Lawsuit On COVID Prison Releases Shows Many DOC Workers Refusing Vaccine

A year into the pandemic, the legal wrangling continues over releasing Massachusetts prisoners to try to prevent the spread of the coronavirus behind bars.

Though the state has started vaccinating prisoners and correctional staff, the numbers show that many are refusing the vaccine and advocates say more needs to be done to stem the spread of the virus now.

Tensions were high during a hearing in Suffolk Superior Court last week on a lawsuit seeking the release of more prisoners. The hearing's focus was on a new state law that requires the Massachusetts Department of Correction to consider releasing more prisoners because of the pandemic. The new law says the DOC will release, transition to home confinement or furlough those who can be safely let out to prevent the spread of the virus behind bars.

Lawyers for a group of prisoners say the DOC is not following the law — which lawmakers approved as a budget amendment in December and then overrode the governor's veto of the measure.

"The defendant's primary argument is that because they have discretion to determine who can safely be released, they haven't violated the law by failing to make any substantial releases," said attorney Bonnie Tenneriello, with Prisoners' Legal Services of Massachusetts, the group that filed the suit. "To this we say that the law does not give them discretion to do nothing. The law explicitly anticipates the reduction of the prison population in light of COVID-19."

Tenneriello argued that the DOC's actions are "deliberate indifference" — legally defined as a reckless disregard for the consequences of one's acts. Hundreds of prisoners have been infected and 20 men have died. One man, in his 50s, died Monday at the hospital where he had been treated for more than month. Not included in the state's count are at least two other men who died of COVID shortly after they were granted medical parole. Tenneriello said the infections and deaths should prompt the court to order the DOC to make changes.

"They've hidden from view, from the public view, at least two deaths from COVID by granting death bed medical paroles while the patients were at an outside hospital," Tenneriello said. "Their actions have failed. They're still refusing to do the one thing the SJC and the legislature have told them to do that is needed to make conditions safer and that's release people."

But attorney Stephen Dietrick, arguing for state public safety officials, said the DOC has dealt with the virus. After a spike in the virus in the fall and early winter, he said there are now fewer than 100 active cases of the virus — most of them at two prisons. Dietrick also said the DOC prisoner population is down 17% since last year and half of all prisoners are housed in single cells. While there have been infections and deaths behind bars, Dietrick said that's not unique to prisons.

"The only permissible inference given the unprecedented outbreak in the community is that DOC efforts kept the spike much lower than it otherwise would have been," Dietrick said. "And that rather than DOC numbers reflect deliberate indifference, they instead reflect and mirror the community spread over which DOC had, and has, no control."

Dietrick said the DOC is implementing an electronic monitoring program to let more people out on home confinement and already uses a risk assessment tool to determine if a prisoner can be released.

"It's not a question of the [DOC] Commissioner not considering inmates for release," Dietrick said. "It happens every day for every inmate. Inmates who are not in minimum or pre-release security are behind a walled facility for a reason — they're not suitable for release to the community."

State Sen. Becca Rausch, who co-sponsored the amendment, said the new law requires steps toward decarceration.

"What we have seen is the DOC and the Baker administration continue to perpetuate systemic inaction," Rausch said.

Rausch praised the state for starting to offer coronavirus vaccines to prisoners and correction staff last month. Documents filed in the suit and state reports show that about a third of DOC prisoners and more than half of DOC staff have refused the vaccine. State officials say the number of correctional workers may be misleading because it does not include those who may have gotten the vaccine elsewhere. The DOC says workers are not required to report their personal health information and it will continue to offer the vaccine.

"The refusals reflect those staff who, at the time they were asked, opted not to receive the vaccine through DOC at a DOC vaccination site for any of a number of reasons, including being vaccinated off-site or awareness of contraindications, and the refusals do not later make a staff member ineligible for vaccination through DOC," the department said in an emailed statement. "DOC strongly encourages all staff to receive the vaccine and has engaged the union to advocate for safe and healthy choices."

But Rausch said it will take time for the vaccine to be effective and the intent of the law is to quickly take steps to reduce the number of people incarcerated.

"We can not say responsibly, 'Well the vaccine is coming so we don't need to decarcerate'," Rausch said. "What we need to do in fact is both of those things."

Judge Robert Ullman took the case under advisement and said he would likely issue a decision this week. This hearing is part of a lawsuit seeking to go beyond what the state Supreme Judicial Court ruled in April regarding prisoner releases. That SJC ruling said that some prisoners, such as those held pre-trial, are eligible to seek release because of the virus.

A hearing on another lawsuit is scheduled this week. It alleges that county jails are not doing enough COVID testing.