By Brian Dowling

Law360 (May 12, 2020, 6:33 PM EDT) -- A Massachusetts federal judge on Tuesday hammered U.S. Immigration and Customs Enforcement and county detention officials for "cavernous holes" in their COVID-19 mitigation strategy — from blanket bail refusals to weak testing and contact tracing plans — calling it evidence of "deliberate indifference" to detainees' health risks.

Expanding on a Friday bench ruling, U.S. District Judge William Young contrasted the "lackluster" response inside the Bristol County House of Correction to the bold moves ordered by the U.S. Attorney General and the Massachusetts Supreme Judicial Court to lessen the risk that people in jail and prisons will contract and spread the virus.

Those actions "highlight that diverse governmental actors see the need for serious thought and actual efforts to release those whose confinement is not worth the cost," Young wrote in a memorandum. "In this case, the authorities have displayed the contrary mindset. Where elasticity is vital, they are rigid; where life hangs upon a carefully drawn line, they opt for near-blanket incarceration. That is evidence of deliberate indifference."

Inmates in the southeastern Massachusetts jail sued in late March, citing the facility's failing response to the virus and unsanitary conditions. Judge Young certified the detainees as a class and released 50 on bail.

Tuesday's decision outlined Judge Young's rationale for ordering Friday that ICE must pay for the facility to test all of the federal immigration detainees in its care, as well as all jail employees, and that the facility must halt taking in new detainees.

"The detainees have demonstrated at least three cavernous holes in the government's mitigation strategy — holes it has obstinately refused to plug throughout this litigation," Young wrote.

The judge said Bristol County Sheriff Thomas Hodgson and jail supervisor Steven J. Souza, along with federal attorneys responding to the detainees' request for release, offered a "wholesale blockade on bail," without an alternative plan to reduce the jail population to a safe number that could accommodate social distancing.

The court compared the government's bail refusals to Herman Melville's character Bartleby, the Scrivener, "who met every reasonable request with a firm 'I would prefer not to,'" and said it was "beyond the realm of reason" to think the jail was impregnable to the virus.

Judge Young's order found that the detainees' case met the bar for the preliminary injunction for testing and barring new immigration admissions to the facility.

"Keeping individuals confined closely together in the presence of a potentially lethal virus, while neither knowing who is carrying it nor taking effective measures to find out, likely displays deliberate indifference to a substantial risk of serious harm," the judge wrote.

The judge found that the harms faced by detainees far outweighed the supposed harm to the government of testing everyone or releasing some inmates on bail.

"Even the government's 'outward' protective duties of custody, those it owes to the public at large, are jeopardized by locking up as many inmates as possible," Judge Young said. "The virus, if allowed to thrive in the detention centers, will migrate back into our neighborhoods."

On Friday, Hodgson pledged to ask the U.S. Department of Justice to seek an emergency stay of the court's decision, which the sheriff derided as "far exceeding" Judge Young's authority.

A spokeswoman for the U.S. attorney's office defending the habeas case declined to comment on Monday. Representatives for Hodgson were not immediately available for comment.

The case is one of several prisoner release actions pending in Massachusetts. During a hearing in a separate federal suit on Tuesday, lawyers for inmates serving time at the Federal Medical Center in Devens argued that the 800 or so inmates seeking to thin out the prison's population should be treated as a class.

Jessie J. Rossman of the ACLU of Massachusetts told Senior U.S. District Judge George A. O'Toole that class certification is proper for the group's claims that the federal Bureau of Prisons is failing in its duty to keep inmates safe by ensuring that social distancing is possible.

Rossman told the court that the bureau is dragging its feet on releasing inmates to home confinement and medical parole due to its own "self-imposed requirements" for the two forms of relief.

Lawyers for the government opposed the request for class certification, saying the inmates at Devens are too different to be served by a single class under a single question of law.

The detainees in the Bristol County case are represented by Ivan Espinoza-Madrigal, Oren N. Nimni, Oren M. Sellstrom and Lauren Sampson of Lawyers for Civil Rights and Reena Parikh, Muneer Ahmad and Michael J. Wishnie of Yale Law School.

The government is represented by Thomas E. Kanwit and Michael P. Sady of the U.S. Attorney's Office for the District of Massachusetts.

The case is Savino et al. v. Hodgson et al., case number 1:20-cv-10617, in the U.S. District Court for the District of Massachusetts.

The inmates in the Devens case are represented by Jessie J. Rossman of the ACLU of Massachusetts.

FMC Devens and the Bureau of Prisons are represented by Eve A. Piemonte of the U.S. Attorney's Office for the District of Massachusetts.

The case is Grinis et al. v. Spaulding et al., case number 1:20-cv-10738, in the U.S. District Court for the District of Massachusetts.

--Editing by Amy Rowe.

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