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Massachusetts High Court Calls Denial of Prisoner’s Medical Parole without Risk Assessment Arbitrary and Capricious

by Douglas Ankney

On April 3, 2023, the Supreme Judicial Court of Massachusetts called a medical parole denial by the state Commissioner of Correction arbitrary and capricious because it was made without a standardized risk assessment for prisoner applicant Martin McCauley, as required by Title 501 Code Mass. Regs. §17.02.

McCauley, then 66, filed a petition via counsel in April 2020 for release on medical parole pursuant to G. L. c. 127, § 119A. The petition included two opinions that McCauley was permanently incapacitated, one from Dr. Steven Descoteaux, Medical Director for the state Department of Correction, who works for its private medical provider, Wellpath, and another from Dr. Michael Moore, Medical Director of Massachusetts Correctional Institution (MCI) at Norfolk, where McCauley was incarcerated. With his petition, McCauley included a parole plan demonstrating he had family support with a plan to reside with his sister at her condominium.

Also in April 2020, Steven Silva, then Superintendent of MCI-­Norfolk, recommended against releasing McCauley on medical parole. Silva cited factors such as McCauley’s ability to walk with his “rollator” walker “at times quickly” and that McCauley did not need assistance with “dressing, showering, or toileting.” Silva also cited McCauley’s criminal history; the facts underlying his current conviction for first degree murder (McCauley was convicted of shooting a robbery victim between the eyes with a pistol held six inches away); McCauley’s institutional violence, which included an assault on a guard; and his extensive disciplinary record, “especially those involving drug transactions and the attempted introduction of heroin into the facility.” As for “the required assessment of the risk for violence that the inmate poses to society pursuant to G. L. c. 127, section 119A(c),” Silva enclosed a copy of McCauley’s most recent classification report and personalized program plan, noting that the prisoner “does not receive a Risk or Needs Assessment” owing to his sentence of life without parole.

In June 2020, the Commissioner denied the petition. After two petitions for rehearing were also denied, McCauley “commenced an action in the nature of certiorari in the county court pursuant to G. L. c. 249, section 4.” The case was transferred to the Superior Court where it was ultimately denied. McCauley appealed from the Superior Court to the Appeals Court where it was transferred to the state’s high court on its own motion.

The Court observed that G. L. c. 127, § 119A allows medical parole for a prisoner “where several requirements are met,” including whether the DOC Commissioner “determines that a prisoner is terminally ill or permanently incapacitated such that if the prisoner is released 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”; in that case, the law says, “the prisoner shall be released on medical parole.’

“The statute commands,” the Court continued, that the superintendent of the applicant’s prison “shall transmit to the commissioner, along with a recommendation, three different items: a medical parole plan, a written diagnosis by a physician licensed to practice medicine under G. L. c. 112, section 2, and ‘an assessment of the risk for violence that prisoner poses to society.’”

Authority “to promulgate rules and regulations necessary for the statute’s enforcement” is vested in the Secretary of the Executive Office of Public Safety and Security. One such rule found in 501 Code Mass. Regs. § 17.04(2)(d), (e) (2022) “requires a multidisciplinary review team to provide information to the superintendent regarding the risk assessment ‘which must be based upon the results of a standardized assessment tool that measures clinical prognosis, such as the LS/CMI assessment tool and/or COMPAS’ in addition to a recent classification report.”

But McCauley’s classification report included no such risk assessment, apparently because assessments are not made for those with a life sentence, like him. The Court allowed “that a standardized risk assessment is but one relevant factor that the commissioner could have considered in making her decision,” but it said such an assessment “is a consideration required by regulation, and we cannot acquiesce to its absence.” Accordingly, the petition was remanded to the Commissioner for reconsideration after a standardized assessment is conducted. See: McCauley v. Superintendent, Mass. Corr. Inst., Norfolk, 491 Mass. 571 (2023).  

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Related legal case

McCauley v. Superintendent, Mass. Corr. Inst., Norfolk