Massachusetts Medical Parole Avoids In-Custody Deaths From Covid

by Daniel A. Rosen |

Joseph Messere, a 68-year-old prisoner in Massachusetts, was just days away from death last December when his attorney got a phone call from state officials. The Parole Board and state corrections agency told David Apfel “we really want your client released as soon as possible.” It was a remarkable change of course for the DOC – Messere had been denied medical parole earlier that year in March, and five times prior to that since 1995. He died of complications from Covid days later, on December 31.

Apfel says the sudden rush to release his client was the state’s desire to manipulate statistics of Covid deaths in custody, and he refused the offer. He said he had no desire to be “complicit in their efforts to rid themselves of Joe and grant a meaningless parole.” His client hadn’t initiated a new petition since the denial in March.

As a result of Apfel’s refusal the death was counted in the state DOC’s official Covid tally.

A DOC spokesperson said the agency has modified its reporting to include released inmates who die from Covid, and noted that “The Department of Corrections does not grant or deny medical parole based on any other criteria than those set by statute.”

Apfel responded by noting that in Messere’s case and many others, “DOC only grants medical parole as a means o washing its hands of responsibility for those under its care and supervision, in a transparent effort to reduce the stats.”

The back and forth over Messere’s case came ten months after the State Supreme Court ordered the DOC to report daily on Covid issues in its prisons. The court’s order in April was meant to grant relief to the most vulnerable prisoners, through various means including the use of medical parole. But a number of cases have come to light where sick inmates were either released just prior to death or offered release, like Messere.

Milton Rice, who was housed at the MCI Norfolk state prison like Messere, was granted medical parole just 24 hours prior to his death in November. But he had applied for medical parole back in March of that year. Another prisoner at MCI Shirley was released just six hours before his death, while on a ventilator in the hospital, according to his attorney. Neither man’s passing was reported in DOC’s statistics as an in-custody death.

A 2018 justice reform bill passed by the state legislature allows for medical parole for terminally ill or permanently incapacitated prisoners. DOC implied that Messere’s eligibility continued to be considered after his rejection in March, saying that “As a person’s medical condition changes, so may eligibility for medical parole; DOC may reconsider a decision based on new medical information.”

In nearby Connecticut, truth in sentencing laws require that violent offenders serve at least 85% of their sentence before being considered for compassionate or medical parole. All others must be over a certain age and have either a terminal or debilitating illness.

“Just because Covid-19 is a risk doesn’t mean you’re eligible for compassionate release or medical release,” said a corrections spokesman.

However, the Connecticut DOC is allowing for faster release of non-violent offenders, and considering medical issues more prominently in its release decisions. In 2020 the overall release rate was about 61 percent, up from 50 percent in 2019. “Our overall grant rates have dramatically increased…because of these other factors we’re putting in play,” said a spokesman.


Originally written for Prison Legal News.

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