Had he known about the health problems former Speaker Salvatore DiMasi would experience following his 2011 corruption conviction, federal Judge Mark Wolf would have taken that into consideration in crafting a prison sentence, he said Tuesday.
"I intended to give him a long sentence. I didn't intend to give him a life sentence," Wolf told lawyers for DiMasi, the U.S. Attorney and the Bureau of Prisons, who are all seeking an early "compassionate release" for the former speaker.
A Democrat and architect of the 2006 health reform law that formed a basis for the federal Affordable Care Act, DiMasi suffered tongue cancer in prison, which spread to his neck, and now experiences choking episodes making it difficult to eat, according to court filings.
Wolf on Tuesday took the matter under advisement and said he might call the parties into court for a ruling, saying the matter is one of "urgent importance." He did not specify a date when he might render a decision.
On her way out of the courthouse on Tuesday, Deborah DiMasi, the former speaker's wife, said she is "cautiously optimistic" her husband will be freed early.
On Sept. 9, 2011, Wolf sentenced DiMasi to eight years imprisonment for a corrupt scheme that allegedly netted the speaker $65,000 in bribes. DiMasi is currently projected to be released in November 2018, taking into account time off for good behavior, according to federal authorities.
In a hearing that lasted close to 90 minutes Tuesday morning, Wolf mused on the uniqueness of the government's motion to let DiMasi out early, calling it "an unprecedented proceeding in my personal experience." He said, "Nobody's ever seen one."
Wolf said that up until 2013, the Bureau of Prisons only moved for compassionate release in cases where the inmate is terminally ill, which is not the basis for DiMasi's release motion. First Assistant U.S. Attorney William Weinreb said in his 17 years within the federal prosecutor's office he had not seen a compassionate release motion.
A federal judge since 1985, Wolf questioned whether the federal government has sought DiMasi's release because of his influence and former status.
"It's important that he be treated equally, the same as any similarly situated inmate. Not better. Not worse," Wolf said. He said he wanted to avoid "any unjustified favorable treatment of the defendant."
"The system is designed to ensure against that. And the procedures that were followed in this case I think make it clear - there's no reason to suspect that crept into the system," Weinreb said.
"We're here because advocacy played an appropriate role in persuading the Bureau of Prisons and the Justice Department to take another look," said Charles Rankin, one of DiMasi's attorneys. Rankin said a swallowing test performed on the former speaker in August played a key role in convincing the federal government DiMasi should be released.
Wolf appeared sympathetic to the idea of letting DiMasi out early while stressing his obligations as a judge to rule on the motion, saying it would require "evidence and explanation." Wolf said it seemed to him that a "more liberal, arguably more humane interpretation" of compassionate release policies is "appropriate" and contemplated conditions that could be placed on the former speaker if he is released early.
Wolf proposed potentially letting DiMasi out of prison while confining him to his home, except for holidays, medical appointments and religious observances. DiMasi is former resident of Boston's North End, but his family now lives in Melrose.
Noting DiMasi's difficulty swallowing, Wolf also discussed potentially restricting him from drinking alcohol.
Rankin, who said all the former speaker's lawyers are working pro bono, said he would speak with his client and file a response to the idea of potential restrictions on Wednesday. DiMasi's other attorneys are Thomas Kiley, John Reinstein and William Cintolo.
"His family wants nothing more than to have Sal back," Reinstein told reporters outside the courthouse. He said, "He's not going to get special treatment because he's a former speaker."
DiMasi's motion for compassionate release is based on his ailing health at the age of 71, his difficulty eating and the trouble his conditions cause him within a correctional institution. DiMasi is serving his time in an "outpatient unit" at Butner, a low-security federal penitentiary in North Carolina.
Though Democrats cheered last month's news that the Bureau of Prisons wants to release the former speaker early, Senate President Stan Rosenberg was the only public official to write to "decisionmakers" in the federal prison bureaucracy seeking DiMasi's compassionate release, according to a filing by federal prosecutors.
Congressman Michael Capuano wrote the Bureau of Prisons in the spring of 2014 asking for DiMasi to be transferred closer to home, at a correctional facility in Devens, and then inquired why that hadn't happened, according to the filing. Rosenberg's Dec. 14, 2015 letter to Bureau of Prisons Director Charles Samuels, Jr., asked for DiMasi's transfer to Devens or release.
"He is halfway through an eight-year sentence and, in that time, has been diagnosed with cancer twice," Rosenberg wrote. "Given the severity of his health problems, Mr. DiMasi's family is deeply concerned he may not survive to serve the remainder of his sentence."
The investigation into DiMasi, who secretly steered a multimillion-dollar state contract toward Cognos Corp., rocked Beacon Hill, leading to House Speaker Robert DeLeo's ascension and passage of an ethics reform law.
Deborah DiMasi this session lobbied for passage of legislation (S 2433) establishing a "medical parole" program in Massachusetts law. The bill cleared the Senate and landed in the House Committee on Ways and Means in July.
Rep. Aaron Michlewitz, who was DiMasi's constituent services director before winning election to his old House seat, attended Tuesday's hearing and said he had visited DiMasi in prison twice, including last October.
"I've watched him eat. I've watched the challenges that he faces with that," Michlewitz told the News Service. He said, "The weight loss is dramatic."
David Guarino, who was DiMasi's communications director and deputy chief of staff, said he visited his old boss last month and estimated the former speaker had lost close to 70 pounds, though his "intellect, his wit, his sense of humor" remained "very much intact."
Jason Aluia, who was DiMasi's legislative director and deputy chief of staff, attended the hearing, along with members of DiMasi's family and friends, according to Guarino.
Saying he is optimistic because of the judge's pondering conditions that could be made on release, Guarino harkened to Wolf's remarks that he had not intended to give DiMasi a life sentence.
"I'm not a doctor, but I think that's what's at stake here," Guarino told the News Service outside the courtroom on the fifth floor of the Moakley Courthouse. Guarino said there is a good case for DiMasi's release "regardless of how you feel about the charges, the trial and the sentence."
After a jury found him guilty, U.S. Attorney Carmen Ortiz branded DiMasi as a symbol of the "culture of corruption" on Beacon Hill - an accusation that continues to have resonance among Massachusetts Republicans who make up a slim minority of the Democrat-dominated House and Senate.
Ortiz has since communicated with the Bureau of Prisons about DiMasi's release, according to Weinreb. Wolf asked whether she meets with others seeking compassionate release, to which Weinreb replied with a "resounding yes," saying Ortiz frequently meets with defense attorneys who say their clients are not being treated appropriately.
