February 10, 2022

In light of the news conference today about “ending the medical parole loophole for murderers,” Prisoners’ Legal Services of Massachusetts would like to address misperceptions surrounding the medical parole process and highlight the importance of ensuring access to it.

In 2018, the Massachusetts Legislature enacted the medical parole statute as part of the Criminal Justice Reform Act, requiring the Department of Correction (DOC) and Sheriffs to release certain qualifying prisoners who are terminally ill or permanently incapacitated and who do not pose a risk to public safety. In doing so, the Legislature recognized that the continued incarceration of extremely ill prisoners would increasingly burden taxpayers and compromise the health and safety of the most fragile people in custody. This is particularly true now due to the current COVID-19 pandemic.

While the medical parole statute brought Massachusetts closer in line with the compassionate release policies of other states, eligible prisoners continue to face significant barriers to the medical parole process that prevent them from petitioning for or receiving the relief to which they are entitled. Massachusetts should look to fully effectuate the medical parole statute from 2018 to improve access to alternatives to incarceration rather than championing measures to curtail it.

When the medical statute was passed, excluding prisoners serving life sentences was specifically considered and decided against. The same should happen now. Aging prisoners, who are often the ones most suited to medical parole, are frequently serving life sentences without the possibility of parole. At the beginning of 2020, over 1,000 prisoners were serving life sentences without parole in Massachusetts, more than half of whom were aged 50 or over. Allowing these individuals to age and ultimately die in the custody of the DOC, which is ill-equipped to provide the costly medical care and accommodations they need, is simply bad policy. Condemning someone to life-without-parole may seem like justice, but real justice centers healing, not retribution.

The public safety mechanisms built into the statute already set an extremely high bar for release. Under the medical parole statute, individuals must be either terminally ill or permanently incapacitated, and in either case, so debilitated that they do not pose a risk to public safety. In addition to the individual risk assessments DOC is required to conduct on all potential medical parolees, studies indicate that the rate of recidivism falls dramatically as individuals age, and that it is almost 0% for individuals over the age of 65.

Moreover, Massachusetts taxpayers would be required to shoulder the ever-increasing costs required to maintain a constitutionally-adequate level of care, as healthcare costs make older prisoners multiple times more expensive to incarcerate than younger ones.

The story below further illustrates the importance of improving access to medical parole:

Mr. Smith is a 56-year-old African American man who was serving a natural life sentence. He became a quadriplegic during the crime for which he was incarcerated. During his decades of incarceration, his physical condition sharply declined due to lack of care such that he was totally bedridden and suffers from contractures so severe that staff are unable to move his body into a sitting position. In early 2020, DOC granted Mr. Smith medical parole (which PLS had petitioned for immediately after the medical parole law passed in 2018), clearing the way for his transfer to a placement in a facility. On August 5th, 2021, after years of ongoing advocacy efforts and court actions, Mr. Smith was finally transferred to a care facility.

The shortcomings of the medical parole process can best be addressed by current legislation pending in the state house, bill H. 2448 and S. 1599. This bill would remove obstacles to the medical process by clarifying eligibility determinations, providing access to cognitively incapacitated persons, ensuring a clear path to placement of eligible prisoners, and encouraging prompt resolution of court challenges to denials. You can learn more about this legislation here.