Over the past week the first cases of Covid-19 have begun to appear in Massachusetts prisons and jails. Given how the virus has affected the rest of the world, it is only reasonable to assume that it will soon be widespread and that correctional institutions will be hard-pressed to deal with it. There is only one solution to this looming crisis: a rapid reduction in the population of prisons and jails and the release of as many vulnerable individuals as possible. This article will address what political and judicial steps are being taken in that direction and what steps a lawyer can take to fight for the release of an individual prisoner.
County District Attorneys & Sheriffs
With the exception of the Suffolk County District Attorney’s Office, the district attorneys and sheriff’s departments in Massachusetts have taken the position that releases should be done on a case-by-case basis and have in most cases insisted that they can take adequate steps to contain the spread of Covid-19 without the need for mass releases. Andrea Cabral, the former sheriff of Suffolk County, disagrees saying, “It is insane to say that adequate protocols already exist for a disease about which you know virtually nothing.”
According to the Department of Corrections Quarterly Report on the Status of Prison Capacity for the 3rd quarter of 2019, Barnstable, Bristol, Franklin, and Worcester counties all had jails that were over capacity last year. According to that same report, a majority of Massachusetts Correctional Facilities were functioning above capacity. The solutions proposed by law enforcement are very unlikely to create the space and resources necessary for these facilities to cope with the coming crisis.
The Emergency Petition for Relief
Last week, the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers filed an emergency petition asking the Supreme Judicial Court to order the release of large numbers of people from state jails and prisons. That would include:
- People who are eligible for parole, except for those incarcerated for violent crimes.
- People who will wrap up their sentences within 6 months;
- People incarcerated on probation or parole violations that did not involve a new criminal charge.
- People who are over the age of 60, except those incarcerated for violent crimes.
- People who have been diagnosed with a condition or disease that puts them at increased risk of severe COVID-19 complications and death, including cardiovascular and respiratory disease, diabetes, and liver disease;
- People who qualify for medical parole;
- People serving house of corrections sentences for nonviolent offenses;
- Anyone else for whom a release or stay is appropriate.
The petition also asks the court to take a number of steps to reduce the number of people going into custody or needing to engage with the criminal justice system in ways that are incompatible with public safety (like random drug screens performed at courthouses). It also asks the court to vacate all currently outstanding warrants. This would be a huge step, as at the moment there appears to be no way to remove a warrant without surrendering oneself to the police.
If you are wondering what the state should be doing to deal with the ways in which this crisis impacts people accused and convicted of crimes, this petition is what the experts in the trenches have to say about it.
The case is scheduled to be heard by teleconference on March 31. Updates and copies of the filings can be found here: https://www.mass.gov/lists/supreme-judicial-court-full-bench-recently-entered-cases-and-orders.
The Emergency Legislation
A bill is pending in the state house (HD4963) that would require the release of a similarly large number of people within 14 days. It’s language is similar to that of the Emergency Petition for Relief in terms of who it would release from jail. In some ways, it is even more expansive, as it would release people held on bail for chapter 265 offenses unless they posed a threat to the safety of the community. However, the bill lacks the other provisions that address other aspects of the criminal justice system that need to be altered to deal with the pandemic.
This is a great piece of legislation. However, 14 days is already too long, and the bill hasn’t even been before the state senate. It is unlikely that it will be enacted quickly enough to prevent the spread of Covid-19 in the jails and prisons. We’ve reached out to the bill’s presenter via twitter for an update on the status of this legislation, and will post her response when we receive it.
Access to the courts is extremely limited right now. All courthouses are closed to the public, and an increasing number are closed altogether. Everyone is scrambling to maintain some semblance of a justice system with greater and lesser degrees of success. Unfortunately, that means it is almost impossible for a person to do any of these things without an attorney who knows the system and can find ways to get a case before a judge.
This situation is practically untenable and constitutionally offensive, but it is also the world we live in at the moment. So while some of these remedies are usually available without the assistance of an attorney, even those are unlikely to be successful at the moment without professional assistance.
For People Held Before Trial
If a person is held on a district court bail, it can be reduced or changed to a release on personal recognizance by means of either a motion to reconsider bail in the district court or a review in the superior court. A motion to reconsider is exactly what it sounds like, a motion before the court, ideally the same judge, who issued the original detention order asking them to find that a change in circumstances warrants a change in conditions of release. In a bail review, a justice of the superior court takes a fresh look at the case and makes their own determination about what the terms and conditions of release should be. Both of these can be done in a single case, and which to try first is a strategic decision that should be made based on individual circumstances.
A person held on a superior court bail doesn’t have the option of a bail review, but can nevertheless move for reconsideration at any time.
The Alaska Court of Appeals issued an order last week in Karr et al. v. State holding that Covid-19 constitutes a change in circumstances for the purposes of reconsideration of bail and detailing all the reasons why. Alaska is very far away from Massachusetts, but their reasoning applies universally. There is undeniably a new and different public health risk associated with pretrial detention, both to individuals and to the incarcerated population as a whole. At the same time, the biggest factors generally considered in making bail determinations, risk of flight and risk to the community, are affected by the current situation. With everyone confined to their homes, fewer flights available, fewer cars on the road, and countries closing their borders, a person’s ability to flee is significantly less than it was before large portions of the country went into semi-isolation. At the same time, crime rates across the country have dropped significantly. The shuttering of businesses and the banning of gatherings of any kind make it more difficult for an individual to be any sort of threat to the community.
These arguments are applicable to just about any case. However, people who are particularly vulnerable to Covid-19 and/or people who are charged with non-violent offenses stand the best chances of success.
These proceedings are useful not just for folks who are incarcerated as a result of conditions of release, but also for people who have conditions that have become untenable. If, for example, the drug testing that was made a condition of release has become unreasonable because it now requires a vulnerable person to take public transportation and enter a public building, these procedures can provide relief.
For Cases Pending On Appeal
If a case is pending on appeal, the trial court has discretion to stay further execution of the sentence. That means the sentence would essentially be on hold, and in the meantime the person would get out of jail subject to whatever conditions the court imposed. The court can, of course, impose conditions up to and including 24-hour house arrest.
In ruling on such a motion a judge should consider whether the appeal is actually strong enough to be worth winning, and whether the defendant is a danger to the community. As discussed above, a person’s ability to be a danger to the community is vastly altered by Covid-19.
A motion to stay a sentence pending appeal is a way for judges to release people who they may not have otherwise considered releasing because of these new, unique circumstances.
For Everyone Else
If a person has been sentenced and their case is not pending on appeal, there are still some avenues that can be pursued. These include:
- Constitutional Arguments – The 8th Amendment to the United States Constitution and Article 26 of the Massachusetts Declaration of Rights both prohibit cruel and unusual punishment. This includes the conditions under which inmates are housed. At the moment Covid-19 presents a risk to the health and safety of potentially every incarcerated person in the world. As discussed above, law enforcement officials have shown an unrealistic and dangerous disregard for the potential catastrophe they are facing. It therefore makes sense to ask the courts to intervene in individual cases, just as they are being asked to intervene for the prison population as a whole. There are a variety of mechanisms by which this can be done, and which one is most likely to be successful should be an individualized strategic decision.
- Petition for Medical Parole – Medical release only applies to people who have apparently incurable conditions that make it unlikely that they will be able to commit a crime and whose illness requires specialized care or housing. This group has arguably ballooned to include everyone who is vulnerable to Covid-19 because of age or a pre-existing medical condition and would therefore need to be in extreme isolation if released into the community.
This pandemic is new territory for all of us, and the justice system is no exception. We can’t say what judges will and will not be willing to consider or do, and chances are that individual judges will vary dramatically in how they choose to respond to requests for release. It is an extraordinary time, and that makes it an ideal time to try creative strategies. Under these circumstances, there really is no harm in asking.
Now more than ever, we at PiltserCowan Law, LLC are available to help.