To help keep virus at bay, Supreme Judicial Court OKs release of some inmates

Berkshire District Attorney Andrea Harrington is among several district attorneys who are in favor of releasing some inmates to reduce the population and risk of spreading the coronavirus.

BOSTON — Citing practical and constitutional concerns, the Massachusetts Supreme Judicial Court has authorized the release of some inmates in an effort to avoid potential COVID-19 outbreaks in the state's jails and prisons.

"We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance," according to the ruling that was released Friday afternoon.

In the 45-page decision, the SJC ruled that, to decrease exposure to the virus within correctional institutions, anyone who is not being held without the right to bail and who has not been charged with violent or serious offenses ... "shall be ordered released pending trial on his or her own recognizance, without surety, unless an unreasonable danger to the community would result, or the individual presents a very high risk of flight."

But, those releases will not be automatic, according to the decision.

In making a determination whether an individual is entitled to be released, the SJC said judges will need to take several factors into account, including the risk of the individual's exposure to COVID-19 in custody; whether they pose a safety risk to a victim or their family, witnesses, the community, or themselves if released; whether the defendant is particularly vulnerable to COVID-19 due to a preexisting medical condition or advanced age; whether an alleged violation of probation is a new criminal offense or a technical violation, and the defendant's release plan.

Some felt the decision, while a positive step, didn't go far enough.

"We believe it falls short of what is necessary to prevent more illness and death among people in custody, correctional staff members and the broader community," Matthew Segal, legal director at the ACLU of Massachusetts, said in a statement. "We urge every branch of Massachusetts government to do what it can to save the lives of people inside Massachusetts detention facilities, and in so doing to keep all of us safer."

According to Elizabeth Matos, executive director of Prisoners' Legal Services, the SJC interpreted its powers as limited to release a larger number of individuals, putting that responsibility in the hands of the state's executive branch.

"But as the decision demonstrates, the Executive Branch has failed to take action, and we now have two COVID-related prisoner deaths with more inevitably to come," Matos said in a statement released Friday afternoon.

"The Court has made clear that the Executive Branch has the authority to address the danger facing all those currently serving sentences, and we urge the Governor to utilize that power to help prevent a potentially deadly outbreak," said Anthony Benedetti, chief counsel for the Committee for Public Counsel Services.

Among other conditions in the SJC decision is the urging of the Department of Correction and the state's Parole Board to expedite parole hearings and the issuance of parole permits to those to whom it already has been been granted, determine which people nearing completion of their sentences could be released on time served and "identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release."

"If the virus becomes widespread within correctional facilities in the Commonwealth, there could be questions of violations of the Eighth and Fourteenth Amendments to the United States Constitution," according to the decision, which noted that none of the parties has yet made a claim of such violations.

The Eighth Amendment prohibits the setting of excessive bail and "cruel and unusual" punishments, and the 14th Amendment grants all citizens equal protection under the law.

The court noted that jails and prisons have unique difficulties keeping their populations safe during a pandemic.

"Maintaining six feet of distance between oneself and others, may be nearly impossible in prisons and jails," according to the court, and proper sanitation also is a concern.

According to the SJC, jail and prison populations are more likely to have underlying conditions that can make the virus more deadly.

The SJC noted that, should an outbreak occur, the Department of Correction has a limited capacity to respond to it, potentially adding an additional burden to the health care system "already at risk of being overwhelmed."

As of Friday morning, Dan Sheridan, assistant superintendent of the Berkshire Jail and House of Correction, said none of its 173 inmates has tested positive for COVID-19, though three staff members have. Those staff will have to be medically cleared before returning to work.

A Facebook post Wednesday on the Sheriff's Office page suggested that Berkshire County Sheriff Thomas Bowler was dealing with a health issue, but Sheridan said he could not comment on whether he was among those three, citing patient confidentiality issues.

"Sheriff Bowler wants to thank everyone for their well wishes for his health," the post read. "He is currently at home resting, which is exactly what he needs to be doing at this time."

The Sheriff's Office has put in place new procedures in order to prevent the highly contagious virus from entering the facility, including quarantining any incoming inmates away from the general population for 14 days as a precaution.

It also has instituted staff and inmate education regarding the virus, suspended work-release and community service details, suspended tours and personal visits (attorney and clergy visits still are allowed), made extra cleaning and hygiene supplies available, and increased cleaning and disinfection, among other measures.

"I'm trying to keep people safe here," said John "Jack" Quinn Jr., superintendent of the Berkshire jail. "No one in the world, the country, the state, the county, the city, has seen anything like this."

"We talk a lot about first responders, and God bless them," Quinn said. "But, inside the walls, we're always responding.

"The men and women of the Berkshire County Sheriff's Office, they come into this building every single day," he said. "With this being out there, they deserve Purple Hearts, as far as I'm concerned.

"The overworked and under-recognized are individuals who work in these correctional facilities, and especially ours," he said. "That's what wears heavy on me and [Bowler]."

While several district attorneys, including Berkshire DA Andrea Harrington, have been in favor of releasing some inmates to reduce the population and risk of spreading the virus, DAs for the Bristol, Cape & Islands, eastern, Hampden, middle, Norfolk, and Plymouth districts opposed the idea.

Those seven DAs argued the courts are already taking COVID-19 concerns into account when deciding bail and issues of pretrial detention.

They also argued that the position to release some inmates disregards "risks to public safety, particularly the physical and mental safety of victims and their families, especially victims of domestic violence."

They further argued that 73 percent of males and 64 percent of females are serving a sentence for violent offenses and releasing them, especially into a situation where there is limited supervision, increases risks to the community and to an "already overworked" criminal justice system and asked for the petition, filed by the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers to be denied.

"The SJC has shown leadership in a time of crisis by taking this issue up and establishing statewide guidance," Harrington said. "An outbreak of COVID-19 behind bars risks overwhelming our already taxed medical providers, puts incarcerated individuals at fatal risk, and endangers correctional officers and staff."

Bob Dunn can be reached at and @BobDunn413 on Twitter.