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Columnist Bill Newman: Supreme Judicial Court missed chance to save lives

  • Hampden County Sheriff's Department staff wear protective mask while on duty at the House of Corrections in Ludlow. ( Mark M.Murray/Hampden County Sheriff'sDepartment) Mark Murray

Published: 4/5/2020 6:20:59 PM

“This petition seeks extraordinary relief for extraordinary circumstances.” That is the first sentence in the emergency petition filed at the state Supreme Judicial Court, seeking an order to release many persons locked up in Massachusetts because of the dire threat that the coronavirus poses to them.

The case, filed by the Massachusetts Association of Criminal Defense Lawyers and the state public defender agency, moved fast – filed on March 24, argued by telephone on March 31 and decided on April 3. (Disclosure: I am the western Massachusetts attorney for the ACLU of Massachusetts, which represents the Committee for Public Counsel Services, the public defender agency, in this case.)

The fundamental facts were not in dispute.  COVID -19 is extremely contagious and easily transmitted.  There is no vaccine and no cure. Asymptomatic persons can spread the disease. The only defense is social distancing and vigilant hygiene.  Often the cases are mild, but sometimes they turn fatal.

“[C]orrectional institutions face unique difficulties in keeping their populations safe during this pandemic [because] confined enclosed environments increase transmissibility, and maintaining adequate physical distance [six feet of separation] may be nearly impossible in prisons and jails.” That quote comes from the court’s decision.

Adding to the dilemma, penal institutions, not surprisingly, are not set up to treat serious cases. Hospitals are. But hospitals across the commonwealth, already face the daunting task of needing to treat too many patients with too few available beds with the potential for a dwindling supply of surgical masks and other basic critical protections and equipment, including ventilators, which in the opinion’s words, may already be “in short supply.”

On March 10, Gov. Charlie Baker declared a state of emergency. On March 11, the World Health Organization declared the COVID-19 virus a global pandemic. “Since then,” as the decision states, “infections have spread alarmingly, rapidly and at an increasing rate both in Massachusetts and throughout the world.” 

Prisons in Massachusetts house a large number of particularly vulnerable populations. Many suffer from chronic diseases, and about 1,000 of the 15,600 individuals incarcerated are 60 or older, demographics particularly at risk. COVID-19 has already infected prisoners and staff at correctional facilities in Massachusetts, and once COVID-19 is within a facility, the odds of the infection spreading like wildfire among inmates are dangerously high. Time is not on their side.

Or ours. Some sheriffs have instituted measures to try to prevent the virus from entering their jail and to make their facilities safer, but that is a Sisyphean task. The lawsuit, which focused on the devastation that COVID-19  would wreak among people who live behind the razor wire, also  made plain that a coronavirus outbreak would put the employees, who daily come and go from the facility, as well as their families and communities, in harm’s way.

The way to avoid COVID-19 outbreaks in penal institutions and the illnesses and deaths that will result is to reduce the numbers of people who are incarcerated. The lawyers for the prisoners and detainees in their brief correctly analogized the present situation to sailing on the Titanic where, as they said, “[t]he only safe places were off the ship.”

Back to the decision: With regard to persons held on bail, the court ruled “that the risks inherent in the COVID-19 pandemic constituted a changed circumstance within the meaning of [the Massachusetts bail statutes].” Translation: All accused persons held on bail, except those charged with violent or serious offenses, may return to court for a new bail hearing at which they will have a presumption in their favor that they should be released with no cash bail. The trial court must make a decision within two business days of the detainee filing a request for release.

With regard to sentenced prisoners, the court ruled – wrongly in my opinion – that its supervisory authority over the lower courts gave it no authority to revise and reduce sentences and order prisoners released from carceral settings. This was an enormously consequential missed opportunity to do justice. 

The court did exhort executive branch agencies to act, specifically citing the Parole Board, which could expeditiously free many people very quickly. And other tools are available. 

The governor, for example, has the power to grant clemency. Sheriffs can reclassify inmates to forms of detention outside the institution, including house arrest. Superintendents  of state prisons can expedite the compassionate release of persons with terminal illnesses. The police can forego discretionary arrests. Probation and parole can stop busting people for technical violations. District attorneys can, and should, support petitions for pretrial release. Courts should impose cash bail only in the rarest of circumstances.

In addition, the Legislature could act. It could retroactively abolish mandatory minimums and allow resentencing; or give courts wide power to reconsider sentences; or pass a law commanding the release of a sufficient number of persons to make penal institutions safer from COVID-19.

This case that began with the emergency petition is not over. The court reserved for another day a decision on whether COVID-19-created-conditions violate due process or the prohibitions against cruel and unusual punishment.

For now the court has ordered sheriffs in each county and the Department of Correction to provide daily reports of inmate counts and rates of COVID-19 cases “as well as the number of inmates who have been released pursuant to … this decision.”

Hopefully this mandated transparency will motivate the criminal justice system to act and act quickly. Hopefully, it will not be too late. Sadly, it probably will be.

Bill Newman is a WHMP radio talk show host, a partner in the Northampton law firm Lesser, Newman, Aleo  & Nasser and a regular columnist for this newspaper. The views expressed here are his and not necessarily those of any organization with which he is affiliated.

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