Those Confining DiMasi Are Challenged to Make a Better Case for His Freedom

Friday, October 21, 2016

I’m hoping the U.S. Bureau of Prisons (BOP) does a bang-up job on the homework assignment it’s been given by Judge Mark Wolf in the matter of freeing Sal DiMasi, former Speaker of the Massachusetts House.

Sal’s been in prison for more than four and half years.  He should have been paroled two years ago, if not earlier.
On Oct. 13, the BOP filed a motion in the federal district court in Boston to grant DiMasi a “compassionate release” due to his age, 71, and poor health.  According to the motion, DiMasi suffers from “cancer of the tongue and prostate, atrial fibrillation, hyperlipidemia, esophageal stenosis, esophageal reflux, acid reflux, and musculoskeletal pain.”

Four days later, Judge Wolf responded to the motion with an eight-page memorandum and order. In 2011, Wolf had presided at DiMasi’s trial and given him an eight-year prison term after the jury found him guilty.
I was glad to see, when I read the memorandum/order, that Wolf had not expressed opposition to the release of DiMasi, but rather wanted more information and evidence from the BOP in support of its position that it was time to release him.

“…the government has provided the court only unverified statements,” Wolf wrote, “but not any evidence, regarding DiMasi’s medical history in prison, current medical condition, prognosis, or ability to function in prison.” (NOTE: The underlining of “evidence” is Wolf’s work, not mine.)
Wolf added, “The government has also failed to provide the court with evidence concerning other matters that the court is required to consider in deciding whether a motion filed pursuant to Section 3582 (c) (A) (i) [of the United States Code] is meritorious.” Those other matters are: the history and characteristics of the defendant, particularly his current medical condition and his experience in prison; the need to avoid unwarranted sentence disparities, and the need to promote respect for the law.

“The court must have evidence, and a complete explanation,” Wolf wrote, “to understand and evaluate the grounds for the Motion,” before declaring: “Neither has yet been presented.”
Wolf concluded with an order to the BOP to file with the federal court by next Thursday, Oct. 27, “one or more affidavits and a memorandum in support of the Motion, which addresses, among other things, the issues discussed in this Memorandum.”   He also indicated that he would accept from DiMasi’s legal team “one or more affidavits and a memorandum in support of the Motion,” should it choose to produce such materials.

The news coverage of this latest development in the DiMasi case zeroed in on two paragraphs in Wolf’s memorandum/order, wherein the judge cited the small number of federal prisoners who have been released on compassionate grounds, and raised the question -- emphasizing that it “is only a question” -- of whether the BOP director’s decision to seek DiMasi’s release “was influenced by DiMasi’s former status” as a House Speaker “and the stature of some who may be advocating for his release.”  
Wolf wrote, “The Motion does not provide argument, let alone evidence, concerning how often, if ever, motions for compassionate release are filed on behalf of persons similarly situated to DiMasi.  This question is important to whether a reduction of sentence would reasonably be viewed as a form of unwarranted disparity based on power or privilege, which could injure respect for the law, a relevant Section 3553(a) factor the court is required to consider.”

When I heard Wolf had filed an eight-page document in response to the BOP motion, I reacted emotionally against it.  DiMasi is a broken man.  He made a big mistake, taking bribes from a software vendor doing business with the state, and he’s paid a big price.  He has lost his reputation, his monetary assets, his pension, his license to practice law, his health and his freedom.  Fifty-six months is a very long time to be locked up.  No doubt he has aged at least 112 months during that time.  “What a nitpicker this Wolf is!” I thought.  “Does he have even an ounce of compassion in his bones?”
When I actually read Judge Wolf's memorandum and order, however, I found it to be well-reasoned, well-written and airtight in its logic.  I was also impressed by his sincere concern that the process “promote respect for the law.”  All the greatness of the United States (yes, Donald, we ARE great) rests on our system of laws, how well we uphold it, and how much we respect it.

May the BOP overwhelm His Honor with the quality of what it hands the court on Thursday.



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