The Supreme Judicial Court today issued an order that will help some pretrial detainees seeking release due to the pandemic, in a lawsuit filed last week by the ACLU of Massachusetts, the Committee for Public Counsel Services (CPCS), and the Massachusetts Association of Criminal Defense Lawyers (MACDL). People who are held pretrial on bail and have not been found dangerous or charged with a violent or otherwise excluded offense are entitled to a hearing within two business days of filing their motions, where they will be entitled to a rebuttable presumption of release.

The Court ordered the state Department of Correction and each sheriff to provide daily reports on the number of COVID-19 tests and number of positive results for all people in their custody, correctional officers, and other staff, and the number of people released pursuant to the Court’s procedures and guidance. The Court also urged the parole board to expedite the hearings of individuals who are eligible for parole.

“We are glad that this decision affords some relief for pretrial detainees, as well as important reporting requirements,” said Matthew Segal, legal director at the ACLU of Massachusetts. “But we believe it falls short of what is necessary to prevent more illness and death among people in custody, correctional staff members, and the broader community. We urge every branch of Massachusetts government to do what it can to save the lives of people inside Massachusetts detention facilities, and in so doing to keep all of us safer.”

“We are pleased that the Court has taken steps to help some individuals being held prior to trial advocate for their release expeditiously,” said Anthony Benedetti, chief counsel for CPCS. “The SJC clearly recognizes the urgency of the pandemic's rapid spread and has directed the sheriffs and the Department of Correction to provide daily reports on how COVID-19 is affecting their institutions. The Court has made clear that the Executive Branch has the authority to address the danger facing all those currently serving sentences, and we urge the Governor to utilize that power to help prevent a potentially deadly outbreak. Meanwhile, public defenders and defense attorneys across the state will continue to do everything in our power to get people out from behind the wall and save lives.”

"While it is somewhat helpful that the SJC has recognized that the COVID-19 pandemic constitutes a changed circumstance for pretrial detainees held in Massachusetts and that a handful of such detainees are entitled to a presumption of release, MACDL is gravely concerned that the Court rejected our request to provide a path to safety for every one of these human beings who have been found not dangerous and are presumed innocent of the charges they face,” said Victoria Kelleher, president of MACDL. “Equally concerning, the SJC rejected the argument that the COVID-19 pandemic provides any basis to secure the release of any convicted criminal defendants. Instead, the SJC invited these prisoners to return to Court if and when the COVID-19 pandemic spreads sufficiently in our prisons and jails to raise Eighth Amendment concerns of ‘cruel and unusual punishment.’ Of course, at that point, it will be too late for many prisoners. History will determine whether the SJC's decision amounts to justice or a tragic missed opportunity to save vulnerable people and a horrible stain on the record of the oldest supreme court in the world.”

Last week, the three organizations filed an emergency petition asking the Supreme Judicial 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.

At least eight other state and local court systems—in Alabama, Maine, Montana, New Jersey, Ohio, South Carolina, Texas, and Washington—as well as the District of Columbia, have taken steps to limit incarceration during the pandemic.

For more information about the ACLU of Massachusetts’ COVID-19 response recommendations, go to: