RICHARD CROWELL vs.
MASSACHUSETTS PAROLE BOARD.
477 Mass. 106
January 6, 2017 - May 15, 2017
Court Below: Superior Court, Suffolk County
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Records And Briefs:


(1) SJC-12203 01 Appellant Crowell Corrected Brief



(2) SJC-12203 02 Appellee Massachusetts Parole Board Brief



(3) SJC-12203 04 Appellant Crowell Reply Brief



(4) SJC-12203 07 Amicus ACLU Of Massachusetts Brief

Oral Arguments
Parole. Practice, Criminal, Parole. Americans with Disabilities Act. Practice, Civil, Action in
nature of certiorari, Motion to dismiss.
This court reversed the dismissal of a complaint in the nature of certiorari alleging that that the
parole board, in denying the plaintiff's petition for parole, had violated the Americans with
Disabilities Act and cognate State constitutional and statutory provisions, and remanded for
further proceedings, where the plaintiff had stated a claim on which relief could be granted and,
given the plaintiff's allegations, the only appropriate way for the judge to evaluate the claim was
through a review of the administrative record (which the parole board had not provided) upon a
motion for judgment on the pleadings. [108-110]
Observations regarding the consideration that the parole board should give to the application of
the Americans with Disabilities Act and cognate State constitutional and statutory provisions
when presented with a petition for parole by a petitioner with a mental disability. [110-114]

 This court concluded that the commutation of a prisoner's sentence from life with the possibility
of parole to from thirty-six years to life did not reduce that prisoner's sentence to an
indeterminate one that would entitle him to a parole hearing on an annual basis. [114-116]

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 Court, alleging that, in denying his petition for parole, the Parole Board
(board) had violated the Americans with Disabilities Act, 42
Page 107

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. [Note 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. [Note 2] He was sentenced to
life imprisonment with the possibility of parole pursuant to G. L. c. 265, § 2. [Note 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,
Page 108

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
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 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.
Page 109

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
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. [Note 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 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
Page 110

must show to obtain certiorari review). [Note 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 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. [Note
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, [Note 7] as well as art. 114 [Note 8] and G. L. c. 93, § 103. [Note
9] Because we vacate the
Page 111

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 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). [Note 10] Therefore, the only open
question is whether the plaintiff was excluded from the program, or discriminated against
Page 112

in the form of denial of parole, by reason of his disability. See Thompson, supra at 896, 898 n.4
(describing this inquiry as 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. [Note 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 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); [Note 12] 28 C.F.R. § 35.130(b)(8)
(2016). [Note 13] In accommodating prisoners with mental disabilities, the board should also
consider whether
Page 113

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 (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. [Note 14] Here, the board indicated its 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
Page 114

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, [Note 15] and whether other
factors would nevertheless disqualify him from parole. [Note 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. [Note 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 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).
Page 115

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. [Note 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 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,"
Page 116

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.

FOOTNOTES
[Note 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.
[Note 2] The plaintiff was the getaway vehicle's driver.
[Note 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.
[Note 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 courtordered 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. . . ."
[Note 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).
[Note 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.
[Note 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).
[Note 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."
[Note 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]."

 [Note 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.
[Note 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."
[Note 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."
[Note 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."
[Note 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 . . .").

 [Note 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.
[Note 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).
[Note 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.
[Note 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.