Should Massachusetts release some prisoners to stem the spread of COVID-19 in jails and prisons?

That question is now before the state's highest court. And it's a question that's highlighting some deep divisions — even among state law enforcement agencies.

The state Supreme Judicial Court held a telephone hearing Tuesday on an emergency petition asking that some categories of prisoners be reviewed for potential release. The petition argues that releasing some of the more than 16,000 people incarcerated in the state will help keep people separated in jails and prisons and could prevent a COVID-19 outbreak.

Supreme Judicial Court Chief Justice Ralph Gants started the lengthy telephone hearing acknowledging the case is unusual.

"We are here with a rather extraordinary hearing in an extraordinary time," Gants said in opening the hearing. "This is the first telephonic hearing that the SJC has ever conducted and it's the first time I can recall that we have nine parties arguing."

The emergency petition was filed by the Massachusetts Association of Criminal Defense Lawyers, the Public Defender Agency of Massachusetts and the American Civil Liberties Union (ACLU) of Massachusetts. Representatives for the state's attorney general, district attorneys, sheriffs, probation and parole boards also were among those weighing in.

The justices questioned the plaintiffs about several things, including how many prisoners might be released, whether they would be tested for COVID-19 prior to release and whether the state is already taking steps to keep the disease at bay in jails and prisons.

"We're all flying blind here," said Matt Segal, the legal director of the ACLU of Massachusetts. "We don't know what the situation is going to be inside jails and prisons soon. And none of us — despite best efforts — knows how many people are going to be released."

The petition says prisoners that could be released include those vulnerable to the coronavirus, some pre-trial detainees who do not pose a public safety risk, those incarcerated for not meeting certain probation or parole conditions and those civilly committed to addiction treatment in correctional facilities.

"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 argue 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. They say they are already considering requests for release because of the pandemic, but call releasing whole categories of prisoners irresponsible.

"This action would not only risk public safety at a time when law enforcement is stretched thin by the COVID-19 pandemic, but also risk the safety of vulnerable inmates without viable release plans or supports in the community," the district attorneys' brief says.

Attorney Daniel Sullivan argued for the trial court and probation. He said judges are willing to review certain cases and it should be up to judges to decide without the SJC setting broad criteria for release.

"Why would these individuals be presumed to be releasable? The fact that someone has a health condition doesn't make him any less likely to reoffend," Sullivan said. "A theme with many justices is judicial discretion would be impaired by this. Judges daily consider all the factors raised by this crisis. But this is asking a judge to make a decision that could have very serious consequences down the road."

The seven district attorneys also argued that during a state of emergency, it's the governor, not the court that has the authority to decide, so seeking relief from the SJC during an emergency violates the separation of powers.

"The Legislature, who has the statutory and constitutional powers to decide issues relative to the execution of detention orders outside a state of emergency, has transferred that power to the executive branch when the citizens of this Commonwealth are in a declared state of emergency," the brief argues.

At a press briefing Tuesday, Gov. Charlie Baker made his most specific comments yet on the issue of potential prisoner releases. He said the state is already handling the pandemic in jails and prisons.

"We don't buy as a matter of law fact or policy that the argument that's being made before the court is the correct one," Baker said. "We believe the correct position is for us to be continue doing the things we're doing to keep the people inside safe, and that's gonna be the way we play this one."

Four district attorneys say there should be one process for determining potential releases because of the pandemic. They say right now it's largely up to each county. Middlesex County District Attorney Marian Ryan says her office has worked with the county sheriff and they've agreed to release more than 60 prisoners.

"The best way to do this is to be thoughtful, to be weighing all of the factors and take a balanced approach," Ryan said. "None of us wants to see this go badly – in all of the many ways in which this could go badly.”

The SJC-appointed attorney Brien T. O'Connor, of Ropes & Gray LLP, is what it calls a "special master" for this case. He met with the parties involved over the weekend and issued recommendations to the court before the hearing. In his report to the court, O'Connor said the state must reduce the number of people behind bars.

"Concern for the public health, including that of the public at large, and the inmates and the staff of our corrections and court system, warrants, as numerous other jurisdictions across the country have recognized, that any and all reasonable actions be taken to reduce the potential spread of COVID-19 in a manner consistent with ensuring public safety," O'Connor's report says.

His report recommends each county set up a committee to review potential releases. It asks for a review of pre-trial detainees, those held on certain probation and parole violations and those being held on less than $5,000 bail. For those sentenced, the report outlines various offenses that would make a prisoner ineligible for release such as many violent crimes, most sex offenses and violations of abuse prevention orders.

It also asks for twice weekly reports on the number of confirmed cases in jails and prisons, how many people are tested and how many prisoners have been released. Right now, there is no publicly available accounting of all COVID-19 cases in jails and prisons. (Here is what WBUR knows about cases in prisons and jails in the state.)

The Department of Correction and county sheriffs say they are taking steps to mitigate the spread of the disease. They say they are following state and federal health guidelines and have improved hygiene, banned most outside visits and programs and now screen those entering correctional facilities.

DOC officials said Wednesday night that MCI-Shirley is now on lockdown to stop the spread.

The SJC could answer the question as early as this week.