(a) If the judge makes the findings required by Rule 6(a), the court may then issue an order of commitment consistent with the terms and requirements set forth in G.L. c. 123, § 35 , which shall be for a period not to exceed 90 days. The order shall specify whether the commitment is based on a finding of alcohol use disorder, substance use disorder, or both. The commitment shall be to a facility designated by the department of public health. The order shall specify that the receiving facility, or any facility to which the respondent is transferred, is responsible for providing and maintaining custody of the respondent until expiration or termination of the order, as provided by law. 

(b) The judge shall include a provision in the order requiring the facility, or any facility to which the respondent is transferred, to provide the clerk of the committing court with notice, in the manner directed by the court, of the release, the transfer, or of any escape by the respondent. 

(c) The commitment shall be made to a facility approved by the department of public health for the care and treatment of individuals with an alcohol or substance use disorder. If (i) the judge finds that the only appropriate setting for the treatment of the respondent is a secure facility or (ii) the department of public health informs the court that there are no suitable facilities available for treatment licensed or approved by the department of public health or the department of mental health, the judge may commit the respondent to the Massachusetts correctional institution at Bridgewater, for an adult male respondent, or to a secure facility for women approved by the department of public health or the department of mental health, for an adult female respondent. 

(d) Upon issuance of a commitment order, the court shall notify the respondent that the respondent is prohibited from being issued a firearm identification card pursuant to G.L. c. 140, § 129B , or a license to carry pursuant to G.L. c. 140, §§ 131 and 131F , unless a petition for relief pursuant to G.L. c. 123, § 35 is subsequently granted.

July 22, 2015, effective February 1, 2016; amended July 20, 2016, effective September 6, 2016.

Commentary 

(2016) The 2016 legislation made several changes to the options available to committing courts and to how respondents are handled after commitment, all necessitating changes to the Uniform Rules. 

The amendments to Rule 8(a) and 8(b) recognize that the 2016 legislation granted the superintendents of treatment facilities plenary authority to transfer respondents between and among approved facilities. St. 2016, c. 8, § 4 . Accordingly, Rule 8(a) now extends the requirement for maintaining custody of the respondent to the superintendent of any facility to which the respondent is transferred. The means by which custody is provided, maintained, and described is exclusively within the discretion of the appropriate Executive Branch authority. It remains the case that no facility may release the respondent prior to ninety days absent a written determination that release of the respondent will not result in a likelihood of serious harm. 

Rule 8(b) has been amended so that the commitment order shall include a provision that facilities notify the court of any transfers, as required by the amended G.L. c. 123, § 35 . The rule continues the requirement that facilities notify the committing court of any release or escape, specifically providing that this duty falls upon the facility receiving a transferred respondent. The rule now clarifies that the notice must be made to the clerk of the committing court, and in the manner directed by the court in the commitment order. 

The amendments to Rule 8(c) implement the 2016 legislation’s prohibition on committing female respondents to the Department of Correction. St. 2016, c. 8, § 4 . The amended Rule 8(c) recognizes that adult females may be committed to a secure facility for women approved by the department of public health or the department of mental health. The amended Rule 8(c) also reflects the new statutory standard for commitment to the new secure facilities or, for adult men, to the Department of Correction. Finally, in light of the new transferability of section 35 respondents, it is no longer necessary that the commitment order specify a facility, although it may be convenient for the judge to specify to which facility a respondent will initially be sent.

(2015) Rule 8 does not set forth the specific terms required to be included in commitment orders issued under G.L. c. 123, § 35 . Those terms are set forth in the official commitment order form. Regarding those terms, the statue provides as follows: 

[T]he court may order such person to be committed for a period not to exceed 90 days, followed by the availability of case management services provided by the department of public health for up to 1 year; provided, however, that a review of the necessity of the commitment shall take place by the superintendent on days 30, 45, 60 and 75 as long as the commitment continues. A person so committed maybe released prior to the expiration of the period of commitment upon written determination by the superintendent that release of that person will not result in a likelihood of serious harm. Such commitment shall be for the purpose of inpatient care in public or private facilities approved by the department of public health under chapter 111B for the care and treatment of alcoholism or substance abuse. The person maybe committed to the Massachusetts correctional institution at Bridgewater, if a male, or at Framingham, if a female, if there are not suitable facilities available under said chapter 111B ; provided, however; that the person so committed shall be housed and treated separately from convicted criminals. Such person shall, upon release, be encouraged to consent to further treatment and shall be allowed voluntarily to remain in the facility for such purpose. The department of mental health, in conjunction with the department of public health, shall maintain a roster of public and private facilities available, together with the number of beds currently available, for the care and treatment of alcoholism or substance abuse and shall make the roster available to the district courts on a monthly basis. 

Rule 8(a) also includes a provision intended to eliminate any doubt that a commitment order issued under Section 35 requires that the receiving facility must hold the respondent in custody for the duration of the commitment, unless terminated by the facility's superintendent pursuant to the procedure set forth in  G.L. c. 123, § 35 , ¶ 4. 

Rule 8(b) requires the judge to include a provision in a commitment order requiring the receiving facility to provide notice to the court of the release of the respondent. Such notice may be useful to the court in addressing future issues concerning the respondent or petitioner. In the case of any escape, such notification permits the court to determine whether further action is advisable, such as the issuance of a warrant for apprehension. 

Rule 8(c) requires that commitment to the Department of Correction be limited to situations in which there is no facility approved by the Department of Public Health that is suitable and available. As Rule 8(c) reflects, commitment of a juvenile to the Department of Correction is never appropriate and may violate the Prison Rape Elimination Act. See 28 C.F.R. § 115.14(a)

Particular care is necessary when a respondent is subject to other criminal process, such as an unsatisfied order of bail. Commitment under section 35 maybe advisable for criminal defendants, especially where the respondent might otherwise be able to post bail before completing treatment in pretrial detention. In such circumstances, it is necessary that the respondent be returned to court upon release from the facility so that the court may ensure that the criminal process is respected and revisit the criminal process if necessary. When a criminal defendant is committed under section 35, the judge should make a bail determination at the time of arraignment and not defer the bail determination until after release from the section 35 commitment. Any changes to the bail order after successful completion of treatment can be addressed as a matter of course after treatment without visiting upon the respondent and the Commonwealth the uncertainty of unaddressed bail. 

Rule 8(d) addresses the firearm warning required by St. 2014, c. 284, § 15 .

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