Extraordinary medical release in the Criminal Justice Package


Before the recent criminal justice reform legislation, Massachusetts stood as one of the last states without a statutory “compassionate release” or “medical parole” program. Medical parole policies are intended to benefit prisoners with chronic health conditions by giving them the opportunity to petition for and to be granted parole before the completion of their sentence, so long as they do not pose a public safety risk. As prisons across the U.S. continue struggling to provide adequate care for a growing number of aging and ailing inmates, this legislation will help save money for our taxpayers while also providing better treatment for individuals who suffer from terminal illness and permanent incapacitation. A recent study by the Pew Charitable Trusts found that annual costs of incarcerating individuals who are 55 and older with chronic and terminal illnesses to be “two to three times that for all others on average.” The statistics paint an analogous picture here in the Commonwealth. For example, the cost to incarcerate an individual at one of the state’s maximum-security prisons, Souza-Baranowski Correctional Center, averages $64,211 per year, while the cost to care for an individual at the Lemuel Shattuck Hospital Correctional Unit averages $283,749 per year.

While the state prison population in Massachusetts has dropped from 11,723 in 2012 to 9,207 as of January 2018, the number of incarcerated individuals age 55 and older has risen by about 18 percent over the same period. Last year there were about 1,580 of these 55-and-over inmates in Massachusetts state prison – accounting for 17 percent of Massachusetts’ total state prison population. This percentage is noticeably higher than the national average of 11 percent, according to a 2016 Bureau of Justice Statistics report. It is important to note that, due to many factors, incarcerated individuals often age more quickly than the general public. This results in higher rates of medical issues than non-incarcerated people of the same age and numerous premature deaths every year. Given their age and medical hardships, it is unsurprising that this population of incarcerated individuals is considered among the least likely to re-offend when released, according to state and federal data. It is with these facts in mind that the legislature decided to include language for a medical parole program within An Act relative to criminal justice reform.

Qualifications of Medical Release

The legislation allows medical parole for two categories of individuals: 1) Incarcerated individuals who suffer from a physical or cognitive incapacitation that appears irreversible, and 2) Incarcerated individuals who suffer from a terminal illness that is reasonably expected to result in death within an 18 month timespan. Additionally, the permanent incapacitation or terminal illness must be

so debilitating that the incarcerated individual does not pose a public safety risk.

Petitioning for Medical Release

In order to be considered for medical parole, a petition requesting release must be submitted in writing. The process of petitioning for release, and the scope of who can submit a petition, is nearly identical whether the incarcerated individual is housed in a state correctional facility or in a county house of correction or jail. In a state correctional facility, the superintendent of the facility shall consider an incarcerated individual for medical parole “upon petition by the prisoner, the prisoner’s attorney, the prisoner’s next of kin, a medical provider of the correctional facility or a member of the department’s staff.” Similarly, in a house of correction or jail, a sheriff shall consider an incarcerated individual for medical parole “upon a written petition filed by the prisoner, the prisoner’s attorney, the prisoner’s next of kin, a medical provider of the house of correction or jail or a member of the sheriff’s staff.”

Recommendation to the Commissioner of Correction

Within 21 days of receiving the petition, the superintendent or the sheriff is responsible for reviewing the petition and making a recommendation as to whether or not the individual should be released on medical parole based on the qualification listed above. The petition and the recommendation must be transmitted to the commissioner of the Department of Correction for a final, yet reviewable, decision. The recommendation shall be accompanied by: (i) a medical parole plan (including a proposed course and site of treatment, documentation from prospective medical providers, and evidence of a financial plan to pay for the treatment); (ii) a written diagnosis by a physician licensed to practice medicine; and (iii) an assessment of the risk for violence that the incarcerated individual poses to society.

Providing Notification to Interested Parties

Upon receiving the petition and recommendation, the commissioner shall notify the district attorney for the jurisdiction where the offense resulting in the individual being committed to the correctional facility occurred, the incarcerated individual, the person who petitioned for medical parole, if different from the incarcerated individual and, if applicable under chapter 258B, the victim or the victim’s family that the individual is being considered for medical parole. The parties who receive the notice shall have an opportunity to provide written statements, and if the incarcerated individual was convicted and is serving a sentence for murder (under section 1 of chapter 265), the district attorney or victim’s family may request a hearing.

Final Determination by the Commissioner of Correction

It is then up to the commissioner of correction to determine, within 45 days, whether or not the incarcerated individual’s medical status meets the definition of “permanent incapacitation” or “terminal illness.” In order to release the individual on medical parole, the commissioner must also determine that they “will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society.” The commissioner must accompany their decision by a statement of reasons for the decision and notify the same interested parties listed above at least 24 hours before the date of release.

The Role of the Parole Board

The parole board is responsible for imposing terms and conditions for medical parole that shall apply beginning on the date of release and extending all the way through the date upon which the individual’s prison sentence would have originally expired. The parole board will supervise the released prisoners and may revise, alter or amend the terms and conditions of a medical parole at any time. Furthermore, the parole board has the right to re-incarcerate them if they fail to comply with a condition of the medical parole or if they are recovering contrary to expectations.

Judicial Review is Only by Certiorari

All decisions denying or granting medical parole can be judicially reviewed by certiorari if a petition for relief is submitted to the Supreme Judicial Court or the Superior Court by an incarcerated individual, sheriff, or superintendent.

Certiorari is a civil action that provides a remedy to correct errors in proceedings that would not otherwise be subject to review by motion or appeal. The court will correct “only those errors which have resulted in manifest injustice to the plaintiff or which adversely affected the real interests of the general public.” Murray v. Second District Court of Eastern Middlesex, 389 Mass. 508, 511 (1983).

Enforcement, Administration and Data Collection

The secretary of the Executive Office of Public Safety and Security is responsible for promulgating any additional rules and regulations that are necessary to enforce and administer the medical parole program. Furthermore, the commissioner and the secretary shall file an annual report with members of the state Senate and House of Representatives detailing the number and nature of the denials and grants of medical parole for the prior fiscal year.

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