State rules would limit eligibility for medical parole for seriously ill prisoners in Massachusetts

Via MassLive

By: Shira Schoenberg

Since Massachusetts created a medical parole program in April 2018, the state has approved only four requests to release terminally ill prisoners. Now, new rules being considered by the Executive Office of Public Safety and Security could limit the pool of eligible prisoners even further.

Speaking at a public hearing on Monday, Elizabeth Matos, executive director of Prisoners’ Legal Services, called a proposed new standard for eligibility for medical parole “extremely high” and “so unreasonably restrictive” that most prisoners with serious, debilitating medical conditions would be barred from it.

Eight state senators, led by Sen. Pat Jehlen, D-Somerville, wrote to Public Safety Secretary Thomas Turco asking him to change the proposed regulations. “It is very disappointing that these regulations appear to make it very difficult if not almost impossible to fulfill the intent of the law,” the senators wrote.

The medical parole law was passed as part of last year’s comprehensive criminal justice reform bill and went into effect in April 2018. The Department of Correction issued an initial policy in August 2018. In May 2019, the Executive Office of Public Safety and Security proposed new regulations to govern the program, and instituted them immediately as “emergency” regulations.

The law says prisoners can be eligible for medical parole “due to a terminal illness or permanent incapacitation.” In both cases, the illness or disability must be “so debilitating that the prisoner does not pose a public safety risk.”

The criteria proposed by the Executive Office of Public Safety and Security say the condition must be so severe that the person is “permanently incapable of committing a crime,” and that the condition requires the prisoner to be placed “in a specialized medical setting for long term care.”

Matos, several professors and attorneys and Deborah DiMasi submitted testimony to the Executive Office of Public Safety and Security opposing this definition. DiMasi is the wife of former House Speaker Sal DiMasi, who received medical release from federal prison.

They wrote that the standard is so high that it could, in theory, bar a quadriplegic from parole because if he has minimal use of his hands, a friend could give him a gun and he could pull the trigger.

The advocates also note that all four of the people approved for release so far on medical parole were to be released to hospice home care settings, not long-term care facilities. (One prisoner died before he was released.) It is also hard to place a prisoner in a nursing home.

“The practical effect of this requirement will be to virtually eliminate an entire category of prisoners from release on medical parole including those similarly situated to the only four individuals to have been released under the statute,” Matos and the advocates wrote.

Jehlen, who helped craft the medical parole law, and the other senators wrote that this definition “significantly warps the clear words of the statute and is a substantial threat to the public policy goals of releasing incapacitated and dying inmates into appropriate, less costly care settings.”

Felix Browne, a spokesman for the Executive Office of Public Safety and Security, said the purpose of the regulation “is to ensure the consistent administration of the medical parole statute through the application of uniform terms and processes,” and the final language of the regulation has not yet been determined.

“Monday’s hearing was part of the public process to consider comments on the proposed regulation, and all feedback to date will be considered as that work continues,” Browne said.

Both the senators and the prisoners’ rights advocates also object to additional bureaucratic hurdles placed on prisoners seeking medical parole.

For example, the rules require the Parole Board to approve any medical parole applications, rather than just the commissioner of the Department of Correction.

They place the burden on the prisoner to develop a medical parole plan, rather than on the Department of Correction.

“These are people who are incarcerated, debilitated or dying, often without access to the outside contacts who could help develop the plan,” Jehlen wrote in a second letter, which she submitted by herself in addition to the one signed by the other senators.

Tatum Pritchard, director of litigation for the Disability Law Center, says the regulations may violate the Americans with Disabilities Act in several ways. For example, they do not provide any way to help prisoners with disabilities apply for medical parole.

Several advocates noted at the hearing that prisoners with serious illnesses are the most expensive to care for and the least likely to reoffend.

Joel Thompson, supervising attorney at the Harvard Prison Legal Assistance Project, said for the elderly, the infirm, and those with dementia or serious illness, “Jails and prisons aren’t well designed for them. Not even close.”

Thompson said the proposed definition would exclude someone who is bedridden but could still commit a crime, like fraud. It would exclude someone with dementia who could still eat and go to the bathroom by themselves. “It’s so onerous, it’s hard to imagine who would qualify,” he said.