State’s top court OK’s potential release of prisoners being held for trial to ease ‘coronavirus crisis’

Advocates argued that inmates faced heightened disease risk

Correctional officers used alcohol hand sanitizer before entering the main cell block area at the Worcester County House of Corrections in West Boylston.David L. Ryan/Globe Staff

The state’s highest court on Friday ruled that inmates awaiting trial — except those facing violent and other serious charges — may be released to help relieve the “crisis engendered by the COVID-19 epidemic.”

“We agree that the situation is urgent and unprecedented, and that a reduction in the number of people who are held in custody is necessary,” wrote Justice Frank Gaziano, in a 44-page decision.

But the court rejected pleas from a coalition of criminal defense lawyers and advocates who had sought the release of many more prisoners — including those who were already convicted. The court said it does not have the authority to change sentences after they have been imposed.

The court, instead, urged the Massachusetts Parole Board to act more quickly to approve the release of inmates nearing the end of their sentences, or who have already been approved for parole but haven’t yet been released.

“This [decision] will result in some releases in the counties and very few, if any, in the [state prisons],” said Elizabeth Matos, executive director of Prisoners’ Legal Services. “I have little faith that the Parole Board will feel the least bit influenced by the court’s strong encouragement for them to act to release individuals approved for parole, but they clearly should.”

The ruling calls for inmates seeking release to file motions, which will be heard within two days. Any pretrial detainee will be presumed eligible for release unless they’re being held without bail, present a flight risk, or post an “unreasonable danger to the community."

Matthew Segal, who argued the case for the defense lawyers, echoed Matos’s reaction.

“We are glad that this decision affords some relief for pretrial detainees, as well as important reporting requirements,” said Segal, legal director at the ACLU of Massachusetts. “But we believe it falls short of what is necessary to prevent more illness and death among people in custody, correctional staff members, and the broader community. "

The decision came in response to a lawsuit filed last week by the advocacy groups. In a marathon hearing Tuesday, they argued for the swift release of pretrial offenders, along with older inmates and those who are vulnerable to the virus or nearing the end of their sentences. Inmates who pose a danger to public safety would not be released, they said.

Massachusetts correctional facilities, like many of America’s 6,000 prisons and jails, are filled with aging and infirm inmates, many of them suffering medical conditions that could worsen with a coronavirus infection.

Already two inmates at the Massachusetts Treatment Center in Bridgewater have died of coronavirus, the Department of Correction confirmed on Friday, including a man in his 50s who had been in custody since 1993 and a man in his 70s who had been at the Bridgewater facility since 2016

Neither victim was identified, but both had underlying health conditions, department officials said. The older man suffered a stroke, officials said in a statement.

They are among dozens of people who work or live inside state prisons who have become infected with the coronavirus. So far, 25 inmates statewide have tested positive for the virus, along with 17 prison employees, at seven facilities, according to the department.

It’s unclear exactly how many inmates may be released under this order. Some district attorneys and sheriffs say the number could be in the hundreds, but they said that large numbers of inmates would not qualify for release because they are charged with serious crimes. Of some 400 pretrial detainees now held in the Middlesex County House of Correction, 119 will be eligible for release.

Middlesex County District Attorney Marian Ryan and several other district attorneys hailed the SJC decision, saying it codifies a process they have already put in place. More than 80 inmates at the BIllerica jail have already been released in an effort to reduce the inmate population, according to Ryan.

“We think this is a good result,” she said. "We’ve done individualized reviews looking at the science behind the pandemic and assessed the risks posed to both the new detainees and people being held and balanced that with public safety. We also think about what awaits them if we release them.”

Michael O’Keefe, district attorney for the Cape and Islands, called the ruling “a considerable victory.”

Had the court ruled in the defense lawyers’ favor, he said, it would have “let people guilty of restraining order violations, sex crimes against kids to be willy-nilly released. People convicted of some serious crimes would automatically be released.”

"This decision recognizes the limitations of the court to do those kind of broad-based release of prisoners. I’m happy the court recognized the limitations of their power and issued an opinion consistent with those limitations,” said O’Keefe, one of seven district attorneys who opposed the lawsuit.

The SJC did offer some hope to inmates serving sentences. The court said if the inmates are just starting their sentences, they can request their sentence be revised or thrown out. In addition, if their cases are on appeal, or they have a motion for a new trial, they can seek a stay, citing the risk posed by COVID-19.

They can also appeal to the parole board for their release.

In their presentation to the SJC, advocates for prisoners had argued that it’s virtually impossible to protect inmates from the spread of coronavirus, in part because some practices thought to slow the spread, like social distancing and frequent hand-washing, aren’t feasible behind bars.

In fact, correction officials confirmed on Thursday that most state prisoners are routinely within 6 feet of other inmates, violating public health guidelines for social distancing. Department of Correction officials said around 70 percent of prison inmates sleep within 6 feet of one another in cells or dormitory-style rooms.

Detainees at county jails sleep in similar arrangements. Over 50 percent of inmates at county jails in Bristol, Middlesex, and Worcester counties sleep within 6 feet of each other in bunk beds, according to letters submitted to the court. Jail inmates in Hampden and Essex counties sleep in bunk beds, but remain 6 feet apart by positioning themselves in a head-to-toe arrangement, officials said.

Advocates for the inmates argue that releasing non-dangerous, vulnerable inmates to free up space inside the facilities is one of the few ways to prevent outbreaks.

But state prison and county jail officials countered that there are steps they can take to make inmates safer. Authorities recently placed two state prisons under quarantine, severely limiting inmates’ movements and interaction, in hope of slowing the spread of the virus. The Massachusetts Correctional Institution in Shirley was ordered locked down for 14 days after an inmate and an employee at the prison tested positive for the virus.

Department authorities are focused on reducing, to the greatest degree possible, the potential impact of this virus, said Jason Dobson, a Department of Correction spokesman.

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