Buckman v. Commissioner of Correction : Salvaging Massachusetts' Medical Parole Program

I. MEDICAL PAROLE IN MASSACHUSETTS

Compassionate release, or medical parole, is a program that permits early release of “terminally ill” or “permanently incapacitated” prisoners. ¹³ Medical parolees, like all other parolees, must abide by terms of release or else face arrest and potential reimprisonment. ¹⁴ On April 13, 2018, Governor Charlie Baker signed a 121-page criminal justice reform bill containing policy changes designed to make the Massachusetts incarceration system more “humane.” ¹⁵ The bill contained a long-awaited medical parole statute—making Massachusetts the forty-ninth state to enact such a program. ¹⁶ Attorney General Maura Healy praised the criminal justice overhaul as “putting justice in our criminal justice system and getting it right.” ¹⁷ Unfortunately, that promise rang empty for hundreds of terminally ill and permanently incapacitated Massachusetts prisoners counting on a sensible regulatory scheme around the new medical parole law.

The impetus for a Compassionate Release program is clear—Massachusetts is experiencing an aging prison population crisis, and the cost of caring for elderly prisoners is three times more expensive than the provision of health care to prisoners under the age of fifty. ¹⁸ However, for legislators promoting the program, cost was not the chief consideration. For instance, Massachusetts State Representative Mary S. Keefe believes that letting aging prisoners, specifically those who do not present a risk to public safety due to their infirmed or permanently incapacitated state, receiving parole is simply “the compassionate thing to do.” ¹⁹

Not all Massachusetts politicians greeted the law with enthusiasm. Governor Charlie Baker expressed reservations regarding the inclusion of prisoners with first-degree murder or sex offender convictions—persons more likely to age in prison due to longer sentences. ²⁰ The Governor's reluctance likely underlies the EOPSS slow rollout of the program. ²¹ The bill named EOPSS as the agency in charge of promulgating regulations for the medical parole program, and EOPSS failed to promulgate any regulations until a full year and three months after the law's passage. ²² Those flawed regulations are the subject of the SJC's opinion in Buckman.

II. UNLAWFUL REJECTION OF PETITIONS AND IMPROPER BURDEN SHIFTING

The medical parole evaluation process, according to G.L. c. 127, § 119A, contains three phases: (1) filing of the petition; (2) review of the petition; and (3) rendering of a decision. ²³ The chief procedural issues presented in Buckman, and the focus of this case comment, fall within the first phase. ²⁴ In the filing phase, a “terminally ill” or “permanently incapacitated” prisoner (or the prisoner's lawyer, next of kin, prison medical provider, or Department staff) submits a written medical parole petition. ²⁵ The statute defines “permanent incapacitation” as “a physical or cognitive incapacitation that appears irreversible, as determined by a licensed physician, and that is so debilitating that the prisoner does not pose a public safety risk.” ²⁶ Upon receipt of the written petition the superintendent of the correctional institution in which the incarcerated person resides “shall” evaluate the petition within twenty-one days and transmit a recommendation to the Department Commissioner for review. The statute requires transmission regardless of the substance of the superintendent's report. In other words, even if the superintendent does not believe the prisoner is a candidate for medical parole, he or she must transmit his or her evaluation to the commissioner. Appellants in this case both filed for release under this statute due to their status as “permanently incapacitated” prisoners. ²⁷

Along with the recommendation, the superintendent must send the Commissioner: (1) an individualized medical parole plan for the petitioner; (2) a physician's written diagnosis; and (3) a risk assessment of the petitioner. A “medical parole plan” is a “written medical and psychosocial care plan specific to a prisoner” detailing: “(i) the [prisoner's] proposed course of treatment; (ii) the proposed site for treatment and post-treatment care; (iii) documentation that medical providers qualified to provide the medical services identified in the medical parole plan are prepared to provide such services; and (iv) the financial program in place to cover the cost of the plan for the duration of the medical parole[.]” ²⁸

Appellants in this case complied with the statutory filing requirements in G.L. c. 127, § 119A. In January of 2019, Attorney Ruth Greenberg filed two separate petitioners on behalf of Mr. Buckman and Mr. Cruz. Mr. Buckman is incarcerated in the Assisted Daily Living unit at MCI Norfolk. He only has one lung, suffers from lung cancer, Crohn's disease, nearly uncontrollable diarrhea, and cataracts. Mr. Buckman cannot walk without using a walker. ²⁹ Unfortunately, Mr. Cruz died during the course of litigation on September 9, 2019. ³⁰ Before his passing, Mr. Cruz was incarcerated at MCI Shirley and suffered from end-stage renal disease for which he underwent dialysis treatment three times a week. ³¹ Mr. Cruz also suffered from diabetes, advanced cardiac disease, degenerative joint-disease, and was a stroke victim with right-sided weakness, impaired verbal communication, and decreased motor functioning–before his death he was “barely able to grasp a pencil or spoon.” ³²

Citing non-promulgated Department of Corrections Medical Parole Policy, superintendents Steven Silva of MCI Norfolk and Colette Goguen of MCI Shirley refused to accept Mr. Buckman's and Mr. Cruz's petitions. ³³ In so doing, the superintendent Silva explained that it was Mr. Buckman's responsibility to submit a medical parole plan with “documentation that medical providers qualified to provide the medical services identified in the medical parole plan are prepared to provide such services.” ³⁴ Superintendent Goguen demanded the same of Mr. Cruz in addition to a physician's written diagnosis. ³⁵ Mr. Cruz noted in his petition that all of his medical records were under the control of the Department and Boston Medical Center—but superintendent Goguen refused to accept that in lieu of the physician's written diagnosis. ³⁶ Recognizing the policy's inconsistency with the enabling statute, Mr. Buckman and Mr. Cruz filed for relief from compliance under G. L. c. 249, § 4. ³⁷

During the course of litigation, EOPSS promulgated “emergency” regulations which largely mirrored the Department's violative internal policy. ³⁸ According to EOPSS regulations, if a petition for medical parole does not contain a medical parole plan and a physician's written diagnosis, the superintendent is permitted to reject the medical parole petition and return the petition to the prisoner to request the “missing” documents. ³⁹ The Buckman case hinged on two main issues: (1) does the statute allow for the superintendent to reject a petition for “incompleteness;” and (2) does the petitioner bear the burden of preparing a medical parole plan and securing a physician's written diagnosis? ⁴⁰ The Court answered both questions in the negative, thereby invalidating all EOPSS regulations improperly burdening medical parole petitioners with the responsibility of preparing a medical parole plan or including a physician's written diagnosis and any regulations giving power to the superintendent to refuse “incomplete” petitions. ⁴¹

The Court easily dismissed the notion that the superintendent may use his or her discretion to hold back a medical parole petition. Relying on the plain language of the statute, “the superintendent shall consider a prisoner for medical parole” upon receipt of a “written petition” and “shall” transmit his or her recommendation for release no more than twenty-one days after receipt,” the Court noted that the statute did not afford the superintendent discretion to dispose of a petition at any point of the medical parole application process. ⁴² In actuality, so long as a petition is in written form and signed by an authorized entity the superintendent must review said petition and transmit his recommendation to the Commissioner. ⁴³

The Court determined that the written petition is the only document the prisoner is responsible for preparing, and that the word “petition” cannot be read to include the medical parole plan or the written diagnosis. ⁴⁴ Prisoners covered by this statute have limited access to the outside world making it virtually impossible for them to prepare a medical parole plan and secure a written diagnosis within a twenty-one day period. ⁴⁵ The Court remarked that preparing a medical parole plan is a “ formidable task for even a young and healthy prisoner” and that the “legislature did not intend to place this burden on those so poorly able to bear it.” ⁴⁶ By process of elimination, the court deduced that the only entity left to prepare the medical parole plan and secure the written diagnosis is the superintendent. ⁴⁷ The Department already curates medical care plans for “regular” parolees on a daily basis, thereby boosting the Court's confidence that the legislature intended for the Department to bear this burden.

While twenty-one days is a tight timeline to arrange a comprehensive medical care plan, the reason for doing so is obvious. The legislature wrote the statute for persons living on their own tight timeline. Therefore, any meaningful effect in the realm of cost-savings or compassion depends on the Department following a swift schedule. The Buckman court did more than just clarify the invalidity of regulations, it revived the statute giving the Commonwealth a fighting chance to, in Attorney General Healey words, inject “justice” into the “criminal justice system.” ⁴⁸

III. THE FUTURE OF COMPASSIONATE RELEASE IN THE COMMONWEALTH

The Department is reviewing the decision and has not yet substantively commented about the invalidated regulations. ⁴⁹ Advocates expect the number of petitions processed and medical parole eligible prisoners released to increase, but the size and scope of the increase will be unclear until next year when EOPSS files their statutorily-required status report to the legislature. At a glance, one of the most vulnerable points is the risk of biased medical opinions negatively affecting the success of prisoners' petitions. The Department's health care services provider is a private company called WellPath, formerly Correct Care Solutions. ⁵⁰ While WellPath is an independent company, the Department wields a lot of power over their day to day activities. ⁵¹ Furthermore, WellPath has a financial incentive to abide by the explicit and subtle pressures of the Department as they subsist on a termed contract. Additionally, WellPath has a reputation for substandard care indicating the likelihood of inadequate diagnosis procedures even without hypothetical pressure from the Department. ⁵² Prison health care advocates must continue to monitor the petitions for bias in diagnosis. The potential for skewed diagnoses presents a challenge to both the medical parol law and medical ethics. ⁵³

The Buckman jurisprudence has already taken hold in a recent lower court decision. In Mahdi v. Department of Correction, citing and heavily relying on the SJC's findings in Buckman, the Massachusetts's Superior Court found that Commissioner Micci abused her discretion in denying petitioner Mahdi's request for medical parole and ordered the petitioner released. ⁵⁴ The Department filed a motion for reconsideration. More litigation is surely to follow.