Massachusetts Correction Commissioner Carol Mici told a judge this week that her department is successfully managing the coronavirus outbreak and can do so without further reducing the prison population.
Mici made the comments during a remote hearing held earlier this week before Suffolk Superior Court Judge Robert Ullman.
"I would agree that within the law, if there is an appropriate measure to release an inmate, then that's appropriate," Mici said during a hearing this week, "but I don't just say overall that we need to decrease the population."
While saying that the DOC follows state and federal health guidelines, Mici acknowledged that it is not possible to keep all prisoners six feet apart. The DOC holds about 7,500 people in 16 correctional facilities.
"Would it be possible to have social distancing without lowering the number of people in DOC custody?" attorney Jim Pingeon, from Prisoners Legal Services of Massachusetts, asked Mici during the hearing.
"It would not or I would have done it by now." Mici said.
This week's hearings before Ullman are for a class action lawsuit filed with the state Supreme Judicial Court and included testimony from six incarcerated people. Ullman on Friday issued a report on the hearings, which now goes to the SJC.
The suit, filed by Prisoners Legal Services of Massachusetts, seeks a broader release of prisoners than what the SJC ordered last month. In that ruling, the high court said some prisoners are eligible to seek release, such as those held pre-trial and those detained on parole and probation violations. Some 800 prisoners have been released from state prisons and county jails since that ruling.
The class action suit asks the court to allow the release of some sentenced prisoners and those who are civilly committed to addiction treatment. The suit names Mici and other state officials, including Gov. Charlie Baker.
Ullman's report says the DOC has taken steps to improve cleaning of state prisons, has increased testing of those incarcerated and provided most prisoners with masks last week. Mici testified that the DOC is properly managing the virus behind bars.
"I would say that to the best of my ability, given the facilities and the layout, that we are managing it," Mici testifed.
As for legal ways to reduce the prison population, Ullman's report points out that no furloughs or home confinements have been issued during the pandemic. The Massachusetts Parole Board told the court that it will hold more parole hearings starting next week and will help fund sober living for up to 150 parolees for eight weeks.
The suit said Baker should use his executive powers of clemency to help reduce the state prison population.
"The Governor has refused to act on his near plenary emergency powers when it comes to the health and safety of prisoners, publicly confirming his intention to stick with a failing status quo," the suit claims.
But attorneys for the governor said that Baker should not be included in the suit and any court order for him to act is a violation of the separation of powers.
"No order maybe entered to compel him to exercise certain emergency or constitutional authority," the governor's attorneys argued in a motion to remove Baker as a defendant in the suit. "If the judiciary could compel the exercise of such executive authority, the line between the executive and the judiciary would fade into the horizon."
In a separate case, the SJC urged the governor to use his executive powers to release more prisoners.
Ullman's report also said, that based on the coronavirus testing done at Massachusetts prisons, the infection rate is 39%, which is higher than the rate in the general population. The highest rates of positive tests in prisons are at the Massachusetts Treatment Center in Bridgewater, MCI-Shirley and MCI-Framingham.
Seven men detained in state prisons and one man incarcerated in a Massachusetts county jail have died of COVID 19.
The SJC is expected to hold a hearing next week on the judge's report and the class action lawsuit.