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SJC-12165

            STANLEY V. SHARRIS, JR.   vs.   COMMONWEALTH.



        Suffolk.       December 7, 2017. - September 17, 2018.

   Present:   Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.


Due Process of Law, Competency to stand trial. Incompetent
     Person, Criminal charges. Practice, Criminal, Indictment,
     Dismissal, Competency to stand trial, Defendant's
     competency. Homicide.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on May 17, 2016.

    The case was considered by Hines, J.


     Paul R. Rudof, Committee for Public Counsel Services, for
the defendant.
     Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the
Commonwealth.
     Crystal L. Lyons, Assistant District Attorney, for the
District Attorney for the Northern District, was present but did
not argue.
     Kevin S. Prussia, Matthew C. Tymann, & Annaleigh E. Curtis,
for Massachusetts Association of Criminal Defense Lawyers,
amicus curiae, submitted a brief.


    GAZIANO, J.    General Laws c. 123, § 16 (f), provides for

the dismissal of criminal charges when an individual is found
                                                                      2


incompetent to stand trial.   The statute requires mandatory

dismissal of charges at the time when the individual would have

been eligible for parole if he or she had been convicted and had

been sentenced to the maximum statutory sentence.   See id.    The

statute also provides courts with the discretion to dismiss

criminal charges "prior to the expiration of such period."     Id.

     The defendant,1 who is now seventy-four years old, was

charged with murder in the first degree and interfering with a

fire fighter in 1994, when he was fifty-one years old.      At that

time, he was deemed incompetent to stand trial.   Since then, he

continually has been deemed incompetent, and at this point, the

Commonwealth has conceded that he is permanently incompetent.

The nature of the defendant's mental impairment, a form of

alcohol-induced dementia, is such that it is permanent,

degenerative, and not amenable to any form of treatment.

Additionally, his physical condition is deteriorating, and he is

now physically frail, nourished through a feeding tube, and

bedridden.   It is likely that his physical condition also will

continue to worsen.   Due to the level of medical care he

requires, in August, 2015, the defendant was released on bail,

with conditions, so he could be placed in a hospital setting.

He is civilly committed to the Department of Mental Health

     1 Although the petitioner commenced this action by filing a
petition in the county court, for convenience, we refer to him
as "the defendant."
                                                                   3


(DMH), and is being cared for in an unlocked wing of a public

hospital operated by the Department of Public Health (DPH).

    Although G. L. c. 123, § 16 (f), does not explicitly

exclude murder in the first degree from its provisions for

dismissal, it does so effectively, because the statute is based

on the date of parole eligibility, and there is no parole

eligibility date for the offense of murder in the first degree.

The defendant contends that the charges against him nonetheless

should be dismissed, either under the provision allowing

discretionary release or on constitutional grounds.    Beginning

in 2001, through May, 2016, the defendant has filed motions to

dismiss, and motions for reconsideration, arguing that G. L.

c. 123, § 16 (f), violates his right to substantive due process

because it restricts his fundamental right to liberty and is not

narrowly tailored to achieve compelling State interests.    See

Commonwealth v. Calvaire, 476 Mass. 242, 246 (2017).   All of

these motions have been denied.   In May, 2016, the defendant

sought relief pursuant to G. L. c. 211, § 3, from the denial of

his most recent motion for reconsideration.   He thereafter

appealed to this court from the denial of his petition.

    For the reasons that follow, we conclude that maintaining

pending charges against an incompetent defendant in those rare

circumstances, such as here, where a defendant will never regain

competency, and where maintaining the charges does not serve the
                                                                      4


compelling State interest of protecting the public, is a

violation of the defendant's substantive due process rights.2

     1.   Background.   The essential facts are uncontested.   On

December 25, 1994, the defendant was arrested for the beating

death of his father; he also was charged with attempting to

obstruct fire fighters who were responding to smoke coming from

the house where the defendant and his father lived.     In January,

1995, a grand jury indicted the defendant on one charge of

murder in the first degree and one charge of interfering with a

fire fighter.

     Prior to his arraignment, the defendant was examined for

competency to stand trial, pursuant to G. L. c. 123, § 15 (a).

In December, 1994, he was found to be incompetent to stand trial

and committed to Bridgewater State Hospital (Bridgewater) for a

period of six months.   See G. L. c. 123, § 16 (b).   Since then,

he repeatedly has been reexamined and recommitted, for most of

that period pursuant to G. L. c. 123, § 16 (c), and remains

incompetent.

     Following a competency examination of the defendant in

February, 2013, the director of forensic services at Bridgewater

filed a report concluding that the defendant was then

incompetent to stand trial, and in his opinion would never be

     2 We acknowledge the amicus briefs submitted by the
Massachusetts Association of Criminal Defense Lawyers and the
district attorney for the Northern District.
                                                                      5


competent; the director has reaffirmed that conclusion in

subsequent reports.     In April, 2014, Bridgewater filed a

petition for authorization for medical treatment of the

defendant.   That motion was allowed.   In May, 2014, Bridgewater

filed a motion that the defendant be treated by DMH.     The

Commonwealth's motion for an independent medical examination was

allowed, and the defendant's medical records were produced to

the Commonwealth.     Thereafter, in June, 2014, an evidentiary

hearing, at which testimony was taken, was conducted on

Bridgewater's motion that the defendant be treated at a DMH

facility.    The hearing was continued, and the motion was denied

on July 31, 2014.     On the same day, the Commonwealth's petition

for a renewal of the defendant's commitment, under G. L. c. 123,

§ 8, and request that all subsequent hearings be conducted in

accordance with G. L. c. 123, §§ 7, 8, was allowed, and the

defendant was civilly committed to Bridgewater for one year.

    In July, 2015, the Commonwealth filed a motion to extend

the defendant's prior commitment, originally ordered under G. L.

c. 123, § 16 (b), and seeking that all subsequent hearings

proceed under G. L. c. 123, §§ 7, 8.     In August, 2015, upon a

motion by Bridgewater, the defendant was transferred to the

custody of DMH and held on bail.     He was transferred to a joint

DMH-DPH facility, where both DPH and DMH services are offered

and where DPH operates hospital wards.     On September 15, 2015, a
                                                                   6


competency hearing was held in the Brockton Division of the

District Court Department.   The defendant was found incompetent

and was civilly committed to Bridgewater for one year, pursuant

to G. L. c. 123, § 8.   After a judge of the District Court

visited the defendant at his bedside in the DPH hospital, the

judge allowed Bridgewater's motion that DMH hold the defendant

for one year.   The Commonwealth "does not dispute . . . [the]

assessment [by the director of forensic services at

Bridgewater]" that the defendant "will never be competent to

stand trial."   At a hearing before a Superior Court judge in

December, 2015, the Commonwealth conceded that the defendant

will never be competent to stand trial.

    During the course of his commitment to Bridgewater, the

defendant repeatedly exhibited violent and assaultive behavior

against health care staff, other patients, and correction

officers.   In addition to physical assaults, he was frequently

verbally combative and engaged in numerous outbursts of yelling.

He made sexually inappropriate comments and gestures towards

female staff.   In 2005, he attempted to strangle his roommate

and thereafter was placed in a single-occupancy room.

    In the last three years of the defendant's time at

Bridgewater, however, his doctors noted that the defendant

demonstrated "sustained improvement in his aggressive behavior"

and that he was no longer engaging in the sexually aggressive
                                                                    7


speech and behavior he had previously exhibited.     The most

recent competency evaluation in the record, from 2015, indicated

that the defendant's "infrequent aggression without injury" is

typical for a person with the defendant's level of dementia, and

that his behavior was "not at the level of seriousness of

assaults in previous years."    "[H]is last serious assault of

another patient occurred in November 2011."     Between 2012 and

June, 2015, the defendant committed four assaults that caused no

serious injuries or did not result in any injury.

    The improvement in the defendant's behavior was partially

attributable to his worsening physical and mental condition.

According to the evaluations in the record, over the past

twenty-two years, the defendant has been examined by eight

forensic psychologists and psychiatrists.    Their general

consensus is that the defendant suffers from Korsakoff syndrome,

which is a form of substance-induced persisting dementia caused

by the defendant's prior alcohol use.     The defendant's medical

records indicate that he began exhibiting symptoms of mental

impairment and certain physical difficulties at least as early

as 1992, and doctors suspected that these were related to brain

damage from alcohol abuse.     He also has a history in the

records, from at least 1985 onward, of a head injury.     In

addition, he has an ongoing seizure disorder, and brain scans

have shown noticeable abnormalities.     During his commitment to
                                                                   8


Bridgewater, the defendant's cognitive and physical capacities

have significantly deteriorated, and they are not expected to

improve.

    Since 2013, the defendant "has become progressively

physically weaker, and currently is bedridden and very weak

physically."   According to his most recent medical records, the

defendant has a permanent feeding tube implanted in his stomach

through which he receives all of his nutrition and medications,

cannot walk on his own, and spends his time either in a hospital

bed or a geriatric chair.   He is so weak that an average adult

could hold both of his hands with one hand, and he would not be

able to pull away.   The Commonwealth agreed that the defendant

has been "physically frail" since at least 2015.   In 2015, in

the most recent medical evaluation in the records, the director

of forensic services at Bridgewater opined that the defendant

could "be managed in a less secure setting, such as a facility

of [DMH], a medical unit at the [Lemuel] Shattuck Hospital, or a

long-term care facility."

    In August, 2015, the Commonwealth did not dispute

Bridgewater's motion for the release of the defendant, on bail

and with conditions, pursuant to G. L. c. 123, § 17 (c);

Bridgewater's motion to transfer the defendant to the custody of

DMH, so that he could be treated at a DMH facility, particularly

for management of his feeding tube, was allowed.   Shortly
                                                                      9


thereafter, the Commonwealth assented to Bridgewater's motion to

amend the special conditions of release so that the defendant

could be moved to the medical unit of a DPH hospital ward, in a

jointly operated facility, so that he could receive more

appropriate medical care; that motion was allowed.

    Since the motion to hold the defendant in the DPH hospital

ward, under DMH custody, was allowed, the defendant has been

held on that ward.   He remains civilly committed to the custody

of DMH, and DMH continues to follow his care, which is provided

day-to-day by DPH staff.   DMH has indicated that, if the charges

are dismissed, it could seek the defendant's placement in a

long-term care facility that could more appropriately manage his

care.

    2.   Prior proceedings.   In May, 2001, citing due process

considerations, the defendant moved pursuant to G. L. c. 123,

§ 16 (f), to dismiss the charges.   In August, 2002, a Superior

Court judge denied the motion; he determined that the defendant

had not been denied due process and that G. L. c. 123, § 16 (f),

is not applicable to charges of murder in the first degree.      In

March, 2013, the defendant filed another motion to dismiss,

again pursuant to G. L. c. 123, § 16 (f).   In April, 2013, a

different Superior Court judge denied that motion.   The judge

concluded that the statute is not applicable to charges of

murder in the first degree and that, even if it is, he did not
                                                                   10


believe it was in the interest of justice to dismiss the

charges.   In July, 2015, the defendant again moved to dismiss

the indictments.   That motion was denied in March, 2016, by a

third Superior Court judge.   In April, 2016, the defendant filed

a motion for reconsideration of his motion to dismiss; he argued

that the denial of his motion resulted in a violation of

substantive due process.   The motion was denied one week later.

The judge concluded that due process is satisfied by the

provisions of G. L. c. 123, § 16 (c), which requires annual

reviews of competency for defendants who have been found

incompetent to stand trial.

    In May, 2016, the defendant filed a petition in the county

court seeking relief pursuant to G. L. c. 211, § 3, from the

denial of his motion for reconsideration.   The defendant argued

that review under G. L. c. 211, § 3, was appropriate, because he

is permanently incompetent to stand trial, and would never have

an adverse final judgment from which to appeal.   The single

justice concluded that the defendant had other avenues by which

to seek relief and denied the motion without a hearing.    In

September, 2016, the defendant appealed to this court, pursuant

to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).    In

December, 2016, we issued an order allowing the defendant's

appeal to proceed in the full court.
                                                                  11


    3.   Discussion.     The defendant argues that due process

prohibits the Commonwealth from maintaining pending criminal

charges indefinitely against a defendant who is permanently

incompetent, and, therefore, that there must be some means of

obtaining dismissal of a charge of murder in the first degree.

The defendant contends that his charges may be dismissed either

pursuant to G. L. c. 123, § 16 (f), which contains provisions

for both mandatory dismissal and dismissal in the interest of

justice, or by the inherent power of the courts to remedy

violations of due process.     See Department of Mental Retardation

v. Kendrew, 418 Mass. 50, 55 (1994) ("We recognize that the

courts of the Commonwealth have certain inherent and implied

powers in addition to those powers expressly enumerated in

various statutes").

    The defendant argues, first, that the court should conclude

that a sentence of life in prison without the possibility of

parole is unconstitutional when applied to permanently

incompetent defendants, and should sever that portion of the

murder statute, as applied to incompetent defendants, which

prohibits parole.     Severance of the statute in such a manner

would result in eligibility for parole for permanently

incompetent defendants charged with murder in the first degree

in a similar manner to those incompetent defendants who are
                                                                  12


charged with murder in the second degree.3   See Diatchenko v.

District Attorney for the Suffolk Dist., 466 Mass. 655, 672-673

(2013), S.C., 471 Mass. 12 (2015) (holding that sentence of life

in prison without possibility of parole is unconstitutional when

applied to juvenile defendants, and therefore severing that

portion of murder statute).   Alternatively, the defendant argues

that G. L. c. 123, § 16 (f), which permits dismissal in the

interest of justice, could be interpreted to apply to all

crimes, regardless of parole eligibility.    Lastly, the defendant

suggests that this court could create a remedy to resolve any

due process violation.

     The Commonwealth contends, however, that there is no due

process violation, and that G. L. c. 123, § 16 (f), is narrowly

tailored to serve the compelling State interest of protecting

public safety.   In this view, the Legislature implicitly

excluded defendants charged with murder in the first degree by

hinging the dismissal of charges on eligibility for parole.4


     3 At the time of the defendant's arrest, defendants
convicted of murder in the second degree were eligible for
parole after fifteen years. After the United States Supreme
Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), the
Legislature revised the murder statute. Currently, defendants
who are convicted of murder in the second degree are eligible
for parole at a period of from fifteen to twenty-five years
after sentencing, to be determined by the sentencing judge. See
G. L. c. 127, § 133A; G. L. c. 279, § 24.

     4 All other offenses which permit a life sentence also have
a statutory parole date that follows a fixed number of years;
                                                                   13


Such an exclusion is justified, the Commonwealth suggests,

because murder in the first degree is different in kind from

other crimes.   See G. L. c. 277, § 63 (no statute of limitations

for murder).    See also Commonwealth v. Francis, 450 Mass. 132,

135 (2007), S.C., 477 Mass. 582 (2017) ("It is reasonable for

the Legislature to treat defendants facing a charge of murder in

the first degree differently from other defendants").

    Although the language of G. L. c. 123, § 16 (f), read in

conjunction with G. L. c. 265, § 1, excludes defendants charged

with murder in the first degree from being eligible for

dismissal of charges under that provision, substantive due

process requires a statute affecting a fundamental right to be

narrowly tailored to achieve compelling government interests.

See Calvaire, 476 Mass. at 246.    While murder in the first

degree is the gravest of charges, we conclude that substantive

due process requires dismissal of the charges where a defendant

will never regain competency and maintaining the charges does

not serve the compelling State interest of protecting the

public.

    a.    General Laws c. 123, § 16 (f).   General Laws c. 123,

§ 16 (f), is intended to ensure that criminal defendants who are

incompetent to stand trial are not left facing the indefinite


for no offense is this period greater than that for a conviction
of murder in the second degree. See G. L. c. 127, § 133A; G. L.
c. 279, § 24.
                                                                    14


pendency of criminal charges.5    See Calvaire, 476 Mass. at 244,

citing Foss v. Commonwealth, 437 Mass. 584, 589 (2002).     The

statute requires dismissal of criminal charges on "the date of

the expiration of the period of time equal to the time of

imprisonment which the person would have had to serve prior to

becoming eligible for parole if he had been convicted of the

most serious crime with which he was charged in court and

sentenced to the maximum sentence he could have received."

G. L. c. 123, § 16 (f).    Alternatively, a court may, in the

interest of justice, dismiss pending charges "prior to the

expiration of such period," i.e., during the period before a

convicted defendant would be eligible for parole under the

provision requiring mandatory dismissal.    Id.


     5   General Laws c. 123, § 16 (f), provides:

          "If a person is found incompetent to stand trial, the
     court shall send notice to the department of correction
     which shall compute the date of the expiration of the
     period of time equal to the time of imprisonment which the
     person would have had to serve prior to becoming eligible
     for parole if he had been convicted of the most serious
     crime with which he was charged in court and sentenced to
     the maximum sentence he could have received, if so
     convicted. For purposes of the computation of parole
     eligibility, the minimum sentence shall be regarded as one
     half of the maximum sentence potential sentence. Where
     applicable, the provisions of [G. L. c. 127, §§ 129, 129A,
     129B, and 129C,] shall be applied to reduce such period of
     time. On the final date of such period, the court shall
     dismiss the criminal charges against such person, or the
     court in the interest of justice may dismiss the criminal
     charges against such person prior to the expiration of such
     period."
                                                                  15


    "Our primary duty in interpreting a statute is 'to

effectuate the intent of the Legislature in enacting it.'"

Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water

Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.

740, 744 (2010).   "Ordinarily, where the language of a statute

is plain and unambiguous, it is conclusive as to legislative

intent."   Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008).

That said, "[w]e will not adopt a literal construction of a

statute if the consequences of such construction are absurd or

unreasonable."   Attorney Gen. v. School Comm. of Essex, 387

Mass. 326, 336 (1982).   See Black's Law Dictionary 11-12 (10th

ed. 2014) (defining "absurdity" as "being grossly unreasonable"

and "[a]n interpretation that would lead to an unconscionable

result, esp. one that . . . the drafters could not have

intended").

    Taken in conjunction with the provisions on murder in the

first degree that exclude anyone convicted under G. L. c. 265,

§ 1, from eligibility for parole, G. L. c. 123, § 16 (f),

implicitly excludes dismissal of charges for which a defendant

who is convicted and sentenced to the maximum sentence would

never be eligible for parole.   This is so because, where it is

not possible to compute the date on which a person would become

eligible for parole on a charge, the charge cannot be dismissed
                                                                      16


on that date, and a court cannot, in the interest of justice,

dismiss the charge prior to that date.

    Here, the most serious crime with which the defendant was

charged is murder in the first degree.     If he had been convicted

of that offense, he would have been sentenced to the mandatory

sentence of life in prison without the possibility of parole.

Under the plain language of G. L. c. 265, § 1, therefore, a

defendant charged with that offense is never eligible for

dismissal of pending charges in accordance with G. L. c. 123,

§ 16 (f).

    b.      Substantive due process.   The defendant contends that

the plain meaning of G. L. c. 123, § 16 (f), as discussed supra,

violates the due process clauses of art. 12 of the Massachusetts

Declaration of Rights and the Fourteenth Amendment to the United

States Constitution when applied to permanently incompetent

defendants charged with murder in the first degree.      We analyze

his claim on substantive due process grounds.      See Calvaire, 476

Mass. at 246.    Accordingly, where the statute interferes with a

fundamental liberty interest, we apply strict scrutiny analysis

to the defendant's claim to determine whether G. L. c. 123,

§ 16 (f), is narrowly tailored to achieve a compelling State

interest.    See Aime v. Commonwealth, 414 Mass. 667, 673 (1993).

    i.      The defendant's liberty interest.   In August, 2015, on

a motion by Bridgewater that was unopposed by the Commonwealth,
                                                                    17


the defendant was released on bail, on conditions, and was

transferred from the custody of Bridgewater to the custody of

DMH, pursuant to G. L. c. 123, § 17 (c), so that he could

receive more appropriate medical care.     He remains civilly

committed pursuant to G. L. c. 123, §§ 7, 8, in continuation of

his commitment under G. L. c. 123, § 16 (c).    The defendant

claims, however, that his liberty interest is impaired by the

pendency of criminal charges against him.    Although he is able

to reside in an unlocked medical unit at Lemuel Shattuck

Hospital, the pending charges prevent him from being able to

seek care in a long-term care facility that could better suit

his medical and mental health needs.   Furthermore, pending

criminal charges may cause "anxiety, forfeiture of opportunity,

and damage to reputation, among other conceivable injuries."

Williams, petitioner, 378 Mass. 623, 626 (1979).

    In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the United

States Supreme Court held that an incompetent defendant cannot

be committed based solely on his incompetency for longer than

"the reasonable period of time necessary to determine whether

there is a substantial probability that he will attain

[competency] in the foreseeable future."    Indefinite commitment

of a defendant who is unlikely to regain competency intrudes on

the defendant's substantial right of liberty.    Id. at 731-733.

The Court explained:
                                                                  18


          "We hold, consequently, that a person charged by a
     State with a criminal offense who is committed solely on
     account of his incapacity to proceed to trial cannot be
     held more than the reasonable period of time necessary to
     determine whether there is a substantial probability that
     he will attain that capacity in the foreseeable future. If
     it is determined that this is not the case, then the State
     must either institute the customary civil commitment
     proceeding that would be required to commit indefinitely
     any other citizen, or release the defendant. Furthermore,
     even if it is determined that the defendant probably soon
     will be able to stand trial, his continued commitment must
     be justified by progress toward that goal. In light of
     differing [S]tate facilities and procedures and a lack of
     evidence in this record, we do not think it appropriate for
     us to attempt to prescribe arbitrary time limits. We note,
     however, that petitioner Jackson has now been confined for
     three and one-half years on a record that sufficiently
     establishes the lack of a substantial probability that he
     will ever be able to participate fully in a trial."
     (Footnote omitted.)

Id. at 738.

     The Court declined, however, to decide whether due process

requires dismissal of criminal charges against an incompetent

person.   See id. at 740 ("Dismissal of charges against an

incompetent accused has usually been thought to be justified on

grounds not squarely presented here:   particularly, . . . the

denial of due process inherent in holding pending criminal

charges indefinitely over the head of one who will never have a

chance to prove his innocence. . . .   We think . . . that the

Indiana courts should have the first opportunity to determine

these issues").6


     6 Very few State courts have addressed this issue. This may
be a result of statutes in many States having been modified in
                                                               19



light of Jackson v. Indiana, 406 U.S. 715, 738 (1972), to permit
broader dismissal of charges against incompetent individuals.
Indeed, many State statutes employ the specific language from
Jackson of "substantial probability that [a defendant] will
attain that capacity [to proceed to trial] in the foreseeable
future" to determine whether charges should be dismissed. See
id. Thirty-two States appear to require or explicitly to allow
dismissal of charges of murder in the first degree. See Alaska
Stat. § 12.47.110; Ark. Code Ann. § 5-2-310; Cal. Penal Code
§ 1370.01; Colo. Rev. Stat. § 16-8.5-116; Fla. Stat. § 916.145;
Ga. Code Ann. § 17-7-130; Haw. Rev. Stat. § 704-406; Idaho Code
Ann. § 18-212; 725 Ill. Comp. Stat § 5/104-23; 15 Me. Rev. Stat.
Ann. § 101-D; Md. Code Ann., Crim. Proc. § 3-107; Mich. Comp.
Laws § 330.2044; Mo. Rev. Stat. § 552.020; Mont. Code Ann. § 46-
14-221; Nev. Rev. Stat. § 178.460; N.H. Rev. Stat. Ann.
§ 135:17-a; N.J. Stat. Ann. § 2C:4-6; N.M. Stat. Ann. § 31-9-
1.4; N.C. Gen. Stat. § 15A-1008; N.D. Cent. Code § 12.1-04-08;
Okla. Stat. tit. 22, § 1175.6a; Or. Rev. Stat. § 161.370; 50 Pa.
Cons. Stat. § 7403; R.I. Gen. Laws § 40.1-5.3-3; S.C. Code Ann.
§ 44-23-420; Tex. Code Crim. Proc. Ann. arts. 46B.071, 46B.151;
Wash. Rev. Code §§ 10.77.084, 10.77.086; W. Va. Code § 27-6A-3;
Wis. Stat. § 971.14; Ala. R. Crim. P. 11.6; Ariz. R. Crim. P.
11.6; State v. Davis, 898 N.E.2d 281, 286 (Ind. 2008).

     Of those, twenty States require dismissal of charges of
murder in the first degree after a defendant has been
incompetent for a specific period of time. See Ala. R. Crim. P.
11.6; Alaska Stat. § 12.47.110; Fla. Stat. § 916.145; 725 Ill.
Comp. Stat § 5/104-23; 15 Me. Rev. Stat. Ann. § 101-D; Md. Code
Ann., Crim. Proc. § 3-107; Mich. Comp. Laws § 330.2044; Mo. Rev.
Stat. § 552.020; Mont. Code Ann. § 46-14-221; Nev. Rev. Stat.
§ 178.460; N.H. Rev. Stat. Ann. § 135:17-a; N.M. Stat. Ann.
§ 31-9-1.4 (when defendant is also not dangerous); N.C. Gen.
Stat. § 15A-1008; N.D. Cent. Code § 12.1-04-08; Okla. Stat. tit.
22, § 1175.6a; Or. Rev. Stat. § 161.370; 50 Pa. Cons. Stat.
§ 7403 (proceedings for murder in first degree or murder in
second degree may not be stayed if there is no probability
defendant will regain competency); R.I. Gen. Laws § 40.1-5.3-3;
Wash. Rev. Code §§ 10.77.084, 10.77.086; Wis. Stat. § 971.14.

     Other States exclude murder in the first degree -- and, in
some instances, other serious crimes -- from their dismissal
provisions, often explicitly. See Conn. Gen. Stat. § 54-56d;
D.C. Code §§ 24-531.04, 24-531.08; Iowa Code § 812.9; La. Code
Crim. Proc. Ann. art. 648; N.Y. Crim. Proc. Law § 730.50; S.D.
Codified Laws §§ 23A-10A-14, 23A-10A-15; Tenn. Code Ann. § 33-7-
                                                                    20


    Nonetheless, in a series of opinions related to the right

to a speedy trial under the Sixth Amendment to the United States

Constitution, the United States Supreme Court has determined

that a defendant's liberty interest may be restricted simply by

the pendency of criminal charges, even where the defendant is

not held in custody.     Klopfer v. North Carolina, 386 U.S. 213,

221-222 (1967) ("The petitioner is not relieved of the

limitations placed upon his liberty by this prosecution merely

because its suspension permits him to go 'whithersoever he

will.'    The pendency of the indictment may subject him to public

scorn and deprive him of employment, and almost certainly will

force curtailment of his speech, associations and participation

in unpopular causes").    See United States v. McDonald, 456 U.S.

1, 8-9 (1982) (same); United States v. Marion, 404 U.S. 307, 320

(1971) (same).   See also State v. Davis, 898 N.E.2d 281, 290

(Ind. 2008) (quoting Klopfer, supra, in context of due process

claim).   The liberty interests of a defendant who has pending




301; Va. Code Ann. § 19.2-169.3; Minn. R. Crim. P. 20.01. The
remaining States either do not have provisions related to
dismissal of charges against incompetent defendants or allow
dismissal only after proceedings similar to a hearing pursuant
to G. L. c. 123, § 17 (b). See Del. Code Ann. tit. 11, §§ 403-
404; Kan. Stat. Ann. § 22-3303; Ky. Rev. Stat. Ann. §§ 504.110,
504.150; Neb. Rev. Stat. § 29-1823; Ohio Rev. Code Ann.
§ 2945.38; Utah Code Ann. § 77-15-6; Vt. Stat. Ann. tit. 13,
§§ 4820, 4822; Wyo. Stat. Ann. § 7-11-303; Miss. R. Crim. P.
12.5, 12.6.
                                                                  21


charges are as fundamental in the due process context of the

Fourteenth Amendment as they are in the Sixth Amendment context.

    In other cases involving the essentially indefinite

commitment of incompetent defendants, we have held that a

defendant's liberty interests during the pendency of a criminal

trial are fundamental rights.   See Foss v. Commonwealth, 437

Mass. 584, 589 (2002) ("Among many other problems studied and

addressed in the new mental health laws was the pretrial

commitment of incompetent criminal defendants.   A major thrust

was to eliminate the highly questionable practice of committing

incompetent criminal defendants indefinitely, while awaiting

their unlikely restoration to competency, and also eliminating

the indefinite pendency of criminal charges that, most often,

significantly limited the incompetent criminal defendant's

access to treatment by more effective civil means" [emphasis

added]).   See also Calvaire, 476 Mass. at 246 (applying strict

scrutiny analysis in determining that G. L. c. 123, § 16 [f],

does not violate due process because it allows Commonwealth

"some time to pursue the legitimate and proper purpose of

prosecuting charged crimes, but not for a period of time longer

than is reasonably necessary to ascertain the defendant's

chances of regaining competency"); Commonwealth v. Nieves, 446

Mass. 583, 590 (2006) (applying strict scrutiny in analyzing

liberty interests of incompetent defendant in sexually dangerous
                                                                    22


person hearing pursuant to G. L. c. 123A).     The defendant's

claims, therefore, are subject to strict scrutiny analysis.       See

Aime, 414 Mass. at 673.   The Commonwealth does not contest that

the defendant's asserted liberty interest is a fundamental

right.

    ii.   Strict scrutiny analysis.    To satisfy strict scrutiny,

a statute "must be narrowly tailored to further a legitimate and

compelling governmental interest and be the least restrictive

means available to vindicate that interest."    Commonwealth v.

Weston W., 455 Mass. 24, 35 (2009).    The "requirements for

minimum due process may vary depending on the context."     See

Commonwealth v. Burgess, 450 Mass. 366, 372 (2008), and cases

cited.

    In Calvaire, 476 Mass. at 246, we concluded that G. L.

c. 123, § 16 (f), was narrowly tailored to achieve the two

compelling State interests of "protecting mentally ill

defendants from the indefinite pendency of criminal charges as a

result of their incompetency" and "protecting the public from

potentially dangerous persons."   We noted that the statute

affords the Commonwealth sufficient time to prosecute crimes,

"but not for a period of time longer than is reasonably

necessary to ascertain the defendant's chances of regaining

competency."   Id.   The statute provides a method for calculating

a maximum period of time prior to dismissal of charges against
                                                                   23


all defendants except those charged with crimes that do not

permit eligibility for parole, e.g., all crimes other than the

offense of murder in the first degree.    We also noted the

additional statutory safeguard that allows, in the interest of

justice, the dismissal of pending charges before the expiration

of the computed period of time.   Id.   Use of that "safety valve"

may be warranted, we concluded, where "the defendant's chances

of being restored to competency are slim."    Id. at 247.

    In its opposition to the dismissal of charges in this case,

the Commonwealth relies on the compelling government interest of

public safety.   It describes in detail the defendant's history

of violence prior to his father's murder and during his

commitment to Bridgewater.   There is considerable evidence from

competency evaluations, however, including the opinion of the

director of forensic services at Bridgewater, that the defendant

is now too physically weak to pose a danger to public safety.

Since 2013, the defendant "has become progressively physically

weaker, and currently is bedridden and very weak physically."

He has a permanent feeding tube, cannot walk on his own, and

spends his time either in a hospital bed or a geriatric chair.

He is so weak that another person could control both of his

hands with one hand, and he would not be able to pull away.     The

Commonwealth has acknowledged that the defendant was "physically

frail" as of at least 2015; while it opposes the dismissal of
                                                                      24


the pending charges, it did not oppose Bridgewater's motion in

August, 2015, to transfer the defendant to DMH for a period of

one year, as it had in prior years.

     In addition to its assertion that incompetency is not

evidence of a lack of guilt, the Commonwealth contends that the

charges should not be dismissed because dismissal would prevent

the district attorney from being notified of the defendant's

location or any hearing related to his competency.      This

argument is unavailing.    Pursuant to G. L. c. 123, § 16 (d), the

district attorney must continue to be notified of any hearings

conducted pursuant to any section of G. L. c. 123 for a person

who was initially committed under G. L. c. 123, § 16 (b).7      The

requirement of notification includes any future hearings on

petitions for civil commitment or an extension of civil

commitment pursuant to G. L. c. 123, §§ 7, 8.       See Matter of

E.C., 479 Mass. 113, 122-123 (2018).    Moreover, any dismissal of

charges pursuant to G. L. c. 123, 16 (f), is without prejudice,

so in the unlikely event that a defendant whose charges had been

dismissed were to regain competency, the Commonwealth would be

     7   General Laws c. 123, § 16 (d), provides:

          "The district attorney for the district within which
     the alleged crime or crimes occurred shall be notified of
     any hearing conducted for a person under the provisions of
     this section or any subsequent hearing for such person
     conducted under the provisions of this chapter relative to
     the commitment of the mentally ill and shall have the right
     to be heard at such hearings."
                                                                   25


able to reinstate the charges.    See Commonwealth v. Hatch,

438 Mass. 618, 624 (2003) (dismissal of charges pursuant to

G. L. c. 123, § 17 [b], is without prejudice).

     The Commonwealth also emphasizes that the Legislature has

legitimate reasons for treating charges of murder in the first

degree differently from other offenses.    See G. L. c. 277, § 63

(no statute of limitations for murder).    See also Francis, 450

Mass. at 135 ("It is reasonable for the Legislature to treat

defendants facing a charge of murder in the first degree

differently from other defendants").

     Furthermore, notwithstanding the exclusion of defendants

charged with murder in the first degree from eligibility for

dismissal of charges under G. L. c. 123, § 16 (f), the

Commonwealth contends that other statutory provisions provide

additional safeguards to prevent indefinite commitment and

afford incompetent defendants an alternative avenue for

dismissal of charges.    General Laws c. 123, § 17 (c), allows a

court to release a defendant, with or without bail, at any stage

of a criminal proceeding,8 and G. L. c. 123, § 17 (b), permits a


     8   General Laws c. 123, § 17 (c), provides:

          "Notwithstanding any finding of incompetence to stand
     trial under the provisions of this chapter, the court
     having jurisdiction may, at any appropriate stage of the
     criminal proceedings, allow a defendant to be released with
     or without bail."
                                                                   26


defendant to request a hearing that could result in dismissal of

charges if there is insufficient evidence to support a

conviction on those charges.9

     The slim possibility that a judge in his or her own

discretion might decide to release a particular defendant

charged with murder on bail pursuant to G. L. c. 123, § 17 (c),

however, does not address the fundamental liberty interest at

issue here.    See Klopfer, 386 U.S. at 221-222 ("The petitioner

is not relieved of the limitations placed upon his liberty by

this prosecution merely because its suspension permits him to go

'whithersoever he will'").

     General Laws c. 123, § 17 (b), as the Commonwealth notes,

does allow incompetent defendants to petition for a hearing to

have their charges dismissed, if they can "establish a defense


     9   General Laws c. 123, § 17 (b), provides:

          "If either a person or counsel of a person who has
     been found to be incompetent to stand trial believes that
     he can establish a defense of not guilty to the charges
     pending against the person other than the defense of not
     guilty by reason of mental illness or mental defect, he may
     request an opportunity to offer a defense thereto on the
     merits before the court which has criminal jurisdiction.
     The court may require counsel for the defendant to support
     the request by affidavit or other evidence. If the court
     in its discretion grants such a request, the evidence of
     the defendant and of the commonwealth shall be heard by the
     court sitting without a jury. If after hearing such
     petition the court finds a lack of substantial evidence to
     support a conviction it shall dismiss the indictment or
     other charges or find them defective or insufficient and
     order the release of the defendant from criminal custody."
                                                                  27


of not guilty to the charges pending against [them] other than

the defense of not guilty by reason of mental illness or mental

defect."   This statute permits incompetent defendants to request

a hearing at any time on the ground that they did not commit the

crime charged; that the Commonwealth never had or no longer has

sufficient evidence to prove that they committed the charged

crime; or that a defense other than mental illness or mental

defect, such as self-defense, applies.    Furthermore, incompetent

defendants could seek to disprove the elements that elevate

murder from murder in the second degree to murder in the first

degree.    If, at a hearing on a motion under G. L. c. 123,

§ 17 (b), a defendant is able to demonstrate that the act was

not committed with deliberate premeditation or extreme atrocity

or cruelty -- depending on how the defendant was charged -- the

most severe crime of which the defendant could be convicted

should the defendant later become competent would be murder in

the second degree.   Defendants who are convicted of murder in

the second degree are eligible for parole after a period of from

fifteen to twenty-five years that is determined by the

sentencing judge.    See G. L. c. 265, § 2; G. L. c. 279, § 24.

Accordingly, incompetent defendants who face a charge of murder

in the second degree qualify for dismissal of charges pursuant

to G. L. c. 123, § 16 (f).
                                                                  28


     The existence of this alternative avenue for dismissal of

charges in specific circumstances does not, however, prevent a

conclusion that G. L. c. 123, § 16 (f), violates substantive due

process in the circumstances in this case.10    Because it is

undisputed that the defendant will never become competent,

allowing charges that can never be resolved at a trial to remain

pending indefinitely is inconsistent with his right to

substantive due process.   Compare Calvaire, 476 Mass. at 246

("The statute is narrowly tailored to allow the Commonwealth

some time to pursue the legitimate and proper purpose of

prosecuting charged crimes, but not for a period of time longer

than is reasonably necessary to ascertain the defendant's

chances of regaining competency").    A statute is not narrowly

tailored to achieve a compelling government interest where the

stated interest is not at stake.     See Curtis v. State, 948

N.E.2d 1143, 1154 (Ind. 2011) ("Of course, the State's interests

cannot be realized if there is a finding that a defendant cannot

be restored to competency").   See also Commonwealth v. G.F., 479

Mass. 180, 196 (2018) ("[C]onfinement without legal


     10The Legislature recently enacted a criminal justice
reform bill that allows a prisoner who suffers from a terminal
illness or permanent incapacitation "that is so debilitating
that the prisoner does not pose a public safety risk" to be
released on medical parole. See G. L. c. 127, § 119A, inserted
by St. 2018, c. 69, § 97. This compassionate release program is
available to all prisoners, including those convicted of murder
in the first degree.
                                                                  29


justification is never innocuous, . . . and the legal

justification for confinement weakens after [a sexually

dangerous person] trial is concluded without a finding of sexual

dangerousness" [quotation and citation omitted]).

    General Laws c. 123, § 16 (f), therefore satisfies the

requirement of substantive due process only insofar as it is

understood to allow the dismissal of charges, in the interest of

justice, in circumstances such as these, where the defendant

will never regain competency and does not pose a risk to public

safety.

    3.     Conclusion.   The matter is remanded to the county court

for entry of an order allowing the defendant's petition pursuant

to G. L. c. 211, § 3, and remanding the matter to the Superior

Court for entry of an order allowing the defendant's motion to

dismiss.

                                     So ordered.
