Comm. for Pub. Counsel Servs. v. Barnstable Cnty. Sheriff's Office

• Decision Date: 28 September 2021
• Docket Number: SJC-13116
• Citation: 173 N.E.3d 1102,488 Mass. 460
• Parties: COMMITTEE FOR PUBLIC COUNSEL SERVICES & another v. BARNSTABLE COUNTY SHERIFF'S OFFICE & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

488 Mass. 460

173 N.E.3d 1102

COMMITTEE FOR PUBLIC COUNSEL SERVICES & another¹

v.BARNSTABLE COUNTY SHERIFF'S OFFICE & others.²

SJC-13116

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 1, 2021.

Decided September 28, 2021.

Jessie J. Rossman (Matthew R. Segal & Laura K. McCready also present) for Massachusetts Association of Criminal Defense Lawyers.

Rebecca A. Jacobstein, Committee for Public Counsel Services (Benjamin H. Keehn, Committee for Public Counsel Services, also present) for Committee for Public Counsel Services.

Dan V. Bair, II, Special Assistant Attorney General, for the defendants.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

Over one year ago, at the onset of the COVID-19 pandemic, this court exercised its superintendence powers to put in place certain measures designed to mitigate the risks of COVID-19 disease in the Commonwealth's prisons and jails. As part of that effort, we directed the Commonwealth's county sheriffs, among others, to report certain data to a special master in order to facilitate any further judicial response that might be necessary. With that data and additional factual and expert evidence now before us, we are asked to evaluate three alleged failures by certain of the sheriffs in their responses to the COVID-19 pandemic -- namely, a failure to implement adequate COVID-19 testing strategies by all thirteen named defendants, a failure to exercise statutory authority to reduce population levels in the houses of correction by all thirteen named defendants, and a failure by two defendants to implement adequate avenues for remote attorney-client communication in their respective houses of correction -- to determine if these efforts run afoul of Federal and State constitutional requirements. For the reasons discussed infra, we conclude that, on this record, the responses of the named sheriff's offices and their respective houses of correction to the COVID-19 pandemic do not violate Federal and State constitutional minimum requirements.

Background. 1. Prior proceedings. In March 2020, at the beginning of the COVID-19 pandemic in Massachusetts, the plaintiffs, the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers, filed an emergency petition in the county court against the Chief Justice of the Trial Court and others, asking this court to invoke its superintendence powers, among other things, to reduce the number of individuals housed in the Commonwealth's prisons and jails, as a means of mitigating the risk of COVID-19 within those institutions and in the community at large. The defendants, thirteen county sheriffs’ offices, were among the respondents added to that emergency petition.

That case ultimately was reserved and reported to the full court, and on April 3, 2020, this court held that "[d]ue to the crisis engendered by the COVID-19 pandemic," certain pretrial detainees were entitled to a strong but rebuttable presumption of release. Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 453, 142 N.E.3d 525 (2020) ( CPCS I ). Judicial officers conducting bail determinations for new arrestees also were directed to consider the risks presented by COVID-19 as an "additional, temporary" bail consideration. Id. at 449, 142 N.E.3d 525. The court further concluded that its "broad power of superintendence over the courts [did] not grant [it] the authority to authorize courts to revise or revoke [criminal] defendants’ custodial sentences, to stay the execution of sentence, or to order their temporary release" unless certain conditions were met, namely: (1) the defendant had filed a timely motion to revise or revoke his or her sentence under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016); (2) the defendant had a pending appeal from his or her conviction or sentence; or (3) the defendant had moved for a new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). CPCS I, supra at 450, 142 N.E.3d 525. However, we noted that "mechanisms to allow various forms of relief for sentenced inmates exist within the executive branch." Id. at 452, 142 N.E.3d 525.

Finally, we required the Department of Correction and the county sheriffs to report certain data to a special master, and we directed the special master to report weekly to this court "in order to facilitate any further response necessary as a result of this rapidly-evolving situation." Id. at 453, 456, 142 N.E.3d 525 (Appendix B). The plaintiffs moved for reconsideration of certain aspects of that opinion, and we affirmed, with the exception of creating specific additional reporting requirements, which we set forth in an amended Appendix B. See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 2), 484 Mass. 1029, 1030, 1034, 143 N.E.3d 408 (Appendix B [Amended]) (2020) ( CPCS II ).

In CPCS I, the plaintiffs originally had argued that the failure to release incarcerated individuals violated due process and the prohibition on cruel and unusual punishment contained in the Federal Constitution, as well as the prohibition on cruel or unusual punishment set forth in the State Constitution. CPCS I, 484 Mass. at 453, 142 N.E.3d 525. However, in their reply brief and at oral argument in that case, the plaintiffs had represented that they were not pursuing their constitutional claims, and as a result, we did not address them. Id.

Following our opinions in CPCS I and CPCS II, a putative class of incarcerated inmates and individuals civilly committed under G. L. c. 123, § 35, filed a complaint against the Commissioner of Correction and others, alleging that their confinement during the COVID-19 pandemic exposed them to unreasonable risks in violation of the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights and in violation of Federal and State due process provisions. See Foster v. Commissioner of Correction (No. 1), 484 Mass. 698, 699-700, 146 N.E.3d 372 (2020). We addressed those claims in the context of the Foster plaintiffs’ request for a preliminary injunction. Id. at 700-701, 146 N.E.3d 372. With respect to the inmates’ Eighth Amendment claims, we applied a two-part, subjective and objective standard to determine whether the plaintiffs were likely to succeed in demonstrating that the defendants acted with (1) deliberate indifference (2) to a substantial risk of serious harm. See id. at 717, 146 N.E.3d 372.

With respect to the objective component of the Eighth Amendment test, we stated that "there [could] be no real dispute that the increased risk of contracting COVID-19 in prisons, where physical distancing may be infeasible to maintain, has been recognized by the [Centers for Disease Control (CDC)] and courts across the country," and we concluded that "the incarcerated plaintiffs almost certainly [would] succeed in establishing [that] component of their claims." Id. at 718, 146 N.E.3d 372. However, after considering multiple factors, including the Department of Correction's compliance with interim guidance issued by the CDC and its "widespread testing program," we concluded that the plaintiffs were unlikely to succeed in demonstrating deliberate indifference on the part of the Department of Correction. Id. at 722-724, 146 N.E.3d 372.

In December 2020, after working with the special master for a number of months, the plaintiffs in this case filed an amended petition in the full court matter that had resulted in the CPCS I and CPCS II decisions. The petition was denied without prejudice to refiling in the county court as a civil pleading, rather than as an appellate brief. The plaintiffs subsequently filed the current complaint in the county court. A single justice appointed a retired judge to act as a special master (second special master) to make any factual findings that he deemed necessary and relevant to the resolution of the legal issues raised in the complaint. Upon receipt of the second special master's report, the single justice reserved and reported the matter to the full court.

2. Facts. We draw our facts from the findings of fact submitted by the second special master, supplemented by other undisputed facts from the record, reserving some facts for our discussion of the issues.

a. COVID-19 symptoms and transmission in congregate settings. All parties to this litigation agree, in the simplest terms, that COVID-19 is a "contagious, dangerous, and sometimes deadly disease." Indeed, this court has recognized as much in its prior cases. See, e.g., Foster, 484 Mass. at 702, 146 N.E.3d 372 ("For many, [COVID-19] causes only mild symptoms. For others, particularly the elderly or those with preexisting conditions, the disease poses a substantial likelihood of serious illness or death"); CPCS I, 484 Mass. at 437, 142 N.E.3d 525 ("while many people who contract COVID-19 are able to recover without the need for hospitalization, those who become seriously ill from the virus may require hospitalization, intensive treatment, and ventilator support").

The CDC has recognized three ways in which SARS-CoV-2, the virus that causes COVID-19, is spread: (1) inhalation of respiratory droplets, (2) airborne transmission, and (3) touching of surfaces or objects. Available data indicate that the first method is much more common than the latter two methods.

Transmission through inhalation of respiratory droplets commonly occurs when someone physically is near (within six feet of) another person or comes into direct contact with that person. In order to reduce the spread of COVID-19, the CDC recommends that individuals practice physical distancing, often called "social distancing," which is the practice of increasing the space between individuals, ideally to a minimum of six feet.

The CDC has recognized, as has this court, that people in congregate living arrangements, such as correctional and detention facilities,...