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Massachusetts Criminal Justice Reform and Public Health: Part 1, Medical Parole

By Elisabeth J. Ryan

In April 2018, Massachusetts Governor Charlie Baker signed a major criminal justice reform bill, the result of years of efforts by legislators and advocates to implement changes to many existing “tough-on-crime” laws. The bill, at more than 120 pages, contains a plethora of changes, including raising the minimum age for juvenile justice involvement from 7 to 12, restricting the use of solitary confinement, and eliminating mandatory minimums from most drug crimes except for trafficking. However, the bill also creates new crimes, like trafficking in fentanyl and carfentanil.

PHLW will be looking at various provisions of the bill and how they intersect with public health. First, we look at the creation of “medical parole” in the Commonwealth.

While Massachusetts has the third lowest incarceration rate in the United States, the United States still incarcerates people at a rate higher than any other developed country. Though incarceration has recently dipped, there are still 2.2 million people in prisons and jails in the U.S., compared to half a million in 1980. The United States also incarcerates 655 people for every 100,000 in its population; El Salvador, the country with the next highest rate of incarceration, jails 614 per 100,000, almost 7% less than the U.S. Massachusetts incarcerates 188 people per 100,000, which some state lawmakers claim just makes the Commonwealth the “best of the worst.” Massachusetts voters have expressed a “strong desire to shift the aim of the criminal justice system away from punishing crime and more towards preventing it in the first place, in part by rehabilitating offenders so they do not offend.”

The corrections system and public health have long overlapped. Incarcerated individuals are disproportionately likely to have come from poverty, which is in turn disproportionately likely to be correlated with poor health. People incarcerated in the United States have higher rates of diabetes, hypertension, asthma, and HIV than the general U.S. population.  Incarcerated people also have higher rates of viral infections, substance use disorder, and mental illness. Prison conditions like solitary confinement (which we will address in an upcoming post), violence, and lack of social ties can all contribute to worsening health.

Massachusetts has one of the oldest incarcerated populations in the country, with 17% of inmates being age 55 or higher, compared to a national average of 11%. The population of older prisoners will continue to grow across the country, with an estimated one-third of the entire incarcerated population over the age of 55 by 2030. Studies have shown that incarcerated individuals often have “an accelerated aging process” of 10-15 years, which contributes to higher rates of medical issues than non-incarcerated people of the same age. Aging inmates are at much higher risk for “hypertension, asthma, arthritis, cancer, hepatitis… [and] congestive heart and liver failure.”

Before this recent criminal justice overhaul, Massachusetts was one of the very few states that did not have any form of statutory “compassionate release.” Also called “medical parole,” this is “a correctional policy intended to benefit prisoners with chronic health conditions by releasing them to parole before their expected parole date. The granting of medical parole…is largely based on the severity of disease, the capacity of the prison medical clinic to treat the disease, and the cost implications of continued incarceration.” These policies are also, of course, intended to save money for the system. The corrections system bears the entire cost of medical treatment for its inmates; systems cannot bill Medicare, Medicaid, or private insurance for any care provided to incarcerated individuals. Medical parole would significantly relieve the corrections system of the extraordinary costs of caring for incarcerated individuals with terminal illnesses. Caring for inmates over age 55 and/or those with terminal and incapacitating illnesses can be 2-3 times more expensive than the “average” cost of housing an inmate; Massachusetts spends about $64,000 per year for an “average” person held in maximum security, but it spends almost $284,000 for a “sick” inmate.

The Massachusetts law (section 97 of An Act Relative to Criminal Justice Reform) will allow incarcerated individuals diagnosed with a terminal illness - defined as an incurable condition that will likely cause death within 18 months - or those with “permanent incapacitation” to request medical release before the end of their sentences. Ultimately, the decision is left to the commissioner of corrections or to the appropriate sheriff, who determines whether “the prisoner will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society.” How those in power will interpret that clause remains to be seen.

Each potential candidate must have a “medical parole plan,” including a proposed course of treatment, documentation from prospective medical providers, and evidence of a financial plan to pay for the treatment; the statute does not make clear who is responsible for compiling this information. In all cases, the appropriate district attorney will be notified of the impending release and in some cases, the DA or a victim/family of a victim is permitted to request a hearing to oppose medical parole. If granted release, the patient remains under the supervision of the parole board, which can revoke the parole not only based on standard violations, but also if the individual’s illness has “improved” to the point of no longer being terminal or permanent. The released individual would then be required to return to incarceration.

Even though Massachusetts was one of the last states to implement a medical parole program, Governor Baker has already filed legislation trying to scale it back by disqualifying any inmates serving sentences for first degree murder or those who have been adjudicated as sexually dangerous persons. A recent hearing on the bill demonstrated strong opposition to those changes from advocacy groups.

“Medical parole epitomizes the public health approach in that it encourages equal access to health promotion and wellness programs, directly addresses human rights, targets vulnerable populations, and values cost effectiveness.” Yet medical parole has had varying success in other jurisdictions. The equivalent federal program has been “poorly managed and implemented inconsistently,” according to the Department of Justice. In the federal system, prisoners must be completely disabled or have less than 18 months to live to qualify for compassionate releases. Yet federal officials “deny or delay the vast majority of requests,” including one by a 94-year-old inmate serving time for drug crimes, which officials deemed “too serious” for release. Federal officials approved only 6% of 5400 medical parole applications from 2013-17. The Bureau of Prisons currently averages six months to reach a final decision; 266 inmates died from 2013-17 while awaiting decisions. Frustrated by the failure to grant medical releases, Hawaii Senator Brian Schatz has introduced the “GRACE Act,” or “Granting Release and Compassion Effectively,” which would allow an inmate whose request had been denied by the federal Bureau of Prisons to appeal the decision directly to the court system.

After New York expanded its medical parole system in 2009, the policy change “had minimal effect,” attributed by some to the fear that released inmates – even those sick enough to qualify for medical parole – will go on to commit more crimes. In 2014, the NY board granted medical parole to only 17 petitioners.

By adopting medical parole, Massachusetts has taken a step in the right direction, both on criminal justice and public health grounds. The real test will be in how many qualified inmates are released after the new law takes effect.

Elisabeth Ryan