Medical parole for prisoners doesn’t mean immediate release
SJC to consider whether delays are legal
RAYMOND VINNIE, serving a life sentence for murder but incapacitated by colon cancer and a stroke, was granted medical parole from MCI-Norfolk. But weeks passed, and Vinnie was not released.
Although his daughters in Georgia offered to care for him, Vinnie and the Department of Correction sparred in court over whether he could be released to Georgia and whether he was too sick to be cared for by his daughters. The DOC arranged an evaluation at a Massachusetts medical facility, which took time.
Vinnie was granted medical parole on May 4, 65 days after he submitted his petition for medical parole, in accordance with a time frame laid out in state law. But he was not released and sent to Georgia until June 19, 46 days after parole was granted.
State law requires the corrections commissioner make a medical parole decision within 66 days of receiving a petition. During that time, corrections officials are required to develop a medical plan for the inmate, indicating where they will live and who will provide their health care. But what happens if that plan is insufficient, or does not pan out?
“It doesn’t serve the public safety and welfare to release them to the street. Especially given the fact they have significant medical concerns, it certainly doesn’t serve their interest to be released to the street,” Christopher Gaskill, an attorney representing the Department of Correction, told the SJC justices.
But Ruth Greenberg, an attorney for Vinnie and Malloy, argued that there are alternatives to the streets, and correction officials need to make contingency plans, not simply keep inmates in custody indefinitely. Making both a short-term and a long-term plan, she told the court, “is what you do for your dad. It’s what you should do for prisoners.”
The Massachusetts Legislature authorized medical parole for terminally ill and permanently incapacitated inmates as part of the 2018 criminal justice reform law. But its implementation has been controversial, with advocates for prisoners arguing that the Department of Correction is trying to frustrate the intent of the law and limit its applicability. The latest court case sheds light on the difficulties that come even after medical parole is granted.
According to the Department of Correction’s court brief, as of September 11, 33 state prison inmates and one county jail inmate had been granted medical parole under the new law. One died before release, three have pending cases and the rest have been let out. Most went to private homes, with eight sent to public nursing home facilities.
However, only nine of those prisoners were released within 66 days of their parole application – the timeline for a decision outlined in the state’s medical parole law.
On average, it took 27 days between the time a decision was made to grant the prisoner medical parole and their actual release date.
Greenberg, who has represented numerous medical parole applicants, argues that the law creating the 66-day process for approval of medical parole sets out a clearly defined time frame that the Department of Correction must adhere to. “Appropriate release planning, by statute and regulation, must occur within the sixty-six days allotted by the medical parole calendar, not after, not at whim at some random, later, never defined, never limited time, defined only by a requirement that the Department of Parole does its best,” Greenberg wrote in her court brief.
While correction officials must submit a medical parole plan before the commissioner makes a decision on medical parole, Greenberg said the plans are sketchy and are not done in collaboration with the prisoner’s attorney and family. “They say things like, ‘the guy might want to live with his sister.’ They’re not fleshed out medical parole plans,” she said.
But the Department of Correction says developing a plan is not so simple.
For example, one inmate was approved for medical parole January 11, but 76 care facilities rejected him. According to the department’s brief, 25 facilities said they did not accept medical parole patients, 31 had no available beds or were not accepting new patients, and 11 said they could not accommodate his needs or he did not meet the criteria for admission. Eight reviewed his records, then denied him admission.
Another inmate was approved March 20 and accepted into a facility that takes MassHealth. But the inmate has refused to comply with MassHealth requirements that he place a financial settlement that he got from the Department of Correction’s former medical provider into a trust.
Some nursing home facilities will not accept inmates convicted of murder or sex crimes, or those undergoing methadone treatment for drug addiction.
The Department of Correction says there are several reasons a prisoner’s release on medical parole might be delayed. Some facilities will not evaluate whether to accept an individual until after they are granted medical parole. Applying for MassHealth can take time. Getting approval by an interstate commission to transfer an inmate out-of-state takes time. There also might be delays waiting for a guardian to act. COVID-19 has created other opportunities for delay – for example, a COVID-positive inmate or one who is quarantined cannot be released. Many facilities require a COVID-19 test before accepting someone.
“As everyone who ever made plans knows, plans don’t always come to fruition the way they thought they would,” Gaskill said.
Justice Scott Kafker sharply questioned Greenberg about what would happen to a gravely ill inmate if they were released without a proper plan in place.
“We need this person to have a safe place to go because these are deathly ill people. They need a place to get appropriate medical treatment and a place to stay,” Kafker told Greenberg. “What happens if everyone does the best they possibly can and those two things aren’t in place? Do we order them home?”
Greenberg responded that correction officials need to make contingency plans, and if nothing else is available, they can be sent to a public hospital run by the Department of Public Health – or even to a private hospital, with MassHealth coverage.
Kafker said the issue of placing terminally ill prisoners “is not easy.” “In generalities I find this thing much easier than when we actually look at facts,” he said. “How many places take first degree murderers, or repeat sex offenders?”
But Kafker also questioned Gaskill about why the Department of Correction had so much trouble placing inmates. “Shouldn’t the commissioner be monitoring the entire system for availability ahead of time?” he asked. “The Legislature wants people released so they can die at home or die out of prison. It doesn’t make sense for me that we’re waiting to the tail end of this when it’s a systemwide problem.”
Gaskill said it is “a chicken and an egg situation” since a majority of facilities will not consider whether to accept someone until the person has already been granted medical parole.
Parole Board attorney Randall Ravitz urged the court to allow a “reasonable” time period that gives the board some flexibility in ensuring a proper placement. For example, Ravitz questioned what would happen if a parole plan were lined up at a facility that went out of business. Releasing the person with nowhere to go would endanger the inmate and others.
Justice Frank Gaziano suggested having a “fail-safe” option – such as a public hospital run by the Department of Public Health – where an inmate can be sent if everything else falls through. “Is it too simplistic or desirable have a fail-safe?” Gaziano asked. “Rather than keep the person in prison or kick them out on front steps of Cedar Junction, you can go to Shattuck or another place,” he said, referring the state prison in Walpole and the state-run Lemuel Shattuck Hospital in Boston.Ravitz said that “would be a solution.”