SJC refuses to order release of convicted prisoners

Says DOC’s policies do not constitute deliberate indifference

THE SUPREME JUDICIAL COURT refused to issue a preliminary injunction that would have released convicted prisoners to house arrest on Tuesday, holding that their continued incarceration increased their odds of contracting COVID-19 but did not violate the Eighth Amendment’s threshold of cruel and unusual punishment.

The court, in fact, said the Baker administration’s Department of Correction is complying with all guidance for jails and prisons issued by the US Centers for Disease Control and is conducting widespread testing for the coronavirus – more, it appears, than is going on outside prison walls.

“Under this plan, all inmates and all staff at each facility, regardless of whether they are symptomatic, will be offered tests, and all facilities will have been tested by May 31, 2020, following a schedule of approximately two days of testing at each site,” the SJC decision said.

The court, clearly worried about the dangers of COVID-19 inside cramped prison facilities, had previously ordered the release of inmates who were in jail but had not been sentenced to any crimes. Tuesday’s decision, however, rejected a preliminary injunction seeking the release of convicted prisoners to home confinement, including through medical furloughs and expedited parole hearings.

Prisoners’ Legal Services filed the suit on behalf of 11 named inmates and others “similarly situated,” saying that the Department of Correction has “failed to implement readily available measures to save lives by radically reducing the number of people in prisons.”

The lawsuit also sought the release of 100 men who are civilly committed for alcohol and substance abuse disorders, for which treatment is not being provided during the pandemic. The lawsuit claimed such commitments during a pandemic constituted a violation of professional judgment in every case.

“Without a more complete factual record, and without expert guidance, we are not able to reach such a broad conclusion,” the court held. The fact-finding for the injunction was done in Superior Court, and the Supreme Judicial Court issued today’s ruling. The matter will now be referred back to Superior Court on an expedited schedule.

To be entitled to a preliminary injunction, the court said the incarcerated plaintiffs had to show that they are likely to establish that the Department of Correction had been “deliberately indifferent to a substantial risk of serious harm to their health or safety” both objectively and subjectively.

The Department of Correction argued that the objective indifference claim could not be proven because “no prisoner has been forced to endure an extreme deprivation or even an unreasonable risk to their health or safety.”

But the court disagreed.  “There can be no real dispute that the increased risk of contracting COVID-19 in prisons, where physical distancing may be infeasible to maintain, has been recognized by the CDC and by courts across the country,” the court held.

As of May 25, according to the decision, 396 inmates have tested positive for COVID-19 and eight have died.  In addition, 186 Department of Correction staff members have tested positive. The DOC says it has provided more than 7,600 COVID-19 tests for prisoners, with 7,188 in custody. Nearly 1,600 prisoners have been released from state and county facilities under a previous Supreme Judicial Court decision focused on pretrial detainees.

The court said the Massachusetts prison system has the highest percentage of elderly prisoners in the country, with half of inmates 60 or older or with underlying medical conditions. The court also noted that 58 percent of the state’s inmates are in two-person cells or dormitory style cells.

Prisoners named in the lawsuit have heart failure, a liver transplant, and stage four kidney disease. Some are eligible for parole as soon as June 2020. One plaintiff, 72-year-old Frederick Yeomans, is imprisoned in the Barnstable County Correctional Facility for driving with a suspended license and is eligible for early release later this year.

Michael White, one of the prisoners bringing the lawsuit, is incarcerated at MCI-Concord, where he lives with as many as 80 other inmates in a dormitory-style room. “The beds are three feet apart, the sinks are one foot apart, and White generally eats within arm’s reach of at least one other inmate,” according to the court’s decision.

The Department of Correction argued that inmates living in two-person cells should be viewed more like family units, but the court noted that the prisoners share showers, toilets, sinks, and phones with many other inmates.

While the decision said the preliminary injunction passed the objective test of deliberate indifference, the court said it did not pass the subjective test, primarily because of the Department of Correction’s efforts to minimize risks through a variety of means, including increased cleaning and disinfecting, distribution of personal protection equipment, and enhanced testing.

While recognizing that the pandemic is “unprecedented,” the justices concluded “incarcerated plaintiffs are unlikely to succeed on the merits of their claim for violations of the Eighth Amendment,” and denied the injunction.

Four justices signed on to the court’s decision written by justice Frank Gaziano, while Chief Justice Ralph Gants and justices Barbara Lenk and Kimberly Budd concurred in a separate ruling.

Prisoners’ Legal Services called the ruling a “mixed decision,” saying that the court put off the decision and instead transferred the case as an emergency matter to the Superior Court for further litigation.

“We are disappointed that today’s ruling declined to order releases at this time,” said Elizabeth Matos, executive director of the organization. “Over 600 incarcerated people in our state are COVID positive right now and those rising numbers are despite inadequate testing. Our clients in the DOC have been enduring eight straight weeks of solitary confinement conditions and have only recently been allowed to get a few minutes a week of fresh air.”

The DOC noted later in the day that of its 389 prisoners who tested positive, 335 have recovered and they have about 50 active cases.

Matos said it was significant that the Court orders no person to be committed under Section 35 unless a judge determined the danger posed by the substance abuse disorder outweighs the high risk of COVID transmission in a prison. All who are now committed under Section 35 can seek immediate release through motions to reconsider, and that these motions must be decided within two days.

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Sarah Betancourt

Reporter, CommonWealth

About Sarah Betancourt

Sarah Betancourt is a bilingual journalist reporting across New England. Prior to joining Commonwealth, Sarah was a reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, social justice, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

About Sarah Betancourt

Sarah Betancourt is a bilingual journalist reporting across New England. Prior to joining Commonwealth, Sarah was a reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, social justice, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

“The administration is pleased that today’s decision appropriately reflects the unprecedented steps that Massachusetts’ criminal justice agencies have taken to support the health and safety of the people in our care, our vendors, and staff, and we remain committed to adopting effective strategies that protect the public at large while safely managing our facilities,” said Jake Wark, spokesman for the Executive Office of Public Safety and Security, which oversees the DOC.

The concurring opinion suggested there is far more the Department of Correction should be doing to reduce the spread of COVID-19. “As the pandemic drags on, it is even more important to press forward with such reductions, because the current lockdown that is being used by the DOC to contain the virus can’t reasonably continue indefinitely.” The three justices also said that if the Department of Correction and Parole Board continue on their current path it “might constitute reckless disregard, especially if we are hit with a new wave of COVID-19 cases.”