High court sides with DOC on prison COVID rules
SJC says agency did not have to depopulate prisons
THE SUPREME JUDICIAL COURT ruled Thursday that the Department of Correction has not been “deliberately indifferent” to inmates’ health during the COVID pandemic, because it took precautions and, most significantly, offered COVID vaccines to all inmates.
Attorneys for prisoners had argued that the department should have done more to release prisoners because of the health risks posed by COVID-19. But the court, in a 26-page ruling written by Justice Scott Kafker, ruled that the department had taken adequate precautions, and the state was not required to release additional prisoners even though the Legislature gave it some authority to do so.
“A reasonable response is one that takes steps to mitigate excessive risk, not one that adopts every available measure to eliminate risk,” Kafker wrote.
The ruling came as part of ongoing litigation, Stephen Foster v. Commissioner of Correction, in which attorneys for Prisoners’ Legal Services have argued that the state is not doing enough to protect prisoners from COVID-19. In the most recent dispute, PLS said the department should have taken meaningful steps to reduce the prison population, through policies like furloughs and home confinement. The department countered that these release programs are being used minimally, but more widespread use is impractical for various reasons. Department officials said the state has done everything it is legally required to do to stop the spread of COVID, through methods like cleaning, restricting visitors, and vaccination.
“We conclude that the plaintiffs have not established a likelihood of success in demonstrating deliberate indifference, even absent greater prison depopulation efforts,” Kafker wrote. “The DOC’s approach of combining existing [non-pharmaceutical intervention] measures with a comprehensive vaccination program appears, on this record, to have been a reasonable response resulting in reasonably safe conditions of confinement.”
According to the decision, between May 4, 2020, and February 10, 2021 – the time period which the lawsuit is based on – there were more than 2,700 COVID cases among DOC inmates and at least 19 deaths. But the infections have largely tracked with what was occurring in the community. And the department took reasonable steps to mitigate the risk, the court ruled. These included mask-wearing, visitor restrictions, cleaning, testing, and some level of social distancing – even if crowded living conditions made complete social distancing impossible.
Most significantly, a vaccination campaign resulted in 71 percent of inmates getting a first dose of the Moderna vaccine by the time of the first ruling in the case in February 2021.The ruling said while the Department of Correction could have relied more heavily on depopulation, it was not required to do so. “The DOC may, consistent with mounting a reasonable response to the COVID-19 threat, choose one risk-reduction strategy over another, particularly when the choice implicates other penological considerations,” Kafker wrote.
While DOC may have had lapses in its COVID response, Kafker said these lapses were “inadvertent and sporadic” and did not rise to the legal standard of showing “deliberate indifference” to inmates’ health.