During his 39 years in prison, the closest Joseph Messere ever came to walking free was when he was intubated, unconscious, and dying of Covid-19. The opportunity pinged onto his attorney’s phone just before Christmas, in a series of voicemails from the Massachusetts Parole Board. “This is Michelle Wetherbee, chief of the transitional services unit,” said one, from 12:31 p.m. on Dec. 23, 2020. She sounded like she was in a rush, swallowing syllables, garbling Messere’s name. But one thing she made very clear was that this couldn’t wait. “Can you please call me back” — she gave her number — “as soon as possible? We’d really like … your client released as soon as possible.” It was the fourth message her office had left in six days. A little over an hour later, she left another.
To attorney David Apfel, the urgency was strange. Often these sorts of arrangements took months. He’d seen it play out with this client earlier in the year. Messere was a stocky guy known to everyone as “Cement Head.” Ask his unit-mates about Joe Messere, and some might not know whom you were talking about. Everyone knew Cement Head: Cement Head the jailhouse lawyer, Cement Head of the bushy white Hulk Hogan biker mustache. He’d gotten a life sentence in 1981, for second-degree murder, and had been locked up ever since. He’d been denied parole in 1995, 1998, 2004, 2008, and 2013, and when he went before the parole board in December 2019, the decision took five months. On May 11, 2020, Cement Head got his sixth denial. True to his nickname, he asked for reconsideration, and in August, the board denied that, too.
So Apfel was taken aback to learn that Cement Head had just been granted medical parole. The decision was “based on the assessment that his death is imminent,” read one email from a prison-contracted doctor, who wanted to know whether the team should keep forcing air into his lungs through a surgical hole in the throat or start weaning him off machines. Apfel just kept thinking: What the hell are they talking about? Who submitted a petition for medical parole?
Lawyers say they’ve seen this happen to at least four other people incarcerated in Massachusetts, too: All on ventilators for Covid-19, all given medical parole when death looked imminent. (The first cases were reported by WBUR.) One man had put in an application, which was denied, only for authorities to reverse course eight days later and “release” him mere hours before his death. His freedom, though, looked much like the end of his incarceration: confined to a hospital bed, stiff lungs inflated with a machine’s artificial breath. Another man was granted medical parole while on a ventilator in January, but was re-arrested and brought back to prison earlier this week because he had survived and was no longer deemed sick enough.
The stories began emerging right as infections in Massachusetts state prisons were spiking: The total number of Covid-19 cases among prisoners had more than doubled from early October to late November, jumping from 460 to 1,019 — and those figures would get much worse. Since early in the pandemic, a court-appointed “special master” had been scrutinizing the Department of Correction’s coronavirus statistics. It wasn’t clear that there would be any sanctions or consequences for the agency if it failed to protect those in its charge. Still, surging case counts didn’t make leaders look good, and deaths made them look worse. By early December, nine prisoners had died. But the Covid-19 mortality numbers they were reporting at the time were for people who’d died in custody — not those who’d died while out on medical parole.
To attorneys, that provided an alarming possible explanation for situations like Cement Head’s: The Department of Correction was trying to make it seem like it had fewer Covid-19 deaths on its hands than it really did.
But as with so many pandemic-time patterns, this one revealed an older, deeper injustice. For those with less newsworthy illnesses, almost nothing happens “as soon as possible.” The week Apfel was getting those insistent calls, a medical parole application went in for Frederick Yeomans, serving a drunk-driving-related sentence. His pancreatic cancer had metastasized to his lung and bone; he could hardly get to the bathroom by himself, and wanted hospice care rather than chemo. He died incarcerated, his paperwork pending, 18 days into the 45 Correction Commissioner Carol Mici has to make a decision; in Cement Head’s case, she took two.
“The risk to the public was very, very low,” said Yeomans’ lawyer, Suzanne McDonough. “I mean, the man couldn’t walk. I don’t think he was going to be able to skip out of a nursing facility, find some booze, hop in a car, and drive.”
As medical parole delays go, though, 18 days is nothing. Some applicants die fighting a denial, spending their last months in court trying to show they only have months to live. Yet others get medical parole but remain in prison, while authorities say they’re working to find a place for the person to go. It isn’t always clear, though, when that’s true and when it’s just an excuse. Raymond Vinnie Jr., for instance, seemed similar to Cement Head: Convicted of murder decades ago, bedridden, tube-fed. But when he got medical parole earlier in 2020, and his kids wanted to bring him home to Georgia, the authorities kept saying no. It was only by resorting to drastic measures — a kind of jailbreak with the law on its side — that his family could get him out.
Not so for Cement Head, though he was estranged from his family and had nowhere to go. The reason officials kept calling Apfel turned out to be a form that needed signing — one last gateway of paperwork you have to pass through to go from being granted medical parole to being officially released. “Oh, interesting,” Apfel said. “They couldn’t have cared less when he was alive, and now that he’s a vegetable, they want to release him as soon as possible. To whom? For what?”
“I mean, the man couldn’t walk. I don’t think he was going to be able to skip out of a nursing facility, find some booze, hop in a car, and drive.”
Suzanne McDonough, lawyer for Frederick Yeomans
Medical parole, or compassionate release, is different from plain old parole, less about prisoners’ disciplinary records, more about their fragility. The rationale is both moral and fiscal. Why keep someone locked up and treated at great taxpayer expense if they’re too sick to hurt anyone? Why not let them go, to die a more comfortable death? In Massachusetts, to qualify you have to be “permanently incapacitated” or unlikely to live over 18 months, and either way, too frail to pose a safety risk. But the 3-year-old law gives authorities plenty of discretion, and they’re often reluctant to let people go. Of 432 applications, only 47 have been approved. And that statistic doesn’t capture a crucial variable: how long it took for the person to be released.
No one knows this better than Ruth Greenberg, often referred to as the state’s mama of medical parole. She’s been well-known among incarcerated people for years, a defense lawyer who takes on indigent clients, who answers every collect call. She jokes that her number is written by the toilets in the state prison at Norfolk. Recently, though, she’s developed a new specialty: taking the Department of Correction to court over its handling of medical parole. When other lawyers have questions about the statute, she is their go-to, and she’s intimately familiar with the ailments of those on “wheelchair row.”
She would like for government officials to imagine her in a rosewood office, with assistants and bookshelves. Instead, she has what she calls “a Subaru practice” — operating solo out of her apartment in a Boston suburb, boxes of documents stored in the trunk of her Subaru, which she’s hardly driven in 15 years.
She doesn’t need to go down to her filing cabinet of a car to check the name and story of every person whose medical parole case she’s taken on. “I remember each and every one, the freed and those who died in chains, unlawfully restrained, and without enough time left to litigate,” she wrote in a text message. “I am their Kaddish,” she added, referring to the Jewish prayer of mourning. There are around 25, and she can rattle them all off by heart, with a mini-description of each case’s outcome: “granted after litigation” or “granted but not released without litigation” or “denied” or “died.” She can think of only one that didn’t require a legal fight.
Her first medical parole case began in February 2018, in the cafeteria-like visiting room at Norfolk, when a 30-year-old named Alex Phillips lifted his shirt to show his mother a protrusion in his abdomen. She tried to stay calm. “I said, ‘Well, maybe you have a bowel obstruction,’” his mother, Ann Burke, recalled. “Because I didn’t want him to totally freak out.” She knew that wasn’t a bowel obstruction. She’d spent years working as a hospice and oncology nurse, and she knew that was a tumor.
Because it’s deemed a security threat, family members often aren’t told when an incarcerated loved one goes to the hospital. The person just disappears, suddenly unavailable for visits, unable to make calls. That’s part of the reason medical parole is so alluring — to have unrestricted company through the disorientation of illness. By the time Burke could finagle special permission for a phone conversation, her son had spent nearly a week contemplating metastatic cancer alone. At first, he tried to put on a brave face, saying he might still have a few years. Then, he broke down: “He said, ‘Mom, I know I’m going to die. Please don’t let me die in prison.’”
We tend to think of Massachusetts as one of the most progressive states — its health care reform a blueprint for Obamacare, its senators pushing the Green New Deal. The reality isn’t so clear-cut. “We are very faux-liberal, particularly when it comes to criminal justice,” state Rep. Liz Miranda, a number of whose loved ones have been incarcerated, said in a recent webinar. In 2018, 45 states and the federal government had medical parole laws on the books. Massachusetts legislators had been trying to pass one for years — which was, Miranda said, “like moving Mount Rushmore.”
Some trace the resistance back decades, to Willie Horton, who was doing time for murder, was let out of a Massachusetts prison on furlough, committed rape and assault — and then became an infamous ad attacking Gov. Michael Dukakis when he ran for president in 1988. Some — current Gov. Charlie Baker included — think that if you’ve gotten life without parole for first-degree murder, there shouldn’t be a way out, no matter how ill you are. Even so, the law finally passed as part of a sweeping criminal justice reform bill, in April 2018. Baker unsuccessfully tried to limit the prisoners eligible. But the more effective barriers were subtler, more procedural ones.
Phillips, who’d served 12 years of the 18-to-20 he’d gotten for manslaughter, applied just as the law was being passed. It took three petitions, two denials, one reconsideration, and seven months for him to get out on medical parole. He died three weeks later, telling his mom people were there for him, trying feebly to move from where he lay on the couch. “He really wasn’t ready to go,” Burke said.
Of the dozen Massachusetts lawyers interviewed for this article, all of them described similar issues with the medical parole cases they’d handled. In one denial, the commissioner cited the governor’s distaste for releasing certain categories of prisoners. Another, according to an attorney, claimed that the applicant had no mobility issues, when in fact he had special dispensation to receive meals where he lived because he couldn’t walk to the chow hall. After a denial is appealed in court, the authorities have insisted on taking the full 90 days allowed by law to submit documents, even though they’ve already sent those very same files to the prisoner’s counsel. “They’re not granting medical parole when they should be,” said Lauren Petit of Prisoners’ Legal Services.
The state Executive Office of Public Safety and Security denied that its officials are deliberately dragging out medical parole cases. In response to questions from STAT, it said the allegation is baseless, as is the accusation that they are trying to lower the number of Covid-19 deaths they have to report, and added that the medical parole process takes less time for those who will be paroled to a hospital bed where they are already. “The Department of Correction reviews each medical parole petition on its own merits and makes a determination based on the criteria set by Massachusetts law,” the agency said in a statement. “Throughout the pandemic, DOC has adopted the latest public health guidance and treatment strategies on behalf of those in our care, including the use of medical parole when appropriate to the inmate’s health status and public safety ramifications.”
Court filings, the agency added, could take time to redact, and a person’s eligibility for medical parole could change as their health deteriorates. Officials refused to discuss individual applicants.
The protagonists in these cases aren’t easy for the public to care about. Often, they’re the opposite of sympathetic. Some have been convicted of murder, rape, or assault: It can be hard to disentangle the medical case from the criminal one. Joseph Buckman, for instance, was convicted of stabbing his wife to death in 1998. The couple’s daughter, Lisa Carlow, has always maintained his innocence, and she made sure that visiting her father was part of her own kids’ routine. At a certain age, they started asking questions. “Why does Grampy’s house have police men there? Why do you have to go through metal detectors at Grampy’s? Why is there barbed wire at Grampy’s?” She sat them down to explain.
Her faith in her father’s innocence was one reason she was so adamant about bringing him home on medical parole. Some of her relatives opposed it. She was willing to shut down the day care she ran in her basement and forego the income of renting out a portion of her house. But almost as soon as he came home, after a yearlong court battle, it was clear he needed to be in the hospital. “He was literally home for less than 24 hours,” Carlow said.
Greenberg is still incensed about that. But for her, Buckman’s guilt or innocence is beside the point: Medical parole is not about relitigating a crime. In part, it’s about recognizing that the death of even the most troubled person is still the end of someone’s life. Mostly, though, it’s about upholding the law. “It gives hope to other prisoners that the law is real, that the law doesn’t only operate against them,” Greenberg said. She wants her clients to know that the law doesn’t just put people behind bars; it can free people, too.
“I am supposed to be retired,” Greenberg went on. “But I promised Alex Phillips — I promised him, and I promised his mother — that I would not let the Department of Correction do again what they did to him.” But, as she is fond of saying, she is a small axe, and the agency is a big tree. Her promise would be hard to keep.
It was Greenberg who first heard that Cement Head had gotten last rites. It was early December 2020. Covid-19 had been sweeping through Norfolk. Prisoners phoned their lawyers, more and more panicked as ambulances came for their unit-mates. Greenberg didn’t know Cement Head, but she figured another attorney might, and sent out an email blast. When Apfel saw the news, he started to cry.
He’s a high-powered Boston lawyer, a former federal prosecutor now specializing in financial crime, but his fondness for Cement Head predated all of that. They’d first met 30 years ago, when Apfel was fresh out of law school. He’d gone in with Clarence Darrow dreams and felt guilty for taking a job at a “fancy dancy firm” — and here was this prisoner, calling because the prison wouldn’t allow him full access to the law library. Messere laughed uproariously when he said everyone knew him as Cement Head. “I just liked the guy, what can I say?” Apfel said. “I could see how, for many other people, he’d be an acquired taste, but I acquired the taste very quickly.”
At first, he could seem like a prison-movie stereotype, “L-O-V-E” tattooed across his right knuckles, “H-A-T-E” across his left. He was doing time then at Walpole, the state’s highest-security prison, and in the ’80s, it was a rough place. An old acquaintance of Cement Head’s remembers fashioning knives out of aluminum from the license plate shop. You had to watch your back. “As the prison hierarchy pecking order goes, he wasn’t one to be pecked,” wrote Peter, another friend, who’s still incarcerated at Norfolk and agreed to email interviews on condition that he be referred to only by his first name. But Cement Head was a “solid, stand-up guy who you could trust and count on if shit hit the fan. That was very important back then, you needed people you could trust, sometimes with your life.”
He’d show new arrivals the ropes, tell them which guys to run with, which to avoid. At the time, he was known for eating whole, raw cloves of garlic, the smell clinging to him like a cloud. Those who knew him later on at Norfolk said he couldn’t stand the stuff, which seemed strange for a man whose Italian grandmother had given him a love of food. Everything else, though, he ate as a kind of homage to her, the one person who dared intervene when his father beat him. These were stories he’d tell his friend Michelle Kosilek as they power-walked together around the Norfolk yard. How he’d grown up to be a welder and tinkerer like his dad, fixing motorcycles and riding them, working on pipelines and oil rigs. How his father’s nickname for him became his name, inked across his shoulder.
Both he and Kosilek had been studying law, Kosilek suing the authorities so they’d recognize her rights as a trans woman, Cement Head bringing case after case for himself and others. He could be “irascible as a disturbed hornet,” Kosilek said; she tried to convince him that, in legal proceedings, at least, deference would help him win. His stubbornness, though, could come in handy; when a fellow prisoner came to him with an injustice — an unfair conviction, a withheld medication — Cement Head wouldn’t let it go.
That cement-headedness was also one reason he’d had so much trouble getting parole himself. He’d been convicted in 1981 of stabbing someone the year before. He insisted that he was innocent. Apfel tried to convince him that taking responsibility would give him a leg up with the Parole Board. “He had severe problems with alcohol — and the second-degree murder for which he was convicted, he was drunk as a skunk. He had a history of being a blackout drinker,” Apfel said. “I tried to say, ‘Look, Joe, don’t you think there’s a chance that you murdered this guy and didn’t remember? You did things you wouldn’t have done if you didn’t have as much booze in your system.’”
Cement Head wouldn’t hear of it. His parole was denied again and again. Then the pandemic arrived. Apfel emailed the authorities about Cement Head’s asthma, his high risk for severe Covid-19. His parole was denied again.
Though the authorities dispute it, those in their custody say infection control was questionable at best. The place that Norfolk designated for the people who felt sick was the one with the worst associations: “The restricted housing unit, the hole, the punishment, isolation, it’s all the same thing,” said someone who recently got out on parole and spoke on condition of anonymity. “The last thing you’re going to do is say, ‘I don’t feel good,’ and be sent there. No one would ever willingly go.”
Cement Head kept calling Apfel, sometimes more than once a day. He wouldn’t answer most of the time: It was just Joe, wanting to hear another human voice. When he did pick up, though, Cement Head sounded scared. His letters, too, kept arriving, his penmanship as beautiful as ever — but some of his concerns were new. He still complained of not being given the inhaler he needed. But he also wrote about someone who’d worked inside a Covid-positive unit suddenly appearing in his own. He worried about inadequate testing. “I am so pissed off, because we haven’t been told if the rest of us are negative,” he wrote on Nov. 6. The next day, he wrote, “They took the guy across from me!!”
Then, he disappeared himself. After a week or so of silence, Apfel got a call. It didn’t begin with the usual, dramatic, “Hellooooooooo.” Instead, Cement Head’s voice was hoarse, and halting, the sound of someone who’d just tested positive for the coronavirus, and even with extra oxygen couldn’t catch his breath. Soon, he was on a ventilator. When Apfel tried to call the hospital, they wouldn’t give him any information: “They didn’t have a patient by that name and they never had had a patient by that name, and I said, ‘Well, that’s not true.’”
Days after that, Apfel heard Cement Head had gotten last rites. He felt terrible. He was just about to file an emergency transfer request. Rationally, he knew it was stupid guilt — more paperwork probably wouldn’t have helped — but he felt guilty all the same.
But Cement Head wasn’t dead yet. He was just alive enough, documents show, for prison officials to file a new medical parole petition on his behalf — and for the commissioner to want to deal with it at a remarkable speed.
That wasn’t how it usually worked, in Greenberg’s experience. There were a few exceptions, but she’d mostly seen officials blocking or delaying prisoners’ medical parole applications, not filling them out themselves. For several years, a Department of Correction policy stipulated that petitions wouldn’t be considered unless the prisoner had identified and gotten documents from all the doctors who’d be providing care after release — “a formidable task for even a young and healthy prisoner, given a prisoner’s limited access to the world outside,” read a January 2020 judgment by the state Supreme Judicial Court, which struck down the rule after Greenberg challenged it on behalf of Joseph Buckman and another client.
But transferring that responsibility from the prisoner to the prison sometimes created a new barrier. Care plans were now subject to the whims of authorities — even when family members already had a workable plan in place.
Raymond Vinnie’s kids knew what their father needed. He’d had a stroke in September 2019, and six months later was bedbound and unable to feed himself. Two of his four kids had previously cared for patients just like him, Morenika Vinnie, his second-eldest, as a certified medical assistant at a brain-injury recovery center and then a hospital, and her older sister Natasia Jefferson as a home health aide. Vinnie’s petition for medical parole had gone in on the last day of February 2020, weeks before the pandemic became a pandemic. Natasia bought bathroom grab-bars, planned a ramp and a wheelchair-accessible toilet, so her dad could move home.
But when the correction commissioner granted Vinnie medical parole, taking all 66 days the law allows once a petition is filed, her letter said he’d be released after “his acceptance into a long-term care facility” — paroling him from institution to institution. In the interim, the agency wouldn’t let him go — even to another non-correctional part of the same state hospital. When Greenberg took the authorities to court, government lawyers said that he’d signed a long-term care consent form. He couldn’t go live with his kids, they went on, because he had an unpaid fine in Georgia and because he was tube-fed, his health too delicate for travel, his care too complex for family members without special training.
The unpaid fine turned out to be a non-issue. Vinnie’s kids offered to hire nurses. They offered to have their father driven home to Columbus, Ga., by ambulette if he was too fragile to fly. They offered to find a nursing home near them. They even offered to move to Massachusetts. But, as Morenika said of the authorities, “They just kept making excuses,” — and kept making arrangements for her dad to go to a long-term care facility in Massachusetts.
The tactic wasn’t unique to Vinnie’s case. The commissioner granted medical parole to someone else last December, but refused to allow him to live with his wife, who said she was willing and able to care for him. He spent over two more months incarcerated, waiting for a nursing home bed to open up. Another person was granted medical parole in January 2020, and is still incarcerated, awaiting a placement, over a year later.
It is legitimately complex to find a nursing-home bed for someone who’s been paroled. “There are endless barriers,” said Deb Goldfarb, a clinical social worker at Harvard Law School’s Criminal Justice Institute. “You call a nursing home, and you speak to the admissions person, and you say, ‘Are you accepting people or do you have open beds?’ They say yes, you say, ‘Do you take people from prison?’ And what’s the next question? ‘What did they do?’” But to her, it doesn’t always look like the authorities are making a good-faith effort.
For Vinnie, the question of open nursing-home beds could have been moot. His kids were anxious to have him home. When they were growing up, he ran a printing shop, where he showed his son Raymond III how to drive a forklift, left hand on the steering wheel, right hand maneuvering the forks. Then, in 1993, he’d been convicted of first-degree murder and given life without parole. For over 20 years, he told his children not to visit. “He didn’t want us to see him in prison,” Morenika explained. “My dad is very, very prideful.”
Finally, a few years before his stroke, she decided enough was enough. What if he died and they hadn’t seen him for decades? She flew up, first by herself, and then with her three siblings. He’d missed most of their adult lives, new grandchildren glimpsed only through letters and calls.
By the time he’d gotten medical parole, they were still making up for lost time. Plus, Vinnie’s kids worried that every extra day in custody upped the chances that he’d get Covid-19. So, when their father was still incarcerated just over six weeks after the commissioner’s decision, they took matters into their own hands and flew to Boston. “We went up there like thieves in the night,” his daughter Ramona Horn said. It wasn’t a secret. They said they’d told the authorities they were coming, but officials just kept telling them to wait.
When they arrived at the state hospital where many prisoners are treated, they said they weren’t leaving without their dad. They made sure to stay calm. But seeing their dad was a shock. At the base of his back was a deep wound, one that the family thought could only be the result of neglect. “It was just open flesh, bigger than a grapefruit,” Raymond III recalled. At the sight of it, he started to cry.
They needed to get their father out of there. They signed some papers — an official certificate of release, a form waiving liability as he was “leaving against medical advice” — then tucked his urine bag between his legs, and made a stretcher out of his sheets. They drove straight to the airport. They were nervous as they boarded the plane. Ramona could feel her heart, frantically ticking. “We felt that, up to the 11th hour, someone was going to storm the gate to try and stop us,” she said. “We felt like we were on the run. We really did.” It was only when the wheels began to lift that they believed it: They were leaving the jurisdiction of the Massachusetts Department of Correction. Their father was free.
The news wasn’t welcome to everyone. Vinnie was convicted of shooting Charles Hardison, a high school tennis star, and for the victim’s mother, every part of the medical parole process unearthed a fresh wave of grief. “Just to have to sit down to write a statement is to go back to one of the darkest times in my life,” said Adlene Hardison. “It’s painful, because I’m just reliving it.”
To her, some who’ve been convicted of non-violent crimes deserve medical parole. That isn’t the case for Vinnie. “Let him serve the time; he murdered my 15-year-old,” she said. But she was also angry at prison authorities. She’d made peace with the idea that Vinnie would end up in a nursing facility, which was what they told her would happen. The next thing she knew, he was home. She wishes they’d warned her that was a possibility, so she could prepare herself for the knowledge that she’d lost her son but Vinnie would be spending time with his kids. “It was like they didn’t care,” she said.
That was the impression Apfel got, too. Or rather, as far as he could tell, they seemed to care a lot about Cement Head as a statistic.
To be fair, the medical director of Wellpath, the company that provides prisoners’ care, had asked about the patient’s end-of-life wishes. The team had tried and failed to find Cement Head’s family members, and his longtime lawyer was the next best thing. The medical director, Steven Descoteaux, had put the question to Apfel, and Apfel thought back to the years and years of cement-headedness. He said his client would want everything done; if there was a fighting chance at survival, he’d want to fight.
That wasn’t the direction Cement Head’s doctors had been leaning. A few days earlier, Descoteaux had written, “I am convinced that all options to save his life have been exhausted, and that the appropriate course to take now is to end intubation and provide end of life comfort care.” As if defending himself against eventual criticism, he’d added, “This is what would be done for a person in this patient’s situation anywhere else.” Those notes had been quoted in the medical parole decision, which Apfel hadn’t yet received. But after that conversation, Descoteaux emailed a social worker at Milford Regional Medical Center, to pass on that Apfel had “expressed interest in giving Messere every chance,” even if it meant a feeding port in his belly, a surgical breath-hole in his windpipe, and long-term care.
Descoteaux acknowledged, though, that it might be too late. When he sent Apfel the medical parole decision, six days after it was signed, he wrote that it was based on the assessment that Cement Head’s death was imminent.
Already, Michelle Wetherbee, from the Parole Board, had been calling Apfel for five days. He found himself speaking with her on Christmas Eve.
“I said, ‘Why are you calling me about this?’” Apfel recalled. He wasn’t Cement Head’s designated health care proxy. “And she said, ‘Well, you’re the one person who’s his contact, and he’s not in a position to sign the release himself.”
But if he were released, Apfel asked, what would that even mean? Where would he go? It turned out that Cement Head would stay in the same hospital until his death; if he survived, then other care arrangements would be made. What exactly those arrangements were wasn’t clear to Apfel. He said Wetherbee couldn’t give him any specifics.
“I said, ‘Who would be responsible for paying for his burial, for his funeral?’ She said, ‘Oh that would be on him.’” To Apfel, that was outrageous. As far as he could tell, the state was simply trying to wash its hands of someone who’d been in its custody for four decades. Why on earth would anyone sign for this person’s release in these circumstances?
Well, he remembers her saying, there are many instances in which the prisoner or the prisoner’s family thinks it’s important to die free.
It was true. There are many families for whom that is important, even if the person may never be conscious of the change. But Cement Head couldn’t speak for himself. He had no loved ones who could want that for him, or who hoped to spend time at his bedside. He had no money to pay for his own burial. Apfel had the distinct impression that the prison authorities were doing their utmost to shirk responsibility, to leave a dying man out in the cold.
Wetherbee referred all questions to an Executive Office of Public Safety and Security spokesperson, who said that parole staff can’t specify treatment plans for someone on medical parole who recovers, and have no authority over burial arrangements, though financial assistance is available. The agency did not dispute any details of the exchange.
As Apfel remembers it, the conversation ended when Wetherbee said the purpose of the call was to see whether he would sign the form, and it sounded like he wasn’t going to: “I said, ‘No, I’m not. I think what you’re doing is obscene.’”
He wasn’t the only one. To Sen. Patricia Jehlen, it sounded like prison authorities were subverting the intent of the law — and she would know, as she’s one of the state legislators who wrote it. “The whole situation seems to be cruel and cynical,” she said in an interview. “If you’re going to deny people who have weeks to live, what does it mean to release a person who is unconscious and intubated? It can’t be for either of the purposes, either compassion or cost savings.”
Exactly how many people have been in Cement Head’s situation is a matter of debate. Officials at the Executive Office of Public Safety and Security say that three people have been granted medical parole while coronavirus-positive, and the special master’s weekly reports have stated that two of them have been released, since it started listing that number in December. But attorneys told STAT they know of at least two more who have been released while on ventilators for Covid-19, though it isn’t clear why they aren’t included in the official tally.
“If you’re going to deny people who have weeks to live, what does it mean to release a person who is unconscious and intubated?”
Massachusetts state Sen. Patricia Jehlen
Those numbers might seem tiny, but they hide a larger story. “It’s like salt in the wound,” said Goldfarb, the social worker with Harvard Law’s Criminal Justice Institute. “Clearly the Department of Correction has a mechanism to make this happen very quickly. Why these cases, and not the rest?”
A member of the prison health care team, who spoke on condition of anonymity, wasn’t sure that Covid-19 cases had been fast-tracked, but couldn’t explain why the timeline was so different for someone like Cement Head and someone like Yeomans. The person noted that the law can be unclear, acknowledging that sometimes the commissioner makes decisions that don’t seem to jibe with medical assessments, but also that the doctors’ predictions aren’t always right, either: “Covid threw us a few curve balls, where we thought a few people were about dead, and then they bounced back. But the majority of those that we thought would die did.”
The state says the parole board is now reporting to the courts any Covid-related deaths of people released on medical parole, though none has been disclosed and the board has not reported deaths retroactively from last year. Nor do reports show how long it took people to get medical parole, how long it took to be released, or how many people have died trying. Greenberg is still litigating denials, but she’s tired. In one ongoing case, the commissioner refused to reconsider a previous decision, writing that the person was well enough to be “swaying his upper body and appearing to be dancing as he sits in his wheelchair in an attempt to amuse a dementia patient.”
That image provides a kind of backdrop to the numbers in the special master’s reports. By the end of March 2021, there had been 3,021 confirmed coronavirus cases among people incarcerated in state prisons; when the special master began his work, one year earlier, the Department of Correction had 7,642 people in its custody. In those 12 months, there were nearly 1,000 inmates who’d been released, through various mechanisms. But there were 21 for whom the virus became a change of sentence, from however much time they’d gotten to a sentence of death.
One of them was Cement Head. He died on New Year’s Eve, in custody, his hospital room guarded, a few hours after the doctors had called Apfel to say there was permanent scarring on his lung and little chance he’d come back. Apfel had told them that Cement Head would’ve wanted heroic measures, and he’d gotten them. But he would only want to stick around if his mind were intact, stubborn, indignant, the same mind that had put together countless legal claims. As Apfel put it later, “Joe would not have wanted to be kept alive as a mere appendage of tubes.”
His friend Michelle Kosilek likes to imagine him in the afterlife, sitting around a celestial campfire with a tankard of mead and a pipe. In a way, it was almost fitting that, as Kosilek put it, his death “became another embarrassing statistic for the powers that be.”
Four days later, Apfel got an email saying that Cement Head would be buried at the state’s expense. Apfel wrote back within an hour, asking when the burial would take place, and whether he could attend. He hoped he might be able to speak at the graveside, to find some way to mark the end of Cement Head’s life. First he heard nothing. Then, about 10 days later, he got a note saying that prison burials are not open to the public. If he wished to visit the grave, “at some time in the future after the pandemic has subsided,” he would need to request permission from the prison superintendent.