Summary
This blog will inform readers of the history, implementation, and use of medical parole, also known as compassionate release, in Massachusetts. Medical parole allows correctional facilities to release terminally ill incarcerated individuals earlier than their sentence term. Despite a significant increase in applications during the COVID-19 pandemic, the approval rate for incarcerated individuals remains stagnant.
By: MacKenzie Huffman, JHBL Staffer
Milton Rice, a seventy-six-year-old individual incarcerated at Massachusetts Correctional Institution at Norfolk, applied for medical parole in March 2020 due to serious underlying health conditions that posed a fatal risk if he contracted COVID-19.[1] The Massachusetts Department of Correction (hereinafter MDOC) granted his medical parole on November 24, 2020.[2] The day after his release, he died of COVID-19 related complications.[3]
Medical parole, also known as compassionate release, allows individuals incarcerated in correctional facilities to petition for immediate early release based on their medical condition.[4] In Massachusetts, the Criminal Justice Reform Act, enacted in 2018, establishes a statutory right for all eligible incarcerated individuals to petition for medical parole.[5] Eligible parties include terminally ill and permanently incapacitated individuals who do not pose a public safety risk, and the right applies to all incarcerated individuals regardless of their previous crimes and remaining sentence.[6] An incarcerated individual need not prove incapability of performing all daily life functions; they can perform some daily tasks but still be so incapacitated that they do not pose a concern for the public.[7] Authorities typically take a lengthy time to consider a medical parole petition, often ranging from 100 to 120 days.[8]
The rate at which incarcerated individuals receive an approval of their medical parole petition is low, even when considering extenuating circumstances related to their medical conditions.[9] From 2018 to 2021, nearly 430 individuals submitted applications for medical parole, but only 47 received approval.[10] The number of applications for medical parole increased in 2020 following the onset of the COVID-19 pandemic infecting nearly one in three individuals incarcerated in state prisons.[11] Despite this surge, authorities accepted medical parole applications at a low rate, making only minor adjustments to certain standards.[12] In Massachusetts, the number of medical parole petitions rose dramatically from 24 in 2019 to 136 in 2020; however, approvals only increased from four in 2019 to 27 in 2020.[13] Due to confined spaces and the high number of occupants in correctional facilities, over 2,700 incarcerated individuals across the United States have died from COVID-19 while in custody.[14] At the Massachusetts Correctional Institution in Norfolk, MA,s, nearly 500 incarcerated individuals became infected with COVID-19, and three died in a seven month period.[15] While there has been an increase in applications, the acceptance rate remains minimal considering the significant risks COVID-19 poses to incarcerated individuals and employees at these institutions.[16]
With the introduction of COVID-19 vaccines, however, officials are continuing to deny medical parole petitions.[17] Many authorities believe that the risk of contracting COVID-19 should no longer play a role in the determination of medical parole applications, as the introduction of vaccinations and new boosters will protect incarcerated individuals from dying from the virus.[18] A court, however, may not bar an incarcerated individual from applying and establishing eligibility for medical parole if they refuse the COVID-19 vaccine.[19] This rule effectively precludes any argument that MDOC could make as a basis for rejecting an incarcerated individual’s medical parole application by stating that the incarcerated individual could have been vaccinated, but opted out.[20] In 2023, MDOC received 56 requests for medical parole.[21] Nevertheless, officials granted release to only 16 applicants, leaving 38 requests denied.[22] Massachusetts prisons continued to report positive cases of COVID-19, regardless of incarcerated individuals’ vaccination status, until lawmakers repealed the statute requiring public disclosure of those cases in 2023.[23]
Officials should expedite the medical parole process to prevent cases in which incarcerated individuals die in custody or mere days following their release.[24] By relaxing certain requirements, namely the terminal illness or permanent incapacitation requirement, incarcerated individuals can humanely enjoy more of their last days.[25] Lawmakers can shorten the processing time for medical parole applications by encouraging administrative offices and officers to expedite the examination of records and streamline the decision process.[26] States can also prioritize cases that require immediate attention based on the severity of the applicant’s medical condition.[27] Massachusetts can and should implement various lowered requirements for medical parole to facilitate an efficient system that will decrease preventable deaths.[28]
Medical parole is a complex area that requires careful consideration of public safety while also demonstrating empathy for human life.[29] The principal purpose of the medical parole statute lies in providing incarcerated individuals with access to early release when their need to leave prison outweighs the need for them to stay.[30] COVID-19 presented serious challenges regarding the release of incarcerated individuals, yet authorities only slightly increased the number of granted medical parole petitions.[31] This already small number, however, decreased with the introduction of the COVID-19 vaccine, a trend that continues today.[32] Massachusetts authorities should expedite the granting of medical parole petitions, considering the circumstances of each incarcerated individual and the ongoing prevalence of COVID-19.[33] The legislature should relax certain requirements of the statute to prevent incidents similar to that of Milton Rice.[34]
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
MacKenzie Huffman is a third-year law student at Suffolk University Law School, interested in tax/business law and health law. She graduated with a bachelor’s degree in political science from Louisiana State University in 2021. Geaux Tigers
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[1] See Edward Lyon, Massachusetts Medical Parole Cases and COVID-19 Prisoner Deaths, Prison Legal News (June 1, 2021), https://www.prisonlegalnews.org/news/2021/jun/1/massachusetts-medical-parole-cases-and-covid-19-prisoner-deaths/ [https://perma.cc/B9K9-T6PB].
[2] See id. In Rice’s medical parole request, he stated that “with my underlying health conditions and compromised immune system, should I contract COVID-19 virus it would more than likely be fatal.” Id.
[3] See Ladrina Johnson, In Memoriam: Milton “Milt” Rice, Mourning Our Losses https://www.mourningourlosses.org/memorials/milt-rice [https://perma.cc/X9SD-CNXA].
[4] See What is Compassionate Release in the Prison System?, How To Just., https://howtojustice.org/im-going-to-prison/compassionate-release-prison/ [https://perma.cc/8FY7-PXFL].
[5] See Mass. Gen. Laws Ann. ch. 127, § 119(a). “Notwithstanding any general or special law to the contrary, a prisoner may be eligible for medical parole due to a terminal illness or permanent incapacitation.” Id. In order for an incarcerated individual to receive medical parole, an application must be submitted by the individual themselves or by their medical provider. Id. This application is reviewed by the superintendent of the facility in which the incarcerated individual is housed, and then by the commissioner of the Department of Correction. Id. Once released, the individual is monitored by a parole officer. Id.
[6] See Jessica Conklin, The Brief but Complicated Life of the Medical Parole Statute, Bos. Bar Ass’n (Nov. 18, 2020), https://bostonbar.org/journal/the-brief-but-complicated-life-of-the-medical-parole-statute/ [https://perma.cc/V5NJ-L57F]; see also 103 DOC 603.02(f) (2024) (noting administrative definitions, actions, and parties of medical parole statute). The assessment of the risk for violence uses standardized assessment tools that measure clinical prognoses, such as the Level of Service/Case Management Inventory assessment tool and/or the Correctional Offender Management Profiling for Alternative Sanctions (hereinafter COMPAS) assessment tool. 103 DOC 603.02(f) (2024).
[7] See McCauley v. Superintendent, Massachusetts Correctional Inst., Norfolk, 205 N.E.3d 295, 313 (Mass. 2023) (finding that release presents incompatibility with safety of society for first-degree murder convict).
[8] See 103 DOC 603 (2024). Once a medical parole petition has been filled out, the Superintendent of the correctional facility in which the incarcerated individual is housed will have twenty-one days to come to a recommendation. Id. This recommendation will be determined by use and consideration of the incarcerated individual’s proposed medical parole plan, a written diagnosis from a licensed physician, and an assessment of risk the individual poses to society. Id. This recommendation will be sent to the Commissioner of the Department of Correction, who will then have to conduct a parole risk assessment alongside the Parole Board. Id. The Commissioner has forty-five days to come to a decision regarding the acceptance or denial of the medical parole application. Id.
[9] See The Massachusetts Medical Parole Law, G.L. chapter 127, § 119A, Prisoners’ Legal Serv. of Mass., https://plsma.org/find-help/medical-parole [https://perma.cc/PNZ4-TLQ9]. Extenuating circumstances can include, but are not limited to, when an incarcerated individual is in extreme pain due to their illness, crowded hospital wings in facilities, inadequate care, and only being given a few months to live. Id.
[10] See Eric Boodman, Cement Head’s last fight: He was denied parole six times – until he was about to become a Covid-19 statistic, STAT News(Apr. 14, 2021), https://www.statnews.com/2021/04/14/deathbed-double-standard-its-hard-to-get-released-on-medical-parole-unless-you-have-covid19 [https://perma.cc/M2TE-NSHY].
[11] See id. As of April 2021, one in three individuals had COVID-19 in state prisons while nearly 39% of individuals in federal prison have had COVID-19, leading to a total of 525,000 positive infections across the United States prison system. Id.
[12] See 103 DOC 603.01 (2024). MDOC uses a standard where they would grant a medical parole petition if someone had a terminal illness or was permanently incapacitated. Id. However, after the onset of COVID-19, MDOC changed this standard from someone having an illness or disease, such as COVID-19, and therefore granting their petition to if an individual has a significant risk of contracting COVID and dying, and therefore granting their medical parole application. See Jennifer E. James et al., COVID-19 and the reimaging of compassionate release, 19 Int. J. Prison Health 20, 25 (June 14, 2022); see also United States v. Sherwood, 968 F.3d 951, 954 (6th Cir. 2021) (removing requirement of danger for medical parole petitions relating to COVID-19); Taylor G. MacDonald, Compassionate Release in the Time of COVID, 82 Ohio St. L. J. Sixth Cir. Rev. 1, 3 (2021) (noting new standard for medical parole release in 6th Circuit). “The pandemic has made prison sentences deadlier, and we must consider the policy rationale behind keeping sick and elderly prisoners locked up and at risk of death – a sentence not given to them by the courts, but by circumstance.” MacDonald, supra. See generally David Roper, Pandemic Compassionate Release and the Case for Improving Judicial Discretion over Early Release Decisions (2020) (arguing for increase in use of medical parole due to humanitarian needs). The health and safety risks posed by COVID-19 not only “increased the urgency of motions for compassionate release but have also multiplied the number” of incarcerated individuals filing a request. Id.
[13] See James et al., supra note 12 (comparing different states and their respective medical parole application and approval rates).
[14] See Eddie Burkhalter et al., Incarcerated and Infected: How the Virus Tore Through the U.S. Prison System, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/interactive/2021/04/10/us/covid-prison-outbreak.html [https://perma.cc/UHX2-U2F5].
[15] See Special Master’s Weekly Report at 69, Committee for Public Counsel Services and Massachusetts Association of Criminal Defense Lawyers v. Chief Justice of the Trial Court, Et Al., 484 Mass. 1029 (2020) No. SJC 12926 [https://perma.cc/BN8D-H4C5]. This number of deaths at Massachusetts Correctional Institution-Norfolk is relative to that of the week of December 10, 2020. Id.
[16] See id. From December 3, 2020, to December 9 of 2020, nearly 1,514 incarcerated individuals, 400 correctional officers, and 121 other staff across the Massachusetts Department of Correction system tested positive for COVID-19. Id.; see also Monik C. Jiménez et al., Epidemiology of COVID-19 Among Incarcerated Individuals and Staff in Massachusetts Jails and Prisons, J. of Am. Med. Ass’n Network Open (Aug. 21, 2020), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2769617 [https://perma.cc/HZ97-MENC] (noting COVID-19 positive cases in Massachusetts’ incarceration system). The rate of COVID-19 for incarcerated individuals in the Massachusetts incarceration system is almost three times that of the state’s general population. Jimenez et al., supra. This rate is also five times that of the general population in the United States. Id.
[17] See Autrey v. United States, 264 A.3d 653 (D.C. 2021) (holding vaccination status in life-or-death COVID-19 situations for consideration in medical parole cases); see also Page v. United States, 254 A.3d 1129, 1129 (D.C. 2021) (supporting grant of compassionate release temporarily for incarcerated individual who intended to vaccinate).
[18] See Colbert v. United States, 310 A.3d 608, 609 (D.C. 2024). In this case, the Appeals Court stated that the lower court failed to consider the advanced age of the individual as effecting their ability to receive the COVID-19 vaccination and vulnerability to the disease. Id.
[19] See id. (noting that refusing to vaccinate does not automatically bar eligibility for compassionate release); see also Stringer v. United States, 317 A.3d 875 (D.C. 2024) (denying release due to failure to show why vaccination would not mitigate risk of infection).
[20] See Colbert v. United States, 310 A.3d 608, 610 (D.C. 2024). A state’s Department of Correction must be able to show a reason why they refused to grant medical parole for an individual without incorporating their vaccination status into this decision. Id.
[21] See Maura T. Healey & Terrence M. Reidy, Department of Correction Medical Parole Annual Report for the 2023 Fiscal Year (2024).
[22] See id. Thirty-eight incarcerated individuals were denied medical parole for not meeting the definition of terminal illness or permanent incapacitation so debilitating as to not pose a risk to public safety. Id.
[23] See Mass. Gen. Laws. ch. 77, § 43. This replaced Mass. Gen. Laws. ch. 93, § 3. As such, the Massachusetts Department of Correction stopped publicly reporting COVID-19 tests on December 11, 2023. Id.
[24] See Deborah Becker, 2 Mass. Prisoners Hospitalized with COVID-19 Die a Day After Being Granted Medical Parole, WBUR News (Dec. 4, 2020), https://www.wbur.org/news/2020/11/30/massachusetts-prisoners-coronavirus-medical-parole-deaths [https://perma.cc/U85F-VZ6P].
[25] See 103 DOC 603.02 (2024) (defining terminal illness or permanent incapacitation).
[26] See generally 103 DOC 603 (2024) (detailing timeline of medical parole applications).
[27] See State Medical and Geriatric Parole Laws, Nat’l Conf. State Legis. (July 25, 2024), https://www.ncsl.org/civil-and-criminal-justice/state-medical-and-geriatric-parole-laws [https://perma.cc/TS4F-JX45] (comparing various state statutes on medical parole).
[28] Id. Nearly every state has a policy allowing for people with serious medical conditions to be eligible for premature parole. Id. However, certain states and territories, such as the District of Columbia, have lessened the requirements needed to lower the number of preventable deaths that occur in their prisons. Id.
[29] See James et al., supra note 12 (noting compassionate release contains both empathy and humanity).
[30] See James Michael Bowers, The Answer is No: Too Little Compassionate Release in U.S. Federal Prisons (2012). Parole boards often consider whether one’s medical condition outweighs their criminal history and reason for being in prison when determining a medical parole application. Id.
[31] See Taylor G. MacDonald, Compassionate Release in the Time of COVID, 82 Ohio St. L. J. Sixth Cir. Rev. 1 (2021) (noting requests for medical parole skyrocketed due to COVID-19). The COVID-19 pandemic presented circumstances that heighten the risk of developing serious medical illnesses for incarcerated individuals with underlying medical conditions. Id. at 3.
[32] See James et al., supra note 12.
[33] See Keri Blakinger, 31,000 Prisoners Sought Compassionate Release During COVID-19. The Bureau of Prisons Approved 36, The Marshall Project (June 11, 2021 at 6:00AM), https://www.themarshallproject.org/2021/06/11/31-000-prisoners-sought-compassionate-release-during-covid-19-the-bureau-of-prisons-approved-36 [https://perma.cc/3AFA-KFBP]. While waiting for a decision on their medical parole applications, thirty-five incarcerated individuals died in prison due to COVID-19 complications. Id.
[34] See Johnson, supra note 3.