“It’s always helpful to have transparency in reporting data … Especially when we’re dealing with people’s health and safety, and when people are dying.”

State Rep. Mindy Domb has filed a bill that would require the collection, disclosure, and reporting of COVID-19 data in correctional settings across Massachusetts.

The measure would require daily coronavirus information reporting to the Department of Public Health from all correctional institutions in the state, including the Department of Correction and county jails.

“Data is an important weapon in the pandemic. It allows us to see who’s affected, clinical outcomes, access to testing,” Domb said. The Amherst Democrat added that testing can also highlight when certain populations are disproportionately impacted by the virus, and “lead to greater understanding of environmental factors in viral transmission or course of illness.” Required information would include the number of tests at each facility, number of positive results, prisoner deaths attributed to COVID-19, and the number of prisoners subject to COVID-19 quarantine who are being monitored.

Domb filed the same day as the ACLU of Massachusetts and public defenders filed a motion of contempt against the agency, saying it isn’t following through on exactly that, even after a court mandated it. Her bill goes further than a recent Supreme Judicial Court decision on decarceration and information reporting, and would also require demographic information about those prisoners tested and deceased from COVID-19, including their race, gender, whether they were incarcerated pre-sentence, and if they have been approved for parole.

The information would be posted on the Department of Public Health’s website once a week.

Fight for data in the courts

Domb said the issue was brought to her attention by the ACLU lawsuit. The attorneys in the ACLU filing alleged that the DOC violated an earlier decision by the high court to accurately report the number of COVID-19 tests and positive results of inmates and staff.

In an April 3 decision, a judge ruled the state must release inmates who were awaiting trials or show why they shouldn’t be released. Additionally, it was required that the DOC and each sheriff provide daily reports on the number of COVID-19 tests and positive results for all people in their custody and staff, as well as the number of people released.

“The DOC’s reports have been neither daily nor sufficient,” Kate Lagreca, a spokeswoman for the ACLU, said in an interview. She added that the DOC has actually provided more information to reporters than it has in its obligated report.

The Department of Correction said it does not comment on ongoing litigation, but noted in a later message that the format of its daily counts to inquiring reporters has changed to “ensure consistency with what DOC provides daily to the Special Master, pursuant to the Supreme Judicial Court’s decision.”

According to DOC data, the agency has proctored 296 tests as of Wednesday morning to prisoners, 127 of which were positive. The numbers of staff members who have tested positive have increased, then decreased, according to the DOC’s numbers, floating between 63 and 61, but no explanation has been given about that discrepancy.

A total of 822 prisoners have been tested—526 from county facilities, and 296 from state. That means 43 percent of all prisoners at state facilities that have been tested are testing positive—much higher than out in the general public. About 8,000 people are incarcerated in the state prison system.

The plaintiffs say that for the first week after the court’s decision, the DOC’s report didn’t break down data by facility. “Instead, it provided the overall numbers for the entire DOC system, making it impossible to assess testing, outbreaks, or releases in any single facility.

The sixth and seventh prisoner deaths due to COVID-19 were announced Wednesday by the Department of Correction. Both were men in their 70s and being treated at hospitals outside of their respective prisons, Massachusetts Treatment Center and MCI-Shirley. The names of the individuals were not released due to HIPPA concerns.  

The report, compiled by an SJC-appointed attorney, says more than 630 prisoners have been released as a result of the lawsuit.

The ACLU of Massachusetts is joined by the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers in the lawsuit.

What data collection looks like now

The reporting issue has been raised to the Supreme Judicial Court by plaintiffs. The DOC made a few adjustments, but hasn’t provided facility-specific numbers with respect to population, testing among incarcerated people, testing or confirmed cases among correctional staff, or releases.

According to the filing, the DOC has not included how many people have recovered from COVID-19, something it has provided to reporters who have asked for it. As of Tuesday, the number of prisoners recovered from COVID-19 reported to journalists was just four.

The failure to furnish this facility-specific information, plaintiffs say, “during a growing pandemic, puts incarcerated people, prison staff, and the surrounding communities at greater risk from an outbreak.”

On April 14, the DOC reported facility-specific data only with respect to COVID-19 positive incarcerated people, while it gave the media updated facility specific numbers for confirmed prisoner cases, deaths, and staff-reported positive cases.

Meanwhile, there are several lawsuits over releasing prisoners to stem the spread of COVID-19. The most recent was a federal class action filed yesterday by WilmerHale and Todd & Weld against Plymouth County Correctional Facility, alleging that Plymouth has failed to implement essential precautionary measures and adhere to Centers for Disease Control and Prevention guidances on stemming the spread of COVID-19, including social distancing to protect those in custody.

Another lawsuit filed on Friday is also before the Supreme Judicial Court, and focuses on sentenced prisoners and those civilly committed for addiction. Prison advocates and attorneys aren’t the only ones calling for a reduction in incarceration numbers. Last week, the Massachusetts Public Health Association sent a letter to Governor Baker asking him to decrease the number of people who are currently incarcerated in Massachusetts through executive power.

Domb’s bill has several cosponsors, including Northampton State Senator Jo Comerford, who is leading the Senate working group that’s addressing coronavirus in Massachusetts. Also on the roster is Rep. Jon Santiago of Boston, who is an emergency room doctor at Boston Medical Center.

Advocacy group Prisoners’ Legal Services has pushed for the release of incarcerated people, saying that more will fall ill if they’re kept in tight quarters. The bill is a welcome addition to their tool kit for getting to that goal. 

“It’s always helpful to have transparency in reporting data.” said Executive Director Lizz Matos of Domb’s bill. “Especially when we’re dealing with people’s health and safety, and when people are dying.”

This article was produced in collaboration with the Boston Institute for Nonprofit Journalism as part of its Pandemic Democracy Project.

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