By Brian Dowling

Law360 (June 2, 2020, 3:54 PM EDT ) Massachusetts' top court denied a plea Tuesday to depopulate prisons due to COVID-19 risks, saying the state's offer to test every inmate and its thoughtful response to the pandemic undermine claims that officials have acted with deliberate indifference to the crisis.

Ruling that inmates weren't likely to prove the state had "recklessly disregarded" virus risks, the Massachusetts Supreme Judicial Court declined to issue their requested injunction to reduce prison populations until inmates could observe social distancing.

In an opinion written by Associate Justice Frank M. Gaziano, the court said there's "no dispute" that the virus can spread like wildfire through prisons. In Massachusetts, there have been nearly 400 confirmed cases of COVID-19 among inmates in state prisons, and eight people have died, the court acknowledged.

But that fact is not enough for inmates to win on their Eighth Amendment claim without showing that officials were "deliberately indifferent" to those risks, the court said.

The prisoners failed to demonstrate that the state Department of Corrections ran afoul of any interim COVID-19 guidance from the U.S. Centers for Disease Control and Prevention, the court said. It also cited the department's "current widespread testing program."

"As stated, testing, contact tracing and quarantine are considered the sine qua non of any effort to control the COVID-19 pandemic," the court said, noting officials have pledged to offer a COVID-19 test to every inmate who requests it.

The class action claimed forcing prisoners to violate social distancing practices by virtue of the size of the prison population during a 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.

In arguments last month in the current case, justices struggled with deciding how many prisoners should be released to make the facilities safer.

A concurring opinion Tuesday by Chief Justice Ralph Gants warned that ongoing lockdowns within facilities — keeping inmates inside their cells for meals, the use of solitary confinement for quarantine, and severe restrictions on exercise — could snowball into Eighth Amendment violations.

The concurrence, joined by Associate Justices Barbara A. Lenk and Kimberly S. Budd, said the DOC needs to plan for a day in the near future when prisoners are no longer locked down.

"The DOC will have to develop protocols that are, to the extent possible, protective of both inmate physical health and mental health," the chief justice wrote. "And doing so will be easier and more likely to succeed with a smaller prison population, which will provide greater potential for social distancing and give prison superintendents more flexibility in their use of available prison space, cells and facilities."

Chief Justice Gants wrote that "continuing unchanged along that same path in the months ahead might constitute reckless disregard, especially if we are hit with a new wave of COVID-19 cases."

The chief justice also countered a suggestion that prison officials cannot release prisoners to home confinement. Citing the law and the court's own precedent, he said the department does have that authority, specifically through committees that can approve off-site programs for inmates to join.

"There is nothing in the record regarding the activities of these committees and no explanation as to why, especially at a time when the commissioner recognizes the need to reduce the prison population, eligible prisoners who have demonstrated good behavior and conduct have not been approved for home confinement to participate in education, employment or training programs," the chief justice said.

While the court declined to order a thinning out of the prison population, it did decide that the pandemic qualifies anyone being civilly committed to request a new hearing and that the COVID-19 risks should be taken into account when deciding to have someone held.

In a separate opinion in the case, the court dismissed Gov. Charlie Baker as a defendant, saying the plaintiffs failed to allege that he took any "unconstitutional" actions. The court also held he can't be held liable for the actions of the people he appointed to run the DOC.

"It is one thing for a court to order a governor to cease engaging in action the court has found to be unconstitutional; it is quite another for a court affirmatively to direct a governor how to act," the court wrote.

Jake Wark, a spokesman for the state Executive Office of Public Safety and Security, which oversees the prisons, said in a statement that "the administration is pleased that today's decision appropriately reflects the unprecedented steps that Massachusetts' criminal justice agencies have taken to support the health and safety of the people in our care, our vendors and staff."

Elizabeth Matos, executive director of Prisoners' Legal Services, said the group was disappointed with the mixed decision, which put off any decision to order more prisoner releases.

"We do think there's plenty of evidence right now to justify releases," said Matos. "Moreover, the court recognized that the inhumane conditions under which people are now imprisoned, essentially solitary confinement, could be found to be cruel and unusual, thus unconstitutional, in the proceedings that will now take place in the Superior Court."

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 Hemenway 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.

For a reprint of this article, please contact reprints@law360.com.