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Law360 (April 30, 2020, 6:31 PM EDT ) Federal detainees in a Massachusetts county jail asked a judge on Thursday to develop a process overseen by experts to release enough of the inmates so they can observe social distancing and other public health recommendations.
Over the course of a two-hour hearing, lawyers representing a putative class of inmates held at the Plymouth County Correctional Facility while they face federal charges urged U.S. District Judge Leo T. Sorokin to launch a process to release detainees and order compliance with public health directives to stem the spread of the coronavirus.
The jail on Thursday reported its first positive COVID-19 case in an inmate. The person testing positive came to the facility on April 24 and has remained in isolation since then.
Plaintiffs' attorney Daniel J. Cloherty of Todd & Weld LLP said the filing of the class action complaint was prompted by a lack of information about the conditions at Plymouth and constant reports from prisoners about not being able to get soap or keep a safe distance from others.
"Unless we brought his case, we weren't going to get the answers," Cloherty told the court at the motion hearing Thursday.
Cloherty said a lack of testing at Plymouth undercuts the notion that the single confirmed case of the virus is the extent of its spread so far. Without knowing how many people have the virus, protections such as soap and social distancing are all the more critical, he said.
The case is one of several prisoner release actions pending in Massachusetts.
The Supreme Judicial Court has decided one emergency petition, ordering the presumption of release for some pretrial defendants in state custody. In another case pending before the SJC, a group of prisoners is arguing the spread of the virus through state prisons triggers release under the Eighth Amendment prohibition of cruel and unusual punishment.
In another federal case, dozens of immigration detainees held in the Bristol County jail won release after a judge decided conditions there called for action. Meanwhile, a class of inmates at the federal medical center in Devens has sued for release through home confinement or compassionate release.
Judge Sorokin asked if Plymouth could find a way to allow social distancing and other guidelines, short of releasing inmates.
"What if they took the field next to the Plymouth House of Corrections, and they put up a fence," he asked. "They brought in modular housing units, and they moved people out to that ... Everyone got a single unit."
But Cloherty insisted any relief should include some release from the facility.
Defending the county jail and sheriff was Assistant U.S. Attorney Jason C. Weida, a cross-jurisdictional appointment that raised a few questions from Judge Sorokin.
Weida explained that his office under the U.S. Department of Justice always represents jails and prisons in habeas release cases, where the respondents can often be state officials in charge of facilities holding the prisoner.
"It makes sense to me why the U.S. attorney's office is here, but to the extent they are raising issues about the conditions at Plymouth … shouldn't the state or county be defending itself on that?" Judge Sorokin asked.
Weida responded that the population at Plymouth has fallen from about a thousand before Gov. Charlie Baker's emergency declaration to fewer than 700 at the moment, or close to 40% of the facility's capacity.
"Decarceration ... has been happening in this way," Weida said.
Social distancing efforts are also underway at Plymouth, and inmates were given masks at three different times, Weida said.
He defended the facility's lean testing numbers — 14 given so far — saying they are complying with federal guidelines by only testing people with symptoms. The jail currently has about 20 test kits, Weida said, and it couldn't get its hands on enough to test everybody even if it wanted to.
The petitioners are represented by Daniel J. Cloherty of Todd & Weld LLP and Adam W. McCall of Wilmer Cutler Pickering Hale & Dorr LLP.
The respondents are represented by Jason C. Weida of the U.S. Attorney's Office for the District of Massachusetts.
The case is Baez et al. v. McDonald et al., case number 1:20-cv-10753, in the U.S. District Court for the District of Massachusetts.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
