Update: Getting People Out of Jail During the Covid-19 Pandemic

In our blog post on Monday, March 30, 2020, we discussed some of the efforts that lawyers have been making to get people out of jail because of the COVID-19 pandemic. Since then, things have changed. 

On March 21, 2020, the first case of COVID-19 at a Massachusetts correctional facility was diagnosed.  As of April 4, 2020, three inmates have died due to the pandemic. Correctional facilities have also identified four prisons and six jails where COVID-19 has been diagnosed  with twenty-four confirmed COVID-19 diagnoses. Fifteen DOC staff were also confirmed to have the virus. The crisis facing our jails and prisons is ramping up. 

Meanwhile, the Supreme Judicial Court (SJC) issued decisions in two cases addressing decarceration, CPCS & MACDL v. The Chief Justice of the Trial Courts and Christie v. Commonwealth. These two cases issued specific instructions and set the tone for how the justice system will deal with Covid-19 in the days and weeks to come. 

CPCS & MACDL v. The Chief Justice of the Trial Courts

The Issue:

The Committee for Public Counsel Services and the Massachusetts College of Defense Lawyers asked the Court to order the release of large groups of inmates in order to prevent widespread death and illness from Covid-19.  They also advocated for other measures to help prevent new people from entering the jails, such as vacating outstanding warrants. The Court joined every District Attorney and every Sheriff in the Commonwealth as defendants in the case, creating a system-wide showdown between those advocating for the release of inmates and those looking to keep them locked up. 

The Bottom Line – Who Is Getting Released: 

Certain people who are held pending trial and people held pending a final probation violation hearing are entitled to an expedited hearing and a presumption that they will be released on their own recognizance. People who are held without bail because of dangerousness or charged with an “excludable offense” are not entitled to this process.  Each county is ordered to set up a special Covid-19 session with a dedicated judge and two back-up judges to process these releases as quickly as possible. 

The Good: 

  • The Court created a mechanism by which it clearly intends for a large number of prisoners to be released in short order.  
  • The Court also emphasized that this is what they are willing to do right now and put a plan in place to monitor what happens from here on out, including getting regular reports from the infamously opaque county sheriffs. They made it clear that things are changing, and nothing is final. 
  • They acknowledged that, while the defense bar did not claim prisoners’ constitutional rights were being violated, such a claim could arise in the near future. 
  • They explicitly stated that the risk of Covid-19 is something to be considered by any judge who is considering putting or keeping a person in custody and by the parole board. 
  • They made it clear that their ruling in no way prevented individual prisoners from seeking their release, regardless of whether or not they fall into the presumptive release category. 
  • They explicitly did not rule on any constitutional issues, leaving the door open for future claims of cruel and unusual punishment and due process violations. 

The Bad: 

  • The ruling requires people  to file individual motions requesting that they be released, and allows the Commonwealth to oppose those motions.   The process of filing these motions will slow releases down considerably thereby increasing the number of people who get COVID-19. 
  • The category of “excludable offenses” is incredibly broad and encompasses the offenses on which judges are most likely to set high bails. This, along with the requirement that individual motions must be filed, make it quite possible that this solution will be entirely inadequate to address the problem of COVID-19 transmission in the jails.
  • Other than ordering the parole board to pick up its pace and consider the implications of Covid-19, the Court did nothing to secure the release of inmates serving sentences or provide special measures for the release of particularly vulnerable inmates. This is particularly relevant because state prisons run by the Department of Corrections are on average more crowded than county jails. 
  • None of the requested relief intended to keep new people from going to jail (vacating warrants, suspending conditions of probation) was granted. 
  • The Court expressed a robust respect for the authority of the executive branch (the folks working to keep people locked up) and was emphatic about being unwilling to exceed the scope of their own authority. This means, among other things, that they do not believe they can expand the scope of judicial authority to consider motions to revise and revoke sentences or the time limits imposed on those motions. It also means that the SJC  will be reluctant to dictate how the cases of people serving sentences are handled, short of allegations of constitutional violations, because punishment is the executive branch’s territory.  

What’s Next:

Enforcement – To paraphrase Andrew Jackson, the SJC has made their decision, now let’s see them enforce it! On April 6th, the superior, district, juvenile, and Boston municipal courts all issued standing orders to implement the Supreme Judicial Court’s decision. These orders lay out the procedure for the presumptive releases cases as ordered by the SJC, as well as how other requests for release will be handled. The processes laid out by the courts have some significant potential failure points. 

First and most notably, it would be extremely difficult to file one of these motions for release without counsel. Every single one of these procedures assumes the incarcerated person will have a defense attorney who is working diligently to get them released. That is a huge assumption.  The district court procedure requires that defense counsel certify that they have conferenced the case with an assistant district attorney. As anyone who has ever tried to get an ADA on the phone knows, that is potentially a pretty big roadblock. The district court procedure also requires a level of communication between counsel and client before filing the motion that may not be easy for everyone to achieve. 

So far, reports from the trenches are not good. Sheriffs have not been great about complying with the reports they are required to produce. We’ve heard that the Norfolk County DA’s office is refusing to take a position on motions for release until they are filed. The Committee for Public Counsel Services, which oversees all appointed counsel in the state, does not yet have policies or procedures for appointing counsel to folks who don’t have it or for overseeing the work of existing counsel. 

Given the wide gap that often exists between how district courts do business and how the appellate courts think they ought to do business, it is unsurprising that what looked like a straightforward process on paper is looking like it will be incredibly messy and cumbersome in its implementation. 

Constitutional Challenges – Once the COVID-19 pandemic reaches epic proportions in the jails, we will have a problem of constitutional dimensions. Cruel and unusual punishment is prohibited not just by the 8th Amendment to the US Constitution but also by article 26 of the Massachusetts Declaration of Rights.  In general, the Declaration of Rights grants greater protections than the Federal Constitution, which gives the courts in Massachusetts leeway to recognize the rights of individuals even when the rest of the country lags behind. It is well established that conditions of confinement, including access to medical care, are encompassed by both the 8th amendment and article 26. There will undoubtedly be cases about this in the near future.

Individual Motions  – This case is full of great language about how serious Covid-19 is and how important it is to reduce the risks to our incarcerated population. The SJC has left trial court judges with a lot of power to determine who gets out and who doesn’t. Now we’ll see how they use it. The standing orders of each court lay out timelines for the filing of motions for pretrial detainees who do not get a presumption of release and for sentenced defendants filing motions to stay pending appeal, motions to revise and revoke their sentences, and motions for new trials. 

The decision, filings, and oral arguments are all available online.   

 Christie v. Commonwealth

The Issue:

This case specifically addressed  inmates who are serving sentences, but whose cases are pending on appeal. Trial courts have broad authority to stay those sentences until the conclusion of the appeals. The question was whether a judge who had denied a motion to stay a sentence pending appeal before the Covid-19 emergency could consider a new motion to stay based on Covid-19. 

The Bottom Line: 

People are entitled to bring motions to stay their sentences because of Covid-19 and judges should not consider denial of past motions in making their decisions. In ruling on those motions, judges need to consider not just the risk to the community that releasing an inmate might pose, but also the specific risk to that inmate’s health and safety if they stay in jail and the general risk presented by conditions in the jails and prisons. 

Why It Matters:

First, this applies to a significant number of people, and is the clearest or only path to release for many people serving sentences.  Every case that ends with a lost jury trial should at least be referred for an appeal, and the appellate process takes long enough that it is common for people to wrap up their house of corrections sentences while their appeals are still pending. 

Second, this case makes it absolutely clear that the Supreme Judicial Court views Covid-19 as a change in circumstances that warrants a reevaluation of whether or not someone should be incarcerated. This case is relevant not just to motions to stay sentences, but also motions to revise and revoke sentences, motions for a new trial, and bail arguments on new cases. 

Perhaps more importantly, the court acknowledged that keeping people in jail presents a threat to both individual and community health, and judges should consider that in deciding whether or not to release someone.  While this may seem obvious, some judges were refusing to consider COVID-19 as a factor for release without being ordered to do so by a higher court. 

What’s Next:

Litigation About Procedure – In the slue of orders that came down from the trial courts on April 6 were orders requiring the Commonwealth to respond to motions to stay within two weeks, but setting no timeline for the courts to actually schedule the hearings. The defense bar is not happy about this, and takes the position that this lax timeline is a violation of the holding in CPCS & MACDL v. The Chief Justice of the Trial Courts. You can expect to see litigation on this issue soon. 

Individual Motions – Now that the SJC has issued this decision, we hope that everyone who can bring one of these motions will do so. We don’t yet know how individual judges will receive these motions, and that will likely determine how this fight goes forward in the weeks and months ahead

The decision and oral arguments are available online. 

With this constantly shifting landscape, it is more important than ever to have skilled, zealous counsel on your side. We at PiltserCowan Law are here to help.