Convicted murderers James Carver, 57, and Martin McCauley, 65, have each spent nearly four decades in prison, but they long ago ceased posing any threat to the public. During that time, McCauley has had four back surgeries and now uses a walker and a brace. Carver was operated on for a brain tumor, a procedure that left him incontinent. He is reliant on a wheelchair and “needs assistance with dressing and feeding when he shakes with tremors.” He has also attempted suicide and been back and forth for stays at Bridgewater State Hospital twice.
But Carver and McCauley have both been denied medical parole by Correction Commissioner Carol Mici. The state’s highest court will hear arguments Friday in the two cases, which raise the question of whether the commissioner is abiding by a 2018 law, designed to provide an exit ramp for terminally ill or permanently incapacitated prisoners, or whether she’s going out of her way to avoid doing so.
“By the commissioner’s standard, no prisoner would qualify for medical parole unless they were debilitated to the point of being completely immobile, with no use of their hands or limbs,” according to an amicus brief filed in the cases by Prisoners’ Legal Services of Massachusetts, the Disability Law Center and the Committee for Public Counsel Services.
“The Legislature did not envision medical parole as a release mechanism only available in the most extreme cases, but rather as an essential tool for dealing with the Commonwealth’s rapidly aging prison population. The statute was designed to alleviate the Commonwealth’s burden of caring for dying or frail elderly prisoners, and to allow them to live out their final days in a more humane and medically appropriate community setting,” the brief notes.
Now, for the third time in as many years, the Supreme Judicial Court will be asked to judge the seriousness of the Department of Correction’s efforts at implementing a policy that this state was among the last in the nation to adopt.
The numbers alone are an indication that DOC isn’t exactly throwing open the prison gates for those who believe they qualify under the law. Between July 1, 2020, and June 30, 2021, the most recent year for which data is available, 203 inmates filed petitions for medical parole, of which 17 were granted. Two of those petitioners died prior to their release. Since the program began in 2018, only 56 prisoners have been granted medical parole. Among those, only two have been returned to custody — not for committing any criminal offense but for violations of the terms of their parole.
Among those who had their petitions denied, 44 have appealed their cases to superior court as allowed under that 2018 law. And that volume of appeals might have been what attracted the attention of the SJC to take yet another judicial look at the law’s implementation.
That, and at least five cases where superior court judges overturned the commissioner’s ruling and ordered DOC to release the inmates on medical parole. They included:
▪ Henry Bys, 71, imprisoned since 1973, confined to a wheelchair with “severe avascular necrosis in both hips” who required assistance for dressing and toileting. The court faulted Mici for focusing on Bys’ 1973 crime — the brutal murder of a hitchhiker in Northampton — as “the sum and substance of the commissioner’s public safety analysis,” adding “it is hard to imagine how he [Bys] could pose a public safety risk today by virtue of the details of that crime, committed nearly half a century ago.”
▪ Epiphany Lazarre’s petition was denied although he was diagnosed with an aggressive cancerous brain tumor that had already confined him to a wheelchair and was deemed terminally ill by two DOC physicians. The court found Mici’s decision arbitrary and capricious and directed his release.
▪ Dennis Daye, 71, imprisoned since his 1986 conviction for three murders, was paralyzed by a stroke, required the use of a wheelchair, and was dependent on nursing care in a DOC infirmary but was denied medical parole for disciplinary infractions brought against him “during his early years of incarceration.” A single justice of the SJC, raising issues about whether that was “consistent with statutory criteria,” sent the case back to the superior court.
Mici’s record is replete with similar instances — several prisoners suffering from dementia and requiring round-the-clock care, another who suffered a traumatic brain injury while in prison resulting in “severe cognitive impairment” — none were deemed fit for medical parole. Mici, who has been with the department since 1987, was named commissioner by Governor Charlie Baker in 2019.
There will always be those convicted of crimes so heinous that it would be tempting — say, for a correction commissioner, to look for a rationale to keep them locked up forever. Carver, for example, was convicted of starting a rooming house fire in which 15 people lost their lives. But then again his case is also being appealed with the help of the Boston College Innocence Program and that of the public defender’s Innocence Program on the basis that it used now “scientifically unfounded” theories on how the fire started.
The broader point is, Carver’s guilt or innocence is immaterial to the issue of medical parole. The law says the commissioner shall release those deemed so incapacitated that their further incarceration is both inhumane to them and a burden on the taxpayers.
Whatever future guidance comes from the SJC could be enormously helpful. But just as critical will be a fresh approach at DOC, which could be around the corner. The Democratic nominee for attorney general, Andrea Campbell, has made increasing transparency at the department, which she called a “black hole” of information, part of her election platform. She has pledged to make the department “more accountable” for its policies. Backed up by a new governor — who can name a new correction commissioner — that’s what it will take to enforce a law that cries out for better enforcement.
But those political changes will take time. Sadly, for some of those behind bars today, time is already running out.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.