By Brian Dowling

Law360 (April 28, 2020, 3:07 PM EDT ) The Massachusetts high court stood by its opinion that the executive branch, not the courts, has the power to stay sentences during the coronavirus pandemic, dashing defense groups' hopes that the justices would take additional action to quickly thin out the state's prison population to stem the spread of the virus.  

The Supreme Judicial Court on Tuesday denied the request from the Committee For Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers to alter its April 3 opinion and let courts release inmates serving sentences, outside of a narrow 60-day window after sentencing or in the case of a pending appeal or motion for a new trial.

"Granting a stay without such a challenge essentially amounts to granting a furlough, which lies within the purview of the executive branch," the court said. The justices urged the district attorneys and sheriffs of the executive branch to "contemplate how it best might exercise those constitutional powers to mitigate the spread of COVID-19 in the commonwealth's prison system."

The high court did, however, grant the groups' request to expand reporting requirements for a slew of agencies so defense attorneys can adequately survey the situation inside prison facilities. 

In particular, the SJC required sheriffs and the Department of Corrections to file testing data facility-by-facility, a subject at the center of a contempt motion the groups filed last week and then withdrew after consulting with the special master managing the flow of information in the prisoner release plan. Sheriffs also need to provide defense groups with the docket numbers for pretrial detainees, the high court said.

The justices also ordered the Parole Board to identify people who are eligible for early consideration for parole, as well as people who have received a positive parole vote but have not yet been released, people whose parole was revoked for a technical violation, and people who have submitted a request for medical parole.

Matt Segal of the ACLU of Massachusetts, counsel for the defense attorney's association, said the group was grateful the court expanded the reporting requirements.

"We agree with the court that the question is now whether public officials will act to prevent more illness and death among people in custody, correctional staff, and the broader community," Segal said in a statement. "This is a crisis. Governor Baker must do everything in his power to ensure that prison sentences do not become de facto death sentences as a result of a COVID-19 outbreak."

In a statement, CPCS attorney Rebecca Jacobstein thanked the court for "urging the governor to do what he can to help stop the ongoing, deadly spread of COVID-19 for those who are incarcerated. We will continue to fight to get our clients released before more of them become casualties to this pandemic, but we need others to recognize just how serious this situation has become."

Jake Wark, spokesman for the state's public safety agency, said the Parole Board has signed off on the release of more than 200 people, and the Department of Correction has tested more than 700 inmates for COVID-19. 

"State criminal justice agencies will continue to protect the public safety, review each case on its merits, and work with the Special Master as we confront this unprecedented global health crisis," Wark said.

Representatives for the other parties were not immediately available for comment Tuesday.

In late March, CPCS and MACDL filed their emergency petition with the SJC seeking to release inmates from the state's jails and prisons "to mitigate the mortal harm that the COVID-19 pandemic will inflict upon incarcerated people."

The court heard arguments within a week. Days later, it ordered that many pretrial detainees get a presumption of release. The order also called for a daily regimen of data reporting by the parties in the case.

From April 3 to April 26, courts have released 824 inmates through the process, according to an update from the court-appointed special master in the case, Brien T. O'Connor of Ropes & Gray LLP. 

A separate case is underway in both the Superior Court and the SJC arguing that the spread of the virus within prisons puts inmates in "grave and imminent danger" in violation of the Eighth Amendment prohibition against cruel and unusual punishment. That suit is seeking to release enough inmates — through home confinement, furloughs, sentence reductions, medical parole, commutation, clemency and all other emergency powers — to permit facilities to follow social distancing recommendations. 

The petitioners are represented by Rebecca Jacobstein, Benjamin H. Keehn, Rebecca Kiley and David Rangaviz of the Committee for Public Counsel Services, Matthew R. Segal, Jessie J. Rossman, Laura K. McCready and Kristin M. Mulvey of the ACLU Foundation of Massachusetts Inc. and Chauncey B. Wood and Victoria Kelleher of the Massachusetts Association of Criminal Defense Lawyers.

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

The Department of Corrections and 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, Berkshire and Middlesex district attorneys are represented by Tom Ralph.

District attorneys from the other districts are represented by Jane Sullivan from the Worcester 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.

--Editing by Marygrace Murphy.

Update: This story has been updated with comment from the state's public safety agency.

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