By Chris Villani

Law360 (May 7, 2020, 8:07 PM EDT ) Massachusetts' top appellate court struggled with the question of how many prisoners should be released in order to make state correctional facilities safer, while acknowledging during a lengthy hearing Thursday that keeping inmates locked down indefinitely is not sustainable.

During a three-plus-hour telephone hearing, the Supreme Judicial Court tried to drill down on how many prisoners would have to be let out of state facilities in order to allow those remaining to practice the kind of social distancing necessary to limit the chances of a COVID-19 infection.

A petition brought by a nonprofit advocate for prisoners claims the virus is spreading rapidly behind bars, with 358 inmates testing positive for COVID-19 and seven deaths statewide. The best possible solution, the petition says, is to lower the prison population.

But, by how much, Chief Justice Ralph D. Gants asked.

"How do we basically impose a type of population cap or obligate them to do a population reduction without any expert testimony that would say 'if they do that it would materially reduce the risk of contagion?'" Chief Justice Gants asked.

Arguing for the petitioners, James Pingeon of Prisoners' Legal Services said a precise figure should be attainable based on social distancing guidelines issued by the U.S. Centers for Disease Control and Prevention and other health experts.

But Chief Justice Gants said neither the petitioners nor the court knows whether the magic number equals a reduction of "5%, 25% or 80%, do we?"

"No, we don't precisely have that number," Pingeon said. "But here we have a standard which is allowing people to live six feet apart from each other, and that's a fairly easily discernible criteria."

The state Department of Corrections could readily find prisoners who are ripe for release, Pingeon added, including those who are nearing the end of their sentence.

The suit claims forcing prisoners to violate social distancing practices by virtue of the size of the prison population during a global pandemic is unconstitutional. The SJC has already tackled a depopulation effort and, in an early April ruling, 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.

That decision did fall 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.

Much of the argument Thursday turned on the U.S. Supreme Court's 2011 ruling in Brown v. Plata, in which the high court ordered California to reduce its prison population to 137.5% of design capacity within two years because severe overcrowding had created an Eighth Amendment violation.

Associate Justice Scott L. Kafker noted that the SJC has no way to assess whether a prisoner might be too dangerous for release and, unlike in other prison overcrowding suits, the present case was sparked by a global pandemic, not simply inadequate facilities. Even though the situation is going on longer than anyone would like, it is temporary, he said.

"It's not a structural problem that hasn't been fixed for decades," Justice Kafker said.

The DOC argued it has already taken extraordinary steps to limit the spread of COVID-19 behind bars, including keeping prisoners locked down and limiting how many people they come in contact with. Stephen Dietrick, arguing for the DOC, said it's not possible to allow every prisoner to have an individual cell.

With two prisoners sharing a cell "you can do extremely effective contact tracing, as long as neither one of you are positive for the virus, you're in a very good situation in terms of risk," Dietrick said. He cited the instance of one inmate who said he doesn't wear a mask in his cell because, according to Dietrick, "I've lived with this guy a couple of weeks, he's not sick, I'm not sick, why would I do that?"

But the justices wondered whether such an approach was sustainable. Chief Justice Gants, noting how long it may take for a vaccine to be developed and widely distributed, asked whether a DOC lockdown has ever gone on for up to a year.

Associate Justice Elspeth P. Cypher chimed in, asking Dietrick, "How long do you think this can go on before there is unrest?"

Dietrick responded that the climate within each of the prisons is constantly monitored.

Gov. Charlie Baker and the state's parole board — also named in the petition — argued Thursday to be dismissed from the suit.

But, referencing the Brown case, Chief Justice Gants suggested a ruling in the petitioners' favor may end up on their desks whether they like it or not. He said that in Brown, the defendants, including the parole board, were ordered to work together to bring the prison population down.

"Is it your view that we don't have the authority to do what the U.S. Supreme Court did?" Chief Justice Gants asked Michael Byrne of Melick & Porter LLP, who was arguing for the parole board. "Isn't that what we could arguably do, and wouldn't the parole board want to be a part of that process?"

Byrne said the parole board is not responsible for the prison population and the conditions inside the facilities, and cannot do what the petitioners are asking without exceeding its authority.

"That's not what the parole process was designed to do," Byrne said.

The court took the case under advisement.

Before the hearing kicked off, Chief Justice Gants noted that the proceeding marked the final full-court sitting for retiring Associate Justice Barbara A. Lenk. Appointed to the bench by then-Gov. Bill Weld in 1993, Justice Lenk has sat on the court since she was appointed in 2001 by then-Gov. Deval Patrick.

She has penned more than 200 opinions totaling around 5,000 pages during her time on the court, Chief Justice Gants said.

"There has never been a justice who is more careful and more thoughtful in her analysis of the law," he said. "We will miss her when she retires."

The petitioners are represented by James Pingeon of Prisoners' Legal Services.

The DOC is represented in-house by Stephen Dietrick.

Gov. Baker is represented by Special Assistant Attorney General Ryan McManus of Hemingway and Barnes LLP.

The parole board is represented by Michael Byrne of Melick & Porter LLP.

The case is Stephen Foster et al. v. Carol Mici, Commissioner of the Massachusetts Department of Corrections et al., case number SJC-12935, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Janice Carter Brown.

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