WEBVTT

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<v ->Good afternoon.</v>

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I believer we are all here.

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Let me just double-check on my justices.

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I believe I heard Justice Lenk.

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<v ->Yes you did.</v>

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<v ->Gaziano.</v>

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<v ->Yes.</v>

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<v ->Justice Lowy.</v>

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<v ->Present.</v>

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<v ->Justice Budd.</v>

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<v ->Yes.</v>

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<v ->Justice Cypher.</v>

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<v ->Yes.</v>

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<v ->Kafker.</v>

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<v ->Yes.</v>

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<v ->And with respect those who are arguing, Mr. Pingeon.</v>

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<v ->Pingeon, Your Honor.</v>

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<v ->Pingeon, okay, I'll get it right.</v>

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<v ->Mr. Dietrick.</v>

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<v ->Present, Your Honor.</v>

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<v ->Mr. McManus.</v>

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<v ->Present, Your Honor.</v>

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<v ->Mr. Burn.</v>

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<v ->Yes, Your Honor.</v>

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<v ->Of course, Mr. Pingeon, you argue last, as well.</v>

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Let me just describe, briefly, the protocol for this.

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And I have remarks to begin,

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and then we'll commence the case.

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The protocol, as I'm sure Clerk Kenneally

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has explained to you,

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is that we will give you roughly three minutes

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to argue without interruption.

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If you wish less time,

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you may invite questions from any of the justices.

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When you have finished that,

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then Justice Lenk is our senior justice,

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will commence her questioning

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and we will go in order of seniority.

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I will question last

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after I have asked my questions, if I have any,

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then I will invite questions from the other justices

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and once that is done, or once your time is up,

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whichever comes last,

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that will conclude your questioning.

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If you are not speaking on a cell phone

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and you have a cell phone nearby, please silence it.

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If you will not be speaking at the time,

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please use the mute button

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so as to avoid any background noise,

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which right now I don't hear, which is good.

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The order, of course, will be that

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the plaintiffs will argue first

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with regard to the issue of the 8th Amendment

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and Article 26 point,

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then Mr. Dietrick, on behalf of DOC

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and The Executive Office of Public Safety,

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and then we will have Governor Baker's,

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he is bringing the motion to dismiss,

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so he will argue that as the proponent of that motion.

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Then the chair of the parole board

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with Mr. Burr arguing on Ms. Maroney's behalf,

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argue with regard to that motion to dismiss,

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and then Mr. Pingeon will be arguing in opposition

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both of those motions to dismiss.

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So we'll focus first

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on the substance of the Article 26 claims,

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and then towards the end we will address

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the various motions to dismiss of those two parties.

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Before I begin, there are matters I want to address.

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One is the matter of thanks.

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I want to give special thanks to Judge Robert Allman

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of the Superior Court for work in Bolden evidentiary hearing

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and managing the case

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and providing detailed findings of fact

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in a very, very short period of time.

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And I also want to thank his assistant,

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Clerk Margaret Buckley

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who I know Judge Allman was instrumental

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in allowing him to accomplish.

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I also want to thank our clerk, Ben Kenneally,

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who is always a hero and continues to be

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during this emergency,

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and I know has been working with each of you

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to prepare you for the nature of a telephonic argument.

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And I also want to thank all of the attorneys in the case

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and the individuals who they imposed upon

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with regard to affidavits.

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We know that we imposed a very short timeline on you

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and we know that you managed to meet that timeline

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with very carefully prepared briefs.

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And I know that you worked your tail off

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in order to do that,

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so I thank you for that.

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I also know that you impose upon other very busy people

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to obtain affidavits

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so I ask that you thank them well.

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Secondly, I will not let moment pass

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except

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that is the last full court argument,

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at least in the absence of any further emergency matters

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we need to address that Justice Lenk will be sitting on.

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She'll be sitting on murder cases tomorrow,

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but that is not the full court.

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If these were ordinary times,

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practice has been for the other five justices

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who've, on their last day of the full sitting

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before they retired,

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I would provide a tribute,

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which I would give orally from the bench.

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We would invite all of the former law clerks

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and have their individuals who had worked

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with that particular justice,

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and I would give what I would sometimes refer to

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as the ode, O-D-E,

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to that particular justice.

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We, of course, could in theory do that virtually,

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but it's really not the same thing

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and I've conferred with Justice Lenk

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and she has agreed that that tribute

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should await a time in which

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we can do so in the full court

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with the opportunity for all those individuals to be present

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and that will likely be occurring after retirement,

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but we will postpone that tribute until then.

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While the full tribute will await that moment,

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I will

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tout that Justice Lenk has served

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as a judge in Massachusetts since 1993.

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She was appointed at that time

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to the Superior Court by Governor Weld.

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She served for two years in the Superior Court

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before she was appointed again by Governor Weld

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to the Appeals Court where she served for 16 years.

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And on June 8th of 2011, she was appointed to the SJC

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by Governor Deval Patrick,

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though she has served for 27 years

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as a judge on this court,

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two on the Superior Court, 16 in the Appeals Court,

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and now nine on the SJC.

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With respect the work on the SJC alone,

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and I will speak only right now quantitatively,

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she has written 211 decisions

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and there are more to come.

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Often beyond the opinions

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of which she was the author,

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there are 20 concurrences that she's written

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and 16 dissents again, all so far to date.

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And more of those as well come.

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The published volumes of Justice Lenk opinions

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of the SJC alone right now

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will total more than 4,400 pages.

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And based on what I understand to be

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both opinions which are already in the oven

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and those which are yet to be cooked,

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it is likely that she will reach 5,000 pages

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before she has retired.

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Which, of course, does not include

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the nearly 1,400 pages of opinions she wrote

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as an author of published cases in the Appeals Court.

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But the sheer number of cases

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does not really reflect,

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it reflects only a part of what she has accomplished.

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More importantly is the quality

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of each every opinion

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and I think it is probably fair to say

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that in the 328 history of this court,

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there has never been a justice who has been more careful

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in her recitation of the facts and her opinions

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and more careful and more thoughtful

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in her analysis of the law.

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So we will miss her when she retires

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and just didn't want the occasion

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of her last oral argument for a full court

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to pass without at least making note of that.

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So with that, I will,

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the record shall reflect virtual applause

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for Justice Lenk.

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And with that I will ask--

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<v ->A virtual thanks by Justice Lenk.</v>

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<v ->(laughing) Okay.</v>

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And I will then invite

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Kenneally to call the case.

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<v ->SJC 12935, Stephen Foster and others</v>

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v. Carol Mici and others.

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<v ->All right, Mr. Pingeon.</v>

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<v ->Pingeon, Your Honor.</v>

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<v ->Pingeon, Pingeon.</v>

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It's the hard G, not a soft G, I'm sorry, okay.

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<v ->It's a French name, Your Honor.</v>

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Dive in.

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<v ->That's why I gave it a soft G.</v>

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But anyway,

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Mr. Pingeon, you may proceed.

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<v ->Thank you, Your Honor, and may it please the Court.</v>

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Covid-19 is spreading rapidly

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throughout the Massachusetts correctional system.

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As of yesterday, 358 prisoners

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in the Department of Corrections

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were infected with the disease and seven have died.

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This is up by almost 100 just in the last few days.

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There are certainly also many more cases,

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since most of the prisons and jails

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only test people with serious symptoms.

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People confined in our correctional facilities

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are in near-constant contact with each other

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in dormitory settings or small double cells.

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Many are sleeping within three feet of each other,

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eating and using showers in close proximity to each other

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and touching the same surfaces.

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They are forced to forego the social distancing

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that overwhelmingly, scientific and medical professionals

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believe is necessary

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and which have caused government officials to mandate

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that the rest of us practice.

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Many are terrified that they will die in prisons.

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And their families are also very frightened.

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On March 27, Commissioner Mici

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submitted an affidavit which described

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many of the extraordinary measures

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that the department had implemented at that time

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to reduce the risk of COVID infection

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and she said that releases were not necessary

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because they had the situation under control

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and there were only a few cases in one facility.

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Recently in this case she submitted another affidavit

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which also described the additional measures

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that the department was taking

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to try to mitigate the risk.

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And she continues to believe

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that releases are not necessary.

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And yet the number of infections continues to grow.

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As public officials and prison administrators and judges

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are beginning to recognize around the country,

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even the most stringent precautionary measures

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simply cannot protect prisoners from the extremely high risk

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of contracting this unique and deadly disease.

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If conditions in a prison are objectively unsafe,

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the state has an obligation to provide a remedy

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even if prison officials are doing

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everything in their power to address it.

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And in this case,

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the only effective way to make sure

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that prisoners, like other people in society,

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are able to maintain six-feet distancing

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is to limit the number of prisoners

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in our institutions.

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And yet, the defendant's arguing very little

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to accomplish this.

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The plaintiffs have identified

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a number of mechanisms that could be used

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to aid in the reduction of the prison population,

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and we ask that the court

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order the defendants to implement those measures.

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Thank you and I'm open to questions.

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<v ->I had erred earlier.</v>

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I had forgotten that Justice Lenk

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had asked that she be permitted to ask the questions last.

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And she gets what she wants on her last argument.

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With that we will begin with Justice Gaziano

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and Justice Lenk will follow me and my questioning.

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So Justice Gaziano.

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<v ->Thank you, Chief.</v>

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Good afternoon.

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<v ->Good afternoon.</v>

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<v ->So let me ask you about the CDC prison guidelines,</v>

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and I take it from your brief,

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your well-written brief,

268
00:13:02.360 --> 00:13:05.590
that you basically characterize him as saying,

269
00:13:05.590 --> 00:13:06.990
do the best you can.

270
00:13:06.990 --> 00:13:11.580
And you think that they're woefully deficient.

271
00:13:13.507 --> 00:13:17.220
We have to find, for an 8th Amendment violation,

272
00:13:17.220 --> 00:13:19.390
whether or not contemporary standards of decency

273
00:13:19.390 --> 00:13:20.400
have been violated.

274
00:13:20.400 --> 00:13:23.590
And the courts traditionally look at regulation.

275
00:13:23.590 --> 00:13:26.960
So when, in sanitation cases, we look at plumbing codes.

276
00:13:28.930 --> 00:13:32.910
Did you say, and I'll put aside your criticisms of them,

277
00:13:32.910 --> 00:13:33.743
if you would,

278
00:13:33.743 --> 00:13:37.500
do you say that DOC is compliant

279
00:13:37.500 --> 00:13:40.320
with the CDC prison guidelines right now?

280
00:13:41.870 --> 00:13:44.680
<v ->I think that some of that is a factual matter</v>

281
00:13:44.680 --> 00:13:46.670
that's in dispute, Your Honor.

282
00:13:46.670 --> 00:13:49.850
And I think in some respects they are

283
00:13:49.850 --> 00:13:54.440
and in some respects they are doing more, but I--

284
00:13:54.440 --> 00:13:56.580
<v ->Tell me where they are not compliant.</v>

285
00:13:57.580 --> 00:14:02.580
<v ->Well I think it's more in the arena of implementation.</v>

286
00:14:03.281 --> 00:14:06.550
I think that, for example,

287
00:14:06.550 --> 00:14:10.035
they've ordered a lot of measures to be taken

288
00:14:10.035 --> 00:14:13.450
to disinfect and sanitize and clean.

289
00:14:13.450 --> 00:14:17.460
And sometimes that happens and sometimes that doesn't.

290
00:14:17.460 --> 00:14:22.460
But I can't identify any particular item

291
00:14:24.720 --> 00:14:28.410
in the CDC guidelines that they are

292
00:14:28.410 --> 00:14:30.500
sort of categorically saying,

293
00:14:30.500 --> 00:14:32.110
we're not going to follow that.

294
00:14:32.110 --> 00:14:35.050
That may be the case, but I can't say that.

295
00:14:35.050 --> 00:14:37.980
But more importantly from our position,

296
00:14:37.980 --> 00:14:39.966
is that those guidelines

297
00:14:39.966 --> 00:14:43.820
do not set the Constitutional floor--

298
00:14:43.820 --> 00:14:46.070
<v ->I understand your position,</v>

299
00:14:46.070 --> 00:14:48.510
but in the interest in time and given this format,

300
00:14:48.510 --> 00:14:50.320
I'm gonna ask you to just answer my questions

301
00:14:50.320 --> 00:14:52.740
without deviating,

302
00:14:52.740 --> 00:14:55.690
because we'll be here for a long time if we have that.

303
00:14:55.690 --> 00:14:56.523
And I read your brief.

304
00:14:56.523 --> 00:14:58.380
I understand perfectly what you wrote.

305
00:14:59.750 --> 00:15:03.370
You cite a number of cases from around the country

306
00:15:03.370 --> 00:15:05.170
and you've told us that judges around the country

307
00:15:05.170 --> 00:15:07.390
starting to recognize that these CDC guidelines

308
00:15:07.390 --> 00:15:08.540
aren't gonna be enough.

309
00:15:10.127 --> 00:15:14.110
The cases you cite all deal with vulnerable plaintiffs.

310
00:15:14.110 --> 00:15:17.710
They're all uniformly immigration cases

311
00:15:17.710 --> 00:15:20.260
brought by a very vulnerable plaintiff.

312
00:15:20.260 --> 00:15:22.725
In the court, the judges in those cases have said

313
00:15:22.725 --> 00:15:25.750
in this instance with this vulnerable plaintiff,

314
00:15:27.200 --> 00:15:29.450
there's irreparable harm to this person

315
00:15:29.450 --> 00:15:33.810
who has multiple sclerosis and COPD, etc.

316
00:15:35.874 --> 00:15:37.930
But the remedy you seek in our case

317
00:15:37.930 --> 00:15:42.930
would apply to all inmates, healthy inmates as well.

318
00:15:42.960 --> 00:15:45.850
Are there other cases that you've found

319
00:15:45.850 --> 00:15:47.990
where courts have said,

320
00:15:47.990 --> 00:15:50.210
this remedy, apart from the vulnerable

321
00:15:50.210 --> 00:15:53.110
should apply across the board as a global remedy?

322
00:15:55.640 --> 00:15:57.550
<v ->I'm not sure if that's the case</v>

323
00:15:57.550 --> 00:15:59.050
in all of the COVID cases.

324
00:15:59.050 --> 00:16:00.330
There's so many of them

325
00:16:00.330 --> 00:16:02.320
and they're coming on fast and furious

326
00:16:02.320 --> 00:16:04.730
and I have to say I haven't read them all.

327
00:16:04.730 --> 00:16:09.650
I think that Judge Yarn, here in Massachusetts

328
00:16:09.650 --> 00:16:14.650
has ordered the release of a large number of people.

329
00:16:14.802 --> 00:16:17.000
And I think he,

330
00:16:17.000 --> 00:16:18.730
well, I'm not sure exactly what he's done,

331
00:16:18.730 --> 00:16:22.150
but not just people who were medically vulnerable.

332
00:16:22.150 --> 00:16:25.940
And I think this issue came up in the Supreme Court

333
00:16:25.940 --> 00:16:28.400
in the California Plata case,

334
00:16:28.400 --> 00:16:31.430
where the issue there was

335
00:16:31.430 --> 00:16:35.200
unconstitutional medical and mental healthcare for prisoners

336
00:16:35.200 --> 00:16:40.200
and the remedy was release of large numbers of prisoners.

337
00:16:40.250 --> 00:16:44.080
<v ->Right, and that case of course,</v>

338
00:16:44.080 --> 00:16:48.827
dealt with massive overcrowding of 137.5%, right?

339
00:16:49.670 --> 00:16:52.740
That was a cap to get to for even operational,

340
00:16:52.740 --> 00:16:53.760
I think it was.

341
00:16:53.760 --> 00:16:54.970
<v ->That's right.</v>

342
00:16:54.970 --> 00:16:59.260
<v ->Right, with 115,000 inmates, vs. 7,000, right?</v>

343
00:17:00.340 --> 00:17:03.000
<v ->Right, but I think that the point</v>

344
00:17:03.000 --> 00:17:05.260
that I'm trying to make about that is,

345
00:17:05.260 --> 00:17:07.070
the question came up about,

346
00:17:07.070 --> 00:17:09.580
well you're releasing people who weren't even sick,

347
00:17:09.580 --> 00:17:13.920
who don't have medical problems

348
00:17:13.920 --> 00:17:17.000
that are not being constitutionally addressed

349
00:17:17.000 --> 00:17:21.480
and is that an appropriate thing to do

350
00:17:21.480 --> 00:17:25.950
in order to limit the harm to the people who are sick.

351
00:17:25.950 --> 00:17:28.040
And I think similarly here,

352
00:17:29.730 --> 00:17:33.360
we are not saying that,

353
00:17:33.360 --> 00:17:35.050
although it certainly is the case

354
00:17:35.050 --> 00:17:36.960
that we want to focus on,

355
00:17:36.960 --> 00:17:39.000
people who are medically vulnerable,

356
00:17:39.000 --> 00:17:42.231
and our concern is partly that the department

357
00:17:42.231 --> 00:17:44.970
has not treated those people any differently

358
00:17:44.970 --> 00:17:46.650
from anyone else,

359
00:17:46.650 --> 00:17:49.470
but if this court were to order

360
00:17:49.470 --> 00:17:51.870
some kind of relief mechanism,

361
00:17:51.870 --> 00:17:54.600
I don't think it would have to be limited

362
00:17:54.600 --> 00:17:58.050
to the people who are particularly vulnerable if,

363
00:17:58.050 --> 00:18:00.310
but for example, releasing people

364
00:18:00.310 --> 00:18:02.910
who are close to the endpoint of their sentence

365
00:18:02.910 --> 00:18:05.170
regardless of their vulnerability

366
00:18:05.170 --> 00:18:08.822
would be necessary in order to allow

367
00:18:08.822 --> 00:18:11.760
social distancing to happen inside the prison

368
00:18:11.760 --> 00:18:14.830
for the people who remain in the prison.

369
00:18:14.830 --> 00:18:19.830
If that could happen, then it might be

370
00:18:19.990 --> 00:18:24.100
that there might still remain inside the prison

371
00:18:24.100 --> 00:18:27.340
people who are in the vulnerable category

372
00:18:27.340 --> 00:18:30.550
and some of the people who were released

373
00:18:30.550 --> 00:18:32.410
might not be in that category.

374
00:18:32.410 --> 00:18:35.140
So there's various ways of accomplishing

375
00:18:35.140 --> 00:18:39.430
the goal of making prison conditions safe for everybody.

376
00:18:39.430 --> 00:18:41.640
And everybody is at risk.

377
00:18:41.640 --> 00:18:43.170
<v ->If you could,</v>

378
00:18:43.170 --> 00:18:44.620
and I appreciate you answering he question,

379
00:18:44.620 --> 00:18:47.136
but again, just given this format,

380
00:18:47.136 --> 00:18:49.070
I'm gonna ask you to focus on my question,

381
00:18:49.070 --> 00:18:50.630
and you've answered it well.

382
00:18:50.630 --> 00:18:51.890
The last question I have,

383
00:18:52.742 --> 00:18:55.490
do you agree that patients that have receiving daily,

384
00:18:55.490 --> 00:18:57.170
ans this goes for Section 35,

385
00:18:57.170 --> 00:18:58.020
<v ->Yeah.</v>
<v ->Do you agree</v>

386
00:18:58.020 --> 00:19:01.830
that the patients, under Section 35,

387
00:19:01.830 --> 00:19:04.490
so they come in and they're quarantined for 14 days,

388
00:19:04.490 --> 00:19:07.710
of course, and there's some detox that's involved in that

389
00:19:07.710 --> 00:19:09.620
and they're seen by some counselors,

390
00:19:09.620 --> 00:19:11.590
but after that initial period,

391
00:19:13.132 --> 00:19:17.730
from what I've read, they're receiving treatment,

392
00:19:17.730 --> 00:19:19.590
and there's some argument that they're receiving

393
00:19:19.590 --> 00:19:21.750
more treatment than they would have been.

394
00:19:21.750 --> 00:19:23.530
Do you believe that to be the case?

395
00:19:25.040 --> 00:19:29.390
<v ->I think it's factually unclear, Your Honor.</v>

396
00:19:29.390 --> 00:19:32.050
I think that, certainly the department,

397
00:19:32.050 --> 00:19:35.420
I accept their affidavits that in principle

398
00:19:35.420 --> 00:19:37.680
they're doing more than they would,

399
00:19:37.680 --> 00:19:39.030
but as a factual matter,

400
00:19:39.030 --> 00:19:41.340
whether that's happening or not,

401
00:19:41.340 --> 00:19:43.920
we hear different things.

402
00:19:43.920 --> 00:19:44.753
<v ->Okay, thank you.</v>

403
00:19:44.753 --> 00:19:46.890
That's all the questions that I have.

404
00:19:46.890 --> 00:19:48.330
Justice Lowy.

405
00:19:48.330 --> 00:19:49.770
<v ->Thank you, Chief.</v>

406
00:19:49.770 --> 00:19:52.430
I'm actually gonna start with Section 15 as well.

407
00:19:52.430 --> 00:19:55.000
And I certainly appreciate your point

408
00:19:55.000 --> 00:19:56.970
that when you're dealing with

409
00:19:56.970 --> 00:19:59.310
individuals with substance use disorder,

410
00:20:00.170 --> 00:20:03.790
adding trauma to the circumstances

411
00:20:04.750 --> 00:20:07.580
is, to say the least, not a good idea.

412
00:20:07.580 --> 00:20:11.360
But I feel like there's a significant difference here

413
00:20:11.360 --> 00:20:12.193
in the record.

414
00:20:14.080 --> 00:20:17.660
And that what we have, as I understand it,

415
00:20:17.660 --> 00:20:22.565
is three days where the individual comes in,

416
00:20:22.565 --> 00:20:25.210
is completely quarantined,

417
00:20:25.210 --> 00:20:29.810
and then they are gradually moved into the population,

418
00:20:29.810 --> 00:20:34.110
that they are having classes

419
00:20:34.110 --> 00:20:39.110
and receiving the type of treatment they're supposed to.

420
00:20:40.930 --> 00:20:43.310
So could you help me out

421
00:20:44.160 --> 00:20:46.310
and specifically tell me

422
00:20:46.310 --> 00:20:49.130
where you think the Constitutional violation is right now

423
00:20:49.130 --> 00:20:52.640
with the Section 35 population?

424
00:20:54.740 --> 00:20:57.036
<v ->Yes, as I said, I think that</v>

425
00:20:57.036 --> 00:21:00.700
the facts are murky in this point,

426
00:21:00.700 --> 00:21:02.990
and so I just want to be--

427
00:21:02.990 --> 00:21:07.210
<v ->Take it in the facts that you would use.</v>

428
00:21:07.210 --> 00:21:11.010
Where precisely is the violation,

429
00:21:11.010 --> 00:21:14.960
if in fact the treatment is going on?

430
00:21:16.080 --> 00:21:18.550
<v ->Let's take the uncontested facts,</v>

431
00:21:18.550 --> 00:21:20.400
which as you mentioned, that basically

432
00:21:20.400 --> 00:21:25.400
for the first 14 days the patient is essentially

433
00:21:26.050 --> 00:21:27.830
in solitary confinement

434
00:21:27.830 --> 00:21:30.810
and maybe having some contact

435
00:21:30.810 --> 00:21:34.320
with a substance use counselor who might stop by his cell

436
00:21:34.320 --> 00:21:38.370
and may be giving him some paperwork to do treatment.

437
00:21:39.220 --> 00:21:42.860
Our view is that we have a commitment

438
00:21:42.860 --> 00:21:46.560
that on average only 30 days long

439
00:21:46.560 --> 00:21:49.220
to put somebody in those conditions

440
00:21:49.220 --> 00:21:52.780
with that minimal amount of treatment

441
00:21:52.780 --> 00:21:57.410
for half the time is not consistent

442
00:21:58.620 --> 00:22:02.140
with professional judgment or with the Constitution,

443
00:22:02.140 --> 00:22:05.390
especially given the context that we're dealing with,

444
00:22:05.390 --> 00:22:09.050
which is, these are people who are not charged with a crime,

445
00:22:09.050 --> 00:22:10.860
not convicted of a crime,

446
00:22:10.860 --> 00:22:15.860
and yet are ending up in a prison, supposedly--

447
00:22:16.070 --> 00:22:21.070
<v ->Those are important issues that go well beyond this case</v>

448
00:22:22.640 --> 00:22:23.960
that you just raised.

449
00:22:23.960 --> 00:22:26.350
I think I'm gonna have to move on,

450
00:22:26.350 --> 00:22:28.390
because I need to ask Mr. Dietrick.

451
00:22:28.390 --> 00:22:31.840
My sense from DOC was that

452
00:22:31.840 --> 00:22:35.920
after three days that there is some interaction

453
00:22:35.920 --> 00:22:40.550
if medically okay and that there is treatment.

454
00:22:40.550 --> 00:22:43.510
So we do have a difficult issue with the record.

455
00:22:43.510 --> 00:22:48.510
But let me go on to deliberate indifference.

456
00:22:48.540 --> 00:22:53.540
And I recognize that the quality of medical care cases

457
00:22:54.260 --> 00:22:58.300
are not a perfect fit, a perfect doctrine here,

458
00:22:58.300 --> 00:23:02.100
but in trying to analyze DOC's response,

459
00:23:03.408 --> 00:23:06.880
a lot of cases, including the United States Supreme Court,

460
00:23:06.880 --> 00:23:08.510
Wilson versus Seiter,

461
00:23:08.510 --> 00:23:11.810
have indicated that when trying to understand

462
00:23:11.810 --> 00:23:14.090
the institutional response,

463
00:23:14.090 --> 00:23:15.630
we need to take into account

464
00:23:15.630 --> 00:23:19.940
the practical constraints facing prison officials.

465
00:23:20.808 --> 00:23:25.220
Does that United States Supreme Court case law

466
00:23:25.220 --> 00:23:27.610
have any application to this circumstance?

467
00:23:30.360 --> 00:23:31.210
<v ->Yes and no.</v>

468
00:23:31.210 --> 00:23:36.018
Obviously Wilson versus Seiter, where it is established

469
00:23:36.018 --> 00:23:39.470
that the principle that there needs to be

470
00:23:39.470 --> 00:23:42.220
some sort of subjective component

471
00:23:42.220 --> 00:23:47.220
to addressing 8th Amendment claims.

472
00:23:47.510 --> 00:23:52.200
And I think that that gets very confusing

473
00:23:52.200 --> 00:23:55.410
in a lot of different kinds of contexts.

474
00:23:55.410 --> 00:23:57.330
Because it sort of suggests

475
00:23:57.330 --> 00:23:59.780
that there has to be sort of a,

476
00:23:59.780 --> 00:24:04.780
some sort of subjective kind of intent

477
00:24:05.900 --> 00:24:10.900
that is expressing out of callousness towards the prisoners.

478
00:24:12.720 --> 00:24:15.810
I don't think that that really comes into play

479
00:24:15.810 --> 00:24:20.560
when you have a sort of system-wide problem.

480
00:24:20.560 --> 00:24:23.950
And especially this court has been very clear

481
00:24:23.950 --> 00:24:28.000
that if unconstitutional conditions

482
00:24:28.000 --> 00:24:33.000
are a consequence of a lack of resources for the facility

483
00:24:33.170 --> 00:24:36.110
so that it's beyond the powers of the defendant

484
00:24:36.110 --> 00:24:38.670
to actually do anything about it,

485
00:24:38.670 --> 00:24:42.660
that doesn't mean that the court can't find

486
00:24:42.660 --> 00:24:46.600
a Constitutional violation and issue a--

487
00:24:46.600 --> 00:24:48.550
<v ->Isn't that the challenge here?</v>

488
00:24:48.550 --> 00:24:52.678
I mean we're dealing with a deliberate indifference

489
00:24:52.678 --> 00:24:56.730
and what if, as a good-faith effort,

490
00:24:56.730 --> 00:24:58.930
that they're doing their best?

491
00:24:58.930 --> 00:25:03.190
And I know I'm bumping into a separation of powers issue

492
00:25:03.190 --> 00:25:05.690
with this question,

493
00:25:05.690 --> 00:25:10.690
but there's almost always another course

494
00:25:10.920 --> 00:25:15.210
that might seem like a better medical response

495
00:25:15.210 --> 00:25:17.930
or a better systemic response,

496
00:25:17.930 --> 00:25:22.150
but that's not how we really weigh the situation

497
00:25:22.150 --> 00:25:26.130
in these cases when we're looking at them one at a time.

498
00:25:27.841 --> 00:25:29.541
Do we have a little challenge here

499
00:25:31.100 --> 00:25:35.170
coming up with a doctrine where it seems like

500
00:25:36.520 --> 00:25:39.100
one could argue that the responses of DOC

501
00:25:39.950 --> 00:25:41.110
have been in good faith

502
00:25:41.110 --> 00:25:43.390
and that the challenge to that

503
00:25:43.390 --> 00:25:46.700
is not necessarily that they couldn't do better,

504
00:25:49.247 --> 00:25:53.167
but that they're not going to be able to stop the spread,

505
00:25:54.375 --> 00:25:57.670
at least in three of the institutions,

506
00:25:57.670 --> 00:26:01.033
through any other means other than having

507
00:26:01.033 --> 00:26:04.370
less of a population of individual prisoners?

508
00:26:06.610 --> 00:26:10.380
<v ->I think that there's sort of two questions there.</v>

509
00:26:10.380 --> 00:26:12.720
One, could they be doing something better,

510
00:26:12.720 --> 00:26:15.040
but let's assume for the moment that they couldn't.

511
00:26:15.040 --> 00:26:17.480
Let's assume that they're doing everything

512
00:26:17.480 --> 00:26:20.470
that is in their power to do

513
00:26:20.470 --> 00:26:25.470
and assume too that the risk is still too high

514
00:26:26.190 --> 00:26:29.490
so that the conditions are still unsafe.

515
00:26:29.490 --> 00:26:33.480
In the Plata case, I'll say again,

516
00:26:33.480 --> 00:26:38.100
that the court there explicitly noted

517
00:26:38.100 --> 00:26:42.410
that the good faith of the Governors

518
00:26:42.410 --> 00:26:46.880
who had been trying to address the problems for years,

519
00:26:46.880 --> 00:26:50.630
and the court ended up saying it's impossible,

520
00:26:50.630 --> 00:26:53.618
they cannot do it, it's beyond their power

521
00:26:53.618 --> 00:26:56.970
to provide adequate medical care

522
00:26:56.970 --> 00:26:58.890
given these population levels.

523
00:26:58.890 --> 00:27:01.000
Even though it's impossible,

524
00:27:01.000 --> 00:27:04.980
we still have a Constitutional problem that we have to fix.

525
00:27:04.980 --> 00:27:09.980
So despite the good faith and heroic efforts

526
00:27:10.090 --> 00:27:11.650
of prison officials,

527
00:27:11.650 --> 00:27:16.190
that did not mean that the court couldn't find

528
00:27:16.190 --> 00:27:18.250
there was a Constitutional violation

529
00:27:18.250 --> 00:27:20.440
that needed to be remedied.

530
00:27:20.440 --> 00:27:24.020
<v ->All right, let me ask you one more question</v>

531
00:27:24.020 --> 00:27:25.840
to follow up on that answer, please,

532
00:27:25.840 --> 00:27:29.250
dealing with Brown v. Plata.

533
00:27:29.250 --> 00:27:31.960
Does it matter that, in that case,

534
00:27:31.960 --> 00:27:36.960
before the release, that there had been 15 years

535
00:27:37.100 --> 00:27:42.100
of court orders and 15 years of failure to reduce

536
00:27:43.250 --> 00:27:46.440
the prison population to deal with

537
00:27:46.440 --> 00:27:51.440
the serious medical conditions and mental health conditions?

538
00:27:52.160 --> 00:27:55.810
And that what happened there was not release of prisoners,

539
00:27:55.810 --> 00:27:59.490
what happened there were hearings

540
00:28:00.450 --> 00:28:02.290
before a three-judge panel

541
00:28:02.290 --> 00:28:07.140
under the Prison Litigation Reform Act of 1995,

542
00:28:07.140 --> 00:28:12.140
and after that panel believed that an order was required

543
00:28:13.070 --> 00:28:15.740
to reduce the prison population

544
00:28:15.740 --> 00:28:18.340
that the United States Supreme Court said,

545
00:28:18.340 --> 00:28:23.060
they affirmed, they said that was a reasonable decision

546
00:28:23.060 --> 00:28:24.190
in those circumstances.

547
00:28:24.190 --> 00:28:27.670
It seems that there's litigation there,

548
00:28:27.670 --> 00:28:29.443
there's 15 years,

549
00:28:29.443 --> 00:28:31.420
and there's an affirment

550
00:28:31.420 --> 00:28:33.543
by the United States Supreme Court.

551
00:28:33.543 --> 00:28:38.543
And I know that we're sort of trying to figure out

552
00:28:39.580 --> 00:28:41.400
how do we address something that,

553
00:28:42.350 --> 00:28:46.490
if we could have anticipated, we didn't.

554
00:28:46.490 --> 00:28:51.240
And trying to fit this horrible situation into a doctrine,

555
00:28:51.240 --> 00:28:54.610
but does Brown really help us,

556
00:28:54.610 --> 00:28:59.470
considering how that litigation was addressed?

557
00:28:59.470 --> 00:29:02.750
<v ->I think it obviously is a unique case in that,</v>

558
00:29:02.750 --> 00:29:06.130
as you mentioned, or Judge Gaziano did,

559
00:29:06.130 --> 00:29:09.150
that tens of thousands of people were being released

560
00:29:09.150 --> 00:29:12.120
and they weren't being released because of overcrowding,

561
00:29:12.120 --> 00:29:15.970
but because that was the only way to address medical care.

562
00:29:15.970 --> 00:29:20.520
And before the court took that very extreme step,

563
00:29:20.520 --> 00:29:22.650
it tried to do everything in its power

564
00:29:22.650 --> 00:29:25.270
to address the medical care problem

565
00:29:25.270 --> 00:29:27.560
without releasing people,

566
00:29:27.560 --> 00:29:31.610
but other courts, including many courts in this state,

567
00:29:31.610 --> 00:29:35.680
have addressed pure over crowding issues

568
00:29:35.680 --> 00:29:39.400
and put caps on facilities ordered.

569
00:29:39.400 --> 00:29:42.870
Extra-good time to be providing the prisoners

570
00:29:42.870 --> 00:29:44.370
beyond what the statute allowed

571
00:29:44.370 --> 00:29:47.940
in order to bring the populations down

572
00:29:47.940 --> 00:29:52.306
to the cap level that the court felt was necessary

573
00:29:52.306 --> 00:29:55.260
to have the conditions be Constitutional.

574
00:29:55.260 --> 00:30:00.260
So yes, you would like to give the prison officials

575
00:30:02.896 --> 00:30:07.896
the opportunity to try to remedy Constitutional violations

576
00:30:07.990 --> 00:30:09.880
before you take an extreme step

577
00:30:09.880 --> 00:30:12.800
like ordering people to be released,

578
00:30:12.800 --> 00:30:15.010
but we are in an emergency here.

579
00:30:15.010 --> 00:30:20.010
And the department has made it pretty clear

580
00:30:21.590 --> 00:30:26.590
that it doesn't intend to exercise any unusual measures

581
00:30:30.410 --> 00:30:33.000
to try to lower the prison population.

582
00:30:33.000 --> 00:30:35.070
It's gonna proceed as it's been

583
00:30:35.070 --> 00:30:38.550
with maybe a few more medical paroles and the like,

584
00:30:38.550 --> 00:30:43.520
but basically they feel the problem is under control,

585
00:30:43.520 --> 00:30:46.570
and yet the numbers of infections keep growing.

586
00:30:46.570 --> 00:30:48.790
And with the limited testing that we have,

587
00:30:48.790 --> 00:30:50.790
the numbers are almost certainly much higher.

588
00:30:50.790 --> 00:30:53.720
<v ->Thank you, I don't want to take too much time.</v>

589
00:30:53.720 --> 00:30:54.553
<v ->Okay.</v>

590
00:30:54.553 --> 00:30:55.670
<v ->And you've answered my questions.</v>

591
00:30:55.670 --> 00:30:56.733
Thank you very much.

592
00:30:56.733 --> 00:30:57.880
<v ->Sure.</v>

593
00:30:57.880 --> 00:30:58.850
<v ->Justice Budd.</v>

594
00:30:58.850 --> 00:31:00.720
<v ->I don't have any questions, thank you.</v>

595
00:31:00.720 --> 00:31:01.630
<v ->Justice Cypher.</v>

596
00:31:04.981 --> 00:31:07.330
<v ->Thank you, good afternoon.</v>

597
00:31:07.330 --> 00:31:10.740
I have a few questions, and some of my questions,

598
00:31:11.642 --> 00:31:16.642
I'd like to go into the area of testing and the statistics.

599
00:31:16.980 --> 00:31:19.950
One question I have is that,

600
00:31:20.930 --> 00:31:23.850
you mention in your brief that you've got

601
00:31:23.850 --> 00:31:27.360
13% of the population is over 60,

602
00:31:27.360 --> 00:31:30.160
and 30% is over 50.

603
00:31:30.160 --> 00:31:34.450
And I'm curious as to whether that 30%

604
00:31:34.450 --> 00:31:39.020
of people over 50 also includes the 13% over 60.

605
00:31:40.650 --> 00:31:43.880
<v ->I can't be absolutely sure, Justice Cypher,</v>

606
00:31:43.880 --> 00:31:48.433
but I think the total of over 50 is 46,

607
00:31:49.440 --> 00:31:50.760
combining those two numbers,

608
00:31:50.760 --> 00:31:53.970
I'm pretty sure that's true, but I could be wrong.

609
00:31:55.010 --> 00:32:00.010
I think that the record shows that

610
00:32:00.210 --> 00:32:04.420
at least 50% of the prison population

611
00:32:04.420 --> 00:32:08.530
are either elderly or medically vulnerable.

612
00:32:08.530 --> 00:32:12.460
<v ->Okay, my other question relates to testing.</v>

613
00:32:13.840 --> 00:32:17.670
And one thing that has perplexed me about testing

614
00:32:17.670 --> 00:32:19.730
is if you test somebody on Monday,

615
00:32:19.730 --> 00:32:23.630
that does not mean they don't pick up the virus on Tuesday.

616
00:32:24.734 --> 00:32:28.050
So wouldn't you have to test everybody every day

617
00:32:28.050 --> 00:32:29.600
to really know what's going on?

618
00:32:31.145 --> 00:32:35.340
<v ->Absolutely you would to have a completely accurate view,</v>

619
00:32:35.340 --> 00:32:38.420
that's right, yes.

620
00:32:39.370 --> 00:32:43.762
But what the department is doing now, for the most part,

621
00:32:43.762 --> 00:32:47.140
is testing people with pretty serious symptoms.

622
00:32:47.140 --> 00:32:49.531
And one of the plaintiffs who testified

623
00:32:49.531 --> 00:32:52.540
at the hearing last week

624
00:32:52.540 --> 00:32:55.530
had been complaining of coughing

625
00:32:55.530 --> 00:32:57.580
and feeling sick for some time,

626
00:32:57.580 --> 00:32:59.725
and they didn't test him because his symptoms

627
00:32:59.725 --> 00:33:01.610
weren't significant enough.

628
00:33:01.610 --> 00:33:02.443
<v ->Okay.</v>

629
00:33:02.443 --> 00:33:03.400
<v ->He was tested.</v>

630
00:33:03.400 --> 00:33:06.610
<v ->And very, okay, I understand, I did read everything there.</v>

631
00:33:07.530 --> 00:33:09.240
And so then my other question

632
00:33:09.240 --> 00:33:11.820
regarding the rate of infection.

633
00:33:11.820 --> 00:33:14.370
I forget what you said it was in the prison.

634
00:33:17.670 --> 00:33:19.287
<v ->I don't think we've done the calculations</v>

635
00:33:19.287 --> 00:33:21.940
with the latest numbers.

636
00:33:23.668 --> 00:33:26.380
<v ->Do you have your last calculation handy?</v>

637
00:33:26.380 --> 00:33:29.550
<v ->I'm not quite sure what your asking for is it--</v>

638
00:33:29.550 --> 00:33:31.840
<v ->Well, I just want to know what the,</v>

639
00:33:31.840 --> 00:33:36.683
you said in your brief that the rate of infection

640
00:33:36.683 --> 00:33:39.930
in the prison population

641
00:33:39.930 --> 00:33:42.750
is higher than it is in the Commonwealth

642
00:33:42.750 --> 00:33:44.650
in terms of the population as a whole.

643
00:33:45.490 --> 00:33:47.130
<v ->Mm-hmm.</v>

644
00:33:47.130 --> 00:33:51.230
<v ->So my question really is, how do we know</v>

645
00:33:51.230 --> 00:33:53.650
what the real population in that,

646
00:33:53.650 --> 00:33:56.490
the real infected population number is

647
00:33:56.490 --> 00:33:58.770
in the Commonwealth as a whole,

648
00:33:58.770 --> 00:34:01.060
since testing has been so limited?

649
00:34:02.020 --> 00:34:05.290
I don't understand how those comparisons can be made.

650
00:34:05.290 --> 00:34:07.630
<v ->I mean, I think that there are issues</v>

651
00:34:07.630 --> 00:34:09.340
with the comparison, obviously,

652
00:34:09.340 --> 00:34:12.656
because in order to truly compare,

653
00:34:12.656 --> 00:34:15.920
you would have to be testing the same

654
00:34:15.920 --> 00:34:20.069
sort of types of people using the same testing criteria,

655
00:34:20.069 --> 00:34:22.250
and that's not done.

656
00:34:24.080 --> 00:34:26.828
When the Commonwealth reports its testing results

657
00:34:26.828 --> 00:34:30.496
and DSE we can say, okay, there are 350 prisoners

658
00:34:30.496 --> 00:34:35.496
who have tested positive, out of 7,500,

659
00:34:35.810 --> 00:34:39.630
but what does that mean about the overall infection rate

660
00:34:39.630 --> 00:34:40.740
in the department?

661
00:34:40.740 --> 00:34:43.144
Were they tested, like in some prison systems,

662
00:34:43.144 --> 00:34:46.890
they've tested everybody and the numbers explode

663
00:34:46.890 --> 00:34:47.750
when you do that.

664
00:34:47.750 --> 00:34:49.000
<v ->I see.</v>

665
00:34:49.000 --> 00:34:51.078
Did you tell me, if you know,

666
00:34:51.078 --> 00:34:54.620
comparing our state to other states,

667
00:34:54.620 --> 00:34:57.460
what the rate of infections is in the prisons,

668
00:34:57.460 --> 00:34:58.330
particularly the ones

669
00:34:58.330 --> 00:35:00.750
where you say release has been ordered?

670
00:35:02.530 --> 00:35:04.330
<v ->Well I think a lot of states have,</v>

671
00:35:05.260 --> 00:35:07.840
without judicial involvement,

672
00:35:07.840 --> 00:35:10.065
have taken significant measures

673
00:35:10.065 --> 00:35:14.420
to reduce the numbers of prisoners who are infected,

674
00:35:14.420 --> 00:35:17.487
but there have been cases

675
00:35:17.487 --> 00:35:20.710
where people have been released,

676
00:35:20.710 --> 00:35:24.520
despite zero confirmed cases in that facility,

677
00:35:24.520 --> 00:35:27.460
but just because of the risk.

678
00:35:27.460 --> 00:35:29.722
So I don't know that it's that simple

679
00:35:29.722 --> 00:35:34.722
to sort of say, if the incident reaches a certain level,

680
00:35:35.410 --> 00:35:37.930
say 10% or 20% or whatever,

681
00:35:37.930 --> 00:35:42.630
that that proves that there is a problem in this facility.

682
00:35:42.630 --> 00:35:45.240
I think that you don't know

683
00:35:45.240 --> 00:35:47.038
if there's a problem in that facility

684
00:35:47.038 --> 00:35:48.320
unless you test,

685
00:35:48.320 --> 00:35:49.870
and even there, you know,

686
00:35:49.870 --> 00:35:51.790
a guard might come in and administer the test.

687
00:35:51.790 --> 00:35:53.540
<v ->Okay, I understand your answer now.</v>

688
00:35:53.540 --> 00:35:54.373
I understand.

689
00:35:54.373 --> 00:35:56.110
I'd like to, my next question,

690
00:35:56.950 --> 00:36:01.950
of the cases you've cited where courts have ordered release,

691
00:36:03.700 --> 00:36:04.550
how many of those,

692
00:36:04.550 --> 00:36:06.610
as I've read them, a lot of them

693
00:36:06.610 --> 00:36:08.520
seem to be about pretrial detainees,

694
00:36:08.520 --> 00:36:10.990
which are under different standards.

695
00:36:10.990 --> 00:36:13.210
Which cases would you identify

696
00:36:13.210 --> 00:36:14.450
are related to inmates?

697
00:36:15.740 --> 00:36:17.030
<v ->I actually don't think</v>

698
00:36:17.030 --> 00:36:19.820
it's a different standard, Your Honor, because--

699
00:36:19.820 --> 00:36:20.653
<v ->Oh you don't, no?</v>

700
00:36:20.653 --> 00:36:23.180
I thought we went through a due process standard

701
00:36:23.180 --> 00:36:24.121
for all you can use can use and that they're not--

702
00:36:24.121 --> 00:36:26.643
<v ->Well it's a due process--</v>

703
00:36:26.643 --> 00:36:30.020
And so it's different, a little better to them.

704
00:36:30.020 --> 00:36:31.890
<v ->In theory it's different,</v>

705
00:36:31.890 --> 00:36:34.150
in practice I think it's the same standard.

706
00:36:34.150 --> 00:36:39.150
It's, are they at a unconstitutional risk of harm.

707
00:36:40.170 --> 00:36:42.208
<v ->Okay, so let's go back to the question</v>

708
00:36:42.208 --> 00:36:44.869
and say, bearing that it mind,

709
00:36:44.869 --> 00:36:46.950
of the cases that you cited,

710
00:36:46.950 --> 00:36:48.390
how many are dealing with inmates

711
00:36:48.390 --> 00:36:50.740
that are sentenced versus pretrial detainees?

712
00:36:52.230 --> 00:36:53.930
<v ->I couldn't say, Your Honor, I'm sorry.</v>

713
00:36:53.930 --> 00:36:55.110
<v ->Okay.</v>
<v ->I don't know.</v>

714
00:36:55.110 --> 00:36:55.943
<v ->We'll figure that out.</v>

715
00:36:55.943 --> 00:36:57.270
I'll figure that out later.

716
00:36:58.461 --> 00:37:03.461
Going back to our correctional facilities for a minute.

717
00:37:03.881 --> 00:37:06.467
Do we know how many people are in there

718
00:37:06.467 --> 00:37:08.050
for violent offenses?

719
00:37:10.120 --> 00:37:11.710
And included in that,

720
00:37:11.710 --> 00:37:13.720
I would include sex offenses as violent.

721
00:37:14.750 --> 00:37:17.520
<v ->Yeah, it's hard to say.</v>

722
00:37:18.650 --> 00:37:23.530
I can think of, like I think 20% are sex offenders.

723
00:37:23.530 --> 00:37:24.363
<v ->All right, yeah.</v>

724
00:37:24.363 --> 00:37:29.070
And then there are another 15% who are lifers,

725
00:37:29.070 --> 00:37:31.638
and we'll assume those are all violent offenses.

726
00:37:31.638 --> 00:37:34.930
I'm not sure, Your Honor, maybe 50%.

727
00:37:37.257 --> 00:37:40.330
<v ->So that would mean 50% of the DOC population</v>

728
00:37:40.330 --> 00:37:42.240
is in there for non-violent offenses?

729
00:37:44.889 --> 00:37:46.920
<v ->I wouldn't hold me to that.</v>

730
00:37:46.920 --> 00:37:49.520
<v ->Okay, do you know,</v>

731
00:37:49.520 --> 00:37:53.240
on page 23 of your brief, I think,

732
00:37:53.240 --> 00:37:57.950
you mention stress on services, is that right?

733
00:37:57.950 --> 00:38:00.490
<v ->I'm sorry, I couldn't understand.</v>

734
00:38:00.490 --> 00:38:03.420
<v ->Oh, on page 23 of your brief,</v>

735
00:38:03.420 --> 00:38:06.140
I think you mentioned that there would be

736
00:38:06.140 --> 00:38:08.550
a stress on services,

737
00:38:10.566 --> 00:38:12.116
and I guess I was just curious,

738
00:38:13.267 --> 00:38:15.017
let me see if I can just find that.

739
00:38:16.740 --> 00:38:18.410
Well, I'll come back to that later.

740
00:38:18.410 --> 00:38:19.968
My question was,

741
00:38:19.968 --> 00:38:24.720
if we granted the release that you're requesting,

742
00:38:24.720 --> 00:38:27.680
what would be the impact on social services

743
00:38:27.680 --> 00:38:29.230
outside of the facilities?

744
00:38:31.470 --> 00:38:36.060
<v ->Well, I think that, we did submit affidavits</v>

745
00:38:36.060 --> 00:38:40.640
from doctors at the BMC describing

746
00:38:40.640 --> 00:38:42.650
a lot of the efforts that are being made

747
00:38:42.650 --> 00:38:45.190
out in the community to provide services

748
00:38:45.190 --> 00:38:48.123
for people who might otherwise be homeless

749
00:38:48.123 --> 00:38:53.123
and have difficulty accessing resources.

750
00:38:53.800 --> 00:38:57.580
So I think there's a lot more than there was.

751
00:38:58.910 --> 00:39:03.910
What the ability of the community to handle more people is,

752
00:39:06.040 --> 00:39:08.530
I can't talk about in detail,

753
00:39:08.530 --> 00:39:13.010
but I know there a lot of efforts being made.

754
00:39:13.010 --> 00:39:15.670
The affidavit describes those efforts.

755
00:39:17.420 --> 00:39:19.430
<v ->Now one other question,</v>

756
00:39:19.430 --> 00:39:20.860
in fact, in the,

757
00:39:20.860 --> 00:39:23.920
I think in the Department of Corrections brief,

758
00:39:23.920 --> 00:39:25.700
in the back of the brief in the appendix,

759
00:39:25.700 --> 00:39:27.220
there is an opinion,

760
00:39:28.312 --> 00:39:31.550
I forget the name of it, but it's by Judge Callen.

761
00:39:31.550 --> 00:39:34.963
And she noted that the homeless shelters are full.

762
00:39:34.963 --> 00:39:36.350
How do we,

763
00:39:36.350 --> 00:39:37.680
we have to, do you agree,

764
00:39:37.680 --> 00:39:40.670
we have to weigh that kind of factor in to our analysis?

765
00:39:42.340 --> 00:39:46.680
<v ->I think it's a tricky question, Your Honor,</v>

766
00:39:46.680 --> 00:39:51.680
because prisoners have a right to Constitutional protections

767
00:39:54.576 --> 00:39:57.520
that other people don't,

768
00:39:57.520 --> 00:40:00.060
so I keep going back to California,

769
00:40:00.060 --> 00:40:02.020
but when they released people

770
00:40:02.020 --> 00:40:04.120
because of inadequate medical care,

771
00:40:04.120 --> 00:40:06.390
they didn't ask the question,

772
00:40:06.390 --> 00:40:08.530
would they get better medical care

773
00:40:08.530 --> 00:40:09.920
out in the community, where--

774
00:40:09.920 --> 00:40:12.790
<v ->Oh, I'm not asking about any medical care.</v>

775
00:40:12.790 --> 00:40:14.030
The equivalent would be

776
00:40:14.030 --> 00:40:16.620
any medical care in the community, not better.

777
00:40:16.620 --> 00:40:17.860
<v ->Look, it may not have had.</v>

778
00:40:17.860 --> 00:40:20.800
Yeah, they may have had none, and yet that didn't--

779
00:40:20.800 --> 00:40:24.010
<v ->And they still may get none if they are released.</v>

780
00:40:24.010 --> 00:40:25.670
<v ->That's right, but in the prison,</v>

781
00:40:25.670 --> 00:40:28.580
they were getting some, but it wasn't enough

782
00:40:28.580 --> 00:40:31.260
and so the court ordered them to be released

783
00:40:31.260 --> 00:40:33.940
despite the fact that in the community

784
00:40:33.940 --> 00:40:35.780
they might have gotten none.

785
00:40:35.780 --> 00:40:40.270
Similarly, if someone is released from a DOC prison,

786
00:40:40.270 --> 00:40:41.950
they may be homeless.

787
00:40:41.950 --> 00:40:44.980
And I don't mean to be callous about that,

788
00:40:44.980 --> 00:40:49.750
but from a Constitutional perspective, that doesn't matter.

789
00:40:49.750 --> 00:40:54.750
But I do think that the affidavit from the BMC doctors

790
00:40:55.245 --> 00:41:00.245
describes quite thoroughly that there are more services

791
00:41:00.820 --> 00:41:04.540
available and that sick people could be taken care of.

792
00:41:04.540 --> 00:41:07.150
<v ->I think Justice Callen, Judge Callen noted also</v>

793
00:41:07.150 --> 00:41:11.270
that there's no guarantee that when released

794
00:41:11.270 --> 00:41:14.085
they would be able to practice socially distancing

795
00:41:14.085 --> 00:41:17.150
or be able to be safe,

796
00:41:17.150 --> 00:41:19.580
and I am wondering,

797
00:41:19.580 --> 00:41:23.730
this is a very unique situation, thank goodness,

798
00:41:23.730 --> 00:41:27.820
but most of the cases,

799
00:41:27.820 --> 00:41:30.430
other than the more recent COVID-19 cases,

800
00:41:30.430 --> 00:41:33.040
most of those are dealing with situations

801
00:41:33.040 --> 00:41:34.830
that only involve the prisons,

802
00:41:35.930 --> 00:41:37.860
such as lack of water or lack of plumbing

803
00:41:37.860 --> 00:41:42.480
or some other kind of egregious situation.

804
00:41:42.480 --> 00:41:45.190
Here we have something that is affecting

805
00:41:45.190 --> 00:41:48.160
the entire Commonwealth.

806
00:41:48.160 --> 00:41:51.110
Doesn't that factor into our analysis also

807
00:41:51.110 --> 00:41:52.040
in these circumstances?

808
00:41:52.040 --> 00:41:54.450
Doesn't that take those cases into a different realm,

809
00:41:54.450 --> 00:41:57.080
is I guess what I'm asking.

810
00:41:57.080 --> 00:41:59.290
<v ->Well, obviously this is a unique situation,</v>

811
00:41:59.290 --> 00:42:02.150
but what we have now is prisoners

812
00:42:02.150 --> 00:42:05.660
who are confined in crowded dorms

813
00:42:05.660 --> 00:42:08.150
where they don't have the option

814
00:42:08.150 --> 00:42:09.720
of trying to social distance

815
00:42:09.720 --> 00:42:14.430
because the living situation that they are forced to be in

816
00:42:14.430 --> 00:42:17.840
prevents them from taking action that

817
00:42:17.840 --> 00:42:20.510
if they were out on the street, even homeless,

818
00:42:20.510 --> 00:42:24.580
they could make sure that they could stay away

819
00:42:24.580 --> 00:42:26.468
from other people.

820
00:42:26.468 --> 00:42:30.510
So it's, they are being compelled to live

821
00:42:30.510 --> 00:42:34.820
in situations where social distancing is impossible.

822
00:42:34.820 --> 00:42:36.340
You know, it may be difficult

823
00:42:36.340 --> 00:42:38.640
for some people out in the community also,

824
00:42:38.640 --> 00:42:39.660
as a practical matter,

825
00:42:39.660 --> 00:42:42.190
but people have options in the community

826
00:42:42.190 --> 00:42:43.740
that they don't have in prison.

827
00:42:44.690 --> 00:42:47.980
<v ->And one thing you suggested in your brief, on page,</v>

828
00:42:47.980 --> 00:42:51.680
well said in your brief, in page 44 of your brief,

829
00:42:51.680 --> 00:42:53.780
that they have done almost nothing.

830
00:42:53.780 --> 00:42:56.320
Do you still maintain that,

831
00:42:56.320 --> 00:42:59.330
that the DOC has done, and the parole board

832
00:42:59.330 --> 00:43:00.730
has done almost nothing?

833
00:43:02.440 --> 00:43:03.640
<v ->Almost nothing,</v>

834
00:43:03.640 --> 00:43:05.600
I don't have that page in front of me,

835
00:43:05.600 --> 00:43:08.250
almost nothing to try to get people out early,

836
00:43:08.250 --> 00:43:13.250
I think is what I was referring to there.

837
00:43:14.130 --> 00:43:15.120
<v ->Okay.</v>
<v ->I mean, obviously</v>

838
00:43:15.120 --> 00:43:18.040
they've done things to try to increase hygiene and that,

839
00:43:18.040 --> 00:43:19.630
and the like inside the prison.

840
00:43:22.290 --> 00:43:26.110
<v ->Now, I guess that brings me to my other question</v>

841
00:43:26.110 --> 00:43:31.110
regarding the Commissioner of the DOC and the secretary,

842
00:43:31.660 --> 00:43:34.110
and that is, can you explain to me

843
00:43:34.110 --> 00:43:36.310
how they have been deliberately indifferent?

844
00:43:38.550 --> 00:43:40.760
<v ->Well, I think that they are,</v>

845
00:43:40.760 --> 00:43:45.260
and this goes back, I think to Judge Lowy's point about,

846
00:43:45.260 --> 00:43:48.520
what is the meaning of deliberate indifference here.

847
00:43:48.520 --> 00:43:51.950
And it does not mean that the court has to find

848
00:43:51.950 --> 00:43:56.320
that they have had kind of a bad motive,

849
00:43:56.320 --> 00:44:00.363
or that it's that they are face with--

850
00:44:06.550 --> 00:44:07.900
<v ->Now exiting.</v>

851
00:44:07.900 --> 00:44:08.733
<v ->Scott Kafker.</v>

852
00:44:09.928 --> 00:44:12.418
(beeping)

853
00:44:12.418 --> 00:44:15.130
<v ->One second, we appear appear to have lost Justice Kafker</v>

854
00:44:15.130 --> 00:44:15.963
for reasons--

855
00:44:15.963 --> 00:44:18.084
<v ->He's just tired of listening to me.</v>

856
00:44:18.084 --> 00:44:20.077
<v ->Well, that might be, but we still need him back.</v>

857
00:44:20.077 --> 00:44:21.380
(Justice Cypher laughing)

858
00:44:21.380 --> 00:44:24.530
Can somebody text him to make sure that he knows what,

859
00:44:24.530 --> 00:44:25.780
I'm sure he does know.

860
00:44:25.780 --> 00:44:27.810
So we'll wait for him to come back.

861
00:44:27.810 --> 00:44:28.643
<v ->Okay.</v>

862
00:45:44.050 --> 00:45:46.795
<v ->Now joining, name not recorded.</v>

863
00:45:46.795 --> 00:45:48.010
(device beeps)

864
00:45:48.010 --> 00:45:48.843
<v ->Justice Kafker.</v>

865
00:45:48.843 --> 00:45:50.060
<v ->I'm back.</v>

866
00:45:50.060 --> 00:45:50.893
<v ->Okay.</v>

867
00:45:50.893 --> 00:45:54.810
<v ->For some reason, after Justice Cypher</v>

868
00:45:54.810 --> 00:45:57.751
asked the deliberate indifference question,

869
00:45:57.751 --> 00:45:58.690
things went silent.

870
00:45:58.690 --> 00:46:00.150
I didn't touch anything, but.

871
00:46:00.150 --> 00:46:01.741
<v ->Okay, all right.</v>

872
00:46:01.741 --> 00:46:02.980
<v ->That's where I disappeared.</v>

873
00:46:04.061 --> 00:46:05.010
<v ->You're in good company,</v>

874
00:46:05.010 --> 00:46:07.890
apparently it happened to Justice Breyer yesterday so,

875
00:46:07.890 --> 00:46:10.250
any event, Justice Cypher, you may proceed.

876
00:46:10.250 --> 00:46:13.240
<v ->Yes, well why don't we have the answer again</v>

877
00:46:13.240 --> 00:46:15.370
to the deliberate indifference question

878
00:46:15.370 --> 00:46:17.120
so that justice Kafker can hear it.

879
00:46:18.205 --> 00:46:21.130
<v ->I don't think I've actually answered it yet.</v>

880
00:46:21.130 --> 00:46:21.963
<v ->Oh, okay. (laughing)</v>

881
00:46:21.963 --> 00:46:23.385
<v ->But I think your question was,</v>

882
00:46:23.385 --> 00:46:27.360
in what way are the Commissioner--

883
00:46:27.360 --> 00:46:29.130
<v ->The Commissioner and the secretary, right,</v>

884
00:46:29.130 --> 00:46:30.052
being deliberately indifferent.

885
00:46:30.052 --> 00:46:32.016
<v ->And the secretary being deliberate indifferent,</v>

886
00:46:32.016 --> 00:46:37.016
and I think, I am referring to efforts taken

887
00:46:37.360 --> 00:46:39.200
to reduce the population.

888
00:46:40.200 --> 00:46:45.060
That the department itself has actually

889
00:46:45.060 --> 00:46:48.470
decreased the availability of earned good time

890
00:46:48.470 --> 00:46:49.810
and not through--

891
00:46:49.810 --> 00:46:52.120
<v ->All right, well, isn't the right remedy,</v>

892
00:46:52.120 --> 00:46:53.790
would the right remedy to be for your group

893
00:46:53.790 --> 00:46:54.820
to go to the legislature

894
00:46:54.820 --> 00:46:56.956
and ask for some emergency legislation

895
00:46:56.956 --> 00:46:59.770
to handle the good-time credit issue?

896
00:46:59.770 --> 00:47:01.710
I'm not sure I understand how the,

897
00:47:02.740 --> 00:47:04.790
so the Commissioner can take care of that

898
00:47:04.790 --> 00:47:07.300
and still follow the CDC guidelines.

899
00:47:08.180 --> 00:47:10.470
<v ->Well, I think it's true</v>

900
00:47:10.470 --> 00:47:12.560
that the Commissioner doesn't have

901
00:47:12.560 --> 00:47:15.886
the statutory authority to release people

902
00:47:15.886 --> 00:47:18.110
in violation of a statute

903
00:47:18.110 --> 00:47:22.240
or to give more good time than a statute allows.

904
00:47:22.240 --> 00:47:25.310
The Governor probably has that ability

905
00:47:25.310 --> 00:47:27.850
in his emergency powers,

906
00:47:27.850 --> 00:47:30.773
but I think the main point is

907
00:47:30.773 --> 00:47:34.000
that in order for this court

908
00:47:34.000 --> 00:47:39.000
to order a remedy that might involve releasing people,

909
00:47:39.890 --> 00:47:43.260
and even releasing people where statutes say

910
00:47:43.260 --> 00:47:45.100
they can't be released,

911
00:47:45.100 --> 00:47:49.380
that is something that this court has the authority to do

912
00:47:49.380 --> 00:47:51.820
to remedy a Constitutional violation

913
00:47:51.820 --> 00:47:55.980
and it does not have to find that Commissioner Mici

914
00:47:55.980 --> 00:47:59.070
was not acting in good faith.

915
00:47:59.070 --> 00:48:00.500
<v ->Well then,</v>

916
00:48:00.500 --> 00:48:03.370
so then if she's not act,

917
00:48:05.080 --> 00:48:09.180
if her actions are not permitted by law,

918
00:48:09.180 --> 00:48:10.900
she would not be in violation,

919
00:48:10.900 --> 00:48:13.130
she would not be being deliberately indifferent.

920
00:48:13.130 --> 00:48:14.400
Isn't that correct?

921
00:48:14.400 --> 00:48:16.970
<v ->No, it's not correct, Your Honor.</v>

922
00:48:16.970 --> 00:48:19.520
And that, I think, goes back

923
00:48:19.520 --> 00:48:20.967
to the sort of conceptual problem

924
00:48:20.967 --> 00:48:25.967
with the concept of subjective deliberate indifference,

925
00:48:27.620 --> 00:48:29.410
and I think it's why the Supreme Court,

926
00:48:29.410 --> 00:48:30.950
in the Kingsley case,

927
00:48:30.950 --> 00:48:33.760
sort of said it has no role

928
00:48:33.760 --> 00:48:35.990
with respect to pretrial detainees,

929
00:48:35.990 --> 00:48:38.530
and it's questionable whether it should have any role

930
00:48:38.530 --> 00:48:41.301
with respect to sentenced people.

931
00:48:41.301 --> 00:48:43.620
And that's because,

932
00:48:43.620 --> 00:48:45.060
it almost makes no sense

933
00:48:45.060 --> 00:48:49.772
when you have a defendant sued in their official capacity

934
00:48:49.772 --> 00:48:51.430
so that they're really,

935
00:48:51.430 --> 00:48:55.165
you're suing the official, not the person,

936
00:48:55.165 --> 00:48:58.130
to think about what their intent is.

937
00:48:58.130 --> 00:49:00.792
And where you have a system

938
00:49:00.792 --> 00:49:03.430
that is sort of intractable

939
00:49:03.430 --> 00:49:06.392
and sort of beyond the power of any individual

940
00:49:06.392 --> 00:49:10.360
to fix, that doesn't insulate it

941
00:49:10.360 --> 00:49:13.250
from having to comply with the Constitution,

942
00:49:13.250 --> 00:49:16.518
which is why this court has said over and over again

943
00:49:16.518 --> 00:49:20.940
that even where the prison defendants

944
00:49:20.940 --> 00:49:25.110
have no ability to address the Constitutional violation,

945
00:49:25.110 --> 00:49:27.704
that doesn't excuse the violation

946
00:49:27.704 --> 00:49:32.704
or deprive the court of the obligation

947
00:49:33.670 --> 00:49:36.630
to have it order a remedy.
<v ->All right.</v>

948
00:49:36.630 --> 00:49:38.910
Well what's your best case for me to read

949
00:49:38.910 --> 00:49:43.400
on this subjective objective conceptual problem?

950
00:49:45.470 --> 00:49:48.480
<v ->Well, I think there are a number of them,</v>

951
00:49:48.480 --> 00:49:51.250
but just looking at Massachusetts cases,

952
00:49:51.250 --> 00:49:54.960
if you look at the Michaud case,

953
00:49:56.003 --> 00:49:57.150
where the court said,

954
00:49:57.150 --> 00:50:00.417
we flatly, emphatically reject the notion

955
00:50:00.417 --> 00:50:05.417
that lack of resources can excuse providing a remedy.

956
00:50:06.480 --> 00:50:09.650
In McKnight, there's a footnote

957
00:50:09.650 --> 00:50:11.940
where this court said,

958
00:50:11.940 --> 00:50:16.940
if conditions are unconstitutional in prisons

959
00:50:17.050 --> 00:50:20.520
and can't be remedied,

960
00:50:20.520 --> 00:50:25.240
then the solution should be early release of some prisoners.

961
00:50:25.240 --> 00:50:30.240
In Richardson the court affirmed a population cap.

962
00:50:31.380 --> 00:50:32.213
<v ->All right.</v>

963
00:50:33.320 --> 00:50:36.240
<v ->Despite the fact that that obviously was inconsistent</v>

964
00:50:36.240 --> 00:50:37.073
with the DOC.

965
00:50:37.073 --> 00:50:39.830
<v ->Okay, and those are all cited in your brief,</v>

966
00:50:39.830 --> 00:50:44.490
but you don't have like one or one US Supreme Court case

967
00:50:44.490 --> 00:50:47.270
that would be an example of this.

968
00:50:47.270 --> 00:50:49.710
<v ->The Supreme Court is,</v>

969
00:50:49.710 --> 00:50:52.100
I mean, Plata is a case where the court said

970
00:50:52.100 --> 00:50:56.050
it was impossible for the defendants to do anything,

971
00:50:56.050 --> 00:50:59.280
yet they still ordered release.

972
00:50:59.280 --> 00:51:02.100
<v ->Okay, one other,</v>

973
00:51:03.671 --> 00:51:06.180
thinking about this in terms of populations,

974
00:51:07.323 --> 00:51:10.160
has there been any attempt to compare

975
00:51:10.160 --> 00:51:13.770
the prison population to military populations

976
00:51:13.770 --> 00:51:16.350
that are enclosed, or nursing home populations?

977
00:51:18.030 --> 00:51:19.970
<v ->When you say any attempt to compare it,</v>

978
00:51:19.970 --> 00:51:24.800
I think those are certainly different kinds of contexts

979
00:51:24.800 --> 00:51:28.010
where the risk of infection is obviously high

980
00:51:28.010 --> 00:51:31.500
because people are forced into congregate settings

981
00:51:31.500 --> 00:51:32.760
with each other,

982
00:51:32.760 --> 00:51:37.760
and so that is why we're so concerned about prisons.

983
00:51:40.120 --> 00:51:42.890
Because like nursing homes, like cruise ships,

984
00:51:44.420 --> 00:51:48.033
there is very limited ability to social distance

985
00:51:48.033 --> 00:51:50.230
and that's why the infection rates are so high.

986
00:51:50.230 --> 00:51:52.130
<v ->All right, thank you.</v>

987
00:51:52.130 --> 00:51:55.570
Now I've got just two more questions, I hope.

988
00:51:55.570 --> 00:51:58.460
And that is related to

989
00:52:00.398 --> 00:52:03.577
Statute 123, Section 35 in the MASS Act.

990
00:52:04.980 --> 00:52:07.250
Right now, I believe the DOC brief says

991
00:52:07.250 --> 00:52:09.290
they have 28 patients.

992
00:52:09.290 --> 00:52:10.440
Which means they're operating

993
00:52:10.440 --> 00:52:13.990
at 81.5% below its designed capacity,

994
00:52:13.990 --> 00:52:18.700
and 90% below operational capacity.

995
00:52:18.700 --> 00:52:20.730
That sounds pretty good to me.

996
00:52:22.310 --> 00:52:23.990
<v ->It's a low population,</v>

997
00:52:23.990 --> 00:52:28.460
and it think it reflects the views that have been expressed

998
00:52:28.460 --> 00:52:32.980
by SANSA, the federal agency that's responsible for this.

999
00:52:32.980 --> 00:52:36.210
Involuntary commitment is not a good idea

1000
00:52:36.210 --> 00:52:39.140
in these circumstances for anyone.

1001
00:52:39.140 --> 00:52:41.380
It's especially not a good idea

1002
00:52:41.380 --> 00:52:43.160
for people to be sent to a prison.

1003
00:52:44.213 --> 00:52:48.350
But let me talk a little bit about the structure of MASAC.

1004
00:52:49.560 --> 00:52:53.480
Ordinarily they have what they call a C Building,

1005
00:52:53.480 --> 00:52:57.120
which is where typically new admissions go

1006
00:52:57.120 --> 00:52:59.084
and then they move to A and B.

1007
00:52:59.084 --> 00:53:04.084
And in A and B, under normal circumstances in the past,

1008
00:53:05.260 --> 00:53:07.320
people tended to be double celled,

1009
00:53:07.320 --> 00:53:08.870
now they are single celled,

1010
00:53:08.870 --> 00:53:13.270
so in that sense, they can sleep in a setting

1011
00:53:13.270 --> 00:53:15.280
where they're six feet apart.

1012
00:53:15.280 --> 00:53:18.560
And then the C building is where they get quarantined

1013
00:53:18.560 --> 00:53:20.520
and they're six feet apart,

1014
00:53:20.520 --> 00:53:23.550
but they're not getting any,

1015
00:53:23.550 --> 00:53:26.723
except nominal treatment, for at least the first 14 days.

1016
00:53:26.723 --> 00:53:27.590
<v ->All right.</v>

1017
00:53:27.590 --> 00:53:29.590
And then I have one final question,

1018
00:53:29.590 --> 00:53:31.570
and that is, of the cases that you've cited

1019
00:53:31.570 --> 00:53:33.800
regarding the COVID-19 situation,

1020
00:53:35.885 --> 00:53:38.380
are any of those cases involving situations

1021
00:53:38.380 --> 00:53:40.280
where the court has ordered

1022
00:53:40.280 --> 00:53:43.690
the Executive Branch to do something?

1023
00:53:43.690 --> 00:53:47.430
Where there is a specific provision in the Constitution

1024
00:53:47.430 --> 00:53:48.750
for separation of powers.

1025
00:53:50.624 --> 00:53:53.360
<v ->Well I'm not quite sure I follow</v>

1026
00:53:53.360 --> 00:53:55.880
your thinking there, Your Honor.

1027
00:53:55.880 --> 00:53:59.410
<v ->You've cited a lot of cases, of COVID-19 cases,</v>

1028
00:53:59.410 --> 00:54:01.220
and sometimes it's hard for me to tell

1029
00:54:01.220 --> 00:54:03.000
when I'm reading it, the brief,

1030
00:54:03.000 --> 00:54:04.370
are these just detainees?

1031
00:54:04.370 --> 00:54:05.300
Were they inmates?

1032
00:54:05.300 --> 00:54:07.520
Whatever, but putting that aside,

1033
00:54:07.520 --> 00:54:10.890
in those cases you cited in support of your proposition,

1034
00:54:10.890 --> 00:54:15.890
I want to know, are any of those states similarly situated

1035
00:54:16.410 --> 00:54:20.160
to Massachusetts, in that they have a specific provision

1036
00:54:20.160 --> 00:54:21.900
in their Constitution

1037
00:54:21.900 --> 00:54:23.600
regarding separation of powers?

1038
00:54:25.950 --> 00:54:27.100
<v ->I don't know.</v>

1039
00:54:27.100 --> 00:54:29.020
My view, I think is,

1040
00:54:29.020 --> 00:54:30.250
well most every state has

1041
00:54:30.250 --> 00:54:32.080
a separation of powers clause in their Constitution.

1042
00:54:32.080 --> 00:54:33.660
<v ->I don't think that's accurate.</v>

1043
00:54:33.660 --> 00:54:34.910
I don't think that's accurate.

1044
00:54:34.910 --> 00:54:37.210
<v ->That may be, but I don't think Article 30</v>

1045
00:54:37.210 --> 00:54:39.834
is a bar to this court

1046
00:54:39.834 --> 00:54:44.834
ordering the Department of Correction

1047
00:54:45.130 --> 00:54:49.510
to take actions to remedy a Constitutional violation.

1048
00:54:49.510 --> 00:54:52.394
<v ->But would you agree we can't order the Governor</v>

1049
00:54:52.394 --> 00:54:54.650
to exercise his emergency power.

1050
00:54:55.860 --> 00:54:58.130
<v ->I think you can order the Governor</v>

1051
00:54:58.130 --> 00:55:01.643
to take action to release prisoners,

1052
00:55:01.643 --> 00:55:06.643
and if that entails exercising his emergency power

1053
00:55:07.130 --> 00:55:09.470
as something that he chooses to do

1054
00:55:09.470 --> 00:55:12.510
to accomplish what needs to be done,

1055
00:55:12.510 --> 00:55:14.070
then that would be his choice.

1056
00:55:14.070 --> 00:55:16.140
You don't have to say to him,

1057
00:55:16.140 --> 00:55:18.270
I order you to declare an emergency.

1058
00:55:18.270 --> 00:55:20.350
<v ->I promise this is my final question, Chief.</v>

1059
00:55:20.350 --> 00:55:22.610
I promise this is my final question.

1060
00:55:22.610 --> 00:55:25.190
Wouldn't this put us, really, in the position,

1061
00:55:25.190 --> 00:55:27.670
as the Court, of running the prisons

1062
00:55:27.670 --> 00:55:31.210
instead of letting the people who have been trained to do it

1063
00:55:31.210 --> 00:55:33.530
and have experience do it, letting them do it.

1064
00:55:34.860 --> 00:55:38.940
<v ->No, I think that this court,</v>

1065
00:55:38.940 --> 00:55:41.290
like many courts have found,

1066
00:55:41.290 --> 00:55:43.826
where there is a constitutional violation,

1067
00:55:43.826 --> 00:55:48.671
that remedies can include releasing people.

1068
00:55:48.671 --> 00:55:52.670
And that doesn't mean that you're

1069
00:55:54.320 --> 00:55:58.110
intruding too far into the operations of the prison system.

1070
00:55:58.110 --> 00:56:00.740
How you go about doing it

1071
00:56:01.920 --> 00:56:05.643
might, but, for example,

1072
00:56:05.643 --> 00:56:10.170
what happened in Plata after the Supreme Court decision

1073
00:56:10.170 --> 00:56:12.170
was, well okay, now we have to actually

1074
00:56:12.170 --> 00:56:13.350
get these people out of here,

1075
00:56:13.350 --> 00:56:14.880
and how are we gonna do it?

1076
00:56:14.880 --> 00:56:18.010
And that became somewhat complicated

1077
00:56:18.010 --> 00:56:22.130
and the district court ended up saying to the defendants,

1078
00:56:22.130 --> 00:56:27.130
all right, there have been a lot of mechanisms proposed

1079
00:56:27.360 --> 00:56:28.630
for releasing people.

1080
00:56:28.630 --> 00:56:32.420
I am ordering you to look at that list

1081
00:56:32.420 --> 00:56:35.780
and tell me, in order of priority,

1082
00:56:35.780 --> 00:56:38.880
which one of these things you would like to do first,

1083
00:56:38.880 --> 00:56:42.060
what the consequences would be of doing that,

1084
00:56:42.060 --> 00:56:44.490
like if you were to release more people

1085
00:56:44.490 --> 00:56:45.590
on medical parole,

1086
00:56:45.590 --> 00:56:48.100
if you were to put people on home confinement.

1087
00:56:48.100 --> 00:56:49.770
Tell the Commissioner,

1088
00:56:50.630 --> 00:56:52.150
give me your solutions.

1089
00:56:52.150 --> 00:56:54.540
I want you to release people

1090
00:56:54.540 --> 00:56:56.620
so that there can be social distancing.

1091
00:56:56.620 --> 00:56:58.510
You tell me the best way to do it.

1092
00:56:58.510 --> 00:57:02.650
This court doesn't have to decide itself

1093
00:57:02.650 --> 00:57:04.730
what the best way to do it would be.

1094
00:57:04.730 --> 00:57:06.350
It would be perfectly appropriate

1095
00:57:06.350 --> 00:57:08.680
to go back to the Department of Corrections

1096
00:57:08.680 --> 00:57:10.060
and get their input.

1097
00:57:10.060 --> 00:57:11.560
<v ->And so, but then they respond,</v>

1098
00:57:11.560 --> 00:57:13.800
well look, we can't do it under the furlough statute,

1099
00:57:13.800 --> 00:57:16.380
because really that has a limitation in it

1100
00:57:16.380 --> 00:57:20.160
of 14 days per year, or 30 days per year.

1101
00:57:20.160 --> 00:57:21.430
<v ->You could say,</v>

1102
00:57:21.430 --> 00:57:26.430
I am ordering you to use the furlough process,

1103
00:57:27.470 --> 00:57:30.220
despite the statutory limitations.

1104
00:57:30.220 --> 00:57:34.160
This court has the explicit authority to do that.

1105
00:57:34.160 --> 00:57:37.660
<v ->All right, I'm finished, thank you.</v>

1106
00:57:37.660 --> 00:57:38.493
<v ->Justice Kafker.</v>

1107
00:57:38.493 --> 00:57:39.326
<v ->Thank you.</v>

1108
00:57:40.170 --> 00:57:42.074
<v ->I guess, I'm still looking</v>

1109
00:57:42.074 --> 00:57:44.700
at the case on deliberative indifference.

1110
00:57:44.700 --> 00:57:48.650
'cause Plata, Plata the Governor condeded

1111
00:57:48.650 --> 00:57:50.350
there was cruel or unusual punishment

1112
00:57:50.350 --> 00:57:51.990
in that case, correct?

1113
00:57:51.990 --> 00:57:52.823
Isn't that--

1114
00:57:52.823 --> 00:57:54.970
A stipulation that there was

1115
00:57:54.970 --> 00:57:56.629
cruel or unusual.

1116
00:57:56.629 --> 00:58:00.220
<v ->That the stipulation needed a remedy of some sort, yeah.</v>

1117
00:58:01.653 --> 00:58:05.680
<v ->So they concluded it was cruel.</v>

1118
00:58:05.680 --> 00:58:08.550
<v ->At that point, when it went to the court,</v>

1119
00:58:08.550 --> 00:58:13.030
the issue wasn't, are we providing adequate medical care,

1120
00:58:13.030 --> 00:58:15.080
it was assumed that they were not.

1121
00:58:16.128 --> 00:58:19.050
<v ->And Richardson is a pretrial,</v>

1122
00:58:19.050 --> 00:58:21.300
the case, our case used in reference,

1123
00:58:21.300 --> 00:58:23.240
that's a pretrial detainee case,

1124
00:58:23.240 --> 00:58:27.190
and I read the pretrial detainee cases

1125
00:58:27.190 --> 00:58:29.400
as setting up a different standard,

1126
00:58:29.400 --> 00:58:32.260
including one we issued a couple of weeks ago.

1127
00:58:32.260 --> 00:58:34.160
So give me a case

1128
00:58:35.300 --> 00:58:40.300
in which we've got, not pretrial detainees, not immigrants,

1129
00:58:40.620 --> 00:58:43.340
and not conceded violations

1130
00:58:46.040 --> 00:58:49.380
where we have cruel or unusual punishment.

1131
00:58:49.380 --> 00:58:51.780
'cause deliberative indifference

1132
00:58:51.780 --> 00:58:52.980
has a real meaning here.

1133
00:58:52.980 --> 00:58:56.080
We're forcing a Constitutional provision

1134
00:58:56.080 --> 00:58:57.940
about cruel or unusual punishment,

1135
00:58:57.940 --> 00:59:00.520
or cruel and unusual punishment.

1136
00:59:00.520 --> 00:59:03.580
So tell me the case I should read.

1137
00:59:03.580 --> 00:59:05.012
'cause I'm not persuaded

1138
00:59:05.012 --> 00:59:08.040
that you've pointed out any cases like this one yet.

1139
00:59:12.830 --> 00:59:16.110
<v ->What immediately comes to mind, Your Honor,</v>

1140
00:59:16.110 --> 00:59:18.890
are the many cases that were decided

1141
00:59:18.890 --> 00:59:20.350
in the Superior Court

1142
00:59:21.250 --> 00:59:22.450
dealing with overcrowding

1143
00:59:22.450 --> 00:59:25.480
and kind of how the corrections caps were ordered.

1144
00:59:26.560 --> 00:59:29.970
And those cases included

1145
00:59:29.970 --> 00:59:32.840
pretrial detainees, but also sentenced people.

1146
00:59:35.176 --> 00:59:36.080
<v ->But no appellate court,</v>

1147
00:59:36.080 --> 00:59:37.930
you don't have any--

1148
00:59:37.930 --> 00:59:41.616
<v ->Well there are plenty of overcrowding cases</v>

1149
00:59:41.616 --> 00:59:43.270
around the country

1150
00:59:43.270 --> 00:59:45.330
and that's sort of even been addressed

1151
00:59:45.330 --> 00:59:48.420
in the prison litigation on format,

1152
00:59:48.420 --> 00:59:51.451
which is designed to try to limit

1153
00:59:51.451 --> 00:59:56.451
the ability of courts to order releases,

1154
00:59:56.550 --> 00:59:59.720
but even there, it's recognized that

1155
00:59:59.720 --> 01:00:04.706
if the population levels are so high

1156
01:00:04.706 --> 01:00:07.230
that you need to release people

1157
01:00:07.230 --> 01:00:09.060
to make conditions Constitutional,

1158
01:00:10.614 --> 01:00:12.190
the courts have the authority

1159
01:00:12.190 --> 01:00:13.910
under the Constitution to do that.

1160
01:00:13.910 --> 01:00:16.880
And they don't have to find that,

1161
01:00:18.190 --> 01:00:20.742
'cause it's almost implicit in overcrowding cases,

1162
01:00:20.742 --> 01:00:23.248
that the correctional officials

1163
01:00:23.248 --> 01:00:26.190
don't have any power to control

1164
01:00:26.190 --> 01:00:27.890
the admissions to the facility,

1165
01:00:27.890 --> 01:00:32.550
and yet they're stuck with the people sent to them

1166
01:00:32.550 --> 01:00:35.070
by the courts, but that doesn't mean that--

1167
01:00:35.070 --> 01:00:38.640
<v ->But aren't these all cases, like Justice Lowy pointed out,</v>

1168
01:00:38.640 --> 01:00:42.530
that involve decades, if not years

1169
01:00:42.530 --> 01:00:47.530
of failure to adequately construct prisons

1170
01:00:47.850 --> 01:00:48.683
and other things.

1171
01:00:48.683 --> 01:00:50.050
It's not like this case,

1172
01:00:50.050 --> 01:00:53.310
where we've got a perfectly adequate system,

1173
01:00:54.220 --> 01:00:55.540
in terms of size,

1174
01:00:55.540 --> 01:00:59.820
but a virus can create some temporary problems.

1175
01:00:59.820 --> 01:01:01.990
Is there anything like that out there?

1176
01:01:01.990 --> 01:01:04.970
<v ->There are lots of overcrowding cases, yes.</v>

1177
01:01:04.970 --> 01:01:06.190
They sort of tend to--

1178
01:01:06.190 --> 01:01:08.670
<v ->No, no, I'm trying to be specific.</v>

1179
01:01:08.670 --> 01:01:10.600
'cause, you know, overcrowding,

1180
01:01:10.600 --> 01:01:12.720
if California, for 30 years,

1181
01:01:14.084 --> 01:01:17.340
keeps jamming hundreds of thousands of people in jail

1182
01:01:17.340 --> 01:01:18.610
and don't build prisons,

1183
01:01:19.750 --> 01:01:21.090
that's different from this.

1184
01:01:21.090 --> 01:01:21.923
I'm just trying to think,

1185
01:01:21.923 --> 01:01:25.300
is there anything close to on-point that you can,

1186
01:01:25.300 --> 01:01:28.080
just give me the best case that's close to on-point

1187
01:01:28.080 --> 01:01:32.110
where we've got a prison system

1188
01:01:32.110 --> 01:01:34.945
that's conscientiously and diligently

1189
01:01:34.945 --> 01:01:38.570
trying to respond to the problem

1190
01:01:38.570 --> 01:01:40.450
and it's a temporary one.

1191
01:01:40.450 --> 01:01:43.420
It may be not as short as all of us want,

1192
01:01:43.420 --> 01:01:48.420
but it's not like a structural problem

1193
01:01:48.470 --> 01:01:52.300
that hasn't been fixed for decades.

1194
01:01:52.300 --> 01:01:54.220
Anything out there that I can look at?

1195
01:01:55.280 --> 01:01:57.470
<v ->So if I follow you,</v>

1196
01:01:57.470 --> 01:02:00.148
what you're looking for is a case

1197
01:02:00.148 --> 01:02:05.148
where the problem isn't a long-standing one

1198
01:02:06.207 --> 01:02:11.207
and the court nonetheless ordered a prisoner release.

1199
01:02:13.750 --> 01:02:16.920
<v ->Because I read the deliberate indifference requirement,</v>

1200
01:02:18.150 --> 01:02:21.090
as it reads and as the cases say,

1201
01:02:21.090 --> 01:02:25.543
it requires a callousness in the face of,

1202
01:02:28.560 --> 01:02:30.070
and I don't see any of that here.

1203
01:02:30.070 --> 01:02:35.070
I see, you know, conscientious creative attempts

1204
01:02:35.578 --> 01:02:38.260
to respond to a terrible problem,

1205
01:02:38.260 --> 01:02:41.030
but I don't see deliberate indifference.

1206
01:02:41.030 --> 01:02:44.850
And the cases you're referencing don't seem to be on point.

1207
01:02:46.320 --> 01:02:49.930
<v ->Well, I think I disagree with you, Your Honor,</v>

1208
01:02:49.930 --> 01:02:52.740
about whether you need to show that kind of callousness.

1209
01:02:52.740 --> 01:02:56.590
I don't think that that is true as a matter of law.

1210
01:02:56.590 --> 01:03:01.470
And I think that this courts decisions in these show,

1211
01:03:01.470 --> 01:03:04.680
and other cases support that.

1212
01:03:04.680 --> 01:03:09.330
And I think that, yes, California

1213
01:03:09.330 --> 01:03:12.570
and some other situation where people have been released,

1214
01:03:12.570 --> 01:03:14.470
the problems have been long-standing,

1215
01:03:14.470 --> 01:03:17.660
but it's also clear in those cases,

1216
01:03:17.660 --> 01:03:22.660
that there is not callousness on the part of the defendants.

1217
01:03:22.783 --> 01:03:25.870
In Plata, the court explicitly talked

1218
01:03:25.870 --> 01:03:29.170
about the good faith of the defendant

1219
01:03:29.170 --> 01:03:31.342
doing everything they can, and this situation--

1220
01:03:31.342 --> 01:03:35.490
<v ->But Plata we have a conceded cruel or unusual punishment.</v>

1221
01:03:35.490 --> 01:03:36.323
It's conceded.

1222
01:03:37.300 --> 01:03:39.780
Here, we're dealing with the exact opposite,

1223
01:03:39.780 --> 01:03:42.150
which is, they say they're doing

1224
01:03:44.570 --> 01:03:45.950
everything they possibly can,

1225
01:03:45.950 --> 01:03:49.050
except for, and I recognize,

1226
01:03:49.050 --> 01:03:52.420
and so did the Superior Court judge, Judge Allman,

1227
01:03:52.420 --> 01:03:56.590
that they've not solved the six-foot distancing problem.

1228
01:03:56.590 --> 01:03:58.790
And I understand that, but I'm just not sure

1229
01:04:01.300 --> 01:04:03.970
the inability to solve that problem

1230
01:04:05.460 --> 01:04:07.690
is deliberate indifference.

1231
01:04:07.690 --> 01:04:10.950
There's a tight structural short-term problem.

1232
01:04:10.950 --> 01:04:13.470
<v ->Well I think that obviously first</v>

1233
01:04:13.470 --> 01:04:15.750
you have to meet the objective prime,

1234
01:04:15.750 --> 01:04:20.750
which is that the conditions themselves are unsafe.

1235
01:04:20.950 --> 01:04:23.720
And assuming we get to that point,

1236
01:04:23.720 --> 01:04:26.940
I think your concern is,

1237
01:04:26.940 --> 01:04:30.040
well even if that's so, even if the prisoners

1238
01:04:30.040 --> 01:04:33.600
are living under dangerous conditions

1239
01:04:33.600 --> 01:04:36.090
that other people don't have to live in,

1240
01:04:36.090 --> 01:04:40.250
is the fact that the Department of Correction

1241
01:04:40.250 --> 01:04:45.250
doesn't have the authority to release people

1242
01:04:45.937 --> 01:04:49.830
a defense to a claim that they should be released?

1243
01:04:49.830 --> 01:04:51.190
And I think it isn't.

1244
01:04:51.190 --> 01:04:56.010
I think that if you establish that the conditions are unsafe

1245
01:04:56.010 --> 01:05:00.370
and if you establish that,

1246
01:05:00.370 --> 01:05:03.448
then there's an obligation to do something

1247
01:05:03.448 --> 01:05:05.640
and that something is release

1248
01:05:05.640 --> 01:05:08.340
if that's the only thing that will enable people

1249
01:05:08.340 --> 01:05:10.836
to live six feet apart.

1250
01:05:10.836 --> 01:05:15.763
And so in that kind of situation,

1251
01:05:15.763 --> 01:05:20.763
the subjective mind of the defendants is pretty irrelevant.

1252
01:05:24.480 --> 01:05:26.124
<v ->But in your view, I guess,</v>

1253
01:05:26.124 --> 01:05:30.644
in order for this not to be cruel or unusual punishment

1254
01:05:30.644 --> 01:05:35.644
this court has to order the release

1255
01:05:36.843 --> 01:05:40.390
of a number of prisoners that would make sure

1256
01:05:40.390 --> 01:05:43.700
that they can all stay six feet apart.

1257
01:05:43.700 --> 01:05:45.270
Is that what you're saying?

1258
01:05:45.270 --> 01:05:47.810
<v ->That is what we're saying, Your Honor.</v>

1259
01:05:47.810 --> 01:05:51.090
We think that that would be the measure

1260
01:05:51.090 --> 01:05:53.940
of what would allow the prison system

1261
01:05:53.940 --> 01:05:58.940
to be safe enough for the people who are remaining in it.

1262
01:05:59.530 --> 01:06:03.840
<v ->That's regardless of the dangerousness</v>

1263
01:06:03.840 --> 01:06:06.830
or the suitability of the people

1264
01:06:06.830 --> 01:06:08.820
that you're asking us to release.

1265
01:06:10.030 --> 01:06:12.740
<v ->Well I think that we're not saying</v>

1266
01:06:12.740 --> 01:06:16.310
that you should release anybody who is dangerous.

1267
01:06:16.310 --> 01:06:19.030
So if you got to the point where

1268
01:06:19.030 --> 01:06:24.030
there is no way to reach that level of distancing

1269
01:06:26.441 --> 01:06:31.441
without releasing extremely dangerous people,

1270
01:06:31.700 --> 01:06:35.080
that would present a difficult problem.

1271
01:06:37.870 --> 01:06:41.050
<v ->So we don't have to release to the number of six feet,</v>

1272
01:06:41.050 --> 01:06:42.000
we have to release,

1273
01:06:42.940 --> 01:06:45.270
you're asking us to release people who are

1274
01:06:47.060 --> 01:06:52.050
a certain number, but once we determine,

1275
01:06:52.050 --> 01:06:53.770
and by the way, how do we determine

1276
01:06:53.770 --> 01:06:55.000
whether they're dangerous?

1277
01:06:55.000 --> 01:06:59.540
We're not prison wardens.

1278
01:07:01.091 --> 01:07:03.301
How do we do that?

1279
01:07:03.301 --> 01:07:08.301
How do we decide that that number is going to hit the number

1280
01:07:11.270 --> 01:07:14.970
where you're getting into dangerous prisoners?

1281
01:07:15.856 --> 01:07:20.320
<v ->I think that it has to be done slowly and step by step.</v>

1282
01:07:20.320 --> 01:07:23.520
I think that the first step would be

1283
01:07:23.520 --> 01:07:28.460
to release people who would

1284
01:07:28.460 --> 01:07:30.850
pretty clearly be qualified for release,

1285
01:07:30.850 --> 01:07:32.180
who aren't going to be dangerous,

1286
01:07:32.180 --> 01:07:35.160
who are nearing the end of their sentence anyway

1287
01:07:35.160 --> 01:07:37.730
who might be suitable for parole

1288
01:07:37.730 --> 01:07:40.010
or suitable for home confinement

1289
01:07:40.010 --> 01:07:44.020
given a close analysis by the Department of Correction

1290
01:07:44.020 --> 01:07:46.600
about who's suitable and who's not.

1291
01:07:46.600 --> 01:07:49.750
What other states have done, essentially,

1292
01:07:49.750 --> 01:07:53.390
to try to get the numbers down,

1293
01:07:53.390 --> 01:07:55.370
it might come to the point where

1294
01:07:55.370 --> 01:07:57.280
all right, we've gotten it out,

1295
01:07:57.280 --> 01:07:59.660
this number of people.

1296
01:07:59.660 --> 01:08:02.680
Where are they living now, the ones who are remaining?

1297
01:08:02.680 --> 01:08:05.340
What's the nature of the problem?

1298
01:08:05.340 --> 01:08:08.300
Have you gotten to the point

1299
01:08:08.300 --> 01:08:10.970
where people can social distance or not?

1300
01:08:10.970 --> 01:08:13.320
And then you start to see whether you need to do more

1301
01:08:13.320 --> 01:08:14.260
or don't you?

1302
01:08:15.560 --> 01:08:17.790
<v ->Thank you, that's all I have.</v>

1303
01:08:17.790 --> 01:08:19.290
<v ->This is Chief Justice Gants.</v>

1304
01:08:22.170 --> 01:08:23.730
As I understand your argument,

1305
01:08:23.730 --> 01:08:24.950
and you can correct me,

1306
01:08:26.960 --> 01:08:29.710
in Brown versus Plata,

1307
01:08:30.750 --> 01:08:35.750
we had a prison system in California

1308
01:08:35.970 --> 01:08:40.210
which, in ordinary times, was so overcrowded

1309
01:08:40.210 --> 01:08:42.510
that it was incapable of providing

1310
01:08:42.510 --> 01:08:45.860
adequate medical and mental health care for its patients.

1311
01:08:46.930 --> 01:08:51.930
And after having exhausted other alternatives,

1312
01:08:52.150 --> 01:08:53.570
the court came to the view,

1313
01:08:53.570 --> 01:08:55.260
the US Supreme Court came to the view

1314
01:08:55.260 --> 01:09:00.260
that the alternative it had to turn to

1315
01:09:00.310 --> 01:09:03.080
was the reduction in the population

1316
01:09:03.080 --> 01:09:08.080
to 137% of the designed capacity.

1317
01:09:09.110 --> 01:09:11.710
I understand your argument to be that this too

1318
01:09:11.710 --> 01:09:14.260
is a type of overcrowding case.

1319
01:09:14.260 --> 01:09:18.870
That although it was not overcrowded as of March 1st,

1320
01:09:18.870 --> 01:09:22.580
that it has become effectively dangerously overcrowded

1321
01:09:22.580 --> 01:09:27.580
in light of the viral contagion involved in COVID-19,

1322
01:09:30.030 --> 01:09:35.030
and that not only are they required to take steps

1323
01:09:37.630 --> 01:09:39.660
to diminish the risk within the prison,

1324
01:09:39.660 --> 01:09:42.600
but ultimately that will be futile

1325
01:09:42.600 --> 01:09:45.960
unless they reduce the overall population.

1326
01:09:45.960 --> 01:09:46.870
Is that ultimately,

1327
01:09:46.870 --> 01:09:48.720
is that essentially your argument?

1328
01:09:48.720 --> 01:09:50.310
<v ->Yes.</v>

1329
01:09:50.310 --> 01:09:54.440
<v ->So the part of the argument,</v>

1330
01:09:54.440 --> 01:09:57.304
and this is following up on Justice Kafker's questions,

1331
01:09:57.304 --> 01:10:01.900
we don't have any expert testimony that I'm aware of

1332
01:10:02.760 --> 01:10:07.760
which would say, what degree of population reduction

1333
01:10:09.250 --> 01:10:14.250
would make a prison not so dangerous

1334
01:10:14.830 --> 01:10:19.558
as to be unconstitutionally so.

1335
01:10:19.558 --> 01:10:23.770
So how do we basically essentially impose

1336
01:10:23.770 --> 01:10:27.350
a type of population cap or obligating them

1337
01:10:27.350 --> 01:10:29.180
to do a population reduction

1338
01:10:30.070 --> 01:10:33.720
without any expert testimony that would allow us to say

1339
01:10:33.720 --> 01:10:36.080
that if they were to do that,

1340
01:10:36.080 --> 01:10:41.060
it would materially reduce the risk of contagion

1341
01:10:41.060 --> 01:10:45.650
and therefore take a unconstitutional prison system

1342
01:10:45.650 --> 01:10:49.110
into one that was Constitutional?

1343
01:10:49.110 --> 01:10:52.336
<v ->I think that a prison system</v>

1344
01:10:52.336 --> 01:10:56.000
that was capable of practicing

1345
01:10:56.000 --> 01:11:00.810
the kinds of social distancing that everyone else in society

1346
01:11:00.810 --> 01:11:05.200
is suppose to be trying to practice would be sufficient.

1347
01:11:05.200 --> 01:11:07.250
And I think there's plenty of experts,

1348
01:11:07.250 --> 01:11:10.060
and CDC and everybody else says,

1349
01:11:10.060 --> 01:11:12.100
everybody should try to stay

1350
01:11:12.100 --> 01:11:14.931
six feet away from other people.

1351
01:11:14.931 --> 01:11:19.070
How many prisoners would have to be released,

1352
01:11:19.070 --> 01:11:22.320
what the DOC population would have to be

1353
01:11:22.320 --> 01:11:27.320
in order to accomplish that is what's unclear at this point.

1354
01:11:28.250 --> 01:11:30.960
And they have said that

1355
01:11:32.120 --> 01:11:37.120
58% are living in situations where that is not true,

1356
01:11:40.770 --> 01:11:45.770
but that doesn't mean that you would have to release

1357
01:11:45.850 --> 01:11:48.570
that many people to make it happen,

1358
01:11:48.570 --> 01:11:53.420
that there are empty dorms that the system has,

1359
01:11:53.420 --> 01:11:56.500
that there are even closed facilities the system has,

1360
01:11:56.500 --> 01:11:58.970
that you could move people around

1361
01:11:58.970 --> 01:12:01.920
and you could have dorms, but have fewer people.

1362
01:12:01.920 --> 01:12:04.330
And then there's a lot that can be done,

1363
01:12:04.330 --> 01:12:09.330
but it isn't something that you are obviously in a position

1364
01:12:10.070 --> 01:12:13.870
to micromanage and tell them how to do that,

1365
01:12:13.870 --> 01:12:16.700
but I think if the principle were, do it,

1366
01:12:16.700 --> 01:12:20.680
make sure that people can live in those safe conditions

1367
01:12:20.680 --> 01:12:23.600
and then tell us, how many people

1368
01:12:23.600 --> 01:12:27.970
can you make that happen for?

1369
01:12:27.970 --> 01:12:31.297
And then the numbers of releases

1370
01:12:31.297 --> 01:12:33.860
might become more apparent.

1371
01:12:33.860 --> 01:12:36.230
They can start releasing people now

1372
01:12:36.230 --> 01:12:41.230
using all the different mechanisms that are available,

1373
01:12:42.852 --> 01:12:46.570
but when you start to get to the sort of crunch time,

1374
01:12:46.570 --> 01:12:51.570
well, if it's enough, then it would need someone

1375
01:12:52.195 --> 01:12:56.430
like maybe a special master or someone like that

1376
01:12:56.430 --> 01:13:00.330
to go in and look at facts on the ground.

1377
01:13:02.290 --> 01:13:05.740
<v ->The US Supreme Court in the Brown case</v>

1378
01:13:05.740 --> 01:13:07.800
essentially came to the view that

1379
01:13:07.800 --> 01:13:11.640
if you reduce it to 137% of designed capacity,

1380
01:13:11.640 --> 01:13:14.930
then that would permit there to be

1381
01:13:14.930 --> 01:13:19.930
a Constitutionally adequate quality of medical care

1382
01:13:20.700 --> 01:13:21.850
and mental health care.

1383
01:13:23.260 --> 01:13:26.610
We don't have any dimension right now

1384
01:13:26.610 --> 01:13:28.860
based on the record here

1385
01:13:28.860 --> 01:13:33.860
whether it's 5%, or 25%, or 50%, or 80%, do we?

1386
01:13:35.307 --> 01:13:39.790
<v ->No, we don't precisely have that number,</v>

1387
01:13:39.790 --> 01:13:43.760
but it's easier in some ways than in California,

1388
01:13:43.760 --> 01:13:47.190
because defining what is adequate mental care,

1389
01:13:47.190 --> 01:13:51.570
medical and mental health care, is pretty amorphous.

1390
01:13:51.570 --> 01:13:55.080
So that number was sort of arbitrary in a way.

1391
01:13:55.080 --> 01:13:57.840
Here, we have a standard,

1392
01:13:57.840 --> 01:14:01.470
which is allowing people to live

1393
01:14:01.470 --> 01:14:03.670
six feet apart from each other,

1394
01:14:03.670 --> 01:14:08.670
and that's a fairly easily discernible criteria.

1395
01:14:09.752 --> 01:14:14.630
And if that were what was necessary,

1396
01:14:14.630 --> 01:14:17.464
then getting to that point,

1397
01:14:17.464 --> 01:14:21.760
what numbers it would take is what's unclear.

1398
01:14:23.222 --> 01:14:27.600
And the department should definitely be involved

1399
01:14:27.600 --> 01:14:29.517
in giving you that kind of information

1400
01:14:29.517 --> 01:14:33.700
if that's the order that is appropriate.

1401
01:14:33.700 --> 01:14:34.870
But like I said,

1402
01:14:34.870 --> 01:14:39.230
you could start releasing people easily

1403
01:14:39.230 --> 01:14:40.465
in certain numbers

1404
01:14:40.465 --> 01:14:41.910
and what it would take

1405
01:14:41.910 --> 01:14:45.290
to get to that pretty objective standard

1406
01:14:45.290 --> 01:14:49.080
of six feet, we don't know that at this point,

1407
01:14:49.080 --> 01:14:51.150
but you don't have to tell them that at this point.

1408
01:14:51.150 --> 01:14:54.100
You don't have to say, reduce by 50%,

1409
01:14:54.100 --> 01:14:56.890
reduce by 10%, that's really not the point.

1410
01:14:56.890 --> 01:14:58.820
The point is to reduce to

1411
01:14:58.820 --> 01:15:03.420
where people can live safely inside the prison.

1412
01:15:04.610 --> 01:15:05.750
<v ->Okay, I have no further questions.</v>

1413
01:15:05.750 --> 01:15:06.583
Justice Lenk.

1414
01:15:09.746 --> 01:15:13.090
<v ->Well I certainly have many now, thank you very much.</v>

1415
01:15:13.090 --> 01:15:14.350
I also wanted to thank you, Chief,

1416
01:15:14.350 --> 01:15:17.130
so I want to have a moment for your unexpected,

1417
01:15:17.130 --> 01:15:21.600
but very kind remarks about ode me, you know, old me.

1418
01:15:21.600 --> 01:15:23.098
<v ->It's O-D-E, not O-L-D.</v>

1419
01:15:23.098 --> 01:15:25.518
(Justice Lenk laughing)

1420
01:15:25.518 --> 01:15:26.351
<v ->Yes, I know.</v>

1421
01:15:26.351 --> 01:15:27.485
All right, anyway,

1422
01:15:27.485 --> 01:15:32.485
I want to ask a little bit about the Section 35 population,

1423
01:15:32.610 --> 01:15:35.390
which is seemingly quite small.

1424
01:15:35.390 --> 01:15:36.320
I don't have any sense

1425
01:15:36.320 --> 01:15:37.870
of how much it would have been otherwise,

1426
01:15:37.870 --> 01:15:39.380
in the pre-COVID days, do you?

1427
01:15:40.760 --> 01:15:42.440
<v ->How large that population was?</v>

1428
01:15:42.440 --> 01:15:47.070
I think in early March, I think at MASAC

1429
01:15:47.070 --> 01:15:50.010
there was close to 150 people,

1430
01:15:50.010 --> 01:15:50.930
so it's been a dramatic--

1431
01:15:50.930 --> 01:15:53.640
<v ->As of, 28 of them now, only 28 of them now?</v>

1432
01:15:53.640 --> 01:15:54.750
<v ->That's correct.</v>

1433
01:15:54.750 --> 01:15:56.090
<v ->Yeah, 28.</v>

1434
01:15:56.090 --> 01:15:57.630
And is that, these are people

1435
01:15:57.630 --> 01:16:01.030
who ordinarily are released after 30 days, you say?

1436
01:16:01.030 --> 01:16:02.040
<v ->Typically, yes.</v>

1437
01:16:02.040 --> 01:16:03.010
<v ->So most of these people would have been--</v>

1438
01:16:03.010 --> 01:16:06.210
<v ->The statute permits 90 days, but they almost always</v>

1439
01:16:06.210 --> 01:16:07.210
get released in 30.

1440
01:16:07.210 --> 01:16:09.260
<v ->Yeah, so most of these people, in fact,</v>

1441
01:16:10.240 --> 01:16:11.340
they weren't sentenced,

1442
01:16:11.340 --> 01:16:16.100
but they were assigned to this prison population

1443
01:16:16.100 --> 01:16:21.030
after the Governor declared the emergency now.

1444
01:16:21.030 --> 01:16:22.740
Wouldn't it have been?

1445
01:16:22.740 --> 01:16:24.675
<v ->The people who are there now</v>

1446
01:16:24.675 --> 01:16:28.710
almost certainly have been placed there after that.

1447
01:16:28.710 --> 01:16:32.780
And one thing to keep in mind about the Section 35 statute,

1448
01:16:32.780 --> 01:16:37.530
it only permits people to be sent to a correctional facility

1449
01:16:37.530 --> 01:16:39.810
if there's no room anywhere else.

1450
01:16:39.810 --> 01:16:41.983
And the numbers have gone down,

1451
01:16:41.983 --> 01:16:46.290
Section 35 numbers have gone down everywhere.

1452
01:16:46.290 --> 01:16:50.770
And so that the non-correctional Section 35 facilities

1453
01:16:50.770 --> 01:16:53.610
are also have low capacity,

1454
01:16:53.610 --> 01:16:56.825
so our view is that,

1455
01:16:56.825 --> 01:17:00.024
well, since the statute says you can only go to prison

1456
01:17:00.024 --> 01:17:02.000
if there's no room anywhere else,

1457
01:17:02.000 --> 01:17:05.640
and the population everywhere else is actually down,

1458
01:17:05.640 --> 01:17:07.265
there's no reason to send someone

1459
01:17:07.265 --> 01:17:10.780
to a DOC Section 35 facility.

1460
01:17:10.780 --> 01:17:12.170
<v ->Is it the judge who makes the decision</v>

1461
01:17:12.170 --> 01:17:15.910
about sending him to a prison facility?

1462
01:17:16.820 --> 01:17:17.790
<v ->I'm sorry, I couldn't--</v>

1463
01:17:17.790 --> 01:17:20.550
<v ->I can't, I don't exactly know how it works.</v>

1464
01:17:20.550 --> 01:17:23.370
Is it the judge who decides where the person goes,

1465
01:17:23.370 --> 01:17:27.020
or is there somebody else who makes that decision?

1466
01:17:27.900 --> 01:17:30.920
<v ->The way the statute reads is that</v>

1467
01:17:30.920 --> 01:17:35.870
if the person is deemed by a judge to need commitment,

1468
01:17:36.800 --> 01:17:41.800
then the person should go to a DPH facility

1469
01:17:42.190 --> 01:17:45.320
unless there is no room there

1470
01:17:45.320 --> 01:17:49.380
or if the judge makes a specific finding

1471
01:17:49.380 --> 01:17:53.080
that that person needs to be in a secure facility,

1472
01:17:53.080 --> 01:17:55.500
that finding almost never happens.

1473
01:17:55.500 --> 01:17:57.358
The people who go to MASAC

1474
01:17:57.358 --> 01:18:02.358
are almost always there because there's no room elsewhere.

1475
01:18:02.470 --> 01:18:04.970
<v ->Yeah, so I don't understand why there's anyone there.</v>

1476
01:18:04.970 --> 01:18:06.530
I don't understand why, you know,

1477
01:18:06.530 --> 01:18:10.040
it's not a sentence, you're not limited to the Rule 29

1478
01:18:10.040 --> 01:18:12.830
revise and revoke meditations.

1479
01:18:12.830 --> 01:18:15.720
Don't you have the ability to simply go back into court

1480
01:18:15.720 --> 01:18:17.770
on a motion for reconsideration

1481
01:18:17.770 --> 01:18:22.045
and ask that they not be assigned to the prison?

1482
01:18:22.045 --> 01:18:26.920
<v ->I think somebody might have that mechanism.</v>

1483
01:18:26.920 --> 01:18:29.940
<v ->Well I don't understand why it's a Constitutional problem,</v>

1484
01:18:29.940 --> 01:18:31.160
I suppose is my point.

1485
01:18:32.770 --> 01:18:35.430
It's a fixable thing, it seems to me.

1486
01:18:36.540 --> 01:18:41.080
<v ->It might be fixable in individual cases,</v>

1487
01:18:41.080 --> 01:18:46.010
but our point is that nobody should be there because it--

1488
01:18:46.010 --> 01:18:47.370
<v ->Okay, but I'm just saying that,</v>

1489
01:18:47.370 --> 01:18:50.190
have you made any efforts to try to get these people out?

1490
01:18:50.190 --> 01:18:51.490
<v ->I think some people have.</v>

1491
01:18:51.490 --> 01:18:53.820
Some individuals, or at least,

1492
01:18:53.820 --> 01:18:55.490
I know I have been in communication,

1493
01:18:55.490 --> 01:18:59.210
for example, with a lawyer of one of the people

1494
01:18:59.210 --> 01:19:01.150
who submitted an affidavit,

1495
01:19:01.150 --> 01:19:02.480
and she's trying to figure out,

1496
01:19:02.480 --> 01:19:04.900
is there a way to go into court

1497
01:19:04.900 --> 01:19:06.920
and ask that this commitment be--

1498
01:19:07.965 --> 01:19:09.300
<v ->I mean, I'm not aware of any constraints.</v>

1499
01:19:09.300 --> 01:19:11.770
Maybe my colleagues will correct me in that regard,

1500
01:19:11.770 --> 01:19:15.570
but I'm not, I don't think the Rule 29 constraints

1501
01:19:15.570 --> 01:19:18.190
would apply at all to a non-sentenced--

1502
01:19:18.190 --> 01:19:20.780
<v ->But I don't think that if you went back</v>

1503
01:19:23.407 --> 01:19:26.290
to the judge that committed you there,

1504
01:19:26.290 --> 01:19:27.890
that judge may feel like,

1505
01:19:27.890 --> 01:19:31.873
well I'm limited to considering

1506
01:19:31.873 --> 01:19:35.280
the Section 35 statutory factors

1507
01:19:35.280 --> 01:19:40.260
and I can't look at the safety of conditions

1508
01:19:40.260 --> 01:19:42.600
inside the prison or the level of treatment

1509
01:19:42.600 --> 01:19:44.020
that goes on inside the prison,

1510
01:19:44.020 --> 01:19:45.907
that typically a judge would say,

1511
01:19:45.907 --> 01:19:48.860
that's beyond me, I'm not--

1512
01:19:48.860 --> 01:19:50.010
<v ->Principally, you say.</v>

1513
01:19:52.632 --> 01:19:54.780
All right, I don't have any more question, thank you.

1514
01:19:55.838 --> 01:19:58.338
<v ->Are there any further questions of the justices?</v>

1515
01:19:59.460 --> 01:20:01.230
<v ->I have one short area of interest.</v>

1516
01:20:01.230 --> 01:20:02.310
<v ->Justice Lowy go ahead.</v>

1517
01:20:02.310 --> 01:20:03.870
<v ->Thank you.</v>

1518
01:20:03.870 --> 01:20:06.890
You mentioned Michaud

1519
01:20:07.740 --> 01:20:10.930
and that's the case with the Lawrence Jill

1520
01:20:11.880 --> 01:20:13.910
and you're familiar with the facts of that case.

1521
01:20:13.910 --> 01:20:15.230
Aren't you?

1522
01:20:15.230 --> 01:20:16.440
<v ->Am I familiar with what?</v>

1523
01:20:16.440 --> 01:20:17.430
I'm sorry.

1524
01:20:17.430 --> 01:20:20.080
<v ->The Michelle Case dealing with the Lawrence Jill.</v>

1525
01:20:20.080 --> 01:20:21.870
I won't get into the details,

1526
01:20:21.870 --> 01:20:23.030
but the lack of plumbing

1527
01:20:23.030 --> 01:20:23.863
and numerous--

1528
01:20:23.863 --> 01:20:25.050
<v ->That with one of the issues.</v>

1529
01:20:25.050 --> 01:20:26.367
Yep, yep, yeah.

1530
01:20:26.367 --> 01:20:28.680
<v ->So there's no flush toilets.</v>

1531
01:20:28.680 --> 01:20:31.890
It's disgusting, absolutely disgusting.

1532
01:20:31.890 --> 01:20:33.970
There's way too many people in cells

1533
01:20:33.970 --> 01:20:35.950
and the cells are small.

1534
01:20:35.950 --> 01:20:40.950
And what we did there a number of years ago

1535
01:20:42.570 --> 01:20:44.660
is say what seems so obvious

1536
01:20:44.660 --> 01:20:49.630
that the manner in which these individuals had to live

1537
01:20:49.630 --> 01:20:51.210
while they were incarcerated,

1538
01:20:51.210 --> 01:20:53.285
was unconstitutional.

1539
01:20:53.285 --> 01:20:57.360
8th Amendment, Article 26 violation,

1540
01:20:57.360 --> 01:21:01.980
but we didn't close to jail.

1541
01:21:03.410 --> 01:21:05.490
<v ->Well, eventually we wouldn't,</v>

1542
01:21:05.490 --> 01:21:08.270
you did order that they create a new one

1543
01:21:08.270 --> 01:21:11.800
and put them on a timeline to do that.

1544
01:21:11.800 --> 01:21:12.633
But true.

1545
01:21:12.633 --> 01:21:16.170
You didn't immediately close the jail.

1546
01:21:17.716 --> 01:21:18.816
<v ->Go ahead. I'm sorry.</v>

1547
01:21:19.710 --> 01:21:20.800
<v ->So yes.</v>

1548
01:21:20.800 --> 01:21:24.360
And that was a weighing

1549
01:21:24.360 --> 01:21:26.110
of all of the different considerations

1550
01:21:26.110 --> 01:21:28.210
that were at stake in that case.

1551
01:21:28.210 --> 01:21:31.050
And we're not asking you to close the prison systems.

1552
01:21:31.050 --> 01:21:33.020
We're asking you to do something more like

1553
01:21:33.020 --> 01:21:36.070
what's been done in other overcrowding cases,

1554
01:21:36.070 --> 01:21:37.860
which has reduced the numbers.

1555
01:21:39.050 --> 01:21:44.010
<v ->And the Suffolk County with the GLF crowding.</v>

1556
01:21:44.010 --> 01:21:49.010
That was not a decision by the court to release prisoners.

1557
01:21:49.640 --> 01:21:51.390
That was a consent decree, correct?

1558
01:21:53.584 --> 01:21:54.840
<v ->There have been different ones, but yes,</v>

1559
01:21:54.840 --> 01:21:59.840
there was the Charles Street Jail

1560
01:21:59.853 --> 01:22:03.240
or whatever it was Charles Street Jail at that point.

1561
01:22:03.240 --> 01:22:05.050
There was a consent decree eventually.

1562
01:22:05.050 --> 01:22:05.930
Yeah.

1563
01:22:05.930 --> 01:22:06.830
<v ->Okay. Thank you.</v>

1564
01:22:07.750 --> 01:22:08.583
Okay.

1565
01:22:08.583 --> 01:22:09.800
Thank you, Mr. Dietrick.

1566
01:22:09.800 --> 01:22:10.633
You're up.

1567
01:22:15.320 --> 01:22:16.920
<v ->Thank you, Your Honor.</v>

1568
01:22:16.920 --> 01:22:21.770
May it please the court, among their press for relief,

1569
01:22:21.770 --> 01:22:23.390
plaintiff's request that defendants

1570
01:22:23.390 --> 01:22:25.610
being joined from housing any prisoner,

1571
01:22:25.610 --> 01:22:28.600
any prisoner in a cell room dorm,

1572
01:22:28.600 --> 01:22:31.950
or other living area where they must sleep, eat, or recreate

1573
01:22:31.950 --> 01:22:33.690
within six feet of another person.

1574
01:22:34.630 --> 01:22:36.150
That is a tacit request

1575
01:22:36.150 --> 01:22:39.500
that all inmates be housed in single cells indefinitely.

1576
01:22:40.560 --> 01:22:42.060
However, as Judge Allmin found

1577
01:22:42.060 --> 01:22:44.560
that would be an impossible request to satisfy

1578
01:22:45.770 --> 01:22:46.870
perhaps more to the point,

1579
01:22:46.870 --> 01:22:49.600
neither this prayer nor plaintiff's other prayers for relief

1580
01:22:49.600 --> 01:22:53.100
are necessary to provide a reasonable response

1581
01:22:53.100 --> 01:22:54.920
to the COVID-19 virus.

1582
01:22:56.170 --> 01:22:58.300
The department has chosen

1583
01:22:58.300 --> 01:23:01.930
to pursue a multitude of other ways

1584
01:23:01.930 --> 01:23:05.610
to minimize risk to the inmates

1585
01:23:05.610 --> 01:23:09.480
relative to the COVID-19 virus.

1586
01:23:09.480 --> 01:23:11.200
One form of social distancing

1587
01:23:11.200 --> 01:23:15.160
that the department does do is cohort confinement.

1588
01:23:16.120 --> 01:23:17.090
And by that, I mean,

1589
01:23:17.090 --> 01:23:20.600
each institution has several housing units.

1590
01:23:20.600 --> 01:23:23.770
Each one of those housing units operates

1591
01:23:23.770 --> 01:23:25.430
as kind of a mini facility.

1592
01:23:27.700 --> 01:23:31.130
Those housing units are islands

1593
01:23:31.130 --> 01:23:33.410
they're silos to themselves.

1594
01:23:33.410 --> 01:23:35.540
They don't eat with other inmates.

1595
01:23:35.540 --> 01:23:37.890
They don't recreate with other inmates.

1596
01:23:37.890 --> 01:23:40.890
They don't have any other contact with other inmates.

1597
01:23:40.890 --> 01:23:43.850
And what that has allowed the department to do

1598
01:23:43.850 --> 01:23:47.133
is one dramatically reduce the risk

1599
01:23:47.133 --> 01:23:50.131
to each one of those individual populations.

1600
01:23:50.131 --> 01:23:54.720
And you could liken it to families

1601
01:23:54.720 --> 01:23:59.720
out in the community sheltering in place as a unit.

1602
01:24:02.010 --> 01:24:06.210
But it also allows the department,

1603
01:24:06.210 --> 01:24:11.210
were there to be a case of a positive inmate

1604
01:24:12.540 --> 01:24:16.820
to do extremely effective contact tracing,

1605
01:24:16.820 --> 01:24:20.770
to indicate, find out where it came from,

1606
01:24:20.770 --> 01:24:22.960
who might've been a close contact,

1607
01:24:22.960 --> 01:24:25.210
quarantine those individuals,

1608
01:24:25.210 --> 01:24:27.210
medically isolate the individual

1609
01:24:28.050 --> 01:24:28.883
in question.

1610
01:24:34.072 --> 01:24:37.327
The idea of these being cohorts is a good thing.

1611
01:24:39.010 --> 01:24:42.460
Plaintiff's complaints about double bunking,

1612
01:24:42.460 --> 01:24:44.570
but that's a cohort of two.

1613
01:24:44.570 --> 01:24:46.270
And as long as your inmate,

1614
01:24:46.270 --> 01:24:47.410
you're your roommate

1615
01:24:47.410 --> 01:24:52.410
and you neither one of you are positive for the virus.

1616
01:24:52.710 --> 01:24:55.880
You're in a very good situation in terms of risks.

1617
01:24:55.880 --> 01:24:57.410
One of the inmates in this case,

1618
01:24:57.410 --> 01:24:59.880
Mr. Pingeon actually testified to that.

1619
01:24:59.880 --> 01:25:03.970
I had asked him do you wear your mask

1620
01:25:05.418 --> 01:25:06.770
when you're in your cell.

1621
01:25:06.770 --> 01:25:09.010
And his response was something along the lines of,

1622
01:25:09.010 --> 01:25:10.000
why would I do that?

1623
01:25:10.000 --> 01:25:12.960
I've lived with this guy for a couple of weeks.

1624
01:25:12.960 --> 01:25:14.590
I'm not sick. He's not sick.

1625
01:25:14.590 --> 01:25:16.460
There's no point to doing that.

1626
01:25:16.460 --> 01:25:17.620
Exactly.

1627
01:25:17.620 --> 01:25:20.330
There are any number of inmates who are double bunked

1628
01:25:20.330 --> 01:25:23.600
or similarly in a situation

1629
01:25:23.600 --> 01:25:25.930
where the cohort is two.

1630
01:25:25.930 --> 01:25:29.670
The dorm situation is obviously larger

1631
01:25:29.670 --> 01:25:32.410
and note the cohort is larger,

1632
01:25:32.410 --> 01:25:37.410
but the efforts to keep each one of these units

1633
01:25:38.830 --> 01:25:43.830
clean of the virus has resulted in no dorm

1634
01:25:44.450 --> 01:25:46.780
in any of these institutions

1635
01:25:46.780 --> 01:25:50.520
where there haven't been positive cases

1636
01:25:52.140 --> 01:25:53.290
with a positive inmate.

1637
01:25:54.140 --> 01:25:56.670
None of the plaintiffs are positive.

1638
01:25:56.670 --> 01:25:58.430
None of the affiants are positive.

1639
01:25:59.620 --> 01:26:01.560
There's no evidence in the record

1640
01:26:01.560 --> 01:26:05.650
that any dorm-residing inmates has tested positive.

1641
01:26:05.650 --> 01:26:07.990
And I would suggest that the cohort confinement

1642
01:26:07.990 --> 01:26:12.160
has gone a long way towards promoting that.

1643
01:26:14.890 --> 01:26:17.160
But that's not all that the department has done

1644
01:26:17.160 --> 01:26:18.850
with regard to social distance.

1645
01:26:19.740 --> 01:26:21.320
And there's also been the quarantine

1646
01:26:21.320 --> 01:26:22.180
of all new inmates

1647
01:26:22.180 --> 01:26:26.620
and transfers, the restriction of two facilities

1648
01:26:26.620 --> 01:26:29.000
except for staff vendors and attorneys,

1649
01:26:29.000 --> 01:26:30.370
the banning of sports,

1650
01:26:30.370 --> 01:26:31.510
the closing of gyms,

1651
01:26:33.202 --> 01:26:34.690
the banning with nonessential employees

1652
01:26:34.690 --> 01:26:36.250
like librarians and teachers,

1653
01:26:36.250 --> 01:26:38.220
the closing of the dining hall,

1654
01:26:38.220 --> 01:26:39.930
so that the inmates don't congregate

1655
01:26:39.930 --> 01:26:42.660
instead eating their cells or in their dorm.

1656
01:26:42.660 --> 01:26:44.540
The suspension of group classes,

1657
01:26:44.540 --> 01:26:45.760
suspension of programs,

1658
01:26:45.760 --> 01:26:48.250
the capping of numbers of inmates allowed

1659
01:26:48.250 --> 01:26:49.790
into a day room at one time.

1660
01:26:49.790 --> 01:26:51.720
Limitation on the number of inmates

1661
01:26:51.720 --> 01:26:55.700
let out of the cell into a common area at any one time.

1662
01:26:55.700 --> 01:26:58.640
There's also the factor of inmates

1663
01:26:58.640 --> 01:27:01.250
and their responsibility to help contribute

1664
01:27:01.250 --> 01:27:04.300
to the social distancing by maintaining distance

1665
01:27:04.300 --> 01:27:05.290
whenever possible,

1666
01:27:05.290 --> 01:27:08.610
so that there are no bumps or hugs or other touching.

1667
01:27:08.610 --> 01:27:12.290
So that inmates wait for quiet times to use a bathroom

1668
01:27:12.290 --> 01:27:13.880
or shower or a telephone,

1669
01:27:13.880 --> 01:27:16.040
or the email commissary kiosk.

1670
01:27:16.940 --> 01:27:19.860
And not in addition to the multitude of steps,

1671
01:27:19.860 --> 01:27:21.490
which I won't enumerate now,

1672
01:27:21.490 --> 01:27:22.860
but are set forth in the brief,

1673
01:27:22.860 --> 01:27:25.460
in terms of other things that we've done,

1674
01:27:25.460 --> 01:27:27.390
or the department has done

1675
01:27:27.390 --> 01:27:30.230
advisories housing, cleaning, policies,

1676
01:27:30.230 --> 01:27:34.290
procedures, PPEs, cleaning supplies,

1677
01:27:34.290 --> 01:27:36.240
enhanced cleaning, and disinfecting,

1678
01:27:36.240 --> 01:27:37.637
testing of inmates.

1679
01:27:37.637 --> 01:27:40.440
We have an increase in testing

1680
01:27:40.440 --> 01:27:42.260
in target facilities over time.

1681
01:27:43.600 --> 01:27:47.370
Quarantine protocols for positive inmates,

1682
01:27:47.370 --> 01:27:48.390
use of masks.

1683
01:27:48.390 --> 01:27:50.520
All inmates now have masks,

1684
01:27:50.520 --> 01:27:53.210
the steps to expedite medical parole.

1685
01:27:54.340 --> 01:27:56.170
The earlier review of home plans,

1686
01:27:56.170 --> 01:27:59.010
the setting up of insurance with mass health

1687
01:27:59.010 --> 01:28:02.120
and the encouragement of CPCs and PLS

1688
01:28:02.120 --> 01:28:07.120
to assist in preparing medical parole petitions,

1689
01:28:10.200 --> 01:28:11.730
the awarding of credit

1690
01:28:11.730 --> 01:28:13.240
and the creation of programs

1691
01:28:13.240 --> 01:28:17.320
where inmates can earn a good time

1692
01:28:17.320 --> 01:28:20.300
that they might have lost the opportunity

1693
01:28:20.300 --> 01:28:24.500
to earn by virtue of the lockdown is currently in effect.

1694
01:28:24.500 --> 01:28:26.090
One other point I'd like to make

1695
01:28:26.090 --> 01:28:28.650
is that Judge Allman knows

1696
01:28:28.650 --> 01:28:29.795
that inmates may request

1697
01:28:29.795 --> 01:28:34.520
a special housing accommodation based on COVID-19,

1698
01:28:34.520 --> 01:28:37.860
which Commissioner Mici said she would refer to medical

1699
01:28:37.860 --> 01:28:41.030
for assessment of risk and need.

1700
01:28:41.030 --> 01:28:42.810
What he didn't include in his findings

1701
01:28:42.810 --> 01:28:45.730
was the fact that Commissioner Mici has yet to receive,

1702
01:28:45.730 --> 01:28:48.440
nor she is she aware of a single inmate

1703
01:28:48.440 --> 01:28:50.950
or a grievance seeking such an accommodation.

1704
01:28:52.910 --> 01:28:55.600
The subjective component.

1705
01:28:55.600 --> 01:28:56.433
<v ->Okay.</v>

1706
01:28:56.433 --> 01:28:59.780
You're well above your three minutes and 40 seconds.

1707
01:28:59.780 --> 01:29:02.970
Why don't you conclude your remarks

1708
01:29:02.970 --> 01:29:04.940
so that we can get to the questions please?

1709
01:29:04.940 --> 01:29:06.380
<v ->Yeah.</v>

1710
01:29:06.380 --> 01:29:07.490
If this court considers

1711
01:29:07.490 --> 01:29:09.430
everything that Commissioner Mici

1712
01:29:09.430 --> 01:29:12.480
and the department has done and is doing

1713
01:29:12.480 --> 01:29:14.860
in response to the COVID-19,

1714
01:29:14.860 --> 01:29:16.880
which response is ever expanding.

1715
01:29:17.860 --> 01:29:20.710
I'm not aware of any court that have found on these

1716
01:29:20.710 --> 01:29:22.310
are comparable facts

1717
01:29:22.310 --> 01:29:23.620
in 8th Amendment violation

1718
01:29:23.620 --> 01:29:25.520
predicated on deliberate indifference.

1719
01:29:26.540 --> 01:29:27.640
<v ->Okay, Judge Gaziano.</v>

1720
01:29:29.060 --> 01:29:30.570
<v ->Thank you.</v>

1721
01:29:30.570 --> 01:29:31.820
Going to the 8th Amendment

1722
01:29:31.820 --> 01:29:35.810
and I think also Article 26 standard

1723
01:29:37.310 --> 01:29:38.770
there are of course, two prongs

1724
01:29:38.770 --> 01:29:41.410
and you just left with the delivery of different standard,

1725
01:29:41.410 --> 01:29:44.220
which seems to me the gravamen in this case.

1726
01:29:44.220 --> 01:29:47.170
But the first pong is the objective prong,

1727
01:29:47.170 --> 01:29:49.497
which deals with the conditions of confinement

1728
01:29:49.497 --> 01:29:51.890
and a substantial risk of serious harm.

1729
01:29:52.980 --> 01:29:54.470
I've read a lot of these cases,

1730
01:29:54.470 --> 01:29:56.470
all the COVID cases have come down

1731
01:29:56.470 --> 01:29:58.550
from various US district courts

1732
01:29:58.550 --> 01:30:00.640
mostly involve in ICE detainees.

1733
01:30:01.640 --> 01:30:05.680
Just about everyone skips over that prong

1734
01:30:05.680 --> 01:30:09.070
because Helen teaches us that it's exposure to danger,

1735
01:30:09.070 --> 01:30:10.940
not actual danger,

1736
01:30:10.940 --> 01:30:12.670
which is important.

1737
01:30:12.670 --> 01:30:14.740
But I'm surprised that in your brief,

1738
01:30:14.740 --> 01:30:17.280
you contest the objective prong.

1739
01:30:17.280 --> 01:30:19.620
Can you explain to me how this isn't,

1740
01:30:19.620 --> 01:30:22.300
how this is not an exposure

1741
01:30:22.300 --> 01:30:25.450
to a substantial risk of serious harm,

1742
01:30:27.350 --> 01:30:28.460
given the pandemic?

1743
01:30:29.530 --> 01:30:31.530
<v ->I think in the abstract it is,</v>

1744
01:30:31.530 --> 01:30:36.010
but I think as applied to the Department of Correction,

1745
01:30:36.010 --> 01:30:40.020
as I just described was regard to the cohort confinement,

1746
01:30:44.700 --> 01:30:48.130
whether it's addressing inmates

1747
01:30:48.130 --> 01:30:52.290
who have not tested positive

1748
01:30:52.290 --> 01:30:55.320
or addressing those inmates

1749
01:30:55.320 --> 01:30:56.760
who have tested positive

1750
01:30:56.760 --> 01:31:00.550
and need to form their own cohort,

1751
01:31:01.890 --> 01:31:05.870
and be treated and monitored.

1752
01:31:07.520 --> 01:31:08.353
I think--

1753
01:31:09.694 --> 01:31:11.740
<v ->We've got escalated positives, right.</v>

1754
01:31:11.740 --> 01:31:13.720
Which is inevitable, correct?

1755
01:31:13.720 --> 01:31:14.710
<v ->Correct.</v>

1756
01:31:14.710 --> 01:31:17.702
<v ->And we have seven deaths, correct?</v>

1757
01:31:17.702 --> 01:31:18.535
<v ->Correct.</v>

1758
01:31:18.535 --> 01:31:20.150
<v ->Correct.</v>

1759
01:31:20.150 --> 01:31:23.430
And it wouldn't that just by itself

1760
01:31:23.430 --> 01:31:25.540
indicate a risk of substantial harm.

1761
01:31:30.393 --> 01:31:31.520
'Cause I think people out in the street

1762
01:31:31.520 --> 01:31:33.750
would be surprised if I said

1763
01:31:33.750 --> 01:31:35.900
there's really no risk of substantial harm.

1764
01:31:37.249 --> 01:31:41.640
<v ->No, the defendants are not questioning</v>

1765
01:31:41.640 --> 01:31:45.573
the risk of harm in the abstract.

1766
01:31:48.910 --> 01:31:51.130
All I think we're trying to do

1767
01:31:51.130 --> 01:31:56.130
is to suggest that the response by the department

1768
01:31:59.860 --> 01:32:01.390
and the evolving measures

1769
01:32:01.390 --> 01:32:05.450
that we've taken over time has reduced that

1770
01:32:05.450 --> 01:32:10.010
arguably to a risk that is no longer of substantial harm.

1771
01:32:10.010 --> 01:32:11.710
<v ->I mean, arguably</v>

1772
01:32:11.710 --> 01:32:13.990
that goes to whether or not you're deliberate indifferent

1773
01:32:13.990 --> 01:32:15.090
and whether or not

1774
01:32:15.090 --> 01:32:18.380
your response has been appropriate and reasonable.

1775
01:32:19.549 --> 01:32:21.180
And that's, I think, as I said,

1776
01:32:21.180 --> 01:32:23.840
where the rubber meets the road in this case.

1777
01:32:23.840 --> 01:32:25.840
Are those are all the questions I have chief.

1778
01:32:26.958 --> 01:32:27.958
<v ->Okay Justice Lowy.</v>

1779
01:32:29.140 --> 01:32:34.140
<v ->Thank you, thank you, Chief.</v>

1780
01:32:34.860 --> 01:32:36.410
You just referenced

1781
01:32:36.410 --> 01:32:41.410
these people being locked up 23 out of 24 hours a day,

1782
01:32:42.960 --> 01:32:46.330
and you know, it's not like we're sheltering in place.

1783
01:32:46.330 --> 01:32:49.965
Like families are having family dinners

1784
01:32:49.965 --> 01:32:52.470
and watching movies.

1785
01:32:53.612 --> 01:32:57.620
It's a circumstance where to spend that much time

1786
01:32:57.620 --> 01:33:00.630
like that mental health issues,

1787
01:33:00.630 --> 01:33:05.630
physical issues and basic decency issues as well.

1788
01:33:07.130 --> 01:33:12.130
And what we've got is a virus that

1789
01:33:15.115 --> 01:33:16.420
at least where it's out now,

1790
01:33:16.420 --> 01:33:20.170
where MCI-Shirley Framingham

1791
01:33:20.170 --> 01:33:21.420
that the treatment center

1792
01:33:23.410 --> 01:33:27.290
it's going to be quite a challenge to stop.

1793
01:33:27.290 --> 01:33:30.160
So the question is,

1794
01:33:30.160 --> 01:33:34.750
if you can't be doing your absolute best,

1795
01:33:34.750 --> 01:33:37.390
DOC doing its absolute best

1796
01:33:38.970 --> 01:33:43.970
just can't stop the virus in any way,

1797
01:33:45.010 --> 01:33:50.000
other than keeping people locked up 23, 24 hours a day.

1798
01:33:50.000 --> 01:33:54.930
And if this pandemic goes on for X amount of months

1799
01:33:54.930 --> 01:33:57.740
and some people think it'll be longer than that,

1800
01:33:58.820 --> 01:34:02.250
is there a point in time where your solution

1801
01:34:03.780 --> 01:34:06.290
becomes an 8th Amendment violation?

1802
01:34:08.490 --> 01:34:09.970
<v ->Certainly the lockdown</v>

1803
01:34:11.290 --> 01:34:14.710
presents a different set of problems and issues

1804
01:34:14.710 --> 01:34:15.610
to the department.

1805
01:34:16.910 --> 01:34:21.910
At this point, if you have to make a choice

1806
01:34:24.000 --> 01:34:27.400
between those conditions of confinement

1807
01:34:27.400 --> 01:34:32.400
to ensure or promote social distancing and not,

1808
01:34:34.700 --> 01:34:37.100
we're going to go always in favor--

1809
01:34:37.100 --> 01:34:39.416
<v ->Oh, sure, yeah, absolutely.</v>

1810
01:34:39.416 --> 01:34:41.680
You've got to stop the immediate spread.

1811
01:34:41.680 --> 01:34:42.513
I understand that.

1812
01:34:42.513 --> 01:34:44.470
What I'm saying is

1813
01:34:45.884 --> 01:34:46.760
in a long time,

1814
01:34:46.760 --> 01:34:48.330
and maybe by longterm,

1815
01:34:48.330 --> 01:34:49.610
I might only meet a month

1816
01:34:49.610 --> 01:34:53.480
depending on what happens at least three of the institutions

1817
01:34:57.370 --> 01:35:00.181
or even longer than that,

1818
01:35:00.181 --> 01:35:05.181
does the solution raise such constitutional deprivation

1819
01:35:07.550 --> 01:35:10.489
that really the only solution

1820
01:35:10.489 --> 01:35:14.640
is to have less of a population?

1821
01:35:18.230 --> 01:35:21.250
<v ->I would say in theory, yes,</v>

1822
01:35:21.250 --> 01:35:24.580
duration of confinement by (mumbles).

1823
01:35:26.598 --> 01:35:30.720
The longer it goes, the more of an issue it becomes.

1824
01:35:32.300 --> 01:35:35.980
So certainly it's not the position of anybody,

1825
01:35:35.980 --> 01:35:37.930
but that this is the way of the world,

1826
01:35:44.236 --> 01:35:45.480
until the virus disappears.

1827
01:35:45.480 --> 01:35:47.870
But what I will say is

1828
01:35:47.870 --> 01:35:51.220
the Commissioner's continually assessing the situation.

1829
01:35:51.220 --> 01:35:55.713
And one of those assessments in her mind is one,

1830
01:35:55.713 --> 01:35:59.360
whether we still need the lockdown

1831
01:35:59.360 --> 01:36:00.630
and if we do,

1832
01:36:00.630 --> 01:36:02.630
how much longer.

1833
01:36:02.630 --> 01:36:03.850
That second question

1834
01:36:03.850 --> 01:36:08.150
is a real difficult one for everyone including her.

1835
01:36:09.702 --> 01:36:13.320
But you know, at this point I think the department

1836
01:36:13.320 --> 01:36:16.190
and the Commissioner is taking it day by day,

1837
01:36:16.190 --> 01:36:18.660
understanding that this is not

1838
01:36:18.660 --> 01:36:20.980
an ideal situation for anyone.

1839
01:36:23.180 --> 01:36:27.210
But yes, it potentially creates another set of issues

1840
01:36:27.210 --> 01:36:32.210
that may have to be dealt with down the road.

1841
01:36:32.820 --> 01:36:33.653
<v ->Okay.</v>

1842
01:36:33.653 --> 01:36:34.486
That's all I have.

1843
01:36:34.486 --> 01:36:35.319
Thank you.

1844
01:36:35.319 --> 01:36:36.330
<v ->Justice Budd.</v>

1845
01:36:36.330 --> 01:36:37.380
<v ->Hi, good afternoon.</v>

1846
01:36:39.170 --> 01:36:40.940
So it seems to me that

1847
01:36:40.940 --> 01:36:42.780
just based on my limited understanding

1848
01:36:42.780 --> 01:36:44.710
of the best practices

1849
01:36:44.710 --> 01:36:47.720
to containing the virus, is testing

1850
01:36:47.720 --> 01:36:48.860
and testing everyone

1851
01:36:48.860 --> 01:36:51.770
and separating out those who test positive

1852
01:36:52.670 --> 01:36:54.480
from those who test negative.

1853
01:36:55.340 --> 01:36:57.190
And so I'm just wondering,

1854
01:36:57.190 --> 01:36:58.440
assuming that's the case,

1855
01:37:00.230 --> 01:37:03.430
is there any plans to work towards that goal?

1856
01:37:06.140 --> 01:37:10.970
<v ->Well yes, I think that the issue of testing</v>

1857
01:37:10.970 --> 01:37:14.950
is constantly being considered.

1858
01:37:16.723 --> 01:37:20.670
Obviously the institution wide testing

1859
01:37:20.670 --> 01:37:23.430
that occurred was in response to the outbreak

1860
01:37:23.430 --> 01:37:25.310
in those particular institutions.

1861
01:37:27.040 --> 01:37:30.140
That's not the only testing that's gone on however.

1862
01:37:30.140 --> 01:37:34.060
Other inmates have been tested at other facilities.

1863
01:37:34.060 --> 01:37:37.200
For example, if they present as symptomatic.

1864
01:37:38.910 --> 01:37:42.680
There are plans in addition to testing

1865
01:37:43.595 --> 01:37:45.510
the four facilities, five facilities

1866
01:37:45.510 --> 01:37:47.140
that have already undergone testing

1867
01:37:47.140 --> 01:37:51.500
to test another one imminently,

1868
01:37:51.500 --> 01:37:53.540
Old Colony Correctional Center.

1869
01:37:53.540 --> 01:37:58.010
And the one thing I could say about the Commissioner is

1870
01:37:59.298 --> 01:38:01.280
we want to know more, not less,

1871
01:38:01.280 --> 01:38:05.290
about the size of the problem

1872
01:38:05.290 --> 01:38:10.290
and whether there are inmates out there

1873
01:38:10.630 --> 01:38:15.340
who might be carriers who haven't been revealed.

1874
01:38:16.650 --> 01:38:21.337
So yes, there are considerations ongoing

1875
01:38:23.120 --> 01:38:26.220
as to how much to,

1876
01:38:26.220 --> 01:38:28.490
and where to test.

1877
01:38:28.490 --> 01:38:32.730
And Your Honor, I think it was Your Honor's point that,

1878
01:38:35.710 --> 01:38:39.580
testing is a snapshot in time.

1879
01:38:41.850 --> 01:38:45.890
It only serves your purposes for so long

1880
01:38:47.820 --> 01:38:50.500
and that creates more issue,

1881
01:38:50.500 --> 01:38:54.250
but it certainly is information that the department wants

1882
01:38:54.250 --> 01:38:58.090
in order to do their planning

1883
01:39:00.850 --> 01:39:02.870
going forward in terms of lockdown,

1884
01:39:02.870 --> 01:39:07.870
in terms of allocation of resources et cetera.

1885
01:39:08.250 --> 01:39:13.080
<v ->I mean, if you don't have testing,</v>

1886
01:39:13.080 --> 01:39:14.850
what's the long-term plan, right?

1887
01:39:14.850 --> 01:39:15.683
<v ->I think you said,</v>

1888
01:39:15.683 --> 01:39:17.130
just wait until it goes away.

1889
01:39:18.927 --> 01:39:21.790
I think the whole problem stems

1890
01:39:21.790 --> 01:39:24.880
from not being able to stop the spread

1891
01:39:24.880 --> 01:39:26.500
and the only way you can stop the spread

1892
01:39:26.500 --> 01:39:28.680
is by separating out the people who have it

1893
01:39:28.680 --> 01:39:29.598
from those who don't.

1894
01:39:29.598 --> 01:39:32.800
So this particular point

1895
01:39:32.800 --> 01:39:34.380
is not a legal one.

1896
01:39:34.380 --> 01:39:37.070
It's how do we take care of this problem

1897
01:39:37.070 --> 01:39:42.070
so that keep the people who are detained

1898
01:39:42.070 --> 01:39:44.410
are unexposed to the virus,

1899
01:39:44.410 --> 01:39:47.670
people who are out and about can protect themselves,

1900
01:39:48.540 --> 01:39:53.180
people who are detained can't do that.

1901
01:39:53.180 --> 01:39:58.180
And so, I would love a test to know that I'm not positive

1902
01:39:58.560 --> 01:40:00.870
or that I'm carrying the antibodies.

1903
01:40:00.870 --> 01:40:02.420
I can't get one,

1904
01:40:02.420 --> 01:40:05.310
but I can try to protect myself.

1905
01:40:07.998 --> 01:40:12.207
My concern is the people who can't protect themselves.

1906
01:40:13.990 --> 01:40:16.020
I guess my big question is

1907
01:40:16.020 --> 01:40:19.890
how is this going to be fixed without testing?

1908
01:40:19.890 --> 01:40:23.474
And is that something anybody has been thinking about?

1909
01:40:23.474 --> 01:40:26.560
I mean, if nobody else needs testing these people do,

1910
01:40:26.560 --> 01:40:27.393
these people do.

1911
01:40:28.753 --> 01:40:31.078
Do you know what I'm saying?

1912
01:40:31.078 --> 01:40:32.240
<v ->I do Your Honor.</v>

1913
01:40:32.240 --> 01:40:35.940
And again, it's the decisions

1914
01:40:35.940 --> 01:40:38.230
about testing to some extent

1915
01:40:39.900 --> 01:40:44.900
are dictated by where the outbreaks are.

1916
01:40:45.280 --> 01:40:46.610
<v ->Well, that's my point.</v>

1917
01:40:46.610 --> 01:40:48.340
That's my point, that's not enough.

1918
01:40:48.340 --> 01:40:49.173
Right?

1919
01:40:49.173 --> 01:40:53.620
Because as you said, that just gives you a point in time.

1920
01:40:55.260 --> 01:40:57.620
What you really have to do is find out

1921
01:40:57.620 --> 01:41:00.850
if somebody's carrying it without symptoms

1922
01:41:00.850 --> 01:41:02.630
and put that person in a place

1923
01:41:02.630 --> 01:41:05.020
where he or she can't transmit the virus,

1924
01:41:05.900 --> 01:41:07.680
that's the only way you're going to be able to solve it.

1925
01:41:07.680 --> 01:41:08.890
So I guess--

1926
01:41:08.890 --> 01:41:09.780
<v ->Absolutely Your Honor.</v>

1927
01:41:09.780 --> 01:41:14.780
And we have two groups of institutions.

1928
01:41:15.650 --> 01:41:17.370
We have the 11 out of 16

1929
01:41:17.370 --> 01:41:21.044
for which nobody has tested positive.

1930
01:41:21.044 --> 01:41:25.340
And I assume tests have occurred at those places

1931
01:41:27.411 --> 01:41:28.840
and have come back negative.

1932
01:41:30.020 --> 01:41:32.010
So it raises the issue,

1933
01:41:32.010 --> 01:41:34.920
who gets the test and how often,

1934
01:41:34.920 --> 01:41:37.350
and under what circumstances

1935
01:41:37.350 --> 01:41:39.100
symptomatic patients, asymptomatic.

1936
01:41:40.640 --> 01:41:45.640
Obviously it makes much more sense

1937
01:41:46.180 --> 01:41:50.690
to focus your efforts on institutions

1938
01:41:50.690 --> 01:41:52.470
where there's been an outbreak

1939
01:41:52.470 --> 01:41:54.600
where there presumably

1940
01:41:54.600 --> 01:41:56.430
have been close contact inmates

1941
01:41:56.430 --> 01:41:59.760
who may be symptomatic or asymptomatic

1942
01:42:00.899 --> 01:42:02.410
and address that situation.

1943
01:42:03.790 --> 01:42:04.690
You know, again,

1944
01:42:04.690 --> 01:42:07.310
for the institutions that have had no positive tests

1945
01:42:08.778 --> 01:42:11.030
that we're in the fortunate position,

1946
01:42:11.030 --> 01:42:13.910
that if there were a positive,

1947
01:42:13.910 --> 01:42:18.740
it would be an individual presumably or two individuals,

1948
01:42:18.740 --> 01:42:23.160
and the ability to manage that situation

1949
01:42:23.160 --> 01:42:26.380
and that risk is much easier

1950
01:42:27.630 --> 01:42:31.893
than it is at the institutions

1951
01:42:33.140 --> 01:42:35.190
where the outbreak was greater in number.

1952
01:42:37.788 --> 01:42:39.100
<v ->I don't have any other question.</v>

1953
01:42:40.220 --> 01:42:41.070
<v ->Justice Cipher.</v>

1954
01:42:43.620 --> 01:42:44.453
<v ->Thank you.</v>

1955
01:42:44.453 --> 01:42:45.490
Good afternoon.

1956
01:42:45.490 --> 01:42:48.520
I'm following up on some of the testing questions

1957
01:42:48.520 --> 01:42:49.520
of Justice Budd.

1958
01:42:50.840 --> 01:42:53.280
What did you say the criteria was

1959
01:42:53.280 --> 01:42:55.850
for testing an inmate at this point?

1960
01:43:00.000 --> 01:43:01.910
<v ->Certainly if he's symptomatic</v>

1961
01:43:09.400 --> 01:43:12.967
My understanding is an asymptomatic inmate

1962
01:43:16.040 --> 01:43:19.390
would not ordinarily be tested.

1963
01:43:22.682 --> 01:43:24.306
<v ->I'm sorry, go ahead.</v>

1964
01:43:24.306 --> 01:43:25.870
<v ->Well, I was just gonna say again,</v>

1965
01:43:25.870 --> 01:43:29.870
I think the department looks at trends

1966
01:43:29.870 --> 01:43:31.660
which way numbers are going

1967
01:43:33.493 --> 01:43:37.190
and where it makes the most sense to test.

1968
01:43:37.190 --> 01:43:39.750
<v ->Do you at the moment if you know,</v>

1969
01:43:39.750 --> 01:43:42.840
have limitations on how many tests

1970
01:43:42.840 --> 01:43:43.700
you can get?

1971
01:43:46.660 --> 01:43:48.360
<v ->I'm not aware of any limitation.</v>

1972
01:43:49.440 --> 01:43:50.990
<v ->Okay, just curious,</v>

1973
01:43:50.990 --> 01:43:54.570
'cause I know there's been some shortages someplace,

1974
01:43:54.570 --> 01:43:57.920
whether the prisons have that same problem.

1975
01:43:59.840 --> 01:44:02.140
And then with regard to medical treatment

1976
01:44:03.441 --> 01:44:07.460
how does an inmate seek medical treatment?

1977
01:44:10.780 --> 01:44:11.613
<v ->Currently?</v>

1978
01:44:12.570 --> 01:44:13.403
<v ->Yes.</v>

1979
01:44:16.230 --> 01:44:18.170
<v ->Again, we have two groups of inmates,</v>

1980
01:44:18.170 --> 01:44:23.170
those who may be in units with one or two person cells.

1981
01:44:26.623 --> 01:44:30.430
And then inmates who are in dorms.

1982
01:44:30.430 --> 01:44:31.980
I think in either case actually

1983
01:44:32.990 --> 01:44:35.150
now that I think of that in either case it doesn't matter,

1984
01:44:35.150 --> 01:44:40.150
but the process is that an inmate fills out

1985
01:44:40.580 --> 01:44:41.830
what's called a sick slip

1986
01:44:42.750 --> 01:44:47.750
and submits it and describes why he wants to be seen.

1987
01:44:48.860 --> 01:44:53.860
And it goes to medical and medical reviews it

1988
01:44:53.950 --> 01:44:56.650
and then takes appropriate action.

1989
01:44:59.330 --> 01:45:01.359
Those sick slips are available to all inmates

1990
01:45:01.359 --> 01:45:02.790
and all housing units.

1991
01:45:04.270 --> 01:45:06.690
<v ->Do you know how long it takes for them</v>

1992
01:45:06.690 --> 01:45:08.940
to get an appointment if they're seeking one?

1993
01:45:10.120 --> 01:45:13.050
<v ->I don't, I think it depends</v>

1994
01:45:13.050 --> 01:45:16.630
on certainly the complaint.

1995
01:45:24.465 --> 01:45:26.815
<v ->Just how acute the problem is for the inmate.</v>

1996
01:45:30.110 --> 01:45:34.850
Obviously there's triaging with the medical vendor

1997
01:45:36.608 --> 01:45:38.700
but I'm not aware of inmates

1998
01:45:40.190 --> 01:45:41.330
there've been long delays

1999
01:45:41.330 --> 01:45:45.790
in inmate accessing medical care.

2000
01:45:47.260 --> 01:45:51.220
<v ->One question related to what Justice Lowy asked,</v>

2001
01:45:51.220 --> 01:45:53.830
I'm looking at it from a slightly different perspective

2002
01:45:53.830 --> 01:45:57.590
recognizing this could go on for a long time

2003
01:45:57.590 --> 01:46:00.640
and that you're locked down situation is difficult for you,

2004
01:46:00.640 --> 01:46:04.530
for your officers and your staff,

2005
01:46:04.530 --> 01:46:06.150
as well as for the prisoners.

2006
01:46:07.000 --> 01:46:09.070
How long do you think that can go on

2007
01:46:09.070 --> 01:46:11.047
before there is unrest?

2008
01:46:18.660 --> 01:46:21.010
<v ->You're asking for a personal opinion</v>

2009
01:46:21.010 --> 01:46:23.140
and I'm not an operational guy.

2010
01:46:23.140 --> 01:46:23.973
<v ->Okay.</v>

2011
01:46:25.003 --> 01:46:27.776
<v ->I'll let you off the hook then.</v>

2012
01:46:27.776 --> 01:46:32.030
<v ->I do know that climate is certainly something</v>

2013
01:46:32.030 --> 01:46:34.160
that's monitored throughout institutions.

2014
01:46:36.630 --> 01:46:40.230
And as far as I know--

2015
01:46:41.370 --> 01:46:43.590
<v ->It would just seem to me that some point</v>

2016
01:46:43.590 --> 01:46:45.040
I knew you were talking about

2017
01:46:46.403 --> 01:46:47.390
a lot of things to balance,

2018
01:46:47.390 --> 01:46:52.390
including not letting everybody get infected.

2019
01:46:52.730 --> 01:46:54.590
But at some point it would seem to me

2020
01:46:54.590 --> 01:46:55.920
the balance might shift

2021
01:46:55.920 --> 01:46:58.550
and that the risk of the infection might be less

2022
01:46:58.550 --> 01:47:01.630
than the risk of other problems.

2023
01:47:01.630 --> 01:47:02.463
And I was just wondering

2024
01:47:02.463 --> 01:47:05.880
approximately when that could happen.

2025
01:47:05.880 --> 01:47:08.726
But that might be an impossible question to answer.

2026
01:47:08.726 --> 01:47:09.990
<v ->Your Honor,</v>

2027
01:47:09.990 --> 01:47:12.530
just on the issue of testing.

2028
01:47:13.690 --> 01:47:17.570
I can share with you that we have tested 1500 inmates,

2029
01:47:18.470 --> 01:47:20.910
and those tests came back asymptomatic.

2030
01:47:20.910 --> 01:47:23.220
We've tested inmates who were asymptomatic.

2031
01:47:25.810 --> 01:47:29.040
So it's not just inmates who--

2032
01:47:29.040 --> 01:47:31.150
<v ->Not just people, his symptoms.</v>

2033
01:47:31.150 --> 01:47:32.120
<v ->Right.</v>

2034
01:47:32.120 --> 01:47:32.953
<v ->Right. Okay.</v>

2035
01:47:32.953 --> 01:47:35.040
And then one final question, and that's just,

2036
01:47:35.040 --> 01:47:39.940
do you know how many of your inmates are being held for,

2037
01:47:39.940 --> 01:47:42.660
or doing a sentence for nonviolent offenses?

2038
01:47:44.650 --> 01:47:45.870
<v ->I do not Your Honor.</v>

2039
01:47:48.946 --> 01:47:52.117
I think most of the statistics are could be available,

2040
01:47:54.420 --> 01:47:56.950
but they're not.

2041
01:47:56.950 --> 01:48:00.260
I'll look at the DOC webpage, they might be on there.

2042
01:48:00.260 --> 01:48:01.093
Okay. Thank you.

2043
01:48:01.093 --> 01:48:02.940
I have no further question.

2044
01:48:02.940 --> 01:48:03.790
<v ->Justice Kafker.</v>

2045
01:48:04.880 --> 01:48:06.140
<v ->So my question again,</v>

2046
01:48:06.140 --> 01:48:08.090
relates to deliberate indifference,

2047
01:48:08.090 --> 01:48:09.800
but in a different context,

2048
01:48:10.940 --> 01:48:13.523
We're battling a disease that keeps changing

2049
01:48:13.523 --> 01:48:17.450
and you have these dramatic outbursts.

2050
01:48:19.260 --> 01:48:20.770
And to your credit,

2051
01:48:20.770 --> 01:48:23.700
this has been managed to this point,

2052
01:48:23.700 --> 01:48:27.010
but do you also have contingency plans

2053
01:48:27.010 --> 01:48:29.720
if one of these institutions,

2054
01:48:29.720 --> 01:48:31.990
it starts raging through there,

2055
01:48:31.990 --> 01:48:34.450
people dying as we've experienced

2056
01:48:34.450 --> 01:48:36.000
in some of these nursing homes.

2057
01:48:37.370 --> 01:48:39.360
Are their plans in place?

2058
01:48:40.792 --> 01:48:42.440
And I'm not asking the right

2059
01:48:42.440 --> 01:48:46.100
from the perspective of being a super prison wardener,

2060
01:48:46.100 --> 01:48:51.100
I'm asking in terms of measuring whether there's planning.

2061
01:48:51.670 --> 01:48:54.070
So there's not deliberate indifference

2062
01:48:54.070 --> 01:48:56.400
in case this blows up quickly

2063
01:48:57.620 --> 01:48:59.180
in one of your institutions.

2064
01:49:01.020 --> 01:49:03.680
<v ->I think the short answer is absolutely</v>

2065
01:49:03.680 --> 01:49:08.340
there are plans for just about every contingency.

2066
01:49:11.876 --> 01:49:13.240
<v ->So the treatment center for example,</v>

2067
01:49:13.240 --> 01:49:14.400
is one where there's,

2068
01:49:14.400 --> 01:49:18.020
what percentage of the inmates have COVID there,

2069
01:49:18.020 --> 01:49:19.070
the treatment center?

2070
01:49:22.290 --> 01:49:25.567
<v ->I believe the number of positives.</v>

2071
01:49:29.235 --> 01:49:34.235
We just recently did the testing there.

2072
01:49:39.870 --> 01:49:41.120
We did mobile testing,

2073
01:49:41.120 --> 01:49:44.020
and that was where every inmate at the treatment center

2074
01:49:45.955 --> 01:49:46.788
was offered.

2075
01:49:48.940 --> 01:49:53.870
There were 460 tests done at the treatment center.

2076
01:49:53.870 --> 01:49:56.330
There were some 74 positives.

2077
01:49:57.590 --> 01:50:00.180
So if for example,

2078
01:50:00.180 --> 01:50:03.720
you do have sort of a tremendous outbreak.

2079
01:50:03.720 --> 01:50:07.360
There's some contingency plan in place

2080
01:50:08.400 --> 01:50:10.000
to manage that.

2081
01:50:11.090 --> 01:50:12.760
And do we have that,

2082
01:50:12.760 --> 01:50:16.090
and do we have the contingency plans in our records?

2083
01:50:17.830 --> 01:50:20.730
<v ->I do not think you do Your Honor,</v>

2084
01:50:20.730 --> 01:50:25.730
but yeah, we have one of the planning pieces

2085
01:50:28.320 --> 01:50:33.320
is to identify quarantine areas throughout the department.

2086
01:50:35.850 --> 01:50:40.673
And my understanding is that certainly as of now

2087
01:50:43.790 --> 01:50:46.320
we're not having a dramatic event,

2088
01:50:46.320 --> 01:50:50.200
but we are well within our capacity to quarantine.

2089
01:50:50.200 --> 01:50:52.550
Any measuring tool requires quarantine.

2090
01:50:53.700 --> 01:50:57.020
<v ->There was one of these catastrophic outbreaks,</v>

2091
01:50:57.020 --> 01:51:00.710
like we've seen maybe in other states,

2092
01:51:00.710 --> 01:51:02.540
I can't remember there's something going on

2093
01:51:02.540 --> 01:51:04.950
in Ohio or somewhere else,

2094
01:51:04.950 --> 01:51:09.697
there was a capacity to move inmates to other facilities

2095
01:51:11.420 --> 01:51:15.900
or some secure area to manage an outbreak.

2096
01:51:17.340 --> 01:51:18.480
<v ->I would say yes,</v>

2097
01:51:18.480 --> 01:51:20.900
but as to the treatment center,

2098
01:51:20.900 --> 01:51:24.550
going back to my point about cohort confinement.

2099
01:51:25.540 --> 01:51:29.260
If an inmate test positive he's quarantined.

2100
01:51:30.410 --> 01:51:33.030
If an inmate is a close contact,

2101
01:51:33.030 --> 01:51:35.760
he's quarantined.

2102
01:51:35.760 --> 01:51:36.650
<v ->My focus is,</v>

2103
01:51:37.550 --> 01:51:39.950
we read about these outbreaks,

2104
01:51:39.950 --> 01:51:44.950
this various facilities where a significant number of people

2105
01:51:45.080 --> 01:51:46.860
are dying very quickly.

2106
01:51:46.860 --> 01:51:48.510
And I'm just trying to make sure,

2107
01:51:49.573 --> 01:51:52.650
'cause this is a moving target we're dealing with.

2108
01:51:52.650 --> 01:51:54.990
I don't see any deliberate indifference here,

2109
01:51:54.990 --> 01:51:57.050
but part of measuring that is,

2110
01:51:57.050 --> 01:52:01.100
are you prepared for some kind of outbreak

2111
01:52:01.100 --> 01:52:02.540
and sounds like you are,

2112
01:52:02.540 --> 01:52:05.580
but we don't have in our record what those plans are.

2113
01:52:06.480 --> 01:52:10.220
No, but I would also just add on the testing Your Honor,

2114
01:52:13.991 --> 01:52:18.257
the plan is to test 10,000, do 10,000 tests.

2115
01:52:22.301 --> 01:52:24.360
And that would be basically

2116
01:52:24.360 --> 01:52:27.540
more of an all-inmate's via mobile testing.

2117
01:52:27.540 --> 01:52:31.980
And so again, that would give us you know,

2118
01:52:34.840 --> 01:52:37.410
even more information than we have now.

2119
01:52:37.410 --> 01:52:42.180
But as to the treatment center,

2120
01:52:42.180 --> 01:52:46.400
yes, the incidents of positives down there,

2121
01:52:46.400 --> 01:52:48.200
that was actually the first facility

2122
01:52:49.801 --> 01:52:52.950
where an inmate or patient tested positive.

2123
01:52:52.950 --> 01:52:57.950
And so we were kinda playing catch up there a little bit,

2124
01:52:58.380 --> 01:53:01.170
but I think now currently

2125
01:53:04.030 --> 01:53:06.960
the department is on top of it

2126
01:53:06.960 --> 01:53:11.430
and has the capacity to quarantine any inmate

2127
01:53:11.430 --> 01:53:12.850
at the treatment center

2128
01:53:12.850 --> 01:53:15.750
or any other inmate obviously,

2129
01:53:16.640 --> 01:53:21.633
you don't know what the size of the outbreak would be.

2130
01:53:24.500 --> 01:53:28.790
If 7,400 out of 7,400 inmates

2131
01:53:28.790 --> 01:53:30.800
suddenly tested positive,

2132
01:53:30.800 --> 01:53:32.500
I could see that being a problem.

2133
01:53:32.500 --> 01:53:36.930
But I think the management of the positives

2134
01:53:36.930 --> 01:53:41.930
and the close contacts goes a long way

2135
01:53:42.510 --> 01:53:44.690
to ensuring that that sort of an outbreak

2136
01:53:44.690 --> 01:53:46.390
wouldn't happen in the department.

2137
01:53:47.357 --> 01:53:48.190
<v ->Thank you.</v>

2138
01:53:48.190 --> 01:53:49.540
That's all I have (coughing).

2139
01:53:51.603 --> 01:53:53.790
<v ->I've got some questions actually was reviewing</v>

2140
01:53:53.790 --> 01:53:56.880
the special master's word from yesterday.

2141
01:54:00.970 --> 01:54:03.520
And based on that at least,

2142
01:54:04.510 --> 01:54:09.510
the DOC has done just 19 tests of inmates

2143
01:54:09.810 --> 01:54:12.650
who are not at the mass treatment center,

2144
01:54:12.650 --> 01:54:14.070
surely or Framingham.

2145
01:54:16.060 --> 01:54:18.700
The expectation that you're going to do more tests

2146
01:54:19.620 --> 01:54:22.370
from individuals who are not at those three facilities.

2147
01:54:23.210 --> 01:54:26.730
<v ->Yes, Your Honor.</v>

2148
01:54:26.730 --> 01:54:28.300
The plan is to do, I'm sorry.

2149
01:54:28.300 --> 01:54:29.860
<v ->Go ahead.</v>

2150
01:54:29.860 --> 01:54:32.400
<v ->Yeah, the plan is to do 10,000 tests.</v>

2151
01:54:35.605 --> 01:54:37.390
<v ->With regard to the lockdown that was mentioned,</v>

2152
01:54:37.390 --> 01:54:40.500
what is the longest lockdown that DOC has ever had?

2153
01:54:44.730 --> 01:54:45.563
<v ->I don't know.</v>

2154
01:54:46.740 --> 01:54:49.900
<v ->Have any sense of months or years.</v>

2155
01:54:49.900 --> 01:54:52.690
Has it ever gone to a year?

2156
01:54:55.590 --> 01:54:56.750
<v ->It might have Your Honor,</v>

2157
01:54:56.750 --> 01:54:59.224
certainly I'm not aware of any lockdown

2158
01:54:59.224 --> 01:55:02.420
that has occurred for health reasons.

2159
01:55:02.420 --> 01:55:03.780
Usually if there's a lockdown

2160
01:55:03.780 --> 01:55:06.340
it's specific to an institution.

2161
01:55:06.340 --> 01:55:10.360
But I think there may have been some lockdown

2162
01:55:10.360 --> 01:55:11.360
that lasted a month.

2163
01:55:13.070 --> 01:55:13.903
<v ->Okay.</v>

2164
01:55:13.903 --> 01:55:17.980
But potentially, we're waiting for a vaccine

2165
01:55:17.980 --> 01:55:19.380
could be a year or more.

2166
01:55:21.800 --> 01:55:22.633
So is there a view

2167
01:55:22.633 --> 01:55:24.070
that you can't sustain a lockdown

2168
01:55:24.070 --> 01:55:27.120
for the entirety of the pandemic?

2169
01:55:29.680 --> 01:55:33.630
<v ->I think it's a way of cost and benefit</v>

2170
01:55:33.630 --> 01:55:37.550
between promoting health,

2171
01:55:37.550 --> 01:55:40.260
preserving the health of the inmate population

2172
01:55:40.260 --> 01:55:43.190
and subjecting them

2173
01:55:43.190 --> 01:55:45.770
to these particular conditions of confinement.

2174
01:55:47.110 --> 01:55:49.930
Trust me when I tell you, (laughs)

2175
01:55:49.930 --> 01:55:52.150
nobody thinks this is an ideal situation.

2176
01:55:52.150 --> 01:55:53.430
<v ->I understand that--</v>

2177
01:55:53.430 --> 01:55:56.120
<v ->The view is that it's a necessary one.</v>

2178
01:55:56.120 --> 01:55:57.810
<v ->I understand the challenge.</v>

2179
01:55:58.962 --> 01:56:02.370
I'm turning to page 12 of Judge Allman's findings.

2180
01:56:05.300 --> 01:56:09.670
And what he writes is that

2181
01:56:09.670 --> 01:56:11.000
the Commissioner believes

2182
01:56:11.000 --> 01:56:15.030
she's doing the best, not she.

2183
01:56:15.030 --> 01:56:17.040
He believes that DOC is doing the best

2184
01:56:17.040 --> 01:56:19.770
that it can to manage a crisis,

2185
01:56:19.770 --> 01:56:22.090
given the physical layout of facilities

2186
01:56:22.090 --> 01:56:25.210
and the inmate population.

2187
01:56:25.210 --> 01:56:28.160
And she also agrees that DOC

2188
01:56:28.160 --> 01:56:30.410
should be doing what it can

2189
01:56:30.410 --> 01:56:33.660
to reduce the prison population consistent with law

2190
01:56:33.660 --> 01:56:36.040
and appropriate release decisions.

2191
01:56:40.409 --> 01:56:43.910
Tell me why DOC should be doing what it can

2192
01:56:43.910 --> 01:56:45.510
to reduce the prison population.

2193
01:56:51.700 --> 01:56:54.550
I would say that the answer

2194
01:56:54.550 --> 01:56:59.550
is fewer inmates creates fewer problems,

2195
01:56:59.810 --> 01:57:02.870
creates greater space between inmates.

2196
01:57:06.217 --> 01:57:08.490
The department does not question

2197
01:57:08.490 --> 01:57:11.130
the value of social distancing.

2198
01:57:13.150 --> 01:57:16.880
Although I would suggest that six feet

2199
01:57:16.880 --> 01:57:20.090
is kind of an arbitrary number

2200
01:57:20.090 --> 01:57:22.860
and it doesn't represent constitutional minimum,

2201
01:57:22.860 --> 01:57:25.130
but it's certainly something to strive for.

2202
01:57:34.006 --> 01:57:36.980
If the Commissioner had fewer inmates to manage

2203
01:57:36.980 --> 01:57:40.850
in all respects her job would be an easier one.

2204
01:57:43.300 --> 01:57:46.560
Would be arguably more beds.

2205
01:57:48.950 --> 01:57:52.010
Again, I come back to the issue of

2206
01:57:52.010 --> 01:57:56.364
if inmates have an underlying medical condition

2207
01:57:56.364 --> 01:58:00.150
and collection officials are persuaded

2208
01:58:00.150 --> 01:58:01.910
that that warrants

2209
01:58:01.910 --> 01:58:05.370
given the extent of that medical condition

2210
01:58:05.370 --> 01:58:10.210
or the age, some sort of a housing accommodation.

2211
01:58:12.070 --> 01:58:13.780
The department is receptive to that

2212
01:58:13.780 --> 01:58:16.400
after the input of the medical vendor.

2213
01:58:16.400 --> 01:58:20.020
I know one of the problems in New York was,

2214
01:58:20.020 --> 01:58:21.710
and this was in a detainee case,

2215
01:58:21.710 --> 01:58:24.080
but inmates were claiming medical issues.

2216
01:58:24.080 --> 01:58:27.160
And it turns out that one person was a malingerer

2217
01:58:27.160 --> 01:58:29.890
and another person had HIV,

2218
01:58:29.890 --> 01:58:31.430
but it was well controlled

2219
01:58:31.430 --> 01:58:33.350
and that wasn't considered by the court

2220
01:58:33.350 --> 01:58:36.830
to be a sufficient reason for release, et cetera, et cetera.

2221
01:58:36.830 --> 01:58:41.830
So the point being these are highly particularized,

2222
01:58:44.060 --> 01:58:47.120
arguably decisions to be made

2223
01:58:47.120 --> 01:58:51.930
based upon a variety of factors concerning the inmate

2224
01:58:51.930 --> 01:58:55.900
and the department is prepared to do that.

2225
01:58:55.900 --> 01:58:59.030
But as I indicated in my opening statement

2226
01:58:59.030 --> 01:59:01.830
nobody's asked the commission to do that yet.

2227
01:59:03.586 --> 01:59:04.419
<v ->I want to follow up on that</v>

2228
01:59:04.419 --> 01:59:07.790
'cause I know at pages 15 and 16 of your brief,

2229
01:59:07.790 --> 01:59:09.400
you said that there was one error

2230
01:59:09.400 --> 01:59:12.220
in what Judge Allman found.

2231
01:59:12.220 --> 01:59:16.410
And I couldn't quite understand what the error was.

2232
01:59:16.410 --> 01:59:20.590
Judge Allman wrote that

2233
01:59:20.590 --> 01:59:23.070
an inmate may request a single cell

2234
01:59:23.070 --> 01:59:24.840
if the medical staff determines

2235
01:59:24.840 --> 01:59:27.549
that it would be medically appropriate.

2236
01:59:27.549 --> 01:59:28.949
Is that a correct statement?

2237
01:59:38.576 --> 01:59:40.130
<v ->I think the slight misstatement</v>

2238
01:59:40.130 --> 01:59:41.700
was what you said was

2239
01:59:41.700 --> 01:59:45.610
inmates may request a single cell for isolation.

2240
01:59:45.610 --> 01:59:47.760
We wouldn't characterize that as isolation.

2241
01:59:49.330 --> 01:59:51.530
It would be isolation connote

2242
01:59:51.530 --> 01:59:54.860
something other than being a general population inmate.

2243
01:59:54.860 --> 01:59:56.800
And that person would certainly

2244
01:59:56.800 --> 01:59:58.530
absolutely other circumstances

2245
01:59:58.530 --> 02:00:00.900
would be a general population inmate.

2246
02:00:00.900 --> 02:00:02.210
So it was just a quibble

2247
02:00:02.210 --> 02:00:03.840
over the use of the word isolation.

2248
02:00:03.840 --> 02:00:05.990
<v ->Okay. I'm just trying to understand then.</v>

2249
02:00:05.990 --> 02:00:10.630
So let's imagine that you have somebody who is say 65

2250
02:00:12.850 --> 02:00:14.520
and requests a single cell

2251
02:00:14.520 --> 02:00:17.650
because they say they're at an age,

2252
02:00:17.650 --> 02:00:20.080
which is particularly vulnerable.

2253
02:00:20.080 --> 02:00:21.360
Let's make the person 70,

2254
02:00:21.360 --> 02:00:23.810
where we know that the rates of death are higher.

2255
02:00:24.958 --> 02:00:26.870
And that person requests a single cell.

2256
02:00:26.870 --> 02:00:28.530
And of course that person is 70

2257
02:00:28.530 --> 02:00:30.700
and they have other medical issues.

2258
02:00:30.700 --> 02:00:33.070
Are there single cells for those persons

2259
02:00:33.070 --> 02:00:34.090
if they make the request

2260
02:00:34.090 --> 02:00:37.090
and the doctor says, well, yeah, he is 70,

2261
02:00:37.090 --> 02:00:39.160
and he does have some issues.

2262
02:00:40.924 --> 02:00:44.240
Are there enough cells to allow those requests

2263
02:00:44.240 --> 02:00:45.073
to be honored?

2264
02:00:46.570 --> 02:00:47.680
<v ->If the question is,</v>

2265
02:00:47.680 --> 02:00:49.380
are there any open single cells?

2266
02:00:49.380 --> 02:00:51.910
I'm not aware that that's the case,

2267
02:00:51.910 --> 02:00:56.090
but inmates don't get to choose their housing.

2268
02:00:56.090 --> 02:01:00.660
And if there wasn't a single cell

2269
02:01:00.660 --> 02:01:04.100
and this individual medically needed it

2270
02:01:05.678 --> 02:01:10.530
a housing reassignment certainly could be made.

2271
02:01:10.530 --> 02:01:12.740
I would also come back to the point Your Honor,

2272
02:01:12.740 --> 02:01:15.572
that if this individual

2273
02:01:15.572 --> 02:01:19.760
appears for all intents and purposes to be virus free.

2274
02:01:20.980 --> 02:01:22.480
And there's another inmate

2275
02:01:22.480 --> 02:01:25.470
who also over an extended period of time

2276
02:01:25.470 --> 02:01:29.510
is shown to be virus free.

2277
02:01:29.510 --> 02:01:32.440
There would not be a problem I would think

2278
02:01:32.440 --> 02:01:34.580
with putting those two inmates together

2279
02:01:34.580 --> 02:01:35.430
in a double cell.

2280
02:01:37.220 --> 02:01:40.870
There would be a cohort of two, varies for the inmate.

2281
02:01:40.870 --> 02:01:42.620
But I mean, when the Commissioner said

2282
02:01:42.620 --> 02:01:43.453
that having fewer,

2283
02:01:43.453 --> 02:01:45.080
as you described,

2284
02:01:45.080 --> 02:01:47.320
having fewer people makes life,

2285
02:01:47.320 --> 02:01:49.740
makes it allows her more options.

2286
02:01:49.740 --> 02:01:52.040
I assume one of the options is that you'd have

2287
02:01:53.068 --> 02:01:54.960
a greater availability of single cells

2288
02:01:54.960 --> 02:01:56.520
for individuals who may be at risk

2289
02:01:56.520 --> 02:01:59.210
either because of their age or their medical condition.

2290
02:01:59.210 --> 02:02:00.422
Is that a fair statement?

2291
02:02:00.422 --> 02:02:02.122
<v ->I think that's a fair statement.</v>

2292
02:02:04.470 --> 02:02:07.750
<v ->Are any individuals coming into DOC custody</v>

2293
02:02:07.750 --> 02:02:08.650
in the last month?

2294
02:02:11.030 --> 02:02:12.100
<v ->They are coming in.</v>

2295
02:02:12.100 --> 02:02:14.710
My understanding is that the numbers are lower

2296
02:02:15.880 --> 02:02:18.000
which helps to explain

2297
02:02:18.000 --> 02:02:21.500
how fairly dramatically our population has dropped

2298
02:02:21.500 --> 02:02:23.050
between the lower admissions

2299
02:02:23.050 --> 02:02:24.660
and the people getting out.

2300
02:02:26.120 --> 02:02:27.550
But those people who come in

2301
02:02:27.550 --> 02:02:31.740
are immediately quarantined for 14 days.

2302
02:02:31.740 --> 02:02:32.573
<v ->Do you have any sense</v>

2303
02:02:32.573 --> 02:02:34.150
of how many have come in the last month?

2304
02:02:34.150 --> 02:02:39.150
I'm just trying to get a sense of what the average,

2305
02:02:39.990 --> 02:02:43.340
I mean, I have data as to the average releases,

2306
02:02:43.340 --> 02:02:45.720
and the average admissions in 2018,

2307
02:02:45.720 --> 02:02:48.930
which is the most recent data that's publicly available.

2308
02:02:51.060 --> 02:02:53.190
I might ask, I probably will ask

2309
02:02:54.530 --> 02:02:57.450
for 16A letter for you to give us the data

2310
02:02:57.450 --> 02:03:01.590
as to the monthly admissions and releases

2311
02:03:01.590 --> 02:03:02.960
up through the present

2312
02:03:02.960 --> 02:03:07.720
because there's a 4.4% reduction in DOC custody

2313
02:03:07.720 --> 02:03:11.280
that's occurred since we issued the order,

2314
02:03:11.280 --> 02:03:13.010
at least in the CPCS.

2315
02:03:13.010 --> 02:03:16.960
But I've noted from at least based in 2018

2316
02:03:16.960 --> 02:03:18.320
that each month,

2317
02:03:18.320 --> 02:03:23.320
basically 7.5% of the total population of DOC is released.

2318
02:03:25.605 --> 02:03:27.450
Of course that's offset by admissions,

2319
02:03:27.450 --> 02:03:30.660
but I'm struck by the fact that

2320
02:03:30.660 --> 02:03:32.890
if that ratio is roughly the same,

2321
02:03:34.876 --> 02:03:37.420
and if admissions are down to very few,

2322
02:03:37.420 --> 02:03:41.040
I'm just wondering why there's only a 4.4% reduction.

2323
02:03:41.040 --> 02:03:42.340
Can you shed any light on that

2324
02:03:42.340 --> 02:03:46.224
or that's something we need to do in the 16A letter?

2325
02:03:46.224 --> 02:03:47.980
<v ->I personally can't Your Honor,</v>

2326
02:03:47.980 --> 02:03:50.920
but we're happy to respond by letter.

2327
02:03:52.930 --> 02:03:53.763
<v ->Okay.</v>

2328
02:03:53.763 --> 02:03:58.410
And finally, I was looking to the last part of your brief

2329
02:04:02.650 --> 02:04:03.930
that you filed it last night

2330
02:04:03.930 --> 02:04:05.530
and then I reviewed this morning

2331
02:04:07.950 --> 02:04:09.720
and I'm a little bit confused.

2332
02:04:09.720 --> 02:04:13.110
You don't cite Brown versus Plata in your brief.

2333
02:04:14.516 --> 02:04:17.900
And of course there the US Supreme court found

2334
02:04:17.900 --> 02:04:19.700
that if there is overcrowding

2335
02:04:21.470 --> 02:04:23.380
if that is deemed cruel and unusual,

2336
02:04:23.380 --> 02:04:27.320
then the court has the authority to order in this case,

2337
02:04:27.320 --> 02:04:29.520
California, to reduce the population.

2338
02:04:30.780 --> 02:04:32.180
Put aside for a moment,

2339
02:04:32.180 --> 02:04:34.930
whether or not on the merits we would do that.

2340
02:04:39.047 --> 02:04:41.550
Let's assume that there would be a finding

2341
02:04:41.550 --> 02:04:43.840
that indeed under these circumstances

2342
02:04:43.840 --> 02:04:45.600
that the plaintiff alleges

2343
02:04:45.600 --> 02:04:47.660
there is functionally overcrowding

2344
02:04:47.660 --> 02:04:51.750
and that there is a constitutional obligation

2345
02:04:51.750 --> 02:04:53.480
to reduce those numbers.

2346
02:04:53.480 --> 02:04:54.530
Is it your view that the court

2347
02:04:54.530 --> 02:04:55.680
does not have the authority

2348
02:04:55.680 --> 02:04:58.470
to essentially tell Massachusetts

2349
02:04:58.470 --> 02:05:00.830
that as the Supreme Court told California

2350
02:05:00.830 --> 02:05:02.190
to reduce the population

2351
02:05:02.190 --> 02:05:06.400
and figure out how best to do it?

2352
02:05:08.345 --> 02:05:10.070
<v ->Two responses to that Your Honor,</v>

2353
02:05:10.070 --> 02:05:15.010
just with regard to the Brown case that,

2354
02:05:15.010 --> 02:05:16.650
as has already been noted

2355
02:05:17.620 --> 02:05:21.450
involved a 15 years of litigation

2356
02:05:21.450 --> 02:05:23.250
and the failure of California

2357
02:05:23.250 --> 02:05:27.500
to obey orders from the court

2358
02:05:29.760 --> 02:05:33.700
requiring continuous judicial intervention.

2359
02:05:33.700 --> 02:05:36.030
But the remedy that was

2360
02:05:38.780 --> 02:05:41.180
that they came up with in that case

2361
02:05:41.180 --> 02:05:43.110
was a result of a federal statute

2362
02:05:44.460 --> 02:05:47.440
that authorizes the reduction as a remedy.

2363
02:05:47.440 --> 02:05:50.330
And it also required as I'm sure you're aware

2364
02:05:50.330 --> 02:05:54.990
a three judge federal panel to weigh in on that.

2365
02:05:57.840 --> 02:06:02.840
So the other point I would simply make is

2366
02:06:05.160 --> 02:06:07.980
if theoretically the court were to find

2367
02:06:11.550 --> 02:06:12.930
a constitutional problem,

2368
02:06:16.840 --> 02:06:21.840
there may be a remedy not apparent

2369
02:06:22.690 --> 02:06:27.690
short of releasing inmates to the street

2370
02:06:29.150 --> 02:06:31.120
that might solve the problem.

2371
02:06:31.120 --> 02:06:32.890
I don't--

2372
02:06:32.890 --> 02:06:33.980
<v ->Let me ask you,</v>

2373
02:06:36.436 --> 02:06:38.810
let me put a case outside of this.

2374
02:06:38.810 --> 02:06:42.240
Let's assume we were in a situation comparable to California

2375
02:06:42.240 --> 02:06:46.340
in which Massachusetts had way too many inmates

2376
02:06:46.340 --> 02:06:49.490
to permit any decent quality of medical care

2377
02:06:49.490 --> 02:06:51.870
or mental health care.

2378
02:06:51.870 --> 02:06:53.100
But the matter was brought,

2379
02:06:53.100 --> 02:06:54.990
not in a federal court, but in the state court.

2380
02:06:54.990 --> 02:06:56.438
And the claim was under Article 26

2381
02:06:56.438 --> 02:06:58.420
and not of the 8th Amendment,

2382
02:06:58.420 --> 02:07:01.970
is is your view that this court

2383
02:07:01.970 --> 02:07:03.080
would not have the authority

2384
02:07:03.080 --> 02:07:05.470
to do what the US Supreme Court did

2385
02:07:06.830 --> 02:07:07.880
in that circumstance?

2386
02:07:10.750 --> 02:07:12.920
<v ->I think this court would have the authority</v>

2387
02:07:12.920 --> 02:07:14.940
to identify the violation

2388
02:07:14.940 --> 02:07:19.497
and leave it in the first instance to the in this case,

2389
02:07:21.050 --> 02:07:23.540
the department to fashion a remedy.

2390
02:07:27.600 --> 02:07:29.910
<v ->If the remedy that the court determines is</v>

2391
02:07:31.050 --> 02:07:34.080
the only remedy that is viable,

2392
02:07:34.080 --> 02:07:35.980
which is what the US Supreme Court ultimately decided

2393
02:07:35.980 --> 02:07:38.590
is to reduce the overall population.

2394
02:07:38.590 --> 02:07:40.370
Is it your view that this court

2395
02:07:40.370 --> 02:07:41.610
would not have the authority

2396
02:07:41.610 --> 02:07:44.270
to do what the US Supreme Court did

2397
02:07:44.270 --> 02:07:47.070
and say in Massachusetts,

2398
02:07:47.070 --> 02:07:48.630
we're not going to tell you how to do it.

2399
02:07:48.630 --> 02:07:50.917
But you've got to reduce the population

2400
02:07:50.917 --> 02:07:55.917
to 137% of designed, really capacity.

2401
02:08:01.895 --> 02:08:05.620
<v ->I don't have a good answer for Your Honor.</v>

2402
02:08:05.620 --> 02:08:08.100
Certainly the department works

2403
02:08:08.100 --> 02:08:10.770
within its statutory authority

2404
02:08:13.110 --> 02:08:17.780
and as to the power of the court

2405
02:08:17.780 --> 02:08:20.540
to issue an order like that,

2406
02:08:20.540 --> 02:08:22.340
it would be unprecedented, of course

2407
02:08:25.360 --> 02:08:27.340
certainly in Massachusetts.

2408
02:08:28.670 --> 02:08:31.710
And understanding it's a hypothetical,

2409
02:08:31.710 --> 02:08:33.460
I just don't think we're there yet.

2410
02:08:34.400 --> 02:08:35.550
<v ->Okay, I have no further questions.</v>

2411
02:08:35.550 --> 02:08:36.390
<v ->Justice Lenk.</v>

2412
02:08:37.700 --> 02:08:38.533
<v ->Yes, thanks.</v>

2413
02:08:39.370 --> 02:08:40.980
No one returned to the testing issue,

2414
02:08:40.980 --> 02:08:43.460
cause I'm just so confused about this.

2415
02:08:43.460 --> 02:08:46.240
First of all I guess my question is,

2416
02:08:46.240 --> 02:08:49.850
are these tests available to the department,

2417
02:08:49.850 --> 02:08:52.100
I mean, you can do as many tests as you want?

2418
02:08:53.250 --> 02:08:55.070
<v ->I believe so, yes.</v>

2419
02:08:55.070 --> 02:08:57.225
<v ->And these are the standard tests</v>

2420
02:08:57.225 --> 02:09:00.440
that have been authorized

2421
02:09:00.440 --> 02:09:05.440
as valid as predictive of whether or not

2422
02:09:06.210 --> 02:09:07.720
somebody at diagnostic tools.

2423
02:09:08.751 --> 02:09:10.029
These are the good test,

2424
02:09:10.029 --> 02:09:10.862
in other words.

2425
02:09:12.820 --> 02:09:14.020
<v ->I believe so.</v>

2426
02:09:14.020 --> 02:09:16.800
I have no information to the contrary.

2427
02:09:16.800 --> 02:09:17.633
<v ->All right.</v>

2428
02:09:17.633 --> 02:09:20.070
So it's been that way for a while that you've been able

2429
02:09:20.070 --> 02:09:24.140
to have access to an unlimited number of tests.

2430
02:09:24.140 --> 02:09:25.320
Unlimited in the sense that

2431
02:09:25.320 --> 02:09:27.220
you could in fact test every prisoner?

2432
02:09:28.465 --> 02:09:31.460
<v ->Well, I can be available with the testing</v>

2433
02:09:31.460 --> 02:09:33.100
has been more recent.

2434
02:09:37.492 --> 02:09:39.640
And so the testing is evolving over time

2435
02:09:39.640 --> 02:09:41.050
and it's also crescendoing.

2436
02:09:41.940 --> 02:09:43.820
<v ->I just wanted to know if you had it available</v>

2437
02:09:43.820 --> 02:09:45.570
for any period of time before this.

2438
02:09:47.612 --> 02:09:49.166
<v ->Not--</v>

2439
02:09:49.166 --> 02:09:50.910
<v ->In the last month say.</v>

2440
02:09:50.910 --> 02:09:53.813
<v ->Yeah, not at the onset of the pandemic,</v>

2441
02:09:56.780 --> 02:10:00.200
but we certainly understand the value of testing.

2442
02:10:00.200 --> 02:10:03.000
And so you've had it available for the last month or so.

2443
02:10:05.380 --> 02:10:07.540
<v ->I would say within the last month.</v>

2444
02:10:07.540 --> 02:10:08.373
All right.

2445
02:10:08.373 --> 02:10:10.360
Could you put that in the 16A letter to when testing

2446
02:10:11.497 --> 02:10:13.597
and availability was really determinative?

2447
02:10:15.540 --> 02:10:16.510
<v ->Sure.</v>
<v ->Okay.</v>

2448
02:10:18.243 --> 02:10:20.510
And then after that are the tests voluntary

2449
02:10:20.510 --> 02:10:22.160
or are there involuntary testing?

2450
02:10:23.040 --> 02:10:24.510
<v ->They are offered testing.</v>

2451
02:10:26.350 --> 02:10:30.450
Experience has shown that a large percentage

2452
02:10:30.450 --> 02:10:32.590
of the inmates at these institutions

2453
02:10:32.590 --> 02:10:36.400
have chosen to be tested, some have not,

2454
02:10:36.400 --> 02:10:38.270
and they're not forced to do so.

2455
02:10:38.270 --> 02:10:39.103
<v ->Okay.</v>

2456
02:10:39.938 --> 02:10:44.620
<v ->And then in terms of West wearing his mask,</v>

2457
02:10:44.620 --> 02:10:46.560
I gather that the Commissioner

2458
02:10:46.560 --> 02:10:48.040
doesn't think it's within her authority

2459
02:10:48.040 --> 02:10:50.300
to make people wear masks.

2460
02:10:53.800 --> 02:10:56.700
<v ->I think that's what she attested to in her affidavit,</v>

2461
02:10:56.700 --> 02:10:58.130
she does have the authority

2462
02:10:58.130 --> 02:10:59.890
to limit the movement of inmates

2463
02:10:59.890 --> 02:11:02.220
who refuse to wear their masks.

2464
02:11:03.400 --> 02:11:07.450
If you come out of a cell without a mask,

2465
02:11:07.450 --> 02:11:08.650
you're going right back.

2466
02:11:09.590 --> 02:11:10.423
<v ->Okay.</v>

2467
02:11:10.423 --> 02:11:11.370
So you should have any authority

2468
02:11:11.370 --> 02:11:12.360
to make them wear the masks,

2469
02:11:12.360 --> 02:11:14.510
but she can punish them more

2470
02:11:14.510 --> 02:11:17.040
or in the alternative behaviors if they don't

2471
02:11:17.040 --> 02:11:19.220
limit their behaviors if they don't.

2472
02:11:19.220 --> 02:11:22.170
<v ->She can certainly restrict their movement.</v>

2473
02:11:22.170 --> 02:11:25.290
Discipline has not been thought

2474
02:11:25.290 --> 02:11:27.110
to be a good idea at this point.

2475
02:11:27.110 --> 02:11:29.180
<v ->Right. Okay. All right.</v>

2476
02:11:30.260 --> 02:11:31.610
<v ->Cajole, persuasion.</v>

2477
02:11:32.560 --> 02:11:34.550
<v ->There's persuasion yeah.</v>

2478
02:11:36.350 --> 02:11:40.010
Section 35 inmates, prisoners,

2479
02:11:40.010 --> 02:11:41.520
I don't know what to call them anymore

2480
02:11:41.520 --> 02:11:43.140
in Section 35, people.

2481
02:11:45.660 --> 02:11:47.195
You agree that the position

2482
02:11:47.195 --> 02:11:52.195
has been the number of people being sent to your facility.

2483
02:11:53.130 --> 02:11:53.963
Do you know why?

2484
02:11:56.470 --> 02:11:57.430
I don't,

2485
02:11:57.430 --> 02:11:59.810
I assume maybe

2486
02:12:01.700 --> 02:12:03.760
I can't get into the heads of the judges

2487
02:12:03.760 --> 02:12:06.270
who would do the sentencing, Your Honor.

2488
02:12:06.270 --> 02:12:07.103
Maybe--

2489
02:12:07.103 --> 02:12:09.940
<v ->You don't really consider this a sentence, do you?</v>

2490
02:12:09.940 --> 02:12:11.560
Not a chance, I'm sorry.

2491
02:12:11.560 --> 02:12:12.393
Committed.

2492
02:12:13.460 --> 02:12:15.800
And they just feel that

2493
02:12:15.800 --> 02:12:17.780
given the current circumstances

2494
02:12:20.130 --> 02:12:22.680
that's not something they want to do,

2495
02:12:22.680 --> 02:12:26.980
but I don't know any particulars.

2496
02:12:26.980 --> 02:12:29.160
<v ->So you don't know whether it's a criteria of some sort</v>

2497
02:12:29.160 --> 02:12:32.340
whether or not there is available elsewhere

2498
02:12:32.340 --> 02:12:34.600
facilities for the (mumbles).

2499
02:12:35.540 --> 02:12:40.540
<v ->I think as Mr. Pingeon testified that is the criteria.</v>

2500
02:12:41.090 --> 02:12:44.260
I'm not intimately familiar with the Section 35 process,

2501
02:12:44.260 --> 02:12:47.630
but I think if a judge can find a place

2502
02:12:49.320 --> 02:12:50.560
other than MASAC,

2503
02:12:52.080 --> 02:12:55.400
that would take an individual and provide,

2504
02:12:55.400 --> 02:12:57.780
the necessary detox

2505
02:12:57.780 --> 02:13:02.220
and other treatment that that's where they would go.

2506
02:13:02.220 --> 02:13:04.800
And what kind of less last stop.

2507
02:13:05.656 --> 02:13:06.830
<v ->Okay.</v>

2508
02:13:06.830 --> 02:13:09.560
I don't think I have anything else, thanks.

2509
02:13:09.560 --> 02:13:10.780
<v ->Any further questions for anybody else?</v>

2510
02:13:10.780 --> 02:13:11.613
<v ->I do.</v>

2511
02:13:11.613 --> 02:13:12.980
I have a question.

2512
02:13:12.980 --> 02:13:14.160
It's Justice Budd.

2513
02:13:15.726 --> 02:13:16.820
I was under the impression

2514
02:13:16.820 --> 02:13:20.930
that tests were not available

2515
02:13:20.930 --> 02:13:25.930
or that you didn't have an unlimited supply of them.

2516
02:13:26.590 --> 02:13:28.440
It sounds like, well,

2517
02:13:28.440 --> 02:13:30.510
I'd like you to just confirm,

2518
02:13:32.157 --> 02:13:35.180
that you have access to as many tests as you need.

2519
02:13:35.180 --> 02:13:37.340
And if that's the case,

2520
02:13:37.340 --> 02:13:41.570
I'd also like to know why the department

2521
02:13:41.570 --> 02:13:43.350
isn't just testing everyone

2522
02:13:43.350 --> 02:13:47.290
and separating out the people who are positive

2523
02:13:47.290 --> 02:13:48.570
instead of taking the chance

2524
02:13:48.570 --> 02:13:51.560
that there's asymptomatic transmission going on.

2525
02:13:51.560 --> 02:13:54.150
It sounds like there'd be an easy way to fix this

2526
02:13:54.150 --> 02:13:56.060
if you actually have access

2527
02:13:56.060 --> 02:14:00.760
to all the testing that you would need to do that.

2528
02:14:05.834 --> 02:14:09.140
<v ->I don't think we had an unlimited supply of tests</v>

2529
02:14:09.140 --> 02:14:10.630
as of a couple of weeks ago.

2530
02:14:11.760 --> 02:14:14.950
And the number that I shared 10,000,

2531
02:14:17.130 --> 02:14:19.050
I don't think they're currently in our possession.

2532
02:14:19.050 --> 02:14:21.460
<v ->So you don't have to guess,</v>

2533
02:14:21.460 --> 02:14:23.830
if you could get that information to us

2534
02:14:23.830 --> 02:14:25.970
in the 16A letter I'd appreciate it.

2535
02:14:27.470 --> 02:14:28.520
<v ->Absolutely.</v>

2536
02:14:28.520 --> 02:14:29.490
<v ->I think what we'll probably do</v>

2537
02:14:29.490 --> 02:14:30.690
is provide you with a letter

2538
02:14:30.690 --> 02:14:32.370
since we would vest your various things,

2539
02:14:32.370 --> 02:14:33.670
we'll try to put it in writing.

2540
02:14:33.670 --> 02:14:36.320
So what we're asking to do is clear.

2541
02:14:37.550 --> 02:14:40.580
So you can await an order from Kenneally

2542
02:14:40.580 --> 02:14:41.830
either today or tomorrow.

2543
02:14:43.280 --> 02:14:44.330
Any further questions

2544
02:14:45.797 --> 02:14:47.439
and actually I could have one.

2545
02:14:47.439 --> 02:14:49.750
In response to questions from Justice Lenk,

2546
02:14:50.839 --> 02:14:53.400
the Commissioner said she didn't have the authority

2547
02:14:53.400 --> 02:14:56.220
to require inmates to wear a mask.

2548
02:14:56.220 --> 02:15:00.260
That was out before the Governor's order mandated masks.

2549
02:15:01.142 --> 02:15:04.080
Does the Governor's order change her authority?

2550
02:15:04.080 --> 02:15:05.780
It's a question of whether it would be prudent

2551
02:15:05.780 --> 02:15:06.790
to seek to enforce it,

2552
02:15:06.790 --> 02:15:09.160
but does it change her authority?

2553
02:15:13.560 --> 02:15:14.842
<v ->I'm sorry, Your Honor,</v>

2554
02:15:14.842 --> 02:15:18.490
I missed the last part of your question.

2555
02:15:18.490 --> 02:15:19.560
<v ->The question is,</v>

2556
02:15:19.560 --> 02:15:21.020
I believe when she testified

2557
02:15:21.020 --> 02:15:22.360
that she did not have the authority

2558
02:15:22.360 --> 02:15:24.980
to require the inmates to wear masks,

2559
02:15:24.980 --> 02:15:26.240
it was before the Governor

2560
02:15:26.240 --> 02:15:29.450
had mandated all of us to wear masks

2561
02:15:29.450 --> 02:15:31.530
in circumstances where we can't socially distance.

2562
02:15:31.530 --> 02:15:32.860
And my question is,

2563
02:15:33.910 --> 02:15:37.927
does the Governor's order change her authority?

2564
02:15:38.933 --> 02:15:43.933
<v ->I would say yes.</v>

2565
02:15:46.070 --> 02:15:47.180
She has the power.

2566
02:15:48.240 --> 02:15:50.740
With that authority comes the power to discipline.

2567
02:15:54.550 --> 02:15:57.960
And you know, for those refusals.

2568
02:15:57.960 --> 02:15:59.470
So what does she wields

2569
02:15:59.470 --> 02:16:04.470
that acts are not at her it's her call to make,

2570
02:16:05.540 --> 02:16:08.070
but yes, I think the Governor's order

2571
02:16:09.180 --> 02:16:11.030
changes the landscape in that regard.

2572
02:16:12.010 --> 02:16:13.680
<v ->Any further questions?</v>

2573
02:16:13.680 --> 02:16:14.560
And hearing none.

2574
02:16:14.560 --> 02:16:15.600
Thank you, Mr. Dietrick.

2575
02:16:15.600 --> 02:16:17.420
We'll turn out Mr. McManus.

2576
02:16:18.690 --> 02:16:19.523
<v ->Thank you.</v>

2577
02:16:21.230 --> 02:16:22.840
<v ->Thank you, Mr. Chief Justice,</v>

2578
02:16:22.840 --> 02:16:24.040
may it please the court.

2579
02:16:25.031 --> 02:16:26.970
The Governor seeks dismissal from this case

2580
02:16:26.970 --> 02:16:29.170
because the claims as stated against him

2581
02:16:29.170 --> 02:16:31.500
are fatally flawed in at least two respects.

2582
02:16:32.650 --> 02:16:36.730
First, there is a complete absence of factual allegations,

2583
02:16:36.730 --> 02:16:38.670
affirmatively linking the Governor

2584
02:16:38.670 --> 02:16:41.500
to the plaintiff's conditions of confinement.

2585
02:16:41.500 --> 02:16:43.400
As a result this is the type of claim,

2586
02:16:43.400 --> 02:16:46.130
this type of Section 1983 claims

2587
02:16:46.130 --> 02:16:48.650
against the high ranking government official

2588
02:16:48.650 --> 02:16:50.500
that the Supreme court rejected

2589
02:16:50.500 --> 02:16:51.970
in Ashcraft v. Com.

2590
02:16:53.640 --> 02:16:56.900
Second, the relief that plaintiffs seek against the Governor

2591
02:16:56.900 --> 02:16:58.450
is extraordinary in its breath.

2592
02:16:59.440 --> 02:17:02.840
Plaintiffs are asking this court to affirm that we mandate

2593
02:17:02.840 --> 02:17:04.170
that the Governor exercise

2594
02:17:04.170 --> 02:17:05.540
his discretionary powers.

2595
02:17:06.550 --> 02:17:08.460
Such an order would make the Governor

2596
02:17:08.460 --> 02:17:11.060
an instrumentality of the judicial branch

2597
02:17:11.060 --> 02:17:12.330
raising fundamental separation

2598
02:17:12.330 --> 02:17:14.570
of powers concerns under Article 30.

2599
02:17:14.570 --> 02:17:18.480
I want to start by talking about the Section 1983 claim

2600
02:17:18.480 --> 02:17:22.350
because as I read plaintiff's opposition to the motion,

2601
02:17:22.350 --> 02:17:24.290
they have essentially abandoned

2602
02:17:24.290 --> 02:17:27.970
more or less claims against the Governor under state law.

2603
02:17:27.970 --> 02:17:32.230
Now there's no vicarious liability under Section 1983,

2604
02:17:32.230 --> 02:17:34.730
the Governor can only be sued for his own conduct.

2605
02:17:36.030 --> 02:17:38.790
Yet here the claims against the Governor

2606
02:17:38.790 --> 02:17:41.430
are based entirely on the powers he possesses

2607
02:17:41.430 --> 02:17:42.720
by virtue of his office,

2608
02:17:43.760 --> 02:17:45.020
not on anything he has done

2609
02:17:45.020 --> 02:17:47.090
to cause a constitutional violation.

2610
02:17:48.210 --> 02:17:50.780
And in fact, in all of the 102 paragraphs

2611
02:17:50.780 --> 02:17:52.130
of plaintiff's complaint,

2612
02:17:52.130 --> 02:17:54.810
there were only three references to the Governor.

2613
02:17:54.810 --> 02:17:57.860
Paragraph four, paragraph 25 and paragraph 68.

2614
02:17:58.859 --> 02:18:01.390
And the only substantive allegations

2615
02:18:01.390 --> 02:18:02.700
relate to comments that the Governor

2616
02:18:02.700 --> 02:18:04.430
made at a press conference,

2617
02:18:04.430 --> 02:18:05.710
which I respectfully,

2618
02:18:05.710 --> 02:18:06.670
we believe that the plaintiffs

2619
02:18:06.670 --> 02:18:09.180
had taken out of context and mis-characterized.

2620
02:18:10.800 --> 02:18:11.790
This is simply not enough

2621
02:18:11.790 --> 02:18:14.970
to establish a causal link between the Governor

2622
02:18:14.970 --> 02:18:17.410
and the plaintiff's conditions of confinement.

2623
02:18:17.410 --> 02:18:20.100
And this alone requires dismissal of the Governor

2624
02:18:20.100 --> 02:18:21.300
as a party in this case.

2625
02:18:22.910 --> 02:18:23.980
Turning to the release

2626
02:18:23.980 --> 02:18:25.580
that the plaintiffs are seeking.

2627
02:18:26.700 --> 02:18:28.930
Plaintiffs are simply incorrect in arguing that

2628
02:18:28.930 --> 02:18:31.610
because they've alleged a claim under federal law,

2629
02:18:31.610 --> 02:18:33.950
this court has the authority to order relief

2630
02:18:33.950 --> 02:18:35.343
in the nature of mandamus

2631
02:18:35.343 --> 02:18:37.320
against the Governor.

2632
02:18:38.470 --> 02:18:42.070
That's contrary to what this court held in Rice V Draper,

2633
02:18:42.070 --> 02:18:43.710
where the petitioner was seeking mandamus

2634
02:18:43.710 --> 02:18:45.810
to compel compliance with the federal law.

2635
02:18:46.830 --> 02:18:49.070
And the Supreme Court has consistently recognized

2636
02:18:49.070 --> 02:18:50.000
that neutral rules

2637
02:18:50.000 --> 02:18:52.680
regarding the structure and jurisdiction of state courts

2638
02:18:52.680 --> 02:18:54.870
are not supplanted by federal law.

2639
02:18:54.870 --> 02:18:56.580
That same reasoning applies here.

2640
02:18:57.500 --> 02:18:58.850
The assertion that this court

2641
02:18:58.850 --> 02:19:03.070
can effectively co-op the executive powers of the Governor

2642
02:19:03.070 --> 02:19:05.330
by ordering him to grant clemency

2643
02:19:05.330 --> 02:19:07.160
or exercise emergency powers

2644
02:19:08.521 --> 02:19:11.790
or take other discretionary actions is unprecedented.

2645
02:19:12.740 --> 02:19:15.150
And it's also entirely unnecessary here

2646
02:19:15.150 --> 02:19:17.660
where there are other executive branch officials

2647
02:19:17.660 --> 02:19:19.090
that are before the court

2648
02:19:19.090 --> 02:19:21.650
who have direct operational authority

2649
02:19:21.650 --> 02:19:23.100
over correctional facilities.

2650
02:19:23.960 --> 02:19:26.030
Accordingly for all those reasons,

2651
02:19:26.030 --> 02:19:28.850
we seek dismissal of all the claims against the Governor.

2652
02:19:28.850 --> 02:19:29.683
And with that,

2653
02:19:29.683 --> 02:19:31.160
I welcome the court's questions.

2654
02:19:31.160 --> 02:19:32.940
<v ->Justice Gaziano.</v>

2655
02:19:32.940 --> 02:19:35.000
<v ->I have no question, thank you.</v>

2656
02:19:35.000 --> 02:19:35.833
<v ->Justice Lowey.</v>

2657
02:19:37.150 --> 02:19:39.920
<v ->I just have one question.</v>

2658
02:19:40.920 --> 02:19:41.930
I understand your point

2659
02:19:41.930 --> 02:19:46.930
about the issue of the Governor taking affirmative steps

2660
02:19:47.950 --> 02:19:50.570
that constitute executive action

2661
02:19:50.570 --> 02:19:54.820
and what limitations Article 30 pass in that area.

2662
02:19:54.820 --> 02:19:57.280
But as far as that we have

2663
02:19:57.280 --> 02:20:00.770
the parties necessary before us,

2664
02:20:00.770 --> 02:20:02.950
within the executive branch,

2665
02:20:06.323 --> 02:20:08.890
DLC has taken a position for instance,

2666
02:20:08.890 --> 02:20:12.580
with regard to home confinement

2667
02:20:12.580 --> 02:20:15.590
that the statute doesn't allow home confinement.

2668
02:20:15.590 --> 02:20:17.670
And I won't get into the reasons,

2669
02:20:17.670 --> 02:20:22.470
but it's perhaps not a narrow interpretation of the statute.

2670
02:20:22.470 --> 02:20:24.220
But if the Governor

2671
02:20:24.220 --> 02:20:27.940
within his emergency powers were to say,

2672
02:20:27.940 --> 02:20:31.860
well, if there's individuals within X weeks or months

2673
02:20:31.860 --> 02:20:36.450
of wrapping up their sentence on nonviolent offenses,

2674
02:20:36.450 --> 02:20:39.470
they could have home confinement

2675
02:20:40.450 --> 02:20:44.040
then the statutory limitations,

2676
02:20:44.040 --> 02:20:46.770
if they're already on home confinement

2677
02:20:46.770 --> 02:20:48.650
wouldn't be present.

2678
02:20:48.650 --> 02:20:52.430
So if the Department of Correction

2679
02:20:52.430 --> 02:20:56.120
is taking a certain view

2680
02:20:56.120 --> 02:20:58.000
of some of the means by which

2681
02:21:00.329 --> 02:21:02.760
the population might be able to be reduced

2682
02:21:02.760 --> 02:21:04.800
such as perhaps,

2683
02:21:06.462 --> 02:21:07.550
and I'm not saying they are,

2684
02:21:07.550 --> 02:21:10.230
perhaps by way of example earned good time

2685
02:21:12.100 --> 02:21:16.070
or furloughed being only able to use in

2686
02:21:16.070 --> 02:21:17.690
very specific circumstances.

2687
02:21:19.157 --> 02:21:21.490
Wouldn't the Governor have those powers

2688
02:21:21.490 --> 02:21:24.600
as part of his emergency powers, this circumstance?

2689
02:21:26.450 --> 02:21:28.970
<v ->Well, Your Honor, I think the short answer is</v>

2690
02:21:28.970 --> 02:21:31.870
yes, the Governor has certain emergency powers,

2691
02:21:31.870 --> 02:21:36.340
but the way plaintiffs are suggesting

2692
02:21:36.340 --> 02:21:39.520
that those be used and their suggestion

2693
02:21:39.520 --> 02:21:42.310
that the Governor is an appropriate party in the case,

2694
02:21:42.310 --> 02:21:44.110
simply because of those powers,

2695
02:21:44.110 --> 02:21:48.300
is really an allegation based only on his remedial powers,

2696
02:21:48.300 --> 02:21:51.460
not on anything he's done to cause these violations.

2697
02:21:51.460 --> 02:21:53.210
And taking your examples

2698
02:21:55.770 --> 02:21:59.070
statutory limitations on Commissioner

2699
02:21:59.070 --> 02:22:02.570
or her interpretation of statutory limitations on her,

2700
02:22:02.570 --> 02:22:05.960
could likewise just as easily be fixed by the legislature.

2701
02:22:05.960 --> 02:22:09.760
And yet clearly there would be problems with this court

2702
02:22:09.760 --> 02:22:13.510
ordering the legislature to change the law

2703
02:22:13.510 --> 02:22:14.770
and amend statutes.

2704
02:22:14.770 --> 02:22:15.650
And likewise,

2705
02:22:15.650 --> 02:22:18.330
we think that the same Article 30 problems

2706
02:22:18.330 --> 02:22:20.560
arise with respect to remedies

2707
02:22:20.560 --> 02:22:21.700
that would require the Governor

2708
02:22:21.700 --> 02:22:23.640
to exercise his executive power.

2709
02:22:25.090 --> 02:22:25.923
<v ->Thank you.</v>

2710
02:22:25.923 --> 02:22:26.940
That's the end of my question.

2711
02:22:28.200 --> 02:22:29.760
<v ->Justice Budd.</v>

2712
02:22:29.760 --> 02:22:31.200
<v ->Hi, just to follow up on that.</v>

2713
02:22:31.200 --> 02:22:34.130
So you're saying that there's nothing

2714
02:22:34.130 --> 02:22:39.130
that can be done to compel the Governor

2715
02:22:39.300 --> 02:22:43.310
to exercise his executive power.

2716
02:22:46.530 --> 02:22:49.140
<v ->Your Honor, this court's decisions</v>

2717
02:22:49.140 --> 02:22:52.370
and specifically the Rice decision was most explicit.

2718
02:22:53.640 --> 02:22:57.544
This court and the Massachusetts State Judicial System

2719
02:22:57.544 --> 02:23:01.710
does not order a form of mandamus relief

2720
02:23:01.710 --> 02:23:02.543
against the Governor.

2721
02:23:02.543 --> 02:23:07.543
In other words while it may enjoin a certain activity,

2722
02:23:08.100 --> 02:23:13.010
if it does not affirmatively mandate that the Governor,

2723
02:23:13.010 --> 02:23:15.290
as opposed to other executive branch officials

2724
02:23:15.290 --> 02:23:16.480
take affirmative action.

2725
02:23:16.480 --> 02:23:19.970
So we do think that under this court's case law

2726
02:23:19.970 --> 02:23:21.790
that authority does not exist.

2727
02:23:21.790 --> 02:23:25.559
However, it's also not necessary in this case

2728
02:23:25.559 --> 02:23:28.510
given that you do have other executive branch officials

2729
02:23:28.510 --> 02:23:30.060
who are before the court

2730
02:23:30.060 --> 02:23:32.760
and who have direct supervisory authority

2731
02:23:32.760 --> 02:23:35.290
over the conditions of confinement.

2732
02:23:35.290 --> 02:23:37.000
<v ->Okay, thank you.</v>

2733
02:23:37.000 --> 02:23:37.850
<v ->Justice Cypher.</v>

2734
02:23:42.630 --> 02:23:44.980
Thank you, I have no questions.

2735
02:23:45.830 --> 02:23:48.970
<v ->Justice Kafker.</v>

2736
02:23:51.488 --> 02:23:53.022
<v ->Are people having trouble?</v>

2737
02:23:53.022 --> 02:23:53.980
<v ->Sorry.</v>

2738
02:23:53.980 --> 02:23:55.280
<v ->We have trouble hearing.</v>

2739
02:23:58.540 --> 02:24:00.940
Justice Kafker we're having trouble hearing you.

2740
02:24:07.050 --> 02:24:09.110
<v ->Now exiting Barbara Lenk.</v>

2741
02:24:09.967 --> 02:24:11.090
(device beeps)

2742
02:24:11.090 --> 02:24:12.221
Name not recorded.

2743
02:24:12.221 --> 02:24:14.240
(device beeps)

2744
02:24:14.240 --> 02:24:15.300
<v ->Okay, we'll have to wait.</v>

2745
02:24:15.300 --> 02:24:16.880
Something appears to have happened

2746
02:24:16.880 --> 02:24:18.080
with regard to the line.

2747
02:25:25.380 --> 02:25:26.702
<v ->Now joining.</v>

2748
02:25:26.702 --> 02:25:29.369
(device beeps)

2749
02:25:31.250 --> 02:25:32.083
<v ->Hello.</v>

2750
02:25:32.083 --> 02:25:34.010
<v ->Justice Kafker we have you back.</v>

2751
02:25:34.010 --> 02:25:35.870
<v ->Yeah, I don't know what's going on,</v>

2752
02:25:35.870 --> 02:25:37.290
but I keep periodically,

2753
02:25:37.290 --> 02:25:40.100
that's the second time really playing it out.

2754
02:25:40.100 --> 02:25:41.760
<v ->Justice Lenk, you're back too.</v>

2755
02:25:41.760 --> 02:25:43.130
<v ->Now joining.</v>

2756
02:25:43.130 --> 02:25:44.082
<v ->Barbra Lenk.</v>

2757
02:25:44.082 --> 02:25:44.915
(device beeps)

2758
02:25:44.915 --> 02:25:45.748
<v ->I guess we're all here.</v>

2759
02:25:45.748 --> 02:25:47.950
<v ->Justice Kafker you may proceed.</v>

2760
02:25:47.950 --> 02:25:51.670
<v ->Okay, I did not hear Justice Budd's questions.</v>

2761
02:25:51.670 --> 02:25:54.430
So you know, if I repeat them

2762
02:25:54.430 --> 02:25:56.710
and I apologize but

2763
02:25:58.390 --> 02:26:00.480
my question has to do with,

2764
02:26:00.480 --> 02:26:02.350
if this were a federal court,

2765
02:26:02.350 --> 02:26:03.700
would it make a difference?

2766
02:26:06.533 --> 02:26:08.050
Would a federal court have powers

2767
02:26:08.050 --> 02:26:10.250
that this court doesn't have

2768
02:26:10.250 --> 02:26:11.550
in regard to the Governor?

2769
02:26:14.270 --> 02:26:15.103
<v ->Well, Your Honor,</v>

2770
02:26:15.103 --> 02:26:15.960
it wouldn't make a difference

2771
02:26:15.960 --> 02:26:18.065
with respect to whether the 1983 claim

2772
02:26:18.065 --> 02:26:20.630
had been asserted here.

2773
02:26:20.630 --> 02:26:22.950
In other words, whether it's been adequately pled,

2774
02:26:22.950 --> 02:26:26.330
but a federal court is not operating

2775
02:26:26.330 --> 02:26:29.340
under the same separation of powers limitations

2776
02:26:29.340 --> 02:26:32.070
as a Massachusetts judicial branch is.

2777
02:26:32.070 --> 02:26:35.850
And therefore I think the rule from the Rice case

2778
02:26:35.850 --> 02:26:37.280
and from the Town of Milton case,

2779
02:26:37.280 --> 02:26:39.640
and so on about the courts,

2780
02:26:39.640 --> 02:26:40.790
not having the authority

2781
02:26:40.790 --> 02:26:43.630
to affirmatively mandamus the Governor.

2782
02:26:43.630 --> 02:26:44.463
I don't believe that rule

2783
02:26:44.463 --> 02:26:47.240
would have any application in federal court.

2784
02:26:47.240 --> 02:26:49.370
<v ->So even though we're enforcing</v>

2785
02:26:49.370 --> 02:26:54.370
a federal constitutional rights or a federal statutory right

2786
02:26:57.290 --> 02:26:59.270
our separation of powers

2787
02:26:59.270 --> 02:27:01.360
and Article 30 powers

2788
02:27:02.700 --> 02:27:06.460
limit our ability to order declaratory judgment or mandamus.

2789
02:27:06.460 --> 02:27:08.870
I see there are clear body cases

2790
02:27:08.870 --> 02:27:10.480
that state law.

2791
02:27:10.480 --> 02:27:11.860
Rice is a very old case.

2792
02:27:11.860 --> 02:27:14.220
I haven't read the Milton case.

2793
02:27:14.220 --> 02:27:16.330
But it's your understanding that

2794
02:27:16.330 --> 02:27:19.270
even when we're applying federal law,

2795
02:27:19.270 --> 02:27:21.900
is Milton, an old case, or a more recent case?

2796
02:27:23.550 --> 02:27:25.590
<v ->Milton is from,</v>

2797
02:27:25.590 --> 02:27:27.730
this could be here for you,

2798
02:27:27.730 --> 02:27:29.970
1993, so it's more recent.

2799
02:27:29.970 --> 02:27:30.803
<v ->Okay. We'll read it.</v>

2800
02:27:30.803 --> 02:27:32.910
The other ones from like 1900 or something.

2801
02:27:32.910 --> 02:27:35.090
It's a 200 Mass case, right?

2802
02:27:35.090 --> 02:27:35.923
<v ->Yeah.</v>

2803
02:27:35.923 --> 02:27:36.830
<v ->Correct.</v>

2804
02:27:36.830 --> 02:27:40.530
But so are our sort of

2805
02:27:40.530 --> 02:27:44.150
state constitutional limitations apply

2806
02:27:44.150 --> 02:27:48.573
even when we're enforcing federal statutory

2807
02:27:49.970 --> 02:27:52.020
and constitutional rights?

2808
02:27:52.020 --> 02:27:52.853
That's correct.

2809
02:27:52.853 --> 02:27:54.220
And that's clear in the case law.

2810
02:27:55.518 --> 02:27:58.250
<v ->Well it's one of the issues</v>

2811
02:27:58.250 --> 02:28:00.090
that the plaintiffs here have disputed.

2812
02:28:00.090 --> 02:28:02.910
However, we believe it is clear in the case law

2813
02:28:02.910 --> 02:28:05.420
and specifically while it is an older case,

2814
02:28:05.420 --> 02:28:07.970
the Rice V Draper case, and it was from 1911.

2815
02:28:09.120 --> 02:28:11.190
What the petitioner there was seeking

2816
02:28:11.190 --> 02:28:12.976
was to compel the Governor

2817
02:28:12.976 --> 02:28:15.120
to comply with the federal statute.

2818
02:28:15.120 --> 02:28:18.230
So there was absolutely a federal statutory right

2819
02:28:18.230 --> 02:28:20.040
at issue in that case.

2820
02:28:20.040 --> 02:28:22.220
And yet that made no difference in that

2821
02:28:22.220 --> 02:28:23.300
that's where this court

2822
02:28:23.300 --> 02:28:25.120
most clearly articulated this rule.

2823
02:28:26.300 --> 02:28:30.160
<v ->I did a quick search in the last couple of hours</v>

2824
02:28:30.160 --> 02:28:34.240
to see if there were any 1983 cases against Governors.

2825
02:28:34.240 --> 02:28:36.950
It doesn't look like there's anything out there.

2826
02:28:36.950 --> 02:28:39.330
At least I couldn't find anything in last couple of hours.

2827
02:28:39.330 --> 02:28:40.370
Were you able to find

2828
02:28:40.370 --> 02:28:44.000
any Section 1983 cases brought Governors?

2829
02:28:46.865 --> 02:28:51.410
<v ->There was very limited case law that with the applicable.</v>

2830
02:28:51.410 --> 02:28:52.870
So I would agree with that.

2831
02:28:52.870 --> 02:28:55.590
There is some Supreme court law

2832
02:28:55.590 --> 02:28:57.435
not specific to Governors

2833
02:28:57.435 --> 02:29:02.435
that cited both in the plaintiff's opposition to the motion

2834
02:29:02.510 --> 02:29:04.380
and in a proposed reply brief

2835
02:29:04.380 --> 02:29:08.870
that we had submitted attached to a motion for leave.

2836
02:29:08.870 --> 02:29:11.350
Those cases involved 1983,

2837
02:29:11.350 --> 02:29:13.990
but not specifically this rule

2838
02:29:13.990 --> 02:29:16.510
which I understand is not unique to Massachusetts,

2839
02:29:16.510 --> 02:29:18.450
that prohibits mandamus of a Governor.

2840
02:29:20.190 --> 02:29:23.490
<v ->They're often relying on federal,</v>

2841
02:29:23.490 --> 02:29:24.330
they seem to be relying

2842
02:29:24.330 --> 02:29:26.730
on federal district court cases a lot of the time,

2843
02:29:26.730 --> 02:29:28.160
which is a whole different ball game

2844
02:29:28.160 --> 02:29:32.170
than a state ordering the state Governor

2845
02:29:32.170 --> 02:29:35.070
to do something, right?

2846
02:29:35.070 --> 02:29:36.750
<v ->Correct, correct Your Honor.</v>

2847
02:29:36.750 --> 02:29:39.370
There is simply not the same Article 30 problem

2848
02:29:39.370 --> 02:29:40.770
that arises in that context.

2849
02:29:41.610 --> 02:29:43.640
<v ->Thank you, that's all I have.</v>

2850
02:29:43.640 --> 02:29:44.740
<v ->Chief Justice Gants.</v>

2851
02:29:46.751 --> 02:29:47.740
The case of Brown versus Plata

2852
02:29:47.740 --> 02:29:50.400
was after all Governor Brown, was it not?

2853
02:29:51.597 --> 02:29:53.600
<v ->It was Your Honor,</v>

2854
02:29:53.600 --> 02:29:58.490
but again, the point's been made by attorney Dietrick.

2855
02:29:59.720 --> 02:30:01.520
That was not a 1983 case.

2856
02:30:01.520 --> 02:30:03.670
And so there were a couple of distinctions

2857
02:30:04.700 --> 02:30:05.950
between that case and this one,

2858
02:30:05.950 --> 02:30:07.470
it was in federal court.

2859
02:30:07.470 --> 02:30:10.750
And so you don't have the Article 30 concerns that arise

2860
02:30:10.750 --> 02:30:13.660
when a coordinate branch of government orders,

2861
02:30:13.660 --> 02:30:14.990
the Governor what to do.

2862
02:30:14.990 --> 02:30:18.440
And secondly, it was not a Section 1983 case,

2863
02:30:18.440 --> 02:30:21.520
but it was a case under the PLRA

2864
02:30:21.520 --> 02:30:25.330
and the extraordinary relief that was ordered there

2865
02:30:25.330 --> 02:30:28.830
in order to release prisoners with the Governor as a party

2866
02:30:28.830 --> 02:30:32.020
was only available as a matter of federal law

2867
02:30:32.020 --> 02:30:33.140
under the PLRA.

2868
02:30:33.140 --> 02:30:36.060
And after a very comprehensive procedures

2869
02:30:36.060 --> 02:30:39.200
had been followed before it got to that point,

2870
02:30:39.200 --> 02:30:40.550
the procedural history in that case

2871
02:30:40.550 --> 02:30:41.820
was obviously lengthy

2872
02:30:41.820 --> 02:30:44.700
culminating in the convening of a three judge panel,

2873
02:30:44.700 --> 02:30:46.560
which is the only procedure authorized

2874
02:30:46.560 --> 02:30:48.910
to issue that kind of release in federal court.

2875
02:30:50.350 --> 02:30:51.850
<v ->So let me make sure I understand</v>

2876
02:30:51.850 --> 02:30:53.870
the full scope of what you're saying.

2877
02:30:53.870 --> 02:30:56.020
Is it your contention that if the Governor

2878
02:30:56.020 --> 02:30:59.190
were to violate the Massachusetts constitution,

2879
02:30:59.190 --> 02:31:00.740
this court would not have any authority

2880
02:31:00.740 --> 02:31:01.790
to order him to stop?

2881
02:31:04.080 --> 02:31:05.130
<v ->Well, Your Honor,</v>

2882
02:31:05.130 --> 02:31:09.490
I think it depends on the nature of the order

2883
02:31:09.490 --> 02:31:10.390
that's being made.

2884
02:31:10.390 --> 02:31:11.880
And there is a distinction

2885
02:31:11.880 --> 02:31:14.860
between relief in the nature of mandamus

2886
02:31:14.860 --> 02:31:17.327
and what's more typically

2887
02:31:17.327 --> 02:31:19.460
referred to as a preventive injunction.

2888
02:31:19.460 --> 02:31:22.150
So in other words if the court

2889
02:31:22.150 --> 02:31:24.260
is simply seeking to enjoin the Governor

2890
02:31:24.260 --> 02:31:26.800
from taking some action that if taken,

2891
02:31:27.740 --> 02:31:29.820
would violate the constitution,

2892
02:31:29.820 --> 02:31:31.400
then the rule prohibiting mandamus

2893
02:31:31.400 --> 02:31:33.430
against the government wouldn't apply.

2894
02:31:33.430 --> 02:31:34.490
But where the court

2895
02:31:34.490 --> 02:31:37.190
is ordering essentially a change in the status quo

2896
02:31:37.190 --> 02:31:39.070
and in ordering the Governor

2897
02:31:39.070 --> 02:31:42.910
to take an affirmative step to change the status quo,

2898
02:31:42.910 --> 02:31:44.260
that rule does apply.

2899
02:31:44.260 --> 02:31:48.440
And I point to one of the cases in this line

2900
02:31:48.440 --> 02:31:51.740
is the Limits case and it involved,

2901
02:31:51.740 --> 02:31:55.830
an initiative petition that was in the legislature

2902
02:31:55.830 --> 02:31:58.470
and was effectively stalled in the legislature.

2903
02:31:58.470 --> 02:32:01.950
And the plaintiffs sought a petition for mandamus

2904
02:32:01.950 --> 02:32:04.370
to compel the legislature to act on that.

2905
02:32:04.370 --> 02:32:06.527
Now the requirement to act on that

2906
02:32:06.527 --> 02:32:09.930
was required by the Massachusetts constitution.

2907
02:32:09.930 --> 02:32:11.510
And that did not change the outcome,

2908
02:32:11.510 --> 02:32:12.970
which was that court held,

2909
02:32:12.970 --> 02:32:14.890
you cannot mandamus the legislature.

2910
02:32:15.900 --> 02:32:18.230
Not withstanding the fact that their conduct

2911
02:32:18.230 --> 02:32:20.650
may have been in violation of the constitution.

2912
02:32:20.650 --> 02:32:22.740
The court noted they were accountable politically

2913
02:32:22.740 --> 02:32:24.420
for their actions.

2914
02:32:24.420 --> 02:32:27.220
<v ->Well, you also spoke about the declaratory judgment</v>

2915
02:32:27.220 --> 02:32:29.110
as exempting the Governor,

2916
02:32:29.110 --> 02:32:31.520
but it's your position that if the Governor

2917
02:32:31.520 --> 02:32:33.630
were to violate the Massachusetts constitution,

2918
02:32:33.630 --> 02:32:35.680
we could not declare that he had done so?

2919
02:32:37.070 --> 02:32:40.610
<v ->Well, I think that the declaratory judgment act,</v>

2920
02:32:40.610 --> 02:32:43.660
the statute explicitly exempts the Governor.

2921
02:32:43.660 --> 02:32:45.710
So to bring an action against the Governor,

2922
02:32:45.710 --> 02:32:48.580
seeking a declaratory judgment is not permissible

2923
02:32:48.580 --> 02:32:50.030
into the statute.

2924
02:32:50.030 --> 02:32:52.460
Now, if there are constitutional violations,

2925
02:32:52.460 --> 02:32:54.980
then there's an appropriate party before the court,

2926
02:32:54.980 --> 02:32:57.200
the court of course retains the authority

2927
02:32:57.200 --> 02:33:00.550
to declare that there is a constitutional violation,

2928
02:33:00.550 --> 02:33:03.140
but the Governor is not an appropriate party

2929
02:33:03.140 --> 02:33:03.973
to such--

2930
02:33:03.973 --> 02:33:07.390
<v ->What if it's the Governor who's done the violation?</v>

2931
02:33:09.742 --> 02:33:10.670
What if the Governor were to order

2932
02:33:10.670 --> 02:33:13.030
some suspension of habeas corpus

2933
02:33:13.030 --> 02:33:13.930
or something akin

2934
02:33:13.930 --> 02:33:18.930
that would be arguably probably plainly unconstitutional?

2935
02:33:20.455 --> 02:33:21.820
Are you or is the Governor arguing

2936
02:33:21.820 --> 02:33:23.560
that Massachusettes Supreme Judicial Court

2937
02:33:23.560 --> 02:33:25.570
could not say Governor,

2938
02:33:25.570 --> 02:33:29.830
we declared that what you are doing is unconstitutional

2939
02:33:29.830 --> 02:33:31.400
and we order you to stop.

2940
02:33:32.770 --> 02:33:34.580
<v ->I think, in your example</v>

2941
02:33:34.580 --> 02:33:37.590
the release that will be available to stop the Governor

2942
02:33:37.590 --> 02:33:38.890
from proceeding with some action

2943
02:33:38.890 --> 02:33:40.390
that will be unconstitutional,

2944
02:33:40.390 --> 02:33:44.060
would be injunctive relief or equitable relief,

2945
02:33:44.060 --> 02:33:45.490
not in the form of mandamus

2946
02:33:45.490 --> 02:33:48.540
because it's not affirmatively asking him to do something.

2947
02:33:49.430 --> 02:33:51.740
You know, such injunctive--

2948
02:33:51.740 --> 02:33:53.210
<v ->Relief versus mandamus.</v>

2949
02:33:53.210 --> 02:33:55.000
I mean, it would be an injunction to say,

2950
02:33:55.000 --> 02:33:57.850
injunction can say, stop doing something,

2951
02:33:57.850 --> 02:33:59.760
or it can say you shall do something

2952
02:33:59.760 --> 02:34:01.020
injuctions go both ways,

2953
02:34:02.850 --> 02:34:03.750
<v ->Correct, Your Honor.</v>

2954
02:34:03.750 --> 02:34:06.400
And the mandamus prohibition,

2955
02:34:06.400 --> 02:34:09.990
as I understand this court's cases applies to an order

2956
02:34:09.990 --> 02:34:12.280
that affirmative it requires the Governor

2957
02:34:12.280 --> 02:34:13.951
to take some step.

2958
02:34:13.951 --> 02:34:16.390
<v ->What if he issued an order</v>

2959
02:34:16.390 --> 02:34:19.930
that would permit that would suspend habeas corpus,

2960
02:34:19.930 --> 02:34:22.730
but this court could not order him to vacate that order?

2961
02:34:23.900 --> 02:34:25.650
<v ->I think that would be in the nature</v>

2962
02:34:25.650 --> 02:34:26.760
of a preventive injunction,

2963
02:34:26.760 --> 02:34:28.560
not mandamus to say you've taken a step,

2964
02:34:28.560 --> 02:34:29.851
we find unconstitutional,

2965
02:34:29.851 --> 02:34:33.510
and we're going to enjoin you from enforcing that order.

2966
02:34:33.510 --> 02:34:34.820
I don't believe that would fall

2967
02:34:34.820 --> 02:34:38.080
under the same rule that's announced in Rice

2968
02:34:38.080 --> 02:34:40.940
and Town of Milton and those cases.

2969
02:34:40.940 --> 02:34:42.280
<v ->But just to make clear,</v>

2970
02:34:44.225 --> 02:34:45.770
the Governor was not arguing

2971
02:34:45.770 --> 02:34:48.630
that this court does not have the authority to declare

2972
02:34:48.630 --> 02:34:51.650
that what he has done is unconstitutional.

2973
02:34:51.650 --> 02:34:54.670
Where it's found unconstitutional, does he?

2974
02:34:56.590 --> 02:34:57.920
<v ->The governor's position</v>

2975
02:34:57.920 --> 02:35:00.000
is that the declaratory judgment statute

2976
02:35:00.000 --> 02:35:01.150
to the extent of cause of action

2977
02:35:01.150 --> 02:35:04.330
is certain under that can't be asserted against him.

2978
02:35:04.330 --> 02:35:05.163
<v ->My question,</v>

2979
02:35:06.049 --> 02:35:07.160
is that the Governor's position

2980
02:35:07.160 --> 02:35:10.780
that if the Governor were to commit an act,

2981
02:35:10.780 --> 02:35:12.770
which would be in violation of the constitution,

2982
02:35:12.770 --> 02:35:14.500
that this court would not have the authority

2983
02:35:14.500 --> 02:35:18.670
to tell him to stop doing it.

2984
02:35:18.670 --> 02:35:21.397
<v ->Your Honor, I think it would depend on</v>

2985
02:35:21.397 --> 02:35:23.360
what the order of the court was

2986
02:35:23.360 --> 02:35:26.480
in terms of giving an affirmative requirement

2987
02:35:26.480 --> 02:35:30.510
to do something rather than just stop doing something.

2988
02:35:30.510 --> 02:35:32.200
Is it demanding that the Governor

2989
02:35:32.200 --> 02:35:35.920
change the status quo versus not change the status quo?

2990
02:35:36.940 --> 02:35:38.490
So I don't mean to be evasive--

2991
02:35:38.490 --> 02:35:40.790
<v ->But you still are (laughs).</v>

2992
02:35:40.790 --> 02:35:42.900
I just said the answer was it would be

2993
02:35:42.900 --> 02:35:45.420
to stop doing so to basically you were,

2994
02:35:45.420 --> 02:35:46.253
we would declare

2995
02:35:46.253 --> 02:35:48.440
that what you were doing is unconstitutional

2996
02:35:48.440 --> 02:35:50.170
and you have to stop doing it.

2997
02:35:50.170 --> 02:35:52.120
Is that something that this court

2998
02:35:52.120 --> 02:35:53.550
does not have the authority to do

2999
02:35:53.550 --> 02:35:56.220
if the Governor were to engage

3000
02:35:56.220 --> 02:35:57.680
in unconstitutional conduct?

3001
02:35:57.680 --> 02:35:58.690
Is the Governor contending

3002
02:35:58.690 --> 02:36:00.731
that he is beyond the authority of the court

3003
02:36:00.731 --> 02:36:05.010
to order him to not do something which is unconstitutional.

3004
02:36:05.990 --> 02:36:06.823
<v ->No, Your Honor,</v>

3005
02:36:06.823 --> 02:36:09.620
the court could order the Governor to cease

3006
02:36:09.620 --> 02:36:13.210
from an activity that it deems unconstitutional

3007
02:36:13.210 --> 02:36:16.810
in order to stop an activity that it deems unconstitutional.

3008
02:36:18.280 --> 02:36:19.230
<v ->Justice Lenk.</v>

3009
02:36:21.580 --> 02:36:23.310
<v ->I'm all set thank you.</v>

3010
02:36:23.310 --> 02:36:24.540
<v ->And are there any further questions?</v>

3011
02:36:24.540 --> 02:36:27.586
<v ->Yeah, I have follow ups on</v>

3012
02:36:27.586 --> 02:36:30.040
there's a whole body of law

3013
02:36:30.040 --> 02:36:33.450
designed to avoid this type of constitutional conflict

3014
02:36:33.450 --> 02:36:35.580
that the Chief is raising, right?

3015
02:36:35.580 --> 02:36:40.380
Both federally and state, correct?

3016
02:36:41.380 --> 02:36:42.520
One would look to

3017
02:36:42.520 --> 02:36:46.240
whether the Governor acted directly as opposed to,

3018
02:36:47.330 --> 02:36:49.730
and it needs to be specific

3019
02:36:49.730 --> 02:36:51.550
and direct action, correct?

3020
02:36:53.010 --> 02:36:53.843
<v ->Correct.</v>

3021
02:36:53.843 --> 02:36:55.460
<v ->And this doesn't even come close</v>

3022
02:36:55.460 --> 02:36:58.650
to meeting that requirement, does it?

3023
02:36:58.650 --> 02:36:59.890
<v ->No, it doesn't.</v>

3024
02:36:59.890 --> 02:37:00.723
And in fact,

3025
02:37:00.723 --> 02:37:01.890
we think it's so far from that

3026
02:37:01.890 --> 02:37:03.610
that there's not even a claim stated

3027
02:37:03.610 --> 02:37:05.970
against the Governor under 1983,

3028
02:37:05.970 --> 02:37:07.760
but again, in these circumstances,

3029
02:37:07.760 --> 02:37:09.870
the allegations are not that

3030
02:37:09.870 --> 02:37:11.540
the Governor is doing something,

3031
02:37:11.540 --> 02:37:14.650
but that the conditions of confinement,

3032
02:37:14.650 --> 02:37:16.400
which are under the direct supervision

3033
02:37:16.400 --> 02:37:19.350
of the Department of Corrections are unconstitutional.

3034
02:37:19.350 --> 02:37:20.600
<v ->So the government has several steps removed.</v>

3035
02:37:20.600 --> 02:37:21.660
<v ->In that respect</v>

3036
02:37:21.660 --> 02:37:24.040
that's the second part is what we're supposed to look at.

3037
02:37:24.040 --> 02:37:26.370
Whether we're looking at different officials

3038
02:37:26.370 --> 02:37:29.380
where the mandamus and declaratory judgement acts

3039
02:37:29.380 --> 02:37:30.730
are appropriate.

3040
02:37:30.730 --> 02:37:33.260
And if those would be the officials taking the action,

3041
02:37:33.260 --> 02:37:35.960
again, you avoid the constitutional problem

3042
02:37:35.960 --> 02:37:37.510
by focusing on that, correct?

3043
02:37:38.590 --> 02:37:41.630
<v ->Absolutely the court would issue a declaration</v>

3044
02:37:41.630 --> 02:37:43.770
or if appropriate injunctive relief

3045
02:37:43.770 --> 02:37:45.190
to those executive officers,

3046
02:37:45.190 --> 02:37:46.700
not to the Governor.

3047
02:37:46.700 --> 02:37:50.376
<v ->And third that we need to be extremely careful</v>

3048
02:37:50.376 --> 02:37:55.300
when we're dealing with policy types of disputes

3049
02:37:55.300 --> 02:37:58.060
to make sure that we don't cross over

3050
02:37:58.060 --> 02:38:01.340
into the Governors area, constitutional authority.

3051
02:38:01.340 --> 02:38:02.173
Right?

3052
02:38:03.650 --> 02:38:04.483
<v ->That's correct.</v>

3053
02:38:04.483 --> 02:38:06.398
And that's, I believe why this rule

3054
02:38:06.398 --> 02:38:09.830
has evolved under Article 30.

3055
02:38:09.830 --> 02:38:11.390
<v ->And is there a real danger</v>

3056
02:38:11.390 --> 02:38:13.190
that we aren't doing just that here?

3057
02:38:18.298 --> 02:38:19.640
<v ->I think yes, Your Honor,</v>

3058
02:38:19.640 --> 02:38:22.140
the danger is particularly acute here.

3059
02:38:22.140 --> 02:38:27.070
Given the types of powers that plaintiff has identified,

3060
02:38:28.010 --> 02:38:29.981
the Governor is possessing

3061
02:38:29.981 --> 02:38:32.060
that they would like to see exercise.

3062
02:38:32.060 --> 02:38:35.360
If these are core executive discretionary power.

3063
02:38:35.360 --> 02:38:37.570
When we talk about the clemency power,

3064
02:38:37.570 --> 02:38:39.580
we talk about emergency powers

3065
02:38:39.580 --> 02:38:42.800
and there is a real danger to a court ordering

3066
02:38:42.800 --> 02:38:45.400
that those have to be exercised in a particular way.

3067
02:38:46.260 --> 02:38:48.040
<v ->So there's in your view,</v>

3068
02:38:48.040 --> 02:38:50.680
there's a much greater danger of us intruding

3069
02:38:50.680 --> 02:38:53.070
on the Governor's constitutional powers

3070
02:38:53.070 --> 02:38:55.350
in the government crossing over

3071
02:38:55.350 --> 02:38:57.400
into a constitutional violation here?

3072
02:38:58.870 --> 02:39:00.020
<v ->Certainly in the context</v>

3073
02:39:00.020 --> 02:39:02.690
that's before the court right now, yes.

3074
02:39:02.690 --> 02:39:04.770
<v ->Thank you, I have no further questions.</v>

3075
02:39:04.770 --> 02:39:07.450
<v ->Any further questions of any justices?</v>

3076
02:39:07.450 --> 02:39:08.283
<v ->All right.</v>

3077
02:39:08.283 --> 02:39:10.180
<v ->I will turn to Mr. Burn</v>

3078
02:39:10.180 --> 02:39:12.660
on behalf of the chair of the parole board.

3079
02:39:14.100 --> 02:39:15.970
<v ->Thank you, Your Honor.</v>

3080
02:39:15.970 --> 02:39:18.010
May it please the court

3081
02:39:18.010 --> 02:39:20.210
on behalf of Gloriann Moroney,

3082
02:39:20.210 --> 02:39:22.490
the chair of the Massachusetts Parole Board.

3083
02:39:23.420 --> 02:39:24.260
The plaintiff's complaint,

3084
02:39:24.260 --> 02:39:25.720
doesn't plausibly state,

3085
02:39:25.720 --> 02:39:28.130
any claim for relief against the parole board

3086
02:39:28.130 --> 02:39:29.870
because the parole board did not create

3087
02:39:29.870 --> 02:39:31.700
and does not control the conditions

3088
02:39:31.700 --> 02:39:33.240
in correctional facilities.

3089
02:39:34.130 --> 02:39:36.020
Plaintiffs have conceded that the board

3090
02:39:36.020 --> 02:39:38.200
is not responsible for civil commitment

3091
02:39:38.200 --> 02:39:41.580
under Chapter 123, Section 35.

3092
02:39:41.580 --> 02:39:45.810
And they don't challenge the most as on counts three,

3093
02:39:45.810 --> 02:39:47.360
but they do seek relief from the board

3094
02:39:47.360 --> 02:39:48.800
under counts one and two,

3095
02:39:48.800 --> 02:39:51.820
alleging that the conditions

3096
02:39:51.820 --> 02:39:54.620
which render social distancing difficult to maintain

3097
02:39:54.620 --> 02:39:56.220
in prisons and jails

3098
02:39:56.220 --> 02:39:57.830
should be deemed to constitute

3099
02:39:57.830 --> 02:39:59.480
cruel and unusual punishment

3100
02:39:59.480 --> 02:40:02.550
violation of the 8th Amendment and Article 26.

3101
02:40:03.390 --> 02:40:06.010
However in order to state a valid claim

3102
02:40:06.010 --> 02:40:07.660
against the parole board,

3103
02:40:07.660 --> 02:40:09.280
the plaintiff must allege

3104
02:40:09.280 --> 02:40:11.560
that the chair is a prison official

3105
02:40:11.560 --> 02:40:13.250
who bears responsibility for conditions,

3106
02:40:13.250 --> 02:40:15.940
which fall below constitutional standards,

3107
02:40:15.940 --> 02:40:17.920
that those conditions present excessive risk,

3108
02:40:17.920 --> 02:40:19.760
inmate health and safety and contraventions,

3109
02:40:19.760 --> 02:40:21.560
contemporary standards of decency.

3110
02:40:21.560 --> 02:40:24.090
And that the board is active with deliberate indifference,

3111
02:40:24.090 --> 02:40:24.923
to the risk of harm,

3112
02:40:24.923 --> 02:40:26.750
to which the plants are exposed.

3113
02:40:26.750 --> 02:40:27.583
They haven't made

3114
02:40:27.583 --> 02:40:29.110
and cannot make such a showing.

3115
02:40:29.110 --> 02:40:31.000
The board is not a prison official,

3116
02:40:31.000 --> 02:40:33.120
did not create and does not control the conditions.

3117
02:40:33.120 --> 02:40:35.060
And so dismissal is appropriate.

3118
02:40:36.020 --> 02:40:37.360
What the plaintiffs are really urging

3119
02:40:37.360 --> 02:40:40.820
the court to do is to use the parole process

3120
02:40:40.820 --> 02:40:45.570
as a relief valve to protect inmates from exposure to risk.

3121
02:40:45.570 --> 02:40:48.340
But that's not what the parole process is designed to do,

3122
02:40:48.340 --> 02:40:51.720
nor is it what the parole board is empowered to do

3123
02:40:51.720 --> 02:40:54.050
under the statutory and regulatory framework.

3124
02:40:54.920 --> 02:40:56.720
What the plaintiffs are asking us to do

3125
02:40:56.720 --> 02:40:59.440
is to disregard that framework for parole decisions,

3126
02:40:59.440 --> 02:41:00.789
contravene the standards

3127
02:41:00.789 --> 02:41:04.910
set by the legislature in Chapter 127, Section 130

3128
02:41:04.910 --> 02:41:06.520
and the related provisions

3129
02:41:06.520 --> 02:41:07.460
and deprive the board

3130
02:41:07.460 --> 02:41:08.960
of its broad discretionary authority

3131
02:41:08.960 --> 02:41:10.360
as an executive agency,

3132
02:41:10.360 --> 02:41:12.580
they want to overhaul the parole process

3133
02:41:12.580 --> 02:41:13.413
and compel the board

3134
02:41:13.413 --> 02:41:15.390
to facilitate the immediate release

3135
02:41:15.390 --> 02:41:17.020
of thousands of inmates

3136
02:41:17.020 --> 02:41:18.310
before their sentences are complete.

3137
02:41:18.310 --> 02:41:19.143
And in many cases

3138
02:41:19.143 --> 02:41:21.170
before they're eligible for parole

3139
02:41:21.170 --> 02:41:23.330
by presumptively granting parole.

3140
02:41:23.330 --> 02:41:26.360
Unless there is clear and convincing evidence

3141
02:41:26.360 --> 02:41:29.040
that an inmate is certain to commit further crimes,

3142
02:41:29.040 --> 02:41:30.821
that they cannot live at liberty

3143
02:41:30.821 --> 02:41:33.180
without violating the law

3144
02:41:33.180 --> 02:41:34.013
to make such an order

3145
02:41:34.013 --> 02:41:36.630
would violate the separation of powers under Article 30,

3146
02:41:36.630 --> 02:41:38.270
it would contradict existing law

3147
02:41:38.270 --> 02:41:41.890
and it would grossly exceed the court's equitable powers.

3148
02:41:41.890 --> 02:41:44.100
This public health emergency is affecting us all.

3149
02:41:44.100 --> 02:41:45.910
And the parole board does not disagree

3150
02:41:45.910 --> 02:41:48.810
that it's appropriate to take measures

3151
02:41:48.810 --> 02:41:50.870
to mitigate the risk of the spread of COVID-19

3152
02:41:50.870 --> 02:41:52.570
in correctional settings.

3153
02:41:52.570 --> 02:41:54.420
That part of the response

3154
02:41:54.420 --> 02:41:56.200
and that part of the response,

3155
02:41:56.200 --> 02:41:57.600
include taking reasonable steps

3156
02:41:57.600 --> 02:42:00.180
to reduce the incarcerated population

3157
02:42:00.180 --> 02:42:01.640
within the scope of this discretion

3158
02:42:01.640 --> 02:42:04.170
is an executive branch agency

3159
02:42:04.170 --> 02:42:06.310
subject to statutory and regulatory standards,

3160
02:42:06.310 --> 02:42:09.030
and consistent with the sentencing imposed by the court.

3161
02:42:09.030 --> 02:42:10.480
The board has taken and continues

3162
02:42:10.480 --> 02:42:13.090
to take aggressive steps to respond to the crisis.

3163
02:42:13.090 --> 02:42:13.923
Many of those efforts

3164
02:42:13.923 --> 02:42:16.578
are described in the Superior Court findings of fact,

3165
02:42:16.578 --> 02:42:18.930
but we cannot simply open the flood gates

3166
02:42:18.930 --> 02:42:20.330
and hope for the best.

3167
02:42:20.330 --> 02:42:23.050
The board must abide by its statutory obligation

3168
02:42:23.050 --> 02:42:25.640
to ensure that those who are released into the community

3169
02:42:25.640 --> 02:42:27.670
before their sentence has been completed,

3170
02:42:27.670 --> 02:42:30.210
do not pose a substantial threat to the public.

3171
02:42:30.210 --> 02:42:32.280
That there is a reasonable probability

3172
02:42:32.280 --> 02:42:33.330
that the prisoner will live

3173
02:42:33.330 --> 02:42:35.620
and remain at Liberty without violating the law

3174
02:42:35.620 --> 02:42:37.260
and release is not incompatible

3175
02:42:37.260 --> 02:42:39.360
with the welfare of society

3176
02:42:39.360 --> 02:42:40.930
and that they're properly equipped.

3177
02:42:40.930 --> 02:42:42.616
The prisoners are properly equipped

3178
02:42:42.616 --> 02:42:45.380
via appropriate conditions and community supervision

3179
02:42:46.470 --> 02:42:51.070
to successfully be integrated into society.

3180
02:42:51.070 --> 02:42:52.980
That is the board's purpose,

3181
02:42:52.980 --> 02:42:54.760
and that's what they are designed to do.

3182
02:42:54.760 --> 02:42:56.860
They should be allowed to serve that purpose

3183
02:42:56.860 --> 02:42:59.570
without unnecessary and inappropriate interference.

3184
02:42:59.570 --> 02:43:00.410
And we urge the court

3185
02:43:00.410 --> 02:43:02.360
to grant the board's motion to dismiss.

3186
02:43:03.670 --> 02:43:05.440
<v ->Okay. I'll turn to Justice Gaziano.</v>

3187
02:43:05.440 --> 02:43:06.380
<v ->Thank you, Chief.</v>

3188
02:43:06.380 --> 02:43:08.140
Just one question.

3189
02:43:08.140 --> 02:43:11.010
I understand the discretion issue

3190
02:43:11.010 --> 02:43:15.270
in the statutory plaintiff authority for the parole board,

3191
02:43:15.270 --> 02:43:18.460
but where we defined an 8th Amendment

3192
02:43:18.460 --> 02:43:20.660
or Article 26 violation

3193
02:43:20.660 --> 02:43:25.464
that will require reduction of prison population,

3194
02:43:25.464 --> 02:43:28.720
Isn't the parole board a necessary party in this action?

3195
02:43:30.600 --> 02:43:31.996
<v ->I think that the parole board</v>

3196
02:43:31.996 --> 02:43:33.840
would only be a necessary party

3197
02:43:33.840 --> 02:43:36.870
to the extent that the parole board operating

3198
02:43:36.870 --> 02:43:40.830
within its framework could alleviate that problem.

3199
02:43:40.830 --> 02:43:43.350
And what they're being asked to do,

3200
02:43:43.350 --> 02:43:45.000
the function that they're being asked for

3201
02:43:45.000 --> 02:43:49.074
by the plaintiffs to reduce the prison population

3202
02:43:49.074 --> 02:43:51.115
is not to apply the standards

3203
02:43:51.115 --> 02:43:54.370
that they are authorized to apply,

3204
02:43:54.370 --> 02:43:57.027
but to apply a completely different set of standards,

3205
02:43:57.027 --> 02:43:59.890
which they urge the court to simply fashion.

3206
02:43:59.890 --> 02:44:01.890
And then use the parole board

3207
02:44:01.890 --> 02:44:06.840
as the tool to implement those releases.

3208
02:44:06.840 --> 02:44:09.970
Those are not parole releases under the statute.

3209
02:44:09.970 --> 02:44:11.100
<v ->So let me ask you,</v>

3210
02:44:11.100 --> 02:44:13.000
the parole board is under the statute.

3211
02:44:13.000 --> 02:44:15.400
So we had the prior litigation

3212
02:44:15.400 --> 02:44:17.770
and there was the issue of you know,

3213
02:44:17.770 --> 02:44:20.990
the 300 people awaiting parole.

3214
02:44:20.990 --> 02:44:24.510
And then to the parole board's credit that stepped up,

3215
02:44:24.510 --> 02:44:25.370
we've had more hearings,

3216
02:44:25.370 --> 02:44:26.630
you've had more releases.

3217
02:44:27.760 --> 02:44:29.600
Now the parole board is a party

3218
02:44:29.600 --> 02:44:34.600
to the second set of litigation and I'm wondering,

3219
02:44:34.984 --> 02:44:38.330
are we still going to get the parole board

3220
02:44:38.330 --> 02:44:40.330
to continue to do its job

3221
02:44:40.330 --> 02:44:43.060
until it admits this crisis

3222
02:44:43.060 --> 02:44:46.730
into reduce the prison population within its mandate,

3223
02:44:46.730 --> 02:44:48.580
were they not part of the litigation?

3224
02:44:50.110 --> 02:44:51.490
<v ->Absolutely.</v>

3225
02:44:51.490 --> 02:44:55.240
And they've made significant efforts

3226
02:44:55.240 --> 02:44:57.800
within the scope of that framework

3227
02:44:57.800 --> 02:44:59.840
to accelerate the process.

3228
02:44:59.840 --> 02:45:04.130
They've released 277 people on parole in the last month.

3229
02:45:04.130 --> 02:45:05.711
They've cut the time

3230
02:45:05.711 --> 02:45:08.100
between the approval of parole

3231
02:45:08.100 --> 02:45:09.970
and the issuance parole permits in half

3232
02:45:09.970 --> 02:45:12.020
from 14 to seven days,

3233
02:45:12.020 --> 02:45:14.710
they held over 300 parole hearings.

3234
02:45:14.710 --> 02:45:17.100
They've approved over 300 housing plans.

3235
02:45:18.030 --> 02:45:19.850
They've entered into contracts

3236
02:45:19.850 --> 02:45:22.790
with the Massachusetts Lions for Silver Housing

3237
02:45:22.790 --> 02:45:25.100
to provide up to 150 beds

3238
02:45:25.100 --> 02:45:27.700
for up to eight weeks at the board's expense.

3239
02:45:28.580 --> 02:45:31.180
They've authorized additional examiners.

3240
02:45:31.180 --> 02:45:33.190
They've authorized examiners

3241
02:45:33.190 --> 02:45:36.200
to consider COVID-19 as a factor

3242
02:45:36.200 --> 02:45:41.200
in determining whether or not to approve early eligibility

3243
02:45:41.510 --> 02:45:44.340
for patrol inappropriate cases.

3244
02:45:44.340 --> 02:45:45.390
They're not ignoring this

3245
02:45:45.390 --> 02:45:47.040
and I'm not suggesting that parole

3246
02:45:47.040 --> 02:45:50.730
doesn't have some role to play

3247
02:45:50.730 --> 02:45:51.990
in the reasonable efforts

3248
02:45:51.990 --> 02:45:54.985
by the executive branch of government

3249
02:45:54.985 --> 02:45:57.920
to respond to the problem.

3250
02:45:57.920 --> 02:45:59.050
What I am saying though,

3251
02:45:59.050 --> 02:46:00.620
is that they can't be used

3252
02:46:00.620 --> 02:46:04.300
in the context of this litigation as the tool,

3253
02:46:04.300 --> 02:46:08.190
by which the judiciary orders

3254
02:46:09.320 --> 02:46:11.320
overhaul of the parole process

3255
02:46:11.320 --> 02:46:14.722
in order to alleviate the problem

3256
02:46:14.722 --> 02:46:19.722
of perceived "overcrowding",

3257
02:46:21.590 --> 02:46:25.730
in the context of the social distancing measures.

3258
02:46:25.730 --> 02:46:26.563
<v ->All right.</v>

3259
02:46:26.563 --> 02:46:27.396
Thank you.

3260
02:46:27.396 --> 02:46:28.229
You've answered my question.

3261
02:46:28.229 --> 02:46:29.062
<v ->Thank you.</v>

3262
02:46:29.062 --> 02:46:29.895
<v ->Justice Lowy.</v>

3263
02:46:29.895 --> 02:46:31.840
<v ->I have no questions, thank you.</v>

3264
02:46:31.840 --> 02:46:33.420
<v ->Justice Budd.</v>

3265
02:46:33.420 --> 02:46:34.880
<v ->I have no questions.</v>

3266
02:46:34.880 --> 02:46:36.170
<v ->Justice Cypher.</v>

3267
02:46:36.170 --> 02:46:37.030
<v ->I have one,</v>

3268
02:46:37.030 --> 02:46:37.863
you may have answered it

3269
02:46:37.863 --> 02:46:39.870
and then they had missed it already.

3270
02:46:39.870 --> 02:46:43.984
And in the statement of joint statement of facts you state,

3271
02:46:43.984 --> 02:46:48.180
it stated that the parole board held 259 hearings

3272
02:46:48.180 --> 02:46:51.670
between March 19th and April 17th.

3273
02:46:51.670 --> 02:46:54.910
Was this an acceleration of your typical schedule?

3274
02:46:56.150 --> 02:46:58.940
<v ->Yet, I believe that,</v>

3275
02:46:58.940 --> 02:47:00.750
if you give me one second.

3276
02:47:00.750 --> 02:47:01.583
<v ->Sure.</v>

3277
02:47:08.478 --> 02:47:11.240
<v ->I apologize, I'm looking at the wrong thing here.</v>

3278
02:47:11.240 --> 02:47:13.980
I believe there is an indication

3279
02:47:13.980 --> 02:47:18.563
with the normal rate hearing is in the statement of facts.

3280
02:47:19.520 --> 02:47:21.360
I may be mistaken on that.

3281
02:47:21.360 --> 02:47:23.150
But it is my understanding that

3282
02:47:23.150 --> 02:47:25.680
that is a significant increase

3283
02:47:25.680 --> 02:47:29.360
from the normal rate at which these hearings are held

3284
02:47:29.360 --> 02:47:33.220
and they've also gone to considerable lengths

3285
02:47:33.220 --> 02:47:36.190
to ensure that they can conduct these hearings remotely

3286
02:47:36.190 --> 02:47:37.023
and so on,

3287
02:47:37.023 --> 02:47:39.710
which normally would not be the case.

3288
02:47:39.710 --> 02:47:41.480
The only sticking point, I think,

3289
02:47:41.480 --> 02:47:46.480
has been in regard to the hearings for life sentences,

3290
02:47:47.031 --> 02:47:50.080
because in those cases,

3291
02:47:50.080 --> 02:47:52.060
there are statutory requirements

3292
02:47:52.060 --> 02:47:53.730
calling for public hearings

3293
02:47:53.730 --> 02:47:56.250
and victim impact statements and so on,

3294
02:47:56.250 --> 02:48:00.950
which as a result of the COVID-19 pandemic

3295
02:48:00.950 --> 02:48:02.550
have been impossible to conduct,

3296
02:48:02.550 --> 02:48:04.320
but for everyone else,

3297
02:48:04.320 --> 02:48:07.340
they've certainly made efforts to conduct

3298
02:48:07.340 --> 02:48:08.910
as many hearings as they can,

3299
02:48:08.910 --> 02:48:13.418
as quickly as they can to work with the CPCS

3300
02:48:13.418 --> 02:48:18.418
and others to ensure that prisoners

3301
02:48:18.650 --> 02:48:20.700
who are approved for parole

3302
02:48:20.700 --> 02:48:24.600
can get their home plans crafted and approved

3303
02:48:24.600 --> 02:48:26.490
as promptly as possible,

3304
02:48:26.490 --> 02:48:29.047
and to get them released

3305
02:48:29.047 --> 02:48:33.769
as soon as reasonably possible under the circumstances.

3306
02:48:33.769 --> 02:48:34.602
<v ->Thank you.</v>

3307
02:48:34.602 --> 02:48:36.200
I have no further questions.

3308
02:48:36.200 --> 02:48:37.530
<v ->Justice Kafker.</v>

3309
02:48:37.530 --> 02:48:39.730
<v ->Just a little confused how you're,</v>

3310
02:48:41.020 --> 02:48:43.180
I understand you're obviously not responsible

3311
02:48:43.180 --> 02:48:45.500
for the conditions in the prison,

3312
02:48:45.500 --> 02:48:50.500
but if there were a compelling need

3313
02:48:51.900 --> 02:48:55.900
to shrink the prison population

3314
02:48:56.880 --> 02:49:00.440
and you were not acting consistent with action,

3315
02:49:00.440 --> 02:49:03.180
telling me that would be different, right?

3316
02:49:03.180 --> 02:49:05.610
You'd still be on the hook,

3317
02:49:05.610 --> 02:49:08.250
even though you're not running the prison system.

3318
02:49:08.250 --> 02:49:09.690
Right?

3319
02:49:09.690 --> 02:49:10.740
<v ->I don't believe so.</v>

3320
02:49:13.360 --> 02:49:18.273
<v ->I may not have articulated that very well.,</v>

3321
02:49:20.630 --> 02:49:25.370
Say we found that given the Covid crisis

3322
02:49:26.410 --> 02:49:29.760
raging in a prison that they needed to

3323
02:49:31.830 --> 02:49:32.960
shrink the body,

3324
02:49:37.747 --> 02:49:39.497
and there were people right on the,

3325
02:49:41.000 --> 02:49:42.500
right on the verge of parole

3326
02:49:44.746 --> 02:49:46.780
and you sort of were sitting on your hands.

3327
02:49:46.780 --> 02:49:49.560
You'd still have no responsibility for that.

3328
02:49:49.560 --> 02:49:50.393
I'm confused.

3329
02:49:52.510 --> 02:49:55.130
<v ->I think that the point I was trying to make</v>

3330
02:49:55.130 --> 02:49:58.040
is that the parole process

3331
02:49:58.970 --> 02:50:02.690
is not designed to protect inmates

3332
02:50:02.690 --> 02:50:07.390
from exposure to harm inside the prison

3333
02:50:07.390 --> 02:50:10.950
and provide a means for them to get out

3334
02:50:10.950 --> 02:50:13.210
and avoid that exposure.

3335
02:50:13.210 --> 02:50:18.210
It's designed to protect the public against the risk

3336
02:50:18.510 --> 02:50:21.690
that an offender being a prisoner

3337
02:50:21.690 --> 02:50:23.820
being released will re-offend

3338
02:50:23.820 --> 02:50:27.750
and will present a risk to society.

3339
02:50:27.750 --> 02:50:29.870
So I think if what we're saying

3340
02:50:29.870 --> 02:50:34.870
is shouldn't the parole board be using this process

3341
02:50:35.120 --> 02:50:37.020
that's designated by the legislature

3342
02:50:37.020 --> 02:50:39.510
and statutes and regulations and so on

3343
02:50:39.510 --> 02:50:42.610
as a means to provide a relief valve

3344
02:50:42.610 --> 02:50:47.470
for the pressures from the COVID-19 pandemic

3345
02:50:47.470 --> 02:50:48.900
within the prisons.

3346
02:50:48.900 --> 02:50:51.630
I don't think that it can be used in that way

3347
02:50:51.630 --> 02:50:54.840
without sort of overhauling the entire statutory framework,

3348
02:50:54.840 --> 02:50:56.740
or at least just disregarding it.

3349
02:50:56.740 --> 02:50:58.490
Certainly not to the extent that the plaintiffs

3350
02:50:58.490 --> 02:51:01.360
are suggesting with this

3351
02:51:01.360 --> 02:51:03.690
virtually irrebuttable presumption

3352
02:51:03.690 --> 02:51:06.100
that anybody who's eligible for parole could get out,

3353
02:51:06.100 --> 02:51:07.960
unless there's clear and convincing evidence

3354
02:51:07.960 --> 02:51:09.904
that they're incapable of breaking the law.

3355
02:51:09.904 --> 02:51:11.525
(participant coughs)

3356
02:51:11.525 --> 02:51:14.140
But more generally,

3357
02:51:14.140 --> 02:51:15.540
I think that

3358
02:51:19.108 --> 02:51:22.253
the parole board performing its statutory function

3359
02:51:23.410 --> 02:51:27.120
is not part of the means

3360
02:51:27.120 --> 02:51:32.120
by which the problem of "overcrowding"

3361
02:51:33.710 --> 02:51:35.310
can be alleviated.

3362
02:51:36.751 --> 02:51:40.430
That their analysis is different.

3363
02:51:40.430 --> 02:51:41.810
Their role is different.

3364
02:51:41.810 --> 02:51:44.470
And that in order to use them in that fashion,

3365
02:51:44.470 --> 02:51:45.770
what the court would need to do

3366
02:51:45.770 --> 02:51:46.910
would be to disregard

3367
02:51:46.910 --> 02:51:49.383
the law and order the parole board to form,

3368
02:51:49.383 --> 02:51:51.080
to perform a different function,

3369
02:51:51.080 --> 02:51:53.190
apply different criteria

3370
02:51:53.190 --> 02:51:56.320
and use a different standard of release.

3371
02:51:56.320 --> 02:51:58.090
And I think that would be clearly

3372
02:51:58.090 --> 02:52:01.050
a violation of separation of powers

3373
02:52:01.050 --> 02:52:03.160
and contrary to the case law,

3374
02:52:03.160 --> 02:52:03.993
especially (mumbles)

3375
02:52:03.993 --> 02:52:08.110
that talks about the court not using its equitable powers

3376
02:52:08.110 --> 02:52:10.260
to violate existing law

3377
02:52:10.260 --> 02:52:14.820
and to compel an executive agency

3378
02:52:14.820 --> 02:52:19.010
to perform a function that it's neither designed for

3379
02:52:19.010 --> 02:52:20.460
nor authorized to perform.

3380
02:52:21.880 --> 02:52:22.713
<v ->Thank you.</v>

3381
02:52:22.713 --> 02:52:24.090
I have no further questions.

3382
02:52:24.090 --> 02:52:24.990
<v ->I've got some questions.</v>

3383
02:52:24.990 --> 02:52:26.460
So in Brown vs Plata,

3384
02:52:27.330 --> 02:52:29.330
US Supreme court said to California,

3385
02:52:29.330 --> 02:52:30.490
reduce the population.

3386
02:52:31.340 --> 02:52:32.450
Didn't say how to do it,

3387
02:52:32.450 --> 02:52:34.960
just take California, reduce.

3388
02:52:37.470 --> 02:52:39.300
Put aside whether or not on the merits

3389
02:52:39.300 --> 02:52:40.200
we should do that.

3390
02:52:43.256 --> 02:52:44.690
So you view that constitutionally,

3391
02:52:44.690 --> 02:52:46.140
we don't have the authority

3392
02:52:46.140 --> 02:52:48.510
to do what the US Supreme Court did.

3393
02:52:49.770 --> 02:52:54.223
<v ->I think that Brown was a very different situation</v>

3394
02:52:55.330 --> 02:52:57.220
in that as has been pointed out,

3395
02:52:57.220 --> 02:52:59.340
so that the constitutional violation

3396
02:52:59.340 --> 02:53:01.200
was conceded in that case.

3397
02:53:01.200 --> 02:53:03.556
Secondly, the court was operating--

3398
02:53:03.556 --> 02:53:05.760
<v ->Without the merit.</v>
<v ->Statutory framework.</v>

3399
02:53:06.780 --> 02:53:07.870
<v ->So is it your view</v>

3400
02:53:07.870 --> 02:53:11.308
that if there were to be an Article 26 claim made

3401
02:53:11.308 --> 02:53:14.560
that there was overcrowding,

3402
02:53:14.560 --> 02:53:19.260
which created a cruel and unusual punishment

3403
02:53:19.260 --> 02:53:21.080
that this court would not have the authority

3404
02:53:21.080 --> 02:53:23.760
to say you should,

3405
02:53:23.760 --> 02:53:25.410
you must reduce the overcrowding.

3406
02:53:27.690 --> 02:53:30.280
<v ->I don't believe that you could order the parole board</v>

3407
02:53:30.280 --> 02:53:31.850
to perform that function

3408
02:53:31.850 --> 02:53:34.580
within the existing statutory framework.

3409
02:53:35.673 --> 02:53:37.570
<v ->No, that's not my question.</v>

3410
02:53:37.570 --> 02:53:39.230
If we do have the same authority

3411
02:53:39.230 --> 02:53:41.350
as the US Supreme Court did to say,

3412
02:53:41.350 --> 02:53:43.830
if there's a really unusual punishment arise

3413
02:53:43.830 --> 02:53:45.060
from overcrowding then,

3414
02:53:45.060 --> 02:53:46.624
and if the only thing that can be done

3415
02:53:46.624 --> 02:53:50.350
is to reduce the overcrowding.

3416
02:53:51.880 --> 02:53:54.430
We've got the Governor saying, it's not my problem.

3417
02:53:54.430 --> 02:53:56.150
I shouldn't be ordered to do something.

3418
02:53:56.150 --> 02:53:58.920
We've got the Department of Corrections which says

3419
02:53:58.920 --> 02:54:00.090
we manage the prisons.

3420
02:54:00.090 --> 02:54:02.460
The only thing we're involved with is medical parole.

3421
02:54:02.460 --> 02:54:04.599
Don't order us to do anything.

3422
02:54:04.599 --> 02:54:06.699
And now we've got the parole board to say,

3423
02:54:08.100 --> 02:54:10.290
that's not your problem.

3424
02:54:10.290 --> 02:54:12.150
So who's supposed to do it.

3425
02:54:12.150 --> 02:54:13.460
How's it supposed to be done?

3426
02:54:15.400 --> 02:54:16.240
<v ->Your Honor.</v>

3427
02:54:20.339 --> 02:54:22.060
I don't want to hazard a guess

3428
02:54:22.060 --> 02:54:27.060
as to what's the best way to accomplish it would be.

3429
02:54:27.710 --> 02:54:31.050
I think that we have to work either

3430
02:54:31.050 --> 02:54:33.850
within the existing statutory framework,

3431
02:54:33.850 --> 02:54:38.850
or we need to work with legislators to frame a new one.

3432
02:54:39.460 --> 02:54:42.760
I don't believe that it's appropriate for the judiciary

3433
02:54:42.760 --> 02:54:45.340
to disregard that framework

3434
02:54:45.340 --> 02:54:47.850
and order an executive agency

3435
02:54:47.850 --> 02:54:49.690
to perform a different function

3436
02:54:49.690 --> 02:54:51.210
in order to accomplish the result.

3437
02:54:51.210 --> 02:54:53.867
Even if the result is to reduce

3438
02:54:53.867 --> 02:54:57.530
or eliminate what's perceived to be

3439
02:54:57.530 --> 02:54:59.690
a constitutional violation.

3440
02:54:59.690 --> 02:55:02.440
Where that constitutional violation isn't being committed.

3441
02:55:02.440 --> 02:55:06.430
You're not telling an executive agency

3442
02:55:06.430 --> 02:55:08.140
that you're doing this wrong.

3443
02:55:08.140 --> 02:55:09.320
You're violating the constitution

3444
02:55:09.320 --> 02:55:10.440
by doing what you're doing.

3445
02:55:10.440 --> 02:55:13.130
And therefore you need to abide by your obligations.

3446
02:55:13.130 --> 02:55:15.320
You're saying what the plaintiffs are saying is,

3447
02:55:15.320 --> 02:55:17.670
and we need to redefine those obligations

3448
02:55:17.670 --> 02:55:19.510
and make them something different.

3449
02:55:19.510 --> 02:55:21.930
And that I don't believe is appropriate.

3450
02:55:21.930 --> 02:55:23.620
<v ->So you're saying,</v>

3451
02:55:23.620 --> 02:55:25.290
the US Supreme court did it.

3452
02:55:25.290 --> 02:55:27.290
California is reducing their population.

3453
02:55:30.299 --> 02:55:33.270
<v ->But I'm not aware of anything in the Brown vs Plata case</v>

3454
02:55:33.270 --> 02:55:34.570
that specifically says, well,

3455
02:55:34.570 --> 02:55:37.040
we're going to change the conditions of parole.

3456
02:55:37.040 --> 02:55:39.560
And we're going to instruct the California Board of Parole,

3457
02:55:39.560 --> 02:55:42.900
that they are no longer to follow what the statute says.

3458
02:55:42.900 --> 02:55:44.540
They're going to apply different criteria,

3459
02:55:44.540 --> 02:55:45.990
which we're going to dictate,

3460
02:55:45.990 --> 02:55:49.900
and that's going to be the new parole process.

3461
02:55:49.900 --> 02:55:51.070
<v ->Basically told California,</v>

3462
02:55:51.070 --> 02:55:52.570
you figure out a way to do it.

3463
02:55:53.690 --> 02:55:55.400
Is that what we could arguably do,

3464
02:55:55.400 --> 02:56:00.400
you figure out a way to do it?

3465
02:56:04.150 --> 02:56:06.510
<v ->You're saying, could you instruct the parole board</v>

3466
02:56:06.510 --> 02:56:08.110
to figure out a way to do it?

3467
02:56:08.110 --> 02:56:09.520
<v ->I mean, the parole board is a party,</v>

3468
02:56:09.520 --> 02:56:12.320
I mean, basically defendants you figure out a way to do it.

3469
02:56:12.320 --> 02:56:13.510
I mean, in that particular case,

3470
02:56:13.510 --> 02:56:15.780
that's what the US Supreme Court did to California.

3471
02:56:15.780 --> 02:56:16.790
They referred to California,

3472
02:56:16.790 --> 02:56:19.650
you as a state, you have to figure out a way to do it.

3473
02:56:19.650 --> 02:56:22.140
We're not going to tell you precisely how

3474
02:56:22.140 --> 02:56:25.540
but you need to considerably reduce the overcrowding.

3475
02:56:29.410 --> 02:56:30.350
If we were to do that,

3476
02:56:30.350 --> 02:56:33.377
would the parole board want to be a part of that process?

3477
02:56:37.920 --> 02:56:40.110
<v ->Whether they would want to be a part of it.</v>

3478
02:56:40.110 --> 02:56:42.320
They would be a part of it,

3479
02:56:43.250 --> 02:56:44.603
but they would be a part of it

3480
02:56:44.603 --> 02:56:47.010
within the scope of what their,

3481
02:56:47.010 --> 02:56:51.270
existing authority and standards are.

3482
02:56:51.270 --> 02:56:52.660
If those aren't changed,

3483
02:56:52.660 --> 02:56:56.780
then I think the court would have to look elsewhere

3484
02:56:56.780 --> 02:56:59.580
in effort to look for the ways to

3485
02:56:59.580 --> 02:57:00.980
fashion that kind of relief.

3486
02:57:02.220 --> 02:57:06.020
<v ->Let's look to special masters.</v>

3487
02:57:06.960 --> 02:57:11.920
Most recent public report issued on Monday,

3488
02:57:11.920 --> 02:57:13.410
says that on April 6th,

3489
02:57:13.410 --> 02:57:17.820
there were 7,735 prisoners in DOC,

3490
02:57:18.800 --> 02:57:23.510
as of May 3rd, that's down to 7,195.

3491
02:57:23.510 --> 02:57:26.590
That's the 340 net reduction.

3492
02:57:28.100 --> 02:57:29.750
And I gather from DOC,

3493
02:57:29.750 --> 02:57:32.110
I just learned from the special master

3494
02:57:32.110 --> 02:57:36.050
that there were only 15 admissions.

3495
02:57:36.050 --> 02:57:39.530
So that means if that's right,

3496
02:57:39.530 --> 02:57:43.460
that there were basically 355 persons

3497
02:57:43.460 --> 02:57:46.870
who were released from custody in that month.

3498
02:57:47.866 --> 02:57:52.820
In 2018, the average release from custody was 651.

3499
02:57:52.820 --> 02:57:54.140
Do you have any explanations

3500
02:57:54.140 --> 02:57:56.920
for why the number of persons

3501
02:57:56.920 --> 02:57:58.150
reduced from custody

3502
02:57:58.150 --> 02:58:02.490
is only about 60% of what it was in 2018.

3503
02:58:04.777 --> 02:58:07.610
<v ->I don't.</v>

3504
02:58:07.610 --> 02:58:08.950
I apologize, Your Honor.

3505
02:58:09.870 --> 02:58:11.600
I have seen the special master's report,

3506
02:58:11.600 --> 02:58:15.930
but I can't provide you with any statistical data

3507
02:58:15.930 --> 02:58:18.070
or explanation for that.

3508
02:58:18.070 --> 02:58:23.070
I'm happy to inquire of the folks at the parole board

3509
02:58:23.240 --> 02:58:27.280
and see if we can get some information for you

3510
02:58:27.280 --> 02:58:28.400
if you'd like.

3511
02:58:28.400 --> 02:58:30.340
In the brief there's some reference to the parole board

3512
02:58:30.340 --> 02:58:34.700
has not issued something with regard to hearings.

3513
02:58:34.700 --> 02:58:36.010
I think with regard to the lifers,

3514
02:58:36.010 --> 02:58:37.400
they've not issued any decisions

3515
02:58:37.400 --> 02:58:40.590
since November of last year, is that correct?

3516
02:58:42.120 --> 02:58:44.150
<v ->I'm aware that that's what the brief alleges,</v>

3517
02:58:44.150 --> 02:58:45.130
I don't know

3518
02:58:46.070 --> 02:58:49.410
frankly, what the accuracy of that assertion is.

3519
02:58:49.410 --> 02:58:54.410
I do know that in the wake of the COVID-19 epidemic,

3520
02:58:54.930 --> 02:58:59.393
there have not been any hearings conducted on parole

3521
02:59:00.870 --> 02:59:04.520
for life sentences because of the statutory constraints

3522
02:59:04.520 --> 02:59:05.353
that I mentioned before,

3523
02:59:05.353 --> 02:59:06.670
about the need for public hearings

3524
02:59:06.670 --> 02:59:09.620
and the need for victims

3525
02:59:09.620 --> 02:59:10.840
to have an opportunity

3526
02:59:10.840 --> 02:59:15.670
to address the board before those are granted.

3527
02:59:15.670 --> 02:59:16.830
<v ->And have there been any hearings held</v>

3528
02:59:16.830 --> 02:59:19.000
with regard to parole violations,

3529
02:59:19.000 --> 02:59:21.500
which have caused people to be returned to prison?

3530
02:59:22.840 --> 02:59:25.830
<v ->I don't know the status of those, I apologize.</v>

3531
02:59:25.830 --> 02:59:30.580
<v ->And with regard to the standard under</v>

3532
02:59:30.580 --> 02:59:33.841
General Laws, Chapter 127, Section 30

3533
02:59:33.841 --> 02:59:35.810
which includes the clause

3534
02:59:35.810 --> 02:59:37.900
"and that release is not incompatible

3535
02:59:37.900 --> 02:59:39.620
"with the welfare of society."

3536
02:59:41.410 --> 02:59:42.670
Does the parole board have a position

3537
02:59:42.670 --> 02:59:45.810
as to whether or not the COVID crisis

3538
02:59:45.810 --> 02:59:50.100
bears on the interpretation or application of that phrase.

3539
02:59:52.850 --> 02:59:57.850
I believe that certainly the COVID-19 crisis

3540
02:59:58.810 --> 03:00:02.350
does have a bearing on the welfare of society generally,

3541
03:00:02.350 --> 03:00:03.950
I don't mean to suggest otherwise,

3542
03:00:03.950 --> 03:00:08.670
but I think that the interpretation of that language

3543
03:00:08.670 --> 03:00:11.610
is that what we're concerned about

3544
03:00:11.610 --> 03:00:16.610
is the protection of society in relation to the harm

3545
03:00:17.800 --> 03:00:22.800
or the risk of harm from a released inmate.

3546
03:00:22.980 --> 03:00:26.690
And so the idea is, well,

3547
03:00:26.690 --> 03:00:27.900
we're not looking at this

3548
03:00:27.900 --> 03:00:29.460
from the perspective of

3549
03:00:29.460 --> 03:00:31.070
we're looking for the welfare of the inmate.

3550
03:00:31.070 --> 03:00:33.740
We're looking at this from the welfare of the public,

3551
03:00:33.740 --> 03:00:35.030
outside the institution

3552
03:00:35.030 --> 03:00:37.470
and whether or not they are put at risk

3553
03:00:37.470 --> 03:00:39.270
as a result of the inmates release,

3554
03:00:40.490 --> 03:00:42.380
<v ->You're familiar with our Christie decision,</v>

3555
03:00:42.380 --> 03:00:47.180
which said that essentially the term of risk

3556
03:00:49.770 --> 03:00:52.556
which traditionally meant just what you said

3557
03:00:52.556 --> 03:00:56.230
needs to be reapplied

3558
03:00:56.230 --> 03:00:57.780
in the context of the pandemic.

3559
03:00:59.610 --> 03:01:03.140
<v ->But I think that was dealing with the judicial standards</v>

3560
03:01:03.140 --> 03:01:08.140
that are applied as opposed to a statutory standard,

3561
03:01:08.600 --> 03:01:13.600
that's a function of the discretionary

3562
03:01:13.750 --> 03:01:16.370
or dictates the discretionary authority

3563
03:01:16.370 --> 03:01:18.210
of an executive agency.

3564
03:01:18.210 --> 03:01:23.060
I don't believe we can redefine the statutory term

3565
03:01:23.060 --> 03:01:24.720
in the context of the pandemic

3566
03:01:24.720 --> 03:01:25.870
to mean something different

3567
03:01:25.870 --> 03:01:28.250
than what it was intended to mean

3568
03:01:28.250 --> 03:01:29.900
when the legislation was enacted.

3569
03:01:31.130 --> 03:01:32.430
<v ->And is it your view that this court</v>

3570
03:01:32.430 --> 03:01:33.540
would not have the authority

3571
03:01:33.540 --> 03:01:35.690
to interpret that language in this context?

3572
03:01:38.930 --> 03:01:42.933
<v ->I believe that the court certainly does have the authority</v>

3573
03:01:44.630 --> 03:01:48.290
to interpret the meaning of a statute.

3574
03:01:48.290 --> 03:01:49.123
Yes, they do,

3575
03:01:49.123 --> 03:01:52.850
but I don't believe that it would be appropriate

3576
03:01:52.850 --> 03:01:55.740
to retrofit an existing statute

3577
03:01:56.760 --> 03:02:01.760
to sort of interpose a finding of sort

3578
03:02:02.200 --> 03:02:03.150
of a legislative intent

3579
03:02:03.150 --> 03:02:05.340
that didn't exist when the statute was created.

3580
03:02:05.340 --> 03:02:09.733
I don't believe that's what the statute was designed to do.

3581
03:02:12.530 --> 03:02:13.790
<v ->No, of course the statute also speaks</v>

3582
03:02:13.790 --> 03:02:14.940
about the risk of re-offence.

3583
03:02:14.940 --> 03:02:16.060
So this is separate and distinct

3584
03:02:16.060 --> 03:02:17.460
from the risk of re-offense.

3585
03:02:21.090 --> 03:02:23.480
<v ->I don't know that it's separate</v>

3586
03:02:23.480 --> 03:02:24.810
and distinct from that.

3587
03:02:24.810 --> 03:02:27.820
I think it's part and parcel the same thing.

3588
03:02:27.820 --> 03:02:29.420
It's whether the prisoner will live

3589
03:02:29.420 --> 03:02:32.020
and remain at liberty without violating the law,

3590
03:02:32.020 --> 03:02:34.260
and that release is not incompatible

3591
03:02:34.260 --> 03:02:35.980
with the welfare of society.

3592
03:02:35.980 --> 03:02:40.980
So I do believe it's part of the same analysis,

3593
03:02:41.240 --> 03:02:43.590
not a separate factor,

3594
03:02:43.590 --> 03:02:46.650
which is designed to import some concern

3595
03:02:46.650 --> 03:02:48.540
for the welfare of the inmate

3596
03:02:48.540 --> 03:02:50.280
and protection against conditions

3597
03:02:50.280 --> 03:02:54.530
or risks that may exist within the prison system.

3598
03:02:54.530 --> 03:02:58.150
<v ->So is it your view that you have a motion to dismiss,</v>

3599
03:02:58.150 --> 03:02:58.983
there were two issues.

3600
03:02:58.983 --> 03:03:00.600
One of course is whether or not the PI

3601
03:03:00.600 --> 03:03:01.860
should issue,

3602
03:03:01.860 --> 03:03:02.860
your view is that

3603
03:03:02.860 --> 03:03:04.870
you should not even be a part of this case,

3604
03:03:04.870 --> 03:03:07.380
even if it were to proceed beyond the PI stage.

3605
03:03:08.950 --> 03:03:10.567
<v ->That's correct, Your Honor, yes.</v>

3606
03:03:10.567 --> 03:03:14.280
Because the parole board

3607
03:03:14.280 --> 03:03:18.860
is not potentially responsible for the violation.

3608
03:03:19.770 --> 03:03:20.830
They have not acted

3609
03:03:20.830 --> 03:03:21.830
with deliberate indifference

3610
03:03:21.830 --> 03:03:25.680
to create the conditions

3611
03:03:25.680 --> 03:03:28.290
that are allegedly the constitutional violation here

3612
03:03:29.170 --> 03:03:31.660
and that they,

3613
03:03:31.660 --> 03:03:34.010
within the framework that exists

3614
03:03:34.010 --> 03:03:39.010
cannot be ordered to provide the sort of relief

3615
03:03:40.260 --> 03:03:42.270
that the plaintiffs are requesting

3616
03:03:42.270 --> 03:03:47.170
without running a foul of the existing statutes regulations,

3617
03:03:47.170 --> 03:03:49.340
and without intruding on

3618
03:03:49.340 --> 03:03:51.990
necessarily upon the discretionary authority

3619
03:03:51.990 --> 03:03:52.840
to the executive.

3620
03:03:53.790 --> 03:03:57.430
<v ->Okay Justice Lenk, that's all that I have.</v>

3621
03:03:57.430 --> 03:03:58.780
Justice Lenk any questions?

3622
03:04:05.250 --> 03:04:08.250
Justice Lenk you may need to unmute if you're speaking.

3623
03:04:08.250 --> 03:04:09.450
<v ->I am sorry about that.</v>

3624
03:04:11.223 --> 03:04:13.894
I want to follow up on a couple of the Chief's questions

3625
03:04:13.894 --> 03:04:16.550
having to do with the relationship

3626
03:04:16.550 --> 03:04:18.710
between your motion to dismiss,

3627
03:04:18.710 --> 03:04:22.040
because you said that the parties don't state a claim

3628
03:04:22.040 --> 03:04:25.010
and the fact that you may be a necessary party.

3629
03:04:26.139 --> 03:04:28.020
Is there a connection between those two things?

3630
03:04:30.180 --> 03:04:33.160
<v ->Well, I think there's a connection between them.</v>

3631
03:04:33.160 --> 03:04:35.250
I don't think that the factual allegations

3632
03:04:35.250 --> 03:04:40.250
and complainant is sufficient to state a valid legal claim

3633
03:04:40.530 --> 03:04:42.940
for relief against the parole board.

3634
03:04:42.940 --> 03:04:47.050
I think that the joinder of a necessary party issue

3635
03:04:47.050 --> 03:04:50.020
was raised by the plaintiff in opposition

3636
03:04:50.020 --> 03:04:51.240
to the motion to dismiss

3637
03:04:51.240 --> 03:04:53.150
as sort of an attempt

3638
03:04:53.150 --> 03:04:55.310
to keep us in if the court

3639
03:04:55.310 --> 03:04:58.700
were to find that there isn't a factual basis

3640
03:04:58.700 --> 03:05:02.710
upon which to find that the board is responsible

3641
03:05:02.710 --> 03:05:05.610
for the constitutional violation.

3642
03:05:05.610 --> 03:05:09.500
But even there I think the only way

3643
03:05:09.500 --> 03:05:14.500
that Rule 19 would render the board a necessary party

3644
03:05:15.300 --> 03:05:20.060
would be if the board could you know,

3645
03:05:20.060 --> 03:05:25.060
if the board's presence were necessary to--

3646
03:05:26.879 --> 03:05:27.712
<v ->Let's say that</v>

3647
03:05:27.712 --> 03:05:29.610
because we think that the statute

3648
03:05:29.610 --> 03:05:31.760
requires you to do things with haste,

3649
03:05:34.464 --> 03:05:36.310
and you need to act more hastily than you have,

3650
03:05:36.310 --> 03:05:37.570
than the board has.

3651
03:05:40.157 --> 03:05:42.000
To pick up the pace in other words,

3652
03:05:43.250 --> 03:05:46.086
because the situation requires

3653
03:05:46.086 --> 03:05:49.640
that it's not so much a matter of substantively

3654
03:05:49.640 --> 03:05:50.970
what you do,

3655
03:05:50.970 --> 03:05:53.270
but the procedures by which you do it.

3656
03:05:56.760 --> 03:05:58.550
<v ->First of all, I believe that,</v>

3657
03:05:58.550 --> 03:06:01.740
there have been efforts to increase the pace,

3658
03:06:01.740 --> 03:06:05.210
but secondly, I don't believe there's any claim

3659
03:06:05.210 --> 03:06:08.010
that the board has not,

3660
03:06:08.010 --> 03:06:09.440
there's certainly nothing in the complaint

3661
03:06:09.440 --> 03:06:10.460
to suggest that the board

3662
03:06:10.460 --> 03:06:12.830
has in any way violated its obligations

3663
03:06:12.830 --> 03:06:14.950
under the existing statutory framework

3664
03:06:14.950 --> 03:06:18.000
and that is causing harm to the plaintiffs.

3665
03:06:18.000 --> 03:06:21.470
So I don't see that as part of the existing complaint.

3666
03:06:23.150 --> 03:06:24.580
<v ->Okay thanks.</v>

3667
03:06:24.580 --> 03:06:26.430
<v ->Any further questions of any justice.</v>

3668
03:06:28.490 --> 03:06:30.380
And hearing none,

3669
03:06:30.380 --> 03:06:31.530
Mr. Burns, thank you.

3670
03:06:31.530 --> 03:06:33.330
And now we'll turn back to Mr. Pingeon,

3671
03:06:33.330 --> 03:06:35.800
to be limited to responding with regard to

3672
03:06:36.820 --> 03:06:39.230
the arguments made by Governor Baker--

3673
03:06:39.230 --> 03:06:40.520
<v ->Now exiting.</v>

3674
03:06:40.520 --> 03:06:41.678
<v ->Michael Burn.</v>

3675
03:06:41.678 --> 03:06:44.170
(device beeps)

3676
03:06:44.170 --> 03:06:45.370
<v ->Thank you, Your Honor.</v>

3677
03:06:47.150 --> 03:06:50.460
First address the parole board motion

3678
03:06:50.460 --> 03:06:52.600
since it's freshest in my mind.

3679
03:06:52.600 --> 03:06:56.480
Their first argument is that they aren't responsible

3680
03:06:56.480 --> 03:06:59.270
because they didn't 'cause the conditions inside the prison

3681
03:06:59.270 --> 03:07:03.180
and have no responsibility for prison operations.

3682
03:07:03.180 --> 03:07:07.040
I think the Good case pretty clearly disposes

3683
03:07:07.040 --> 03:07:08.020
of that argument,

3684
03:07:08.020 --> 03:07:09.860
where the Commissioner of Correction

3685
03:07:09.860 --> 03:07:11.860
was a defendant in an action

3686
03:07:11.860 --> 03:07:14.690
that was brought by a Massachusetts prisoner

3687
03:07:14.690 --> 03:07:17.110
who was being held in a federal prison

3688
03:07:17.110 --> 03:07:20.200
where he alleged that the water was contaminated

3689
03:07:20.200 --> 03:07:22.630
and putting his health at risk.

3690
03:07:22.630 --> 03:07:26.800
And the Commissioner of Correction was a defendant

3691
03:07:26.800 --> 03:07:27.633
and said,

3692
03:07:27.633 --> 03:07:29.530
"Well, I'm not responsible for the water

3693
03:07:29.530 --> 03:07:32.250
"in the federal prison, so I should be dismissed."

3694
03:07:32.250 --> 03:07:34.360
And this court said, no,

3695
03:07:34.360 --> 03:07:37.720
you a proper defendant in that kind of a claim

3696
03:07:37.720 --> 03:07:38.700
because you--

3697
03:07:38.700 --> 03:07:39.830
<v ->Now joining.</v>

3698
03:07:39.830 --> 03:07:41.136
<v ->Michael Burns.</v>

3699
03:07:41.136 --> 03:07:42.260
(device beeps)

3700
03:07:42.260 --> 03:07:44.150
<v ->You have the ability</v>

3701
03:07:44.150 --> 03:07:48.660
to prevent the harm that is being alleged.

3702
03:07:48.660 --> 03:07:50.250
And similarly here,

3703
03:07:50.250 --> 03:07:53.350
if assuming that there is an issue

3704
03:07:53.350 --> 03:07:57.460
with there being too many people in the prison system,

3705
03:07:57.460 --> 03:08:00.771
the parole board plays a pretty central role

3706
03:08:00.771 --> 03:08:05.060
in regulating the levels of prison population

3707
03:08:05.060 --> 03:08:10.060
and can by doing various things like speeding up hearings,

3708
03:08:10.760 --> 03:08:13.400
granting early parole to people,

3709
03:08:14.620 --> 03:08:15.910
speeding up the time

3710
03:08:15.910 --> 03:08:18.690
between the amount of favorable parole is granted

3711
03:08:18.690 --> 03:08:19.960
and when somebody is released,

3712
03:08:19.960 --> 03:08:21.486
And a whole host of other things,

3713
03:08:21.486 --> 03:08:25.870
they can take action that would put them

3714
03:08:25.870 --> 03:08:28.870
in a position of being able to prevent

3715
03:08:28.870 --> 03:08:32.360
and mitigate the unconstitutional overcrowding.

3716
03:08:32.360 --> 03:08:34.350
So I think their argument that,

3717
03:08:34.350 --> 03:08:38.188
well, we don't run the prisons has no merit.

3718
03:08:38.188 --> 03:08:41.230
With respect to their other argument,

3719
03:08:41.230 --> 03:08:46.230
which is essentially that the plaintiffs are asking them

3720
03:08:46.740 --> 03:08:48.800
to sort of change

3721
03:08:48.800 --> 03:08:53.800
their statutorily mandated decision making process.

3722
03:08:53.850 --> 03:08:57.700
I think what the Chief Justice was saying

3723
03:08:57.700 --> 03:09:02.700
about the welfare of society is a pretty key point.

3724
03:09:02.970 --> 03:09:05.460
And as you pointed out,

3725
03:09:05.460 --> 03:09:09.520
this court in Christie said that COVID

3726
03:09:09.520 --> 03:09:11.590
should be taken into account

3727
03:09:11.590 --> 03:09:15.440
in making those kinds of decisions on stays.

3728
03:09:15.440 --> 03:09:16.290
And similarly,

3729
03:09:16.290 --> 03:09:20.006
I think that it should be taken into account

3730
03:09:20.006 --> 03:09:22.460
by the board here.

3731
03:09:22.460 --> 03:09:24.287
And the fact that the board

3732
03:09:24.287 --> 03:09:25.120
is of the view that,

3733
03:09:25.120 --> 03:09:29.790
"no when making parole decisions,

3734
03:09:29.790 --> 03:09:33.690
"we should simply look at the risk

3735
03:09:33.690 --> 03:09:38.070
"that the defendant might commit another crime in society",

3736
03:09:38.070 --> 03:09:42.140
I think is a very kind of narrow reading of,

3737
03:09:42.140 --> 03:09:45.310
I think what is pretty broad language in the parole statute

3738
03:09:45.310 --> 03:09:46.830
about the welfare of society.

3739
03:09:46.830 --> 03:09:48.490
And it's certainly brought enough

3740
03:09:48.490 --> 03:09:51.780
to encompass consideration of COVID

3741
03:09:51.780 --> 03:09:55.910
and the fact that the board doesn't see it that way,

3742
03:09:55.910 --> 03:09:58.340
I kind of, it is all the more reason

3743
03:09:58.340 --> 03:10:01.260
to think that it's important

3744
03:10:01.260 --> 03:10:03.610
to have them be part of the case

3745
03:10:03.610 --> 03:10:07.630
in the same way that as in our CPCS case,

3746
03:10:07.630 --> 03:10:09.730
you urge the parole board

3747
03:10:09.730 --> 03:10:13.380
to work with a special master to do things,

3748
03:10:13.380 --> 03:10:18.380
but because that case didn't involve constitutional claims,

3749
03:10:18.660 --> 03:10:21.210
you didn't order them to do it.

3750
03:10:21.210 --> 03:10:23.140
And to their credit,

3751
03:10:23.140 --> 03:10:24.410
they're doing some,

3752
03:10:25.270 --> 03:10:27.590
we think they could be doing more.

3753
03:10:27.590 --> 03:10:28.750
But we think that

3754
03:10:30.604 --> 03:10:32.320
if they were not part of the case,

3755
03:10:33.240 --> 03:10:35.690
the court wouldn't have the power to do anything more

3756
03:10:35.690 --> 03:10:37.880
than urge them to contribute

3757
03:10:37.880 --> 03:10:40.370
to the necessary remedy.

3758
03:10:40.370 --> 03:10:43.110
And we think that they should be ordered

3759
03:10:43.110 --> 03:10:45.010
to do certain things when they,

3760
03:10:45.010 --> 03:10:47.300
for example, misinterpreted,

3761
03:10:47.300 --> 03:10:51.513
we think that the significance

3762
03:10:52.610 --> 03:10:54.940
of the list of excluded crimes

3763
03:10:54.940 --> 03:10:59.740
that you put in the appendix of the CPCS case,

3764
03:10:59.740 --> 03:11:01.530
the board has taken a position,

3765
03:11:01.530 --> 03:11:04.440
that anybody on that excluded list

3766
03:11:04.440 --> 03:11:09.440
is categorically ineligible for early parole consideration.

3767
03:11:10.220 --> 03:11:13.280
We think that an order

3768
03:11:13.280 --> 03:11:18.230
that required them to consider anybody as eligible

3769
03:11:19.540 --> 03:11:22.890
without those kinds of categorical exclusions

3770
03:11:22.890 --> 03:11:23.940
would be appropriate.

3771
03:11:27.250 --> 03:11:28.820
For all of those reasons

3772
03:11:29.830 --> 03:11:33.360
I don't think the board should be dismissed.

3773
03:11:33.360 --> 03:11:36.180
And I do think as people have mentioned

3774
03:11:36.180 --> 03:11:38.060
that they are a necessary party,

3775
03:11:38.060 --> 03:11:43.060
because if the need is to reduce populations

3776
03:11:43.657 --> 03:11:46.400
and they play a pretty central role

3777
03:11:46.400 --> 03:11:48.720
in controlling the level of population,

3778
03:11:48.720 --> 03:11:51.250
they need to be part of the solution as well.

3779
03:11:52.230 --> 03:11:56.050
I'll turn to the Governor's motion to dismiss.

3780
03:11:56.050 --> 03:11:59.600
And I just first want to correct

3781
03:11:59.600 --> 03:12:03.434
what I think is a very significant misunderstanding

3782
03:12:03.434 --> 03:12:07.520
of the Prison Litigation Reform Act.

3783
03:12:07.520 --> 03:12:11.230
As it how it relates to Section 1983,

3784
03:12:11.230 --> 03:12:12.940
because the claim has been made

3785
03:12:12.940 --> 03:12:17.940
that the Brown vs Plata case did not involve Section 1983.

3786
03:12:18.680 --> 03:12:21.010
That that's absolutely not true.

3787
03:12:21.980 --> 03:12:24.660
It was a 1983 action.

3788
03:12:24.660 --> 03:12:28.020
What the Prison Litigation Reform Act does

3789
03:12:28.020 --> 03:12:31.930
is put limitations on the powers of the court

3790
03:12:31.930 --> 03:12:36.630
to order relief under Section 1983.

3791
03:12:37.990 --> 03:12:39.045
So for example,

3792
03:12:39.045 --> 03:12:42.060
when there is a prisoner release order

3793
03:12:42.060 --> 03:12:43.810
being contemplated,

3794
03:12:43.810 --> 03:12:48.090
as a result of the constitutional claim brought under 1983,

3795
03:12:48.090 --> 03:12:52.353
a federal court has to convene a three judge panel

3796
03:12:52.353 --> 03:12:55.560
before they can order the kinds of releases

3797
03:12:55.560 --> 03:12:57.380
that the Plata court did.

3798
03:12:57.380 --> 03:13:00.960
That restriction doesn't apply to state courts.

3799
03:13:00.960 --> 03:13:05.550
State courts are free to issue prisoner released orders

3800
03:13:05.550 --> 03:13:07.700
if that's necessary to vindicate

3801
03:13:07.700 --> 03:13:10.670
constitutional rights brought under 1983.

3802
03:13:10.670 --> 03:13:13.270
So this is a 1983 claim.

3803
03:13:13.270 --> 03:13:15.040
That was the 1983 claim,

3804
03:13:15.040 --> 03:13:17.510
and 1989 claims

3805
03:13:17.510 --> 03:13:21.840
can be brought against the Governor as they work

3806
03:13:21.840 --> 03:13:23.790
in the Brown case,

3807
03:13:23.790 --> 03:13:26.660
and 1989 claims have been brought

3808
03:13:26.660 --> 03:13:30.850
and heard by this court against the Governor,

3809
03:13:30.850 --> 03:13:35.850
even in prison cases where the kind of arguments

3810
03:13:36.180 --> 03:13:40.170
that are being made now not always were made,

3811
03:13:40.170 --> 03:13:44.520
but there's a case prisoners political association,

3812
03:13:44.520 --> 03:13:46.650
not political action committee

3813
03:13:46.650 --> 03:13:49.440
in which a group of prisoners

3814
03:13:49.440 --> 03:13:53.570
challenged an order that they couldn't engage in,

3815
03:13:53.570 --> 03:13:56.080
be involved in a political action committee.

3816
03:13:56.080 --> 03:13:58.210
They'd lost that claim on the merits,

3817
03:13:59.140 --> 03:14:02.790
but they directly challenged the Governor there.

3818
03:14:02.790 --> 03:14:04.740
And there was no issue with that.

3819
03:14:04.740 --> 03:14:06.575
There are a number of other cases

3820
03:14:06.575 --> 03:14:09.560
where the Governor has been a defendant.

3821
03:14:10.700 --> 03:14:15.140
There's a recent Superior Court case

3822
03:14:15.140 --> 03:14:17.420
involving a challenge to the Governors,

3823
03:14:17.420 --> 03:14:19.060
not having medical marijuana

3824
03:14:19.060 --> 03:14:20.960
be an essential business.

3825
03:14:22.040 --> 03:14:23.530
The plaintiff's, their loss,

3826
03:14:23.530 --> 03:14:28.530
but the Superior Court judge very clearly

3827
03:14:28.650 --> 03:14:31.458
and persuasively argued that the kinds of claims

3828
03:14:31.458 --> 03:14:34.010
that Governor's making here now

3829
03:14:34.010 --> 03:14:35.770
were not meritorious,

3830
03:14:35.770 --> 03:14:38.670
particularly there's a written equal protection challenge.

3831
03:14:40.190 --> 03:14:43.180
And the court ended up rejecting it on the bench,

3832
03:14:43.180 --> 03:14:47.610
but in doing that rejected the Governor's argument,

3833
03:14:47.610 --> 03:14:49.710
that it didn't have jurisdiction

3834
03:14:49.710 --> 03:14:53.866
to make rulings on constitutional claims.

3835
03:14:53.866 --> 03:14:56.840
And this sort of distinction

3836
03:14:56.840 --> 03:14:59.986
between mandamus and injunctive relief

3837
03:14:59.986 --> 03:15:04.580
can be a little bit of a semantical thing

3838
03:15:04.580 --> 03:15:05.413
I think.

3839
03:15:07.743 --> 03:15:09.970
If the ruling were something like,

3840
03:15:10.880 --> 03:15:12.760
don't hold prisoners

3841
03:15:12.760 --> 03:15:16.940
in settings where they can't be six feet apart

3842
03:15:18.130 --> 03:15:20.650
versus commute people.

3843
03:15:23.770 --> 03:15:28.150
Commute people, that might present a problem.

3844
03:15:28.150 --> 03:15:33.150
But if it's there is a constitutional violation

3845
03:15:33.682 --> 03:15:38.030
and you have an obligation to remedy,

3846
03:15:38.030 --> 03:15:39.670
just as in Plata,

3847
03:15:40.517 --> 03:15:42.070
you tell us how you're going to do it.

3848
03:15:42.070 --> 03:15:45.500
And then we can see if that's good enough.

3849
03:15:45.500 --> 03:15:49.100
I don't think there's a problem with that.

3850
03:15:49.100 --> 03:15:51.030
In Brown versus Plata

3851
03:15:51.030 --> 03:15:53.990
after remand from the Superior Court,

3852
03:15:53.990 --> 03:15:58.030
the court said to the Governor,

3853
03:15:58.030 --> 03:15:58.970
give us a plan.

3854
03:15:58.970 --> 03:16:01.620
And in that planning include,

3855
03:16:01.620 --> 03:16:03.350
tell us whether you're going to do anything

3856
03:16:03.350 --> 03:16:08.350
to waive statutory restrictions on limitations

3857
03:16:09.330 --> 03:16:10.490
or whether you're going

3858
03:16:10.490 --> 03:16:13.370
to issue any kind of emergency orders or not.

3859
03:16:13.370 --> 03:16:16.550
And I think there, again,

3860
03:16:16.550 --> 03:16:19.100
the Prison Litigation Reform Act is instructive

3861
03:16:19.100 --> 03:16:23.340
because it says federal judges have the power

3862
03:16:23.340 --> 03:16:26.940
to order state officials

3863
03:16:26.940 --> 03:16:30.285
to exceed their authority under state law

3864
03:16:30.285 --> 03:16:35.285
if that's necessary to correct a constitutional violation.

3865
03:16:36.000 --> 03:16:37.860
Obviously it's not something you do lightly,

3866
03:16:37.860 --> 03:16:39.940
but it's certainly something that is

3867
03:16:39.940 --> 03:16:44.047
within the powers of at least a federal judge.

3868
03:16:44.047 --> 03:16:48.400
And that's not because the Prison Litigation Reform Act

3869
03:16:48.400 --> 03:16:51.250
gives them that if they already had that,

3870
03:16:51.250 --> 03:16:53.460
the Prison Litigation Reform Act

3871
03:16:53.460 --> 03:16:57.740
simply put kind of restrictions

3872
03:16:57.740 --> 03:16:59.820
on how they go about doing it.

3873
03:17:00.800 --> 03:17:05.320
We are not waiving our claims under Article 26.

3874
03:17:05.320 --> 03:17:08.300
And we think that just as this court

3875
03:17:08.300 --> 03:17:10.960
has the power to order the Governor

3876
03:17:10.960 --> 03:17:15.250
to remedy 1983 violations

3877
03:17:15.250 --> 03:17:17.050
of federal constitutional violations,

3878
03:17:17.050 --> 03:17:18.990
it similarly has the power

3879
03:17:19.900 --> 03:17:23.410
if the Governor is violating Article 26,

3880
03:17:23.410 --> 03:17:25.930
to do that as well.

3881
03:17:25.930 --> 03:17:28.100
Turning to what I think

3882
03:17:28.100 --> 03:17:32.450
is actually the more persuasive part of it.

3883
03:17:32.450 --> 03:17:34.250
Governor's argument which is

3884
03:17:34.250 --> 03:17:37.386
if you're sufficiently involved in this

3885
03:17:37.386 --> 03:17:42.386
to be a proper defendant,

3886
03:17:42.860 --> 03:17:46.363
or you just started like a bystander.

3887
03:17:46.363 --> 03:17:51.363
And the argument that we made is that,

3888
03:17:52.040 --> 03:17:57.040
well, first in order to be found viable under 1983,

3889
03:18:00.990 --> 03:18:02.730
the Governor does have to be

3890
03:18:02.730 --> 03:18:06.010
more than just aware of the problem.

3891
03:18:06.010 --> 03:18:09.800
And that's true.

3892
03:18:09.800 --> 03:18:13.230
That's true in all kinds of constitutional litigation.

3893
03:18:15.680 --> 03:18:19.170
But in our complaint we quote

3894
03:18:19.170 --> 03:18:21.500
from the Governor about a month ago

3895
03:18:21.500 --> 03:18:25.660
in which he is very clear that he is aware of the problem,

3896
03:18:25.660 --> 03:18:28.880
'cause he's commenting on the CPCS litigation.

3897
03:18:28.880 --> 03:18:31.680
And he says, "we just don't buy it

3898
03:18:31.680 --> 03:18:34.010
"as a matter of law factor policy",

3899
03:18:34.010 --> 03:18:36.360
the arguments that's being made before the court,

3900
03:18:36.360 --> 03:18:40.410
in other words, that we'll research were appropriate.

3901
03:18:40.410 --> 03:18:43.000
"And we believe that correct position

3902
03:18:43.000 --> 03:18:45.600
"is for us to continue to do the things we're doing

3903
03:18:45.600 --> 03:18:49.030
"to keep the people inside the system safe.

3904
03:18:49.030 --> 03:18:52.040
"And that's going to be the way we play this one."

3905
03:18:52.040 --> 03:18:56.870
So he's very familiar with what's going on.

3906
03:18:56.870 --> 03:19:00.150
He's not just acquiesced in it.

3907
03:19:00.150 --> 03:19:03.950
He's not just sort of commenting

3908
03:19:03.950 --> 03:19:06.053
on what other people are doing.

3909
03:19:06.053 --> 03:19:07.750
He's part of the team.

3910
03:19:07.750 --> 03:19:10.830
And in fact, he's the leader of the team,

3911
03:19:10.830 --> 03:19:14.980
and he's telling his team as well as the public

3912
03:19:14.980 --> 03:19:18.340
that he's going to try to keep prisoners safe on the inside,

3913
03:19:18.340 --> 03:19:20.830
but he is not going to release them.

3914
03:19:20.830 --> 03:19:24.320
And that's the directive that he's given to his people.

3915
03:19:24.320 --> 03:19:27.920
So we think that that's sufficient to make him,

3916
03:19:30.213 --> 03:19:32.460
at least to state a claim against him.

3917
03:19:34.537 --> 03:19:37.480
And we also think--

3918
03:19:37.480 --> 03:19:41.500
<v ->I'm afraid you well exceeded the time limits.</v>

3919
03:19:41.500 --> 03:19:44.480
So let me invite questions from Justice Gaziano.

3920
03:19:44.480 --> 03:19:46.030
<v ->I have none, thank you Chief.</v>

3921
03:19:46.980 --> 03:19:48.200
<v ->Justice Lowy.</v>

3922
03:19:48.200 --> 03:19:49.500
<v ->No questions, thank you.</v>

3923
03:19:50.673 --> 03:19:51.900
<v ->Justice Budd.</v>

3924
03:19:51.900 --> 03:19:53.480
<v ->I'm (voice drowned out by interference).</v>

3925
03:19:53.480 --> 03:19:54.950
<v ->Justice Cypher.</v>

3926
03:19:56.350 --> 03:19:57.710
<v ->No questions thank you.</v>

3927
03:19:57.710 --> 03:20:00.820
<v ->Justice Kafker.</v>

3928
03:20:00.820 --> 03:20:02.540
<v ->I'm reading Brown right now,</v>

3929
03:20:02.540 --> 03:20:04.940
do they talk about Section 1983?

3930
03:20:09.915 --> 03:20:14.370
<v ->The claim was brought as a 1983 claim for violation</v>

3931
03:20:16.180 --> 03:20:17.500
of the 8th Amendment.

3932
03:20:18.444 --> 03:20:19.780
<v ->Is it stated anywhere?</v>

3933
03:20:21.463 --> 03:20:22.930
<v ->I don't have it in front of me Your Honor,</v>

3934
03:20:22.930 --> 03:20:26.390
but I would be very surprised if it's not.

3935
03:20:26.390 --> 03:20:28.790
<v ->It's certainly not brought</v>

3936
03:20:28.790 --> 03:20:31.030
under the Prison Litigation Reform Act,

3937
03:20:31.030 --> 03:20:32.640
the Prison Litigation Reform Act

3938
03:20:32.640 --> 03:20:34.730
doesn't create a cause of action,

3939
03:20:34.730 --> 03:20:36.360
it puts limitations.

3940
03:20:36.360 --> 03:20:38.940
And it's pretty explicit in doing that

3941
03:20:38.940 --> 03:20:43.680
on the release that can be ordered in a 1983 action.

3942
03:20:43.680 --> 03:20:45.610
<v ->Again, I'm just skimming through the opinion</v>

3943
03:20:45.610 --> 03:20:49.660
and it's all about the Prison Reform Litigation Act.

3944
03:20:49.660 --> 03:20:52.147
If you can send in your 16A,

3945
03:20:52.147 --> 03:20:53.940
both where in this opinion,

3946
03:20:53.940 --> 03:20:58.820
and also the citations of this political association case,

3947
03:20:58.820 --> 03:21:00.070
what's the cite for that?

3948
03:21:01.080 --> 03:21:03.940
<v ->Let me see if I have that here right now.</v>

3949
03:21:07.210 --> 03:21:08.043
Let's see.

3950
03:21:09.300 --> 03:21:12.840
It is 435 Mass,

3951
03:21:12.840 --> 03:21:14.820
and I'm just looking at my notes here.

3952
03:21:14.820 --> 03:21:18.220
I have it at 819 to 823

3953
03:21:18.220 --> 03:21:19.100
reaching the merits

3954
03:21:19.100 --> 03:21:22.530
of the constitutional equal protection challenge

3955
03:21:22.530 --> 03:21:25.530
to an order by the Governor

3956
03:21:25.530 --> 03:21:27.330
was fighting political fundraising.

3957
03:21:29.683 --> 03:21:32.590
<v ->It says the Governor can be held responsible for that.</v>

3958
03:21:34.550 --> 03:21:36.820
Yeah, he couldn't be,

3959
03:21:36.820 --> 03:21:39.440
on the merit the prisoners lost,

3960
03:21:39.440 --> 03:21:43.150
but the challenge was analyzed and decided.

3961
03:21:44.140 --> 03:21:46.820
<v ->In any of these cases,</v>

3962
03:21:46.820 --> 03:21:49.280
did anyone challenge whether you could do that

3963
03:21:49.280 --> 03:21:50.780
under Section 1983?

3964
03:21:52.840 --> 03:21:54.780
<v ->Cause they just (mumbles) the merits</v>

3965
03:21:54.780 --> 03:21:56.810
and the plaintiff's (voice drowned out by interference)

3966
03:21:56.810 --> 03:21:59.800
each time.

3967
03:21:59.800 --> 03:22:04.800
<v ->In the Com Khan case it decided this month or last month</v>

3968
03:22:05.180 --> 03:22:06.440
in the Superior Court

3969
03:22:07.390 --> 03:22:10.500
that the issue was analyzed and discussed,

3970
03:22:10.500 --> 03:22:13.240
but that's a Superior Court decision.

3971
03:22:15.133 --> 03:22:16.380
<v ->All right, no further questions.</v>

3972
03:22:16.380 --> 03:22:18.060
<v ->And I have no questions,</v>

3973
03:22:18.060 --> 03:22:19.254
<v ->Justice Lenk.</v>

3974
03:22:19.254 --> 03:22:20.820
<v ->I'm all set, thanks.</v>

3975
03:22:20.820 --> 03:22:22.040
<v ->Okay, are there any further questions</v>

3976
03:22:22.040 --> 03:22:23.290
from any of the justices.

3977
03:22:24.610 --> 03:22:26.170
And hearing none--

3978
03:22:26.170 --> 03:22:27.500
<v ->Now exiting.</v>

3979
03:22:27.500 --> 03:22:28.333
<v ->Michael Burns.
(device beeps)</v>

3980
03:22:28.333 --> 03:22:31.440
that concludes the oral argument.

3981
03:22:32.660 --> 03:22:35.070
With regard to the justices we'll take 10 minutes

3982
03:22:35.070 --> 03:22:40.070
and we'll reconvene on a separate line at 4:35.

3983
03:22:40.140 --> 03:22:40.973
Thank you.

3984
03:22:41.850 --> 03:22:42.683
<v ->Thank you.</v>