Criminal – Release – Pandemic

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Where petitioners have requested the release of as many individuals as possible as expeditiously as possible in light of the COVID-19 pandemic, any individual who is not being held without bail under G.L.c. 276, section58A, and who has not been charged with a violent or serious offense should be released pending trial on his or her own recognizance, without surety, unless (1) an unreasonable danger to the community would result or (2) the individual presents a very high risk of flight.

“We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance within the meaning of G.L.c. 276, section58, tenth par., and the provisions of G.L.c. 276, section557. To decrease exposure to COVID-19 within correctional institutions, any individual who is not being held without bail under G. L. c. 276, section58A, 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, unless an unreasonable danger to the community 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. 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 rapidly-evolving 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 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). … 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. …

“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 released by agreement of the parties, as well as expediting petitions for compassionate release.

“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.”

Committee for Public Counsel Services, et al. v. Chief Justice of the Trial Court, et al. (Lawyers Weekly No. 10-059-20) (45 pages) (Gaziano, J.) The case was reported by Budd, J., sitting as single justice. Matthew R. Segal (Jessie J. Rossman also present) for Massachusetts Association of Criminal Defense Lawyers; Rebecca A. Jacobstein (Benjamin H. Keehn Services, also present) for Committee for Public Counsel Services; Eric A. Haskell (David C. Kravitz and Mindy S. Klenoff 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 for district attorney for the Suffolk district; Thomas D. Ralph (Marian T. Ryan also present) for district attorney for the northern district and others; Jane A. Sullivan (Elizabeth Dunphy Farris also present) for the district attorney for the middle district and others; Robert W. Harnais (Dan V. Bair II also present) for 14 sheriff’s departments; Andrea Harrington, District Attorney for the Berkshire District, was present but did not argue; Robert A. Jones and 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 and others; Ruth Greenberg for Joseph Buckman and others; Max Bauer for Dominick Donovan and 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. and Ayana Aubourg, pro se; Leon Smith for Citizens for Juvenile Justice; Elizabeth Matos, James Pingeon, Bonita Tenneriello and Jesse White for Prisoners’ Legal Services of Massachusetts; Phillip Kassel, Jennifer Honig, Coco Holbrook and Caitlin Parton for Mental Health Legal Advisors Committee; Christine M. Netski, Meredith Shih, David M. Siegel and Martin F. Murphy for Boston Bar Association; Jessica L. LaClair for Jose Rivera (Docket No. SJC-12926) (April 3, 2020).

Click here to read the full text of the opinion (corrected version issued April 10, 2020).