BBA Urges SJC Action to Reduce Incarcerated Populations in Response to Pandemic

Emergency Petition Filed by Defense Bar Leads to Historic SJC Telephonic Hearing

The BBA this week filed an amicus letter, on an emergency basis, in the SJC case of CPCS and MACDL v. Chief Justice of the Trial Court, a case in which the Court on Tuesday, for the first time in its history, held a telephonic hearing before the full bench, though Justice Lenk recused herself.  (The audio from that hearing has now been posted on-line.)

The plaintiffs, both the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL), call on the Court to institute sweeping procedures in order to protect incarcerated individuals, and those who might otherwise become incarcerated, from a potential public-health catastrophe involving the spread of COVID-19 within Massachusetts prisons and jails, and beyond. They ask the Court to create a process by which such at-risk people could be kept out of, or released from, incarceration.

The BBA’s letter to the SJC makes practical suggestions on how best to approach two particularly-critical issues among those that the plaintiffs place before the Court: the need to create a system-wide mechanism to expedite consideration of release of individuals held pre-trial and in connection with certain probation violations, and the need to facilitate individualized judicial determination for those individuals serving sentences who may not be automatically entitled to release, post-litigation.

The BBA letter notes that “this is one of the very rare instances where litigation and judicial deliberation by trial judges under the ordinary rules will literally cost lives” and therefore urges the Court to:

• create a system-wide mechanism to quickly reduce the pre-trial detainee population, designating officials to review existing bail conditions in pending cases and instructing them to apply a strong presumption of release for individuals held on cash bail (not for dangerousness) and for detainees held on alleged probation violations (other than new violations of restraining orders in domestic-abuse cases); and
• temporarily suspend Massachusetts Criminal Procedure Rule 29 so as to allow anyone serving a House of Correction sentence or a parole-eligible (including medical parole) prison sentence to file a motion to revise and revoke their sentence — notwithstanding the requirement that such a motion be filed within 60 days of sentencing — and explicitly permit judges addressing those motions to consider the COVID-19 pandemic in their rulings.

The BBA envisions a mechanism in which a judge in each district would promptly review a list of detained persons provided by the local sheriff, with the assistance of defense lawyers and prosecutors, that release would be presumptive unless a DA demonstrates that the need for detention significantly outweighs the health-related risks from exposure to COVID-19, and that rulings would be made as quickly as possible, with the option for a judge to impose conditions in order to ensure a defendant’s appearance. The same mechanism would also be applied to pre-trial detainees not held on cash bail or for probation violations, except they would not receive the presumption for immediate release.

The letter further suggests that the SJC make findings of fact concerning COVID-19 exposure risk, and that it encourage judges to take judicial notice of medical and scientific filings on this question.  The letter is silent on the other requests in the plaintiffs’ motion.

The SJC appointed a special master in the case, Brien O’Connor of Ropes & Gray, who worked out a proposed plan for dealing with inmates by category, though not all parties at the hearing expressed support for the plan. (You can view that document and all filings in the case on a special web-page for the case.)

The amicus letter was submitted by BBA President Christine M. Netski of Sugarman Rogers, with assistance from two members of the BBA’s Amicus Committee, Professor David M. Siegel of New England Law | Boston and Meredith Shih of Harvard Law School’s Criminal Justice Institute, and President-Elect Martin F. Murphy of Foley Hoag LLP.

The SJC is expected to issue a decision in this pandemic-related case on an expedited basis in the coming days.

—Michael Avitzur
Government Relations Director
Boston Bar Association