By Brian Dowling

Law360, Boston (March 31, 2020, 10:44 PM EDT ) Massachusetts' high court pressed state officials and legal defense groups about the constitutionality of a proposal to release inmates from prison during a marathon, four-hour hearing Tuesday on efforts to prevent the spread of the novel coronavirus through jails.

Chief Justice Ralph D. Gants — who called the hearing the Supreme Judicial Court's first telephonic oral arguments — opened by asking whether the request from the Massachusetts Association of Criminal Defense Lawyers and the Committee for Public Counsel Services to have the courts release certain convicted inmates runs afoul of the separation of powers. District attorneys opposing the request have argued that only the legislature has the power to suspend the state's laws, while only the governor can execute sentences imposed by the courts.

But Matthew Segal, legal director at the ACLU of Massachusetts, said the authority to fix sentences "is squarely in the power of the judiciary."

"It's like finding out you're sentencing a prisoner to a prison where there's mustard gas floating through the facility, or where all the chairs are electrified," Segal said. "The court says, 'I meant to sentence this person to one kind of sentence, but it has turned out to be a potential death sentence.'"

Segal said the high court needs to move quickly to avert the danger of the virus spreading through prisons like wildfire, without overburdening the process with restrictions and exclusions for who qualifies — for example, an eligibility condition that looks back at whether an inmate had been incarcerated for any of a long list of excluded crimes.

"We have a concern that very few people would be eligible here, and those that would be eligible would be white," Segal said.

The hearing came one week after the criminal defense groups asked the Supreme Judicial Court to drastically reduce the population of prisons in Massachusetts as a way to lessen the impact of COVID-19 on the prison population. On Tuesday, a Department of Corrections official said 17 inmates at its Massachusetts Treatment Center had tested positive for the virus, up from 10 at the end of last week.

Late Monday, a special master appointed to the petition, Ropes & Gray LLP partner Brien T. O'Connor, reported his recommendations to the court, calling for a review process for inmates to qualify for a presumption of release if they meet specific criteria.

Putting together which inmates qualify for the presumption of release would fall to a committee in each county made up of representatives from the district attorney's office, the defense bar and the trial clerk's office. Then a trial judge would hear the requests on an expedited basis and rule on whether the person could be released.

That recommendation garnered support from legal defense petitioners in the case, the Massachusetts attorney general, and the district attorneys from Berkshire County, the Northwest Counties, Middlesex County and Suffolk County. Not backing the recommendation are the district attorneys from the other seven districts, the state sheriffs, the Department of Corrections and the Probation Department.

The petitioning groups had at first asked for the blanket release of inmates fitting specific criteria. Those included people who are eligible for parole, people within six months of completing their sentence, people in jail for probation violations, people over the age of 60 who weren't found guilty of crimes against a person like murder or assault, people at risk of severe complications if they catch the virus, and people qualifying for medical parole.

Justice Frank Gaziano asked Segal whether the immediate release, under that initial proposal, of aged convicts as well as child rapists illustrates the dangers of taking a categorical approach.

But Segal said the group's agreement with the special master's recommendation shows it has backed off that group approach.

Rebecca Jacobstein of the Committee for Public Counsel Services said a new approach like the special master's is needed because — despite the courts' ongoing effort to handle requests for release — the system is failing.

"In some of our courts, it's been struggling," Jacobstein said. "We get email addresses. People don't check them; they don't know how to check them. Courts are closed. Somebody gets sick, and it's in such flux."

Justice Scott Kafker asked Assistant Attorney General Eric Haskell whether there was any precedent for the widespread staying of sentences.

"I'm afraid this is thin gruel, Your Honor," Haskell said. "We don't have precedent to offer on that."

Haskell and the petitioners pointed to Rule 29 of the Massachusetts Rules of Criminal Procedure, which gives a trial court judge the ability to revoke or reduce an "illegal" or "unjust" sentence.

Attorney Dan Sullivan, representing concerns from the chief justices of the trial courts, said that the assumption of release under the special master's framework takes away their discretion in the expedited release process. He also highlighted judges' worries about not having enough information about each person requesting release to make an informed judgment.

"This is the kind of shortcutting that seems to concern them the most," Sullivan said. "If someone is released and commits a heinous crime, it won't go back to a district attorney or members of a committee. It would go back to the trial judge, and the question will be, what did you know when you released them? What did you have before you?"

The high court has already taken drastic measures to stem the spread of the disease, the groups pointed out, including by closing the courthouses, canceling oral arguments and delaying trials. Gants has implored the state's bar to work creatively and collectively to keep the wheels of justice turning during the pandemic.

At least nine state and local court systems — in Alabama, Maine, Montana, New Jersey, Ohio, South Carolina, Texas and Washington, as well as the District of Columbia — have already taken steps to limit incarceration during the crisis.

ACLU of Massachusetts Executive Director Carol Rose said in a statement that the case "presents the criminal legal system with an opportunity to save the lives of incarcerated people who are especially vulnerable to the coronavirus pandemic, and in doing so, to save the lives of countless others."

"Massachusetts does not have the death penalty as a matter of law," Rose said. "Unless we change course now, we're going to have it as a matter of fact."

Jacobstein and fellow CPCS attorney Benjamin Keehn said the court needs to move quickly to stanch a potential "catastrophic outbreak" in the state's correctional facilities.

"We learned today that the rate of infection within the Massachusetts Treatment Center has increased almost fivefold in the week since we filed this petition," the attorneys said in a statement. "Time is of the essence."

The petitioning groups were represented by Rebecca Jacobstein of the Committee for Public Counsel Services and Matthew R. Segal of the ACLU of Massachusetts.

The chief justices of the trial court were represented in-house by Dan Sullivan.

The Department of Corrections and Parole Board were represented in-house by Charles Anderson.

The Suffolk County district attorney's office was represented in-house by Donna Patalano.

The Northwest district attorney, Berkshire district attorney and Middlesex district attorney were represented by Tom Ralph.

District attorneys from the other districts were represented by Jane Sullivan from the Worcester district attorney's office.

The sheriffs were represented by Robert Harnais.

The case is Committee for Public Counsel Services et al. v. Chief Justice of the Trial Court et al., case number SJC-12926, in the Supreme Judicial Court of Massachusetts.

--Editing by Aaron Pelc.

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