The Massachusetts Supreme Judicial Court has ruled that some prisoners can be released from state jails and prisons in an effort to stem the spread of COVID-19.

The 45-page ruling says pre-trial detainees not charged with certain violent offenses and those held on technical probation and parole violations are eligible for hearings to determine if they can be released. The ruling does not affect those who have been sentenced.

"We agree that the situation is urgent and unprecedented and that a reduction in the number of people held in custody is necessary," the ruling says. "We also agree with the Attorney General and the district attorneys that the process of reduction requires individualized determinations, on an expedited basis, and in order to achieve the fastest possible reduction, should focus first on those who are detained pretrial who have not been charged with committing violent crimes."

Crimes for which someone would not be eligible for potential release include violent crimes, such as assault and battery, domestic violence and certain sex offenses. The justices said that sheriffs, district attorneys and the defense bar should review potentially eligible cases and hearings should be held within two days of filing their motions for release.

The ruling is in response to an emergency petition filed by the Massachusetts Association of Criminal Defense Lawyers, the Public Defender Agency of Massachusetts and the American Civil Liberties Union (ACLU) of Massachusetts.

"Outbreaks in our prisons will, of course, imperil the lives of incarcerated people, but they will also endanger correctional officers and medical staff, their families, and their communities, as staff cycle through the facilities," the petition reads. "The more people who contract the virus, the more treatment they will need, and the more precious resources their treatment will require. Prison outbreaks imperil us all."

More than a dozen briefs were filed in response to the petition, including opposition from seven of the state's district attorneys. They argued that releasing broad categories of prisoners is a public safety risk, and there are not enough community support services to accommodate large numbers of prisoners.

The DAs added they are already considering requests for release because of the pandemic and questioned the SJC's authority to even rule on the case. They said it is a violation of separation of powers for the SJC to amend the law on revising or revoking a criminal sentence, arguing that any "suspension of a lawfully imposed sentenced violates" the Massachusetts Declaration of Rights and "the power to suspend laws lies only in the legislature and it is not for the judiciary to infringe upon."

The high court agreed it does not have the authority to revise or revoke sentences that have already been determined by a judge.

Four district attorneys argued for broader releases. Middlesex County DA Marian Ryan, Suffolk DA Rachael Rollins, Berkshire County DA Andrea Harrington and Northwestern DA David Sullivan said the unprecedented public health crisis gives the court the authority.

"Our office does not know of any Massachusetts precedent directly addressing the judiciary’s authority to revise and revoke sentences in circumstances like the extraordinary ones in which we find ourselves," said Attorney General Maura Healy's office in a post-argument response. "It remains the Attorney General’s view that, in light of those circumstances, the separation of powers would not be offended."

The SJC appointed Brien O'Connor, an attorney with Ropes and Gray, to serve as what it calls a "special master" to work with all sides to expedite hearings on motions for release.

The Department of Correction and the state's sheriffs will have to file regular reports with the special master regarding their prisoner counts and the numbers of those in their facilities who test positive for COVID -19.

The high court asked the state Department of Correction (DOC) and all county sheriffs to answer three questions:



What percentage of prisoners sleep within 6 feet of each other (not including those in disciplinary isolation)?

What percentage of prisoners eat meals within 6 feet of each other?

What percentage of prisoners are permitted to be within 6 feet of each other during recreation periods?



The DOC, which holds about half of all prisoners in Massachusetts, said 72% of prisoners sleep within 6 feet of each other; 70% eat meals within 6 feet of other inmates and are generally able to pass within 6 feet of each other during recreational periods.

The responses from 14 sheriffs varied. Many said that prisoners are not sleeping within 6 feet of each other — measuring based on a "head to toe" sleeping arrangement in which a prisoner on a top bunk sleeps facing one way while a prisoner on a bottom bunk sleeps facing the other direction. This arrangement is suggested in guidelines from the U.S. Centers for Disease Control and Prevention. Many said they are staggering meal and recreation times to promote social distancing.

"If these inmates were released from custody, what would prevent them from congregating, recreating and eating within 6 feet from one another if they chose to do so?" reads a response from Berkshire Sheriff Thomas Bowler. "Martial law has not been imposed. If we did lockdown inmates to force separation, the petitioners who brought this action would complain about those conditions."

The ruling came as the state reported a second death of a prisoner at the Massachusetts Treatment Center (MTC) in Bridgewater. The facility has the most reported cases of any state prison — at last count there were 27 cases involving prisoners and staff at the MTC.

Bristol County Da Tom Quinn said he's already taken to steps to lower his jail's population, which he says has been reduced by 20% in the past three weeks. Quinn is pleased by the high court ruling.

"I think it should be consoling to victims and the public that this mass release of thousands of defendants will not take place while there is a serious health crisis," he said, "we're reviewing this on a case-by-case basis."

Victoria Kelleher, president of the Massachusetts Association of Criminal Defense Lawyers, said she's disappointed. She said the ruling applies to too few prisoners and won't do enough to reduce incarceration with the disease already in correctional facilities.

"We feel fairly certain that the numbers within these facilities is very high and are very concerned about what we anticipate will be a lot of sick people," she said, "and unfortunately, a lot of people are just not going to make it."

The Massachusetts Sheriffs Association issued a statement saying it will review cases quickly.

"In the coming days, we will work with our district attorneys, members of the defense bar and other criminal defense partners to facilitate the Court's order," the statement said. "We will do so with a singular focus of protecting all in our care and custody, as well the communities we serve."

Matthew Segal, legal director at the ACLU of Massachusetts, also issued a statement, saying: "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.”

MTC Prisoner Released Earlier

In a related case Friday, Superior Court Judge Heidi Brieger released 54-year-old Glenn Christie, who was held at the Massachusetts Treatment Center. One of the conditions of his release is that he test negative for COVID-19. Earlier this week, the SJC sent Christie's case back to the lower court, citing the pandemic.

Christie has several health issues and is confined to a wheelchair. He was convicted of child rape and indecent assault on a child under 14 and was incarcerated at the MTC for violating his probation conditions. Christie's attorney, David Rangaviz, said one of Christie's roommates is one of the two prisoners who have died from COVID-19.

Rangaviz said weeks ago he began filing motions in Christie's case arguing that it's not possible to prevent the spread of the disease of cases in jails and prisons.

"I wish I wasn't right," Rangaviz said. "This was a foreseeable disaster if anyone cared enough to start acting quickly."