Number 8 October 6, 1971

Number 8 October 6, 1971 Honorable John J. Fitzpatrick Commissioner of Correction Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner Fitzpatrick: You have requested my opinion whether prisoners condemned to death must be kept separate and apart from other sentenced prisoners or whether they may be integrated into the general population of a correc- tional institution. You state that it has been the view of the Department of Correction that G. L. c. 279, § 44 requires the separation of con- demned prisoners from other prisoners, but express doubt whether this interpretation is correct. It is my opinion that under § 44, the superintendent of the state prison has discretionary authority to remove a condemned prisoner from the special cell in which he is held and return him to a cell among the gen- eral prison population if the execution of that prisoner's sentence has been respited by the governor or otherwise delayed by process of law. General Laws, c. 279, § 44 1 provides that a sheriff who has custody of a convict sentenced to death shall within seven days of the imposition of the sentence (in the case of a male convict) 2 deliver the convict to the superintendent of the state prison. At the time of delivery to the state prison, in the case of a male convict, the execution of sentence has been stayed by operation of G. L. c. 279, § 4. 3 The superintendent is directed 1 Section 44. as amended through St. 1957. c. 777, § 41, provides: "The sheriff of the county in a jail whereof a convict sentenced to the punishment of death is confined, or a deputy designated by the sheriff, within seven days after the imposing of such sentence in the case of a male convict or within ten days after receipt by the sheriff of the warrant for the execution of such a sen- tence in the case of a female convict, shall, at a time chosen by the sheriff, convey such male or female convict, as secretly as may be, to the state prison and deliver him or her, with the warrant in either case, to the superintendent thereof or to the officer performing his duties. Within ten days after service on said superintendent or officer performing his duties of a certificate of the clerk of the court of the revocation under section four of the stay of execution of such a sentence in the case of a male convict, and upon her delivery to the state prison as aforesaid in the case of a female convict, such convict shall forthwith be placed in a cell provided for the purpose and shall thereafter be kept therein until the sentence of death is executed upon him or her. and no person shall be allowed access to him or her without an order of the court, except the officers and employees of the prison, his or her counsel, and such physicians, priest or minister of religion as the superintendent may approve, and the members of his or her family who are iden- tified to the satisfaction of the superintendent. If the execution of the sentence of death is respited by the governor, or is otherwise delayed by process of law, the convict may. in the discretion of the superinten- dent, be confined in a cell provided for the purpose. The superior court may make any order relative to the custody of a person confined in the state prison under this section in case he or she is granted a new trial." - In the case of a female convict, the sheriff is to retain custody of the prisoner until he has received the warrant for execution of sentence. This would not take place until after the revocation of the automatic stay of execution under G. I., c. 279. § 4. Sec note 3 mini. Section 4 provides, in pertinent part: It sentence is imposed upon conviction of a crime punishable by death, the justice imposing the scn- tence shall at the same time stay the execution of the sentence, such stay to be effective until revoked by the superior court, which is hereby granted full powers of revocation in the premises. I he clerk of such court shall, forthwith upon the revocation by the court of am such stay of execution of sentence upon a male convict, certify that said stay has been revoked and cause said certificate to be served upon the superintendent of the state prison, or the officei performing his duties, by any officer qualified to serve Criminal process; and the officei serving the same shall forthwith make due return of service to the clerk." P.D. 12 61 by § 44 to place the convict "in a cell provided for the purpose," 4 within ten days after service on the superintendent of a certificate stating that the stay of execution mandated by c. 279, § 4 has been revoked. Under c. 279, § 45, the superintendent is to execute the sentence of death not earlier than twenty days nor later than thirty days after receipt of the certificate of revocation. Nothing in § 44 requires the superintendent to place the condemned convict in a special cell until the superintendent has received the certificate or revocation. In view of the requirements of § 45 as to the time for execution of sentence, it is clearly anticipated that the condemned prisoner will be isolated in a special cell only for a mat- ter of weeks before the death sentence is executed. 5 Prior to 1955, there was no provision in § 44 which authorized the superintendent to return a condemned convict to a regular cell once the stay of execution had been revoked. Section 44, as amended by St. 1935, c. 437, § 5, provided that "[i]f the execution of the sentence of death is respited by the governor, or is otherwise delayed by process of law, the convict may, in the discretion of the warden [now superintendent], be confined in a cell used for solitary confinement." The section as then written gave the warden authority to take unusual precautions with re- gard to a condemned prisoner whose appeals had been exhausted and whose stay of execution had been revoked, but did not give him author- ity to return that prisoner to the general prison population. It is my opinion that the 1955 amendments to § 44 granted the superin- tendent authority to return to the general prison population a prisoner the execution of whose sentence has been respited by the governor. By St. 1955, c. 770, § 108, the above-quoted provision of § 44 was amended to read: "If the execution of the sentence of death is respited by the governor, or is otherwise delayed by process of law, the con- vict may, in the discretion of the principal officer [superintendent] be confined in a cell provided for the pur- pose." (Emphasis supplied.) Although the language is not entirely clear, it appears that the sub- stitution of the phrase "provided for the purpose" for "used for solitary confinement" was intended to enlarge the discretionary authority of the superintendent so as to allow him to decide whether in the cir- cumstances it is more appropriate to keep a particular convict in his spe- 4 See St. 1935, c. 50, § 1, which directed the warden of the state prison to "designate sections or enclosures in the state prison which shall be used as places for the safe keeping of persons convicted of murder in the first degree," which in 1935 was automatically punishable by death. Such an enclosure is commonly termed "death row." Access to a convict in a cell provided for the purpose is limited by c. 279, § 44, to his counsel, physician and family. 5 Prior to the 1935 amendment, G. L. (Ter. Ed.) c. 279, § 43 directed the court which pronounced the sentence of death simultaneously to "appoint a week within which the sentence shall be executed." Under § 44 as it then read, the sheriff was to retain custody of the prisoner until "within ten days of the first day of the week ready for the execution of the sentence." He was then to deliver the prisoner to the state prison, where he was immediately to be placed in "a cell provided for the purpose." 62 P.D. 12 cial isolated cell or to return him to the general prison population. Be- fore the 1955 amendments, § 44 gave the superintendent only the choice either to leave a convict whose execution had been respited by the gov- ernor in "cell provided for the purpose" or to place him in "a cell used for solitary confinement." Under § 44 as it now reads, the superinten- dent has additional discretion to decide whether the convict need be kept in the "cell provided for the purpose." The legislative history of the 1955 amendments supports this interpre- tation. The changes in § 44 were part of a general reform of the laws pertaining to penal institutions in the Commonwealth, St. 1955, c. 770, which reorganized the administration of the penal system and enacted a number of liberalizing measures pertaining to the establishment of train- ing schools, the extension of periods of time allowed outside the prison to female prisoners for domestic work, the reduction of sentences for good behavior, inclusion of time awaiting trial as part of a sentence, and so forth. The statute was based on a lengthy and exhaustive study of the penal system by a commission appointed by the governor. See Report and Recommendations of the Governor's Committee to Study the Massachusetts Correctional System, Senate Doc. 750 of 1955. Included among those recommendations was that G. L. c. 279, § 44, be amended to provide that if a condemned convict's execution is respited by the governor, the convict "may, in the discretion of the commissioner, be confined in another cell." Id. § 300. While the language of the provision which was subsequently enacted differs from that recommended in the report of the commission, it was in my opinion intended to accomplish the same result, i.e., to give the superintendent discretion to remove a condemned prisoner from his special cell while execution of his sentence is under respite from the governor or otherwise delayed by process of law. Very truly yours. ROBERT H. QUINN Attorney General