SJC to correction officials: Act faster on medical parole
Rulings address timing of releases, allowance of new petitions
By 
THE SUPREME JUDICIAL COURT on Wednesday made two rulings that will require the Department of Correction to act more quickly on medical parole cases under certain circumstances.
The court invalidated a regulation that made it harder for prisoners to reapply for medical parole if their health worsened. It also laid out clearer guidelines for how long the Department of Correction can take to release someone after their medical parole petition is approved.
The court decisions – which stemmed from three separate cases – are the latest salvo in a long-standing debate over whether the state is properly implementing the 2018 medical parole law. Advocates for prisoners have said the DOC has consistently worked to frustrate the Legislature’s intention and avoid granting medical parole, even as state officials say they are doing their best to make complicated decisions about prisoners’ health and life expectancy. The SJC in January 2020 already forced an overhaul of the department’s regulations.
“For more than a year, people suffered and died waiting because the Commonwealth created a regulation that they knew was wrong and enforced it until today,” said Ruth Greenberg, an attorney who represented the prisoners in the latest cases.
The SJC ruling invalidating a department regulation came in the cases of Raymond Harmon and Brian Racine, which were considered together. The SJC ruled that the men’s cases were moot because they had died, but it still addressed the larger questions posed by their cases.
In a unanimous decision written by Justice Frank Gaziano, the SJC invalidated a rule that said a prisoner whose application for medical parole was denied could not submit a second petition if their health worsened.
The DOC had allowed a prisoner whose health got worse to ask for reconsideration, but not to submit a new petition. Greenberg said a reconsideration request does not have a timeline, so correction officials could delay their decisions. Allowing a prisoner to submit a new petition would implicate a tight time frame laid out in state law, requiring a final decision within 66 days. It would also give the petitioner certain rights, like the right to see the administrative record.
In Racine’s case, no decision was made on his application for reconsideration for 93 days. “This inexplicable delay effectively eliminated Racine’s opportunity to seek judicial review before his death, four days after the denial,” Gaziano wrote.
The Department of Correction wrote in its brief that it has agreed, after the Racine incident, that requests for reconsideration should be subject to the statutory timeline. The court ruled that the department can offer the use of a streamlined procedure for applying for reconsideration in order to reduce its administrative burden, but it must also consider a new petition if a prisoner submits one. In either case, Gaziano made clear that “it is vital that the DOC act on the request in a timely manner,” within the 66 days prescribed by law.
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The second case, Robert Malloy and Raymond Vinnie vs. Department of Correction, related to how long the department can keep someone incarcerated after their medical parole petition is granted. While state law requires the correction commissioner to rule within 66 days, it can take more time for prison officials to implement a release plan.
“For terminally ill prisoners entitled to spend their final days in freedom, each day is critical,” Justice Scott Kafker wrote in his decision. “Delaying release deprives prisoners granted medical parole the opportunity to spend their remaining time with their families or friends.”
The decision acknowledged the Department of Correction’s claims that there are reasons for delays that are outside the agency’s control – like a lack of available nursing home beds, the time MassHealth takes to process medical insurance, or the need to coordinate with another state.
Kafker ruled that the department is not bound by an exact timeline for releasing a prisoner, and can hold someone beyond the 66 days that the commissioner has to rule on a petition. But the release must be done expeditiously. He wrote that short delays are allowed only if they are necessary to ensure an appropriate placement and compliance with parole conditions, and if they are due to forces outside the Department of Correction’s control.
But in an unusual concurring opinion written by Gaziano, with support from Justices Kimberly Budd and Serge Georges, the justices said they do not think the majority opinion goes far enough in forcing the Department of Correction to release prisoners expeditiously, because it does not specify a time frame for the release.
“In my view, to allow the release of severely, often terminally, ill prisoners to be delayed indefinitely — as long as the delays can be characterized as ‘reasonable,’ ‘practicable,’ short-term,’ or beyond the control of the DOC — is to impose too lax a standard for compliance with the statute’s strict timelines,” Gaziano wrote. “This lack of any defined standard likely will propagate further delay and produce arbitrary results.”
Gaziano wrote that it would make little sense for the Legislature to lay out a strict 66-day window for approving a medical parole petition, then give the department full discretion as to when a prisoner is actually released.
Gaziano said he would have preferred to allow delays beyond the 66-day period only “in truly extraordinary circumstances.”
There were some high-profile cases of prisoners being released while on ventilators due to COVID-19, at times over their objections. But since the beginning of January, there have only been five medical parole petitions granted, according to weekly reports filed with the SJC by a special master in a separate case related to COVID-19 outbreaks in prisons. In total, the Department of Correction has granted medical parole to 47 people. “No one’s being released anymore,” Greenberg said.