SJC hears arguments over releasing some inmates during the pandemic

Several district attorneys are opposed, saying they’d be better off in custody

The Supreme Judicial Court, which normally sits at the John Adams Courthouse, held its first telephone hearing ever to address the issue of releasing prisoners during the coronavirus crisis.Lane Turner/GLOBE STAFF FILE

Debate over efforts to head off a disastrous coronavirus outbreak inside Massachusetts prisons and jails intensified Tuesday, as several attorneys for and against the wide release of inmates presented arguments in a four-hour telephone hearing, the first in the history of the state’s supreme court.

With the rate of coronavirus infection rising, and most of the state relegated to working in isolation, justices and attorneys appeared via phone to debate a petition, filed last week, for inmates’ release.

The coalition, which includes the Committee for Public Counsel Services (CPCS), the American Civil Liberties Union of Massachusetts, and the Massachusetts Association of Criminal Defense Lawyers, says that crowded and unsanitary conditions make COVID-19 “virtually impossible” to stop in prisons and county jails.

Lawyers for the coalition on Tuesday argued for releasing nonviolent pretrial offenders, along with older inmates and those who are vulnerable to the virus or nearing the end of their sentences. Prisoners who pose a danger to public safety would not be released, they said.

The petitioners aren’t asking for blanket releases, but a faster process for reviewing the cases of eligible pretrial detainees, said Rebecca Jacobstein, who argued on behalf of the CPCS.

"We’re asking them to take a quicker look and to get people out faster,” she said.

Several district attorneys formed their own coalition to oppose the petition, arguing the move would put the public and the inmates themselves at risk. State and county authorities are cognizant of the disease threat to inmates and are taking precautions to prevent the virus from gaining a foothold in the facilities, they said in the response they filed.

A court-appointed attorney, BrienO’Conner of the Boston law firm Ropes & Gray, had attempted to negotiate an agreement on a system to release certain groups of inmates, such as those at greater risk for infection.

But Cape and Islands District Attorney Michael O’Keefe said the district attorneys rejected such a settlement because the wide release of inmates and pretrial detainees would be “unwise.”

To expect them to be released without proper housing plans, employment, or a place to self-quarantine is “absurd on its face," he said.

During the hearing, Justice Frank Gaziano questioned whether the request by the defense lawyers that all inmates 60 or older be released might mean that murderers like Edward Corliss would be free. Corliss was convicted in 2011 of gunning down a Jamaica Plain store clerk even after the clerk had given him $748 from the register.

“Does that case illustrate the danger of a blanket release?”asked Gaziano. But advocates for the inmates said they would not support releasing potentially dangerous prisoners.

To some observers, keeping people in cramped, possibly unsanitary conditions could amount to a death sentence.

“These people were sentenced, but not sentenced to death,” a retired federal judge, Nancy Gertner, said in an interview. “This is a tragedy in the making.”

So far, the department’s efforts to prevent a wide outbreak of the virus have mostly worked. Only 17 of the estimated 8,000 inmates in state custody have turned up infected with the virus, all of them housed at the Massachusetts Treatment Center in Bridgewater. Five Department of Correction staff have tested positive.

Meanwhile, prosecutors in several counties have begun identifying prisoners awaiting trial who could be released. Advocates have asked prosecutors to consider releasing inmates being held on bails of $5,000 or less, are over age 60, or have preexisting medical conditions.

In Norfolk County, about three dozen inmates met the CPCS criteria, and a handful have been released. But both Norfolk District Attorney Michael Morrissey and Sheriff Jerry McDermott said they oppose the blanket release of inmates.

“In my jail and House of Correction, I have zero inmates positive,” McDermott said in an e-mail to county prosecutors. “Why would we send them out to the streets and put them at greater risk?"

But the virus has begun to spread to some county jails. Middlesex County Sheriff Peter. J. Koutoujian announced last week that a detainee had tested positive for the virus, while another was quarantined. Plymouth County Sheriff Joseph D. McDonald Jr. later announced a department employee had tested positive for the virus.

Criminal justice advocates across the country have issued dire calls for the compassionate release of eligible unhealthy and elderly inmates, even as victims’ rights advocates push back.

Two inmates at a Texas prison filed a federal lawsuit against the state Monday, claiming its failure to take preventive steps against the virus’s spread have turned the facility into a “ticking time bomb.”

At the SJC hearing, Matthew Segal, representing the Massachusetts Association of Criminal Defense Lawyers, urged the justices to decide the case immediately, calling it “an opportunity to save the lives of incarcerated people who are especially vulnerable."

Chief Justice Ralph Gants said the court hopes “to have this resolved as quickly as is practicable."

The court could release a decision as soon as Wednesday.