Opinion
No. 12–P–739.
2013-02-7
Tony B. GASKINS & others v. COMMISSIONER OF CORRECTION & another.
By the Court (KANTROWITZ, MEADE & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In Devlin v. Commissioner of Correction, 364 Mass. 435, 443 (1973), the court held that “persons serving sentences of life imprisonment imposed after conviction of first degree murder under G .L. c. 265, § 1 [colloquially referred to as first degree lifers], are eligible for temporary release under clause (f) of G.L. c. 127, § 90A, as appearing in St.1972, c. 777, § 18,
in the discretion of the appropriate correctional officials.” In 1988, however, the Legislature amended § 90A by adding at the end of the first sentence (see note 3, supra ): “and, provided further, that no committed offender who has been convicted of murder in the first degree shall be eligible for temporary release under the provisions of this section.” St.1988, c. 24.
The version of § 90A, as appearing in St.1972, c. 777, § 18, and as set forth in Devlin v. Commissioner of Correction, 364 Mass. at 436 n. 3, provides, in pertinent part:
“The commissioner may extend the limits of the place of confinement of a committed offender at any state correctional facility by authorizing such committed offender under prescribed conditions to be away from such correctional facility but within the commonwealth for a specified period of time, not to exceed fourteen days during any twelve month period nor more than seven days at any one time; provided that no committed offender who is serving a life sentence or a sentence in a state correctional facility for violation of [various specified sections of G.L. c. 265 or G.L. c. 272], or for an attempt to commit any crime referred to in said sections shall be eligible for temporary release under the provisions of this section except on the recommendation of the superintendent on behalf of a particular committed offender and upon the approval of the commissioner.”
Pro se plaintiffs Tony B. Gaskins, Derek Wright, and Christopher Cutts, all first degree lifers, brought a complaint in the Superior Court against the defendants, seeking declaratory and injunctive relief respecting the denial of their request for authorization for furloughs under clause ( f ) of § 90A.
A Superior Court judge allowed the defendants' motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Gaskins and Wright have appealed.
Clause ( f ) of the third sentence of G.L. c. 127, § 90A, provides, “Such authorization may be granted for any of the following purposes: ... (f) for any other reason consistent with the reintegration of a committed offender into the community.”
Cutts was not party to the notice of appeal filed by Gaskins and Wright, and did not file one on his own.
Although the plaintiffs argue that there has been no change since Devlin, they are simply wrong. Since the 1988 amendment, first degree lifers are not eligible for furloughs under § 90A.
For this reason, as well as for substantially those in the brief of the Commonwealth, the judgment is affirmed.
So ordered.