(1)
Applicability - Only Treatment Center residents who
are civilly committed to the Treatment Center who have also been sentenced for
a criminal offense and whose sentences have not expired, may be referred to the
transfer board for consideration of possible transfer.
(2)
Referral - The
Superintendent, the Clinical Director of Treatment, the Community Access Board,
or the Behavior Review Committee may refer the resident to the transfer board
to make recommendations regarding the transfer of a resident from the Treatment
Center to another correctional institution. All referrals to the transfer board
shall be in writing on a form approved by the Superintendent. The written
referral shall include a statement explaining the basis for the referral. A
copy of the written referral shall be provided to the resident within 48 hours
from the date that the referral is signed by the referring party. A resident
may be referred to the transfer board upon a reasonable belief that he meets
the transfer criteria as set forth in
103 CMR
460.07.
(3)
Initial Transfer Board
Hearing - Upon referral of a resident to the transfer board, the
transfer board shall convene to make a recommendation concerning a Treatment
Center resident's transfer from the Treatment Center to another correctional
institution. The following standards shall be adhered to regarding the initial
transfer board hearing:
(a)
Board
Composition - The transfer board shall be comprised of the
director of classification or a designee, the clinical director of treatment or
a designee, and the director of security or a designee. One board member shall
be designated by the Superintendent to act as Chairperson, and shall be
responsible for the overall quality of the review process and complying with
M.G.L. c. 123A, § 2A. All transfer board decisions require a simple
majority vote.
(b)
Notice of Hearing - The Treatment Center resident
shall be provided with 30 days advance written notice prior to his transfer
board. Such notice may be waived by the resident in writing. The written notice
shall also inform the resident of the purpose of the hearing, the reasons for
the hearing, the procedures to be followed at the hearing, and a listing of the
date, time, and place of the hearing. Within ten days of the hearing date, the
resident shall be provided with the names of any witnesses to appear before the
transfer board and copies of documents to be considered by the transfer board
or a list of such documents if the documents are otherwise available to the
resident (e.g. the resident's Treatment Center record). Within
one day of the hearing date, the resident shall be provided a list of the board
members who will preside over the hearing.
(c)
Representation -
The resident may be represented by an attorney or law student at the hearing.
It is the resident's responsibility to secure such representation and the
Department shall afford him the opportunity to do so. The Department shall
reschedule the hearing once at the request of the attorney or law student. The
Department may, but is under no obligation to, reschedule a hearing a second
time to accommodate the legal representative's schedule.
(d)
Request for Witnesses and
Evidence - At least ten days before the hearing date, the resident
shall make a written request to the Chairperson for any witnesses or any
evidence which the resident wishes to present on his own behalf. The request
shall include a brief summary of the expected testimony of any proposed
witness. The Chairperson may rule on the resident's request either prior to the
hearing or at the hearing. The Chairperson shall allow the resident to call
such witnesses or to present such witnesses when permitting him to do so will
not be unduly hazardous to personal or institutional safety. The factors the
Chairperson may consider when ruling on a resident's request to call witnesses,
question witnesses or present other documentary or physical evidence shall
include, but not be limited to, the following:
1. Relevance;
2. Whether the evidence is cumulative or
repetitive;
3. Whether the presence
of the witness is likely to create an imminent threat of physical
harm;
4. Unavailability of a staff
person for a prolonged period of time due to illness, vacation or other
authorized absence, or for other good cause;
5. Failure of the resident to provide a brief
summary of the expected testimony of a proposed witness.
(e)
Case
Presentation - The party referring the resident to the transfer
board may make an oral and/or written presentation to the transfer board
relevant to the applicable criteria for transfer set forth in
103 CMR
460.07. The referring party may designate
another Treatment Center staff member to make the written and/or oral
presentations. If the BRC or the CAB is the referring party, the Chairperson of
the referring party may designate a member of the referring body to make the
oral and/or written presentations.
(f)
Cross-examination - Subject to the criteria set forth
in 103 CMR 460.08(3)(d), the resident or his representative shall be afforded
the opportunity to cross-examine any witnesses appearing before the transfer
board.
(g)
Resident
Presentation - Following the referring party's presentation, the
Treatment Center resident scheduled for review may present any information
relevant to the question of the resident's transfer. Transfer board members may
direct questions to the resident. A legal representative may be allowed to make
a presentation at the hearing to the transfer board members for their
consideration. In the event the resident is unwilling to attend the transfer
board hearing, the Chairperson of the board may proceed with the
hearing.
(h)
Transfer
Board Decision- The board shall base its decision on the
preponderance of evidence presented during the hearing. The board's decision
shall be determined by a majority vote no later than 48 hours following the
case and resident presentations. After the board votes, the chairperson of the
board or a designee shall orally notify the resident of the board's decision.
The board may take the following actions.
1.
The board may determine that the resident should not be transferred from the
Treatment Center. In such case, the determination of the board shall be final.
The board shall issue a written decision. Nothing, however, shall preclude a
subsequent referral of the resident to the transfer board, based upon the
criteria set forth in
103 CMR
460.07.
2. The board may delay its recommendation
concerning the resident's transfer to another correctional facility. If the
board delays its recommendation, the members of the board considering the
resident's case shall set a date to reconvene. The date may not be longer than
six months from the date of the initial transfer board hearing. The resident
shall be notified orally of this date following the board's vote. At that date,
the same board members shall reconvene to make a recommendation regarding the
resident's transfer. The board may not delay its recommendation a second time.
The reconvened hearing shall proceed in accordance with 103 CMR 460.08(3)(c)
and (d) and (f) through (k).
3. The
board may recommend the resident's transfer to another correctional facility if
it finds that the criteria set forth in
103 CMR
460.07 have been met. The board's
recommendation, and reasons for a minority vote shall be recorded in the
Chairperson's written summary report.
(i)
The Transfer Board
Summary - If at the end of the transfer board hearing, the board
recommends the resident's transfer to another correctional institution, a
written summary of the board's recommendation shall be prepared by the
Chairperson or another board member designated by the Chairperson. All
summaries of board recommendations must be signed by the board Chairperson. A
copy of the summary presented to the resident shall serve as written notice of
the board's decision and the written summary shall indicate the date a copy was
presented to the resident. A copy of the summary, photocopies of documents the
board relied upon in arriving at its recommendation, and other related material
shall be submitted to the Superintendent or a designee within ten business days
of the close of the hearing. The summary shall contain, but shall not be
limited to:
1. The date the resident's
criminal sentence(s) are scheduled to expire;
2. The board's findings with regard to the
criteria for transfer set forth in
103 CMR
460.07;
3. The minimum conditions and criteria for
consideration of the resident's future return to the Treatment Center;
and
4. The reasons for a minority
vote, if there was one; and
5. A
recommendation as to the appropriate classification and placement of the
resident within the Department of Correction.
(j)
Superintendent's
Review - If the transfer board recommends the resident's transfer
to another correctional facility, the transfer board Chairperson shall submit
to the Superintendent copies of the transfer board's written summary of the
board's recommendation for transfer, classification and placement, and all
accompanying documentation, as set forth in 103 CMR 460.08(3)(i). If the
Superintendent referred the resident to the transfer board pursuant to 103 CMR
460.08(2), the Superintendent shall designate an impartial Treatment Center
staff member to review the transfer board's recommendation. Within ten business
days after receipt of the transfer board's recommendation concerning the
resident's transfer, the Superintendent or a designee shall render a written
decision concerning the resident's transfer, classification and
placement.
(k)
Resident
Appeal - Where a Treatment Center resident disagrees with any
recommendation of the transfer board, the resident may submit a written appeal
of the transfer board's recommendation to the Superintendent within five
business days of written notification of the board's recommendation. If the
Superintendent referred the resident to the transfer board pursuant to 103 CMR
460.08(2), the Superintendent shall designate an impartial Treatment Center
staff member to review the resident's appeal.
The Superintendent or designee shall respond in writing to the
resident within ten business days, noting the result of the appeal.
(l)
The Commissioner's
Decision - To finalize the transfer process, the Superintendent's
decision concerning the resident's transfer, classification and placement shall
be submitted for approval to the Commissioner or a designee.
(m)
Emergency
Transfers.
1. Whenever a resident
is referred to the transfer board for reasons set forth in
103 CMR 460.07(2)(d) and
(e) the Superintendent or a designee may
transfer a resident to another correctional institution prior to the resident's
transfer board hearing if the Superintendent determines that the resident:
a. poses an imminent threat of serious
physical harm to other residents or staff, or poses an imminent threat of
escape, or needs to be transferred for his own safety; or
b. that reasons of security or considerations
pertinent to an ongoing investigation preclude the resident's housing in any
unit of the Treatment Center pending the transfer board hearing.
2. A transfer board hearing shall
be held within 20 business days of such an emergency transfer. However, where a
BRC investigation hearing or any investigation is pending, the transfer board
hearing shall initially consist only of the resident's security requirements;
specifically whether or not he continues to require residency outside of the
Treatment Center. Within ten business days of completion of the BRC hearing
and/or compilation of any investigation, a full hearing shall be held in
accordance with the procedure set forth in
103 CMR
420.08(3)(a) through (l). At
the discretion of the Superintendent, the hearing can he held either at the
Treatment Center or at the site of the resident's confinement.