MA High Court Considers Release Of Inmates With Coronavirus Risks

·4 min read

SALEM, MA — As many as 16,000 Massachusetts inmates considered at high risk for contracting the new coronavirus are waiting for a decision from the state's highest court that could allow them to be released.

The Massachusetts Supreme Judicial Court heard arguments in a lawsuit filed last week by Massachusetts chapter of the American Civil Liberties Union and the Committee for Public Counsel Services, a state agency that provides legal representation to indigent defendants, during a four-hour teleconference Tuesday.

First Ruling In "Extraordinary Times"

Meanwhile, the court issued a more narrowly focused ruling Wednesday outlining steps judges will have to take when considering coronavirus-related requests for release. In that case, a man whose request to stay free while he appealed his conviction was denied before Gov. Charlie Baker declared a state of emergency. The man re-appealed a day after Baker's order, and that appeal was also denied.

The Supreme Judicial Court sent the case back to Suffolk Superior Court for reconsideration.

"In these extraordinary times, a judge deciding whether to grant a stay should consider not only the risk to others if the defendant were to be released and reoffend, but also the health risk to the defendant if the defendant were to remain in custody," the court said. "In evaluating this risk, a judge should consider both the general risk associated with preventing COVID-19 transmission and minimizing its spread in correctional institutions to inmates and prison staff and the specific risk to the defendant, in view of his or her age and existing medical conditions, that would heighten the chance of death or serious illness if the defendant were to contract the virus."

The ruling also said judges will need to consider where released inmates will stay given the state's social distancing advisory.

"It is important that the judge give careful consideration to the circumstances under which the defendant would quarantine if he were to be released," the court decision. "The motion judge should recognize that, because of the pandemic, and because time is of the essence, it may not be realistic to conduct the usual due diligence to provide assurances of availability and suitability, but that should not prevent the judge from relying on the information that reasonably can be provided under the circumstances."

Bigger Decision Still Pending

The timetable for when the ruling in the larger case will be released was not made clear. Reporters and the public were not allowed to listen in on the hearing, but a recording was released Tuesday evening.

The lawsuit seeks the immediate release of inmates at high risk of contracting COVID-19, including those who are over 60, as well as prisoners who have coronary and pulmonary conditions, diabetes, liver disease and other health factors that put them at greater risk.

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All 14 county sheriffs and seven of 14 district attorneys in Massachusetts have opposed the release based solely on heath concerns. In their response to the lawsuit, they said a mass release would "abandon government’s most basic function of safeguarding its citizens."

Much of Tuesday's hearing focused on a report from an attorney that had been appointed by the court last week and asked to work out a compromise. Attorney Brien T. O'Connor's report outlined a process that would prevent the release of inmates convicted of more serious offenses. Under O'Connor's plan, district attorneys would submit lists of prisoners eligible for release.

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The plan, however, drew criticism from all sides. Prisoners' advocate Matthew Segal argued that the categories in O'Connor's report were too broad and would prevent too many inmates from being released. Meanwhile, Daniel Sullivan, an attorney arguing on behalf of the probation department, said only considering health factors in making decisions to release inmates is a "shortcut that will lead to inadvertently releasing a person who is more than capable of committing violent crime."

Worcester County prosecutor Jane Sullivan argued on behalf of the seven district attorneys opposing the release, echoed those concerns. "The fact that someone has an underlying health condition doesn't make him any less likely to re-offend," Jane Sullivan said.

Jane Sullivan also argued that ruling in favor of the prisoners' advocates would violate the Constitutionally-protected separation of powers by forcing district attorneys to compile lists of inmates eligible for release.

Dave Copeland can be reached at or by calling 617-433-7851. Follow him on Twitter (@CopeWrites) and Facebook (/copewrites).

This article originally appeared on the Salem Patch

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