By: Jarrod Nelson, JD ’21

Source: Pixabay

*Calvin resides in a prison that for him is also a purgatory. For nine years, Calvin has found himself at the center of a legal controversy that involves two state agencies which, despite their considerable power over his life, have portrayed themselves as helpless to assist in his transition back to society.

In 2010, Calvin was granted parole by the Massachusetts Parole Board, on the condition that he be admitted to a Massachusetts Department of Mental Health (DMH) inpatient facility for continued treatment of his mental illness. For years, Calvin had handled his illness well, consistently working at a job in the prison and avoiding any disciplinary issues. “Calvin’s institutional adjustment has been excellent,” the Board said at the time.

However, this seemingly straightforward condition turned out to be anything but. Massachusetts is a state of over 6 million people but has just over 2,500 inpatient psychiatric beds for them. Thus, when DMH denied him services, Calvin found himself between the rock of knowing he had qualified for parole, and the hard place of not being able to claim it. DMH’s denial of services meant that Calvin had his conditional parole rescinded.

It was at that point that the Harvard Prison Legal Assistance Project (PLAP), jumped in on Calvin’s behalf. PLAP is a student practice organization in which HLS students volunteer to represent state prisoners in parole and prison disciplinary hearings. Since 2014, six student attorneys from PLAP have appeared before the Parole Board on Calvin’s behalf, and finding no adequate resolution there, have filed suit in the Superior Court. The case was being handled by Regina Powers ’19 and Justin Kenney ‘19, who were supervised by Joel Thompson, one of two attorney supervisors that work with PLAP. The parole process has been marked by the Board’s insistence that DMH be involved in any potential placement for Calvin, and DMH’s insistence that Calvin does not qualify. A Board-appointed forensic psychologist made his own determinations about Calvin’s treatment and potential release plan, noting that Calvin’s case represented “a classic example of bureaucratic rules overcoming common sense, and an unnecessary correctional system expense with no clear end-game to break the deadlock.”

Unfortunately, the psychologist’s report fell on deaf ears. When the Board last saw Calvin, in 2017, it flatly denied parole, postponing his next parole hearing for three years. Moreover, and seemingly without irony, the Board suggested that Calvin apply for DMH services while he awaited his next hearing.

PLAP appealed the Board’s decision to the Massachusetts Superior Court. This is not the first time that PLAP students have sought judicial review of an agency’s decision. It is the first time, however, that PLAP has pled in not one but two agencies: the Parole Board and DMH.

Along with a claim that the Board’s decision was arbitrary and capricious, the lawsuit alleges that the Board and DMH have each violated the Americans with Disabilities Act by failing to develop a workable release plan, essentially keeping Calvin in prison because of his mental illness. The claim follows a recent PLAP victory in a case involving the ADA’s application to the parole process, Crowell v. Massachusetts Parole Board.  In that case, the Supreme Judicial Court of Massachusetts confirmed that the mental disability of a parole candidate must be accommodated as part of the parole process.

Powers and Kenney successfully fended off a motion to dismiss from DMH. Oral argument was recently held on the question of whether the Board’s latest decision is arbitrary and capricious, with further development of the ADA issue to follow.

Calvin is 61 years old. He has been in prison for 22 years. For the last nine of those years, he has been advised that, with the right treatment plan in place, he could be released on parole. It is hoped that, with a favorable outcome in court, he will not have to wait any longer.

*Names changed to protect the client’s confidentiality.