ELMER L. THOMPSON, petitioner.

HENNESSEY, C.J. This is an appeal from an order of the Superior Court denying Elmer L. Thompson's petition for discharge from the treatment center for sexually dangerous persons

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at M.C.I., Bridgewater (treatment center). Thompson contends that the judge erred in refusing, under G. L. c. 123A, Section 9, to consider evidence which would tend to establish that confinement in an environment less restrictive than the treatment center is warranted. We disagree, and conclude that there was no error in the denial of Thompson's petition.

Elmer L. Thompson (petitioner) has been confined at the treatment center since his commitment in 1969 as a sexually dangerous person. See Thompson, petitioner, 5 Mass. App. Ct. 282, 283 (1977). On July 18, 1979, he filed a petition in the Superior Court under G. L. c. 123A, Section 9, [Note 1] for a hearing to determine whether he was eligible for discharge. Prior to the hearing, the petitioner requested that the judge rule on the admissibility of evidence concerning the possibility of confinement at a facility less restrictive than the treatment center. The judge ruled that such evidence was inadmissible at a c. 123A, Section 9, hearing. On December 5, 1983, the judge denied the petition

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for discharge, finding that the petitioner continued to be a sexually dangerous person. The petitioner appealed, and we transferred the case to this court on our own motion.

1. G. L. c. 123A, Section 9.

According to G. L. c. 123A, Section 9, "[u]pon a finding by the court that such person is no longer a sexually dangerous person, it shall order such person to be discharged, or conditionally released from the center." [Note 2] As the clear language of the statute requires, we have concluded that "under G. L. c. 123A, Section 9, `[a]n absolute finding that the individual is no longer sexually dangerous is a condition precedent to any form of judicial release from confinement' " (emphasis added). Conlan v. Commonwealth, 383 Mass. 871, 872 (1981), quoting Commonwealth v. Travis, 372 Mass. 238, 248 (1977). Travers v. Commonwealth, 13 Mass. App. Ct. 924, 925 (1982). In this case, the judge concluded that the petitioner was, at the time of the hearing, a sexually dangerous person. Thus any consideration of alternatives to confinement at the treatment center, in a proceeding under the discharge provisions of G. L. c. 123A, Section 9, would have been improper. [Note 3] A contrary interpretation of the statute would be inconsistent with our view that "[p]roceedings under G. L. c. 123A, Section 9, are to determine the single issue whether or not the petitioner is a sexually dangerous person," Davis, petitioner, 383 Mass. 645, 649-650 (1981), and that "[i]n order to simplify and expedite hearings under G. L. c. 123A, Section 9, such hearings should be restricted to the sole issue for which they were intended." Id.

General Laws c. 123A, Section 9, provides that discharge hearings are to "be conducted in the same manner as is provided for in

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sections five and six." Both Section 5 and Section 6, which govern the initial commitment proceedings, provide for consideration of alternatives to commitment at the treatment center. See, e.g., Commonwealth v. Connarton, 383 Mass. 777, 778 & n.1 (1981); Commonwealth v. Rodriguez, 376 Mass. 632, 646 (1978). Therefore, the petitioner contends that a judge should also allow consideration of alternatives in a Section 9 discharge proceeding. We agree with the petitioner that the Legislature intended that Section 9 hearings be modelled procedurally after hearings conducted under Sections 5 and 6. Nonetheless, we conclude that the substantive prerequisite for discharge under Section 9, i.e., a finding that the petitioner is no longer sexually dangerous, is substantially different from the criteria to be used under Sections 5 and 6 in determining whether alternatives to the treatment center are appropriate. See Commonwealth v. Travis, supra at 247 n.4. See also G. L. c. 123A, Section 6A (petition for removal of restrictions imposed under Section 6A "shall to the extent applicable" be treated as petition for release under Section 9 [emphasis added]). [Note 4]

2. Due Process.

Individuals who have been civilly committed have a due process right to "reasonably nonrestrictive confinement conditions." Youngberg v. Romeo, 457 U.S. 307, 324 (1982). Though Youngberg involved the right to be free from unnecessary restraint within an institution, id. at 315, its holding has been extended by at least one lower court to a situation where individuals have claimed a liberty interest in the availability of less restrictive facilities or community placement. See Association for Retarded Citizens of N. Dakota v. Olson, 561 F. Supp. 473, 486 (D. N.D. 1982), aff'd on other grounds, 713

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F.2d 1384 (8th Cir. 1983). But see Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1247-1249 (2d Cir. 1984) (no constitutional right to community placement); Philips v. Thompson, 715 F.2d 365, 367-368 (7th Cir. 1983) (same). The petitioner claims that an interpretation of G. L. c. 123A, Section 9, which does not allow for the consideration of alternatives to the treatment center, is inconsistent with his right to "freedom from undue restraint." Youngberg v. Romeo, supra at 319.

We need not here decide whether the petitioner has a constitutional liberty interest in placement in a facility which is less restrictive than the treatment center. Assuming that the petitioner has such an interest, we conclude that it is adequately protected by various provisions of the statute governing the commitment of sexually dangerous persons. As already noted, G. L. c. 123A, Sections 5 and 6, [Note 5] both allow a judge to consider alternatives to the treatment center at the initial commitment proceeding. See Commonwealth v. Connarton, 383 Mass. 777, 778 (1981); Commonwealth v. Rodriguez, 376 Mass. 632, 646 (1978). Moreover, according to G. L. c. 123A, Section 9, "[a]ny person committed to the center for treatment and rehabilitation under section five or section six shall be eligible for parole." Individuals shall be presented to the parole board "at least once

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during the first twelve months following commitment . . . and at least once in every three-year period thereafter, and at any time upon the recommendation of two psychiatrists." Id. The parole board "may grant such person a parole permit to be at liberty upon such terms and conditions as it shall prescribe, including the condition he receive out-patient treatment, and any other condition that the commissioner of mental health may recommend." Id. We believe that these parole provisions ought to afford those committed to the treatment center ample opportunity to be heard on the issue of alternative, less restrictive, modes of confinement. See generally Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980). Of course, if one who has been committed under G. L. c. 123A, Sections 5 and 6, is wrongly confined to the treatment center though less restrictive facilities would be adequate, or is wrongly deprived of the opportunity for parole from the treatment center, other remedies unrelated to G. L. c. 123A are available. See, e.g., Andrews, petitioner, 368 Mass. 468 (1975) (habeas corpus); Thompson, petitioner, 5 Mass. App. Ct. 282 (1977) (same).

3. Equal Protection.

The petitioner also contends that our interpretation of the discharge provisions of G. L. c. 123A, Section 9, would violate his right to equal protection guaranteed by the State and Federal Constitutions. Specifically, the petitioner argues that those who are deemed mentally ill under G. L. c. 123 have a right to an annual review of whether placement in an institution less restrictive than Bridgewater State hospital would be appropriate, see G. L. c. 123, Section 8 (b) and (d); Commonwealth v. Nassar, supra, whereas there is no correlative right for sexually dangerous persons committed to the treatment center under G. L. c. 123A. The petitioner contends that this disparity is impermissible under our decision in Andrews, petitioner, 368 Mass. 468 (1975), where we held that "any significant procedural rights granted to persons involuntarily committed under c. 123, must be extended to persons involuntarily committed under c. 123A, Section 6." Id. at 481. See generally Baxstrom v. Herold, 383 U.S. 107, 114-115 (1966).

Our holding in Andrews, supra, is limited to those cases where there are unjustified differences in statutory schemes

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which have "generally similar functions and effects." Id. at 480. Because confinement at the treatment center as a sexually dangerous person, and civil commitment to Bridgewater State hospital, do not have "generally similar functions and effects," we conclude that the differences in the availability of less restrictive confinement under c. 123 and c. 123A are fully justified.

The Bridgewater State hospital is reserved for those who, if not retained "in strict custody," "would create a likelihood of serious harm." G. L. c. 123, Section 8 (b). See also G. L. c. 123, Sections 7 (b) and 13. As we recognized in Nason v. Superintendent of Bridgewater State Hosp., 353 Mass. 604, 608-609 (1968), "Bridgewater . . . is designed for inmates deemed to constitute a danger to themselves or to others if confined outside of a maximum security setting." Thus, confinement at Bridgewater is inappropriate for those not requiring maximum security, see Bradley v. Commissioner of Mental Health, 386 Mass. 363 (1982), and individuals committed there are entitled to regular opportunities to be heard on the prospect of placement at another less confining mental health facility. See G. L. c. 123, Section 8 (b) and (d).

In contrast, patients at the treatment center are not all characterized by a need for strict security, but instead by the nature of the mental disorder from which they suffer. See G. L. c. 123A, Section 2. Some sexually dangerous offenders need maximum security, see G. L. c. 123A, Section 6A, while less restrictive confinement is appropriate for others. Accordingly, the regulations at the treatment center recognize the varying requirements of its patients by providing that they "shall be housed in the least restrictive conditions which are consistent with . . . security needs." 104 Code Mass. Regs. Section 8.01 (2) (1982). See also Section 8.03 (3). The treatment center is thus divided into separate "wards" of varying degrees of restriction, and a patient is to be assigned to that ward where the "level of security best matches the security needs indicated by the patient's physical and mental condition." 104 Code Mass. Regs. Section 8.10 (1) (1982). In short, unlike Bridgewater State hospital, the treatment center itself can provide a less restrictive environment

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for those not requiring maximum security. The flexibility of the environment at the treatment center diminishes the need for periodic review of alternative institutions. Therefore, we conclude that the differences between the relevant sections of G. L. c. 123 and G. L. c. 123A, providing for less restrictive modes of confinement, are rationally sustainable, see Baxstrom v. Herold, supra at 111, and thus permissible.

Order denying petition affirmed.