The ACLU of Massachusetts, together with the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL), have filed an amended petition in their existing lawsuit asking the state Supreme Judicial Court to take immediate action to limit outbreaks of COVID-19 in county correctional facilities as the pandemic enters its most dangerous phase.
In late March, the organizations filed a lawsuit to protect communities from COVID-19 outbreaks by reducing the numbers of people who are incarcerated in Massachusetts jails and prisons. On April 3, the Court issued an order to help some pretrial detainees seeking release due to the pandemic. The Court also ordered the jails and prisons to regularly provide data regarding their population, releases pursuant to the court decision, COVID-19 tests, and test results. To date, jails and prisons have reported releasing nearly 3,000 people pursuant to the order, and parole has reported releasing approximately 1,500 additional individuals during this time.
The new filing amends the original March petition; according to the groups, the Court-ordered data now demonstrates that more relief is constitutionally required. Given the increased understanding of non-symptomatic transmission, the adoption of broad-based testing in other Massachusetts communal living facilities, and the community spread currently raging across the state, the filing asks the Court to declare that the Houses of Correction (HOCs) must conduct routine, comprehensive testing of incarcerated people and staff and utilize home confinement, pretrial diversion, and other available authorities to further decrease the incarcerated population.
“Correctional facilities are not taking two basic and vital steps to protect incarcerated people from COVID-19,” said Matthew Segal, legal director at the ACLU of Massachusetts. “Massachusetts has sadly seen those failures play out in recent months. As the Commonwealth enters the deadliest phase of the pandemic so far, more action is required to protect the health of incarcerated people, correctional staff, and community members. Correction officials and other leaders must act now to reduce incarceration levels and increase testing so that more people are alive to receive the vaccine when it becomes available.”
While some facilities have conducted more tests of non-symptomatic people than others, not one of the county correctional facilities has yet conducted routine, comprehensive testing of non-symptomatic incarcerated people or staff every week to two weeks. According to the new filing, the HOCs’ current failure to implement such testing protocols is unconstitutional because it blinds them to the number of infected people in their facilities, and binds them from taking other measures to protect those in their custody.
At the same time, weekly reports show that while population levels dipped after this Court’s decision, the incarcerated population in four counties is now at least 92 percent of the population at the start of reporting, and the overall pretrial population now exceeds the population on April 3. The HOCs have the authority to lower these numbers through programs like home confinement, but they have failed to use it to achieve meaningful population reductions.
The organizations are also asking the court to order that the five county correctional facilities that are not currently offering meaningful, timely, and confidential modes of attorney-client communication must provide prompt videoconference for attorney-client communications.
“Our clients are stuck in an unbelievably tragic situation,” said Rebecca Jacobstein, staff attorney with CPCS. “They are locked up in close quarters with a deadly virus that has—and will likely continue—to rip through every prison and jail in the state. They need to be able to have safely distanced, confidential conversations with their lawyers: the very people who are working day and night to free them, before it is too late.”
This lawsuit is one of several ACLU litigation efforts to save the most vulnerable from the COVID-19 pandemic. Since the pandemic’s start, the ACLU of Massachusetts has filed several legal actions related to detention centers, prisons, and jails, and has urged Governor Baker to decrease the number of people who are currently incarcerated in Massachusetts.
For more information about the ACLU of Massachusetts’ COVID-19 response recommendations, go to: https://www.aclum.org/covid19