Massachusetts Supreme Court Chief Justice Ralph Gants had a question for attorneys who argued Thursday that some state agencies should not be named in a lawsuit seeking to release more prisoners because of COVID-19.
"We've got the governor saying, 'Not my problem, I shouldn't be ordered to do something.' We've got the Department of Correction saying, 'We manage the prisons, the only thing we're involved with is medical parole,' and now we've got the parole board saying that it's not their problem. So who's supposed to do it?" Gants asked during Thursday's SJC hearing on a class action lawsuit seeking to reduce the number of people incarcerated to stem the spread of the coronavirus behind bars.
Gants posed the question to attorney Michael Byrne, representing the parole board, which is named as a defendant in the suit. Burn said the parole board is not responsible for conditions in prisons and should not be included in the legal action since, by statute, it does not have the authority to order the release of prisoners.
"I think that either we have to work within the existing statutory framework or we need to work with legislators to form a new one," Byrne answered Gants. "I don't believe it's appropriate for the judiciary to disregard that framework and order an executive agency to preform a different function to accomplish a result."
The lawsuit, filed by Prisoners Legal Services of Massachusetts, names Gov. Charlie Baker, State Public Safety Secretary Thomas Turco, State Department of Correction Commissioner Carol Mici and State Parole Board Chair Gloriann Moroney as defendants.
Lawyers for the governor argued that the high court ordering the governor to use his emergency powers to reduce the prison population violates the separation of powers.
The suit seeks to expand the categories of prisoner who can seek release to include some of those who have been sentenced and those civilly committed to addiction treatment. Almost half of the more than 7,000 people detained by the DOC are elderly or medically compromised, making them particularly vulnerable to COVID-19, lawyers allege in the suit.
A Superior Court judge held three days of hearings on the lawsuit last week and submitted a fact finding report to the SJC. During those hearings, Mici said she did not see the need to release more prisoners, but acknowledged that it was not possible to adhere to social distancing guidelines and keep prisoners 6 feet apart. She said DOC was taking several steps to address the virus, such as increased hygiene measures and providing masks to prisoners and staff.
"Public officials, prison administrators and judges are beginning to recognize around the country that even the most stringent precautionary measures simply cannot protect prisoners from the extremely high risk of contracting this unique and deadly disease," argued Prisoners Legal Services of Massachusetts attorney Jim Pingeon during the hearing. "If conditions in a prison are objectively unsafe, the state has an obligation to provide a remedy, even if prison officials are doing everything in their power to address it."
Although the main questions during Thursday's hearing involved legal precedents, justices asked several questions about testing and releasing prisoners. Gants asked why DOC was releasing a slightly larger percentage of people than it has released in previous years. Justice Kimberly Budd asked why DOC wasn't doing more widespread testing; data show that less than a quarter of prisoners have been tested for the virus.
The DOC has increased testing at the Massachusetts Treatment Center at Bridgewater, MCI Shirley and MCI Framingham. Those are now the prisons with the highest numbers of prisoners testing positive for the virus.
"Our plan is to do 10,000 tests," said attorney Stephen Dietrick, representing the DOC. "The issue of testing is constantly being considered and we want to know more, not less."
During a press briefing Thursday, Baker also promised more testing.
"We're working our way through the prison system," Baker said. "In the end ,we're going to test everybody."
The SJC ruled last month that some prisoners are eligible to seek release, such as those who have not been tried and not charged with violent crimes and those held on some parole and probation violations. The court appointed a special master to work with both sides and compile weekly reports on prisoner testing and releases. Almost 500 DOC prisoners and those detained in county jails have tested positive for the virus. Close to 1,000 prisoners have been released since April 5.
On Thursday, officials with Worcester County Sheriff Louis Evangelidis said a man who was released because of the virus is now back in jail on an assault and battery charge, and the man has tested positive for the virus. A spokesman for the sheriff did not identify the man because of medical privacy concerns.
Seven men held in DOC custody have died from COVID-19. One county jail prisoner has died from the disease as well.
The SJC asked both sides to provide more information in a supplemental letter. The court is expected to issue a ruling soon.