Ten months after the Massachusetts Supreme Judicial Court ordered the Department of Correction to provide daily reports to shed light on the COVID-19 situation inside its facilities, questions are surfacing about how the agency is reporting medical parole data.
Part of the point of the court’s April order was to use medical parole as a virus prevention method, granting relief to the most vulnerable prisoners living in tight quarters. But several cases have surfaced where prisoners were released on medical parole or offered medical parole just prior to their death.
The DOC’s reporting to the court notes that 19 prisoners have died from COVID-19, including either in the past five weeks. This did not include two prisoners released on medical parole hours before their deaths during coronavirus outbreaks.
Milton Rice, a 76-year-old prisoner at MCI-Norfolk, died November 25 after having applied for medical parole in March. His wish was granted less than 24 hours before his death. A second prisoner at MCI-Shirley was similarly released. His attorney, Ruth Greenberg, told CommonWealth in November that her client was released “six hours before his death while on a vent at the hospital,” which was not reported as a death in DOC custody.
Joseph Messere, a 68-year-old MCI-Norfolk prisoner had served 40 years of a life sentence for second degree murder and was first eligible for parole in 1995, but had been denied five times. Realizing his age and bronchial asthma put him at risk for COVID, he requested medical parole in March 2020, and was denied in May. By December, Messere was hospitalized with COVID-19 and had been intubated.
The process of petitioning for and receiving a medical parole decision takes many months, but Messere’s attorney, David Apfel, recounted how the Parole Board and DOC called him and said Messere could be released even though he hadn’t initiated a new petition, saying “we really want you client released as soon as possible.”
The reason for the sudden rush to release, Apfel said, was the need to artificially reduce statistics of the number of incarcerated individuals dying of COVID-19 while in DOC custody. Apfel said he had no interest in “being complicit in their effort to rid themselves of Joe and to grant a meaningless parole,” and didn’t give the permission for Messere’s release. As a result, Messere’s death on December 31 was noted in the DOC’s death count for MCI-Norfolk.
A spokesman for the Department of Correction said the agency has modified its daily reports to the court to include data on COVID positive inmates who were released on medical parole. “The Department of Correction does not grant or deny medical parole based on any criteria other than those set by statute” said the emailed statement.
Apfel said the statement was insulting. “At least in the case of Joe Messere, if not many others, DOC only grants medical parole as a means of washing its hands of responsibility for those under its care and supervision, in a transparent effort to reduce the stats,” he said.
The statute mentioned by the DOC is a part of the 2018 criminal justice reform law authorized by the legislature, which allows for medical parole for terminally ill (likely to die within 18 months) and permanently incapacitated prisoners. “As a person’s medical condition changes, so may eligibility for medical parole: DOC may reconsider a decision based on new medical information,” said a DOC spokesman, although whether this thinking was applied to Messere’s case was not mentioned.
The law requires DOC commissioner Carol Mici to make a decision on medical parole requests within 66 days of receiving petitions, and corrections officials to develop a medical and housing plan in the event the inmate is released.
Advocates have argued the hurdles set by the DOC to acquire medical parole are far too stringent, leading to almost no one getting it. During a Wednesday night forum held by the nonprofit Criminal Justice Policy Coalition, Somerville Sen. Pat Jehlen said the agency is not complying with the legislation. “If you’re released hours before your death, that is not the intent of the legislation,” she said.
There have only been 46 medical parole approvals since last May, and it is unclear how many of those individuals have actually been released. Greenberg, who was also part of the forum, said many of those medical approval grants involved requests initiated pre-pandemic. She said she continues to have clients denied, including some on dialysis and bound to wheelchairs.
There is one well-reported instance where someone has received medical parole but still continues to live–John Stote, convicted of murder, had severe coronavirus symptoms and was granted release, triggering outcry from his victim’s family.
State tax collections amid the pandemic continue to surprise, coming in $492 million above the forecasted amount during January.
Gov. Charlie Baker says the Reggie Lewis Center in Roxbury will have neighborhood days, where only those from the surrounding community can get inoculated. It’s part of an effort to increase uptake of the vaccine among people of color.
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