By Brian Dowling

Law360 (April 3, 2020, 9:21 PM EDT ) Massachusetts' high court on Friday made it easier for judges to free inmates who are awaiting trial, citing the "urgent and unprecedented" public health crisis prompted by the novel coronavirus.

The move, though, falls far short of the type of widespread release of inmates that public defenders had called for to avert the possibility of the state's prisons becoming overrun with the virus, leaving inmates with nowhere to turn for relief.

While granting a significant new avenue of release for pretrial detainees, the Supreme Judicial Court of Massachusetts said in an opinion by Chief Justice Ralph D. Gants that its hands are tied when it comes to releasing people who have been convicted and are serving their sentences. 

Judgments and sentences can be handed down by courts, but executing and altering prison terms fall to the purview of sheriffs and parole officials under the executive branch, the court said in response to the petition, which sought to reduce the prison population by as much as half.

"The Massachusetts Declaration of Rights precludes the judiciary from using its authority … to revise and revoke sentences in a manner that would usurp the authority of the executive branch," Gants said.

As such, Gants said the court couldn't extend its authority to revise and revoke sentences within 60 days from the sentence being handed down. If it did that, the judiciary would become a sort of shadow parole board and seek to assume powers that are given solely to the executive branch. 

Last week, the Committee for Public Counsel Services and the Massachusetts Association for Criminal Defense Lawyers filed the petition for the "broad-scale release" of prisoners in the state correctional system. On Tuesday, the high court heard arguments after a hyper-accelerated briefing schedule and marked a first in holding the four-hour hearing by teleconference.

The defense groups say they are seeking to blunt the impact of the COVID-19 virus on the prison population, which is mostly barred from observing the social distancing and hygiene recommendations put forward by public health officials. In filings, the groups argued the extraordinary situation calls for out-of-the-box thinking.

"Petitioners are not only willing but eager to implement a solution that allows for both consideration of individual circumstances and rapid releases from custody," the groups said in reply to opposition from some district attorneys and the state's sheriffs. "But what we are not willing to do is agree that, during a pandemic, the normal turning of the wheels of justice should be allowed to become a machine that takes in human beings and spits out dead bodies." 

While the court denied granting the type of presumption of release to convicts that it did to pretrial detainees, it made clear that convicts could petition the court to revise a sentence if it was given in the past 60 days. People seeking a new trial and those appealing their conviction could also seek release, the court said.

Gants repeated throughout the opinion that the court's ability to take action for convicted inmates could change if the situation on the ground worsens, saying there's a case that continued imprisonment constitutes cruel and unusual punishment or due process violations.

The public defense groups did not argue that the current situation raises such constitutional concerns, only that inaction in the face of the pandemic could snowball into a situation where the constitutional rights are at risk. 

So far, two prisoners with COVID-19 at the Massachusetts Treatment Center in Bridgewater have died, and 21 other inmates there have contracted the virus, according to the Department of Corrections. As of Wednesday, two inmates at another facility had also tested positive. Fifteen staff members at the corrections department tested positive for the virus, as did two vendor staff members.

Going forward, the corrections department and sheriffs will make daily reports to Ropes & Gray LLP partner Brien T. O'Connor, the special master appointed by the SJC. The reports will include the total number of inmates in facilities, the number of inmates and staff tested for COVID, how many tests come back positive, the number of pretrial inmates released, and a census of current pretrial inmates along with their offenses.

The defense groups and the district attorney in each county are asked to work together to agree on which inmates qualify for the presumption of release under the order. The court excluded from the presumption people who are held without bail because they have been deemed dangerous by a court, as well as people charged with a class of certain excluded crimes.

Those crimes include use of force or a deadly weapon, murder, manslaughter, domestic violence, violation of an abuse prevention order, witness intimidation, third or subsequent DUI charge, motor vehicle homicide, any crime with a mandatory minimum, a number of sex offenses, and cocaine or heroin trafficking.

If inmates qualify, their application for release will go before a judge who will determine whether to release them, weighing their risk of exposure to COVID-19 while in custody against the threat to public safety, as well as whether they have ever violated probation or other court orders. The inmate can appeal a judge's ruling to the high court.

Matt Segal of ACLU Massachusetts, counsel for the criminal defense association, said in a statement the group believes the order "falls short of what is necessary to prevent more illness and death among people in custody, correctional staff members and the broader community."

Anthony Benedetti of the CPCS called on Gov. Charlie Baker to use the executive branch's parole board and other institutions to address the danger facing the corrections community.

"Meanwhile, public defenders and defense attorneys across the state will continue to do everything in our power to get people out from behind the wall and save lives," Benedetti said in a statement. 

Bristol District Attorney Thomas Quinn, one of the prosecutors who opposed the petition to release inmates, said he was pleased the court rejected the broader request and "heartened that the court did not order the release of the many dangerous defendants held in custody for violent crimes or major drug trafficking." 

The petitioning groups are 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 are represented in-house by Dan Sullivan.

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

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

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

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

The sheriffs are 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.

--Additional reporting by Chris Villani. Editing by Janice Carter Brown.

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