“The remedy is not working. Jail populations are actually higher now than the second week of April.”
For the second time since March, Prisoners’ Legal Services (PLS) is arguing against the Massachusetts Department of Correction (DOC) in the uphill battle to depopulate state prisons.
Neither DOC officials nor Gov. Charlie Baker has put forth a plan to decarcerate despite litigation, legislation efforts, and soaring COVID cases in correctional populations. By Dec. 2, per a Special Master’s Report commissioned to fairly assess the situation from all angles, Mass prisons, jails, and houses of correction had four times the rate of infection as the general population of the Commonwealth.
While the number of COVID cases in the state has risen to 3.6% of the general population, a total of 1,864 out of 13,049 prisoners—a whopping 14%—have been infected with coronavirus since March. (As of this writing, in the houses of correction and jails it is actually 1 in 5.5 prisoners who have been infected.)
According to sociologist Bruce Western, this is more than the national average of 9%. Western co-edited the October 2020 report, Decarcerating Correctional Facilities during COVID-19: Advancing Health, Equity, and Safety, which was produced by the National Academies of Sciences, Engineering, and Medicine, and spoke to advocates on Nov. 30 on a national call sponsored by the Washington, DC-based research and advocacy group the Sentencing Project. Among other things, he noted the urgency to “divert people from incarceration and release them from prisons and jails” in order to reduce the risk of transmitting the virus within facilities.
Numbers are rising rapidly. Just this week, the Boston Globe reported that 79 prisoners jailed in Hampden County facilities are currently positive for coronavirus. On Nov. 24, a Commonwealth headline read, “17% of prisoners at MCI-Shirley have COVID-19.” This comes on the heels of a major outbreak of 267 cases at MCI-Norfolk. And none of this includes 890 infected correctional officers and staff.
Baker has seemingly ignored incarcerated populations. On Nov. 10, immediately after the Norfolk outbreak, Congresswoman Ayanna Pressley, along with other lawmakers and advocates, sent him a letter and held a press conference condemning unsanitary conditions behind bars and the spike in cases. The governor responded by saying the DOC has “done a really good job of managing COVID from the beginning… throughout the length of the pandemic, except for a few months this summer.”
The non-profit Prison Policy Initiative recently called attention to this kind of negligent reaction. “Local authorities have failed to reduce jail and prison populations on a major scale, which continues to put incarcerated people’s lives at risk,” the organization noted.
PLS’s lawsuit against the Mass DOC, Foster v Mici, was filed this past April. The class-action suit was not successful in its request to the Supreme Judicial Court for an emergency injunction to release prisoners, but the SJC left the door open for PLS to return if conditions inside prisons warranted it.
Now, “plaintiffs seek an order directing defendant [Superintendent Carol] Mici to do what she could have and should have done months ago: implement a home confinement program for sentenced prisoners,” reads PLS’s second emergency motion. It demands that DOC act now because of the urgency of the pandemic. Only those prisoners within 18 months of release are currently eligible, but “We want people’s vulnerability for COVID to be taken into account,” PLS Attorney David Milton noted in a phone conversation.
On Dec. 1, the DOC responded that it might not institute a home confinement program until 2021 because of COVID-19. In a status report summarizing the position, the department disputed PLS, writing that sending people home is “risky.” The DOC expects that “in 2021, either when COVID abates or a vaccine is widely available, it will expand the home confinement program.”
In a phone interview, PLS Executive Director Elizabeth Matos said, “Clearly the DOC and this administration feel no urgency whatsoever and now they just want to ride it out while we watch more people die.” PLS will continue to argue its case on Dec. 7 in Superior Court.
Meanwhile, eleven deaths of incarcerated people have been confirmed, Matos said, while as WBUR reported, two additional prisoners “were granted medical parole only after they were hospitalized with COVID-19,” and both died a day later.
Bridget Conley, Research Director of the World Peace Foundation, said in a phone interview, “There may be more deaths than were previously reported.” Through a public records request to the DOC, she discovered that in April there were fourteen deaths in the system, some unspecified, a much larger number than usual. Conley has called for a public and independent investigation into the matter, and said the DOC may be under-reporting deaths.
Back in late March, the Committee for Public Council (CPCS) filed a lawsuit along with the Massachusetts Association of Criminal Defense Lawyers and the ACLU of Massachusetts seeking the release of incarcerated people across the Commonwealth. A group of experts in epidemiology, infectious diseases, public health, and healthcare for incarcerated people bolstered the lawsuit with a letter urging the court “to act in the best interests of public health and safety and grant Petitioners’ request to safely release as many people as possible from confinement.”
Their fears of spread increase have come true. Conley said, “The physical and mental health conditions on the inside have deteriorated because of prisoners trying to deal with lockdowns as well as COVID.”
While there have been some releases due to a court order from the CPCS lawsuit, the majority of releases were those awaiting trial and not sentenced prisoners.
“The remedy is not working,” said Katharine Naples-Mitchell, staff attorney at the Charles Hamilton Houston Institute for Race & Justice. She added, “Jail populations are actually higher now than the second week of April. Real reductions in county populations have been from prisoners wrapping county sentences.” In other words, people are getting out because they’ve done their time—not because the state is acting prudently.
Other remedies have also been unsuccessful or are still in limbo. State Rep. Lindsay N. Sabadosa’s bill, H.4652, An Act Regarding Decarceration and COVID-19 was buried, though an amendment to the budget is still viable and awaiting further action. It calls for the DOC commissioner to “take all measures possible to release, transition to home confinement or furlough individuals,” with consideration given to those at risk for COVID. Activists say they are unsure how such measures would be enforced.
The pandemic is just one of many problems in a prison system riddled with significant issues. Among them, on Nov. 17 the US Department of Justice Civil Rights Division of the US Attorney’s Office in Mass found that the DOC has violated the constitutional rights of prisoners suffering from mental health crises.
“Locking down facilities is inhumane,” Matos said. “It causes psychological damage, more suicides, and people feeling desperate, cut off from seeing family members…Being locked down is a recipe for disaster for people in recovery, so decreasing population [with a home confinement program] will help maintain sanity.”