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Law360 (April 17, 2020, 4:29 PM EDT) -- Massachusetts' attempt to thin out its jails and prisons to stem the raging spread of the coronavirus is failing, two defense counsel groups said Friday, asking the state's top court to revise its two-week-old measure and up the pace of releases.
The groups said that the Supreme Judicial Court's hands are not tied on staying sentences of inmates, especially those who do not have an appeal pending or a motion for a new trial. The request for reconsideration also asks the court to clear the many "roadblocks" to release being set up by the Department of Correction, the Parole Board and county sheriffs.
"It appears that the Commonwealth is not on a path to solve the coronavirus outbreaks in its prisons and jails, but instead is burying its head in the sand," the Massachusetts Association of Criminal Defense Lawyers and the Committee for Public Counsel Services wrote.
"Reasonable people might disagree about how many releases are needed to achieve an acceptable level of risk inside and outside prison walls," they continued. "But it cannot reasonably be disputed that the current rate of releases is inadequate to protect incarcerated persons, correctional staff, and the general public."
The state corrections department and sheriffs have reported at least 180 inmates with COVID-19 and at least 138 staffers with the virus, the groups said, though the real extent of its spread is unknown due to low testing numbers.
Since the SJC's April 3 opinion establishing a scheme to allow the release of pre-trial detainees and others who had been convicted and only recently sentenced, 449 people have been released.
The groups applauded the releases but warned that they coincide with an explosion of infections and offer no encouragement that the current process will have the desired effect of stemming the tide of illness and death in jails and prisons.
Contrary to the SJC's opinion, the high court can stay sentences lacking a pending appeal or a request for a new trial, the groups said, and the move raises no issues regarding the separation of powers, which the count pointed out would come with shortening or modifying a sentence.
"Incarcerated people should be allowed to ask that their sentences be paused during this pandemic, so they can finish them when it would not risk their health or life to do so," the groups wrote.
The second stated aim of the reconsideration motion is to sort out a host of issues standing in the way of the process working as it should.
"Nearly two weeks of implementation have demonstrated that this is not happening fast enough, partly because petitioners cannot clear roadblocks as fast as others create them," the groups said.
The defense groups said the DOC's daily reports lack vital information, several counties have refused to provide lists of people held pending probation violations and the Parole Board is not quickly releasing inmates who had already been granted parole.
The groups also want the court to allow the release of people who test positive for the virus, instead of having them quarantined behind bars. And they want the court to force prosecutors to respond within two days to a motion for release rather than the current two weeks.
The SJC's April 3 ruling set up a system run by Special Master Brien T. O'Connor of Ropes & Gray LLP to facilitate requests between defense attorneys, prosecutors, sheriffs and the Department of Corrections and oversee the process whereby certain inmates qualify for a presumption of release during the pandemic.
Representatives for the parties were not immediately available for comment Friday.
The petitioning groups are represented by Rebecca Jacobstein of the Committee for Public Counsel Services and Matthew R. Segal of the ACLU of Massachusetts.
The chief justices of the trial court are represented in-house by Dan Sullivan.
The Department of Corrections and Parole Board are represented in-house by Charles Anderson.
The Suffolk County district attorney's office is represented in-house by Donna Patalano.
The Northwest, Berkshire and Middlesex district attorneys are represented by Tom Ralph.
District attorneys from the other districts are represented by Jane Sullivan from the Worcester district attorney's office.
The sheriffs are represented by Robert Harnais.
The case is Committee for Public Counsel Services et al. v. Chief Justice of the Trial Court et al., case number SJC-12926, in the Supreme Judicial Court of Massachusetts.
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
