In re Chapman

482 Mass. 293

122 N.E.3d 507

Wayne CHAPMAN, petitioner.

SJC-12632

Supreme Judicial Court of Massachusetts, Essex..

Argued January 8, 2019

Decided May 16, 2019

Mary P. Murray for the Commonwealth.

Eric Tennen, Boston (Joseph N. Schneiderman also present) for the petitioner.

Benjamin H. Keehn, Boston, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

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

GANTS, C.J.

The issue presented in this appeal is whether, under the statutory scheme set forth in G. L. c. 123A, an individual who seeks to be discharged from civil commitment as a sexually dangerous person must remain civilly committed awaiting trial, sometimes for years, after both qualified examiners have concluded that he or she is no longer sexually dangerous. In Johnstone, petitioner, 453 Mass. 544, 553, 903 N.E.2d 1074 (2009), we held that G. L. c. 123A implicitly provides that an individual may not be civilly committed as a sexually dangerous person, or have his or her civil commitment continued after petitioning for release from custody, unless at least one of two qualified examiners offers the opinion that the individual is sexually dangerous. We held that, where neither of the two qualified examiners concludes that the individual is a sexually dangerous person, the Commonwealth "cannot rely upon other sources of potential expert evidence ... to meet its burden of proof," and the petitioner is entitled to release before trial. Id. at 545, 553, 903 N.E.2d 1074. In this case, the Commonwealth asks us to revisit our holding in Johnstone and to hold that the Commonwealth may proceed to trial where it has expert opinion, other than the expert opinion of a designated qualified examiner, that the individual is or remains sexually dangerous.

The Commonwealth has failed to persuade us that Johnstone was incorrectly decided; nor has the Commonwealth provided any evidence that the holding in Johnstone has compromised public safety. We therefore decline to reject a statutory interpretation that has been applied in sexual dangerousness cases for approximately ten years. Furthermore, we conclude that our interpretation of G. L. c. 123A in Johnstone obviates any need to address the due process concerns that might arise if a civil commitment could be prolonged despite the conclusion of both qualified examiners that an individual is not sexually dangerous, and honors the presumption that the Legislature intends its statutes to pass constitutional muster. For these reasons, we affirm the Superior Court judge's order allowing Wayne Chapman's petition for release from civil commitment because neither of two qualified examiners found him presently to be sexually dangerous.¹

Background. In September 1977, Chapman was convicted of two counts of rape of a child and sentenced to a prison term of not less than fifteen and not more than thirty years. See Commonwealth v. Chapman, 444 Mass. 15, 16, 825 N.E.2d 508 (2005). In November 1977, Chapman was found to be a sexually dangerous person under the predecessor statute to the current G. L. c. 123A. Id. As a result, in March 1978, he was transferred from prison to the Massachusetts Treatment Center (treatment center), where he was committed for an indefinite term of from one day to life.^{2 ,3} Id. at 16 & n.1, 825 N.E.2d 508.

In 1991, Chapman petitioned for release from civil commitment. Under G. L. c. 123A as it existed at the time of Chapman's petition, "if, at any annual [discharge] hearing to which [a sexually dangerous person was] entitled, the Commonwealth fail[ed] in its burden of proving continued sexual dangerousness, and part of the original sentence then remain[ed], the person [was] returned to ordinary confinement to serve the remainder of his [or her] term." Commonwealth v. Rodriguez, 376 Mass. 632, 640, 382 N.E.2d 725 (1978). See Chapman, 444 Mass. at 18 n.5, 825 N.E.2d 508. Following a hearing, the judge concluded that the Commonwealth had failed to prove beyond a reasonable doubt that Chapman continued to be sexually dangerous and ordered him to be discharged from the treatment center and transferred back to prison to serve the remaining years on his sentence. Chapman, supra at 18, 825 N.E.2d 508.

In September 2004, when Chapman had approximately one month remaining until his anticipated release from prison, the Commonwealth filed a petition to commit Chapman as a sexually dangerous person beyond the term of his criminal sentence, this time under the current version of G. L. c. 123A. Chapman, 444 Mass. at 18, 825 N.E.2d 508. Chapman moved to dismiss the commitment petition on collateral estoppel grounds, arguing that the 1991 adjudication that he was not sexually dangerous precluded the Commonwealth from again petitioning for his civil commitment. Id. at 20, 825 N.E.2d 508. A Superior Court judge allowed this motion. Id. The Commonwealth appealed, and we vacated the order of dismissal, concluding that the Commonwealth's 2004 petition did not improperly "seek to relitigate an issue previously adjudicated" because it asserted that Chapman was presently sexually dangerous, and not that he had been sexually dangerous in 1991. Id. at 20-24, 825 N.E.2d 508. In 2007, after trial, Chapman was found to be sexually dangerous and committed to the treatment center for an indeterminate period of from one day to life. The Appeals Court affirmed this judgment in an unpublished memorandum and order pursuant to its rule 1:28. See Commonwealth v. Chapman, 75 Mass. App. Ct. 1113, 916 N.E.2d 774 (2009), cert. denied, 560 U.S. 946, 130 S.Ct. 3370, 176 L.Ed.2d 1257 (2010).

Chapman has since filed four petitions for discharge from civil commitment under G. L. c. 123A, § 9 -- one in 2007, one in 2009, one in 2012, and one in 2016. The 2012 and 2016 petitions, which have been consolidated, are at issue here.⁴ Pursuant to G. L. c. 123A, § 9, the petitioner was evaluated by two qualified examiners; both concluded in written reports submitted to the court that Chapman was no longer sexually dangerous. Dr. Gregg A. Belle, one of the qualified examiners, stated that Chapman was no longer a sexually dangerous person based on "the combination of [his] age and his deteriorating physical condition resulting in him no longer being able to manage independently." Dr. Katrin Rouse Weir, the other qualified examiner, stated that Chapman "would not be reasonably expected to sexually assault children if released into the community at this time," because "his age, his present medical status and the degree of supervision required and available at an appropriate placement in the community would sufficiently mitigate his risk of sexual re-offense."

Chapman was also evaluated by a five-member community access board (CAB).⁵ Three CAB psychologists concluded that Chapman remained sexually dangerous; two CAB psychologists concluded that he was no longer sexually dangerous.

Because both qualified examiners had offered the opinion that Chapman was no longer sexually dangerous, and because the Commonwealth cannot prevail at trial without an opinion from one of the qualified examiners that Chapman is sexually dangerous, Chapman moved for discharge. See Johnstone, 453 Mass. at 545, 903 N.E.2d 1074. The Commonwealth opposed the motion and moved for trial or, alternatively, to stay Chapman's release. The Superior Court judge, relying on Johnstone, allowed the petitioner's motion and denied the Commonwealth's motion, but stayed Chapman's discharge for twenty days to allow the Commonwealth to seek a further stay from an appellate court.

The Commonwealth filed a notice of appeal and a motion to stay the petitioner's discharge until the resolution of that appeal. A single justice of the Appeals Court continued the stay pending further order of the court. We granted direct appellate review, and a single justice of the county court continued the stay of Chapman's discharge pending resolution of this case.

Discussion. 1. Due process constraints on deprivations of liberty. Liberty -- "[t]he right of an individual to be free from physical restraint" -- is a fundamental right. Matter of E.C., 479 Mass. 113, 119, 92 N.E.3d 724 (2018), quoting Commonwealth v. Knapp, 441 Mass. 157, 164, 804 N.E.2d 885 (2004). "Laws in derogation of liberty," therefore, "must be narrowly tailored to further a compelling and legitimate government interest, and must be strictly construed, in order to comply with the requirements of substantive due process" (citation and alteration omitted). Matter of E.C., supra.

In the civil context, deprivation of liberty is justified not by the crimes that an individual committed in the past, but by the risk that the individual will inflict serious physical harm on him- or herself or others in the future. See, e.g., G. L. c. 123, § 8 (a ) (civil commitment of mentally ill person impermissible unless release "would create a likelihood of serious harm"); G. L. c. 123A, § 1 (to qualify as sexually dangerous person subject to civil commitment, individual must be likely to sexually reoffend). Because a civil commitment is justified only to prevent future harm, a person constitutionally may be deprived of his or her fundamental right to liberty only in " ‘certain narrow circumstances’ where the individual's dangerousness is linked to a mental illness or abnormality that causes the individual to have ‘serious difficulty’ in controlling his or her behavior." Kenniston v. Department of Youth Servs., 453 Mass. 179, 184, 900 N.E.2d 852 (2009), quoting Kansas v. Crane, 534 U.S. 407, 409, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). See Crane, supra at 412-413, 122 S.Ct. 867, quoting Kansas v. Hendricks, 521 U.S. 346, 373, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (Kennedy, J., concurring) ("proof of serious difficulty in controlling behavior" required for civil commitment, "lest [it] become a ‘mechanism for retribution or general deterrence’ -- functions properly...