Introduction
Massachusetts Bill H.2333, An Act to Establish the Massachusetts Incarcerated Individual Bone Marrow and Organ Donation Program, was introduced in February 2023 and received prompt backlash. Local and national news organizations picked up the story because of the shocking suggestion that organ donation could be a means for prisoners to achieve reduced sentences.Reference Leblanc 1 In their article, Albertsen et al. adeptly explore the ethical issues associated with this proposal, including unequal opportunity to access sentence reduction through organ donation and incongruities with mainstream theories of punishment. Though the sponsors of Bill H.2333 quickly revised language to exclude the stipulation of 60 to 365 days off an incarcerated person’s sentence, the article raises important ethical implications for many opportunities for sentence reduction. This commentary highlights the challenges incarcerated individuals face in their pursuit of sentence reduction with particular attention to the arduous processes of medical parole and parole.
Sparse and unpredictable opportunities for sentence reduction
The concern that the tradeoff proposed by Bill H.2333 would be “too good to refuse” reveals the scarcity of extant programs and pathways for sentence reduction.Reference Chooljian 2 Albertsen and colleagues identify unequal opportunity as a key problem with the proposal to donate an organ in exchange for sentence reduction, given the many exclusion criteria for potential donors (e.g., age, medical comorbidities). The authors offer alternative mechanisms for decreasing the length of time served that they believe would mitigate the problem of unequal opportunity. They specifically mention educational programs, avoidance of disciplinary problems, and compassionate release (also known as medical parole). Such examples hardly remediate circumstances. Ultimately, they exemplify the Herculean task of achieving sentence reduction.
In Massachusetts, medical parole is an elusive opportunity for early release despite having one of the oldest prison populations in the US.Reference Widra 3 Petitions for medical parole require the incarcerated individual to have “permanent incapacitation” or “terminal illness” with likelihood of death within 18 months in addition to a favorable public safety assessment completed by the Commissioner of the Department of Corrections. Between 2018 and 2023, the Department of Corrections received 693 requests for medical parole from 497 individuals. Only 12% of requests were granted. Black incarcerated persons were less likely to have medical parole granted than their White counterparts. Multiple incarcerated persons died after their medical parole was granted, before they could be released. Though medical parole is a process distinct from discretionary parole, it is similarly rife with delays and unclear expectations. 4 Although the Department of Corrections required individuals applying for medical parole to be permanently incapacitated, they also placed the burden of gathering medical documents on the incarcerated person until the onus was shifted to the Department of Corrections in a Supreme Judicial Court decision in 2020. 5 Denial of medical parole petitions have cited details of incarcerated persons’ original conviction as evidence of present danger to the community, even when such individuals were bedbound. The Commissioner has also cast skepticism on veracity of terminal illness contrary to medical evaluations and in spite of the known challenges in this type of prognostication.Reference Prost and Williams 6
Theories of punishment: Performance and parole
After addressing issues of unequal opportunity inherent to Bill H.2333, Albertsen et al. analyze the Bill’s incompatibility with various theories of punishment, namely general deterrence, retributivism, and communication. Their discussion, like the theories of punishment themselves, frequently invokes expressions of “genuine remorse” and “repentance.” Remorse is an emotional expression central to criminal legal proceedings, both pre- and post-conviction. Whether or not a parole board member perceives the incarcerated person’s expression of remorse as authentic can mean the difference between freedom and another five years until the next parole hearing. Remorse and contrition then amount to a “moral performance” — to demonstrate one’s character is different from the “wrongful act” that led to incarceration.Reference Weisman 7
In 1837, Massachusetts became the first US state to develop a parole supervision system. Under the initial legislation, parole officers were to help re-entering citizens find jobs, clothing, and transportation at the expense of the state.Reference Watts, Rhine and McDonough 8 Though the present-day parole board does not publicize formal parole release guidelines, significant stated factors in their decisions include: “severity of the governing offense, institutional behavior, institutional programming, the offender’s security level, the strength of offender’s transition plan, and victim or community input.” Many parole boards have moved towards risk assessment tools thought to increase objectivity in decision making, although it is now clear that many of these algorithms suffer from baked-in bias.Reference Angwin, Larson, Mattu and Kirchner 9
Reviewing the parole board’s Record on Decisions between 2017 and 2021, The Lifer’s Group at the Massachusetts Correctional Institution-Norfolk in Massachusetts compiled a list of Approval and Denial Factors in parole decisions for individuals serving a life sentence. 10 Denial Factors included “unaddressed issues,” “lack of insight,” “diminishes responsibility,” “factual inconsistencies,” and “limited program participation,” to name just a few. Several hurdles become readily apparent in speaking with incarcerated individuals about the factors critical to their being granted parole. “Program participation,” such as enrolling in anger management classes or engaging with Alcoholics Anonymous, constitutes an expression of remorse and accountability in the eyes of parole boards. But in Massachusetts, and most other jurisdictions, medium- and maximum-security facilities have far less access to educational and vocational programming relative to minimum-security settings. An individual can serve the first 15 years of their sentence, go before the parole board, and find out for the first time they were expected to participate in a specific program that may or may not be offered at their facility.Reference Shammas 11 “Lack of insight” is also ubiquitous in parole denials across states. It typically refers to an incarcerated person’s capacity to speak about their prior behavior in a way demonstrative of reform or rehabilitation.Reference Wattley 12 Unsurprisingly, this characterization is highly subjective, dependent on the specific social and cultural expectations of parole board members.
Conclusion: Few ways out
At parole hearings, the incarcerated individual must perform complex acrobatics. They must take responsibility for their actions while simultaneously demonstrating a new, reformed self. They must appear remorseful but not disingenuous in their emotions. They must never contradict themselves, even in hearings unfolding over decades. They must comport themselves as expected in a courtroom, where they may have little experience. Even when they meet all of these standards, they may leave with an unfavorable result; they will nevertheless be expected to return with renewed vigor and faith in the judicial system. Although incarcerated individuals in Massachusetts will not have to consider whether organ donation is worth a sentence reduction of 60 to 365 days, the institutions and bureaucracies that that control their fates will continue to demand their pound of flesh.
