Retirement – Forfeiture – Pension

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Where the State Board of Retirement decided that a state trooper convicted of work-related embezzlement must forfeit his pension benefits under G.L.c. 32, §15(4), the board’s decision should be upheld because the forfeiture is a fine, but not an excessive one, and is not cruel or unusual.

“The plaintiff, Gregory Raftery, brings this action in the nature of certiorari seeking review of the State Board of Retirement’s (retirement board’s) decision that he must forfeit his pension benefits under G.L.c. 32, §15(4), which provides that in no event shall any member of the State retirement system receive a retirement allowance ‘after final conviction of a criminal offense involving violation of the laws applicable to his office.’ A former trooper with the State police, the plaintiff faced Federal criminal charges after he falsely reported working over 700 overtime hours, received over $50,000 in unearned overtime pay, and attempted to conceal his conduct by issuing falsified motor vehicle citations. The plaintiff retired from the State police in March 2018, four months before he pleaded guilty in Federal District Court to one count of embezzlement from an agency receiving Federal funds, in violation of 18 U.S.C. §666(a)(1)(A).

“The plaintiff challenges the pension forfeiture under art. 26 of the Massachusetts Declaration of Rights as both an excessive fine and cruel or unusual punishment. We conclude that the forfeiture is a fine but not an excessive one under art. 26’s excessive fines provision. In so concluding, we adopt, for the purposes of art. 26 of our State Constitution, the United States Supreme Court’s multifactor excessive fines analysis under the Eighth Amendment to the United States Constitution.

“As for the plaintiff’s cruel or unusual punishment argument, we determine that it is without merit. Even assuming, without deciding, that the cruel or unusual punishment provision of art. 26, which we have historically applied only to terms and conditions of incarceration or other forms of physical punishment, applies to fines, including fines that have not been found to be excessive, the forfeiture here is not cruel or unusual. For the reasons stated infra, we affirm the decision of the District Court judge and the retirement board’s conclusion. …

“The plaintiff contends that the ‘text, history and purpose’ of art. 26 renders the total forfeiture of his pension an excessive fine within the meaning of art. 26’s second provision and its infliction a cruel or unusual punishment within the meaning of art. 26’s third provision. We disagree. A careful review of the text, history, and case law regarding art. 26 demonstrates that the pension forfeiture here is neither an excessive fine nor, assuming arguendo that the third provision applies to fines of the type at issue here, a cruel or unusual punishment.

“We begin first with an overview of the plaintiff’s argument and our response. The thrust of the plaintiff’s argument is his assertion that, writ large, the text, history, and purpose of art. 26 counsel in favor of more expansive protections versus those provided by the Eighth Amendment. As a general matter, this is a proposition with which we have expressed agreement, at least with respect to the cruel or unusual punishment provision. … But, in his proposed interpretation, the plaintiff erroneously elides the excessive fines provision with the cruel or unusual punishment provision.

“We conclude that the three provisions of art. 26 provide separate protections against different abuses and therefore require their own distinct analyses and applications. As the pension forfeiture in this case clearly falls within the protections of the excessive fines provision, we apply it in the first instance.

“We further conclude that the United States Supreme Court’s standard for evaluating excessive fines under the Eighth Amendment reflects our own understanding of the essential standards for evaluating disproportionality under the excessive fines provision of art. 26. We therefore adopt the Court’s reasoning due to its persuasive value, while emphasizing that we may further refine our art. 26 excessive fines jurisprudence in appropriate circumstances. … Applying this standard and addressing the plaintiff’s arguments, we discern nothing in the text, history, or case law regarding art. 26 that suggests the forfeiture here is an excessive fine.

“As for art. 26’s cruel or unusual punishment provision, nowhere does the plaintiff explain how the text and history of art. 26 support its application to the forfeiture at issue when that provision has been consistently applied to terms and conditions of incarceration, not fines. While he highlights differences between the text of art. 26 and that of the Eighth Amendment — that is, between ‘cruel or unusual’ punishment and ‘cruel and unusual’ punishment — and the underlying political theories of John Adams and James Madison, he does not offer a theory as to why these differences compel a result here under art. 26 that is different from that under the Eighth Amendment. Most importantly, the plaintiff does not meaningfully address the high standards we have set for cruel or unusual punishment, under which a punishment is unconstitutional ‘if it is so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity’ (quotation and citation omitted). Commonwealth v. Mattis, 493 Mass. 216, 221 (2024). Therefore, even if we were to assume, without deciding, that art. 26’s cruel or unusual punishment provision, in addition to art. 26’s excessive fines provision, applies to the forfeiture in the instant case, we conclude that such a forfeiture is not cruel or unusual.”

Raftery v. State Board of Retirement (Lawyers Weekly No. 10-097-25) (41 pages) (Kafker, J.) The case was reported by Wendlandt, J., sitting as single justice. Thomas R. Kiley (Jon J. Cubetus also present) for the plaintiff; Katherine M. Fahey for the defendant; Michael Walsh, for estate of Caroline Walsh, amicus curiae, submitted a brief; Alycia M. Kennedy, Christa Douaihy, Gabriel L. Fonseca and Taylor R. Largmann, for Springfield No One Leaves, amicus curiae, submitted a brief (Docket No. SJC 13646) (Aug. 7, 2025).

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