Lawsuit Asks DOC To Release More Prisoners Amid COVID Spikes

Because of the spike in coronavirus cases in Massachusetts, advocates have filed an emergency petition asking the courts to force the state Department of Correction to release more prisoners on home confinement.

Advocates say the DOC is ignoring a court ruling to consider home confinement during the pandemic and ask why COVID testing of correctional staff is not mandatory.

The motion, filed by Prisoners' Legal Services of Massachusetts, cites a state Supreme Judicial Court ruling in June saying the DOC has the authority to release more prisoners on home confinement. It says, particularly with recent COVID outbreaks at three correctional facilities, the DOC should take further steps to release those in custody and help prevent the spread of the virus.

"The DOC has refused to even effectuate a home confinement program which it is legally obligated to do," said Elizabeth Matos, executive director of Prisoners' Legal Services of Massachusetts. "The precautions that should have been taken by the DOC in the last five months have not been taken. And unfortunately, we need the court's intervention in order to make that happen."

The motion cites a home confinement petition for Steven Palladino who, it says, had underlying health issues and was in custody for a non-violent financial crime. Palladino requested home confinement release in August. Two months later the DOC denied his request saying "DOC does not utilize home confinement." Palladino died the day after the department denied his request.

"While there is no indication that Mr. Palladino’s death was caused by COVID-19, DOC’s refusal even to consider someone in his situation for home confinement shows its complete disregard of its statutory obligation and the SJC’s ruling," the motion reads.

Recent COVID outbreaks in three state correctional facilities are also cited by the attorneys. Those include new cases at MCI Norfolk this week, as well as cases at the Massachusetts Alcohol and Substance Abuse Center (MASAC) and the Essex County Jail in Middleton.

After this week's outbreak at MCI Norfolk, DOC officials said there would be widespread testing of those in custody. Correctional staff testing is voluntary. Some of those held at Norfolk tell WBUR that they're concerned about the lack of staff testing.

"Staff are permitted to enter the facility each day and have contact with us, while no testing requirements are in place for them," wrote one Norfolk prisoner in an email. "Testing every inmate is irrelevant if an untested staff member comes to work and infects one of us."

The prisoner, who does not want to be identified because he fears retaliation, also says the prison is essentially locked down and visitors are not allowed. He says there is limited soap and hand sanitizer and the staff do not always wear masks.

The most recent report from the Special Master appointed by the SJC was issued Thursday. It lists five active coronavirus cases among prisoners at MCI Norfolk and 10 among correctional officers. The report also says that since April, more than 10,700 tests have been administered to prisoners and 476 were positive. It also says 1,300 tests were administered to correctional officers since April. Of those, 137 were positive. As for county jails since April, of the more than 5,300 tests administered to prisoners, 460 were positive. More than 1,300 tests were administered to officers; 225 were positive.

The DOC has said that testing is offered to staff, but it is not mandatory. The correction officers union has not responded to requests for comment.

New data from the Massachusetts Department of Public Health this week identifies correctional facilities as among the 22 settings where there are new clusters of the virus. The data show that corrections has the third highest number of confirmed cases, after households and long-term care facilities. The advocates say the state is not preparing for an even greater spike in jails and prisons.

"It seems that but for the fact that these folks are incarcerated, they would be treated differently and different standards would be applied," Matos said. "Nursing homes have had heightened standards applied since the height of COVID to prevent the same things that happened in the spring. We are seeing all kinds of protocols apply to universities and other congregate settings. But prisons and jails are left out of that. Even if you don't care about the fate of people who are incarcerated, it's clearly an issue that impacts staff in the community as well."

The legal motion also says almost 300 more people are held in jails and prisons now than in the spring and home confinement should be an option to prevent the spread of the virus in all state correctional facilities.

The DOC says it does not comment on pending litigation.

Since the pandemic began, eight men in DOC custody and two men in county jails have died from COVID-19.