A coalition of defense lawyers and advocates has asked the state Supreme Judicial Court to order the release of inmates from state prisons and jails to protect them and others from COVID-19, whose spread in correctional facilities is “virtually impossible" to stop, they said.
“There are hundreds of vulnerable people behind bars who are no danger to society," said Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, which represents public defenders across the state. "Every day they remain locked up is another day they are serving a sentence they were not given — a punishment that forces them to potentially live in close quarters with a deadly, highly contagious virus.”
So far, the state Department of Correction reports that eight state prison inmates have tested positive for COVID-19, the disease caused by coronavirus, all of them at the Massachusetts Treatment Center in Bridgewater.
CPCS, the ACLU of Massachusetts, and the Massachusetts Association of Criminal Defense Lawyers filed an emergency lawsuit, asking the Supreme Judicial Court to release inmates who are being held before trial, as well as vulnerable inmates who are near the end of their sentences.
Prisoners who pose a threat to public safety would not be released, the lawsuit says.
Some prosecutors have already been preparing lists of defendants they believe can be safely released, but several district attorneys say the prison doors should not be thrown open simply because of the threat of contagion.
“It makes no sense," said Cape and Islands District Attorney Michael O’Keefe, "particularly for the law-abiding citizens who are being protected from these people in the first place. Now we’re going to release them to the community?”
Over the past several days, prosecutors in several counties have identified prisoners awaiting trial who can be released, generally applying criteria suggested by defense attorneys. CPCS last week asked prosecutors to consider releasing inmates being held on bails of $5,000 or less, are over age 60, or have preexisting medical conditions that make them vulnerable to infection.
In Norfolk County, about three dozen inmates met CPCS’s criteria, and a handful have already been released. But Norfolk District Attorney Michael Morrissey said he needs to evaluate inmates for release individually.
“I’m not going to wave my magic wand and let someone out of the house of correction simply because they have low bail,” Morrissey said. “Some of them committed difficult crimes and already had their bail lowered.”
Some prosecutors say they would consider releasing more prisoners if they could attach conditions, like electronic monitoring.
But this week the state’s high court issued an order barring probation officers from placing new electronic bracelets on most defendants because applying the bracelet requires the probation officer to be in close contact with the defendant.
In Middlesex County, Sheriff Peter Koutoujian and District Attorney Marian Ryan have worked to identify good candidates for release. More than 40 pretrial prisoners have been freed, 12 of whom were bailed out by the Massachusetts Bail Fund, which provides cash for inmates held on $1,000 or less.
Several others were not released at the request of their lawyers, Ryan said.
“The inmates and the employees are all trying to avoid something taking hold and spreading rapidly in one of these institutions," Ryan said. "We have a moral imperative to protect everyone’s physical safety, but it has to be balanced with public safety and having a collaborative approach.”’
Koutoujian said he’s worried about what will happen to the released prisoners once they hit the streets.
“A lot of these individuals don’t have a place to go," he said. “They don’t have a bed to sleep in. They don’t have a physician to treat them. I’m concerned about taking them out of our facility, putting them on the streets and they become someone else’s problem, whether because they’re now a public safety issue or, more predictably, they end up in local emergency rooms and homeless shelters.”
The Worcester County House of Correction’s superintendent, David Tuttle, said he compiled a list of inmates who meet the defense attorneys’ criteria for release, but said his list contained inmates too dangerous to be set free.
“We don’t have nice people here,” Tuttle said. “The very first name on the list here is someone held on an indecent assault and battery on a child under 14. Under the CPCS criteria, he would be the first one to hit the streets.”
“It’s really misguided and dangerous to the public,” Tuttle said. "As a resident of Worcester County, I am scared for my family and my friends and neighbors by some of these people being put back on the streets.”
In Berkshire County, District Attorney Andrea Harrington said there are inmates who could be released without endangering the public.
And by freeing up beds, the jails can make room for people who commit acts of family violence, which experts say tend to increase during crises.
“People become more vulnerable and isolated," Harrington said. "We’re focusing on how to protect these people. We need to have enough room in our correctional facilities to house those people who present a threat.
"We have an interest in keeping those people incarcerated,” she said.
The lawsuit targets the chief justice of the trial court, who must now respond. Then the SJC will hold a hearing — perhaps a remote one — before making a decision.
Vernal Coleman of the Globe staff contributed to this report.
Andrea Estes can be reached at firstname.lastname@example.org.