Little noticed law sets off court fight over state’s responsibility to release inmates to reduce COVID risks

Lawyers for incarcerated people have begun seeking release of dozens of people

Language quietly added to the state budget in November has given hope to Massachusetts prison inmates that they will be able to get out early to lessen their risk of getting COVID.

So far, the state Department of Correction has refused early release for any of the 6,500 prisoners to reduce the risk of COVID-19, which has sickened hundreds and killed more than 20 inmates. The only exceptions have been paroles granted to some gravely ill prisoners for conditions unrelated to the pandemic.

But, on Wednesday, lawyers for a group of prisoners will ask a Suffolk Superior Court judge to order the Correction Department to follow the new law, which says the department “shall release, transition to home confinement, or furlough” people who can be safely released to reduce the risk of COVID.

“The statutory language is very clear,” said Elizabeth Matos, executive director of Prisoners’ Legal Services. “It requires the commissioner of correction to review everyone to see who is actually suitable for release. It doesn’t exclude anyone from release.’'

Despite the provision, added to the state budget by Senator Sonia Chang-Diaz of Boston, Matos said the Department of Correction has continued to oppose any early releases.

“We’ve sent multiple letters based on the language in the statute. Zero have been awarded. People are worried about dying inside,” she said in an interview.

She said the agency has been “glaringly and shockingly” careless in combating COVID-19. “These are people in the care and custody of the state. Regardless of why they’re there — everything should be done to prevent people from dying prematurely.”

Inmates and guards were among the first groups of people to receive vaccines in the state. Yet, vaccinating people is not enough, she said. Many inmates have refused to get vaccinated.

DOC Commissioner Carol Mici has argued the budget wording is not an order but simply reinforces the agency’s authority to decide who is safe to release and when.

In court papers filed Feb. 4, DOC lawyers said the language leaves the decision to the commissioner, “with her extensive correctional experience and knowledge of relevant statutes and regulations based on almost 34 years of employment with the department.”

“She has been doing this all along,” the lawyers wrote.

Mici said in an affidavit that 65 percent of the inmates — 4,272 — have already received the COVID vaccine and she “remains committed to providing the vaccine to all inmates who wish to receive it.”

One inmate looking to be freed is Lizette Nevarez, who has three years left of her 10-year sentence for unarmed robbery on an elderly person. She has a long record that includes assaulting elderly women, grabbing their purses, and then using the victims’ credit cards to buy items such as TVs.

She is being held at a minimum security prison, South Middlesex Correctional Center, and is by definition safe to release, said her lawyer, James McKenna. More than 550 people are serving time in minimum security facilities or pre-release centers, according to DOC records.

“The department places inmates in minimum security facilities only after a determination that they do not pose a significant risk to security, " he wrote in a petition filed Feb. 5 in Middlesex Superior Court.

Furthermore, McKenna wrote, “the department’s failure to release, transfer to home confinement, or furlough Ms. Nevarez is in breach of the new statutory requirements. Ms. Nevarez’ ongoing incarceration has become unlawful.”

In May, a judge found Nevarez “used her time in prison to transform her life ... and will leave prison more capable of leading a successful and crime-free life. She is already scheduled to be moved to a pre-release center, according to her lawyer.

Chang-Diaz offered the budget amendment, called “Harm Reduction for Congregate Facilities,” on the Senate floor Nov.18.

“There are active outbreaks of COVID at multiple prisons and jails and there will be more if the Legislature does not intervene,” she said, adding that the DOC has resisted calls to reduce the prison population, even from the Supreme Judicial Court.

“Because prisons are fundamentally unsuitable for social distancing, the only way to prevent more outbreaks is to commit to depopulation and harm reduction,” she said.

Chang-Diaz didn’t give a full explanation of the potential impact of the amendment, saying only that it “mandates that the commissioner of DOC consider expediting medical parole, using home confinement, maximizing good time to reduce sentences.”

It passed on a voice vote, without debate.

Governor Charlie Baker vetoed the measure, but the Legislature overrode his veto.

Chang-Diaz said she believes she characterized the amendment appropriately on the Senate floor and pointed out her colleagues twice voted for the measure without discussion. She said many lawmakers had for months been pressuring the Baker administration to move to reduce the prison population.

Norfolk District Attorney Michael Morrissey said he was unaware of the amendment and would have welcomed an opportunity to hear about it before it was enacted into law.

“It’s unfortunate that people are not including all the stakeholders,” he said. “I don’t remember anyone talking to the judiciary or prosecutors about something like this. You know what the prison population is in Massachusetts right now? We’re number 50 in the United States. No one incarcerates people less than we do. That says to me that we’re doing a good job putting the appropriate people in the state prison system.’'

Robert McGovern, spokesman for the Committee for Public Counsel Services, which provides lawyers to defendants who can’t afford them, praised the Legislature for giving “clear guidance to the DOC that, in order to save lives, it needs to release anyone who can live safely in the community.”

At Wednesday’s hearing in Boston, lawyers for 11 named plaintiffs as well as other inmates will ask a judge for “urgent relief” to protect them from COVID, including releasing enough prisoners so that others aren’t crammed into close quarters and immediately implementing home confinement and furlough programs for some inmates.