Supreme Judicial Court weighs whether pension forfeiture is 'cruel or unusual' or an excessive fine

The Supreme Judicial Court heard argument in Gregory Rafferty v. State Board of Retirement on whether forfeiture of a public pension after a criminal conviction should be treated under Article 26 of the state Declaration of Rights as a form of "cruel or unusual punishments" or instead analyzed as an "excessive fine." Petitioner's counsel asked the court to remand the case so the district court could apply Article 26 independently rather than rely solely on federal Eighth Amendment precedent.

Petitioner's counsel (name not specified), appearing for Gregory Rafferty, told the court that Article 26 "contains no suggestion whatsoever that it is confined to the precedents which deal with conditions of imprisonment," arguing that the provision's text — which refers both to a magistrate inflicting "cruel or unusual punishments" and to imposing "excessive fines" — permits a state-law ground to treat pension forfeiture as punishment. Counsel emphasized historical materials in his brief and cited this court's earlier language in Bettencourt characterizing pension forfeiture as punishment: "A deprivation of property is a punishment," counsel said, and the court should therefore consider whether forfeiture of an entire pension amounted to an imposition of punishment under Article 26.

Assistant Attorney General Catherine Fahey, representing the State Board of Retirement, urged the court to apply the proportionality framework this court articulated in PRAF v. Bettencourt. Fahey said the Bettencourt factors are the appropriate test for Article 26 and for reviewing whether a forfeiture is "grossly disproportional" to the gravity of the offense. She told the court that "Bettencourt achieves the right result here" and that the state's pension-forfeiture statute and the record do not show a forfeiture grossly disproportionate to the underlying convictions.

During argument, several justices pressed both sides on practical and doctrinal points the court would need to resolve if it treats pension forfeiture under Article 26. The chief justice asked why Article 26 should be read to cover anything beyond duration or conditions of confinement; petitioner's counsel responded that the text does not limit the clause to confinement and that historical practice supports broader application. Justice Kafka and others queried whether the matter more naturally fits the excessive-fines inquiry, pointing to U.S. Supreme Court precedent (Bajakajian) and this court's Bettencourt framework as approaches that center proportionality.

Justices also raised fact-sensitive issues: Fahey confirmed on questioning that Rafferty had made an "option C" pension election before criminal charges were filed, and the justices asked whether a third party (for example, a spouse with a contingent benefit) could be affected by forfeiture and whether the court should consider such third-party effects. Fahey acknowledged those points had not been briefed below and offered to submit supplemental briefing on issues the court wished to explore.

Argument also focused on the statutory design of the pension-forfeiture remedy. Multiple justices noted that the state statute operates as an "all-or-nothing" forfeiture. Fahey acknowledged the statutory design is blunt but pointed out the legislature has not amended the statute since this court's Bettencourt decision; she also told the court it has authority to craft an appropriate remedy if it finds a constitutional violation.

Petitioner's counsel asked the court to remand so a lower tribunal could consider the Article 26 claim he said the district court failed to address. Fahey maintained the district court correctly applied proportionality factors and that the forfeiture here is not constitutionally excessive.

After extended questioning, the court invited further briefing and a short letter from the parties on issues raised during argument. The court did not announce any ruling from the bench; the matter was taken under advisement following oral argument.