SJC voids medical parole regulations

Rules DOC must be more helpful to inmates

THE SUPREME JUDICIAL COURT issued a ruling Tuesday that will make it easier for Massachusetts prisoners to request medical parole, which is sometimes called compassionate release.

The court held that several regulations issued by the Department of Correction dealing with medical parole are void because they are onerous and conflict with the intent of state law.

Ruth Greenberg, an attorney for one of the inmates who brought the lawsuit, said the Department of Correction has been “intransigent” until now in granting medical parole. “They have embraced a policy of what we call delay, deny until they die,” Greenberg said.

Jason Dobson, a spokesman for the Department of Correction, said the agency is reviewing the decision.

Massachusetts instituted medical parole, in which a terminally ill or permanently incapacitated prisoner can be given compassionate release, in the 2018 criminal justice reform law. But very few inmates have successfully used the program.

In the first year that medical parole was available, 33 inmates applied for medical release and only four requests were granted.

Advocates for prisoners’ rights have said the Department of Correction has been too strict in how it interpreted the law, which is why so few prisoners have actually been released. Greenberg cited the example of one man who was hospitalized for palliative care with metastatic prostate cancer; his petition was dismissed because he did not have a notarized doctor’s diagnosis.

“They have delayed at every possible legal and illegal opportunity so that the terminally ill will die before their petitions can get to a courtroom,” Greenberg said.

Two inmates – Joseph Buckman and Peter Cruz – sued the Department of Correction. The Committee for Public Counsel Services, Prisoners’ Legal Services, the Massachusetts Association of Criminal Defense Lawyers, and the Disability Law Center all filed briefs supporting them.

Buckman, 73, has metastatic lung cancer. Cruz, 61, had end stage renal disease. Cruz died while the lawsuit was ongoing.

The inmates challenged Baker administration rules that required the prisoner to develop his own medical parole plan, allowed the jail superintendent to return an incomplete application without consideration if it lacked any one of several elements including the medical parole plan, and denied the prisoner access to certain supporting documents.

The unanimous SJC ruling voided the Department of Correction regulations that put the burden on the prisoner to develop his own medical parole plan. The ruling, written by Chief Justice Ralph Gants, said it is the responsibility of the jail superintendent to develop the plan, which includes details about how the prisoner will obtain medical care upon release.

“The preparation of a medical parole plan…would be a formidable task for even a young and healthy prisoner, given a prisoner’s limited access to the world outside prison,” Gants wrote.

Gants wrote that for a terminally ill prisoner to write such a plan would take significant assistance from a lawyer or relative, which not all prisoners have. The jail superintendent, on the other hand, has access to a prisoner’s medical records and has staff experienced in assisting prisoners with reentry plans.

Gants also criticized a department rule allowing a superintendent to return a petition to an inmate as incomplete. “For prisoners with little time to live, a superintendent’s delay may be the equivalent of a denial,” Gants wrote.

Under the ruling, a superintendent will have to consider any petition, whether or not it is complete. The superintendent will have 21 days after the petition is submitted, a deadline included in the state law, to develop the medical parole plan and obtain a written diagnosis for the inmate.

The Department of Correction told the court that the 21-day deadline will be “unworkable.” Gants acknowledged the burden is “formidable,” but he said “the superintendent is in a far better position to meet this burden than a permanently incapacitated or terminally ill prisoner.”

The decision also gives the inmate the right to obtain a copy of the superintendent’s recommendation and supporting documents, including the medical parole plan, the diagnosis, and a risk assessment.

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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.

Jeffrey Harris, a private attorney who wrote a brief for the Committee for Public Counsel Services in support of the inmates, called the decision a “clean sweep” in favor of the inmates.

“We thought that the Legislature created a law that was pretty clear, and the SJC agreed with us, that the burdens that are created in the law really must fall to the DOC and not to people who are sick and dying,” Harris said.