By Bob Katzen

The Supreme Judicial Court heard testimony in the lawsuit filed by the American Civil Liberties Union (ACLU) of Massachusetts, Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL) asking the court to take immediate action to limit outbreaks of COVID-19 by reducing the number of people who are incarcerated in Massachusetts jails, prisons and houses of correction.

“This case presents the criminal legal system with an opportunity to save the lives of incarcerated people who are especially vulnerable to the COVID-19 pandemic, and in doing so, to save the lives of countless others,” said Carol Rose, executive director of the ACLU of Massachusetts. “Public health experts agree: the impact of this virus cannot be confined to a prison. Outbreaks in correctional facilities among incarcerated people and staff will lead to surging demand for intensive health care, pushing our already overburdened health care system past the breaking point. This puts all of us at risk. Time is of the essence. Massachusetts does not have the death penalty as a matter of law. Unless we change course now, we’re going to have it as a matter of fact.”

Seven of the state’s 10 district attorneys have filed a brief opposing the petition including Eastern District Attorney Jonathan Blodgett, Plymouth District Attorney Timothy Cruz, Worcester District Attorney Joseph Early, Jr., Hampden District Attorney Anthony Gulluni, Norfolk District Attorney Michael Morrissey, Cape and Islands District Attorney Michael O’Keefe, and Bristol District Attorney Thomas Quinn. The group in a written statement said they understand the petitioners’ concerns regarding the risks presented by COVID-19 in prisons but argued that this crisis is not a reason to abandon government’s most basic function of safeguarding its citizens. Instead, these district attorneys prefer that inmates be considered for release on a case-by-case basis in hearings before judges.

“The petitioners’ approach of mass releasing offenders is ill-conceived, overbroad and reckless,” said Gulluni. “Dangerous criminals who pose a clear public safety risk should not be allowed to exploit a public health crisis. As prosecutors, we have a duty to the law, victims and the public which includes those who are incarcerated. Being mindful to all these responsibilities, we have taken to an individualized review of release requests and have and will agree to release non-violent defendants whose health conditions and/or age present greater risks were they to contract COVID-19.”

“We agree with the attorney general and the district attorneys of Suffolk, Middlesex, Berkshire, and the Northwestern District that it cannot be business as usual if we are going to prevent a catastrophic outbreak of COVID-19 in our correctional facilities – an outbreak which will devastate not only the individuals incarcerated, but also the communities in which these facilities are located,” said CPCS attorneys Rebecca Jacobstein and Benjamin Keehn in a joint statement. “We learned today that the rate of infection within the Massachusetts Treatment Center has increased almost five-fold in the week since we filed this petition. Time is of the essence. The court clearly understands the urgency. We look forward to the issuance of an order that will begin to ameliorate the danger we all face.”

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