Last week, in this space, we told you about an emergency amicus letter filed by the BBA in a lawsuit brought by the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL). The plaintiffs called on the SJC 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 asked the Court to create a process by which such at-risk people could be kept out of, or released from, incarceration.
The BBA letter — filed at the recommendation of the BBA’s new Crisis Response Working Group, and drafted with the assistance of members of that group and the Amicus Committee — noted 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 urged 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 SJC ruled last Friday, on an expedited basis, after a historic telephonic emergency hearing that lasted four hours. In its decision, the Court began by recognizing the urgency of the situation and pointing to its won actions in response, including its statement that, “[i]n criminal cases, where appropriate, a defendant may ask the court for reconsideration of bail or conditions of release.” The unanimous opinion by Justice Gaziano (with Justice Lenk taking no part) goes on to state:
We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance within the meaning of G. L. c. 276, § 58, tenth par., and the provisions of G. L. c. 276, § 557. To decrease exposure to COVID-19 within correctional institutions, any individual who is not being held without bail under G. L. c. 276, § 58A [dangerousness], and who has not been charged with an excluded offense (i.e., a violent or serious offense enumerated in Appendix A to this opinion) is entitled to a rebuttable presumption of release. The individual shall be ordered released pending trial on his or her own recognizance, without surety, unless an unreasonable danger to the community would result, or the individual presents a very high risk of flight.
The special master appointed by the Court is ordered to work with sheriffs and the Department of Correction (DOC) to facilitate its implementation. And the Parole Board and DOC are urged “to expedite parole hearings, to expedite the issuance of parole permits to those who have been granted parole, to determine which individuals nearing completion of their sentences could be released on time served, and to identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release.”
However, the Court declined to exercise its superintendence authority, as urged by the BBA and others, toward the release of those incarcerated post-sentence:
With respect to those individuals who are currently serving sentences of incarceration, absent a finding of a constitutional violation, our superintendence power is limited. Those who have been serving sentences for less than sixty days may move to have their sentences revised or revoked under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016) (Rule 29). Those who are pursuing appellate proceedings or a motion for a new trial may seek a stay of execution of sentence pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). See Commonwealth v. Charles, 466 Mass. 63, 83 (2013). Where there is no constitutional violation, however, art. 30 of the Massachusetts Declaration of Rights precludes the judiciary from using its authority under Rule 29 to revise and revoke sentences in a manner that would usurp the authority of the executive branch. Removing any limitation on the time in which a motion to revise and revoke a sentence may be brought, however, would do precisely that.
The ruling left the door open to further litigation for such individuals, saying that “if the virus becomes widespread within correctional facilities in the Commonwealth, there could be questions of violations of the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.”
We were pleased that the Court at least took steps to speed the release of broad classes of pre-trial detainees by finding them presumptively eligible under the changed circumstances. And although we were disappointed that the Court did not take the opportunity to suspend Rule 29, we will continue to monitor any follow-up litigation, such as on constitutional grounds, and the implementation of this ruling.
Government Relations Director
Boston Bar Association