-: Good afternoon.
I believer we are all here.
Let me just double-check on my justices.
I believe I heard Justice Lenk.
-: Yes you did.
-: Gaziano.
-: Yes.
-: Justice Lowy.
-: Present.
-: Justice Budd.
-: Yes.
-: Justice Cypher.
-: Yes.
-: Kafker.
-: Yes.
-: And with respect those who are arguing, Mr. Pingeon.
-: Pingeon, Your Honor.
-: Pingeon, okay, I'll get it right.
-: Mr. Dietrick.
-: Present, Your Honor.
-: Mr. McManus.
-: Present, Your Honor.
-: Mr. Burn.
-: Yes, Your Honor.
-: Of course, Mr. Pingeon, you argue last, as well.
Let me just describe, briefly, the protocol for this.
And I have remarks to begin,
and then we'll commence the case.
The protocol, as I'm sure Clerk Kenneally
has explained to you,
is that we will give you roughly three minutes
to argue without interruption.
If you wish less time,
you may invite questions from any of the justices.
When you have finished that,
then Justice Lenk is our senior justice,
will commence her questioning
and we will go in order of seniority.
I will question last
after I have asked my questions, if I have any,
then I will invite questions from the other justices
and once that is done, or once your time is up,
whichever comes last,
that will conclude your questioning.
If you are not speaking on a cell phone
and you have a cell phone nearby, please silence it.
If you will not be speaking at the time,
please use the mute button
so as to avoid any background noise,
which right now I don't hear, which is good.
The order, of course, will be that
the plaintiffs will argue first
with regard to the issue of the 8th Amendment
and Article 26 point,
then Mr. Dietrick, on behalf of DOC
and The Executive Office of Public Safety,
and then we will have Governor Baker's,
he is bringing the motion to dismiss,
so he will argue that as the proponent of that motion.
Then the chair of the parole board
with Mr. Burr arguing on Ms. Maroney's behalf,
argue with regard to that motion to dismiss,
and then Mr. Pingeon will be arguing in opposition
both of those motions to dismiss.
So we'll focus first
on the substance of the Article 26 claims,
and then towards the end we will address
the various motions to dismiss of those two parties.
Before I begin, there are matters I want to address.
One is the matter of thanks.
I want to give special thanks to Judge Robert Allman
of the Superior Court for work in Bolden evidentiary hearing
and managing the case
and providing detailed findings of fact
in a very, very short period of time.
And I also want to thank his assistant,
Clerk Margaret Buckley
who I know Judge Allman was instrumental
in allowing him to accomplish.
I also want to thank our clerk, Ben Kenneally,
who is always a hero and continues to be
during this emergency,
and I know has been working with each of you
to prepare you for the nature of a telephonic argument.
And I also want to thank all of the attorneys in the case
and the individuals who they imposed upon
with regard to affidavits.
We know that we imposed a very short timeline on you
and we know that you managed to meet that timeline
with very carefully prepared briefs.
And I know that you worked your tail off
in order to do that,
so I thank you for that.
I also know that you impose upon other very busy people
to obtain affidavits
so I ask that you thank them well.
Secondly, I will not let moment pass
except
that is the last full court argument,
at least in the absence of any further emergency matters
we need to address that Justice Lenk will be sitting on.
She'll be sitting on murder cases tomorrow,
but that is not the full court.
If these were ordinary times,
practice has been for the other five justices
who've, on their last day of the full sitting
before they retired,
I would provide a tribute,
which I would give orally from the bench.
We would invite all of the former law clerks
and have their individuals who had worked
with that particular justice,
and I would give what I would sometimes refer to
as the ode, O-D-E,
to that particular justice.
We, of course, could in theory do that virtually,
but it's really not the same thing
and I've conferred with Justice Lenk
and she has agreed that that tribute
should await a time in which
we can do so in the full court
with the opportunity for all those individuals to be present
and that will likely be occurring after retirement,
but we will postpone that tribute until then.
While the full tribute will await that moment,
I will
tout that Justice Lenk has served
as a judge in Massachusetts since 1993.
She was appointed at that time
to the Superior Court by Governor Weld.
She served for two years in the Superior Court
before she was appointed again by Governor Weld
to the Appeals Court where she served for 16 years.
And on June 8th of 2011, she was appointed to the SJC
by Governor Deval Patrick,
though she has served for 27 years
as a judge on this court,
two on the Superior Court, 16 in the Appeals Court,
and now nine on the SJC.
With respect the work on the SJC alone,
and I will speak only right now quantitatively,
she has written 211 decisions
and there are more to come.
Often beyond the opinions
of which she was the author,
there are 20 concurrences that she's written
and 16 dissents again, all so far to date.
And more of those as well come.
The published volumes of Justice Lenk opinions
of the SJC alone right now
will total more than 4,400 pages.
And based on what I understand to be
both opinions which are already in the oven
and those which are yet to be cooked,
it is likely that she will reach 5,000 pages
before she has retired.
Which, of course, does not include
the nearly 1,400 pages of opinions she wrote
as an author of published cases in the Appeals Court.
But the sheer number of cases
does not really reflect,
it reflects only a part of what she has accomplished.
More importantly is the quality
of each every opinion
and I think it is probably fair to say
that in the 328 history of this court,
there has never been a justice who has been more careful
in her recitation of the facts and her opinions
and more careful and more thoughtful
in her analysis of the law.
So we will miss her when she retires
and just didn't want the occasion
of her last oral argument for a full court
to pass without at least making note of that.
So with that, I will,
the record shall reflect virtual applause
for Justice Lenk.
And with that I will ask--
-: A virtual thanks by Justice Lenk.
-: (laughing) Okay.
And I will then invite
Kenneally to call the case.
-: SJC 12935, Stephen Foster and others
v. Carol Mici and others.
-: All right, Mr. Pingeon.
-: Pingeon, Your Honor.
-: Pingeon, Pingeon.
It's the hard G, not a soft G, I'm sorry, okay.
-: It's a French name, Your Honor.
Dive in.
-: That's why I gave it a soft G.
But anyway,
Mr. Pingeon, you may proceed.
-: Thank you, Your Honor, and may it please the Court.
Covid-19 is spreading rapidly
throughout the Massachusetts correctional system.
As of yesterday, 358 prisoners
in the Department of Corrections
were infected with the disease and seven have died.
This is up by almost 100 just in the last few days.
There are certainly also many more cases,
since most of the prisons and jails
only test people with serious symptoms.
People confined in our correctional facilities
are in near-constant contact with each other
in dormitory settings or small double cells.
Many are sleeping within three feet of each other,
eating and using showers in close proximity to each other
and touching the same surfaces.
They are forced to forego the social distancing
that overwhelmingly, scientific and medical professionals
believe is necessary
and which have caused government officials to mandate
that the rest of us practice.
Many are terrified that they will die in prisons.
And their families are also very frightened.
On March 27, Commissioner Mici
submitted an affidavit which described
many of the extraordinary measures
that the department had implemented at that time
to reduce the risk of COVID infection
and she said that releases were not necessary
because they had the situation under control
and there were only a few cases in one facility.
Recently in this case she submitted another affidavit
which also described the additional measures
that the department was taking
to try to mitigate the risk.
And she continues to believe
that releases are not necessary.
And yet the number of infections continues to grow.
As public officials and prison administrators and judges
are beginning to recognize around the country,
even the most stringent precautionary measures
simply cannot protect prisoners from the extremely high risk
of contracting this unique and deadly disease.
If conditions in a prison are objectively unsafe,
the state has an obligation to provide a remedy
even if prison officials are doing
everything in their power to address it.
And in this case,
the only effective way to make sure
that prisoners, like other people in society,
are able to maintain six-feet distancing
is to limit the number of prisoners
in our institutions.
And yet, the defendant's arguing very little
to accomplish this.
The plaintiffs have identified
a number of mechanisms that could be used
to aid in the reduction of the prison population,
and we ask that the court
order the defendants to implement those measures.
Thank you and I'm open to questions.
-: I had erred earlier.
I had forgotten that Justice Lenk
had asked that she be permitted to ask the questions last.
And she gets what she wants on her last argument.
With that we will begin with Justice Gaziano
and Justice Lenk will follow me and my questioning.
So Justice Gaziano.
-: Thank you, Chief.
Good afternoon.
-: Good afternoon.
-: So let me ask you about the CDC prison guidelines,
and I take it from your brief,
your well-written brief,
that you basically characterize him as saying,
do the best you can.
And you think that they're woefully deficient.
We have to find, for an 8th Amendment violation,
whether or not contemporary standards of decency
have been violated.
And the courts traditionally look at regulation.
So when, in sanitation cases, we look at plumbing codes.
Did you say, and I'll put aside your criticisms of them,
if you would,
do you say that DOC is compliant
with the CDC prison guidelines right now?
-: I think that some of that is a factual matter
that's in dispute, Your Honor.
And I think in some respects they are
and in some respects they are doing more, but I--
-: Tell me where they are not compliant.
-: Well I think it's more in the arena of implementation.
I think that, for example,
they've ordered a lot of measures to be taken
to disinfect and sanitize and clean.
And sometimes that happens and sometimes that doesn't.
But I can't identify any particular item
in the CDC guidelines that they are
sort of categorically saying,
we're not going to follow that.
That may be the case, but I can't say that.
But more importantly from our position,
is that those guidelines
do not set the Constitutional floor--
-: I understand your position,
but in the interest in time and given this format,
I'm gonna ask you to just answer my questions
without deviating,
because we'll be here for a long time if we have that.
And I read your brief.
I understand perfectly what you wrote.
You cite a number of cases from around the country
and you've told us that judges around the country
starting to recognize that these CDC guidelines
aren't gonna be enough.
The cases you cite all deal with vulnerable plaintiffs.
They're all uniformly immigration cases
brought by a very vulnerable plaintiff.
In the court, the judges in those cases have said
in this instance with this vulnerable plaintiff,
there's irreparable harm to this person
who has multiple sclerosis and COPD, etc.
But the remedy you seek in our case
would apply to all inmates, healthy inmates as well.
Are there other cases that you've found
where courts have said,
this remedy, apart from the vulnerable
should apply across the board as a global remedy?
-: I'm not sure if that's the case
in all of the COVID cases.
There's so many of them
and they're coming on fast and furious
and I have to say I haven't read them all.
I think that Judge Yarn, here in Massachusetts
has ordered the release of a large number of people.
And I think he,
well, I'm not sure exactly what he's done,
but not just people who were medically vulnerable.
And I think this issue came up in the Supreme Court
in the California Plata case,
where the issue there was
unconstitutional medical and mental healthcare for prisoners
and the remedy was release of large numbers of prisoners.
-: Right, and that case of course,
dealt with massive overcrowding of 137.5%, right?
That was a cap to get to for even operational,
I think it was.
-: That's right.
-: Right, with 115,000 inmates, vs. 7,000, right?
-: Right, but I think that the point
that I'm trying to make about that is,
the question came up about,
well you're releasing people who weren't even sick,
who don't have medical problems
that are not being constitutionally addressed
and is that an appropriate thing to do
in order to limit the harm to the people who are sick.
And I think similarly here,
we are not saying that,
although it certainly is the case
that we want to focus on,
people who are medically vulnerable,
and our concern is partly that the department
has not treated those people any differently
from anyone else,
but if this court were to order
some kind of relief mechanism,
I don't think it would have to be limited
to the people who are particularly vulnerable if,
but for example, releasing people
who are close to the endpoint of their sentence
regardless of their vulnerability
would be necessary in order to allow
social distancing to happen inside the prison
for the people who remain in the prison.
If that could happen, then it might be
that there might still remain inside the prison
people who are in the vulnerable category
and some of the people who were released
might not be in that category.
So there's various ways of accomplishing
the goal of making prison conditions safe for everybody.
And everybody is at risk.
-: If you could,
and I appreciate you answering he question,
but again, just given this format,
I'm gonna ask you to focus on my question,
and you've answered it well.
The last question I have,
do you agree that patients that have receiving daily,
ans this goes for Section 35,
-: Yeah. -: Do you agree
that the patients, under Section 35,
so they come in and they're quarantined for 14 days,
of course, and there's some detox that's involved in that
and they're seen by some counselors,
but after that initial period,
from what I've read, they're receiving treatment,
and there's some argument that they're receiving
more treatment than they would have been.
Do you believe that to be the case?
-: I think it's factually unclear, Your Honor.
I think that, certainly the department,
I accept their affidavits that in principle
they're doing more than they would,
but as a factual matter,
whether that's happening or not,
we hear different things.
-: Okay, thank you.
That's all the questions that I have.
Justice Lowy.
-: Thank you, Chief.
I'm actually gonna start with Section 15 as well.
And I certainly appreciate your point
that when you're dealing with
individuals with substance use disorder,
adding trauma to the circumstances
is, to say the least, not a good idea.
But I feel like there's a significant difference here
in the record.
And that what we have, as I understand it,
is three days where the individual comes in,
is completely quarantined,
and then they are gradually moved into the population,
that they are having classes
and receiving the type of treatment they're supposed to.
So could you help me out
and specifically tell me
where you think the Constitutional violation is right now
with the Section 35 population?
-: Yes, as I said, I think that
the facts are murky in this point,
and so I just want to be--
-: Take it in the facts that you would use.
Where precisely is the violation,
if in fact the treatment is going on?
-: Let's take the uncontested facts,
which as you mentioned, that basically
for the first 14 days the patient is essentially
in solitary confinement
and maybe having some contact
with a substance use counselor who might stop by his cell
and may be giving him some paperwork to do treatment.
Our view is that we have a commitment
that on average only 30 days long
to put somebody in those conditions
with that minimal amount of treatment
for half the time is not consistent
with professional judgment or with the Constitution,
especially given the context that we're dealing with,
which is, these are people who are not charged with a crime,
not convicted of a crime,
and yet are ending up in a prison, supposedly--
-: Those are important issues that go well beyond this case
that you just raised.
I think I'm gonna have to move on,
because I need to ask Mr. Dietrick.
My sense from DOC was that
after three days that there is some interaction
if medically okay and that there is treatment.
So we do have a difficult issue with the record.
But let me go on to deliberate indifference.
And I recognize that the quality of medical care cases
are not a perfect fit, a perfect doctrine here,
but in trying to analyze DOC's response,
a lot of cases, including the United States Supreme Court,
Wilson versus Seiter,
have indicated that when trying to understand
the institutional response,
we need to take into account
the practical constraints facing prison officials.
Does that United States Supreme Court case law
have any application to this circumstance?
-: Yes and no.
Obviously Wilson versus Seiter, where it is established
that the principle that there needs to be
some sort of subjective component
to addressing 8th Amendment claims.
And I think that that gets very confusing
in a lot of different kinds of contexts.
Because it sort of suggests
that there has to be sort of a,
some sort of subjective kind of intent
that is expressing out of callousness towards the prisoners.
I don't think that that really comes into play
when you have a sort of system-wide problem.
And especially this court has been very clear
that if unconstitutional conditions
are a consequence of a lack of resources for the facility
so that it's beyond the powers of the defendant
to actually do anything about it,
that doesn't mean that the court can't find
a Constitutional violation and issue a--
-: Isn't that the challenge here?
I mean we're dealing with a deliberate indifference
and what if, as a good-faith effort,
that they're doing their best?
And I know I'm bumping into a separation of powers issue
with this question,
but there's almost always another course
that might seem like a better medical response
or a better systemic response,
but that's not how we really weigh the situation
in these cases when we're looking at them one at a time.
Do we have a little challenge here
coming up with a doctrine where it seems like
one could argue that the responses of DOC
have been in good faith
and that the challenge to that
is not necessarily that they couldn't do better,
but that they're not going to be able to stop the spread,
at least in three of the institutions,
through any other means other than having
less of a population of individual prisoners?
-: I think that there's sort of two questions there.
One, could they be doing something better,
but let's assume for the moment that they couldn't.
Let's assume that they're doing everything
that is in their power to do
and assume too that the risk is still too high
so that the conditions are still unsafe.
In the Plata case, I'll say again,
that the court there explicitly noted
that the good faith of the Governors
who had been trying to address the problems for years,
and the court ended up saying it's impossible,
they cannot do it, it's beyond their power
to provide adequate medical care
given these population levels.
Even though it's impossible,
we still have a Constitutional problem that we have to fix.
So despite the good faith and heroic efforts
of prison officials,
that did not mean that the court couldn't find
there was a Constitutional violation
that needed to be remedied.
-: All right, let me ask you one more question
to follow up on that answer, please,
dealing with Brown v. Plata.
Does it matter that, in that case,
before the release, that there had been 15 years
of court orders and 15 years of failure to reduce
the prison population to deal with
the serious medical conditions and mental health conditions?
And that what happened there was not release of prisoners,
what happened there were hearings
before a three-judge panel
under the Prison Litigation Reform Act of 1995,
and after that panel believed that an order was required
to reduce the prison population
that the United States Supreme Court said,
they affirmed, they said that was a reasonable decision
in those circumstances.
It seems that there's litigation there,
there's 15 years,
and there's an affirment
by the United States Supreme Court.
And I know that we're sort of trying to figure out
how do we address something that,
if we could have anticipated, we didn't.
And trying to fit this horrible situation into a doctrine,
but does Brown really help us,
considering how that litigation was addressed?
-: I think it obviously is a unique case in that,
as you mentioned, or Judge Gaziano did,
that tens of thousands of people were being released
and they weren't being released because of overcrowding,
but because that was the only way to address medical care.
And before the court took that very extreme step,
it tried to do everything in its power
to address the medical care problem
without releasing people,
but other courts, including many courts in this state,
have addressed pure over crowding issues
and put caps on facilities ordered.
Extra-good time to be providing the prisoners
beyond what the statute allowed
in order to bring the populations down
to the cap level that the court felt was necessary
to have the conditions be Constitutional.
So yes, you would like to give the prison officials
the opportunity to try to remedy Constitutional violations
before you take an extreme step
like ordering people to be released,
but we are in an emergency here.
And the department has made it pretty clear
that it doesn't intend to exercise any unusual measures
to try to lower the prison population.
It's gonna proceed as it's been
with maybe a few more medical paroles and the like,
but basically they feel the problem is under control,
and yet the numbers of infections keep growing.
And with the limited testing that we have,
the numbers are almost certainly much higher.
-: Thank you, I don't want to take too much time.
-: Okay.
-: And you've answered my questions.
Thank you very much.
-: Sure.
-: Justice Budd.
-: I don't have any questions, thank you.
-: Justice Cypher.
-: Thank you, good afternoon.
I have a few questions, and some of my questions,
I'd like to go into the area of testing and the statistics.
One question I have is that,
you mention in your brief that you've got
13% of the population is over 60,
and 30% is over 50.
And I'm curious as to whether that 30%
of people over 50 also includes the 13% over 60.
-: I can't be absolutely sure, Justice Cypher,
but I think the total of over 50 is 46,
combining those two numbers,
I'm pretty sure that's true, but I could be wrong.
I think that the record shows that
at least 50% of the prison population
are either elderly or medically vulnerable.
-: Okay, my other question relates to testing.
And one thing that has perplexed me about testing
is if you test somebody on Monday,
that does not mean they don't pick up the virus on Tuesday.
So wouldn't you have to test everybody every day
to really know what's going on?
-: Absolutely you would to have a completely accurate view,
that's right, yes.
But what the department is doing now, for the most part,
is testing people with pretty serious symptoms.
And one of the plaintiffs who testified
at the hearing last week
had been complaining of coughing
and feeling sick for some time,
and they didn't test him because his symptoms
weren't significant enough.
-: Okay.
-: He was tested.
-: And very, okay, I understand, I did read everything there.
And so then my other question
regarding the rate of infection.
I forget what you said it was in the prison.
-: I don't think we've done the calculations
with the latest numbers.
-: Do you have your last calculation handy?
-: I'm not quite sure what your asking for is it--
-: Well, I just want to know what the,
you said in your brief that the rate of infection
in the prison population
is higher than it is in the Commonwealth
in terms of the population as a whole.
-: Mm-hmm.
-: So my question really is, how do we know
what the real population in that,
the real infected population number is
in the Commonwealth as a whole,
since testing has been so limited?
I don't understand how those comparisons can be made.
-: I mean, I think that there are issues
with the comparison, obviously,
because in order to truly compare,
you would have to be testing the same
sort of types of people using the same testing criteria,
and that's not done.
When the Commonwealth reports its testing results
and DSE we can say, okay, there are 350 prisoners
who have tested positive, out of 7,500,
but what does that mean about the overall infection rate
in the department?
Were they tested, like in some prison systems,
they've tested everybody and the numbers explode
when you do that.
-: I see.
Did you tell me, if you know,
comparing our state to other states,
what the rate of infections is in the prisons,
particularly the ones
where you say release has been ordered?
-: Well I think a lot of states have,
without judicial involvement,
have taken significant measures
to reduce the numbers of prisoners who are infected,
but there have been cases
where people have been released,
despite zero confirmed cases in that facility,
but just because of the risk.
So I don't know that it's that simple
to sort of say, if the incident reaches a certain level,
say 10% or 20% or whatever,
that that proves that there is a problem in this facility.
I think that you don't know
if there's a problem in that facility
unless you test,
and even there, you know,
a guard might come in and administer the test.
-: Okay, I understand your answer now.
I understand.
I'd like to, my next question,
of the cases you've cited where courts have ordered release,
how many of those,
as I've read them, a lot of them
seem to be about pretrial detainees,
which are under different standards.
Which cases would you identify
are related to inmates?
-: I actually don't think
it's a different standard, Your Honor, because--
-: Oh you don't, no?
I thought we went through a due process standard
for all you can use can use and that they're not--
-: Well it's a due process--
And so it's different, a little better to them.
-: In theory it's different,
in practice I think it's the same standard.
It's, are they at a unconstitutional risk of harm.
-: Okay, so let's go back to the question
and say, bearing that it mind,
of the cases that you cited,
how many are dealing with inmates
that are sentenced versus pretrial detainees?
-: I couldn't say, Your Honor, I'm sorry.
-: Okay. -: I don't know.
-: We'll figure that out.
I'll figure that out later.
Going back to our correctional facilities for a minute.
Do we know how many people are in there
for violent offenses?
And included in that,
I would include sex offenses as violent.
-: Yeah, it's hard to say.
I can think of, like I think 20% are sex offenders.
-: All right, yeah.
And then there are another 15% who are lifers,
and we'll assume those are all violent offenses.
I'm not sure, Your Honor, maybe 50%.
-: So that would mean 50% of the DOC population
is in there for non-violent offenses?
-: I wouldn't hold me to that.
-: Okay, do you know,
on page 23 of your brief, I think,
you mention stress on services, is that right?
-: I'm sorry, I couldn't understand.
-: Oh, on page 23 of your brief,
I think you mentioned that there would be
a stress on services,
and I guess I was just curious,
let me see if I can just find that.
Well, I'll come back to that later.
My question was,
if we granted the release that you're requesting,
what would be the impact on social services
outside of the facilities?
-: Well, I think that, we did submit affidavits
from doctors at the BMC describing
a lot of the efforts that are being made
out in the community to provide services
for people who might otherwise be homeless
and have difficulty accessing resources.
So I think there's a lot more than there was.
What the ability of the community to handle more people is,
I can't talk about in detail,
but I know there a lot of efforts being made.
The affidavit describes those efforts.
-: Now one other question,
in fact, in the,
I think in the Department of Corrections brief,
in the back of the brief in the appendix,
there is an opinion,
I forget the name of it, but it's by Judge Callen.
And she noted that the homeless shelters are full.
How do we,
we have to, do you agree,
we have to weigh that kind of factor in to our analysis?
-: I think it's a tricky question, Your Honor,
because prisoners have a right to Constitutional protections
that other people don't,
so I keep going back to California,
but when they released people
because of inadequate medical care,
they didn't ask the question,
would they get better medical care
out in the community, where--
-: Oh, I'm not asking about any medical care.
The equivalent would be
any medical care in the community, not better.
-: Look, it may not have had.
Yeah, they may have had none, and yet that didn't--
-: And they still may get none if they are released.
-: That's right, but in the prison,
they were getting some, but it wasn't enough
and so the court ordered them to be released
despite the fact that in the community
they might have gotten none.
Similarly, if someone is released from a DOC prison,
they may be homeless.
And I don't mean to be callous about that,
but from a Constitutional perspective, that doesn't matter.
But I do think that the affidavit from the BMC doctors
describes quite thoroughly that there are more services
available and that sick people could be taken care of.
-: I think Justice Callen, Judge Callen noted also
that there's no guarantee that when released
they would be able to practice socially distancing
or be able to be safe,
and I am wondering,
this is a very unique situation, thank goodness,
but most of the cases,
other than the more recent COVID-19 cases,
most of those are dealing with situations
that only involve the prisons,
such as lack of water or lack of plumbing
or some other kind of egregious situation.
Here we have something that is affecting
the entire Commonwealth.
Doesn't that factor into our analysis also
in these circumstances?
Doesn't that take those cases into a different realm,
is I guess what I'm asking.
-: Well, obviously this is a unique situation,
but what we have now is prisoners
who are confined in crowded dorms
where they don't have the option
of trying to social distance
because the living situation that they are forced to be in
prevents them from taking action that
if they were out on the street, even homeless,
they could make sure that they could stay away
from other people.
So it's, they are being compelled to live
in situations where social distancing is impossible.
You know, it may be difficult
for some people out in the community also,
as a practical matter,
but people have options in the community
that they don't have in prison.
-: And one thing you suggested in your brief, on page,
well said in your brief, in page 44 of your brief,
that they have done almost nothing.
Do you still maintain that,
that the DOC has done, and the parole board
has done almost nothing?
-: Almost nothing,
I don't have that page in front of me,
almost nothing to try to get people out early,
I think is what I was referring to there.
-: Okay. -: I mean, obviously
they've done things to try to increase hygiene and that,
and the like inside the prison.
-: Now, I guess that brings me to my other question
regarding the Commissioner of the DOC and the secretary,
and that is, can you explain to me
how they have been deliberately indifferent?
-: Well, I think that they are,
and this goes back, I think to Judge Lowy's point about,
what is the meaning of deliberate indifference here.
And it does not mean that the court has to find
that they have had kind of a bad motive,
or that it's that they are face with--
-: Now exiting.
-: Scott Kafker.
(beeping)
-: One second, we appear appear to have lost Justice Kafker
for reasons--
-: He's just tired of listening to me.
-: Well, that might be, but we still need him back.
(Justice Cypher laughing)
Can somebody text him to make sure that he knows what,
I'm sure he does know.
So we'll wait for him to come back.
-: Okay.
-: Now joining, name not recorded.
(device beeps)
-: Justice Kafker.
-: I'm back.
-: Okay.
-: For some reason, after Justice Cypher
asked the deliberate indifference question,
things went silent.
I didn't touch anything, but.
-: Okay, all right.
-: That's where I disappeared.
-: You're in good company,
apparently it happened to Justice Breyer yesterday so,
any event, Justice Cypher, you may proceed.
-: Yes, well why don't we have the answer again
to the deliberate indifference question
so that justice Kafker can hear it.
-: I don't think I've actually answered it yet.
-: Oh, okay. (laughing)
-: But I think your question was,
in what way are the Commissioner--
-: The Commissioner and the secretary, right,
being deliberately indifferent.
-: And the secretary being deliberate indifferent,
and I think, I am referring to efforts taken
to reduce the population.
That the department itself has actually
decreased the availability of earned good time
and not through--
-: All right, well, isn't the right remedy,
would the right remedy to be for your group
to go to the legislature
and ask for some emergency legislation
to handle the good-time credit issue?
I'm not sure I understand how the,
so the Commissioner can take care of that
and still follow the CDC guidelines.
-: Well, I think it's true
that the Commissioner doesn't have
the statutory authority to release people
in violation of a statute
or to give more good time than a statute allows.
The Governor probably has that ability
in his emergency powers,
but I think the main point is
that in order for this court
to order a remedy that might involve releasing people,
and even releasing people where statutes say
they can't be released,
that is something that this court has the authority to do
to remedy a Constitutional violation
and it does not have to find that Commissioner Mici
was not acting in good faith.
-: Well then,
so then if she's not act,
if her actions are not permitted by law,
she would not be in violation,
she would not be being deliberately indifferent.
Isn't that correct?
-: No, it's not correct, Your Honor.
And that, I think, goes back
to the sort of conceptual problem
with the concept of subjective deliberate indifference,
and I think it's why the Supreme Court,
in the Kingsley case,
sort of said it has no role
with respect to pretrial detainees,
and it's questionable whether it should have any role
with respect to sentenced people.
And that's because,
it almost makes no sense
when you have a defendant sued in their official capacity
so that they're really,
you're suing the official, not the person,
to think about what their intent is.
And where you have a system
that is sort of intractable
and sort of beyond the power of any individual
to fix, that doesn't insulate it
from having to comply with the Constitution,
which is why this court has said over and over again
that even where the prison defendants
have no ability to address the Constitutional violation,
that doesn't excuse the violation
or deprive the court of the obligation
to have it order a remedy. -: All right.
Well what's your best case for me to read
on this subjective objective conceptual problem?
-: Well, I think there are a number of them,
but just looking at Massachusetts cases,
if you look at the Michaud case,
where the court said,
we flatly, emphatically reject the notion
that lack of resources can excuse providing a remedy.
In McKnight, there's a footnote
where this court said,
if conditions are unconstitutional in prisons
and can't be remedied,
then the solution should be early release of some prisoners.
In Richardson the court affirmed a population cap.
-: All right.
-: Despite the fact that that obviously was inconsistent
with the DOC.
-: Okay, and those are all cited in your brief,
but you don't have like one or one US Supreme Court case
that would be an example of this.
-: The Supreme Court is,
I mean, Plata is a case where the court said
it was impossible for the defendants to do anything,
yet they still ordered release.
-: Okay, one other,
thinking about this in terms of populations,
has there been any attempt to compare
the prison population to military populations
that are enclosed, or nursing home populations?
-: When you say any attempt to compare it,
I think those are certainly different kinds of contexts
where the risk of infection is obviously high
because people are forced into congregate settings
with each other,
and so that is why we're so concerned about prisons.
Because like nursing homes, like cruise ships,
there is very limited ability to social distance
and that's why the infection rates are so high.
-: All right, thank you.
Now I've got just two more questions, I hope.
And that is related to
Statute 123, Section 35 in the MASS Act.
Right now, I believe the DOC brief says
they have 28 patients.
Which means they're operating
at 81.5% below its designed capacity,
and 90% below operational capacity.
That sounds pretty good to me.
-: It's a low population,
and it think it reflects the views that have been expressed
by SANSA, the federal agency that's responsible for this.
Involuntary commitment is not a good idea
in these circumstances for anyone.
It's especially not a good idea
for people to be sent to a prison.
But let me talk a little bit about the structure of MASAC.
Ordinarily they have what they call a C Building,
which is where typically new admissions go
and then they move to A and B.
And in A and B, under normal circumstances in the past,
people tended to be double celled,
now they are single celled,
so in that sense, they can sleep in a setting
where they're six feet apart.
And then the C building is where they get quarantined
and they're six feet apart,
but they're not getting any,
except nominal treatment, for at least the first 14 days.
-: All right.
And then I have one final question,
and that is, of the cases that you've cited
regarding the COVID-19 situation,
are any of those cases involving situations
where the court has ordered
the Executive Branch to do something?
Where there is a specific provision in the Constitution
for separation of powers.
-: Well I'm not quite sure I follow
your thinking there, Your Honor.
-: You've cited a lot of cases, of COVID-19 cases,
and sometimes it's hard for me to tell
when I'm reading it, the brief,
are these just detainees?
Were they inmates?
Whatever, but putting that aside,
in those cases you cited in support of your proposition,
I want to know, are any of those states similarly situated
to Massachusetts, in that they have a specific provision
in their Constitution
regarding separation of powers?
-: I don't know.
My view, I think is,
well most every state has
a separation of powers clause in their Constitution.
-: I don't think that's accurate.
I don't think that's accurate.
-: That may be, but I don't think Article 30
is a bar to this court
ordering the Department of Correction
to take actions to remedy a Constitutional violation.
-: But would you agree we can't order the Governor
to exercise his emergency power.
-: I think you can order the Governor
to take action to release prisoners,
and if that entails exercising his emergency power
as something that he chooses to do
to accomplish what needs to be done,
then that would be his choice.
You don't have to say to him,
I order you to declare an emergency.
-: I promise this is my final question, Chief.
I promise this is my final question.
Wouldn't this put us, really, in the position,
as the Court, of running the prisons
instead of letting the people who have been trained to do it
and have experience do it, letting them do it.
-: No, I think that this court,
like many courts have found,
where there is a constitutional violation,
that remedies can include releasing people.
And that doesn't mean that you're
intruding too far into the operations of the prison system.
How you go about doing it
might, but, for example,
what happened in Plata after the Supreme Court decision
was, well okay, now we have to actually
get these people out of here,
and how are we gonna do it?
And that became somewhat complicated
and the district court ended up saying to the defendants,
all right, there have been a lot of mechanisms proposed
for releasing people.
I am ordering you to look at that list
and tell me, in order of priority,
which one of these things you would like to do first,
what the consequences would be of doing that,
like if you were to release more people
on medical parole,
if you were to put people on home confinement.
Tell the Commissioner,
give me your solutions.
I want you to release people
so that there can be social distancing.
You tell me the best way to do it.
This court doesn't have to decide itself
what the best way to do it would be.
It would be perfectly appropriate
to go back to the Department of Corrections
and get their input.
-: And so, but then they respond,
well look, we can't do it under the furlough statute,
because really that has a limitation in it
of 14 days per year, or 30 days per year.
-: You could say,
I am ordering you to use the furlough process,
despite the statutory limitations.
This court has the explicit authority to do that.
-: All right, I'm finished, thank you.
-: Justice Kafker.
-: Thank you.
-: I guess, I'm still looking
at the case on deliberative indifference.
'cause Plata, Plata the Governor condeded
there was cruel or unusual punishment
in that case, correct?
Isn't that--
A stipulation that there was
cruel or unusual.
-: That the stipulation needed a remedy of some sort, yeah.
-: So they concluded it was cruel.
-: At that point, when it went to the court,
the issue wasn't, are we providing adequate medical care,
it was assumed that they were not.
-: And Richardson is a pretrial,
the case, our case used in reference,
that's a pretrial detainee case,
and I read the pretrial detainee cases
as setting up a different standard,
including one we issued a couple of weeks ago.
So give me a case
in which we've got, not pretrial detainees, not immigrants,
and not conceded violations
where we have cruel or unusual punishment.
'cause deliberative indifference
has a real meaning here.
We're forcing a Constitutional provision
about cruel or unusual punishment,
or cruel and unusual punishment.
So tell me the case I should read.
'cause I'm not persuaded
that you've pointed out any cases like this one yet.
-: What immediately comes to mind, Your Honor,
are the many cases that were decided
in the Superior Court
dealing with overcrowding
and kind of how the corrections caps were ordered.
And those cases included
pretrial detainees, but also sentenced people.
-: But no appellate court,
you don't have any--
-: Well there are plenty of overcrowding cases
around the country
and that's sort of even been addressed
in the prison litigation on format,
which is designed to try to limit
the ability of courts to order releases,
but even there, it's recognized that
if the population levels are so high
that you need to release people
to make conditions Constitutional,
the courts have the authority
under the Constitution to do that.
And they don't have to find that,
'cause it's almost implicit in overcrowding cases,
that the correctional officials
don't have any power to control
the admissions to the facility,
and yet they're stuck with the people sent to them
by the courts, but that doesn't mean that--
-: But aren't these all cases, like Justice Lowy pointed out,
that involve decades, if not years
of failure to adequately construct prisons
and other things.
It's not like this case,
where we've got a perfectly adequate system,
in terms of size,
but a virus can create some temporary problems.
Is there anything like that out there?
-: There are lots of overcrowding cases, yes.
They sort of tend to--
-: No, no, I'm trying to be specific.
'cause, you know, overcrowding,
if California, for 30 years,
keeps jamming hundreds of thousands of people in jail
and don't build prisons,
that's different from this.
I'm just trying to think,
is there anything close to on-point that you can,
just give me the best case that's close to on-point
where we've got a prison system
that's conscientiously and diligently
trying to respond to the problem
and it's a temporary one.
It may be not as short as all of us want,
but it's not like a structural problem
that hasn't been fixed for decades.
Anything out there that I can look at?
-: So if I follow you,
what you're looking for is a case
where the problem isn't a long-standing one
and the court nonetheless ordered a prisoner release.
-: Because I read the deliberate indifference requirement,
as it reads and as the cases say,
it requires a callousness in the face of,
and I don't see any of that here.
I see, you know, conscientious creative attempts
to respond to a terrible problem,
but I don't see deliberate indifference.
And the cases you're referencing don't seem to be on point.
-: Well, I think I disagree with you, Your Honor,
about whether you need to show that kind of callousness.
I don't think that that is true as a matter of law.
And I think that this courts decisions in these show,
and other cases support that.
And I think that, yes, California
and some other situation where people have been released,
the problems have been long-standing,
but it's also clear in those cases,
that there is not callousness on the part of the defendants.
In Plata, the court explicitly talked
about the good faith of the defendant
doing everything they can, and this situation--
-: But Plata we have a conceded cruel or unusual punishment.
It's conceded.
Here, we're dealing with the exact opposite,
which is, they say they're doing
everything they possibly can,
except for, and I recognize,
and so did the Superior Court judge, Judge Allman,
that they've not solved the six-foot distancing problem.
And I understand that, but I'm just not sure
the inability to solve that problem
is deliberate indifference.
There's a tight structural short-term problem.
-: Well I think that obviously first
you have to meet the objective prime,
which is that the conditions themselves are unsafe.
And assuming we get to that point,
I think your concern is,
well even if that's so, even if the prisoners
are living under dangerous conditions
that other people don't have to live in,
is the fact that the Department of Correction
doesn't have the authority to release people
a defense to a claim that they should be released?
And I think it isn't.
I think that if you establish that the conditions are unsafe
and if you establish that,
then there's an obligation to do something
and that something is release
if that's the only thing that will enable people
to live six feet apart.
And so in that kind of situation,
the subjective mind of the defendants is pretty irrelevant.
-: But in your view, I guess,
in order for this not to be cruel or unusual punishment
this court has to order the release
of a number of prisoners that would make sure
that they can all stay six feet apart.
Is that what you're saying?
-: That is what we're saying, Your Honor.
We think that that would be the measure
of what would allow the prison system
to be safe enough for the people who are remaining in it.
-: That's regardless of the dangerousness
or the suitability of the people
that you're asking us to release.
-: Well I think that we're not saying
that you should release anybody who is dangerous.
So if you got to the point where
there is no way to reach that level of distancing
without releasing extremely dangerous people,
that would present a difficult problem.
-: So we don't have to release to the number of six feet,
we have to release,
you're asking us to release people who are
a certain number, but once we determine,
and by the way, how do we determine
whether they're dangerous?
We're not prison wardens.
How do we do that?
How do we decide that that number is going to hit the number
where you're getting into dangerous prisoners?
-: I think that it has to be done slowly and step by step.
I think that the first step would be
to release people who would
pretty clearly be qualified for release,
who aren't going to be dangerous,
who are nearing the end of their sentence anyway
who might be suitable for parole
or suitable for home confinement
given a close analysis by the Department of Correction
about who's suitable and who's not.
What other states have done, essentially,
to try to get the numbers down,
it might come to the point where
all right, we've gotten it out,
this number of people.
Where are they living now, the ones who are remaining?
What's the nature of the problem?
Have you gotten to the point
where people can social distance or not?
And then you start to see whether you need to do more
or don't you?
-: Thank you, that's all I have.
-: This is Chief Justice Gants.
As I understand your argument,
and you can correct me,
in Brown versus Plata,
we had a prison system in California
which, in ordinary times, was so overcrowded
that it was incapable of providing
adequate medical and mental health care for its patients.
And after having exhausted other alternatives,
the court came to the view,
the US Supreme Court came to the view
that the alternative it had to turn to
was the reduction in the population
to 137% of the designed capacity.
I understand your argument to be that this too
is a type of overcrowding case.
That although it was not overcrowded as of March 1st,
that it has become effectively dangerously overcrowded
in light of the viral contagion involved in COVID-19,
and that not only are they required to take steps
to diminish the risk within the prison,
but ultimately that will be futile
unless they reduce the overall population.
Is that ultimately,
is that essentially your argument?
-: Yes.
-: So the part of the argument,
and this is following up on Justice Kafker's questions,
we don't have any expert testimony that I'm aware of
which would say, what degree of population reduction
would make a prison not so dangerous
as to be unconstitutionally so.
So how do we basically essentially impose
a type of population cap or obligating them
to do a population reduction
without any expert testimony that would allow us to say
that if they were to do that,
it would materially reduce the risk of contagion
and therefore take a unconstitutional prison system
into one that was Constitutional?
-: I think that a prison system
that was capable of practicing
the kinds of social distancing that everyone else in society
is suppose to be trying to practice would be sufficient.
And I think there's plenty of experts,
and CDC and everybody else says,
everybody should try to stay
six feet away from other people.
How many prisoners would have to be released,
what the DOC population would have to be
in order to accomplish that is what's unclear at this point.
And they have said that
58% are living in situations where that is not true,
but that doesn't mean that you would have to release
that many people to make it happen,
that there are empty dorms that the system has,
that there are even closed facilities the system has,
that you could move people around
and you could have dorms, but have fewer people.
And then there's a lot that can be done,
but it isn't something that you are obviously in a position
to micromanage and tell them how to do that,
but I think if the principle were, do it,
make sure that people can live in those safe conditions
and then tell us, how many people
can you make that happen for?
And then the numbers of releases
might become more apparent.
They can start releasing people now
using all the different mechanisms that are available,
but when you start to get to the sort of crunch time,
well, if it's enough, then it would need someone
like maybe a special master or someone like that
to go in and look at facts on the ground.
-: The US Supreme Court in the Brown case
essentially came to the view that
if you reduce it to 137% of designed capacity,
then that would permit there to be
a Constitutionally adequate quality of medical care
and mental health care.
We don't have any dimension right now
based on the record here
whether it's 5%, or 25%, or 50%, or 80%, do we?
-: No, we don't precisely have that number,
but it's easier in some ways than in California,
because defining what is adequate mental care,
medical and mental health care, is pretty amorphous.
So that number was sort of arbitrary in a way.
Here, we have a standard,
which is allowing people to live
six feet apart from each other,
and that's a fairly easily discernible criteria.
And if that were what was necessary,
then getting to that point,
what numbers it would take is what's unclear.
And the department should definitely be involved
in giving you that kind of information
if that's the order that is appropriate.
But like I said,
you could start releasing people easily
in certain numbers
and what it would take
to get to that pretty objective standard
of six feet, we don't know that at this point,
but you don't have to tell them that at this point.
You don't have to say, reduce by 50%,
reduce by 10%, that's really not the point.
The point is to reduce to
where people can live safely inside the prison.
-: Okay, I have no further questions.
Justice Lenk.
-: Well I certainly have many now, thank you very much.
I also wanted to thank you, Chief,
so I want to have a moment for your unexpected,
but very kind remarks about ode me, you know, old me.
-: It's O-D-E, not O-L-D.
(Justice Lenk laughing)
-: Yes, I know.
All right, anyway,
I want to ask a little bit about the Section 35 population,
which is seemingly quite small.
I don't have any sense
of how much it would have been otherwise,
in the pre-COVID days, do you?
-: How large that population was?
I think in early March, I think at MASAC
there was close to 150 people,
so it's been a dramatic--
-: As of, 28 of them now, only 28 of them now?
-: That's correct.
-: Yeah, 28.
And is that, these are people
who ordinarily are released after 30 days, you say?
-: Typically, yes.
-: So most of these people would have been--
-: The statute permits 90 days, but they almost always
get released in 30.
-: Yeah, so most of these people, in fact,
they weren't sentenced,
but they were assigned to this prison population
after the Governor declared the emergency now.
Wouldn't it have been?
-: The people who are there now
almost certainly have been placed there after that.
And one thing to keep in mind about the Section 35 statute,
it only permits people to be sent to a correctional facility
if there's no room anywhere else.
And the numbers have gone down,
Section 35 numbers have gone down everywhere.
And so that the non-correctional Section 35 facilities
are also have low capacity,
so our view is that,
well, since the statute says you can only go to prison
if there's no room anywhere else,
and the population everywhere else is actually down,
there's no reason to send someone
to a DOC Section 35 facility.
-: Is it the judge who makes the decision
about sending him to a prison facility?
-: I'm sorry, I couldn't--
-: I can't, I don't exactly know how it works.
Is it the judge who decides where the person goes,
or is there somebody else who makes that decision?
-: The way the statute reads is that
if the person is deemed by a judge to need commitment,
then the person should go to a DPH facility
unless there is no room there
or if the judge makes a specific finding
that that person needs to be in a secure facility,
that finding almost never happens.
The people who go to MASAC
are almost always there because there's no room elsewhere.
-: Yeah, so I don't understand why there's anyone there.
I don't understand why, you know,
it's not a sentence, you're not limited to the Rule 29
revise and revoke meditations.
Don't you have the ability to simply go back into court
on a motion for reconsideration
and ask that they not be assigned to the prison?
-: I think somebody might have that mechanism.
-: Well I don't understand why it's a Constitutional problem,
I suppose is my point.
It's a fixable thing, it seems to me.
-: It might be fixable in individual cases,
but our point is that nobody should be there because it--
-: Okay, but I'm just saying that,
have you made any efforts to try to get these people out?
-: I think some people have.
Some individuals, or at least,
I know I have been in communication,
for example, with a lawyer of one of the people
who submitted an affidavit,
and she's trying to figure out,
is there a way to go into court
and ask that this commitment be--
-: I mean, I'm not aware of any constraints.
Maybe my colleagues will correct me in that regard,
but I'm not, I don't think the Rule 29 constraints
would apply at all to a non-sentenced--
-: But I don't think that if you went back
to the judge that committed you there,
that judge may feel like,
well I'm limited to considering
the Section 35 statutory factors
and I can't look at the safety of conditions
inside the prison or the level of treatment
that goes on inside the prison,
that typically a judge would say,
that's beyond me, I'm not--
-: Principally, you say.
All right, I don't have any more question, thank you.
-: Are there any further questions of the justices?
-: I have one short area of interest.
-: Justice Lowy go ahead.
-: Thank you.
You mentioned Michaud
and that's the case with the Lawrence Jill
and you're familiar with the facts of that case.
Aren't you?
-: Am I familiar with what?
I'm sorry.
-: The Michelle Case dealing with the Lawrence Jill.
I won't get into the details,
but the lack of plumbing
and numerous--
-: That with one of the issues.
Yep, yep, yeah.
-: So there's no flush toilets.
It's disgusting, absolutely disgusting.
There's way too many people in cells
and the cells are small.
And what we did there a number of years ago
is say what seems so obvious
that the manner in which these individuals had to live
while they were incarcerated,
was unconstitutional.
8th Amendment, Article 26 violation,
but we didn't close to jail.
-: Well, eventually we wouldn't,
you did order that they create a new one
and put them on a timeline to do that.
But true.
You didn't immediately close the jail.
-: Go ahead. I'm sorry.
-: So yes.
And that was a weighing
of all of the different considerations
that were at stake in that case.
And we're not asking you to close the prison systems.
We're asking you to do something more like
what's been done in other overcrowding cases,
which has reduced the numbers.
-: And the Suffolk County with the GLF crowding.
That was not a decision by the court to release prisoners.
That was a consent decree, correct?
-: There have been different ones, but yes,
there was the Charles Street Jail
or whatever it was Charles Street Jail at that point.
There was a consent decree eventually.
Yeah.
-: Okay. Thank you.
Okay.
Thank you, Mr. Dietrick.
You're up.
-: Thank you, Your Honor.
May it please the court, among their press for relief,
plaintiff's request that defendants
being joined from housing any prisoner,
any prisoner in a cell room dorm,
or other living area where they must sleep, eat, or recreate
within six feet of another person.
That is a tacit request
that all inmates be housed in single cells indefinitely.
However, as Judge Allmin found
that would be an impossible request to satisfy
perhaps more to the point,
neither this prayer nor plaintiff's other prayers for relief
are necessary to provide a reasonable response
to the COVID-19 virus.
The department has chosen
to pursue a multitude of other ways
to minimize risk to the inmates
relative to the COVID-19 virus.
One form of social distancing
that the department does do is cohort confinement.
And by that, I mean,
each institution has several housing units.
Each one of those housing units operates
as kind of a mini facility.
Those housing units are islands
they're silos to themselves.
They don't eat with other inmates.
They don't recreate with other inmates.
They don't have any other contact with other inmates.
And what that has allowed the department to do
is one dramatically reduce the risk
to each one of those individual populations.
And you could liken it to families
out in the community sheltering in place as a unit.
But it also allows the department,
were there to be a case of a positive inmate
to do extremely effective contact tracing,
to indicate, find out where it came from,
who might've been a close contact,
quarantine those individuals,
medically isolate the individual
in question.
The idea of these being cohorts is a good thing.
Plaintiff's complaints about double bunking,
but that's a cohort of two.
And as long as your inmate,
you're your roommate
and you neither one of you are positive for the virus.
You're in a very good situation in terms of risks.
One of the inmates in this case,
Mr. Pingeon actually testified to that.
I had asked him do you wear your mask
when you're in your cell.
And his response was something along the lines of,
why would I do that?
I've lived with this guy for a couple of weeks.
I'm not sick. He's not sick.
There's no point to doing that.
Exactly.
There are any number of inmates who are double bunked
or similarly in a situation
where the cohort is two.
The dorm situation is obviously larger
and note the cohort is larger,
but the efforts to keep each one of these units
clean of the virus has resulted in no dorm
in any of these institutions
where there haven't been positive cases
with a positive inmate.
None of the plaintiffs are positive.
None of the affiants are positive.
There's no evidence in the record
that any dorm-residing inmates has tested positive.
And I would suggest that the cohort confinement
has gone a long way towards promoting that.
But that's not all that the department has done
with regard to social distance.
And there's also been the quarantine
of all new inmates
and transfers, the restriction of two facilities
except for staff vendors and attorneys,
the banning of sports,
the closing of gyms,
the banning with nonessential employees
like librarians and teachers,
the closing of the dining hall,
so that the inmates don't congregate
instead eating their cells or in their dorm.
The suspension of group classes,
suspension of programs,
the capping of numbers of inmates allowed
into a day room at one time.
Limitation on the number of inmates
let out of the cell into a common area at any one time.
There's also the factor of inmates
and their responsibility to help contribute
to the social distancing by maintaining distance
whenever possible,
so that there are no bumps or hugs or other touching.
So that inmates wait for quiet times to use a bathroom
or shower or a telephone,
or the email commissary kiosk.
And not in addition to the multitude of steps,
which I won't enumerate now,
but are set forth in the brief,
in terms of other things that we've done,
or the department has done
advisories housing, cleaning, policies,
procedures, PPEs, cleaning supplies,
enhanced cleaning, and disinfecting,
testing of inmates.
We have an increase in testing
in target facilities over time.
Quarantine protocols for positive inmates,
use of masks.
All inmates now have masks,
the steps to expedite medical parole.
The earlier review of home plans,
the setting up of insurance with mass health
and the encouragement of CPCs and PLS
to assist in preparing medical parole petitions,
the awarding of credit
and the creation of programs
where inmates can earn a good time
that they might have lost the opportunity
to earn by virtue of the lockdown is currently in effect.
One other point I'd like to make
is that Judge Allman knows
that inmates may request
a special housing accommodation based on COVID-19,
which Commissioner Mici said she would refer to medical
for assessment of risk and need.
What he didn't include in his findings
was the fact that Commissioner Mici has yet to receive,
nor she is she aware of a single inmate
or a grievance seeking such an accommodation.
The subjective component.
-: Okay.
You're well above your three minutes and 40 seconds.
Why don't you conclude your remarks
so that we can get to the questions please?
-: Yeah.
If this court considers
everything that Commissioner Mici
and the department has done and is doing
in response to the COVID-19,
which response is ever expanding.
I'm not aware of any court that have found on these
are comparable facts
in 8th Amendment violation
predicated on deliberate indifference.
-: Okay, Judge Gaziano.
-: Thank you.
Going to the 8th Amendment
and I think also Article 26 standard
there are of course, two prongs
and you just left with the delivery of different standard,
which seems to me the gravamen in this case.
But the first pong is the objective prong,
which deals with the conditions of confinement
and a substantial risk of serious harm.
I've read a lot of these cases,
all the COVID cases have come down
from various US district courts
mostly involve in ICE detainees.
Just about everyone skips over that prong
because Helen teaches us that it's exposure to danger,
not actual danger,
which is important.
But I'm surprised that in your brief,
you contest the objective prong.
Can you explain to me how this isn't,
how this is not an exposure
to a substantial risk of serious harm,
given the pandemic?
-: I think in the abstract it is,
but I think as applied to the Department of Correction,
as I just described was regard to the cohort confinement,
whether it's addressing inmates
who have not tested positive
or addressing those inmates
who have tested positive
and need to form their own cohort,
and be treated and monitored.
I think--
-: We've got escalated positives, right.
Which is inevitable, correct?
-: Correct.
-: And we have seven deaths, correct?
-: Correct.
And it wouldn't that just by itself
indicate a risk of substantial harm.
'Cause I think people out in the street
would be surprised if I said
there's really no risk of substantial harm.
-: No, the defendants are not questioning
the risk of harm in the abstract.
All I think we're trying to do
is to suggest that the response by the department
and the evolving measures
that we've taken over time has reduced that
arguably to a risk that is no longer of substantial harm.
-: I mean, arguably
that goes to whether or not you're deliberate indifferent
and whether or not
your response has been appropriate and reasonable.
And that's, I think, as I said,
where the rubber meets the road in this case.
Are those are all the questions I have chief.
-: Okay Justice Lowy.
-: Thank you, thank you, Chief.
You just referenced
these people being locked up 23 out of 24 hours a day,
and you know, it's not like we're sheltering in place.
Like families are having family dinners
and watching movies.
It's a circumstance where to spend that much time
like that mental health issues,
physical issues and basic decency issues as well.
And what we've got is a virus that
at least where it's out now,
where MCI-Shirley Framingham
that the treatment center
it's going to be quite a challenge to stop.
So the question is,
if you can't be doing your absolute best,
DOC doing its absolute best
just can't stop the virus in any way,
other than keeping people locked up 23, 24 hours a day.
And if this pandemic goes on for X amount of months
and some people think it'll be longer than that,
is there a point in time where your solution
becomes an 8th Amendment violation?
-: Certainly the lockdown
presents a different set of problems and issues
to the department.
At this point, if you have to make a choice
between those conditions of confinement
to ensure or promote social distancing and not,
we're going to go always in favor--
-: Oh, sure, yeah, absolutely.
You've got to stop the immediate spread.
I understand that.
What I'm saying is
in a long time,
and maybe by longterm,
I might only meet a month
depending on what happens at least three of the institutions
or even longer than that,
does the solution raise such constitutional deprivation
that really the only solution
is to have less of a population?
-: I would say in theory, yes,
duration of confinement by (mumbles).
The longer it goes, the more of an issue it becomes.
So certainly it's not the position of anybody,
but that this is the way of the world,
until the virus disappears.
But what I will say is
the Commissioner's continually assessing the situation.
And one of those assessments in her mind is one,
whether we still need the lockdown
and if we do,
how much longer.
That second question
is a real difficult one for everyone including her.
But you know, at this point I think the department
and the Commissioner is taking it day by day,
understanding that this is not
an ideal situation for anyone.
But yes, it potentially creates another set of issues
that may have to be dealt with down the road.
-: Okay.
That's all I have.
Thank you.
-: Justice Budd.
-: Hi, good afternoon.
So it seems to me that
just based on my limited understanding
of the best practices
to containing the virus, is testing
and testing everyone
and separating out those who test positive
from those who test negative.
And so I'm just wondering,
assuming that's the case,
is there any plans to work towards that goal?
-: Well yes, I think that the issue of testing
is constantly being considered.
Obviously the institution wide testing
that occurred was in response to the outbreak
in those particular institutions.
That's not the only testing that's gone on however.
Other inmates have been tested at other facilities.
For example, if they present as symptomatic.
There are plans in addition to testing
the four facilities, five facilities
that have already undergone testing
to test another one imminently,
Old Colony Correctional Center.
And the one thing I could say about the Commissioner is
we want to know more, not less,
about the size of the problem
and whether there are inmates out there
who might be carriers who haven't been revealed.
So yes, there are considerations ongoing
as to how much to,
and where to test.
And Your Honor, I think it was Your Honor's point that,
testing is a snapshot in time.
It only serves your purposes for so long
and that creates more issue,
but it certainly is information that the department wants
in order to do their planning
going forward in terms of lockdown,
in terms of allocation of resources et cetera.
-: I mean, if you don't have testing,
what's the long-term plan, right?
-: I think you said,
just wait until it goes away.
I think the whole problem stems
from not being able to stop the spread
and the only way you can stop the spread
is by separating out the people who have it
from those who don't.
So this particular point
is not a legal one.
It's how do we take care of this problem
so that keep the people who are detained
are unexposed to the virus,
people who are out and about can protect themselves,
people who are detained can't do that.
And so, I would love a test to know that I'm not positive
or that I'm carrying the antibodies.
I can't get one,
but I can try to protect myself.
My concern is the people who can't protect themselves.
I guess my big question is
how is this going to be fixed without testing?
And is that something anybody has been thinking about?
I mean, if nobody else needs testing these people do,
these people do.
Do you know what I'm saying?
-: I do Your Honor.
And again, it's the decisions
about testing to some extent
are dictated by where the outbreaks are.
-: Well, that's my point.
That's my point, that's not enough.
Right?
Because as you said, that just gives you a point in time.
What you really have to do is find out
if somebody's carrying it without symptoms
and put that person in a place
where he or she can't transmit the virus,
that's the only way you're going to be able to solve it.
So I guess--
-: Absolutely Your Honor.
And we have two groups of institutions.
We have the 11 out of 16
for which nobody has tested positive.
And I assume tests have occurred at those places
and have come back negative.
So it raises the issue,
who gets the test and how often,
and under what circumstances
symptomatic patients, asymptomatic.
Obviously it makes much more sense
to focus your efforts on institutions
where there's been an outbreak
where there presumably
have been close contact inmates
who may be symptomatic or asymptomatic
and address that situation.
You know, again,
for the institutions that have had no positive tests
that we're in the fortunate position,
that if there were a positive,
it would be an individual presumably or two individuals,
and the ability to manage that situation
and that risk is much easier
than it is at the institutions
where the outbreak was greater in number.
-: I don't have any other question.
-: Justice Cipher.
-: Thank you.
Good afternoon.
I'm following up on some of the testing questions
of Justice Budd.
What did you say the criteria was
for testing an inmate at this point?
-: Certainly if he's symptomatic
My understanding is an asymptomatic inmate
would not ordinarily be tested.
-: I'm sorry, go ahead.
-: Well, I was just gonna say again,
I think the department looks at trends
which way numbers are going
and where it makes the most sense to test.
-: Do you at the moment if you know,
have limitations on how many tests
you can get?
-: I'm not aware of any limitation.
-: Okay, just curious,
'cause I know there's been some shortages someplace,
whether the prisons have that same problem.
And then with regard to medical treatment
how does an inmate seek medical treatment?
-: Currently?
-: Yes.
-: Again, we have two groups of inmates,
those who may be in units with one or two person cells.
And then inmates who are in dorms.
I think in either case actually
now that I think of that in either case it doesn't matter,
but the process is that an inmate fills out
what's called a sick slip
and submits it and describes why he wants to be seen.
And it goes to medical and medical reviews it
and then takes appropriate action.
Those sick slips are available to all inmates
and all housing units.
-: Do you know how long it takes for them
to get an appointment if they're seeking one?
-: I don't, I think it depends
on certainly the complaint.
-: Just how acute the problem is for the inmate.
Obviously there's triaging with the medical vendor
but I'm not aware of inmates
there've been long delays
in inmate accessing medical care.
-: One question related to what Justice Lowy asked,
I'm looking at it from a slightly different perspective
recognizing this could go on for a long time
and that you're locked down situation is difficult for you,
for your officers and your staff,
as well as for the prisoners.
How long do you think that can go on
before there is unrest?
-: You're asking for a personal opinion
and I'm not an operational guy.
-: Okay.
-: I'll let you off the hook then.
-: I do know that climate is certainly something
that's monitored throughout institutions.
And as far as I know--
-: It would just seem to me that some point
I knew you were talking about
a lot of things to balance,
including not letting everybody get infected.
But at some point it would seem to me
the balance might shift
and that the risk of the infection might be less
than the risk of other problems.
And I was just wondering
approximately when that could happen.
But that might be an impossible question to answer.
-: Your Honor,
just on the issue of testing.
I can share with you that we have tested 1500 inmates,
and those tests came back asymptomatic.
We've tested inmates who were asymptomatic.
So it's not just inmates who--
-: Not just people, his symptoms.
-: Right.
-: Right. Okay.
And then one final question, and that's just,
do you know how many of your inmates are being held for,
or doing a sentence for nonviolent offenses?
-: I do not Your Honor.
I think most of the statistics are could be available,
but they're not.
I'll look at the DOC webpage, they might be on there.
Okay. Thank you.
I have no further question.
-: Justice Kafker.
-: So my question again,
relates to deliberate indifference,
but in a different context,
We're battling a disease that keeps changing
and you have these dramatic outbursts.
And to your credit,
this has been managed to this point,
but do you also have contingency plans
if one of these institutions,
it starts raging through there,
people dying as we've experienced
in some of these nursing homes.
Are their plans in place?
And I'm not asking the right
from the perspective of being a super prison wardener,
I'm asking in terms of measuring whether there's planning.
So there's not deliberate indifference
in case this blows up quickly
in one of your institutions.
-: I think the short answer is absolutely
there are plans for just about every contingency.
-: So the treatment center for example,
is one where there's,
what percentage of the inmates have COVID there,
the treatment center?
-: I believe the number of positives.
We just recently did the testing there.
We did mobile testing,
and that was where every inmate at the treatment center
was offered.
There were 460 tests done at the treatment center.
There were some 74 positives.
So if for example,
you do have sort of a tremendous outbreak.
There's some contingency plan in place
to manage that.
And do we have that,
and do we have the contingency plans in our records?
-: I do not think you do Your Honor,
but yeah, we have one of the planning pieces
is to identify quarantine areas throughout the department.
And my understanding is that certainly as of now
we're not having a dramatic event,
but we are well within our capacity to quarantine.
Any measuring tool requires quarantine.
-: There was one of these catastrophic outbreaks,
like we've seen maybe in other states,
I can't remember there's something going on
in Ohio or somewhere else,
there was a capacity to move inmates to other facilities
or some secure area to manage an outbreak.
-: I would say yes,
but as to the treatment center,
going back to my point about cohort confinement.
If an inmate test positive he's quarantined.
If an inmate is a close contact,
he's quarantined.
-: My focus is,
we read about these outbreaks,
this various facilities where a significant number of people
are dying very quickly.
And I'm just trying to make sure,
'cause this is a moving target we're dealing with.
I don't see any deliberate indifference here,
but part of measuring that is,
are you prepared for some kind of outbreak
and sounds like you are,
but we don't have in our record what those plans are.
No, but I would also just add on the testing Your Honor,
the plan is to test 10,000, do 10,000 tests.
And that would be basically
more of an all-inmate's via mobile testing.
And so again, that would give us you know,
even more information than we have now.
But as to the treatment center,
yes, the incidents of positives down there,
that was actually the first facility
where an inmate or patient tested positive.
And so we were kinda playing catch up there a little bit,
but I think now currently
the department is on top of it
and has the capacity to quarantine any inmate
at the treatment center
or any other inmate obviously,
you don't know what the size of the outbreak would be.
If 7,400 out of 7,400 inmates
suddenly tested positive,
I could see that being a problem.
But I think the management of the positives
and the close contacts goes a long way
to ensuring that that sort of an outbreak
wouldn't happen in the department.
-: Thank you.
That's all I have (coughing).
-: I've got some questions actually was reviewing
the special master's word from yesterday.
And based on that at least,
the DOC has done just 19 tests of inmates
who are not at the mass treatment center,
surely or Framingham.
The expectation that you're going to do more tests
from individuals who are not at those three facilities.
-: Yes, Your Honor.
The plan is to do, I'm sorry.
-: Go ahead.
-: Yeah, the plan is to do 10,000 tests.
-: With regard to the lockdown that was mentioned,
what is the longest lockdown that DOC has ever had?
-: I don't know.
-: Have any sense of months or years.
Has it ever gone to a year?
-: It might have Your Honor,
certainly I'm not aware of any lockdown
that has occurred for health reasons.
Usually if there's a lockdown
it's specific to an institution.
But I think there may have been some lockdown
that lasted a month.
-: Okay.
But potentially, we're waiting for a vaccine
could be a year or more.
So is there a view
that you can't sustain a lockdown
for the entirety of the pandemic?
-: I think it's a way of cost and benefit
between promoting health,
preserving the health of the inmate population
and subjecting them
to these particular conditions of confinement.
Trust me when I tell you, (laughs)
nobody thinks this is an ideal situation.
-: I understand that--
-: The view is that it's a necessary one.
-: I understand the challenge.
I'm turning to page 12 of Judge Allman's findings.
And what he writes is that
the Commissioner believes
she's doing the best, not she.
He believes that DOC is doing the best
that it can to manage a crisis,
given the physical layout of facilities
and the inmate population.
And she also agrees that DOC
should be doing what it can
to reduce the prison population consistent with law
and appropriate release decisions.
Tell me why DOC should be doing what it can
to reduce the prison population.
I would say that the answer
is fewer inmates creates fewer problems,
creates greater space between inmates.
The department does not question
the value of social distancing.
Although I would suggest that six feet
is kind of an arbitrary number
and it doesn't represent constitutional minimum,
but it's certainly something to strive for.
If the Commissioner had fewer inmates to manage
in all respects her job would be an easier one.
Would be arguably more beds.
Again, I come back to the issue of
if inmates have an underlying medical condition
and collection officials are persuaded
that that warrants
given the extent of that medical condition
or the age, some sort of a housing accommodation.
The department is receptive to that
after the input of the medical vendor.
I know one of the problems in New York was,
and this was in a detainee case,
but inmates were claiming medical issues.
And it turns out that one person was a malingerer
and another person had HIV,
but it was well controlled
and that wasn't considered by the court
to be a sufficient reason for release, et cetera, et cetera.
So the point being these are highly particularized,
arguably decisions to be made
based upon a variety of factors concerning the inmate
and the department is prepared to do that.
But as I indicated in my opening statement
nobody's asked the commission to do that yet.
-: I want to follow up on that
'cause I know at pages 15 and 16 of your brief,
you said that there was one error
in what Judge Allman found.
And I couldn't quite understand what the error was.
Judge Allman wrote that
an inmate may request a single cell
if the medical staff determines
that it would be medically appropriate.
Is that a correct statement?
-: I think the slight misstatement
was what you said was
inmates may request a single cell for isolation.
We wouldn't characterize that as isolation.
It would be isolation connote
something other than being a general population inmate.
And that person would certainly
absolutely other circumstances
would be a general population inmate.
So it was just a quibble
over the use of the word isolation.
-: Okay. I'm just trying to understand then.
So let's imagine that you have somebody who is say 65
and requests a single cell
because they say they're at an age,
which is particularly vulnerable.
Let's make the person 70,
where we know that the rates of death are higher.
And that person requests a single cell.
And of course that person is 70
and they have other medical issues.
Are there single cells for those persons
if they make the request
and the doctor says, well, yeah, he is 70,
and he does have some issues.
Are there enough cells to allow those requests
to be honored?
-: If the question is,
are there any open single cells?
I'm not aware that that's the case,
but inmates don't get to choose their housing.
And if there wasn't a single cell
and this individual medically needed it
a housing reassignment certainly could be made.
I would also come back to the point Your Honor,
that if this individual
appears for all intents and purposes to be virus free.
And there's another inmate
who also over an extended period of time
is shown to be virus free.
There would not be a problem I would think
with putting those two inmates together
in a double cell.
There would be a cohort of two, varies for the inmate.
But I mean, when the Commissioner said
that having fewer,
as you described,
having fewer people makes life,
makes it allows her more options.
I assume one of the options is that you'd have
a greater availability of single cells
for individuals who may be at risk
either because of their age or their medical condition.
Is that a fair statement?
-: I think that's a fair statement.
-: Are any individuals coming into DOC custody
in the last month?
-: They are coming in.
My understanding is that the numbers are lower
which helps to explain
how fairly dramatically our population has dropped
between the lower admissions
and the people getting out.
But those people who come in
are immediately quarantined for 14 days.
-: Do you have any sense
of how many have come in the last month?
I'm just trying to get a sense of what the average,
I mean, I have data as to the average releases,
and the average admissions in 2018,
which is the most recent data that's publicly available.
I might ask, I probably will ask
for 16A letter for you to give us the data
as to the monthly admissions and releases
up through the present
because there's a 4.4% reduction in DOC custody
that's occurred since we issued the order,
at least in the CPCS.
But I've noted from at least based in 2018
that each month,
basically 7.5% of the total population of DOC is released.
Of course that's offset by admissions,
but I'm struck by the fact that
if that ratio is roughly the same,
and if admissions are down to very few,
I'm just wondering why there's only a 4.4% reduction.
Can you shed any light on that
or that's something we need to do in the 16A letter?
-: I personally can't Your Honor,
but we're happy to respond by letter.
-: Okay.
And finally, I was looking to the last part of your brief
that you filed it last night
and then I reviewed this morning
and I'm a little bit confused.
You don't cite Brown versus Plata in your brief.
And of course there the US Supreme court found
that if there is overcrowding
if that is deemed cruel and unusual,
then the court has the authority to order in this case,
California, to reduce the population.
Put aside for a moment,
whether or not on the merits we would do that.
Let's assume that there would be a finding
that indeed under these circumstances
that the plaintiff alleges
there is functionally overcrowding
and that there is a constitutional obligation
to reduce those numbers.
Is it your view that the court
does not have the authority
to essentially tell Massachusetts
that as the Supreme Court told California
to reduce the population
and figure out how best to do it?
-: Two responses to that Your Honor,
just with regard to the Brown case that,
as has already been noted
involved a 15 years of litigation
and the failure of California
to obey orders from the court
requiring continuous judicial intervention.
But the remedy that was
that they came up with in that case
was a result of a federal statute
that authorizes the reduction as a remedy.
And it also required as I'm sure you're aware
a three judge federal panel to weigh in on that.
So the other point I would simply make is
if theoretically the court were to find
a constitutional problem,
there may be a remedy not apparent
short of releasing inmates to the street
that might solve the problem.
I don't--
-: Let me ask you,
let me put a case outside of this.
Let's assume we were in a situation comparable to California
in which Massachusetts had way too many inmates
to permit any decent quality of medical care
or mental health care.
But the matter was brought,
not in a federal court, but in the state court.
And the claim was under Article 26
and not of the 8th Amendment,
is is your view that this court
would not have the authority
to do what the US Supreme Court did
in that circumstance?
-: I think this court would have the authority
to identify the violation
and leave it in the first instance to the in this case,
the department to fashion a remedy.
-: If the remedy that the court determines is
the only remedy that is viable,
which is what the US Supreme Court ultimately decided
is to reduce the overall population.
Is it your view that this court
would not have the authority
to do what the US Supreme Court did
and say in Massachusetts,
we're not going to tell you how to do it.
But you've got to reduce the population
to 137% of designed, really capacity.
-: I don't have a good answer for Your Honor.
Certainly the department works
within its statutory authority
and as to the power of the court
to issue an order like that,
it would be unprecedented, of course
certainly in Massachusetts.
And understanding it's a hypothetical,
I just don't think we're there yet.
-: Okay, I have no further questions.
-: Justice Lenk.
-: Yes, thanks.
No one returned to the testing issue,
cause I'm just so confused about this.
First of all I guess my question is,
are these tests available to the department,
I mean, you can do as many tests as you want?
-: I believe so, yes.
-: And these are the standard tests
that have been authorized
as valid as predictive of whether or not
somebody at diagnostic tools.
These are the good test,
in other words.
-: I believe so.
I have no information to the contrary.
-: All right.
So it's been that way for a while that you've been able
to have access to an unlimited number of tests.
Unlimited in the sense that
you could in fact test every prisoner?
-: Well, I can be available with the testing
has been more recent.
And so the testing is evolving over time
and it's also crescendoing.
-: I just wanted to know if you had it available
for any period of time before this.
-: Not--
-: In the last month say.
-: Yeah, not at the onset of the pandemic,
but we certainly understand the value of testing.
And so you've had it available for the last month or so.
-: I would say within the last month.
All right.
Could you put that in the 16A letter to when testing
and availability was really determinative?
-: Sure. -: Okay.
And then after that are the tests voluntary
or are there involuntary testing?
-: They are offered testing.
Experience has shown that a large percentage
of the inmates at these institutions
have chosen to be tested, some have not,
and they're not forced to do so.
-: Okay.
-: And then in terms of West wearing his mask,
I gather that the Commissioner
doesn't think it's within her authority
to make people wear masks.
-: I think that's what she attested to in her affidavit,
she does have the authority
to limit the movement of inmates
who refuse to wear their masks.
If you come out of a cell without a mask,
you're going right back.
-: Okay.
So you should have any authority
to make them wear the masks,
but she can punish them more
or in the alternative behaviors if they don't
limit their behaviors if they don't.
-: She can certainly restrict their movement.
Discipline has not been thought
to be a good idea at this point.
-: Right. Okay. All right.
-: Cajole, persuasion.
-: There's persuasion yeah.
Section 35 inmates, prisoners,
I don't know what to call them anymore
in Section 35, people.
You agree that the position
has been the number of people being sent to your facility.
Do you know why?
I don't,
I assume maybe
I can't get into the heads of the judges
who would do the sentencing, Your Honor.
Maybe--
-: You don't really consider this a sentence, do you?
Not a chance, I'm sorry.
Committed.
And they just feel that
given the current circumstances
that's not something they want to do,
but I don't know any particulars.
-: So you don't know whether it's a criteria of some sort
whether or not there is available elsewhere
facilities for the (mumbles).
-: I think as Mr. Pingeon testified that is the criteria.
I'm not intimately familiar with the Section 35 process,
but I think if a judge can find a place
other than MASAC,
that would take an individual and provide,
the necessary detox
and other treatment that that's where they would go.
And what kind of less last stop.
-: Okay.
I don't think I have anything else, thanks.
-: Any further questions for anybody else?
-: I do.
I have a question.
It's Justice Budd.
I was under the impression
that tests were not available
or that you didn't have an unlimited supply of them.
It sounds like, well,
I'd like you to just confirm,
that you have access to as many tests as you need.
And if that's the case,
I'd also like to know why the department
isn't just testing everyone
and separating out the people who are positive
instead of taking the chance
that there's asymptomatic transmission going on.
It sounds like there'd be an easy way to fix this
if you actually have access
to all the testing that you would need to do that.
-: I don't think we had an unlimited supply of tests
as of a couple of weeks ago.
And the number that I shared 10,000,
I don't think they're currently in our possession.
-: So you don't have to guess,
if you could get that information to us
in the 16A letter I'd appreciate it.
-: Absolutely.
-: I think what we'll probably do
is provide you with a letter
since we would vest your various things,
we'll try to put it in writing.
So what we're asking to do is clear.
So you can await an order from Kenneally
either today or tomorrow.
Any further questions
and actually I could have one.
In response to questions from Justice Lenk,
the Commissioner said she didn't have the authority
to require inmates to wear a mask.
That was out before the Governor's order mandated masks.
Does the Governor's order change her authority?
It's a question of whether it would be prudent
to seek to enforce it,
but does it change her authority?
-: I'm sorry, Your Honor,
I missed the last part of your question.
-: The question is,
I believe when she testified
that she did not have the authority
to require the inmates to wear masks,
it was before the Governor
had mandated all of us to wear masks
in circumstances where we can't socially distance.
And my question is,
does the Governor's order change her authority?
-: I would say yes.
She has the power.
With that authority comes the power to discipline.
And you know, for those refusals.
So what does she wields
that acts are not at her it's her call to make,
but yes, I think the Governor's order
changes the landscape in that regard.
-: Any further questions?
And hearing none.
Thank you, Mr. Dietrick.
We'll turn out Mr. McManus.
-: Thank you.
-: Thank you, Mr. Chief Justice,
may it please the court.
The Governor seeks dismissal from this case
because the claims as stated against him
are fatally flawed in at least two respects.
First, there is a complete absence of factual allegations,
affirmatively linking the Governor
to the plaintiff's conditions of confinement.
As a result this is the type of claim,
this type of Section 1983 claims
against the high ranking government official
that the Supreme court rejected
in Ashcraft v. Com.
Second, the relief that plaintiffs seek against the Governor
is extraordinary in its breath.
Plaintiffs are asking this court to affirm that we mandate
that the Governor exercise
his discretionary powers.
Such an order would make the Governor
an instrumentality of the judicial branch
raising fundamental separation
of powers concerns under Article 30.
I want to start by talking about the Section 1983 claim
because as I read plaintiff's opposition to the motion,
they have essentially abandoned
more or less claims against the Governor under state law.
Now there's no vicarious liability under Section 1983,
the Governor can only be sued for his own conduct.
Yet here the claims against the Governor
are based entirely on the powers he possesses
by virtue of his office,
not on anything he has done
to cause a constitutional violation.
And in fact, in all of the 102 paragraphs
of plaintiff's complaint,
there were only three references to the Governor.
Paragraph four, paragraph 25 and paragraph 68.
And the only substantive allegations
relate to comments that the Governor
made at a press conference,
which I respectfully,
we believe that the plaintiffs
had taken out of context and mis-characterized.
This is simply not enough
to establish a causal link between the Governor
and the plaintiff's conditions of confinement.
And this alone requires dismissal of the Governor
as a party in this case.
Turning to the release
that the plaintiffs are seeking.
Plaintiffs are simply incorrect in arguing that
because they've alleged a claim under federal law,
this court has the authority to order relief
in the nature of mandamus
against the Governor.
That's contrary to what this court held in Rice V Draper,
where the petitioner was seeking mandamus
to compel compliance with the federal law.
And the Supreme Court has consistently recognized
that neutral rules
regarding the structure and jurisdiction of state courts
are not supplanted by federal law.
That same reasoning applies here.
The assertion that this court
can effectively co-op the executive powers of the Governor
by ordering him to grant clemency
or exercise emergency powers
or take other discretionary actions is unprecedented.
And it's also entirely unnecessary here
where there are other executive branch officials
that are before the court
who have direct operational authority
over correctional facilities.
Accordingly for all those reasons,
we seek dismissal of all the claims against the Governor.
And with that,
I welcome the court's questions.
-: Justice Gaziano.
-: I have no question, thank you.
-: Justice Lowey.
-: I just have one question.
I understand your point
about the issue of the Governor taking affirmative steps
that constitute executive action
and what limitations Article 30 pass in that area.
But as far as that we have
the parties necessary before us,
within the executive branch,
DLC has taken a position for instance,
with regard to home confinement
that the statute doesn't allow home confinement.
And I won't get into the reasons,
but it's perhaps not a narrow interpretation of the statute.
But if the Governor
within his emergency powers were to say,
well, if there's individuals within X weeks or months
of wrapping up their sentence on nonviolent offenses,
they could have home confinement
then the statutory limitations,
if they're already on home confinement
wouldn't be present.
So if the Department of Correction
is taking a certain view
of some of the means by which
the population might be able to be reduced
such as perhaps,
and I'm not saying they are,
perhaps by way of example earned good time
or furloughed being only able to use in
very specific circumstances.
Wouldn't the Governor have those powers
as part of his emergency powers, this circumstance?
-: Well, Your Honor, I think the short answer is
yes, the Governor has certain emergency powers,
but the way plaintiffs are suggesting
that those be used and their suggestion
that the Governor is an appropriate party in the case,
simply because of those powers,
is really an allegation based only on his remedial powers,
not on anything he's done to cause these violations.
And taking your examples
statutory limitations on Commissioner
or her interpretation of statutory limitations on her,
could likewise just as easily be fixed by the legislature.
And yet clearly there would be problems with this court
ordering the legislature to change the law
and amend statutes.
And likewise,
we think that the same Article 30 problems
arise with respect to remedies
that would require the Governor
to exercise his executive power.
-: Thank you.
That's the end of my question.
-: Justice Budd.
-: Hi, just to follow up on that.
So you're saying that there's nothing
that can be done to compel the Governor
to exercise his executive power.
-: Your Honor, this court's decisions
and specifically the Rice decision was most explicit.
This court and the Massachusetts State Judicial System
does not order a form of mandamus relief
against the Governor.
In other words while it may enjoin a certain activity,
if it does not affirmatively mandate that the Governor,
as opposed to other executive branch officials
take affirmative action.
So we do think that under this court's case law
that authority does not exist.
However, it's also not necessary in this case
given that you do have other executive branch officials
who are before the court
and who have direct supervisory authority
over the conditions of confinement.
-: Okay, thank you.
-: Justice Cypher.
Thank you, I have no questions.
-: Justice Kafker.
-: Are people having trouble?
-: Sorry.
-: We have trouble hearing.
Justice Kafker we're having trouble hearing you.
-: Now exiting Barbara Lenk.
(device beeps)
Name not recorded.
(device beeps)
-: Okay, we'll have to wait.
Something appears to have happened
with regard to the line.
-: Now joining.
(device beeps)
-: Hello.
-: Justice Kafker we have you back.
-: Yeah, I don't know what's going on,
but I keep periodically,
that's the second time really playing it out.
-: Justice Lenk, you're back too.
-: Now joining.
-: Barbra Lenk.
(device beeps)
-: I guess we're all here.
-: Justice Kafker you may proceed.
-: Okay, I did not hear Justice Budd's questions.
So you know, if I repeat them
and I apologize but
my question has to do with,
if this were a federal court,
would it make a difference?
Would a federal court have powers
that this court doesn't have
in regard to the Governor?
-: Well, Your Honor,
it wouldn't make a difference
with respect to whether the 1983 claim
had been asserted here.
In other words, whether it's been adequately pled,
but a federal court is not operating
under the same separation of powers limitations
as a Massachusetts judicial branch is.
And therefore I think the rule from the Rice case
and from the Town of Milton case,
and so on about the courts,
not having the authority
to affirmatively mandamus the Governor.
I don't believe that rule
would have any application in federal court.
-: So even though we're enforcing
a federal constitutional rights or a federal statutory right
our separation of powers
and Article 30 powers
limit our ability to order declaratory judgment or mandamus.
I see there are clear body cases
that state law.
Rice is a very old case.
I haven't read the Milton case.
But it's your understanding that
even when we're applying federal law,
is Milton, an old case, or a more recent case?
-: Milton is from,
this could be here for you,
1993, so it's more recent.
-: Okay. We'll read it.
The other ones from like 1900 or something.
It's a 200 Mass case, right?
-: Yeah.
-: Correct.
But so are our sort of
state constitutional limitations apply
even when we're enforcing federal statutory
and constitutional rights?
That's correct.
And that's clear in the case law.
-: Well it's one of the issues
that the plaintiffs here have disputed.
However, we believe it is clear in the case law
and specifically while it is an older case,
the Rice V Draper case, and it was from 1911.
What the petitioner there was seeking
was to compel the Governor
to comply with the federal statute.
So there was absolutely a federal statutory right
at issue in that case.
And yet that made no difference in that
that's where this court
most clearly articulated this rule.
-: I did a quick search in the last couple of hours
to see if there were any 1983 cases against Governors.
It doesn't look like there's anything out there.
At least I couldn't find anything in last couple of hours.
Were you able to find
any Section 1983 cases brought Governors?
-: There was very limited case law that with the applicable.
So I would agree with that.
There is some Supreme court law
not specific to Governors
that cited both in the plaintiff's opposition to the motion
and in a proposed reply brief
that we had submitted attached to a motion for leave.
Those cases involved 1983,
but not specifically this rule
which I understand is not unique to Massachusetts,
that prohibits mandamus of a Governor.
-: They're often relying on federal,
they seem to be relying
on federal district court cases a lot of the time,
which is a whole different ball game
than a state ordering the state Governor
to do something, right?
-: Correct, correct Your Honor.
There is simply not the same Article 30 problem
that arises in that context.
-: Thank you, that's all I have.
-: Chief Justice Gants.
The case of Brown versus Plata
was after all Governor Brown, was it not?
-: It was Your Honor,
but again, the point's been made by attorney Dietrick.
That was not a 1983 case.
And so there were a couple of distinctions
between that case and this one,
it was in federal court.
And so you don't have the Article 30 concerns that arise
when a coordinate branch of government orders,
the Governor what to do.
And secondly, it was not a Section 1983 case,
but it was a case under the PLRA
and the extraordinary relief that was ordered there
in order to release prisoners with the Governor as a party
was only available as a matter of federal law
under the PLRA.
And after a very comprehensive procedures
had been followed before it got to that point,
the procedural history in that case
was obviously lengthy
culminating in the convening of a three judge panel,
which is the only procedure authorized
to issue that kind of release in federal court.
-: So let me make sure I understand
the full scope of what you're saying.
Is it your contention that if the Governor
were to violate the Massachusetts constitution,
this court would not have any authority
to order him to stop?
-: Well, Your Honor,
I think it depends on the nature of the order
that's being made.
And there is a distinction
between relief in the nature of mandamus
and what's more typically
referred to as a preventive injunction.
So in other words if the court
is simply seeking to enjoin the Governor
from taking some action that if taken,
would violate the constitution,
then the rule prohibiting mandamus
against the government wouldn't apply.
But where the court
is ordering essentially a change in the status quo
and in ordering the Governor
to take an affirmative step to change the status quo,
that rule does apply.
And I point to one of the cases in this line
is the Limits case and it involved,
an initiative petition that was in the legislature
and was effectively stalled in the legislature.
And the plaintiffs sought a petition for mandamus
to compel the legislature to act on that.
Now the requirement to act on that
was required by the Massachusetts constitution.
And that did not change the outcome,
which was that court held,
you cannot mandamus the legislature.
Not withstanding the fact that their conduct
may have been in violation of the constitution.
The court noted they were accountable politically
for their actions.
-: Well, you also spoke about the declaratory judgment
as exempting the Governor,
but it's your position that if the Governor
were to violate the Massachusetts constitution,
we could not declare that he had done so?
-: Well, I think that the declaratory judgment act,
the statute explicitly exempts the Governor.
So to bring an action against the Governor,
seeking a declaratory judgment is not permissible
into the statute.
Now, if there are constitutional violations,
then there's an appropriate party before the court,
the court of course retains the authority
to declare that there is a constitutional violation,
but the Governor is not an appropriate party
to such--
-: What if it's the Governor who's done the violation?
What if the Governor were to order
some suspension of habeas corpus
or something akin
that would be arguably probably plainly unconstitutional?
Are you or is the Governor arguing
that Massachusettes Supreme Judicial Court
could not say Governor,
we declared that what you are doing is unconstitutional
and we order you to stop.
-: I think, in your example
the release that will be available to stop the Governor
from proceeding with some action
that will be unconstitutional,
would be injunctive relief or equitable relief,
not in the form of mandamus
because it's not affirmatively asking him to do something.
You know, such injunctive--
-: Relief versus mandamus.
I mean, it would be an injunction to say,
injunction can say, stop doing something,
or it can say you shall do something
injuctions go both ways,
-: Correct, Your Honor.
And the mandamus prohibition,
as I understand this court's cases applies to an order
that affirmative it requires the Governor
to take some step.
-: What if he issued an order
that would permit that would suspend habeas corpus,
but this court could not order him to vacate that order?
-: I think that would be in the nature
of a preventive injunction,
not mandamus to say you've taken a step,
we find unconstitutional,
and we're going to enjoin you from enforcing that order.
I don't believe that would fall
under the same rule that's announced in Rice
and Town of Milton and those cases.
-: But just to make clear,
the Governor was not arguing
that this court does not have the authority to declare
that what he has done is unconstitutional.
Where it's found unconstitutional, does he?
-: The governor's position
is that the declaratory judgment statute
to the extent of cause of action
is certain under that can't be asserted against him.
-: My question,
is that the Governor's position
that if the Governor were to commit an act,
which would be in violation of the constitution,
that this court would not have the authority
to tell him to stop doing it.
-: Your Honor, I think it would depend on
what the order of the court was
in terms of giving an affirmative requirement
to do something rather than just stop doing something.
Is it demanding that the Governor
change the status quo versus not change the status quo?
So I don't mean to be evasive--
-: But you still are (laughs).
I just said the answer was it would be
to stop doing so to basically you were,
we would declare
that what you were doing is unconstitutional
and you have to stop doing it.
Is that something that this court
does not have the authority to do
if the Governor were to engage
in unconstitutional conduct?
Is the Governor contending
that he is beyond the authority of the court
to order him to not do something which is unconstitutional.
-: No, Your Honor,
the court could order the Governor to cease
from an activity that it deems unconstitutional
in order to stop an activity that it deems unconstitutional.
-: Justice Lenk.
-: I'm all set thank you.
-: And are there any further questions?
-: Yeah, I have follow ups on
there's a whole body of law
designed to avoid this type of constitutional conflict
that the Chief is raising, right?
Both federally and state, correct?
One would look to
whether the Governor acted directly as opposed to,
and it needs to be specific
and direct action, correct?
-: Correct.
-: And this doesn't even come close
to meeting that requirement, does it?
-: No, it doesn't.
And in fact,
we think it's so far from that
that there's not even a claim stated
against the Governor under 1983,
but again, in these circumstances,
the allegations are not that
the Governor is doing something,
but that the conditions of confinement,
which are under the direct supervision
of the Department of Corrections are unconstitutional.
-: So the government has several steps removed.
-: In that respect
that's the second part is what we're supposed to look at.
Whether we're looking at different officials
where the mandamus and declaratory judgement acts
are appropriate.
And if those would be the officials taking the action,
again, you avoid the constitutional problem
by focusing on that, correct?
-: Absolutely the court would issue a declaration
or if appropriate injunctive relief
to those executive officers,
not to the Governor.
-: And third that we need to be extremely careful
when we're dealing with policy types of disputes
to make sure that we don't cross over
into the Governors area, constitutional authority.
Right?
-: That's correct.
And that's, I believe why this rule
has evolved under Article 30.
-: And is there a real danger
that we aren't doing just that here?
-: I think yes, Your Honor,
the danger is particularly acute here.
Given the types of powers that plaintiff has identified,
the Governor is possessing
that they would like to see exercise.
If these are core executive discretionary power.
When we talk about the clemency power,
we talk about emergency powers
and there is a real danger to a court ordering
that those have to be exercised in a particular way.
-: So there's in your view,
there's a much greater danger of us intruding
on the Governor's constitutional powers
in the government crossing over
into a constitutional violation here?
-: Certainly in the context
that's before the court right now, yes.
-: Thank you, I have no further questions.
-: Any further questions of any justices?
-: All right.
-: I will turn to Mr. Burn
on behalf of the chair of the parole board.
-: Thank you, Your Honor.
May it please the court
on behalf of Gloriann Moroney,
the chair of the Massachusetts Parole Board.
The plaintiff's complaint,
doesn't plausibly state,
any claim for relief against the parole board
because the parole board did not create
and does not control the conditions
in correctional facilities.
Plaintiffs have conceded that the board
is not responsible for civil commitment
under Chapter 123, Section 35.
And they don't challenge the most as on counts three,
but they do seek relief from the board
under counts one and two,
alleging that the conditions
which render social distancing difficult to maintain
in prisons and jails
should be deemed to constitute
cruel and unusual punishment
violation of the 8th Amendment and Article 26.
However in order to state a valid claim
against the parole board,
the plaintiff must allege
that the chair is a prison official
who bears responsibility for conditions,
which fall below constitutional standards,
that those conditions present excessive risk,
inmate health and safety and contraventions,
contemporary standards of decency.
And that the board is active with deliberate indifference,
to the risk of harm,
to which the plants are exposed.
They haven't made
and cannot make such a showing.
The board is not a prison official,
did not create and does not control the conditions.
And so dismissal is appropriate.
What the plaintiffs are really urging
the court to do is to use the parole process
as a relief valve to protect inmates from exposure to risk.
But that's not what the parole process is designed to do,
nor is it what the parole board is empowered to do
under the statutory and regulatory framework.
What the plaintiffs are asking us to do
is to disregard that framework for parole decisions,
contravene the standards
set by the legislature in Chapter 127, Section 130
and the related provisions
and deprive the board
of its broad discretionary authority
as an executive agency,
they want to overhaul the parole process
and compel the board
to facilitate the immediate release
of thousands of inmates
before their sentences are complete.
And in many cases
before they're eligible for parole
by presumptively granting parole.
Unless there is clear and convincing evidence
that an inmate is certain to commit further crimes,
that they cannot live at liberty
without violating the law
to make such an order
would violate the separation of powers under Article 30,
it would contradict existing law
and it would grossly exceed the court's equitable powers.
This public health emergency is affecting us all.
And the parole board does not disagree
that it's appropriate to take measures
to mitigate the risk of the spread of COVID-19
in correctional settings.
That part of the response
and that part of the response,
include taking reasonable steps
to reduce the incarcerated population
within the scope of this discretion
is an executive branch agency
subject to statutory and regulatory standards,
and consistent with the sentencing imposed by the court.
The board has taken and continues
to take aggressive steps to respond to the crisis.
Many of those efforts
are described in the Superior Court findings of fact,
but we cannot simply open the flood gates
and hope for the best.
The board must abide by its statutory obligation
to ensure that those who are released into the community
before their sentence has been completed,
do not pose a substantial threat to the public.
That there is a reasonable probability
that the prisoner will live
and remain at Liberty without violating the law
and release is not incompatible
with the welfare of society
and that they're properly equipped.
The prisoners are properly equipped
via appropriate conditions and community supervision
to successfully be integrated into society.
That is the board's purpose,
and that's what they are designed to do.
They should be allowed to serve that purpose
without unnecessary and inappropriate interference.
And we urge the court
to grant the board's motion to dismiss.
-: Okay. I'll turn to Justice Gaziano.
-: Thank you, Chief.
Just one question.
I understand the discretion issue
in the statutory plaintiff authority for the parole board,
but where we defined an 8th Amendment
or Article 26 violation
that will require reduction of prison population,
Isn't the parole board a necessary party in this action?
-: I think that the parole board
would only be a necessary party
to the extent that the parole board operating
within its framework could alleviate that problem.
And what they're being asked to do,
the function that they're being asked for
by the plaintiffs to reduce the prison population
is not to apply the standards
that they are authorized to apply,
but to apply a completely different set of standards,
which they urge the court to simply fashion.
And then use the parole board
as the tool to implement those releases.
Those are not parole releases under the statute.
-: So let me ask you,
the parole board is under the statute.
So we had the prior litigation
and there was the issue of you know,
the 300 people awaiting parole.
And then to the parole board's credit that stepped up,
we've had more hearings,
you've had more releases.
Now the parole board is a party
to the second set of litigation and I'm wondering,
are we still going to get the parole board
to continue to do its job
until it admits this crisis
into reduce the prison population within its mandate,
were they not part of the litigation?
-: Absolutely.
And they've made significant efforts
within the scope of that framework
to accelerate the process.
They've released 277 people on parole in the last month.
They've cut the time
between the approval of parole
and the issuance parole permits in half
from 14 to seven days,
they held over 300 parole hearings.
They've approved over 300 housing plans.
They've entered into contracts
with the Massachusetts Lions for Silver Housing
to provide up to 150 beds
for up to eight weeks at the board's expense.
They've authorized additional examiners.
They've authorized examiners
to consider COVID-19 as a factor
in determining whether or not to approve early eligibility
for patrol inappropriate cases.
They're not ignoring this
and I'm not suggesting that parole
doesn't have some role to play
in the reasonable efforts
by the executive branch of government
to respond to the problem.
What I am saying though,
is that they can't be used
in the context of this litigation as the tool,
by which the judiciary orders
overhaul of the parole process
in order to alleviate the problem
of perceived "overcrowding",
in the context of the social distancing measures.
-: All right.
Thank you.
You've answered my question.
-: Thank you.
-: Justice Lowy.
-: I have no questions, thank you.
-: Justice Budd.
-: I have no questions.
-: Justice Cypher.
-: I have one,
you may have answered it
and then they had missed it already.
And in the statement of joint statement of facts you state,
it stated that the parole board held 259 hearings
between March 19th and April 17th.
Was this an acceleration of your typical schedule?
-: Yet, I believe that,
if you give me one second.
-: Sure.
-: I apologize, I'm looking at the wrong thing here.
I believe there is an indication
with the normal rate hearing is in the statement of facts.
I may be mistaken on that.
But it is my understanding that
that is a significant increase
from the normal rate at which these hearings are held
and they've also gone to considerable lengths
to ensure that they can conduct these hearings remotely
and so on,
which normally would not be the case.
The only sticking point, I think,
has been in regard to the hearings for life sentences,
because in those cases,
there are statutory requirements
calling for public hearings
and victim impact statements and so on,
which as a result of the COVID-19 pandemic
have been impossible to conduct,
but for everyone else,
they've certainly made efforts to conduct
as many hearings as they can,
as quickly as they can to work with the CPCS
and others to ensure that prisoners
who are approved for parole
can get their home plans crafted and approved
as promptly as possible,
and to get them released
as soon as reasonably possible under the circumstances.
-: Thank you.
I have no further questions.
-: Justice Kafker.
-: Just a little confused how you're,
I understand you're obviously not responsible
for the conditions in the prison,
but if there were a compelling need
to shrink the prison population
and you were not acting consistent with action,
telling me that would be different, right?
You'd still be on the hook,
even though you're not running the prison system.
Right?
-: I don't believe so.
-: I may not have articulated that very well.,
Say we found that given the Covid crisis
raging in a prison that they needed to
shrink the body,
and there were people right on the,
right on the verge of parole
and you sort of were sitting on your hands.
You'd still have no responsibility for that.
I'm confused.
-: I think that the point I was trying to make
is that the parole process
is not designed to protect inmates
from exposure to harm inside the prison
and provide a means for them to get out
and avoid that exposure.
It's designed to protect the public against the risk
that an offender being a prisoner
being released will re-offend
and will present a risk to society.
So I think if what we're saying
is shouldn't the parole board be using this process
that's designated by the legislature
and statutes and regulations and so on
as a means to provide a relief valve
for the pressures from the COVID-19 pandemic
within the prisons.
I don't think that it can be used in that way
without sort of overhauling the entire statutory framework,
or at least just disregarding it.
Certainly not to the extent that the plaintiffs
are suggesting with this
virtually irrebuttable presumption
that anybody who's eligible for parole could get out,
unless there's clear and convincing evidence
that they're incapable of breaking the law.
(participant coughs)
But more generally,
I think that
the parole board performing its statutory function
is not part of the means
by which the problem of "overcrowding"
can be alleviated.
That their analysis is different.
Their role is different.
And that in order to use them in that fashion,
what the court would need to do
would be to disregard
the law and order the parole board to form,
to perform a different function,
apply different criteria
and use a different standard of release.
And I think that would be clearly
a violation of separation of powers
and contrary to the case law,
especially (mumbles)
that talks about the court not using its equitable powers
to violate existing law
and to compel an executive agency
to perform a function that it's neither designed for
nor authorized to perform.
-: Thank you.
I have no further questions.
-: I've got some questions.
So in Brown vs Plata,
US Supreme court said to California,
reduce the population.
Didn't say how to do it,
just take California, reduce.
Put aside whether or not on the merits
we should do that.
So you view that constitutionally,
we don't have the authority
to do what the US Supreme Court did.
-: I think that Brown was a very different situation
in that as has been pointed out,
so that the constitutional violation
was conceded in that case.
Secondly, the court was operating--
-: Without the merit. -: Statutory framework.
-: So is it your view
that if there were to be an Article 26 claim made
that there was overcrowding,
which created a cruel and unusual punishment
that this court would not have the authority
to say you should,
you must reduce the overcrowding.
-: I don't believe that you could order the parole board
to perform that function
within the existing statutory framework.
-: No, that's not my question.
If we do have the same authority
as the US Supreme Court did to say,
if there's a really unusual punishment arise
from overcrowding then,
and if the only thing that can be done
is to reduce the overcrowding.
We've got the Governor saying, it's not my problem.
I shouldn't be ordered to do something.
We've got the Department of Corrections which says
we manage the prisons.
The only thing we're involved with is medical parole.
Don't order us to do anything.
And now we've got the parole board to say,
that's not your problem.
So who's supposed to do it.
How's it supposed to be done?
-: Your Honor.
I don't want to hazard a guess
as to what's the best way to accomplish it would be.
I think that we have to work either
within the existing statutory framework,
or we need to work with legislators to frame a new one.
I don't believe that it's appropriate for the judiciary
to disregard that framework
and order an executive agency
to perform a different function
in order to accomplish the result.
Even if the result is to reduce
or eliminate what's perceived to be
a constitutional violation.
Where that constitutional violation isn't being committed.
You're not telling an executive agency
that you're doing this wrong.
You're violating the constitution
by doing what you're doing.
And therefore you need to abide by your obligations.
You're saying what the plaintiffs are saying is,
and we need to redefine those obligations
and make them something different.
And that I don't believe is appropriate.
-: So you're saying,
the US Supreme court did it.
California is reducing their population.
-: But I'm not aware of anything in the Brown vs Plata case
that specifically says, well,
we're going to change the conditions of parole.
And we're going to instruct the California Board of Parole,
that they are no longer to follow what the statute says.
They're going to apply different criteria,
which we're going to dictate,
and that's going to be the new parole process.
-: Basically told California,
you figure out a way to do it.
Is that what we could arguably do,
you figure out a way to do it?
-: You're saying, could you instruct the parole board
to figure out a way to do it?
-: I mean, the parole board is a party,
I mean, basically defendants you figure out a way to do it.
I mean, in that particular case,
that's what the US Supreme Court did to California.
They referred to California,
you as a state, you have to figure out a way to do it.
We're not going to tell you precisely how
but you need to considerably reduce the overcrowding.
If we were to do that,
would the parole board want to be a part of that process?
-: Whether they would want to be a part of it.
They would be a part of it,
but they would be a part of it
within the scope of what their,
existing authority and standards are.
If those aren't changed,
then I think the court would have to look elsewhere
in effort to look for the ways to
fashion that kind of relief.
-: Let's look to special masters.
Most recent public report issued on Monday,
says that on April 6th,
there were 7,735 prisoners in DOC,
as of May 3rd, that's down to 7,195.
That's the 340 net reduction.
And I gather from DOC,
I just learned from the special master
that there were only 15 admissions.
So that means if that's right,
that there were basically 355 persons
who were released from custody in that month.
In 2018, the average release from custody was 651.
Do you have any explanations
for why the number of persons
reduced from custody
is only about 60% of what it was in 2018.
-: I don't.
I apologize, Your Honor.
I have seen the special master's report,
but I can't provide you with any statistical data
or explanation for that.
I'm happy to inquire of the folks at the parole board
and see if we can get some information for you
if you'd like.
In the brief there's some reference to the parole board
has not issued something with regard to hearings.
I think with regard to the lifers,
they've not issued any decisions
since November of last year, is that correct?
-: I'm aware that that's what the brief alleges,
I don't know
frankly, what the accuracy of that assertion is.
I do know that in the wake of the COVID-19 epidemic,
there have not been any hearings conducted on parole
for life sentences because of the statutory constraints
that I mentioned before,
about the need for public hearings
and the need for victims
to have an opportunity
to address the board before those are granted.
-: And have there been any hearings held
with regard to parole violations,
which have caused people to be returned to prison?
-: I don't know the status of those, I apologize.
-: And with regard to the standard under
General Laws, Chapter 127, Section 30
which includes the clause
"and that release is not incompatible
"with the welfare of society."
Does the parole board have a position
as to whether or not the COVID crisis
bears on the interpretation or application of that phrase.
I believe that certainly the COVID-19 crisis
does have a bearing on the welfare of society generally,
I don't mean to suggest otherwise,
but I think that the interpretation of that language
is that what we're concerned about
is the protection of society in relation to the harm
or the risk of harm from a released inmate.
And so the idea is, well,
we're not looking at this
from the perspective of
we're looking for the welfare of the inmate.
We're looking at this from the welfare of the public,
outside the institution
and whether or not they are put at risk
as a result of the inmates release,
-: You're familiar with our Christie decision,
which said that essentially the term of risk
which traditionally meant just what you said
needs to be reapplied
in the context of the pandemic.
-: But I think that was dealing with the judicial standards
that are applied as opposed to a statutory standard,
that's a function of the discretionary
or dictates the discretionary authority
of an executive agency.
I don't believe we can redefine the statutory term
in the context of the pandemic
to mean something different
than what it was intended to mean
when the legislation was enacted.
-: And is it your view that this court
would not have the authority
to interpret that language in this context?
-: I believe that the court certainly does have the authority
to interpret the meaning of a statute.
Yes, they do,
but I don't believe that it would be appropriate
to retrofit an existing statute
to sort of interpose a finding of sort
of a legislative intent
that didn't exist when the statute was created.
I don't believe that's what the statute was designed to do.
-: No, of course the statute also speaks
about the risk of re-offence.
So this is separate and distinct
from the risk of re-offense.
-: I don't know that it's separate
and distinct from that.
I think it's part and parcel the same thing.
It's whether the prisoner will live
and remain at liberty without violating the law,
and that release is not incompatible
with the welfare of society.
So I do believe it's part of the same analysis,
not a separate factor,
which is designed to import some concern
for the welfare of the inmate
and protection against conditions
or risks that may exist within the prison system.
-: So is it your view that you have a motion to dismiss,
there were two issues.
One of course is whether or not the PI
should issue,
your view is that
you should not even be a part of this case,
even if it were to proceed beyond the PI stage.
-: That's correct, Your Honor, yes.
Because the parole board
is not potentially responsible for the violation.
They have not acted
with deliberate indifference
to create the conditions
that are allegedly the constitutional violation here
and that they,
within the framework that exists
cannot be ordered to provide the sort of relief
that the plaintiffs are requesting
without running a foul of the existing statutes regulations,
and without intruding on
necessarily upon the discretionary authority
to the executive.
-: Okay Justice Lenk, that's all that I have.
Justice Lenk any questions?
Justice Lenk you may need to unmute if you're speaking.
-: I am sorry about that.
I want to follow up on a couple of the Chief's questions
having to do with the relationship
between your motion to dismiss,
because you said that the parties don't state a claim
and the fact that you may be a necessary party.
Is there a connection between those two things?
-: Well, I think there's a connection between them.
I don't think that the factual allegations
and complainant is sufficient to state a valid legal claim
for relief against the parole board.
I think that the joinder of a necessary party issue
was raised by the plaintiff in opposition
to the motion to dismiss
as sort of an attempt
to keep us in if the court
were to find that there isn't a factual basis
upon which to find that the board is responsible
for the constitutional violation.
But even there I think the only way
that Rule 19 would render the board a necessary party
would be if the board could you know,
if the board's presence were necessary to--
-: Let's say that
because we think that the statute
requires you to do things with haste,
and you need to act more hastily than you have,
than the board has.
To pick up the pace in other words,
because the situation requires
that it's not so much a matter of substantively
what you do,
but the procedures by which you do it.
-: First of all, I believe that,
there have been efforts to increase the pace,
but secondly, I don't believe there's any claim
that the board has not,
there's certainly nothing in the complaint
to suggest that the board
has in any way violated its obligations
under the existing statutory framework
and that is causing harm to the plaintiffs.
So I don't see that as part of the existing complaint.
-: Okay thanks.
-: Any further questions of any justice.
And hearing none,
Mr. Burns, thank you.
And now we'll turn back to Mr. Pingeon,
to be limited to responding with regard to
the arguments made by Governor Baker--
-: Now exiting.
-: Michael Burn.
(device beeps)
-: Thank you, Your Honor.
First address the parole board motion
since it's freshest in my mind.
Their first argument is that they aren't responsible
because they didn't 'cause the conditions inside the prison
and have no responsibility for prison operations.
I think the Good case pretty clearly disposes
of that argument,
where the Commissioner of Correction
was a defendant in an action
that was brought by a Massachusetts prisoner
who was being held in a federal prison
where he alleged that the water was contaminated
and putting his health at risk.
And the Commissioner of Correction was a defendant
and said,
"Well, I'm not responsible for the water
"in the federal prison, so I should be dismissed."
And this court said, no,
you a proper defendant in that kind of a claim
because you--
-: Now joining.
-: Michael Burns.
(device beeps)
-: You have the ability
to prevent the harm that is being alleged.
And similarly here,
if assuming that there is an issue
with there being too many people in the prison system,
the parole board plays a pretty central role
in regulating the levels of prison population
and can by doing various things like speeding up hearings,
granting early parole to people,
speeding up the time
between the amount of favorable parole is granted
and when somebody is released,
And a whole host of other things,
they can take action that would put them
in a position of being able to prevent
and mitigate the unconstitutional overcrowding.
So I think their argument that,
well, we don't run the prisons has no merit.
With respect to their other argument,
which is essentially that the plaintiffs are asking them
to sort of change
their statutorily mandated decision making process.
I think what the Chief Justice was saying
about the welfare of society is a pretty key point.
And as you pointed out,
this court in Christie said that COVID
should be taken into account
in making those kinds of decisions on stays.
And similarly,
I think that it should be taken into account
by the board here.
And the fact that the board
is of the view that,
"no when making parole decisions,
"we should simply look at the risk
"that the defendant might commit another crime in society",
I think is a very kind of narrow reading of,
I think what is pretty broad language in the parole statute
about the welfare of society.
And it's certainly brought enough
to encompass consideration of COVID
and the fact that the board doesn't see it that way,
I kind of, it is all the more reason
to think that it's important
to have them be part of the case
in the same way that as in our CPCS case,
you urge the parole board
to work with a special master to do things,
but because that case didn't involve constitutional claims,
you didn't order them to do it.
And to their credit,
they're doing some,
we think they could be doing more.
But we think that
if they were not part of the case,
the court wouldn't have the power to do anything more
than urge them to contribute
to the necessary remedy.
And we think that they should be ordered
to do certain things when they,
for example, misinterpreted,
we think that the significance
of the list of excluded crimes
that you put in the appendix of the CPCS case,
the board has taken a position,
that anybody on that excluded list
is categorically ineligible for early parole consideration.
We think that an order
that required them to consider anybody as eligible
without those kinds of categorical exclusions
would be appropriate.
For all of those reasons
I don't think the board should be dismissed.
And I do think as people have mentioned
that they are a necessary party,
because if the need is to reduce populations
and they play a pretty central role
in controlling the level of population,
they need to be part of the solution as well.
I'll turn to the Governor's motion to dismiss.
And I just first want to correct
what I think is a very significant misunderstanding
of the Prison Litigation Reform Act.
As it how it relates to Section 1983,
because the claim has been made
that the Brown vs Plata case did not involve Section 1983.
That that's absolutely not true.
It was a 1983 action.
What the Prison Litigation Reform Act does
is put limitations on the powers of the court
to order relief under Section 1983.
So for example,
when there is a prisoner release order
being contemplated,
as a result of the constitutional claim brought under 1983,
a federal court has to convene a three judge panel
before they can order the kinds of releases
that the Plata court did.
That restriction doesn't apply to state courts.
State courts are free to issue prisoner released orders
if that's necessary to vindicate
constitutional rights brought under 1983.
So this is a 1983 claim.
That was the 1983 claim,
and 1989 claims
can be brought against the Governor as they work
in the Brown case,
and 1989 claims have been brought
and heard by this court against the Governor,
even in prison cases where the kind of arguments
that are being made now not always were made,
but there's a case prisoners political association,
not political action committee
in which a group of prisoners
challenged an order that they couldn't engage in,
be involved in a political action committee.
They'd lost that claim on the merits,
but they directly challenged the Governor there.
And there was no issue with that.
There are a number of other cases
where the Governor has been a defendant.
There's a recent Superior Court case
involving a challenge to the Governors,
not having medical marijuana
be an essential business.
The plaintiff's, their loss,
but the Superior Court judge very clearly
and persuasively argued that the kinds of claims
that Governor's making here now
were not meritorious,
particularly there's a written equal protection challenge.
And the court ended up rejecting it on the bench,
but in doing that rejected the Governor's argument,
that it didn't have jurisdiction
to make rulings on constitutional claims.
And this sort of distinction
between mandamus and injunctive relief
can be a little bit of a semantical thing
I think.
If the ruling were something like,
don't hold prisoners
in settings where they can't be six feet apart
versus commute people.
Commute people, that might present a problem.
But if it's there is a constitutional violation
and you have an obligation to remedy,
just as in Plata,
you tell us how you're going to do it.
And then we can see if that's good enough.
I don't think there's a problem with that.
In Brown versus Plata
after remand from the Superior Court,
the court said to the Governor,
give us a plan.
And in that planning include,
tell us whether you're going to do anything
to waive statutory restrictions on limitations
or whether you're going
to issue any kind of emergency orders or not.
And I think there, again,
the Prison Litigation Reform Act is instructive
because it says federal judges have the power
to order state officials
to exceed their authority under state law
if that's necessary to correct a constitutional violation.
Obviously it's not something you do lightly,
but it's certainly something that is
within the powers of at least a federal judge.
And that's not because the Prison Litigation Reform Act
gives them that if they already had that,
the Prison Litigation Reform Act
simply put kind of restrictions
on how they go about doing it.
We are not waiving our claims under Article 26.
And we think that just as this court
has the power to order the Governor
to remedy 1983 violations
of federal constitutional violations,
it similarly has the power
if the Governor is violating Article 26,
to do that as well.
Turning to what I think
is actually the more persuasive part of it.
Governor's argument which is
if you're sufficiently involved in this
to be a proper defendant,
or you just started like a bystander.
And the argument that we made is that,
well, first in order to be found viable under 1983,
the Governor does have to be
more than just aware of the problem.
And that's true.
That's true in all kinds of constitutional litigation.
But in our complaint we quote
from the Governor about a month ago
in which he is very clear that he is aware of the problem,
'cause he's commenting on the CPCS litigation.
And he says, "we just don't buy it
"as a matter of law factor policy",
the arguments that's being made before the court,
in other words, that we'll research were appropriate.
"And we believe that correct position
"is for us to continue to do the things we're doing
"to keep the people inside the system safe.
"And that's going to be the way we play this one."
So he's very familiar with what's going on.
He's not just acquiesced in it.
He's not just sort of commenting
on what other people are doing.
He's part of the team.
And in fact, he's the leader of the team,
and he's telling his team as well as the public
that he's going to try to keep prisoners safe on the inside,
but he is not going to release them.
And that's the directive that he's given to his people.
So we think that that's sufficient to make him,
at least to state a claim against him.
And we also think--
-: I'm afraid you well exceeded the time limits.
So let me invite questions from Justice Gaziano.
-: I have none, thank you Chief.
-: Justice Lowy.
-: No questions, thank you.
-: Justice Budd.
-: I'm (voice drowned out by interference).
-: Justice Cypher.
-: No questions thank you.
-: Justice Kafker.
-: I'm reading Brown right now,
do they talk about Section 1983?
-: The claim was brought as a 1983 claim for violation
of the 8th Amendment.
-: Is it stated anywhere?
-: I don't have it in front of me Your Honor,
but I would be very surprised if it's not.
-: It's certainly not brought
under the Prison Litigation Reform Act,
the Prison Litigation Reform Act
doesn't create a cause of action,
it puts limitations.
And it's pretty explicit in doing that
on the release that can be ordered in a 1983 action.
-: Again, I'm just skimming through the opinion
and it's all about the Prison Reform Litigation Act.
If you can send in your 16A,
both where in this opinion,
and also the citations of this political association case,
what's the cite for that?
-: Let me see if I have that here right now.
Let's see.
It is 435 Mass,
and I'm just looking at my notes here.
I have it at 819 to 823
reaching the merits
of the constitutional equal protection challenge
to an order by the Governor
was fighting political fundraising.
-: It says the Governor can be held responsible for that.
Yeah, he couldn't be,
on the merit the prisoners lost,
but the challenge was analyzed and decided.
-: In any of these cases,
did anyone challenge whether you could do that
under Section 1983?
-: Cause they just (mumbles) the merits
and the plaintiff's (voice drowned out by interference)
each time.
-: In the Com Khan case it decided this month or last month
in the Superior Court
that the issue was analyzed and discussed,
but that's a Superior Court decision.
-: All right, no further questions.
-: And I have no questions,
-: Justice Lenk.
-: I'm all set, thanks.
-: Okay, are there any further questions
from any of the justices.
And hearing none--
-: Now exiting.
-: Michael Burns. (device beeps)
that concludes the oral argument.
With regard to the justices we'll take 10 minutes
and we'll reconvene on a separate line at 4:35.
Thank you.
-: Thank you.