By Chris Villani

Law360 (June 1, 2021, 1:55 PM EDT ) With vaccines widely available and COVID-19 case counts dwindling, Massachusetts' top court hinted Tuesday it won't force state jails and prisons to let lawyers meet with clients via video conference or require the testing of all inmates.

The Supreme Judicial Court seemed highly skeptical of the notion that state houses of correction were being indifferent to the health needs of their inmates and the attorneys who represent them, given that all are eligible to be vaccinated against the potentially deadly virus.

When the American Civil Liberties Union's Massachusetts chapter filed suit in December along with the state's public defenders and a statewide criminal defense association, they argued they should be able to consult with clients via Zoom or similar technology during the ongoing pandemic.

But the SJC noted that a lot has changed since then, most notably the wide availability of COVID-19 vaccines in the state.

"You can get vaccinated, your clients can get vaccinated, you can put on your mask, you can insist your client wear their mask. We are still going to find, with these options, that the right to counsel is being denied?" asked Associate Justice Scott L. Kafter. "It seems like an uphill climb."

Arguing for the Committee For Public Counsel Services, the state's public defenders, Rebecca Jacobstein said jail populations may be affected by racial and ethnic disparities in vaccination rates.

"We can ask, but I don't think walking into a room and saying, 'Hi, are you vaccinated?,' is the best way to introduce myself to a client," Jacobstein said.

"You think video conferencing is better?" asked Associate Justice Dalila A. Wendlandt.

"For now," Jacobstein replied. "Even right now, I am six feet away from everyone, but we had to be vaccinated to get in [to the courthouse], and everyone but me is wearing masks."

"But that's not the science," Justice Wendlant shot back. "It has nothing to do with what the CDC is saying today."

Massachusetts on May 29 shifted from a mask mandate to a mask advisory, allowing those who have been fully vaccinated against COVID-19 to shed masks in most situations. When the ACLU, CPCS and Massachusetts Association of Criminal Defense Lawyers filed suit, five counties were not allowing attorney-client meetings by video.

The number of counties named in the suit has decreased to just two, Essex and Bristol. Essex has shoddy video conference options, the suit claims, while Bristol says it lacks the technology to pull it off.

"What do we do with the teachers or the police officers or the firefighters who face essentially the same situation?" asked Associate Justice Elspeth P. Cypher. "They are doing their job and still at risk."

"It's a good point, your honor, but we are trying to do our job and the jails are interfering," Jacobstein said. "This is what we need to do to get past COVID. Jury trials are starting, and we need to be prepared."

Justice Wendlant expressed skepticism that there must be zero risk in order to be considered constitutional.

Jessie Rossman of the ACLU argued that courts have long held that jails and prisons have the obligation to protect their inmates against infectious diseases and are failing to do so by not providing universal COVID-19 testing.

According to the suit, nine of the state's houses of correction fail to test all people at intake, and none of the jails conduct regular asymptomatic testing of inmates.

"During the entirety of the pandemic, Bristol and Suffolk have administered a total of just one and zero tests, respectively, to their staff," the ACLU has said. "Barnstable has administered a total of just 24 tests to incarcerated people."

But the panel pushed back on Rossman's argument as well, with Associate Justice Frank M. Gaziano referring to vaccines as the "elephant in the room." Justice Kafker also noted that inmates were at the front of the line for vaccines in Massachusetts and the state as a whole has outpaced most of the nation when it comes to getting shots in arms.

"It's just hard to find that we are deliberately indifferent when we have that combination," he said. "A month ago you had a better argument, or two months ago, but it just seems to me you're swimming against the tide of fact."

Rossman acknowledged that the state is in a different position relative to December, but added that a ruling could also be needed to protect people in future pandemics.

Arguing for the defendant sheriffs, Dan Bair said they are proud of their response to the pandemic, citing only two COVID-19 deaths and 13 hospitalizations since the crisis began.

Justice Kafker voiced skepticism that the lack of testing meets the deliberate indifference standard, but wondered why the jails don't test more often.

"It seems like a good idea," he said, "but you don't do it."

The plaintiffs are represented by Rebecca A. Jacobstein of the Committee for Public Counsel Services and Jessie J. Rossman of the ACLU of Massachusetts.

The sheriffs are represented by Dan V. Bair.

The case is Committee for Public Counsel Services et al. v. Barnstable County Sheriff's Office et al., case number SJC-13116, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Philip Shea.

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