-: SJC-13125,
Stephen Foster and others v. Carol Mici and others.
-: Okay, Attorney Tenorello.
Please, how do you say your name?
I'm sorry.
Tenorello, okay, that's okay.
-: Thank you, Chief Justice, and may it please the court,
the question here is, is it deliberate indifference
for the Department of Correction to refuse to use
available steps to safely reduce its population,
when other steps that it's taken to control
the COVID virus have clearly failed?
And the case law is clear that in the face of a known harm,
the defendant who takes inadequate measures to address
that harm is deliberately indifferent
if the defendant refuses to take other effective measures
that are reasonably available.
And this, these cases are recited at length in our brief.
The lower court had clear evidence
that the Department of Corrections lockdown not only caused
tremendous harm to people in custody,
but it entirely failed to control the pandemic.
About a third of a population has been infected.
-: Counsel on the motion judge, in looking at his decision
and what was presented, really focused on the fact
that at least as I read it, that the department did
a lot here, and in particular, with the rates
of vaccinations amongst the folks.
When we decided Foster the first time, he made reference
to the fact that it wasn't full lock down anymore,
that there were programs that were being available,
that were available, and that they had opened up
a lot more than they had the first time around.
So in terms of kind of what was before the court,
he made his decision, and in is that decision abusive,
an abusive discretion?
Attorney: Yes, Your Honor.
Justice Georges: Just because he didn't agree
with the way you were looking at those same numbers?
-: I'm sorry?
-: Is it because he didn't agree with the way
that you were looking at the exact same thing?
-: It part, Your Honor, it should be noted
that the Superior Court did not reach the question
of whether there was a substantial risk of serious harm.
It did not address that, did not reach that question.
It noted that vaccines were coming, and might resolve it,
but it did not reach the question.
Instead, what it did was hold that since the DOC had done
a whole lot, that was good enough, and it relied
exactly on this court statement in the first Foster decision
where the risk of serious harm is substantial,
but prison officials have not undertaken, have, I'm sorry,
have undertaken significant steps to try to reduce
the harm, and protect inmates, courts have considered
there was no eighth amendment liability.
That's what the Superior Court relied on, but that's only
a partial statement of what the eighth amendment requires.
The eighth amendment also requires that if those steps fail,
and there are other steps you can take to address the harm,
you're deliberately indifferent if you don't.
And at the time of this court's ruling, when this court made
that statement, the DOC's measures had not failed.
When this court made that statement, cases were down in DOC.
This was in June of 2020, cases were down, and the measures
DOC was taking at that time seemed to be working.
And what we know now is that they failed utterly
after this court ruled.
-: Well, it seems,
perhaps I have this wrong, but it seems that
the main thrust of what you're saying here is
they didn't release more people.
They should have released more people.
They haven't released more people, and because
they haven't released more people, that's why
the eighth amendment is implicated and has been violated.
But the judge considered all of that, and the judge talked
about how there were other things that the department,
you know, to tell the department to just
indiscriminately release folks is something that
the court shouldn't do, and that given the discretion
that they have with some of the measures that they have
available to them, that they are in the best position
to make those determinations.
And so when they do, shouldn't that be accorded
a little bit of weight here,
and isn't that exactly what the judge did?
-: I think where the Superior Court erred was in refuse,
in not recognizing the DOC's refusal to even consider using
methods of safe population reduction that were before it.
This court had said, told the DOC in Foster,
and in subsequent opinions on the stays of execution,
that it needed to reduce its population.
The legislature had handed DOC tools to safely reduce
its population, and the DOC turned its back on that,
refused to even consider making use of tools
for safe population reduction.
The court, in the face of a Constitutional harm,
the defendant doesn't have discretion to exercise
deliberate indifference, to fail to take
necessary measures that are available.
That is the exercise of discretion, it does not apply
in the Constitution.
The courts do not defer
to a correctional administrator's authority in the face
of a Constitutional violation.
-: That's if we found one, right?
Attorney: That was this court's holding in Foster.
-: Right.
-: If there is, and if there is a violation,
we can order, the court can order reductions,
and after that decision, that is exactly what happened.
-: Just one clarification
on one thing that you said, please.
You referenced that DOC did not use some of the tools
the legislature, I think you might've said,
recently gave them.
We don't have that outside section in the budget.
It was passed over a veto before us, right?
This moment, right?
-: Your Honor, it is in, it was before the Superior Court,
and it is in the record here.
It is, the law is appended to our brief,
the budget law, and I can say very briefly that
among the tools legislature, the legislature directed
the DOC to review its population to see
who could safely be released, and it gave it
a couple of new tools, including, it said,
"You can award good time, sentence reduction credits
without any program participation."
It said, "You can award credits to people just for having
been incarcerated during this public health emergency."
The good time credits for those close to release that,
no such restriction on the public health emergency credits.
So the DOC could have reviewed anyone that,
for safe release.
People who were close to release could have been given
extra credit to get out sooner.
People who had, who were, who posed no danger could have
been given credits to get out sooner,
but the department did not do that.
-: Are you suggesting the plaintiffs get to decide
how the DOC should act?
The DOC has many different things that they could do, right?
Why did the plaintiffs get to say,
"No, you should use this particular tool."
-: Thank you, Chief Justice.
We're not attempting to tell the DOC how to act.
What we're asking is that on remand that
the Superior Court take evidence as to the current threat
that exists, and if necessary, craft a remedial measure
that we have suggested a couple of benchmarks, for example,
the ability to socially distance in sleeping,
and otherwise, architectural capacity of housing units,
and we have suggested benchmarks for safety.
There's also now a newly-appointed (indistinct) person
whom if they're geared up soon enough might might offer
some standard, but we are not attempting to dictate
how many, we are saying we need to, we are saying,
we need to find a benchmark.
We're not telling DOC whether to use home confinement,
whether to give good time credits.
We're not telling whether to use the public health credits.
We're not telling DOC who, we're just trying to say,
what is a safe level, and what tools
should the DOC be ordered to use to work towards that level?
-: Counsel, can I follow up
on Chief Justice Budd's question to you?
With this line item, assume for the sake of argument
that they now, the DOC has these extra tools
that the legislature has now given them.
If they don't utilize those statutory tools now,
does that turn into a Constitutional violation,
or is it just a separate and distinct statutory violation?
-: Both, well, the failure to use the tools in itself is
a statutory violation, and we have amended our complaint
to allege that statutory violation, but we only raise it
here as evidence of the DOC's deliberate indifference,
that the DOC had these things it could have done,
and it refused to.
So we're not saying that, you know, if the DOC had released
enough people on home confinement, or through awarding
full good time, and boost time, and completion credits
to everybody who was in a program, if it had done that
without making use of these new tools
that had reduced its population,
then we might not have a deliberate indifference argument.
Justice Lowry: So then if you succeeded,
what would the order look like?
-: What would the order what?
-: What would the order look like?
-: The court could order DOC to use these tools
to reduce its population to a level that was judged
safe, based on the ability to socially distance in housing,
or based on architectural capacity, design capacity,
or at a barometer of the court's choosing.
-: So in other words, we would say a level of capacity
that they should be at?
Attorney: I'm sorry?
-: I'm just trying to get at what the order would look like.
Would we be saying a level of, a percentage of capacity
that they would need to be at?
-: I think, you know, scientific understanding is evolving,
and the virus has evolved, so I think that would be
before the lower court, would be what, you know,
what level of population can safely be housed now?
-: Are there any further questions?
Do you have anything else?
I'm sorry, there's, you've got time.
Attorney: I would say, I'm sorry?
-: You have time. You still have time.
-: Well, I guess I would just then want to emphasize that,
you know, this is very real in the prisons.
Now, the record, of course, doesn't reflect this,
but as community rates rise in Massachusetts,
and the Delta variant has arisen, we've already seen
outbreaks in prisons just in August, and this is
on the Department of Health website,
so you can take judicial notice.
There were a hundred cases, between 72 and a hundred
in one prison in August, Susan Baranowski, and there were
outbreaks in two other prisons just in August.
We don't know what's coming, but we know that there is
a serious danger on the horizon.
We have presented substantial evidence that prisons are
a far more dangerous place than the community.
Rates of infection in prisons are some 73 times higher
than in the community, and prisoners are more likely to die
than in the community.
So I think, you know, what the court should,
this is just to emphasize the stakes in this case,
and the importance of remand,
so that Superior Court can supplement the factual record
before it to take account, both of the vaccines,
which we agree are positive development,
but also of the implications of the Delta variant,
breakthrough infections, extreme transmissibility.
So that's just to emphasize the importance of having
the court look at this, and apply.
Again, I can't emphasize enough the importance
of having the lower court apply
the correct deliberate indifference standard,
because if this court allows a standard to stand,
which says, as long as the defendants do a lot,
it's good enough, even if they don't do the one thing
that could have prevented harm.
If the court allows that to stand, I think it will have
serious ramifications elsewhere in the law as well,
of course, as in the prisons of this state.
-: I'm sorry, so you're saying, it sounds like you're saying
there's only this one thing, and they didn't do it,
so it's deliberate indifference.
-: I was saying they didn't do the one thing that we know is
most important, which is allow for social distancing.
The defendants themselves have admitted that on the record,
that people could not social distance, and they did not do
the one thing that could have helped lower transmissibility
by allowing social distancing.
-: Do you think that's the one thing?
Do you think that's really the one thing,
the social distancing, or maybe the evidence suggests
that it is the vaccine?
Is that the evidence?
I mean, all the scientific literature out there, yeah.
-: So much for that correction.
Vaccine, tremendously important, but in the face
of the Delta variant and breakthrough infections,
social distancing is still absolutely vital,
and that's why we in the community are being told
to socially distance, and to, you know,
prisoners, unlike those of us in the community,
they have to sleep in a room with others
who are not their immediate household.
They have, they're still in dormitories of 70 to 80 people,
so they cannot self-isolate the way we can in the community,
and they live in a far more dangerous situation.
So I think the ability to socially distance in prison
with the Delta variant remains vital.
-: [Justice Wendlandt] Okay, thank you.
-: Thank you.
-: Attorney Dietrich.
-: If it please the court, Steven Dietrich
for Commissioner of Correction, Carol Mici,
and former Secretary of Public Safety and Security.
Thomas Turco, now retired.
I wanted to begin by updating some data points
for the court, since the court in Foster indicated
that current information is what's important,
particularly in a motion seeking prospective relief
from the court.
Number one, on the issue of testing.
To date, the Department of Correction has now conducted
50,941 tests, and in the 30 days ending on March 20th, 2020,
they had done 33 tests.
In the 30 days ending August 21st, 2021,
they had done 5,933 tests.
Check-in at the time of the filing of this,
of Commissioner Mici's brief with the court,
the vaccination rate of inmates
in the Department of Correction was 78%.
It has risen now to 81%.
In addition to the vaccination of inmates,
I'm sure the court is aware that Governor Baker has issued
a mandate that requires that by October 17th, 2021,
all DOC employees must be vaccinated.
Third, the current number of active positives
among DOC inmates in prisons as of today is zero.
There are two positives at MASAC,
but those positives are the result of the patients
arriving at the facility positive.
So essentially there are no active positives now.
If that isn't an indication of success of the efforts taken
by Commissioner Mici and her staff, I don't know what is.
I want to make this point about vaccination,
because my sister damns it with feint praise by saying
it's a good thing.
It's not just a good thing, it's a game changer.
It changes the landscape, and the way in which I would like
the court to conceptualize vaccinations is that it's
constructive depopulation, in that if you have
80% of your inmate population vaccinated,
then certainly for the purpose of serious illness,
or hospitalization, or death, it says if you took
four out of every five inmates out of the system,
because the incidents of inmates who have been vaccinated
encountering those issues, the data shows is minuscule,
absolutely minuscule.
So if the issue in this case is decarceration,
depopulation, vaccination is constructive depopulation.
-: Before, before you leave the area of vaccination,
you said a minute ago that Governor Baker has issued
an order that all DOC employees have to be vaccinated?
Steven: All executive branch employees.
-: All exec, is there, is there no longer an exception,
permitting them to have COVID testing instead?
Steven: Not to my knowledge, Your Honor.
-: Thank you.
-: Obviously, there may be exceptions having to do
with religious beliefs, or medical issues, et cetera,
but other than that, and the staff vaccination rate is
now over 50%, I think it may be as high as 60%,
but it will be taken as of October 17th.
-: On that point, the currency of that information,
is there a legal challenge to that though by the Union?
-: I believe there is.
I'm not sure if the legal challenge has risen to the point
of anything other than discussion.
-: I'm just, I'm worried that if you want us to take
that factor into account with the legal challenge,
whether we should be doing that.
-: I obviously can't predict future events.
Something may come.
The only information I have is here is the mandate,
and, you know, absent contrary information,
I think the mandate will be on-
-: Mr. Dietrich, so you agree that this outside section
of the budget that passed with other available tools
to the DOC is before us in this hearing?
-: Only to the extent that plaintiffs assert that
the violation of the statute itself constitutes
a Constitutional violation, and clearly, as a matter of law,
that's not necessarily the case.
Merely a violation of a state statute is not,
in an of itself, a violation of the Constitution.
If I can also speak though, since it's been raised
to the particulars of that language.
My sister has represented that there were tools created
by this budget language which
the Commissioner did not utilize.
I'm sorry, but that's simply factually incorrect.
Whatever tools that were available have been utilized,
to the extent that they haven't is because they either
don't make any sense to do them,
or statutorily you can't do that.
For example, there were four categories raised
by this budget language concerning tools.
One was home confinement, sorry, three.
One was home confinement, one was furlough,
and one was the use of good time.
Commissioner Mici has created a home confinement program,
and in fact, she did so in the wake
of this court's Foster decision
in which the court suggested that as an ask.
There is now a formal regulation promulgated concerning
home confinement, inmates are now out on home confinement.
The problem is either as a matter of eligibility
or suitability, the numbers are not high,
and will never be high, given who can be released, either
by statute, or as a matter of the Commissioner's discretion.
In the CPCS case, this court listed a number of offenses
which constituted an automatic disqualification
for releasing of detainees,
presumably because they were dangerous.
-: That was actually a, you just didn't give the benefit
of the presumption, it wasn't an automatic.
-: Correct,
but if you were to take, if you were to just take
those inmates who are committed under those statutes,
that eliminates over 80% of the DOC population.
The Commissioner is also prohibited from using
home confinement for inmates in medium and maximum security,
because they don't meet the statutory requirements.
They have to be in minimum and in prerelease,
and then also have to be released in the context of going
or utilizing a work, or vocation, or education program.
So there's a process in place whereby
the entire inmate population is consistently,
constantly screened by the classification committees
in the department, and if there's someone who qualifies,
in terms of both eligibility and suitability,
that person is then reviewed for home confinement.
As I said, the problem is the numbers are low.
As to the tool of furlough, the Commissioner is prohibited
from acting outside the furlough statute.
The furlough statute limits inmate furloughs to 14 days.
What possible solution does that give
to the matter of COVID?
One, they're coming back, and two,
they may be coming back bringing COVID.
So furloughs are no solution to the problem
of COVID in prisons.
As to the matter of good time, absolutely.
Commissioner Mici has used the tools
available to her for awarding good time.
She's created more programs.
She's created boost time.
She has created video opportunities
for inmates to earn good time.
She has completion credits, and she's ordered all those,
pursuant, consistent with the recommendation of,
or the tool offered by the legislature.
So it's simply a misstatement of fact to say that somehow
she's not in compliance with that budget language,
and therefore, that constitutes a Constitutional violation.
She is in complete compliance with the budget language,
and saying it, you know, it isn't so it doesn't make it so.
I would make reference to the fact that also, Your Honor,
the, my sister made reference to the ombudsman,
which is also a creature of the legislature born
out of this same budget language.
An ombudsman has been identified,
a contract has been signed,
and the start date for that contract is September 1st.
The charge to the ombudsman is to basically review
the operations of the Department of Correction,
both with regard to managing COVID in prison,
and also with regard to measures taken to depopulate prison.
Commissioner Mici welcomes an unbiased,
another set of eyes and ears to look at this.
The ombudsman, additionally, one of his powers,
his or her powers is to recommend to the legislature
in the event that something more can be done,
or not enough is being done, a remediation plan,
and also to call for the Commissioner to testify
before the legislature as to the state of affairs
in terms of COVID and DOC.
It seems to me that that pretty much covers any concerns
about compliance with the budget language, doing,
you know, what can be done, additionally,
if not necessarily by the Commissioner.
So it seems to me to be an overlap, not to say that
this court doesn't have jurisdiction to issue orders
along those lines, but it seems to me to be
quite a bit of overlap between the duties
of the ombudsman and this court.
Again, once you look at the infection numbers,
oh, I'm sorry.
I wanted to make one other point about Susan Baranowski,
since again, it was cited by my sister,
and the fact that there was 70 to a hundred cases.
Well, there are no cases now at Susan Baranowski,
and why is that the case?
Because once the cases arose, the department did
everything it could do and should do to manage the outbreak,
and to stop it from happening, stop it from increasing.
I will also add if this case is about social distancing,
that's a bad example to offer to this court
insofar as the fact that SBCC has 522 inmates,
494 of those inmates are single cell.
So, I don't know how much more the Commissioner could do
to socially distance than to put 98%
of the inmate population at the institution
where there was an outbreak in single cells.
-: But you understand she's referencing social distancing
across all of the institution?
-: I understand, Your Honor, but the problem is
each one of these institutions is a (indistinct), right?
Many of these institutions essentially have had no COVID.
So, and in terms of social distancing, it's not a situation
where you can take inmates from a medium security facility,
and as a matter of home confinement, release them
into the population, because those people are not suitable
to participate in those programs.
The people who are suitable are in minimum and pre-release,
and if those people are eligible, and participate
in the home confinement program, that doesn't mean
that you can just backfill for medium security facilities,
more people into minimum and pre-release,
because those people are not suitable and eligible
to go to minimum and pre-release.
So there was this one outbreak, but I think it was managed
masterfully, and it was done as a result of a host
of tools used by the institution.
It was the quarantining, it was the medical isolation,
it was the testing.
One of the things that the department does now
as an embellishment to what they were doing a year ago is
they do wastewater testing, which is extremely effective
in identifying where COVID might exist.
Inmates who needed to be isolated were.
Inmates who needed to be tested were.
There was an outbreak, the outbreak stopped.
The active positives are zero.
Justice Budd: Thank you very much.
-: Thank you.