finding individual is not sexually dangerous at particular time “would not bar subsequent statutorily and constitutionally valid proceedings under this chapter to determine an individual’s status at the time of the subsequent proceedings”
How later courts described this case
- finding individual is not sexually dangerous at particular time “would not bar subsequent statutorily and constitutionally valid proceedings under this chapter to determine an individual’s status at the time of the subsequent proceedings”
- holding that the placing of conditions on the release of a person found to be no longer sexually dangerous is unconstitutional
- holding that person may be recommitted only if it is established that he continues to be sexually dangerous
- “The not sexually dangerous finding is an unconditional adjudication of status at the time of the hearing, and as such may not be reevaluated in light of subsequent events”
Written by the judges who cited it.
The opinion
*252 Braucher, J.
(dissenting). I agree that the order appealed from must be reversed, but I do not agree that Travis must be discharged from custody. In my view, if it is now shown beyond a reasonable doubt that he is presently a sexually dangerous person, the conditions of his release “may be revised, altered, amended, revoked by the court” under G. L. c. 123A, § 9.1 therefore dissent.
The statute is constitutionally defective in providing for the recommitment of a person who is not sexually dangerous, merely because he has violated a condition of his release. The difficulty could have been avoided if the release had been ordered by the parole board, without the fatal finding that he “is no longer a sexually dangerous person.” Or the Legislature could have provided for a conditional release by the court without the fatal finding. But our question is what effect is to be given to the fatal finding in the case before us.
The Superior Court judge saw the problem and sought to solve it by vacating the fatal finding. I agree with the court that it was not open to the judge, long after the finding was made, thus to vacate it retroactively. But I see no constitutional obstacle to a new finding, based on all the information now available, that Travis is now a sexually dangerous person. Recommitment could only be ordered on proof of the fact “beyond a reasonable doubt.” Andrews, petitioner, 368 Mass. 468, 489 (1975).
If such a finding is constitutionally permissible, we should read the statute to permit it. The words “conditionally released” clearly indicate a legislative intention that a breach of condition should have some effect. Section 9 goes on to provide that the “person released conditionally shall be subject to the jurisdiction of said court until discharged,” and I think that language permits a new finding that the person released is now sexually dangerous. Such a reading would serve the legislative purpose better than a reading which results in the final discharge of a person who is sexually dangerous beyond a reasonable doubt. Moreover, such a reading would avoid the serious danger, which the Legislature sought to avoid, that application for *253 release may be denied unnecessarily if there is no power to impose effective conditions on the release.
Travis was originally committed to the treatment center in 1960. He began to respond to treatment in 1971, and was conditionally released in July, 1973. He obtained employment, and has since married. In June, 1974, he was arrested, and he remained in custody until the recommitment order was entered in February, 1975. That order was entered before the Andrews decision, and did not rest on proof beyond a reasonable doubt. An amended order entered in April, 1975, authorized work release, and we are informed that he later was permitted to work full time and to spend all but two nights a week at home with his wife. It appears that he has been treated fairly and humanely, although his constitutional rights have been violated in highly technical respects. Under today’s decision, if it had been known in advance, it seems likely that he might still be languishing in the treatment center, without progress, work release, or wife. In my view the Legislature did not intend to provide “protection” of constitutional rights in such a manner.