JOHN PHILIP BROWN vs. COMMISSIONER OF CORRECTION & another. [Note 1]

ABRAMS, J. We hold that a Superior Court judge correctly declared that art. 12 of the Massachusetts Declaration of Rights "prohibits confinement in the state prison at Walpole of the plaintiff, a prisoner who has not been indicted and who has not waived indictment." [Note 2] Thus, the Commissioner of Correction

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(commissioner) could not transfer an unindicted prisoner to MCI Walpole, pursuant to G. L. c. 127, Section 97. [Note 3] On appeal, the commissioner asks us to overrule that portion of Jones v. Robbins, 8 Gray 329 (1857), which holds that a person may not be sentenced to the State prison unless that person has been indicted by a grand jury. The commissioner urges us to hold that he may transfer any sentenced prisoner to the State prison pursuant to G. L. c. 127, Section 97, even if the prisoner's conviction is based on a complaint. We decline to depart from the rule of Jones v. Robbins, supra.

There is no dispute as to the material facts. On July 23, 1981, after pleading guilty in the District Court to four complaints of breaking and entering, larceny, and possession of burglarious instruments, the plaintiff was sentenced to four concurrent indefinite terms at the Massachusetts Correctional Institution, Concord. See G. L. c. 279, Section 31. The plaintiff was never indicted for those offenses. He remained at MCI Concord for about three months, whereupon he was transferred to MCI Walpole as a "serious safety and security threat." [Note 4] See G. L. c. 127, Section 97. Except for a brief transfer to the Southeastern Correctional Center at Bridgewater in early 1982, the plaintiff

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was housed at MCI Walpole until his release on parole on October 31, 1983. [Note 5]

The plaintiff began the instant action seeking monetary and injunctive relief in the Superior Court on November 12, 1982. He claimed that his physical confinement at MCI Walpole violated his right, guaranteed by art. 12 of the Massachusetts Declaration of Rights, to be free of "infamous punishment" except on an indictment. A judge denied the plaintiff's motion for a temporary restraining order, and the plaintiff's subsequent motion for a preliminary injunction was denied on December 22, 1982. A single justice of the Appeals Court denied the plaintiff's petition for relief (G. L. c. 231, Section 118), on February 14, 1983. The parties filed cross motions for summary judgment, and on September 19, 1983, a judge of the Superior Court granted partial summary judgment for the plaintiff. The judge ruled that G. L. c. 127, Section 97, "insofar as it authorizes the defendant [commissioner] administratively to transfer an inmate serving a Concord sentence to Walpole, is unconstitutional if the inmate was not indicted and did not waive indictment." The plaintiff amended his complaint, on December 22, 1983, striking his demands for injunctive and monetary relief and substituting a prayer for declaratory relief. Final judgment was entered on January 12, 1984. [Note 6] The commissioner appealed. Both parties filed applications for direct appellate review. We granted their applications. We affirm.

The plaintiff appropriately relies on this court's decision in Jones v. Robbins, 8 Gray 329 (1857), for his proposition that "it has been black-letter law since 1857 that article 12 prohibits

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punishment in the state prison of a person who has not been afforded the right to indictment or presentment by a grand jury." Indeed, the Jones court's explication of art. 12 of the Declaration of Rights led it "to a strong conclusion of the general understanding of the legislators and jurists of Massachusetts, that punishment in the state prison is an infamous punishment, and cannot be imposed without both indictment and trial by jury." Id. at 349. That conclusion has been reaffirmed in recent years. See Lataille v. District Court of E.Hampden, 366 Mass. 525, 531-532 (1974). See also Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U. L. Rev. 887, 924 n.220 (1980). The plaintiff argues syllogistically that, if punishment in the State prison cannot be imposed without indictment under Jones, and if MCI Walpole is the "state prison," G. L. c. 125, Section 1 (o), [Note 7] see Commonwealth v. Graham, 388 Mass. 115, 123 (1983), then his confinement without indictment at MCI Walpole was in violation of art. 12.

The commissioner contends that the Jones rule should be confined "to the rights and protections of an accused criminal defendant." He argues that such rights do not include that of "a state sentenced inmate not to be transferred to MCI Walpole at any time . . . unless the criminal procedure which initiated the state custody included an indictment, or waiver of same." The commissioner maintains that such a right would impede, without justification, "the unfettered authority [of the executive branch] to transfer a state inmate to the state prison, once that inmate has been sentenced and delivered into the custody of the defendant Commissioner of Correction."

We reject this reasoning. Article 12 prohibits the sentencing of a criminal defendant to State prison without indictment. The exercise by the executive branch of "unfettered authority," under G. L. c. 127, Section 97, to transfer a criminal defendant to MCI Walpole at a date subsequent to sentencing would seriously

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undermine the protection afforded by art. 12. We recognize the legitimate penological purposes of G. L. c. 127, Section 97, as well as the commissioner's broader duty to "maintain security, safety and order at all state correctional facilities . . . ." G. L. c. 124, Section 1 (b). In the instant circumstances, however, art. 12 demands that the Commonwealth anticipate the security risks presented by the criminal defendant. In the event that such risks indicate the advisability of confinement in the State prison, the Commonwealth may confront the defendant at the outset with the full gravity of his potential punishment and proceed against him by indictment.

A criminal defendant may, of course, waive indictment. See DeGolyer v. Commonwealth, 314 Mass. 626, 632-633 (1943); G. L. c. 263, Section 4A, as appearing in St. 1934, c. 358, later amended by St. 1979, c. 344, Section 18. The commissioner here maintains that that, in fact, was what the plaintiff did: "By pleading guilty in District Court plaintiff Brown acknowledged that the state had probable cause and a proper foundation upon which to proceed." But the plaintiff could not waive a right which he did not possess. "Because the defendant tried in District Court is not subject to a sentence to state prison, there is no right to be proceeded against by indictment." Reporters' Notes to Mass. R. Crim. P. 3 (b), Mass. Ann. Laws, Rules of Criminal Procedure at 23 (1979). See G. L. c. 218, Sections 27, 27A (d), as amended through $no$St. 1979, c. 344, Section 3 (District Court may not impose sentence to State prison).

The commissioner contends, nonetheless, that the plaintiff's guilty pleas were an "affirmative act of making the request" that the District Court retain jurisdiction, see G. L. c. 263, Section 4, and, as such, constituted a waiver of the right to indictment. The decision to retain jurisdiction, however, is entirely that of the judge. Corey v. Commonwealth, 364 Mass. 137, 143 n.9 (1973). That decision must be made before the criminal defendant may enter a guilty plea. Once the decision to retain jurisdiction is made by the judge, there is nothing a defendant may do. Thus, the commissioner's claim of waiver has no merit.

Finally, the commissioner argues that the Jones rule is an anachronism. The Jones court described confinement in the

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State prison as follows: "The convict is placed in a public place of punishment, common to the whole state, subject to solitary imprisonment, to have his hair cropped, to be clothed in conspicuous prison dress, subjected to hard labor without pay, to hard fare, coarse and meagre food, and to severe discipline." Jones, supra at 349. Much has changed since 1857. Nevertheless we agree with the Superior Court judge that "although the differences between confinement at Walpole and at other correctional institutions may have diminished, Walpole, as a practical matter is the maximum security prison in the state which houses the most serious and dangerous criminals." Thus, the State prison retains the "character of infamy" and the Jones rule remains viable. Id.

Judgment affirmed.