Revised medical parole rules draw fire

Lawmakers, advocates say DOC makes releases too difficult

A SECOND ATTEMPT by the Department of Correction to develop medical parole regulations is running into blowback from lawmakers and advocates who say the Baker administration is continuing to block efforts to release medically incapacitated prisoners.

“The Baker/Polito administration seems to approach this program with an attitude of, at best, indifference to its effectiveness, or, at worst, open opposition to its goals,” wrote Sen. Pat Jehlen of Somerville and 15 other legislators in a comment on new draft regulations that were submitted to Secretary of Public Safety and Security Thomas Turco.

The Massachusetts Legislature instituted medical parole, in which a terminally ill or permanently incapacitated prisoner can be given compassionate release, as part of the 2018 criminal justice reform law. It is up to the Department of Correction to write the rules governing the program, and advocates have long complained that the rules make it too burdensome for a prisoner to actually be released.

The state’s initial regulations ran into problems. In the first 13 months they were in place, only four prisoners were actually released. The Supreme Judicial Court in January voided part of the regulations because they were onerous and conflicted with state law.

The Department of Correction crafted new regulations in the wake of the SJC decision, but those, too, are coming under fire, and multiple cases are set to be heard by the Supreme Judicial Court next month.

Jake Wark, a spokesman for the Executive Office of Public Safety and Security, said the proposed regulations bring medical parole into compliance with the SJC’s decision. He said the new regulations “address advocates’ concerns and protect public safety, and we will continue giving thorough consideration to all the input received during the public comment period.”

In a case the SJC decided in January, Buckman v. Commissioner of Correction, the SJC ruled that the department must change its rules to make it easier for prisoners to apply for medical parole. Among other changes, the SJC put the burden on the jail superintendent rather than the inmate to write a detailed plan for how the person will be cared for in the community.

Since the Buckman decision, the Department of Correction has drafted new regulations and is continuing to review and grant medical parole petitions, at a faster pace. As of March 15, the Department of Correction had approved 13 petitions, and by September 15, officials had approved 35.

But at a public hearing on the revised regulations on Wednesday, conducted online due to COVID-19, advocates said the rewritten regulations still place too many restrictions on the program, contrary to what legislators intended when they created medical parole.

“It seems that the new regulations continue to undermine and seem to attempt to dismantle the program or make it not work effectively,” said Jehlen, who helped craft the medical parole law.

Much of the testimony submitted by Jehlen and the other lawmakers focused on additional administrative hurdles that the department introduced into the parole process. For example, the Department of Correction instituted additional levels of review and new requirements for paperwork and hearings that are not in the law. “We don’t need extra administrative hurdles that serve no purpose,” Jehlen said.

Sheridan Cunningham, policy director at Harvard’s prison legal assistance project, in which students represent incarcerated people, said due to certain definitions in the regulations, the Department of Correction appears to be only approving people for release who are physically incapable of moving. “That’s a threshold very few people are going to be able to meet,” Cunningham said, adding that it precludes paroling people with debilitating cognitive conditions or people in pain with late-stage cancer, as long as they are capable of walking to the bathroom.

Lauren Petit, an attorney with Prisoners’ Legal Services, said her organization has represented prisoners who do not even know they are in prison. But she has often run into roadblocks. For example, if the prisoner has no guardian and is incapable of signing a release, it takes time to even get the records necessary to begin a petition. “It’s a very haphazard process the way it is,” Petit said.

Yet even with all the barriers, there have also been problems with at least one of the inmates who was released. Bob Barry, the son-in-law of a woman who was raped and left for dead in 1983, testified that his family was notified that the rapist was seeking medical release four times, and each time they protested. They ultimately learned the man was set to be released just days before he was let out. His parole was later revoked because he violated his conditions of release. “We were told he had months to live and was bedridden, but he walked into a parole office and was capable of violating parole conditions,” said Barry, who urged a more careful review of candidates for medical parole.

As the state considers revising the regulations in response to the public comments, the rules will also get another look by the Supreme Judicial Court, which is scheduled to hear arguments in two related cases in October.

In one case, Raymond Harmon and Brian Racine died while their petitions for medical parole were pending. Their attorney, Ruth Greenberg, who also argued the Buckman case, is contesting whether their cases are automatically moot because they died, or whether the courts can consider their cases in order to further develop the law surrounding medical parole for future inmates. Greenberg said in an interview that the department routinely delays medical parole cases until an inmate dies or releases an inmate immediately before a court hearing, so the court case becomes moot.

The case raises other questions about the rules, including whether the department can limit an inmate’s opportunity to file a second petition and under what circumstances the commissioner must consider changed medical circumstances.

The Department of Correction argues in its reply brief that the death of an inmate makes the case moot. It defends the regulations and argues that some of Greenberg’s questions should not be considered for technical reasons.

The SJC will hear a second case filed by Greenberg on behalf of Robert Malloy and Raymond Vinnie, who argue that the Department of Correction is improperly holding inmates in custody even after officials decide they should be released. Both inmates were granted medical parole, then held for weeks because corrections officials had not yet written and approved a medical parole plan to govern their releases.

The Department of Corrections has not yet responded in that case.

In some cases, decisions made by the DOC to deny medical parole have already been overturned by the courts.

In the case of Jerry Adrey, 71, a prisoner with advanced liver disease and other ailments, a Superior Court judge faulted the jail superintendent and corrections commissioner for failing to follow state law in numerous ways: by not establishing a medical parole plan for Adrey, failing to provide an assessment of the risk he posed to society, failing to explain changes in a doctor’s medical evaluation, and following the wrong legal standard in determining whether he was permanently incapacitated. Judge Peter Krupp ordered Adrey released on medical parole, a year after he first applied.

In the case of Abdul Jaleel Mahdi, 89, a Superior Court judge found corrections officials made a mistake in not concluding that Mahdi – who has dementia, needs a wheelchair, and has numerous medical conditions including congestive heart failure, diabetes, and kidney disease – was permanently incapacitated. The corrections commissioner cited the severity of his crimes – he was convicted of second-degree murder during an armed robbery and had numerous disciplinary infractions in prison – and opposition of the victim’s family in denying him medical parole. But Judge Thomas Connors wrote that, given Mahdi’s current incapacitation, “it is difficult to discern risk to public safety or prospect of law-breaking behavior” if he is released.

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Shira Schoenberg

Reporter, CommonWealth

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

Jehlen cited another case in her testimony in which the Department of Correction denied Alex Philips medical parole based on a wrong report, and the court had to intervene to let Philips submit another petition. He died of cancer 24 days after he was released.

Greenberg, who represented those three prisoners and multiple others seeking medical parole, said, “In my experience, the DOC has done everything legal and unlawful to frustrate the administration of the statute.”