Raymond Harmon was already down to 96 pounds, a bed-bound, terminally ill cancer patient with a DNR on his medical chart, and a lifer with a GPS bracelet on his ankle, when Correction Commissioner Carol Mici denied his request for medical parole. Medical parole in his case would have simply meant moving him into hospice care at the same hospital where he was already housed.
Harmon died three weeks later.
Among the reasons given by the commissioner for denying the prisoner’s request, according to Harmon’s lawyer, Ruth Greenberg, was that he “might be harmed by the angry family of the victim” of his crime, a 1985 murder in Lowell. The commissioner also “considered evidence that the governor of Massachusetts does not himself support the release of homicide offenders to medical parole.”
But: “This is not a factor the Commissioner should consider and this Court should say so,” Greenberg urged the state’s Supreme Judicial Court in her brief.
Greenberg is correct. To consider the governor’s beliefs would be a violation of both the letter and the spirit of the 2018 Criminal Justice Reform Act and of an SJC ruling just last January aimed at telling the DOC that the medical parole provisions of that law are to be followed.
The SJC heard several cases this week, each seeking to clarify what was supposed to be a new and more humane way to deal with compassionate release petitions — and in the process to save the state the estimated $320,000 a year that it can cost to house terminally ill and debilitated prisoners.
But “the promise of medical parole . . . remains a cruel illusion for far too many sick and dying prisoners,” according to the amicus brief filed by Prisoners’ Legal Services of Massachusetts.
The Correction Department has indeed raised procedural delay to an art form.
A separate case, brought on behalf of two other inmates, Raymond Vinnie and Robert Malloy, raises the issue of needless delay even after medical parole has been granted but before an inmate is released.
The department got slapped down in January when the SJC, in a unanimous ruling, threw out most of the DOC’s medical parole regulations, including one that put the burden on inmates to gather their own medical data.
“The Legislature did not intend to place this burden on those so poorly able to bear it,” the decision by the late Chief Justice Ralph Gants said then.
But waiting out a dying inmate as it turns out isn’t all that difficult. Greenberg noted that absent a court order, the department routinely takes a full 90 days to “provide an already prepared administrative record to a reviewing court,” a process that in reality “could not possibly exceed one hour.” But one that certainly cuts into “the time remaining on the planet for the terminally ill.”
And if the inmate dies in the process of that judicial review, the department argues the case is now moot.
As of last month, when the Correction Department filed its brief, 33 state prison inmates and one county jail inmate had been approved for medical parole under the new law, nearly all of them since that last SJC decision. But Greenberg insists, “far more than 35 have died in custody” during that same period.
Greenberg and Prisoners’ Legal Service are using the cases of Harmon and another inmate who died while the department was considering his petition to implore the court to come up with a better way. That would mean shorter time frames and ending what Greenberg called the “Groundhog Day” of lower courts ordering the DOC commissioner to reconsider a case rather than just ordering the commissioner simply to grant the parole request.
It would also mean that once parole is granted, the DOC would be required to have a plan for the inmate’s release — even if that means using a public health facility like Tewksbury State Hospital as a facility of “last resort.”
Sure, there are those who believe that life in prison should mean just that — and apparently our governor is one of them. But arguments about both compassion and cost-saving matter, as does the law. The Department of Correction has spent the past two years attempting to thwart the 2018 law, and several lower courts have already said so in ruling on individual cases. The DOC isn’t above the law. A compassionate governor would now tell them that. If not, it falls to the state’s highest court to set things right — once again.
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