Number 14 January 5, 1972

Number 14 January 5, 1972 Honorable Joseph J. Higgins Acting Commissioner of Correction Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner Higgins: You have requested my opinion whether prisoners confined to the various correctional institutions of the Commonwealth may be transfer- red to the "penal facility" established at the Massachusetts Correctional Institution, Bridgewater, for the purposes of treatment as drug depen- dent persons. For the reasons hereinafter stated, I answer your question in the negative. On June 8, 1971, I rendered an opinion to the Commissioner of Men- tal Health with respect to commitments to MCI, Bridgewater under the provisions of Chapter 123 of the General Laws. A copy of that opinion is enclosed. I refer you to that opinion for a general discussion of the P.D. 12 75 statutory provisions involved, and I incorporate herein so much of that opinion as is pertinent to the resolution of your question. As I noted in that opinion, the recent amendment to G. L. c. 125, § 19 made by St. 1970, c. 888, § 6 restricts commitments to Bridgewater to males con- victed of drunkenness and persons committed pursuant to the provisions of Chapter 123. You have advised me that you contemplate transferring prisoners who have not taken advantage of the commitment and treatment provisions of Chapter 123. That being the case, the remaining question for resolu- tion, in view of my prior opinion, is whether the Commissioner's powers relating to transfer of prisoners found in G. L. c. 127, § 97 supersede the restrictions found in G. L. c. 125, § 19 and the procedures for commit- ment set out in Chapter 123. It is my opinion that they do not. General Laws, Chapter 127, section 97 provides: "The commissioner may transfer any sentenced prisoner from one correctional institution of the commonwealth to another, and with the approval of the sheriff of the county from any such institution except a prisoner serving a life sen- tence to any jail or house of correction, or a sentenced pris- oner from any jail or house of correction to any such institu- tion except the state prison, or from any jail or house of cor- rection to any other jail or house of correction. Prisoners so removed shall be subject to the terms of their original sen- tences and to the provisions of law governing parole from the correctional institutions of the commonwealth." Prior to 1958, the section restricted the transfer of prisoners sentenced to the state prison to the correctional institutions at Walpole, Norfolk and Concord. By St. 1958, c. 634, the section was amended to provide, as the title of the chapter stated, that such prisoners could also be trans- ferred to MCI, Bridgewater. The first sentence of section 97 was further revised, to read as it presently does, by St. 1968, c. 627. In 1967, the then Commissioner of Correction requested an opinion of my predecessor whether he might transfer prisoners from one correc- tional institution to the "state hospital" section of MCI, Bridgewater. The answer was in the negative because of the conclusion "that the Legislature intended the Superior Court warrant procedure to control the transfer of prisoners to the Hospital . . ." 1968 Op. Atty. Gen'l 47, 48. In the instant situation, similar considerations govern. The Legislature has provided the machinery for commitments to the drug treatment facil- ity at MCI, Bridgewater in G. L. c. 123, § 48. Treatment is on a consen- sual basis, and, in the amendment made to G. L. c. 125, § 19, the Legis- lature has also provided that no prisoner may be committed to MCI, Bridgewater except males convicted of drunkenness and persons com- mitted pursuant to the provisions of Chapter 123. In my opinion, the Legislature has evidenced an intent that treatment at Bridgewater will be 76 P.D. 12 confined to those persons who voluntarily request commitment and treatment under the provisions of section 48. That intent cannot be cir- cumvented by utilizing the transfer powers found in G. L. c. 127, § 97. In conclusion, then, it is my opinion that prisoners may not be trans- ferred to the drug treatment facility at MCI, Bridgewater from other correctional institutions unless they have invoked the provisions of G. L. c. 123, § 48. Very truly yours, ROBERT H. QUINN Attorney General