,” operated by county correctional facilities. See Policy and Procedure 467.02 (2007).
The meaning of this particular criterion is unclear from the language of Policy and Procedure 467.05.
In a letter dated December 17, 2007, the Secretary of the Executive Office of Public Safety (Secretary) informed the sheriff that, in fight of the current litigation challenging the GPS program, he had reviewed the use of electronic monitoring programs by county sheriffs’ departments throughout Massachusetts. The Secretary told the sheriff that the Middlesex County sheriff’s office is one of at least seven sheriffs’ offices that uses and relies on a home confinement program. The Secretary stated that, “[a]lthough the details of the programs vary, there are some consistent practices from county to county.” He pointed out that each program “has strict procedures for classification and participation,” with “public safety being an utmost concern,” and that the programs “require much more than electronic monitoring.” The Secretary further stated that a home confinement program, as an alternative to institutional incarceration, “is an effective tool for the successful re-entry of inmates into the community while minimizing the public safety concerns associated with overcrowding in prisons and releasing inmates who are not prepared to reintegrate into society.” In the Secretary’s view, the discontinuation of electronic monitoring programs could be devastating to overcrowding problems and to societal reentry efforts. This December 17, 2007, letter from the Secretary was not part of the record on appeal, but the Attorney General assented to its inclusion in the appendix to the sheriffs brief.
A “correctional facility” is statutorily defined as “any building, enclosure, space or structure used for the custody, control and rehabilitation of committed offenders and of such other persons as may be placed in custody therein in accordance with law.”
The mittimus directed, in pertinent part, as follows: “We therefore COMMAND YOU, The said Sheriffs and Deputies to remove the said Edward Donohue to said House of Correction, Billerica and we command you, the Master of said House of Correction Billerica to receive!] the said Edward Donohue and the said Edward Donohue to imprison and employ in an[d] within the precincts of said House of Correction Billerica for and during the time of 2½ [years] — 18 months to be served[,] balance suspended for 4 years.”
Article 30 of the Massachusetts Declaration of Rights provides: “In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
In her decision, the judge noted that the sheriff had questioned the court’s authority, in the first instance, to issue the September 20 order to show cause and the September 21 order of confinement, in light of the fact that judgment already had entered in Donohue’s criminal case and there was no actual controversy before the judge. The judge wrote that “there is no doubt that the ability to enter orders is necessary to the very existence of the court and essential to the maintenance of the court’s authority,” quoting Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep’t of Mental Retardation (No. 1),
A “[cjommunity release facility” is defined as “[a] correctional facility that provides housing and programming for participants of Work Release, PreRelease or Alcohol Treatment Programs.” 103 Code Mass. Regs. § 902.01 (1999). Cf. note 7, supra. The term “[wjork release” is defined as “[a] formal arrangement sanctioned by [G. L.j c. 127, §§ 48, 49, 49A, and 86F[J whereby an inmate is permitted to maintain approved and regular employment in the community.” 103 Code Mass. Regs. § 902.01.
The basis of the sheriff’s motion for reconsideration was his contention that the judge’s October 2, 2007, order conflicted with past orders of the Superior Court. More specifically, in March, 1989, two inmates of the house of correction filed a class action lawsuit in the Superior Court seeking to ameliorate the overcrowded conditions of their confinement which, they alleged, violated their rights under the Fifth and Eighth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights (cruel or unusual punishment). The plaintiffs also sought a declaration that various conditions at the house of correction violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. As a preliminary matter, the plaintiffs sought injunctive relief. In his memorandum and order entered April 30, 1990, a judge in the Superior Court stated that the plaintiffs did not satisfy all of the necessary requirements for preliminary relief. Nonetheless, he concluded that the plaintiffs did establish a substantial likelihood of success on the merits and a showing of irreparable harm with respect to many of their allegations. Consequently, as part of his order, the judge directed the sheriff to “use his best efforts to enlarge the use of the day reporting system.” Subsequently, a memorandum of understanding dated October 1, 1993, was entered by a different judge in the Superior Court in accordance with the April 30, 1990, determination. It reiterated that “[t]he sheriff will continue to use his best efforts to enlarge the use of the day reporting program.” The memorandum also provided that it “shall not be interpreted to restrict, supersede, or otherwise alter the constitutional, statutory or regulatory responsibilities of any of the defendants named in this action.” The judge construed this memorandum of understanding as an agreement for judgment, and he stated that, for all purposes, it would constitute the final judgment in the case. See
Donohue did not file a brief in this appeal or participate in oral argument.
The office of sheriff is part of the executive branch of State government. See Opinion of the Justices,
Based on the judge’s order that Donohue serve eighteen months of his sentence of two and one-half years, he would be eligible for parole once he served one-half of the committed portion of his sentence, or nine months. See 120 Code Mass. Regs. § 200.02(1) (2003).
Contrary to the position advocated by the dissent, we do not construe the language of
We note that “[i]n the case of a committed offender who participates in any program outside a correctional facility established under [§ 48], the time spent in such participation shall be credited toward the serving of his sentence in the same manner as though he had served such time within the facility” (emphasis added).
A Department of Correction regulation defines “[w]ark [r]elease” as “[a] formal arrangement sanctioned by [G. L.] c. 127, §§ 48, 49, 49A, and 86F whereby an inmate is permitted to maintain approved and regular employment in the community.” 103 Code Mass. Regs. § 902.01.
Another type of program set forth in regulations pertaining to county correctional facilities is a “[c]ommunity [r]elease [p]rogram[].” See 103 Code Mass. Regs. § 952.01 (1999). The term “[cjommunity [rjelease” is defined as “[r]elease into the community of an inmate in order to participate in work release, educational/vocational release, or [a] furlough program in accordance with the general laws and regulations governing such programs.” 103 Code Mass. Regs. § 902.01. The regulation pertaining to “[c]ommunity [r'Jelease [programs” states that “[t]he facility shall provide a program of release preparation which may include temporary release programs for all eligible inmates to prepare them for parole or discharge from the facility.” 103 Code Mass. Regs. § 952.01.
The judge below expressed concern that the continuation of the GPS
Dissenting Opinion
(dissenting). In concluding that the sheriff has statutory authority to conduct the GPS program, the court acknowledges that the release program at issue here must be authorized by the Legislature. Once that acknowledgment has been made, the court’s position becomes untenable because applicable statutes provide no such authorization. Contrary to the view of the court, these statutes are not merely silent on the subject; they expressly forbid the release that took place in this case.
An administrative agency “has only the powers and duties expressly conferred upon it by statute and such as are reasonably necessary to carry out its mission.” Morey v. Martha’s Vineyard Comm’n,
Here, Donohue was sentenced to two and one-half years in the Billerica house of correction, eighteen months to be served, with the balance suspended for four years, pursuant to
There is language, however, that expressly forbids such a program. In approving the GPS program, the court simply ignores language in
“The commissioner or such administrator shall makeand promulgate rules and regulations regarding programs established under [§ 48] outside correctional facilities. Such rules and regulations shall include provisions for reasonable periods of confinement to particular correctional facilities before a committed offender may be permitted to participate in such programs and provisions for feeding, housing and supervising participants in such programs in such manner as will be calculated to maintain morale and prevent the introduction of contraband to the facility.”
The key language here is that “before” a committed offender is allowed to participate in any program outside of a correctional facility, the commissioner must arrange for “reasonable periods of confinement to particular correctional facilities.” That is, one precondition for participation in any outside program is that housing must be prepared for the participating inmates in “particular correctional facilities” during their involvement in that program. It follows that housing outside of “correctional facilities” is not authorized.
That the Legislature contemplated the continued confinement of inmates in facilities despite their participation in outside programs is supported by two more provisions found in §§ 48 and 49. First, § 49 states:
“If any inmate who participates in any program outside a correctional facility . . . leaves his place of employment, or having been ordered by the commissioner or such administrator to return to the correctional facility, neglects or refuses to do so, said inmate shall be held to have escaped [from prison] . . . .” G. L. c. 127, § 49 .
This provision addresses only two sites, the correctional facility and the place of employment, from which an inmate in an outside program may escape. No mention is made of another place, such as an inmate’s house, where the inmate may be located for a sufficiently lengthy period of time and from which he might attempt to escape. Read in the context of the first quoted provision, the escape clause further supports the interpretation that the Legislature did not intend inmates in outside programs to be released into their own homes for the duration of their sentences. Last, §§48 and 49 apply to both county jails, as is the case here, and State prisons. It is highly unlikely that the Legislature would have intended the release of significant numbers of convicted criminals, including those serving time in State prison, into the community without so much as a mention of it in a detailed and comprehensive statutory framework.
Instead, the statutes contemplate that an inmate taking part in an education, training, or employment program outside a correctional facility will continue to be housed in a facility while participating in the program. Donohue’s personal residence is not a “facility.”
It is clear that the practice of releasing inmates to home confinement has been adopted at least in part as a device to alleviate overcrowding in correctional facilities.
In our system of government, policy decisions of this nature are assigned to the Legislature. That body may act on its own or in response to initiatives of the executive branch. When the Legislature fails to act, it may be tempting for judges or executive officials to redress the vacuum and make the policy decisions themselves. This only creates further evasion of responsibility and public confusion regarding the roles of the different branches of the government.
Today, the court acknowledges that the release in question cannot lawfully take place without statutory authorization. Because the court, as well as the relevant executive branch officials, apparently believe that such release is in the public interest, they locate in the applicable statutes authorization that simply is not present. Indeed, for the reasons I have stated, the statutes fairly read forbid inmate release. It is not for us as judges to approve or disapprove of policy decisions; our function, within constitutional limits, is to apply the statutes as written. Accordingly, I respectfully dissent.
Committed offenders may also be released into the community pursuant to
“Community release” is defined in general by 103 Code Mass. Regs. § 902.01 (1999) as the “[rjelease into the community of an inmate in order to participate in work release, educational/vocational release, or furlough program in accordance with the general laws and regulations governing such programs.” Any community release program would thus be governed by
The use of the word “before” is intended to mean that this is a condition that must be fulfilled before an inmate may participate in a program, i.e., the commissioner or administrator must arrange for the inmate’s continued incarceration before the inmate can be sent to a program. In contrast, the court’s argument that “before” does not impose a condition, but only means that the inmate must be incarcerated for some time before he is eligible for a program, see ante at 266 n.16, makes no sense. That interpretation would only repeat what the statute provides at the beginning of § 49, i.e., that the commissioner or administrator may permit an inmate “who has served such a portion of his sentence . . . that he would be eligible for parole within eighteen months” to participate in outside programs.
A “[facility” is defined as a “place, a building (or part thereof), a set of buildings (to include the staff and services), that is used for the lawful custody or treatment of individuals. A facility may be owned or operated by public or private agencies.” 103 Code Mass. Regs. § 902.01.
See ante at 259 n.5, where the court states the view of the Secretary of Public Safety that “the discontinuation of electronic monitoring programs could be devastating to overcrowding problems and to societal reentry efforts.”