Federal officials said Thursday that the health of former House speaker Salvatore F. DiMasi “appears to be worsening over time” and that he may need to consider alternative feeding methods as a result of the tongue cancer he has battled while in prison — reasons listed in court filings Thursday to bolster his request to leave prison early.
“He takes extra time for his feeding and should be monitored for choking episodes, and on that basis he has a diminished ability to function in a correctional setting,” Darrin Howard, general counsel for the US Bureau of Prisons, said in an affidavit.
The court filing was in response to an inquiry by US District Judge Mark L. Wolf, who last week demanded more information about DiMasi’s health and the exact legal standard under which prosecutors have recommended he be freed under a “compassionate release” program. The judge also questioned whether the 71-year-old is receiving preferential treatment because of his political connections, noting the Bureau of Prisons rarely recommends a prisoner’s early release. Wolf, who will decide whether DiMasi should serve his entire sentence or be sent home, scheduled a hearing for Tuesday.
In the Thursday filing, federal prosecutors denied that DiMasi is receiving special treatment. First Assistant US Attorney William Weinreb noted that DiMasi’s first application to be released early was rejected, before his condition worsened.
Weinreb argued that the request to release DiMasi meets the criteria for the federal compassionate release program that allows for the Bureau of Prisons to recommend the early release of a prisoner based on a new “extraordinary” condition that was not considered at the time the inmate was sentenced.
In DiMasi’s case, according to court records, he learned he had a cancerous tumor on the base of his tongue in April 2012, months after he began his sentence. The tumor metastasized and spread to the left side of his neck and lymph nodes, according to court records. He underwent 35 rounds of radiation amid six chemotherapy cycles over four months. The cancer went into remission, but the radiation treatments caused an esophageal stricture that interferes with his ability to eat without choking. Doctors have recommended a pureed diet with honey-thick liquids, according to the court records.
DiMasi has also battled prostate cancer while in prison, though Howard said in his affidavit that the recommendation for DiMasi’s release was based on the tongue cancer and esophageal stricture that have led to his “diminished ability to function in a correctional setting.”
In response to Wolf’s request for prosecutors to cite the legal reasons for releasing DiMasi, prosecutors did not argue that he is terminally ill. Instead, Weinreb cited a category of the federal compassionate release program relating to elderly inmates with medical conditions that allows for the early release of inmates who are at least 65; have served half of their sentence; have a serious medical condition for which conventional treatment promises no substantial improvement; and who are experiencing deteriorating mental or physical health that diminishes their ability to function in a prison.
“DiMasi meets all of these criteria,” Weinreb said in the court filing, adding that, “To the government’s knowledge, no court has ever denied a motion for compassionate release on the merits” since the program was enacted.
The filing also states that DiMasi’s family has established a treatment plan that would allow for him to stay with his wife and step-son at their home in Melrose, under the care of his wife, step-son, and DiMasi’s brothers.
If DiMasi is released, it would cut two years off his prison sentence. He was sentenced in 2011 to eight years for using his power as House speaker to steer $17.5 million in state contracts to a Burlington computer software company in exchange for $65,000 in kickbacks.
Separately on Thursday, the Bureau of Prisons defended its decision to admit one of DiMasi’s codefendants, Richard McDonough, to a drug rehabilitation program that will allow him to be released from prison a year earlier than expected.
Wolf, saying McDonough had never admitted to a drug and alcohol program before he was sentenced, questioned whether the former lobbyist had fabricated his addiction so that he could be released early. The judge said he had not known about McDonough’s scheduled release in January 2017 until he began to review DiMasi’s case.
In a court filing, Sharon Kotch, a drug abuse program coordinator at the federal prison at Fort Dix, N.J., said McDonough provided doctor’s reports from before he was indicted in 2009 that showed he was drinking half a bottle of wine, 6 to 8 ounces of vodka, and 1 to 3 beers a day on workdays. McDonough, 71, was also abusing Ambien, a sedative, and disclosed that he had experienced symptoms of alcohol withdrawal and that his addiction was interrupting his home and work relationships.
‘DiMasi meets all of these criteria. To the government’s knowledge, no court has ever denied a motion for compassionate release on the merits.’
Kotch reported that, based on her 10-year experience as a psychologist and on the medical guidelines for determining a substance abuse disorder, she determined that McDonough suffered from alcohol abuse disorder and that he “qualified for participation in the” Residential Drug Abuse Treatment Program, she said in the court filing.Milton J. Valencia can be reached at firstname.lastname@example.org. Follow him on Twitter @miltonvalencia.