SJC opens cell doors, due to virus


SJC2

The Supreme Judicial Court says that the pre-trial detainees (defendants who could not make bail) for nonviolent offenses need to get let out of jail, due to the virus.  This decision came down this afternoon.

 

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April 3, 2020

2:00 PM Release

 

Committee for Public Counsel Services v. Chief Justice of the Trial Court (SJC 12926)

====================================================

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12926

COMMITTEE FOR PUBLIC COUNSEL SERVICES & another1 vs. CHIEF
JUSTICE OF THE TRIAL COURT & others.2
Suffolk. March 31, 2020. – April 3, 2020.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.

Committee for Public Counsel Services. Chief Justice of the
Trial Court. Commissioner of Correction. Sheriff.
Parole. Pretrial Detention. Practice, Criminal, Sentence,
Parole.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 24, 2020.

The case was reported by Budd, J.

Matthew R. Segal (Jessie J. Rossman also present) for
Massachusetts Association of Criminal Defense Lawyers.
Rebecca A. Jacobstein, Committee for Public Counsel
Services (Benjamin H. Keehn, Committee for Public Counsel
1 Massachusetts Association of Criminal Defense Lawyers.
2 Department of Correction; parole board; Attorney General;
district attorneys for the Berkshire, Bristol, Cape and Islands,
eastern, Hampden, middle, Norfolk, northern, northwestern,
Plymouth, and Suffolk districts; and fourteen sheriffs’
departments.
2
Services, also present) for Committee for Public Counsel
Services.
Eric A. Haskell, Assistant Attorney General (David C.
Kravitz & Mindy S. Klenoff, Assistant Attorneys General, also
present) for the Attorney General.
Daniel P. Sullivan for Chief Justice of the Trial Court.
Charles W. Anderson, Jr., for Department of Correction.
Gloriann Moroney for parole board.
Donna Jalbert Patalano, Assistant District Attorney, for
district attorney for the Suffolk district.
Thomas D. Ralph, Assistant District Attorney (Marian T.
Ryan, District Attorney, also present) for district attorney for
the northern district & others.
Jane A. Sullivan, Assistant District Attorney (Elizabeth
Dunphy Farris, Assistant District Attorney, also present) for
the district attorney for the middle district & others.
Robert W. Harnais (Dan V. Bair, II, also present) for
fourteen sheriff’s departments.
Andrea Harrington, District Attorney for the Berkshire
District, was present but did not argue.
Robert A. Jones & Joshua S. Levy, for the special master,
were present but did not argue.
The following submitted briefs for amici curiae:
Katharine Naples-Mitchell for Mary T. Bassett & others.
Ruth Greenberg for Joseph Buckman & others.
Max Bauer for Dominick Donovan & others.
Liam T. Lowney, pro se.
Michael Cox, pro se.
Andrea James, Joneisha James, Stacey Borden, Robert
Williams, Suzanne Gray, Michael Gray, Kathleen Mahan, Adelcia
Miller, Damaris Muhammed, Brooke Hadley, Reyna M. Ramirez,
Lauren Petit, Khadejah Al-Rijleh, Casandra Scarlet, Erika N.,
Paige Scott, Aaron Bray, Nana Yankah, Marsophia S. Ducheine,
L.B., L.M., J.C., Lor Holmes, J.D., W.H., K.L., S.P., Joan
Hunter, R.R., T.B., J.G., Selena Williams, Keondra Jean, J.B.,
Jude Glaubman, Nicole Sadler, Mallory Hanora, Jurrell Laronal,
Annette Bartley, Fernando Phillips, Miles McKinney, Carlos R., &
Ayana Aubourg, pro se.
Leon Smith for Citizens for Juvenile Justice.
Elizabeth Matos, James Pingeon, Bonita Tenneriello, & Jesse
White for Prisoners’ Legal Services of Massachusetts.
Phillip Kassel, Jennifer Honig, Coco Holbrook, & Caitlin
Parton for Mental Health Legal Advisors Committee.
Christine M. Netski, Meredith Shih, David M. Siegel, &
Martin F. Murphy for Boston Bar Association.
Jessica L. LaClair for Jose Rivera.
3

GAZIANO, J. The 2020 COVID-19 pandemic has created
enormous challenges for every aspect of our communities. While
scientists are racing to discover whether any existing drugs can
help to treat the virus and improve outcomes for critically ill
patients, and others are working at top speed to develop a
vaccine, currently there is no cure and no vaccine. Health care
workers on the frontlines of the epidemic are coming down with
the virus in much higher percentages than others, while surgical
masks and other basic protective equipment are in short supply,
and hospitals with already close-to-capacity intensive care unit
beds confront the possibility of inadequate resources to care
for critically ill patients, such as lack of needed ventilators.
Everyday life is heavily disrupted; most businesses, schools,
and houses of worship are closed,3 while grocers, pharmacies, and
delivery services stretch to provide essential services to meet
basic needs, and families without paychecks worry about how to
meet those needs. The Centers For Disease Control (CDC)
guidelines recommend that, to avoid exposure, individuals limit
contact with others, maintain a distance of at least six feet
from other individuals if they are together, engage in frequent
3 See Order Extending the Closure of Certain Workplaces and
the Prohibition of Gatherings of More than 10 People, COVID-19
Order 21 (Mar. 31, 2020), https://www.mass.gov/doc/march-31-
2020-essential-services-extension-order [https://perma.cc/SU87-
GTAV].
4
handwashing, and clean and disinfect frequently touched surfaces
daily in order to “flatten the curve,” i.e., to reduce the
number of cases the beleaguered health care system must treat at
any one time.
On March 10, 2020, the Governor declared a state of
emergency to support the Commonwealth’s response to the threat
of COVID-19. On March 11, 2020, the World Health Organization
formally declared the expanding spread of the COVID-19 virus a
global pandemic. Since then, infections have spread alarmingly,
rapidly, and at an increasing rate, both in Massachusetts and
throughout the world. In an attempt to mitigate the spread of
the disease, the Governor has imposed strict restrictions on
many aspects of everyday life, including closing business and
schools and stringently restricting public and private
gatherings. In the week between the filing of this petition and
oral argument, confirmed cases in the Commonwealth increased
more than eight-fold, from 777 cases to 6,620 cases.4
4 Of course, during that same period, the number of people
tested also has increased exponentially, as more laboratories
have begun processing tests. For example, in one day, March 26,
2020, 5,570 more tests were processed by the Department of
Public Health than had been processed the previous day. Prior
to that, between March 23 and 24, the number of residents tested
doubled in two days, from 6,004 to 13,749. According to the
Department of Public Health, more than 46,000 people in the
Commonwealth had been tested as of March 31, 2020, resulting in
6,620 positive tests.
5
Pursuant to its supervisory authority, this court has
issued a series of orders with respect to court proceedings, new
filings, and trials, designed to “protect the public health by
reducing the risk of exposure to the virus and slowing the
spread of the disease.” As the health crisis has deepened, we
have been forced to limit physical access to our court houses to
address only “emergency matters that cannot be resolved through
a videoconference or telephonic hearing, either because such a
hearing is not practicable or because it would be inconsistent
with the protections of constitutional rights,” and have
directed each trial court department to issue a standing order
to determine what constitutes an emergency matter. Each trial
court department subsequently has done so. We have emphasized,
as well, that, “[i]n criminal cases, where appropriate, a
defendant may ask the court for reconsideration of bail or
conditions of release.”
The petitioners, the Committee for Public Counsel Services
(CPCS) and the Massachusetts Association of Criminal Defense
Lawyers (MACDL), bring our focus to the situation with respect
to COVID-19 confronting individuals who are detained in jails
and houses of correction pending trial, and individuals who have
been convicted and are serving a sentence of incarceration in
the Commonwealth. To allow the physical separation of
individuals recommended by the CDC, the petitioners seek the
6
release to the community of as many individuals as possible as
expeditiously as possible, indeed, on the day of argument in
this case, according to one of them. They offer a number of
different legal theories under which a broad-scale release might
be accomplished.
We conclude that the risks inherent in the COVID-19
pandemic constitute a changed circumstance within the meaning of
G. L. c. 276, § 58, tenth par., and the provisions of G. L.
c. 276, § 557. To decrease exposure to COVID-19 within
correctional institutions, any individual who is not being held
without bail under G. L. c. 276, § 58A, and who has not been
charged with an excluded offense (i.e., a violent or serious
offense enumerated in Appendix A to this opinion) is entitled to
a rebuttable presumption of release. The individual shall be
ordered released pending trial on his or her own recognizance,
without surety,6 unless an unreasonable danger to the community
5 The petitioners further request that this court vacate all
bench warrants and order the trial courts to cease issuing new
bench warrants; suspend all conditions of probation that would
violate the CDC’s recommended physical distancing; and vacate
probation orders that would require immediate detention. Based
on the record and the affidavits before us, which suggest that
actions already are happening to the extent consistent with
public safety, we decline to order further relief.
6 Conditions of release may be imposed, consistent with
current limitations on probation supervision and global
positioning system monitoring restrictions.
7
would result, or the individual presents a very high risk of
flight.
The special master previously appointed by this court in
conjunction with this case will work at the county level with
each relevant court to facilitate these hearings.7 The sheriffs
of each county shall provide the special master daily census
reports for each correctional institution, and the special
master shall file weekly reports with this court, as detailed in
Appendix B to this opinion, so that the court will be better
positioned to respond to further changes in this rapidlyevolving
situation. In addition, the Department of Correction
(DOC) shall furnish the special master daily reports of inmate
counts and rates of COVID-19 cases at each facility, as
explained in Appendix B.
With respect to those individuals who are currently serving
sentences of incarceration, absent a finding of a constitutional
violation, our superintendence power is limited. Those who have
been serving sentences for less than sixty days may move to have
their sentences revised or revoked under Mass. R. Crim. P. 29,
as appearing in 474 Mass. 1503 (2016) (Rule 29). Those who are
7 We acknowledge the extraordinary efforts of the special
master, Brien T. O’Connor, who, together with his colleagues at
Ropes and Gray, LLP, already has worked tirelessly with the
parties to draft a report and recommendation for our
consideration prior to argument in this case.
8
pursuing appellate proceedings or a motion for a new trial may
seek a stay of execution of sentence pursuant to Mass. R. A. P.
6, as appearing in 481 Mass. 1608 (2019). See Commonwealth v.
Charles, 466 Mass. 63, 83 (2013). Where there is no
constitutional violation, however, art. 30 of the Massachusetts
Declaration of Rights precludes the judiciary from using its
authority under Rule 29 to revise and revoke sentences in a
manner that would usurp the authority of the executive branch.
Removing any limitation on the time in which a motion to revise
and revoke a sentence may be brought, however, would do
precisely that. See Commonwealth v. McCulloch, 450 Mass. 483,
488 (2008), quoting Commonwealth v. McGuinness, 421 Mass. 472,
476 n.4 (1995) (“A judge may not interfere with the executive
function of the parole board by using postconviction evidence in
an order to revise and revoke”).
To afford relief to as many incarcerated individuals as
possible, the DOC and the parole board are urged to work with
the special master to expedite parole hearings, to expedite the
issuance of parole permits to those who have been granted
parole, to determine which individuals nearing completion of
their sentences could be released on time served, and to
identify other classes of inmates who might be able to be
9
released by agreement of the parties, as well as expediting
petitions for compassionate release.8
As the petitioners have argued, and the respondents agree,
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 and art. 26 of the Massachusetts Declaration of
Rights; nonetheless, at this time, the petitioners themselves
clarified in their reply brief and at oral argument that they
are not raising such claims.
1. Background. a. COVID-19 in jails and prisons. All
parties agree that, for several reasons, correctional
institutions face unique difficulties in keeping their
populations safe during this pandemic. First, confined,
enclosed environments increase transmissibility. Maintaining
adequate physical distance, i.e., maintaining six feet of
distance between oneself and others, may be nearly impossible in
prisons and jails. Second, proper sanitation is also a
challenge; the petitioners have submitted affidavits from
8 We acknowledge the amicus letters of the Boston chapter of
Black and Pink, Joseph Buckman and others, Citizens for Juvenile
Justice, Dominick Donovan and others, the families of certain
incarcerated loved ones, Massachusetts Office for Victim
Assistance, Mental Health Legal Advisors Committee, Prisoners
Legal Services, certain public health professionals, and Jose
Rivera.
10
Department of Public Health (DPH) officials stating that, during
recent routine inspections of Massachusetts correctional
institutions (prior to the declaration of emergency), DPH
inspectors discovered a concerning number of repeat
environmental health violations.
Finally, while many people who contract COVID-19 are able
to recover without the need for hospitalization, those who
become seriously ill from the virus may require hospitalization,
intensive treatment, and ventilator support. Severe cases are
most likely to occur among the elderly and those with underlying
medical conditions. Those in prisons and jails have an
increased prevalence, relative to the general population, of
underlying conditions that can make the virus more deadly. The
DOC and the petitioners agree that hundreds of those
incarcerated in the Commonwealth suffer from chronic diseases,
and nearly 1,000 incarcerated individuals are over sixty years
of age.
Experts warn that an outbreak in correctional institutions
has broader implications for the Commonwealth’s collective
efforts to fight the pandemic. First, the DOC has limited
capacity to offer the sort of specialized medical interventions
necessary in a severe case of COVID-19. Thus, as seriously ill
individuals are transferred from correctional institutions to
outside hospitals, any outbreak in a correctional institution
11
will further burden the broader health care system that is
already at risk of being overwhelmed. Second, correctional,
medical, and other staff enter and leave correctional
institutions every day. Should there be a high concentration of
cases, those workers risk bringing infections home to their
families and broader communities.
b. Response to COVID-19 by courts and correctional
institutions. In response to the COVID-19 pandemic, and
pursuant to orders of this court, the Superior Courts, the
District Courts, the Boston Municipal Court, and the Juvenile
Courts remain open for in-person proceedings only for emergency
matters that cannot be resolved remotely.9 The courts are
deciding motions related to COVID-19, including motions for
release and motions for bail reduction, via remote hearings or
based on the pleadings and without argument.10
9 See Superior Court Standing Order 3-20 (Mar. 17, 2020);
District Court Standing Order 2-20 (Mar. 18, 2020); Boston
Municipal Court Standing Order 3-20; Juvenile Court Standing
Order 3-20 (Mar. 25, 2020). These emergency matters include
arraignments.
10 The Superior Court has reported to this court that, as of
March 25, 2020, fifty-one such motions were pending, twentyeight
were denied, and nineteen were allowed in part or in full.
The Juvenile Court received twenty-five motions for release or
bail reduction between March 14 and March 25. As of March 27,
2020, ten had been allowed, five had been denied, and ten were
pending.
12
c. Commonwealth’s response to COVID-19 crisis. The
district attorneys have taken various proactive steps in
response to COVID-19 to reduce the incarcerated population. The
district attorneys for the Suffolk, northern, and northwestern
districts have sought to identify detainees and inmates whom
they believe would be appropriate for release. The district
attorney for the Berkshire district notes that her office has
sought unsuccessfully from the sheriff in Berkshire County
census information necessary in order to identify appropriate
candidates for release.
According to affidavits by the DOC and the various
sheriffs’ offices that operate correctional facilities, they
have enacted screening procedures for all individuals entering
these facilities. Employees with symptoms or positive test
results are instructed to self-quarantine at home. New inmates
and detainees also are screened for symptoms of COVID-19; those
without symptoms are quarantined for fourteen days, and those
with symptoms are isolated.
Individual correctional institutions also have restricted
access to the facility only to essential staff. General
visitation is suspended,11 and transfers among facilities have
11 Most correctional facilities have offered limited free
telephone calls as a replacement to visits by family and
friends.
13
been restricted or completely suspended. Group programming has
been curtailed, and scheduling changes within facilities have
been enacted to reduce the number of individuals simultaneously
occupying shared spaces.
The availability of hygiene products also has been
increased. The DOC, the Attorney General, and the sheriffs
report that bar soap has been made available to all inmates and
detainees without charge. Hand sanitizer has been made
available in many locations. Inmates and detainees have been
instructed on techniques to reduce the spread of COVID-19.
Personal protective equipment, including masks, gowns, gloves,
and goggles, are available to staff in correctional facilities.
All facilities are below their maximum capacities, based on
“operational capacity” as designated by the DOC.12 The prison
system as a whole is at seventy-three per cent capacity; the
most crowded facility is the North Central Correctional
12 “Operational capacity” differs from “design capacity.”
Operational capacity is based on guidelines issued by the
Association of State Correctional Administrators. Design
capacity is measured by the DOC and reported upon by the
Governor quarterly, pursuant to St. 1985, c. 799, § 21. See,
e.g., Governor, Quarterly Report on the Status of Prison
Capacity, Second Quarter 2019 (July 2019), https://archives.lib
.state.ma.us/bitstream/handle/2452/807941/on1124679772-2019-
2.pdf?sequence=1&isAllowed=y [https://perma.cc/AL5Z-67QT].
14
Institution, at ninety-five per cent of capacity.13 Jails and
houses of correction are operating, on the whole, at fifty-six
per cent capacity.14 The Norfolk County house of correction, at
ninety-six per cent occupancy, is the closest to capacity.
As of April 1, 2020, there were three correctional
facilities with confirmed cases of COVID-19 among inmates; the
majority were at the Massachusetts Treatment Center (treatment
center). Seventeen members of the treatment center’s
population, one inmate at another DOC facility, two inmates who
had been in close contact at a county jail, and three staff
13 All prisons except the Souza-Baranowski Correctional
Center, which houses largely inmates serving life sentences,
currently are operating at above fifty per cent of capacity.
Occupancy rates in men’s prisons are as follows:
Massachusetts Correctional Institution (MCI), Cedar Junction
(maximum security), 64%; Souza-Baranowski Correctional Center,
41%; Massachusetts Treatment Center, 84%; MCI, Cedar Junction,
86%; MCI, Concord, 78%; MCI, Norfolk, 85%; MCI, Shirley, 89%;
North Central Correctional Institution, Gardner, 95%; Old Colony
Correctional Center (OCCC), 92%; Shattuck Correctional Unit,
79%; State Hospital at Bridgewater, 74%; Massachusetts Alcohol
and Substance Abuse Center at Plymouth, 57%; MCI, Shirley
(minimum security), 84%; OCCC (minimum security), 64%; Boston
Pre-Release, 55%; North Eastern Correctional Center, Concord,
68%; and Pondville Correctional Center, 78%. For women’s
prisons, occupancy rates are as follows: MCI Framingham, 37%;
and South Middlesex Correctional Center, 31%.
14 Based on operational capacity, the county houses of
correction have the following rates of occupancy: Barnstable
County, 38%; Berkshire County, 36%; Bristol County, 55%; Dukes
County, 28%; Essex: County, 77%; Franklin County, 52%; Hampden
County, 51%; Hampshire County, 67%; Middlesex County, 54%;
Norfolk County, 96%; Plymouth County, 51%; Suffolk County, 50%;
and Worcester County, 62%.
15
members at two other facilities had tested positive; six
additional individuals had symptoms of COVID. Three inmates
were at hospitals, and the rest were housed in an isolated unit
or the health services unit at the treatment center.
Correctional facilities report that they have developed
plans in the event of a wider outbreak within their facilities,
based on CDC and DPH guidelines. At least some of these plans
contain contingencies for staffing shortages. For the most
part, details on these plans have not been made available in the
record or at argument before this court.
d. COVID-19 response in other jurisdictions. In response
to the COVID-19 pandemic, a number of State courts throughout
the country have instituted various forms of relief in order to
reduce the number of incarcerated individuals in their States.
The Chief Justice of the Supreme Court of South Carolina, for
example, issued a memorandum to all judges and court staff
directing that “[a]ny person charged with a non-capital crime
shall be ordered released pending trial on his own recognizance
without surety, unless an unreasonable danger to the community
will result or the accused is an extreme flight risk.” The
Supreme Court of Washington issued an order that, among other
measures, declares that the COVID-19 pandemic shall be presumed
to be a “material change in circumstances” for the purposes of
such motions for bail review if the individual has been
16
identified as part of a vulnerable or at-risk population by the
CDC, and that the pandemic may constitute a material change in
circumstances and “new information” for all others seeking
amendment of a prior bail order. The order designates as
priority matters all motions for pretrial release and bail
modification, as well as plea hearings and sentencing hearings
that will result in the anticipated release of a defendant
within thirty days of the hearing.
The Chief Justice of the Supreme Court of Michigan issued
an order and further guidance instructing judges to “take into
careful consideration” the present state of the COVID-19
emergency in making pretrial release decisions, including
setting bail and conditions of release or probation,. The Chief
Justice later issued a statement directing that judges should
release “far more people on their own recognizance” and “should
use probation and treatment programs as jail alternatives.” The
statement called on judges and sheriffs to “use the statutory
authority they have to reduce and suspend jail sentences for
people who do not pose a public safety risk,” and urged that
“law enforcement should only arrest people and take them to jail
if they pose an immediate threat to people in the community.”
The Supreme Court of New Jersey ordered mediation in
response to a petition from the State’s Office of the Public
Defender. The mediation resulted in a consent order that
17
suspends or commutes county jail sentences for low-risk inmates
in light of the public health crisis, unless a State or county
prosecutor objects to the release of a particular individual.
If there is such an objections, a judge or special master will
hold a hearing to determine if release would pose a significant
risk to the safety of the inmate or the public.
2. Relief sought. All parties agree that a significant
COVID-19 outbreak in Massachusetts correctional institutions
would pose considerable risks to those who are incarcerated,
correctional staff, and the broader community. They disagree
significantly about current conditions in correctional
institutions, whether widespread release for some populations
would be more harmful than beneficial, and the proper means by
which to reduce the number of people held in custody, before
trial and after conviction.
a. Petitioners’ arguments. The petitioners ask this court
to use its extraordinary superintendence power under G. L.
c. 211, § 3, to take a number of unprecedented steps to reduce
the number of people held in Massachusetts correctional
facilities, both pretrial and postsentence. These actions, they
contend, are necessary practically, to save lives, and legally,
to prevent what could become substantial and widespread
violations of constitutional rights.
18
Specifically, the petitioners’ brief describes potential
threats to the rights of those held in State custody to be free
from cruel and unusual punishment, embodied in the Eighth
Amendment to the United States Constitution, and cruel or
unusual punishment prohibited by art. 26. Those provisions
require the Commonwealth to furnish conditions of confinement
that do not create an unreasonable risk of future harm to inmate
health and safety, an obligation the petitioners argue is
effectively impossible to meet under conditions of global
pandemic.
The petitioners argue as well that inaction could violate
rights to due process of law, inscribed in the Fourteenth
Amendment, and art. 12 of the Massachusetts Declaration of
Rights. For pretrial detainees, the petitioners contend that
the risk of infection and death constitutes punishment prior to
adjudication, which is not reasonably related to a legitimate
government interest, and therefore is inconsistent with due
process. For those who have been convicted and sentenced, the
petitioners argue that due process protections are violated when
the deprivations suffered are “qualitatively different from the
punishment characteristically suffered by a person convicted of
crime.” Vitek v. Jones, 445 U.S. 480, 493 (1980). Because the
substantial threat of infection, serious illness, and death is
not part of the sentence imposed on anyone in the Commonwealth,
19
the petitioners contend that inaction would constitute
additional punishment without due process of law.
In their reply brief, and at argument before us, the
petitioners state that they are not raising any constitutional
claim at this time, and rather are pointing out the possibility
of such violations if something is not done to mitigate the
situation. The petitioners ask this court to reduce drastically
(they suggest by a factor of one-half of the population
currently held in custody) the number of individuals entering
detention, held pretrial on unaffordable bail, and serving
lawful sentences. They propose specific measures with respect
to preventing individuals from entering State custody,15
releasing those who are detained prior to trial,16 and reducing
15 To reduce the flow of individuals into the correctional
system, the petitioners ask this court to: (1) order that risks
associated with a COVID-19 outbreak be considered in bail
hearings, probation revocation hearings, and determinations of
dangerousness under G. L. c. 276, § 58A; (2) vacate bench
warrants related to fines and fees; (3) vacate conditions of
probation that automatically trigger probation violation
proceedings upon an alleged violation; and (4) suspend pretrial
and probation conditions incompatible with social distancing.
16 For individuals being detained prior to trial, the
petitioners seek the release of those held on unaffordable bail;
held on a bail revocation for a technical violation of
probation; those over sixty years of age; and those who have
underlying health conditions that heighten their risk.
20
sentences, staying sentences, or paroling certain groups of
individuals who are serving a sentence of imprisonment.17
To accomplish this latter set of releases, the petitioners
suggest that this court amend Mass. R. Crim. P. 29, which allows
judges to revise sentences within sixty days of imposition “if
it appears that justice might not have been done,” to eliminate
the sixty-day time limit, so that judges, including the single
justice of this court, thereby lawfully could reduce sentences
due to COVID-19. Alternatively, they ask the court simply to
order the releases using its purported authority under G. L.
c. 211, § 3.
b. Respondents’ arguments. While acknowledging the
serious nature of the COVID-19 pandemic, the respondents take
varying positions in response to it and the petitioners’
arguments. To begin, they do not agree as to whether relief
under G. L. c. 211, § 3, is appropriate. The district attorneys
of the northern, northwestern, Suffolk, and Berkshire districts
17 The petitioners ask this court to order the release of
those serving sentences who are (1) eligible for parole and not
serving a sentence for an offense under G. L. c. 265; (2) set to
be released within six months; (3) reincarcerated after
violations of parole or probation that did not involve a new
offense; (4) over sixty years of age and not serving a sentence
for an offense defined in G. L. c. 265; (5) suffering from a
preexisting condition that heightens their risk of death from
the virus; (6) eligible for medical parole; or (7) serving
sentences in a house of correction for offenses other than those
listed in G. L. c. 265.
21
agree with the petitioners that the risk of this pandemic is an
unprecedented, deadly threat to incarcerated individuals,
correctional officers, and civilian staff, and that
extraordinary action is needed to address this rapidly-growing
public health emergency expeditiously. The Attorney General
states that government officials within and outside the
correctional system are committed to taking the steps necessary
to protect the health and welfare of everyone within the
criminal justice system, while acknowledging that the situation
is rapidly evolving and that extraordinary relief under this
court’s superintendence powers may be appropriate in some
circumstances.
The district attorneys for the Bristol, Cape & Islands,
eastern, Hampden, middle, Norfolk, and Plymouth districts (seven
district attorneys) state that they “are committed to taking
appropriate steps consistent with public safety to mitigate the
risks of infection in jails and prisons” for inmates and
correctional staff, and that “such measures are already
underway.” They assert that judges have been advised to take
into account, and are doing so, COVID-19 risks in making bail
determinations and deciding issues involving pretrial detention,
court houses are staffed to handle and act upon all emergency
motions for release, and correctional officials are acting
22
promptly and allowing “meritorious petitions for release based
on medical vulnerability.”
The seven district attorneys maintain as well that the
petitioners’ arguments disregard risks to public safety,
particularly the physical and mental safety of victims and their
families, especially victims of domestic violence, in addition
to abrogating rights granted under the victims’ bill of rights
set forth in G. L. c. 253B. They contend that immediate release
of some medically vulnerable individuals could pose a greater
risk to the individual than remaining incarcerated with
available medical care and treatment. They point out that
seventy-three per cent of incarcerated males, and sixty-four per
cent of incarcerated females are serving a sentence for a
violent offense, and that their release into the community,
particularly given the reduced levels of supervision currently
available, where most supervision is by telephone and not in
person, increases risks to the community and could overburden
already overworked criminal justice systems.
The seven district attorneys also argue that relief under
G. L. c. 211, § 3, is inappropriate, for several reasons. They
contend that the petitioners have not shown that existing
avenues of relief are inadequate. See Callahan v. Superior
Court Dep’t of the Trial Court, 432 Mass. 1023, 1023 (2000).
They argue as well that the relief requested by the petitioners
23
is not available under G. L. c. 211, § 3, because the
petitioners do not have standing to bring an individual claim
under that statute. See Slama v. Attorney Gen., 384 Mass. 620,
624 (1981) (“Representative standing is generally limited to
cases in which it is difficult or impossible for the actual
rightholders to assert their claims”). In addition, they assert
that the relief sought by the petitioners would amount to a
suspension of laws, in violation of art. 30, and would be an
attempt to exert this court’s superintendence power over the
executive branch, in violation of art. 30. See Commonwealth v.
Donohue, 452 Mass. 256, 264 (2008). They argue as well that the
petitioners are asking this court impermissibly to abrogate the
provisions of numerous statutes on parole, revocation,
commutation, compassionate release, and pardons. Similarly, the
sheriffs’ offices argue that the petitioners cannot obtain
relief because they have not exhausted the administrative remedy
of the grievance processes of the penal institutions. See G. L.
c. 127, § 38F; 42 U.S.C. § 1997e(a).
The respondents also disagree on the substantive merits and
the putative constitutional claims. The district attorney for
the Suffolk district agrees with the petitioners that COVID-19
creates a situation in which the “evolving standards of decency
that mark the progress of a maturing society” have been altered
by COVID-19. See Michaud v. Sheriff of Essex County, 390 Mass.
24
523, 527 (1983). She states that appropriate physical
distancing is impossible in a correctional facility, and that
continued incarceration will constitute cruel and unusual
punishment for some individuals.
Neither the Attorney General nor the district attorneys for
the northern, northwestern, or Berkshire districts take a
position on whether any constitutional rights would be violated.
The district attorney for the Berkshire district adds that “all
of the experts and government officials in Massachusetts have
opined or suggested that the only hope of . . . reducing the
number of deaths caused by COVID-19” is physical distancing and
frequent handwashing and cleaning, which she states is
“impracticable” in jails and prisons.
The seven district attorneys and the sheriffs argue that
the Eighth Amendment and art. 26 claims lack merit because the
petitioners have not shown “deliberate indifference” on the part
of any prison or jail official. See Torres v. Commissioner of
Correction, 427 Mass. 611, 613–614 (1998). They support this
argument with affidavits from the DOC and the various sheriffs,
detailing the steps taken by the correctional institutions to
address the COVID-19 pandemic, summarized supra.
Based on their substantive and factual disagreements, the
respondents propose contrasting dispositional requests. The
seven district attorneys and the sheriffs ask that the petition
25
be denied in its entirety. They argue that the steps already
being taken towards reducing the population of incarcerated
individuals are sufficient to address the advancing public
health emergency.
The remaining district attorneys and the Attorney General
ask that this court grant relief in the form of individualized
review, with the goal of quickly reducing the incarcerated
population. They do not approve of the blanket release of
classes of inmates, noting, as do the seven district attorneys,
the public safety concerns regarding the release of those
convicted of domestic violence or sexual assault; the dangers to
released inmates and detainees who may not have a home, a
medical provider, or a means to obtain substance abuse
treatment; and the currently decreased availability of shelters
and other social services. The district attorneys for the
Suffolk, northern, northwestern, and Berkshire districts ask
that we create an emergency committee responsible for rapidly
and collaboratively creating and implementing a policy to reduce
the incarcerated population. The district attorney for the
Suffolk district argues that COVID-19 should be considered in
various types of judicial decisions, and further requests that
new bench warrants not issue for failure to appear or failure of
indigent defendants to pay fines or fees. The Attorney General
suggests that we establish guidelines for the release of
26
pretrial detainees, and that we explore ways to allow relief for
sentenced inmates, such as an amendment to Mass. R. Crim. P. 29.
3. Discussion. We agree that the situation is urgent and
unprecedented, and that a reduction in the number of people who
are held in custody is necessary. We also agree with the
Attorney General and the district attorneys that the process of
reduction requires individualized determinations, on an
expedited basis, and, in order to achieve the fastest possible
reduction, should focus first on those who are detained pretrial
who have not been charged with committing violent crimes.
Having carefully examined the petitioners’ arguments, we
conclude that a modification of Rule 29 in the manner requested
by the petitioners, such that judges could revise and revoke
indefinitely valid sentences that have been imposed posttrial
would result in a violation of art. 30 by allowing judges
essentially to perform the functions of the parole board. See,
e.g., Commonwealth v. Ly, 450 Mass. 16, 22, (2007); Commonwealth
v. Amirault, 415 Mass. 112, 116-117 (1993). Absent a violation
of constitutional rights, which the petitioners agree has not
been established on this record, we also do not have authority
under G. L. c. 211, § 3, to exercise supervision over parole,
furlough, or clemency decisions by the DOC, the parole board,
the sheriffs, and other members of the executive branch.
27
a. The court’s superintendence authority. General Laws
c. 211, § 3, provides that the Supreme Judicial Court “shall
have general superintendence of all courts of inferior
jurisdiction to correct and prevent errors and abuses therein if
no other remedy is expressly provided.” The court’s general
superintendence authority extends to “the administration of all
courts of inferior jurisdiction,” and permits the issuance of
“writs, summonses and other process and such orders, directions
and rules as may be necessary or desirable for the furtherance
of justice.” In the past, we have exercised our extraordinary
superintendence authority to remedy matters of public interest
“that may cause further uncertainty within the courts”
(quotations omitted). Simmons v. Clerk-Magistrate of the Boston
Div. of the Hous. Court Dep’t, 448 Mass. 57, 61 (2006). See
Bridgeman v. District Attorney for the Suffolk District, 471
Mass. 465, 474 (2015) (court utilized broad powers of
superintendence to address drug lab crisis affecting thousands
of potential defendants); Lavallee v. Justices in the Hampden
Superior Court, 442 Mass. 228, 239 (2004) (relief under G. L.
c. 211, § 3, is necessary to remedy shortages of attorneys to
represent indigent defendants).
A petitioner seeking relief under G. L. c. 211, § 3, “must
present a substantial claim involving important substantive
rights, and demonstrate that any error cannot adequately be
28
remedied in the course of trial or normal appellate review.”
Lavallee, 442 Mass. at 233. See Costarelli v. Commonwealth, 374
Mass. 677, 679 (1978) (discretionary review under court’s
supervisory authority is “extraordinary” and only available “in
the most exceptional circumstances”). Here, the petitioners
claim that continued confinement in a jail or prison implicates
concerns of fundamental fairness, and rights secured by the due
process clauses of the Federal and State Constitutions (pretrial
detainees) and the Eighth Amendment (inmates serving a sentence
and pretrial detainees).
b. Pretrial detainees. We conclude, given the severity of
the COVOID-19 pandemic, that the petitioners, as representatives
of incarcerated individuals, have established standing to bring
their claim, and an entitlement to relief. To establish
representative standing, “[f]irst, the relationship of the
litigant to the third party whose right the litigant seeks to
assert must be such that the enjoyment of the right is
inextricably bound up with the activity the litigant wishes to
pursue. Second, there must be some genuine obstacle that
renders the third party unable to assert the allegedly affected
right on his or her own behalf.” Planned Parenthood League of
Massachusetts, Inc. v. Bell, 424 Mass. 573, 578 (1997), citing
Singleton v. Wulff, 428 U.S. 106, 113-118 (1976).
“Representative standing is generally limited to cases in which
29
it is difficult or impossible for the actual rightholders to
assert their claims” (citation omitted). Slama v. Attorney
Gen., 384 Mass. 620, 624 (1981). Here, the relationship between
the petitioners and the detainees and incarcerated individuals,
now focused on having their clients released from custody,
clearly is “inextricably bound up with the activity the litigant
wishes to pursue,” e.g., obtaining release through litigation in
this court. In the present circumstances, it is difficult, at
best, for incarcerated individuals to assert their claims; in
particular, the enormous volume of claims, the urgency of
expeditious hearings, the delays multiple individuals and
attorneys have averred are occurring in holding hearings on
motions for release, and the apparent belief by some trial
judges that they have no authority to allow reconsideration of
bail because detainees have not shown changed circumstances, all
place severe obstacles in the path of any individual detainee
seeking relief.
To effectuate such relief, pretrial detainees who are not
charged with an offense listed in Appendix A, and who are not
being held without bail subsequent to a determination of
dangerousness under G. L. c. 276, § 58A, as well as individuals
who are being held pending a final probation violation hearing,
are entitled to expedited hearings on their motions for
reconsideration of bail. These categories of pretrial detainees
30
shall be ordered released on personal recognizance unless the
Commonwealth establishes, by a preponderance of the evidence,
that release would result in an unreasonable danger to the
community or that the individual presents a very high risk of
flight.18
In making a determination whether release would not be
appropriate, the judge should consider the totality of the
circumstances, including (1) the risk of the individual’s
exposure to COVID-19 in custody; (2) whether the defendant,
although not held in preventative detention pursuant to G. L.
c. 276, § 58A, nonetheless would pose a safety risk to the
victim and the victim’s family members, witnesses, the
community, or him- or herself if released; (3) whether the
defendant is particularly vulnerable to COVID-19 due to a
preexisting medical condition or advanced age; (4) for a
defendant who is accused of violating a condition of probation,
whether the alleged violation is a new criminal offense or a
technical violation; and (5) the defendant’s release plan.19
18 This ruling does not preclude other pretrial detainees,
who have been charged with one of the excluded offenses
enumerated in Appendix A, from seeking reconsideration of bail
on the ground of changed circumstances, which we have concluded
exist as a matter of law. These individuals, however, are not
entitled to a rebuttable presumption of release.
19 Of course, those individuals who have tested positive or
are symptomatic for COVID-19, or who are in quarantine due to
having been in close contact with someone else who has tested
31
i. Process to be followed. Each sheriff in charge of a
house of correction shall inform the special master, CPCS, the
district attorney for the district in which the institution is
located, the clerks of the Superior, District, Boston Municipal,
and Juvenile courts in that district, and the probation service
daily of the identity of each person who is detained awaiting
trial in the sheriff’s facility, in reports setting forth the
information specified in Appendix B.20 The defense bar and the
district attorney in each district shall make good faith efforts
to reach agreement with respect to the release of as many
pretrial detainees as possible, so that agreed-upon motions for
reconsideration of bail may be presented to trial court judges.21
Based on the daily census reports to be provided by the
sheriffs, CPCS shall facilitate the filing of any motions for
reconsideration of the amount of bail or conditions of release,
including contacting counsel for each detainee. Defense counsel
shall be permitted promptly to convene video or teleconferences
with their clients; the sheriffs’ offices and DOC are to work
positive, must remain in isolation or quarantine and would not
be eligible for release during those periods.
20 In addition, the DOC shall furnish the special master
daily reports of inmate counts and rates of COVID-19 cases at
each facility, as explained in Appendix B.
21 Upon request by a defendant, the sheriffs also are
required timely to provide the defendant with his or her
requested medical records.
32
with the defense bar to facilitate such communications. The
district attorneys should make every effort to inform any victim
of the motion, to be consistent with statutory requirements, to
the extent practical. In light of the public health emergency
posed by COVID-19, the inability of the Commonwealth to provide
the type of notice called for by the victims’ rights statute,
G. L. c. 258B, shall not be grounds for the continued detention
of a detainee otherwise entitled to release in accordance with
this decision.
Hearings on motions for reconsideration of bail will take
place by videoconference or teleconference no later than two
business days after the filing of the motion. A decision on the
motion shall be rendered promptly. To enable expeditious
processing of such motions, each relevant court shall establish
a designated session to hear motions for reconsideration of bail
and release; a primary judge, a first backup, and a second
backup judge shall be assigned to each session. Individuals who
are aggrieved by the denial of a motion for reconsideration of
bail may seek review under G. L. c. 211, § 3, from the single
justice of the county court.
c. New arrests. We are persuaded that the limitations
that courts in other jurisdictions have placed on new detentions
and incarcerations are compelling, and we adopt similar measures
to reduce as far as possible the influx of new individuals into
33
correctional institutions. Following any arrest during the
COVID-19 state of emergency, and until further order of this
court, a judicial officer should consider the risk that an
arrestee either may contract COVID-19 while detained, or may
infect others in a correctional institution, as a factor in
determining whether bail is needed as a means to assure the
individual’s appearance before the court. Given the high risk
posed by COVID-19 for people who are more than sixty years of
age or who suffer from a high-risk condition as defined by the
CDC, the age and health of an arrestee should be factored into
such a bail determination. This is an additional, temporary
consideration beyond those imposed by the relevant bail
statutes, G. L. c. 276, §§ 57 and 58, and by due process
principles. See Brangan v. Commonwealth, 477 Mass. 691, 702-705
(2017); Querubin v. Commonwealth, 440 Mass. 108, 113-114 (2003).
A judge also must consider the same factors in deciding whether
to detain an individual pending a revocation hearing based on an
alleged violation of probation.
d. Incarcerated individuals serving sentences. The
petitioners also seek release of multiple groups of individuals
who are currently serving sentences of incarceration. They
suggest, inter alia, that, in order to do so, we eliminate the
requirement in Rule 29 that motions to revise or revoke a
sentence be filed within sixty days of the imposition of the
34
sentence or the issuance of the rescript. See Mass. R. Crim.
P. 29 (a) (2).
“As a general matter, Massachusetts courts have recognized
that ‘it is within the inherent authority of a trial judge to
“reconsider decisions made on the road to final judgment.”‘”
Commonwealth v. Charles, 466 Mass. 63, 83 (2013), quoting
Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387,
401 (2003). See Commonwealth v. Cronk, 396 Mass. 194, 196,
(1985), and cases cited (“While the Massachusetts Rules of
Criminal Procedure do not expressly permit a judge to rehear a
matter, no policy prohibits reconsideration of an order or
judgment in appropriate circumstances”). That authority is
limited once final judgment has entered.
Our broad power of superintendence over the courts does not
grant us the authority to authorize courts to revise or revoke
defendants’ custodial sentences, to stay the execution of
sentence, or to order their temporary release unless a defendant
(1) has moved under Mass. R. Crim. P. 29, within sixty days
after imposition of sentence or the issuance of a decision on
all pending appeals, to revise or revoke his or her sentence,
(2) has appealed the conviction or sentence and the appeal
remains pending, or (3) has moved for a new trial under Mass. R.
Crim. P. 30.
35
Rule 29 allows revisions of a final sentence within sixty
days of its issuance or sixty days of the issuance of a decision
on any appeal from the sentence or from the underlying
conviction. Rule 29 “recognizes that ‘[o]ccasions inevitably
will occur where a conscientious judge, after reflection or upon
receipt of new probation reports or other information, will feel
that he [or she] has been too harsh or has failed to give due
weight to mitigating factors which properly he should have taken
into account.” Commonwealth v. Rodriguez, 461 Mass. 256, 260
(2012), quoting Commonwealth v. McCulloch, 450 Mass. 483, 487
(2008). “In such cases, a judge under rule 29 may ‘reconsider
the sentence he [or she] has imposed and determine, in light of
the facts as they existed at the time of sentencing, whether the
sentence was just.” Rodriguez, supra, quoting McCulloch, supra.
“A judge, therefore, is not barred from reducing a sentence the
judge has imposed until the time limits established in rule 29
to revise or revoke a sentence have expired.” Rodriguez, supra.
Absent an assertion of an illegal sentence, such review is timelimited
both as to the filing of a motion for review and the
issuance of a judge’s decision within a “reasonable” time. See
Commonwealth v. Layne, 386 Mass. 291, 295-296 (1982), and cases
cited.
The petitioners do not address the requirement of Rule 29
that the reduction be based on a sentencing judge’s later
36
determination (with or without a hearing) that “justice may not
have been done” due to some factor present at the time of
sentencing, or the reasons for that requirement. See Layne, 386
Mass. at 295-296, and cases cited. They apparently discount the
requirement that review under Rule 29 (a) is to “permit a judge
to reconsider the sentence he [or she] has imposed and
determine, in light of the facts as they existed at the time of
sentencing, whether the sentence was just [emphasis in
original].22 Commonwealth v. Amirault, 415 Mass. 112, 117
(1993), quoting Commonwealth v. Sitko, 372 Mass. 305, 313–314
(1977).
“The granting of parole, [on the other hand,] is a
discretionary act of the parole board.” Amirault, 415 Mass. at
116-117, citing Lanier v. Massachusetts Parole Bd., 396 Mass.
1018, 1018 (1986). “It is a function of the executive branch of
government.” Amirault, supra, citing Stewart v. Commonwealth,
22 In support of their argument that this court modify
Rule 29 to remove any period of limitation on a judge’s
authority to revise and revoke a valid sentence, the petitioners
point to Commonwealth v. Tejeda, 481 Mass. 794, 797 (2019).
That case, however, does not advance their position. In Tejeda,
we reiterated that “we have repeatedly and unequivocally held
that a judge may not take into account conduct of the defendant
that occurs subsequent to the original sentence” (citations
omitted). Id. Although we indicated that the judge in that
case could consider, post sentencing, that a more culpable
coventurer received a lesser sentence than had the defendant, we
emphasized that “the grounds for each sentence were known” at
the time of defendant’s trial. Id.
37
413 Mass. 664, 669 (1992), and Baxter v. Commonwealth, 359 Mass.
175, 179 (1971). “By allowing a motion to revise or revoke
sentences when the parole board does not act in accordance with
a judge’s expectations, the judge is interfering with the
executive function. The judge cannot nullify the discretionary
actions of the parole board.” Amirault, supra, and cases cited.
Rule 29 is designed to protect the separation of powers as
set forth in art. 30. See Clark, petitioner, 34 Mass. App. Ct.
191, 195 (1993). “The execution of sentences according to
standing laws is an attribute of the executive department of
government.” Sheehan, petitioner, 254 Mass. 342, 345 (1926).
To attempt to “revise,” i.e., cut short, sentences in the
current situation would be to perform the function of the parole
board, thereby “effectively usurp[ing] the decision-making
authority constitutionally allocated to the executive branch.”
See Stewart, 413 Mass. at 669, quoting Commonwealth v. Gordon,
410 Mass. 498, 501 (1991); Amirault, 415 Mass. at 117 (“[T]he
judge imposed sentences that he noted were within the
guidelines. In considering requests for revision of those
sentences under rule 29 the judge may not consider the denial of
parole”).
While we cannot order that relief be granted to sentenced
inmates who have been serving a legal sentence, and who have not
timely moved to revise or revoke that sentence, mechanisms to
38
allow various forms of relief for sentenced inmates exist within
the executive branch. The parole board, for example, has
authority to release individuals who have become eligible for
parole because they have reached their “minimum term of
sentence.” See G. L. c. 127, § 133. An inmate in a house of
correction can receive early parole consideration and be
released up to sixty days prior to the minimum term based on
“any . . . reason that the Parole Board determines is
sufficiently compelling.” 120 Code Mass. Regs. § 200.10 (2017).
Once an inmate reaches eligibility, the parole board must hold a
hearing to decide whether to grant the inmate a parole permit.
See G. L. c. 127, § 133A; 120 Code Mass. Regs. § 301.01 (2017).
See also G. L. c. 127, § 134 (allowing employees other than
parole board members to conduct hearings for inmates at houses
of correction).23 The parole board “shall only grant a parole
permit if they are of the opinion that there is a reasonable
probability that . . . the offender will live and remain at
liberty without violating the law and that release is not
incompatible with the welfare of society.” 120 Code Mass. Regs.
§ 300.04 (2017). See G. L. c. 127, § 130. If denied parole,
inmates generally are entitled to a rehearing after either one
23 The parole board reported at oral argument before us that
it has made arrangements to hold hearings via video
conferencing, and indeed was conducting two such hearings on the
day of argument.
39
or five years, but the board may hold an earlier rehearing at
its discretion. See G. L. c. 127, § 133A; 120 Code Mass. Regs.
§ 301.01.
The parole board nonetheless reported at oral argument that
it has made no efforts to accelerate the scheduling of parole
hearings. The board reports that currently approximately 300
individuals have been deemed appropriate for release and have
been awarded parole through the ordinary process, but have yet
to be granted parole permits that would result in their actual
release from custody because the board has not reduced what the
board says is a standard delay in preparing for release.24
During normal times, the two-week delay the board states is
standard might be reasonable. But these are not normal times.
We urge the board to expedite release of these previouslyapproved
individuals, as well as to expedite hearings on other
inmates who are eligible for parole.
e. Constitutional claims. As stated, while the
petitioners argued in their initial brief that the failure to
24 The parole board stated at oral argument that release
generally is delayed for two weeks after a favorable decision
while the board finalizes the inmate’s housing plan and contacts
any victims or law enforcement agencies as required by statute.
See G. L. c 258B, § 3; G. L. c. 127, § 133A; 120 Code Mass.
Regs. § 301.06(3)(a) (2017). The parole board should use every
effort to expedite the several stages of this process as far as
reasonably possible so as to reduce the over-all number of
incarcerated inmates as quickly as possible.
40
release incarcerated individuals violated the Eighth Amendment’s
prohibition on cruel and unusual punishment, and the failure to
release pretrial detainees violated due process protections
under the Fourteenth Amendment and art. 26, in their reply brief
and at oral argument they asserted that they are not pursuing
such claims. Accordingly, we do not consider their
constitutional claims. See Commonwealth v. AdonSoto, 475 Mass.
497, 506 (2016), quoting Commonwealth v. Raposo, 453 Mass. 739,
743 (2009) (“We do not decide constitutional questions unless
they must necessarily be reached”).
4. Conclusion. Due to the crisis engendered by the COVID-
19 pandemic, pretrial detainees who have not been charged with
an excluded offense as set forth in Appendix A are entitled to a
rebuttable presumption of release on personal recognizance, and
a hearing within two business days of filing a motion for
reconsideration of bail and release, in accordance with the
procedures set forth in this opinion.
The special master shall report weekly to this court, as
set forth in this opinion, in order to facilitate any further
response necessary as a result of this rapidly-evolving
situation.
So ordered.
41
Appendix A.
EXCLUDED OFFENSES
1. Any crime punishable by imprisonment in a State prison
that (i) has as an element the use, attempted use or threatened
use of physical force or a deadly weapon against the person of
another; (ii) is burglary, extortion, arson, or kidnapping; or
(iii) involves the use of explosives. See G. L. c. 140, § 21;
G. L. c. 276, § 58A. This includes, but is not limited to, the
following offenses: murder (G. L. c. 265, § 1); manslaughter
(G. L. c. 265, § 13); mayhem (G. L. c. 265, § 14); assault with
the intent to murder or maim (G. L. c. 265, § 15); assault and
battery by means of a dangerous weapon (G. L. c. 265, §§ 15A,
15B, 15C); strangulation (G. L. c. 265, § 15D); assault and
battery or attempt by discharge of firearm (G. L. c. 265,
§§ 15E, 15F); attempted murder (G. L. c. 265, § 16); armed
robbery (G. L. c. 265, § 17); assault with the intent to rob or
murder (G. L. c. 265, § 18); armed assault in a dwelling (G. L.
c. 265, § 18A); use of a firearm in the commission of a felony
(G. L. c. 265, § 18B); home invasion (G. L. c. 265, § 18C);
unarmed robbery (G. L. c. 265, § 19); and stealing by
confinement (G. L. c. 265, § 21);
2. Any crime involving allegations of domestic violence,
including assault or assault and battery on a family member
(G. L. c. 265, § 13M); violation of an abuse prevention order
42
under the provisions of G. L. c. 209A, and all violations of
harassment prevention orders issued pursuant to G. L. c. 258E;
3. Intimidation of witnesses, jurors, or persons
furnishing information in connection with criminal proceedings
(G. L. c. 268, § 13B);
4. Any third or subsequent violation of driving while
under the influence (G. L. c. 90, § 24) within ten years of the
previous conviction for such violation;
5. Motor vehicle homicide or manslaughter while operating
a motor vehicle (G. L. c. 90, § 24G, and G. L. c. 265 § 13 1/2);
6. All offenses punishable by a minimum mandatory sentence
involving illegal possession of a firearm, machine gun, sawed
off shotgun, large capacity weapon, or feeding device (G. L.
c. 269, § 10);
7. The following sex offenses: aggravated rape (G. L.
c. 277, § 39); rape (G. L. c. 265, § 22); rape of a child under
the age of sixteen with force (G. L. c. 265, § 22A); aggravated
rape of a child under the age of sixteen with force (G. L.
c. 265, § 22B); rape and abuse of a child (G. L. c. 265, § 23);
aggravated rape and abuse of a child (G. L. c. 265, § 23A);
assault with intent to commit rape (G. L. c. 265, § 24); assault
of a child with intent to commit rape (G. L. c. 265, § 24B);
kidnapping of a child (G. L. c. 265, § 26); indecent assault and
battery on a child under the age of fourteen (G. L. c. 265,
43
§ 13B); aggravated indecent assault and battery on a child under
the age of fourteen (G. L. c. 265, § 13B 1/2); indecent assault
and battery on an intellectually disabled person (G. L. c. 265,
§ 13F); indecent assault and battery on a person age fourteen or
over (G. L. c. 265, § 13H); enticing a child under the age of
sixteen for the purposes of committing a crime (G. L. c. 265,
§ 26C), enticing a child under the age of eighteen via
electronic communication to engage in prostitution, human
trafficking or commercial sexual activity (G. L. c. 265, § 26D);
trafficking of persons for sexual servitude (G. L. c. 265,
§ 50); a second or subsequent violation of human trafficking for
sexual servitude (G. L. c. 265, § 52); enticing away a person
for prostitution or sexual intercourse (G. L. c. 272, § 2);
drugging persons for sexual intercourse (G. L. c. 272, § 3);
inducing a minor into prostitution (G. L. c. 272, § 4A); living
off or sharing earnings of a minor prostitute (G. L. c. 272,
§ 4B); incestuous marriage or intercourse (G. L. c. 272, § 17);
posing or exhibiting a child in a state of nudity (G. L. c. 272,
§ 29A); and unnatural and lascivious acts with a child under
sixteen (G. L. c. 272, § 35A);
8. Any violation involving trafficking in cocaine or
heroin in excess of 200 grams (G. L. c. 94C, § 32 [b] [4],
[c] [4]; or trafficking in fentanyl or carafentanil G. L.
c. 94C, § 32 [c 1/2], [c 3/4]); and
44
9. All attempts, conspiracies, or accessories after the
fact of the aforementioned offenses.
45
APPENDIX B.
REPORTING REQUIREMENTS
1. In order to effectuate the purposes of this decision
and the underlying public health goals, while the COVID-19 state
of emergency remains in effect, the court asks the DOC and each
sheriff to provide daily reports to the special master, the
probation service, the district attorneys, and CPCS,
identifying:
a. The over-all inmate population;
b. The number of COVID-19 tests and number of positive
results for all inmates, correctional officers, or other staff
members, including contactors; and
c. The number of inmates who have been released pursuant
to the procedures or guidance set forth in this decision.
2. In addition to the above, the sheriffs also shall
provide the special master, the probation service, the district
attorneys, and CPCS daily census reports containing the names of
pretrial detainees being held at their facilities, and the
offenses with which they have been charged.

 

 

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