Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1535 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 2262 FILED ON: 1/20/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1535
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Patricia D. Jehlen
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to ensure access to medical parole.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Patricia D. JehlenSecond MiddlesexLiz MirandaSecond Suffolk1/20/2023Mindy Domb3rd Hampshire1/25/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/9/2023Rebecca L. RauschNorfolk, Worcester and Middlesex2/23/2023 1 of 10
16	16	SENATE DOCKET, NO. 2262 FILED ON: 1/20/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1535
18	18	By Ms. Jehlen, a petition (accompanied by bill, Senate, No. 1535) of Patricia D. Jehlen, Liz
19	19	Miranda, Mindy Domb, Joanne M. Comerford and others for legislation to remove barriers to
20	20	medical parole. Public Safety and Homeland Security.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE SENATE, NO. 1599 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act to ensure access to medical parole.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Section 119A of Chapter 127 of the General Laws, as so appearing, is
32	32	2hereby amended by striking out the definitions of “Permanent incapacitation” and “Terminal
33	33	3illness” in subsection (a) and replacing with the following:
34	34	4 ''Permanent incapacitation'', a medical determination of a physical or cognitive
35	35	5incapacitation that appears irreversible, as determined by a licensed physician.
36	36	6 ''Terminal illness'', a medical determination of a condition that appears incurable, as
37	37	7determined by a licensed physician that will likely cause the death of the prisoner in not more
38	38	8than 18 months. 2 of 10
39	39	9 SECTION 2. Section 119A is further amended by adding the following definition after
40	40	10“Secretary”:
41	41	11 “Surrogate decision-maker”, a person chosen by an incarcerated person to advocate on
42	42	12their behalf. Such a surrogate may include next-of-kin, close family member, attorney, health
43	43	13care proxy, or an individual with power of attorney for the incarcerated person.
44	44	14 SECTION 3. Section 119A is further amended by striking subsection (c) and inserting the
45	45	15following subsections:
46	46	16 (c)(1) The superintendent of a correctional facility shall consider a prisoner for medical
47	47	17parole upon a written petition by the prisoner, the prisoner's attorney, the prisoner's next of kin, a
48	48	18medical provider of the correctional facility or a member of the department's staff. The
49	49	19superintendent shall review the petition and develop a recommendation as to the release of the
50	50	20prisoner. Whether or not the superintendent recommends in favor of medical parole, the
51	51	21superintendent shall, not more than 21 days after the Department’s receipt of the petition,
52	52	22transmit the petition and the recommendation to the commissioner. The superintendent shall
53	53	23transmit with the recommendation: (i) a proposed medical parole plan; (ii) a written diagnosis by
54	54	24a physician licensed to practice medicine under section 2 of chapter 112; and (iii) an assessment
55	55	25of the current risk for violence that the prisoner poses to society. The risk assessment shall be
56	56	26based on consideration of the prisoner’s current cognitive and physical ability to violently
57	57	27recidivate, considering the probability that violence will actually occur, in light of the person’s
58	58	28documented current medical condition. Where the person's disability-related behaviors contribute
59	59	29to current risk, the Department must also consider whether reasonable accommodations such as
60	60	30individualized treatment and programming in a community setting could mitigate risk. Such 3 of 10
61	61	31assessment shall be supported, if requested by the petitioner, by routine video surveillance of the
62	62	32prisoner from the prison, demonstrating the prisoner’s level of incapacity.
63	63	33 (c)(2) The Department shall submit written petitions on behalf of permanently
64	64	34cognitively incapacitated prisoners. The Department must first contact the prisoner’s next of kin,
65	65	35surrogate decision-maker, attorney or Prisoners’ Legal Services, and notify them of the
66	66	36opportunity to file a petition in lieu of the Department. The Department’s obligation to submit
67	67	37written petitions on behalf of cognitively incapacitated prisoners does not preclude other
68	68	38appropriate parties from filing petitions on behalf of incarcerated persons with cognitive
69	69	39incapacitation. The Department shall accept release of information forms signed by the prisoner
70	70	40if no guardian has already been appointed.
71	71	41 (c)(3) The Department shall identify prisoners who are cognitively incapacitated through
72	72	42at least annual administration of a standardized cognitive assessment tool to all prisoners aged 55
73	73	43and older. The Department shall identify all prisoners screening positive for cognitive
74	74	44impairment or who are terminally ill or physically incapacitated in a quarterly report to an
75	75	45appropriate prisoners’ rights legal organization, which will include the prisoner’s name, the
76	76	46prisoner’s next-of-kin or surrogate decision-maker, information about the prisoner’s sentence,
77	77	47and the relevant condition or description of the incapacitation. In addition to the regular
78	78	48assessments by medical personnel at the prison, the prisoner, or the prisoner’s family or attorney
79	79	49may request at any time that the prisoner’s primary care physician in the prison assess cognitive
80	80	50capacity.
81	81	51 (c)(4) Upon the commissioner’s receipt of the petition and recommendation pursuant to
82	82	52paragraph (1), the commissioner shall notify, in writing, the district attorney for the jurisdiction 4 of 10
83	83	53where the offense resulting in the prisoner being committed to the correctional facility occurred,
84	84	54the prisoner, the person who petitioned for medical parole, if not the prisoner and, if applicable
85	85	55under chapter 258B, the victim or the victim's family that the prisoner is being considered for
86	86	56medical parole. The parties who receive the notice shall have an opportunity to provide written
87	87	57statements; provided, however, that if the prisoner was convicted and is serving a sentence under
88	88	58section 1 of chapter 265, the district attorney or victim's family may request a hearing.
89	89	59 Where the prisoner meets the medical criteria for medical parole, the Department must
90	90	60submit a medical parole plan meeting the prisoner’s needs to the Parole Board no later than 35
91	91	61days after the Department’s receipt of the petition. Where a parole plan to a private home
92	92	62appropriate to the person’s care is available, that home shall be the proposed plan unless the
93	93	63Department produces documentation of specific reasons the home placement would cause a risk
94	94	64to public safety.
95	95	65 SECTION 4. Section 119A is further amended by striking subsection (d) and replacing
96	96	66with the following subsections:
97	97	67 (d)(1) A sheriff shall consider a prisoner for medical parole upon a written petition filed
98	98	68by the prisoner, the prisoner's attorney, the prisoner's next of kin, a medical provider of the house
99	99	69of correction or jail or a member of the sheriff's staff. The sheriff shall review the request and
100	100	70develop a recommendation as to the release of the prisoner. Whether or not the sheriff
101	101	71recommends in favor of medical parole, the sheriff shall, not more than 21 days after the
102	102	72Department’s receipt of the petition, transmit the petition and the recommendation to the
103	103	73commissioner. The sheriff shall transmit with the petition: (i) a proposed medical parole plan; (ii)
104	104	74a written diagnosis by a physician licensed to practice medicine under section 2 of chapter 112; 5 of 10
105	105	75and (iii) an assessment of the current risk for violence that the prisoner poses to society. The risk
106	106	76assessment shall be based on consideration of the prisoner’s current cognitive and physical
107	107	77ability to violently recidivate, and the probability that violence will actually occur, in light of the
108	108	78person’s documented current medical condition. When the person's disability-related behaviors
109	109	79contribute to current risk, the Department must also consider whether reasonable
110	110	80accommodations such as individualized treatment and programming in a community setting
111	111	81could mitigate risk. Such assessment shall be supported, if requested by the petitioner, by routine
112	112	82video surveillance of the prisoner from the jail, demonstrating the prisoner’s level of incapacity.
113	113	83 (d)(2) The sheriff shall submit written petitions on behalf of permanently cognitively
114	114	84incapacitated prisoners. The sheriff must contact the prisoner’s next of kin, surrogate decision-
115	115	85maker, attorney or Prisoners’ Legal Services, and notify them of the opportunity to file a petition
116	116	86in lieu of the sheriff. The Sheriff’s obligation to submit written petitions on behalf of cognitively
117	117	87incapacitated prisoners does not preclude other appropriate parties from filing written petitions
118	118	88on behalf of incarcerated persons with cognitive incapacitation. The sheriff shall accept release
119	119	89of information forms signed by the prisoner if no guardian has already been appointed.
120	120	90 (d)(3) The sheriff shall identify prisoners who are cognitively incapacitated through at
121	121	91least annual administration of a standardized cognitive assessment tool to all prisoners aged 55
122	122	92and older. The sheriff shall identify all prisoners screening positive for cognitive impairment or
123	123	93who are terminally ill or physically incapacitated in a quarterly report to an appropriate
124	124	94prisoners’ rights legal organization, which will include the prisoner’s name, the prisoner’s next-
125	125	95of-kin or surrogate decision-maker, information about the prisoner’s sentence, and the relevant
126	126	96condition or description of the incapacitation. In addition to the regular assessments by medical 6 of 10
127	127	97personnel at the prison, the prisoner, or the prisoner’s family or attorney may request at any time
128	128	98that the prisoner’s primary care physician in the prison assess cognitive capacity.
129	129	99 (d)(4) Upon the commissioner's receipt of the petition and recommendation pursuant to
130	130	100paragraph (1), the commissioner shall notify, in writing, the district attorney for the jurisdiction
131	131	101where the offense resulting in the prisoner being committed to the correctional facility occurred,
132	132	102the prisoner, the person who petitioned for medical parole, if not the prisoner and, if applicable
133	133	103under chapter 258B, the victim or the victim's family that the prisoner is being considered for
134	134	104medical parole. The parties who receive the notice shall have an opportunity to submit written
135	135	105statements.
136	136	106 Where the prisoner meets the medical criteria for medical parole, the Department shall
137	137	107submit a medical parole plan meeting the prisoner’s needs to the Parole Board no later than 35
138	138	108days after the sheriff’s receipt of the petition. Where a medical parole plan to a private home
139	139	109appropriate to the individual’s care is available, that home shall be the proposed plan unless the
140	140	110Department produces documentation of specific reasons the home placement would cause a risk
141	141	111to public safety.
142	142	112 SECTION 5. Section 119A is further amended by striking subsection (e) and replacing
143	143	113with the following:
144	144	114 (e) The commissioner shall issue a written decision not later than 45 days after the
145	145	115Department’s receipt of a petition, which shall be accompanied by a statement of reasons for the
146	146	116commissioner's decision. The Department shall also establish a policy implementing a further
147	147	117expedited process for decision and release of a person on medical parole whose death by
148	148	118terminal illness is found to be likely in less than 6 months. Medical parole shall be granted to a 7 of 10
149	149	119terminally ill or permanently incapacitated prisoner unless the Commissioner determines by clear
150	150	120and convincing evidence that, if the prisoner is released with appropriate conditions, community
151	151	121supervision, and reasonable accommodations, the prisoner will not live and remain at liberty
152	152	122without violently recidivating. The assessment of terminal illness or permanent incapacitation by
153	153	123a medical provider shall be separate from the public safety risk assessment. Any denial of
154	154	124medical parole shall explain how the petitioner’s release would be incompatible with the welfare
155	155	125of society given the petitioner’s current medical condition. No petition shall be denied on
156	156	126medical grounds without a current, in-person evaluation of the prisoner by the licensed physician
157	157	127opining that the person is not medically eligible. Petitioners shall have a right to funds for
158	158	128experts pursuant to chapter 261. The parole board shall impose terms and conditions for medical
159	159	129parole that shall apply through the date upon which the prisoner's sentence would have expired
160	160	130and which shall be no more restrictive than the individual’s current medical condition
161	161	131necessitates.
162	162	132 All decisions to grant or deny medical parole, and the creation of a medical parole plan
163	163	133shall be made without bias pertaining to a person’s race, ethnicity, disability, religion, sexual
164	164	134orientation, or gender identity.
165	165	135 Release after a grant of medical parole shall occur within 7 days of the grant, absent
166	166	136documented extraordinary circumstances preventing such timely release. A prisoner for whom
167	167	137the Department cannot identify appropriate post-release placement shall be referred to the
168	168	138Department of Public Health (“DPH”) for placement in an appropriate DPH facility pursuant to
169	169	139section 151 of chapter 127. Not less than 24 hours before the date of a prisoner's release on
170	170	140medical parole, the commissioner shall notify, in writing, the district attorney for the jurisdiction
171	171	141where the offense resulting in the prisoner being committed to the correctional facility occurred, 8 of 10
172	172	142the department of state police, the police department in the city or town in which the prisoner
173	173	143shall reside and, if applicable under chapter 258B, the victim or the victim's family of the
174	174	144prisoner's release and the terms and conditions of the release.
175	175	145 SECTION 6. Section 119A is further amended by striking subsection (f) and replacing
176	176	146with the following:
177	177	147 (f) For all purposes, including revocation, a prisoner granted release under this section
178	178	148shall be under the jurisdiction, supervision and control of the parole board, as if the prisoner had
179	179	149been paroled pursuant to section 130 of chapter 127. The parole board may revise, alter or amend
180	180	150the terms and conditions of a medical parole at any time.
181	181	151 If a parole officer receives credible information that the individual’s terminal illness or
182	182	152permanent incapacitation has improved to the extent that the individual would no longer be
183	183	153eligible for medical parole under this section, the board shall obtain a medical assessment by a
184	184	154licensed physician of the prisoner’s current medical condition. If the medical assessment
185	185	155concludes that the individual no longer qualifies for medical parole, the parole officer shall bring
186	186	156the individual on medical parole before the board for a parole revocation hearing. The individual
187	187	157shall remain at liberty during the pendency of the revocation proceedings, barring a substantial
188	188	158and immediate risk to public safety. If the board establishes at the revocation hearing that the
189	189	159terminal illness or permanent incapacitation has improved to the extent that the individual is no
190	190	160longer eligible for medical parole pursuant to this section, the board shall order the return of the
191	191	161individual to incarceration, or, subject to appropriate terms and conditions set by the board, order
192	192	162release to parole supervision under another form of parole permitted by law. 9 of 10
193	193	163 If a parole officer receives credible information that an individual on medical parole has
194	194	164failed to comply with a condition of medical parole, the parole officer may initiate parole
195	195	165revocation proceedings. If the board established at the revocation hearing that the individual has
196	196	166violated a condition of medical parole, it may revoke parole and order return of the individual to
197	197	167incarceration, or order that the individual be reparoled to the community on medical parole
198	198	168subject to appropriate terms and conditions set by the board. In determining whether to order the
199	199	169individual’s return to custody, the board shall consider the medical hardship of incarceration and
200	200	170whether provision of reasonable accommodations would enable the individual to comply with
201	201	171the conditions of medical parole.
202	202	172 If the board orders revocation and reincarceration pursuant to this subsection, the prisoner
203	203	173shall return to custody in accordance with the terms of their original sentence with credit given
204	204	174only for the duration of the medical parole that was served in compliance with all conditions of
205	205	175their medical parole pursuant to subsection (e). Revocation of a prisoner’s medical parole for any
206	206	176reason shall not preclude a prisoner’s eligibility for medical parole in the future or for another
207	207	177form of release permitted by law.
208	208	178 SECTION 7. Section 119A is further amended by striking subsection (g) and replacing
209	209	179with the following:
210	210	180 (g) A prisoner, sheriff or superintendent aggrieved by a decision denying or granting
211	211	181medical parole made under this section may petition for relief pursuant to section 4 of chapter
212	212	182249.
213	213	183 A reviewing court may affirm or reverse the commissioner's decision and order grant or
214	214	184denial of the prisoner’s release. Petitions for certiorari shall be handled by the judiciary with due 10 of 10
215	215	185haste considering the urgent nature of medical parole. A decision by the court affirming or
216	216	186reversing the commissioner's grant or denial of medical parole shall not affect a prisoner's
217	217	187eligibility for any other form of release permitted by law. A decision by the court pursuant to this
218	218	188subsection shall not preclude a prisoner's eligibility for medical parole in the future.
219	219	189 SECTION 8. Section 119A is further amended by striking subsection (i) and replacing
220	220	190with the following:
221	221	191 (i) The commissioner and the secretary shall file an annual report not later than March 1
222	222	192with the clerks of the senate and the house of representatives, the senate and house committees
223	223	193on ways and means and the joint committee on the judiciary detailing, for the prior year: (i) the
224	224	194number of prisoners in the custody of the department or of the sheriffs who applied for medical
225	225	195parole under this section and the race, ethnicity, and age of each applicant at the time of the
226	226	196petition; (ii) the number of prisoners who have been granted medical parole and the race and
227	227	197ethnicity, age of each prisoner at the time of the petition; (iii) the nature of the illness of the
228	228	198applicants for medical parole; (iv) the counties to which the prisoners have been released; (v) the
229	229	199number of prisoners who have been denied medical parole, the reason for the denial and the race,
230	230	200ethnicity and age of each prisoner at the time of the petition; (vi) the number of prisoners who
231	231	201have petitioned for medical parole more than once; (vii) the number of prisoners released who
232	232	202have been returned to the custody of the department or the sheriff and the reason for each
233	233	203prisoner's return; and (viii) the number of petitions for relief sought pursuant to subsection (g).
234	234	204Nothing in this report shall include personally identifiable information of the prisoners.