SJC urged to reduce prison population during COVID

THE DEPARTMENT OF CORRECTION is not doing enough to prevent the spread of COVID-19 because it has failed to take meaningful steps to reduce its prison population, prisoners’ rights advocates are charging in a case currently before the Supreme Judicial Court. The department counters that it has done everything possible to stop the virus’s spread – most notably, vaccinating inmates – and it cannot release many more prisoners under state law. 

The debate is part of ongoing litigation in the case, Stephen Foster v. Carol Mici, through which the courts have monitored how state correction officials are handling the pandemic and whether the agency is protecting  prisoners t in accordance with the state constitution. The Supreme Judicial Court heard oral arguments Friday.  

Bonita Tenneriello, an attorney for Prisoners’ Legal Services, said the dangers of COVID-19 remain “very real” in prisons, as the contagious Delta variant spreads throughout Massachusetts. By not reducing the prison population, the Department of Correction “didn’t do the one thing we know is most important, which is allow for social distancing,” she argued in court. 

But Stephen Dietrick, an attorney for Correction Commissioner Carol Mici and Public Safety Secretary Thomas Turco, said the advocates’ argument ignores the fact that 81 percent of inmates are now vaccinated. Dietrick called that a “game-changer.” He added: “If you have 80 percent of the inmate population vaccinated, certainly for purposes of serious illness or hospitalization or death it’s as if you took four out of every five inmates out of the system.” 

A Superior Court judge found in favor of the Department of Correction, and the SJC took the case on appeal. 

The Prisoners’ Legal Services brief says that although prison admissions have dropped during the pandemic, the state actually suspended operations at two facilities (MCI-Shirley’s minimum security prison, which held 169 men at the beginning of the year, and South Middlesex Correctional Center, which held 27 women), resulting in more densely populated existing prisons. “Prisoners continue to live in dormitories housing 40 to 80 people, sleeping so close they can touch their neighbor’s bed, and they are forced into close contact in crowded lines for medication and meals and busy common spaces,” Tenneriello wrote in the brief. 

Tenneriello said home confinement has been used only a handful of times. The prisons stopped offering programming during the pandemic that would have allowed prisoners to earn “good time,” or time off their sentences, for participating.  

Tenneriello argued that the spread of the Delta variant requires continuing protection measures, since about half of correction officers have refused vaccinations and since prisons are high-risk for spread, with crowded conditions, poor ventilation, and low-quality health care. In August, a COVID outbreak at the Souza Baranowski prison had between 72 and 100 cases. 

But Turco and Mici, represented by the attorney general’s office, say the Superior Court judge was right that the department has not been “deliberately indifferent” to prisoners’ medical needs, which is the legal standard. From the beginning of the pandemic, the prisons established physical distancing rules, modified social activities, restricted visitors, increased cleaning, tested prisoners, and isolated those who were ill.  

Once vaccines became available, all prisoners were offered a vaccine. Today, Dietrick said, 81 percent of prisoners are vaccinated and nearly 60 percent of staff. Gov. Charlie Baker imposed a vaccine mandate requiring all executive branch staff to be vaccinated by October 17, so the number of vaccinated staff is expected to increase, unless a legal challenge is successful. The prisons instituted COVID testing of staff, inmates, and wastewater.  

Dietrick said the department created a home confinement program, but the number of participants is low because the department is prohibited by law from releasing anyone who is in maximum or medium security prison. Even many of those in minimum security or pre-release programs committed offenses that make home confinement unsuitable or do not have a work or educational program to participate in upon release. Dietrick said furloughs are limited by law to 14 days, so they do nothing to stop the spread of COVID in prisons, since prisoners will return to jail and may bring in the virus. Programs offering time off of sentences are being used.  

The courts generally give administrative agencies significant latitude in conducting their own operations. Chief Justice Kimberly Budd pressed Tenneriello on what gives Prisoners’ Legal Services authority to tell DOC how to operate. Tenneriello responded that the court can decide what is a safe population level and what tools DOC has to use to get there, leaving it to DOC how to use those tools.