A federal judge appeared open Tuesday to releasing former House speaker Salvatore F. DiMasi from prison two years early under a compassionate release program, saying he would have considered the former speaker’s ailing health when he sentenced him in 2011, had he known he would battle two cancers while incarcerated.
“I intended to give him a long sentence, I didn’t mean to give him a life sentence,” US District Judge Mark L. Wolf said in a federal courtroom crowded with DiMasi supporters, including his wife and two stepchildren.
Federal prosecutors have recommended approval of DiMasi’s petition for early release due to illness, prompting the legal review by Wolf. During the 90-minute hearing, Wolf weighed what he agreed is a humane choice —
“It’s important he be treated equally, the same as any similarly situated inmate. Not better, not worse,” the judge said.
Wolf also questioned whether he should order DiMasi to be confined to his home over the next two years, saying it would ensure that he receive the health-care monitoring he insists he cannot get in prison. DiMasi’s treatment for tongue cancer has left him unable to swallow food without choking, and he needs monitoring during mealtimes, according to his lawyers.
Wolf, who presided over DiMasi’s public corruption trial in 2011, did not set a deadline for his decision on whether to release DiMasi, though he acknowledged the “urgency” of it.
Wolf sentenced DiMasi to eight years for helping a Burlington software company win $17.5 million in state contracts in exchange for $65,000 in kickbacks. Under that sentence, DiMasi, 71, was scheduled to be released in November 2018.
DiMasi learned he had tongue cancer in early 2012, just months after he was incarcerated, and he underwent a series of chemotherapy treatments that gravely affected his esophagus and his ability to swallow. He has since undergone multiple procedures to help expand his esophagus in an effort to reduce the choking but doctors have said he may need a feeding tube, prison officials said. He also battled prostate cancer last year, though his lawyers say his inability to swallow without choking is the reason he cannot remain in prison.
In October, federal prosecutors, working on behalf of the US Bureau of Prisons, recommended DiMasi be released under a rarely used compassionate release program, which allows for a judge to reconsider a sentence based on new, extraordinary circumstances. Prosecutors have not argued that DiMasi is terminally ill, but say he is eligible for the program because he is elderly, has a severe illness, and has served more than half of his prison sentence.
Wolf called the request “personally unprecedented” in his 31 years as a judge, saying neither he nor most of his colleagues have ever been asked to release a prisoner early under the program — fueling his speculation that DiMasi was benefiting from his political connections.
“The court always has a responsibility to see that procedures were followed, that standards were met,” Wolf said Tuesday.
Four years ago, the Bureau of Prisons was criticized by the Department of Justice and human-rights watch groups for rarely recommending compassionate release for prisoners: In the decade before 2012, the bureau recommended the release of an average of 24 prisoners a year. In 2013, the bureau expanded eligibility for the program and the number of recommendations has nearly tripled.
Last year, the bureau approved 99 requests for a reduction in sentence, out of 230 applications.
In response to queries by Wolf, prison officials could not immediately say how many inmates with medical conditions similar to DiMasi’s have applied for the compassionate release program, though they said that 11 people have been released since 2013 under the same expansion of the program that made DiMasi eligible. Of those 11, six inmates had similar medical care classifications as DiMasi, though their ages and the lengths of their sentences were not immediately known.
First Assistant US Attorney William Weinreb, speaking on behalf of the Bureau of Prisons, told the judge Tuesday that the bureau has safeguards in place to prevent the type of political favoritism that Wolf had earlier questioned in DiMasi’s case. Weinreb said that several top Bureau of Prisons officials had to agree to the recommendation.
Charles Rankin, a lawyer for DiMasi, added that the Bureau of Prisons initially rejected the request and only agreed to recommend his release after doctors reconsidered the seriousness of the effects the tongue cancer treatment had on his esophagus, and how it was worsening.
Rankin called for DiMasi to be released to the care of his wife and stepson in their home in Melrose. DiMasi’s brothers would also be able to help with his care, he said.
In response to the judge’s question about possible home confinement for two years, Rankin argued that such micromanagement would not be needed, and he assured the judge he would not see DiMasi celebrating at a North End restaurant or a “grand party” following his release from prison, calling DiMasi a “frail, thin, chronically ill man.” The judge said he would still consider the restriction.
“This is not a game . . . I have statutory authority to make certain decisions, and there are certain responsibilities in connection with that,” Wolf said.