by Ed Lyon
Even as the COVID-19 pandemic persisted and more variants appeared in late 2021, courts were steadily easing restrictions to mitigate its spread in prisons. A case in point: Massachusetts, where initially strong rulings by the state Supreme Court eroded over time.
As early as January 2020, before the disease had been declared a pandemic, officials with the federal Centers for Disease Control (CDC) called for reductions in jail and prison populations as a preventative measure. Widespread, frequent testing and quarantines were recommended for those remaining prisoners, due to the impossibility of social distancing because of architectural limitations in jails and prisons.
The Massachusetts Association of Criminal Defense Lawyers and Committee for Public Counsel Services filed an emergency petition in the state’s Supreme Court to implement and oversee COVID-19 protective measures in Bay State lockups. Decarceration, robust testing and protection for attorney-client communications were sought. The action was accepted.
The Court then invoked its “superintendence powers” with a series of decisions, abbreviated as CPSC I, CPSC II and the last one, delivered on September 28, 2021, CPSC III.
In that ruling, the Court noted it had begun by ordering state and local incarcerators to report data to a special master for use in contemplating relief. Then on April 3, 2020, CSPS I was issued, which established that “[d]ue to the crisis engendered by the COVID-19 pandemic,” a strong yet rebuttable presumption of release attached to pre-trial detainees.
For convicted prisoners, their Eighth Amendment claims were viewed under a bifurcated standard that asked whether officials showed “(1) deliberate indifference to (2) a substantial risk of serious harm.”
During CSPS I and II, the Court leaned heavily toward plaintiffs’ position that physical distancing was infeasible, concluding that “incarcerated plaintiffs almost certainly [would] succeed in establishing [that] component of their claims.”
After extensive data compilation and collaboration with the special master, plaintiffs’ attorneys moved for relief, which was denied. The matter was refiled in this continuation case under CPSC III, asking the Court to declare that sheriffs were liable to decarcerate their jails and regularly test their remaining prisoners and detainees.
The Court denied both requests for relief.
Its decision turned on the fact that CDC guidelines were recommendations, not mandates, the Court said. Moreover, the state’s incarcerators were making efforts to depopulate within statutory guidelines, testing where possible with increasing frequency and offering the Moderna vaccine to all prisoners who wanted it.
Relief concerning attorney-client communications was also denied, since contact and non-contact visitation, telephonic conferencing, video conferencing via JurisLink and legal mail remained available.
Moreover, the failure of sheriffs to decarcerate did not amount to deliberate indifference to the serious risk the disease posed to prisoners, the Court said. As a result, it ruled that plaintiffs had failed to establish a cause of action based in either the federal or state constitutions. See: Comm. for Pub. Counsel Servs. v. Barnstable Cty. Sheriff’s Office, 488 Mass. 460 (2021).
After the decision was issued, the first case of the Omicron variant of the coronavirus was detected in South Africa on November 11, 2021. Within six weeks it had reached the U.S. and driven new infections past their previous peak of 300,000 daily seen in early January 2021, reaching over 900,000 new daily cases by mid-January 2022.
Fortunately, the newer variant proved not only more transmissible but also less deadly. When daily deaths during the Omicron wave peaked at about 3,500 in early February 2022, the number was significantly below the 4,000 daily deaths attributed to an earlier variant of the virus 13 months before. Once again, though, prisoners and detainees were spared by luck rather than the U.S. legal system.
Additional source: WBUR
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