Benjamin LaGuer and the cruel reality of medical parole
Dept. of Correction’s vigorous opposition is puzzling
THE CRUELTY Benjamin LaGuer endured through a lifetime of privation, isolation, and vilification lasted until the day he died in prison in the early morning hours after the 2020 election when the networks were calling Arizona for Joe Biden.
Whether you believe LaGuer was innocent or guilty of the charges against him, the end of his life showcased the challenges of medical parole in a correctional system seemingly hostile to the idea. The handling of his case represented the final chapter in a life filled with tragedy.
Convicted at the age of 20 for the 1983 rape of his elderly neighbor, he became a cause célèbre later that decade as questions about the fairness of the trial and his actual guilt mounted. In 1987, John King, then a reporter with the Associated Press, called the jurors and discovered blatant racism on the panel. The issue went all the way to the Supreme Judicial Court.
In 1997, LaGuer received a bachelor’s degree magna cum laude through the Boston University Prison Education Program and gained the life-long friendship and support of the university’s longtime president, John Silber. In 2002, a DNA test seemed to further implicate LaGuer, but several experts subsequently wrote about flaws in the testing which ignored “red flags” for contamination.
LaGuer passed away under lock and key in the correctional unit of the Lemuel Shattuck Hospital in Boston on November 4, 2020, at the end of a valiant battle with liver cancer. He was 57. He maintained his sense of optimism and wit for longer than initially expected. He was diagnosed in 2015 and his illness was deemed incurable in 2017. A letter supporting his application for medical parole in 2018 stated he had six months to live as of May 2 of that year.
Jeffrey Harris, a lawyer working on behalf of the Massachusetts Committee for Public Counsel Services, which provides lawyers for the indigent, had already been seeking to have the Parole Board revisit a decision denying LaGuer a new hearing through the regular process until April 2020. By that time, Harris argued, his client could be dead. As it turns out, Harris’s position was borne out by events.
But then the opportunity for medical parole became a possibility. Medical parole was tucked into the criminal justice reform bill Gov. Charlie Baker signed on April 13, 2018. Two weeks later, LaGuer was the first person ever to seek release under the provision.
Harris’s attention shifted to the Department of Correction, which was charged with administering the new law. LaGuer seemed “like he was the perfect person” to lead the way in accessing this fresh public expression of end-of-life compassion and a strategy for addressing the challenges of a graying prison population, said Harris. LaGuer had less than 18 months to live, a support network that included an offer of housing while he received treatment and hospice care, and the will to be an active participant in pleading his case.
Two months after they filed a petition for medical parole on June 26, 2018, Thomas Turco III, the commissioner of the Department of Correction, denied the petition. His denial came a day after he received a negative recommendation from Collette Goguen, the superintendent of the North Central Correctional Institution in Gardner. The statute calls for an individualized plan for what life on the outside would look like for a dying man, but the Department of Correction determined that since it wasn’t going to release LaGuer, there was no need for a plan.
LaGuer appealed the decision to the Supreme Judicial Court, but the high court remanded the case to Worcester Superior Court, where it landed on Justice J. Gavin Reardon Jr.’s docket in October 2018.
At issue was LaGuer’s contention that, by not generating a medical parole plan, the Department of Correction was not living up to the requirements of the law. In fact, LaGuer argued, it would be impossible to evaluate a petition for release without such a plan.
At about that time, LaGuer received an updated health report from his oncologist, Dr. Kevan Hartshorn, that his cancer was in remission but likely to return. The prognosis was that LaGuer could expect to live approximately another year. The prognosis was forwarded to the court and Reardon factored it into his decision on January 7, 2019, siding with LaGuer that the Department of Correction was obligated to create a medical parole plan before deliberating over an application for release.
Given LaGuer’s improved yet still dire outlook, Reardon essentially reset the clock. LaGuer could reapply and this time the Department of Correction would be obligated to assist in producing a fully developed plan before making a decision. In February, Harris traveled to Gardner to provide the superintendent with the plan LaGuer had put forward, which included living in the Danvers home of John Archer, a friend of more than a decade. The following week the Department of Correction filed its plan, which appeared to Harris to be a cut and paste job of the plan he had submitted, incongruous font and all.
On March 29, 2019, the Department of Correction again denied LaGuer’s petition. Carol Mici, who had become the commissioner, wrote in her decision that LaGuer’s health “had not sufficiently degenerated” to qualify for medical parole. “I do not find his medical condition to be ‘so physically debilitating that he does not pose a public safety risk,’” she said, quoting from the statute.
Mici said another consideration for her was LaGuer’s denial that he committed the crime for which he was incarcerated. LaGuer had repeatedly insisted he was innocent, rejecting a plea deal before trial and at four parole hearings since he became eligible for release in 1998.
Mici’s pronouncement set off a running battle between LaGuer and the Department of Correction over when LaGuer would be considered sick enough to be released. Mici affirmed her decision on September 13, 2019, in spite of an opinion from LaGuer’s physician that he had taken “a turn for the worse.”
As the year was ending, LaGuer went back to Superior Court, this time seeking relief from Mici’s “arbitrary and capricious” denial of his petitions in the face of mounting medical evidence that he didn’t have long to live. He called her decision an “abuse of discretion,” and argued the denial violated a constitutional ban on cruel and unusual punishment — in this case, denying a feeble human being the opportunity to die with friends and family at his side.
After a flurry of motions, a hearing date was set for February 5, 2020, but it was never held because earlier in the day the Department of Correction released LaGuer, presumably because it wanted to avoid the possibility of a precedent in which a judge orders an inmate released over the objections of the agency.
Archer and his assistant, Louis Levesque, who had also befriended LaGuer, met him at the prison gates in Gardner, where he emerged without restraints from behind walls and razor wire for the first time since his arrest in 1983.
They drove to Archer’s home in Danvers, in accordance with LaGuer’s medical parole plan. Now under the supervision of parole officers, LaGuer wore an ankle bracelet and couldn’t leave the house except to attend medical appointments or go to church with one of his sisters. He was barred from using the internet, a cell phone, or a camera.
People came to see him, and others, including his mother, who is in her 90s and lives in upstate New York, were planning visits. Among the friends who came was the journalist Christopher Lydon, who had corresponded and spoken with LaGuer over the phone for years. The host of Radio Open Source brought a voice recorder along and posted their discussion to his website.
Also during that month, with LaGuer’s permission, I retrieved his personal papers, packed into 10 cardboard boxes, from the prison in Gardner and brought them to my apartment in Amherst with the intention of delivering them to him.
Archer thought things were going well and that he had established a good relationship with parole officials who assured him that was the case. But during a routine visit with the parole officer on March 3, 2020, LaGuer was taken into custody and shipped back to prison in Gardner. There were no goodbyes. A few reasons were given, the most serious being that during a surprise visit by the parole department to Archer’s home one evening, LaGuer’s breath measured a .031 percent blood alcohol level and that he subsequently lied about having had a glass of wine with dinner.
Harris went back to work on getting LaGuer out of prison so he wouldn’t have to die alone. Harris filed a number of petitions, none of which were approved. He did succeed in getting a Zoom hearing with Superior Court Justice Janet Kenton-Walker on October 12 with LaGuer unable to participate because he was too sick. Kenton-Walker took the matter under advisement, where it remained until the clock ran out on LaGuer’s remarkable life in the early morning hours of November 4, 2020.
Reflecting on this process, Harris said it was “not surprising” that the district attorney would oppose release. “He was convicted of rape. They see it as their job to get as much out of the sentence as they can.” But the vigor with which the Department of Correction opposed medical parole was puzzling.
LaGuer had conceded that he violated a condition of release by drinking even a small amount of wine and then lying about it to his parole officer. But, Harris added, “from a human perspective it should be shocking that they put him back in prison for something so small,” especially since there is no indication that alcohol was “an animating factor” related to the crime for which he had spent nearly his entire adult life behind bars. Keep in mind LaGuer insisted he did not commit the crime and questions continue to persist about his guilt.
“He was dying of liver cancer,” Harris said. “I don’t think anyone thought he was going to be drinking wine. He probably felt like, ‘I only have a few months to live…’”
Could it have been that Harris, like many before him, had come under the spell of a master manipulator? “I am quite familiar with that perspective and at first I had my own doubts and had my defenses up,” said Harris. “I have spent a ton of time with a lot of people who have tried to do that kind of thing. … At the end of the day, I don’t know, but I doubt he was lying to me and manipulating me.”
Harris said he would support efforts to illuminate the question of whether LaGuer committed the crime of which he was convicted. “If you believe that it’s truly a wrongful conviction case, it is absolutely one of the most devastating miscarriages of justice in the history of Massachusetts because he was subjected to so much retribution,” he said. “I think it’s a real travesty that the Parole Board and the DOC dragged their heels in this case. I think they definitely did that.”Harris, however, said LaGuer was gratified for the one month he was out of jail. “He really enjoyed his month of freedom,” said Harris. “The amazing thing about Ben was that it was all he wanted. He just really wanted another shot at freedom and he got it, [even though] it was not all he should have gotten.”
Eric Goldscheider is a freelance writer who has researched and written about the case. LaGuer’s papers are now part of the Robert S. Cox Special Collections and University Archives Research Center in the W.E.B. Du Bois Library at UMass Amherst. The executor of LaGuer’s estate plans to donate his legal files to the collection, which is available to students, journalists, scholars, and others interested in LaGuer’s life, legacy, and related topics.