Commissioner Override

Commissioner Override

HomeBlogMental HealthCommissioner Override

Mental Health and Criminal Proceedings

About the author: Joseph Simons is an experienced criminal defense attorney practicing in Massachusetts.  Leading a boutique defense firm, Simons has developed a substantial niche practice advocating for people suffering from mental illness who end up in the criminal system.  His cases have led to notable decisions in trial courts across the state, from dismissals to not guilty verdicts by “lack of criminal responsibility” (formerly referred to as “not guilty by reason of insanity).

Psychiatric Commitments / Competency to Stand Trial

After a defendant is found incompetent to stand trial, the trial court judge has the authority to order him or her to Bridgewater State Hospital or another mental health facility.  The initial observation period may last up to 40 days.  During that period, the Department of Mental Health (DMH) or Bridgewater State Hospital may petition the court for the defendant’s further commitment.  A hearing must be commenced within 14 days of filing, unless the defendant requests a continuance.  The District Attorney must also be notified and has a right to be heard at all commitment hearings.

We have the right to review the medical opinions and other relevant records from our clients’ evaluations.  That said, we do not have to rely on only a court-appointed evaluator.  Instead, we routinely retain the services of an independent forensic psychologist or psychiatrist to aid us in a full understanding of our client’s mental health.  And of course, our clients and their families play a critical role in our advocacy. 

There are times when a client disagrees with the evaluations.  In fact, in one such case, I successfully argued against the sole court-appointed psychiatrist without the use of our own expert witness (long story), and convinced the judge that even though the expert testified that my client was incompetent to stand trial, my client was, in fact competent.  The judge agreed, and found my client competent.  It was the right decision in that case.  That was a rare position for me to take, especially without our own expert.  Every case is different, and having handled countless cases involving mental health, I have found that there is simply no one-size-fits-all response to a competency hearing. 

An important note about private psychiatric evaluations is that typically we are not required to turn over such reports unless we are going to call the witness at the competency hearing.  If we decide to call the expert witness, our client waives the constitutional privilege against self-incrimination in terms of the contents of such reports.

Criteria for Commitment

The court can order a defendant to be committed to a DMH or private psychiatric facility if the moving party has proved each of the following elements beyond a reasonable doubt:

  1. The defendant is mentally ill;
  2. The failure to retain the defendant at a facility would create a likelihood of serious harm by reason of mental illness; and
  3. No less restrictive alternative to hospitalization is appropriate and available in which to treat the defendant.


In order for a male defendant to be committed to the Bridgewater State Hospital, there are two additional elements.  The moving party must also prove that:

  1. The defendant is not a proper subject for commitment to a DMH facility; and
  2. The failure to retain the defendant in strict custody would create a likelihood of serious harm, by reason of mental illness.


What is a commissioner’s override?

Under the current law, the commissioner of correction can override an order of commitment to DMH if the commissioner certifies that such confinement is necessary to “insure his continued retention in custody.”  G.L. c. 123, § 18(a).  Under Section 18, there is no need for a court finding that the defendant requires such strict security beyond a reasonable doubt.  The override provision of Section 18 is probably unconstitutional as a violation of the separation of powers, but will remain in place until challenged in the appellate courts.  The provision appears to allow the executive branch to ignore an order of the judiciary.  “The Legislature cannot ‘supersede’ a judgment of a court by its direct declaration to that effect.”  In re Opinion of the Justices, 234 Mass. 612, 621–22 (1920).

Need An Attorney? Simons Law Office Can Help.

Use the form below to contact some of the top criminal defense attorneys in Boston. Get the legal help you deserve.

Call us 24/7 at 781.797.0555 or fill out the form. Send us a message and we'll get back to you as soon as possible. We take pride in returning calls quickly.