Foster v. Commissioner of Correction (No. 1) ( 2020 )

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SJC-12935
STEPHEN FOSTER1 & others2 vs. COMMISSIONER OF CORRECTION &
others3 (No. 1).
Suffolk. May 7, 2020. - June 2, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Commissioner of Correction. Parole. Commissioner of Public
Safety. Governor. Imprisonment, Safe environment.
Constitutional Law, Sentence, Imprisonment, Cruel and
unusual punishment. Due Process of Law, Sentence,
Commitment. Practice, Criminal, Sentence, Execution of
sentence. Practice, Civil, Civil commitment.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 17, 2020.
The case was reported by Cypher, J.
James R. Pingeon for the plaintiffs.
1 On behalf of himself and all others similarly situated.
2 Michael Gomes, Peter Kyriakides, Richard O'Rourke, Steven
Palladino, Mark Santos, David Sibinich, Michelle Tourigny,
Michael White, Frederick Yeomans, and Hendrick Davis, on behalf
of themselves and all others similarly situated.
3 Chair of the parole board, Secretary of the Executive
Office of Public Safety and Security, and the Governor.
2
Stephen G. Dietrick for Commissioner of Correction &
another.
Ryan P. McManus, Special Assistant Attorney General, for
the Governor.
Michael R. Byrne for the parole board.
The following submitted briefs for amici curiae:
Tatum A. Pritchard for Disability Law Center, Inc.
Rachael Rollins, District Attorney for the Suffolk
District, & Hon. Jon Santiago, pro se.
Matthew R. Segal for American Civil Liberties Union of
Massachusetts & another.
GAZIANO, J. The plaintiffs, incarcerated inmates serving
sentences or individuals who are civilly committed under G. L.
c. 123, § 35, commenced this class action in the county court,
alleging that their conditions of confinement expose them to
unreasonable risks from the COVID-19 pandemic. They claim,
among other things, that the defendants' failure to take readily
available steps to reduce the incarcerated population to safe
levels so as to permit adequate physical distancing within
prison walls constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States
Constitution and art. 26 of the Massachusetts Declaration of
Rights, and violates substantive due process requirements
guaranteed under the Fourteenth Amendment to the United States
Constitution and arts. 1, 10, and 12 of the Massachusetts
Declaration of Rights.
The plaintiffs sought a preliminary injunction enjoining
the Department of Correction (DOC) from (1) housing any prisoner
3
in a facility where the population exceeds its design-rated
capacity and (2) "[h]ousing any prisoner in a cell, room, dorm,
or other living area where they must sleep, eat, or recreate
within six feet of another person."4 To accomplish this, the
plaintiffs asked that the DOC be ordered to reduce the number of
incarcerated individuals such that the proper physical
distancing can be maintained in all facilities. They also
requested that the parole board be ordered to expedite the
release of certain groups of inmates, consider the risks of
COVID-19 in all parole decisions, and adopt a presumption of
release on parole for all inmates who are eligible for parole.5
In addition, the plaintiffs sought to enjoin the DOC from
continuing to confine individuals who are civilly committed
pursuant to G. L. c. 123, § 35.
4 The plaintiffs also asked that the Department of
Correction (DOC) be enjoined from housing any inmate in a cell,
dormitory, or other living area that does not comply with the
minimize size standards established by the Department of Public
Health (DPH) as set forth in 105 Code Mass. Regs. §§ 451.320-
451.322 (2004); maintaining any medical services unit or
medication distribution area in which inmates have to wait
within six feet of each other; and transferring any inmate from
a county jail to the DOC.
5 The parole board sought to dismiss all claims against it
on the grounds that it is not responsible for conditions of
confinement in DOC facilities and has no control over them, and
also that the plaintiffs' requests for relief exceed the bounds
of the parole board's statutory authority; that motion was
denied. See Foster v. Commissioner of Correction (No. 2), 484
Mass. , (2020)(Foster [No. 2]).
4
The single justice reserved and reported the case to the
full court.6 She also remanded the matter to the Superior Court
"for fact-finding that will enable the full court to decide the
case in the first instance." A Superior Court judge, by special
assignment, conducted a series of evidentiary hearings, took
limited testimony from all parties over three days, collected
affidavits, and submitted his findings to this court. We also
ordered the defendants to provide answers to additional
questions pursuant to Mass. R. A. P. 16 (l), as appearing in 481
Mass. 1628 (2019).
The initial question before us at this stage is whether a
preliminary injunction should issue. This in turn requires a
determination whether the plaintiffs are likely to succeed on
the merits of their claims. See Packaging Indus. Group, Inc. v.
Cheney, 380 Mass. 609, 616-617 (1980).
To prevail on an Eighth Amendment claim, an individual must
establish that the punishment is inconsistent with "the evolving
standards of decency that mark the progress of a maturing
society." See Trop v. Dulles, 356 U.S. 86, 100-101 (1958).
Prison officials have a duty under the Eighth Amendment to
protect inmates in their custody from the spread of serious,
6 The Governor moved in this court to dismiss the claims
against him on the ground of sovereign immunity; that motion was
allowed, and thus, the Governor is no longer a party to this
case. See Foster (No. 2), 484 Mass. at .
5
communicable diseases, including where the complaining inmate
does not show symptoms of the disease, or where "the possible
infection might not affect all of those exposed." Helling v.
McKinney, 509 U.S. 25, 33 (1993) ("We have great difficulty
agreeing that prison authorities may not be deliberately
indifferent to an inmate's current health problems but may
ignore a condition of confinement that is sure or very likely to
cause serious illness and needless suffering the next week or
month or year").
Thus, to be entitled to a preliminary injunction in their
claims for unconstitutional conditions of confinement because of
the risk of spread of a disease, the incarcerated plaintiffs
must show that they are likely to establish that the defendants
have been deliberately indifferent to a substantial risk of
serious harm to their health or safety. See Estelle v. Gamble,
429 U.S. 97, 103-104 (1976); Torres v. Commissioner of
Correction, 427 Mass. 611, 613-614, cert. denied, 525 U.S. 1017(1998).
It is undisputed, as we recognized in Committee for Pub.
Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass.
431, 445 (2020) (CPCS v. Trial Court), that, due to the COVID-19
pandemic, the situation inside the Commonwealth's jails and
prisons "is urgent and unprecedented, and that a reduction in
the number of people who are held in custody is necessary."
6
Nonetheless, on the record here, we conclude that the
incarcerated plaintiffs are unlikely to succeed on the merits of
their claim for violations of the Eighth Amendment, and thus
their motion for a preliminary injunction must be denied.
As to the plaintiffs' argument that commitment to a secure
facility for substance abuse treatment during the pandemic
violates the substantive due process rights of the committed
individual, on this record, the plaintiffs do not seem to have a
representative class member at this point, and thus are unlikely
to succeed on their petition for a class-based preliminary
injunction. Nonetheless, some immediate relief is necessary
with respect to those who have been civilly committed pursuant
to G. L. c. 123, § 35. Under our supervisory authority pursuant
to G. L. c. 211, § 3, we conclude that these individuals are
entitled to a new hearing to enable a motion judge to take into
account treatment limitations in the current circumstances, and
to weigh the balance of potential benefits from treatment and
the potential harms as a result of being held in wings of
prisons and jails or other conditions of confinement during the
pandemic.7
7 We acknowledge the amicus letters of the American Civil
Liberties Union of Massachusetts and the Massachusetts
Association of Criminal Defense Lawyers; of the district
attorney for the Suffolk district and Hon. Jon Santiago, pro se;
and of Disability Law Center, Inc.
7
Background. 1. COVID-19 in Massachusetts correctional
facilities. Despite a massive, concerted global containment
effort, COVID-19 has continued to spread, both around the world
and in Massachusetts.8 Few inhabited places worldwide have been
spared from infections; the Massachusetts correctional system is
not among them.
For many, the virus causes only mild symptoms. For others,
particularly the elderly or those with preexisting conditions,
the disease poses a substantial likelihood of serious illness or
death. Indeed, since February 29, 2020, the disease has killed
more than 100,000 people in the United States and more than
6,700 people in Massachusetts. The demographic distribution of
severe cases is of particular importance here, because
Massachusetts has the highest percentage of elderly prisoners
relative to all other States.9 Prisoners also have been shown to
age more rapidly than the general population, typically
developing the chronic conditions and disabilities associated
with old age ten to fifteen years earlier than their
8 According to data published by the DPH, on April 17, 2020,
the date the plaintiffs' complaint was filed, there were 34,402
confirmed cases of COVID-19 in Massachusetts. By the date of
oral argument on May 7, 2020, that number had more than doubled
to 73,721 cases. As of May 29, there were 95,512 confirmed
cases in Massachusetts.
9 As of May 11, 2020, thirteen percent of the prisoners in
DOC custody (957 of 7,343) were age sixty or older and thirty-
one percent (2,265) were age fifty or older.
8
nonincarcerated counterparts. According to estimates by the
Commissioner of Correction (commissioner), fifty percent of the
inmates under her care and control either are over sixty years
of age or have an underlying medical condition that puts them at
heightened risk for a severe course of COVID-19, should they
contract the virus.
In CPCS v. Trial Court, 484 Mass. at 456 (Appendix B), we
appointed a special master and established daily reporting
requirements in order to monitor the populations of
Massachusetts correctional institutions, and the progression of
COVID-19 within them. As of May 25, 2020, the DOC reported 396
confirmed cases among inmates. The vast majority of these cases
were found in three institutions: the Massachusetts
Correctional Institution (MCI)-Shirley (160 cases) and MCI-
Framingham (84 cases); and the Massachusetts Treatment Center
(MTC) (130 cases). Five other institutions had at least one
case among the incarcerated, and the rest reported zero
confirmed cases. The data do not reveal how many of these
individuals are actively symptomatic or how many have recovered
from the disease. Eight incarcerated individuals have died of
COVID-19.
Staff at a number of correctional institutions also have
9
tested positive for the virus.10 As of May 25, 2020, 182 DOC
staff, across eleven DOC facilities, had confirmed cases of
COVID-19. While MCI-Shirley, the MTC, and MCI-Framingham again
had the highest numbers of positive tests, the distribution of
infections amongst staff is broader than that of the inmates.
As we noted in CPCS v. Trial Court, 484 Mass. at 437, infections
among staff are of particular concern. They not only risk
bringing the virus into prisons, thereby spreading it amongst a
closely confined, captive, and especially vulnerable population,
but they also risk spreading the virus from prisons into the
broader community. Id. As with inmates, the data do not reveal
how many staff are currently symptomatic or recovered.
Currently, no correctional staff have died of COVID-19.
As part of ascertaining how crowded these facilities are,
the parties ask us to compare the total number of prisoners to
dueling definitions of prison capacity: operational capacity or
design capacity. Operational capacity is based on guidelines
issued by the Association of State Correctional Administrators.
CPCS v. Trial Court, 484 Mass. at 439 n.12. Design capacity
refers to "[t]he number of inmates that planners or architects
intended for the institution," as revised by a rating official
10In discussing staff, we include both those employed
directly by the DOC and also vendors and subcontractors who work
within correctional institutions.
10
from within the DOC. See Governor, Quarterly Report on the
Status of Prison Capacity, Fourth Quarter 2019, 10 (Apr. 2020)
(defining design capacity). In every facility in Massachusetts,
the operational capacity is higher than the design capacity,
sometimes significantly so. In the most pronounced example, the
North Central Correctional Institution at Gardner (NCCI-Gardner)
has a design capacity of 568 inmates, but an operational
capacity of 974 inmates.
The metric matters. As of May 25, 2020, no DOC facility
was over its operational capacity, and five were operating at
less than fifty percent of operational capacity.11 The DOC
system as a whole was at approximately sixty-five percent of
operational capacity (6,639 prisoners out of a total operational
capacity of 10,209). By contrast, five institutions were over
their design capacities, including NCCI-Gardner (medium
security), which was at 160 percent of its design capacity. In
aggregate, the DOC was operating at approximately eighty-nine
percent of its design capacity (6,639 prisoners and design
capacity of 7,492).
11The three institutions at which there have been the most
significant COVID-19 outbreaks do not stand out as notably
crowded. The MTC is at 80% of operational capacity and 94% of
design capacity; MCI-Shirley (medium security) is at 81% of
operational capacity and 121% of design capacity; and MCI-
Framingham is at 20% of operational capacity and 26% of design
capacity.
11
2. Efforts at containment in correctional institutions.
This court and all parties agree that correctional institutions
face unique difficulties in keeping their populations safe
during this pandemic. Because the constitutional adequacy of
the DOC's measures to control the spread of COVID-19 in its
facilities is central to this litigation, we review them at some
length.
a. Policy directives. When the Governor declared a state
of emergency on March 10, 2020, the DOC began implementing its
COVID-19 control plans. Beginning on March 12, 2020, the
commissioner delivered a series of directives, memoranda, and
advisories to both inmates and staff. These essentially weekly
communications document escalating and responsive efforts to
implement guidance from the Centers for Disease Control (CDC)
and the Department of Public Health (DPH). The interim guidance
by the CDC itself recognizes that full compliance with best
practices is not feasible in all facilities; therefore, the
commissioner has required each facility in Massachusetts to
create its own compliance plan. See Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities (Mar. 23, 2020) (Interim
Guidance), https://www.cdc.gov/coronavirus/2019-
ncov/downloads/guidance-correctional-detention.pdf
[https://perma.cc/MXY3-ETDL].
12
For example, the first memoranda issued guidance concerning
proper hand-washing technique, sanitation, and questions used to
screen potentially symptomatic staff and inmates. The advisory
issued on March 20, 2020, limited transports between facilities,
authorized staff to wear personal protective equipment (PPE) in
high-risk parts of facilities, and upgraded cleaning and
disinfection protocols. One week later, the guidance required
staff to wear masks, provided PPE to certain inmates in
especially high-risk areas, and allowed alcohol-based hand
sanitizer, something that previously had been discouraged in
prison settings. On April 3, 2020, the commissioner initiated a
system-wide lockdown. Since then, inmates who live in cells
have been spending twenty-three hours per day in their cells,
while inmates living in dormitory-style housing have been unable
to leave their units.
While the plaintiffs contest whether these various
directives are sufficient ultimately to ensure inmate safety, it
is difficult to dispute that they show ongoing attention -- at
least at the level of planning and policy -- both to guidance
from the CDC and DPH and to the evolving situation on the
ground. Nonetheless, as the boxer Mike Tyson once said,
"Everyone has a plan until they get hit." That is to say, even
the most meticulous and exceptional planning by the DOC still
might not meet constitutional muster if there are pervasive
13
failures in implementation. We therefore examine the execution
of these plans and procedures.
b. Physical distancing. Physical distancing between
individuals (so-called "social distancing") has been a
cornerstone of the public health response to COVID-19, both in
the United States and around the world. See generally Interim
Guidance, supra. The CDC defines social distancing as "the
practice of increasing the space between individuals and
decreasing the frequency of contact to reduce the risk of
spreading a disease (ideally to maintain at least [six] feet
between all individuals, even those who are asymptomatic)." Id.
at 4. By following these practices, the goal is to slow the
rate at which the disease progresses through the population.
Since the first case of COVID-19 was detected in a DOC
facility, the DOC has taken steps to implement physical
distancing within all of its facilities. Initially it banned
contact sports, and later banned all use of gyms, weights, and
prison yards. Some inmate beds were moved further apart, and,
in accordance with CDC guidance, inmates were asked to sleep
head to foot, so as to increase the distance between their
faces. Meals now are served in cells or dormitories to avoid
congregation in dining areas. Staff have attempted, apparently
at times unsuccessfully, to reduce or eliminate medication
lines.
14
Certain aspects of prison design limit the degree to which
physical distancing is possible. Due both to the fact that some
single cells have been reserved for quarantining inmates and
because of the underlying building designs, currently fifty-
eight percent of inmates sleep either in a two-person cell or in
a dormitory-style room. Since the lockdown, these inmates sleep
and live within six feet of at least one other inmate, and
sometimes many more. Approximately seventy percent of prisoners
eat within six feet of another prisoner.
For example, plaintiff Michael White resides in a
dormitory-style room at MCI-Concord that contains bunkbeds for
approximately eighty inmates. The beds are three feet apart,
the sinks are one foot apart, and White generally eats within
arm's reach of at least one other inmate. White's account of
attempting to maintain appropriate distance in a dormitory
setting is consistent with accounts by plaintiffs Ryan Duntin
and Dana Durfee. Moreover, while the occupants of a dormitory
may be siloed from other groups of inmates in the prison
(something the DOC calls "cohorting"), if an asymptomatic guard
or other staff member were to introduce the virus, this type of
"cohorting" would be ineffective to prevent the spread of COVID-
19 to those housed in the unit.
The DOC argues that, even if those in double cells are
unable to maintain physical distance from their cellmates, the
15
conditions are consistent with physical distancing guidance
provided by the CDC because each pair of cellmates is analogous
to a family unit in the broader community -- not distanced from
one another, but from every other set of cellmates. This
argument has merit as far as it goes, but runs up against basic
aspects of prison design: those housed in double and single
cells still often must share showers, toilets, sinks, and
telephones with those in other cells on their tier or in their
block. Inmate testimony credited by the Superior Court judge
consistently reported a lack of physical distancing with those
in other cells while individuals use these essential fixtures or
await their turn to do so.
c. Facility sanitation and personal protective equipment.
The DPH is statutorily required to conduct biannual inspections
of DOC facilities for compliance with health and sanitation
regulations and to report on its findings and recommendations.
See G. L. c. 111, § 20; 105 Code Mass. Regs. §§ 451.401 et seq.
The plaintiffs draw our attention to recent reports for each DOC
facility showing that health code violations for most facilities
number in the hundreds. The plaintiffs emphasize violations of
regulations that recommend a specific amount of floor space per
prisoner, and point out that twelve DOC facilities house at
least some inmates in cells that do not meet the DPH recommended
standards. These violations are concerning generally, and all
16
the more so under conditions of global pandemic.
We note, however, that the mere number of violations only
paints a partial picture. It does not distinguish between
mandatory regulations (105 Code Mass. Regs. §§ 451.100, 451.200)
and recommended standards (105 Code Mass. Regs. §§ 451.300).
Furthermore, the violations vary significantly in severity. At
MCI-Framingham, for example, violations range from a paper towel
dispenser that was not stocked at the time of inspection and a
dusty wall fan to evidence of a "chronic rodent and insect issue
in the food service areas." Counting the number of violations
alone does not capture this distinction. Some chipped paint has
little bearing on our analysis here; bathroom and shower areas
at the MTC that were so poorly maintained as to yield an
"increased risk of disease transmission" are highly germane.
In March 2020, the DOC began ordering large amounts of PPE
and cleaning supplies. Cleaning regimens at all DOC facilities
have been enhanced, and disinfectant cleaning supplies have been
made available to inmates so that they may clean their own
cells. As stated, the DOC also has begun to allow alcohol-based
hand sanitizer, which it has distributed widely across its
facilities. Despite these efforts, both cleaning supplies and
hand sanitizer periodically have run short. The precise extent
of these shortages varies by institution and remains the subject
of some factual dispute.
17
While initially PPE was provided only to correctional staff
in specific, high-risk areas, its use has expanded as the
pandemic has progressed. Since March, staff have been required
to wear masks at all times within the facilities. Between April
24, 2020, and April 28, 2020, the DOC distributed surgical masks
to all inmates. Not all staff have complied entirely with PPE
mandates; likewise, some inmates have not followed the DOC's
"strong encouragement" to wear the masks provided. Supervising
officers have used video surveillance records to discipline
officers who have failed to comply with PPE requirements,
including one officer who was suspended for five days when he
and all of his staff were found not to be wearing masks.
d. Entrance screenings and quarantines. To prevent the
introduction of the virus into its facilities, the DOC has
limited access to prisons; it has allowed only staff and
attorneys to enter, and has prohibited visitors and volunteers.
Each facility screens all those who seek entry according to
protocols developed with reference to the guidance issued by the
CDC and DPH. These protocols involve a questionnaire and self-
administered temperature check; those with temperatures over
99.9 degrees Fahrenheit categorically are denied admittance.
The effectiveness of these screenings are limited by the fact
that, as all parties agree, asymptomatic individuals can spread
the disease.
18
In every facility, the DOC has set aside areas to isolate
and quarantine confirmed and suspected cases of COVID-19, as
well as inmates who have refused to be tested. Individuals
entering DOC custody are quarantined for two weeks. As of
May 1, 2020, there were "many open cells in the quarantine
unit[s]" available should COVID-19 cases spike. Inmates who
believe they are at heightened risk proactively may request
isolation (being held in a single cell), subject to a medical
evaluation, but there is not enough space to place all inmates
at heightened risk, which would amount to one-half of the DOC
population, in single cells. Moreover, both the commissioner
and the plaintiffs share a concern for the mental health
implications of long-term single-cell isolation.
e. Testing. The DOC's testing strategy has evolved as the
pandemic has progressed. The DOC conducted its first COVID-19
test on March 19, 2020, when an inmate at the MTC presented with
symptoms. DOC reports that initially it followed CDC and DPH
guidelines by deferring to the medical judgment of the medical
providers at each facility as to the testing needed. This
generally involved testing inmates who were symptomatic or who
had been in close contact with someone who tested positive.
On April 22, 2020, large-scale mobile testing became
available to the DOC, and it began administering tests to any
inmate or patient who voluntarily agreed to be tested, facility
19
by facility. As of May 25, 2020, the DOC had offered tests to
all inmates or patients at thirteen facilities. According to
the schedule it submitted in its Mass. R. A. P. 16 (l) letter,
all inmates will be offered an initial test by the end of May.
Any staff member may receive a test at any time upon request.
f. Decreasing population. The plaintiffs seek an order
requiring the defendants to reduce the population of
incarcerated persons until no prisoner is housed in a
correctional facility where the population exceeds the design
capacity of the institution or until no inmate is housed in a
cell that does not meet the DPH-recommended floor space
regulations. It is unclear how many individuals would be
required to be released in order to meet these criteria. At the
evidentiary hearing, the commissioner agreed that decreasing the
inmate population at DOC facilities could help contain the
spread of COVID-19, and that measures to do so should be taken,
so long as they are lawful and appropriate in light of the over-
all health and safety of the public.
The commissioner has several tools at her disposal to
reduce the population in DOC custody, including medical parole,
good time credit, and furloughs. The Superior Court judge found
that the DOC has taken multiple steps to expedite the medical
parole process, including shortening internal deadlines,
reviewing home plans earlier in the process, and notifying
20
MassHealth so that the inmate has medical insurance upon
release. Since our decision in CPCS v. Trial Court, 484 Mass.
at 435-436, 456-457 (Appendix B), twenty-six individuals have
been approved for medical parole; it remains unclear how many of
those individuals actually have been released.12
Pandemic lockdown conditions effectively can lengthen
sentences by limiting the opportunities by which inmates
ordinarily would be able to earn good-conduct sentence
deductions, or "good time credit." See G. L. c. 127, § 129D.
The statute permits 7.5 days of good time credit per activity,
and fifteen days total per month. See id. In response to the
pandemic, the commissioner awarded full good time credit for the
month of March 2020 for anyone who had been earning such credit
on March 1. She also established a journaling program by which
inmates can earn 7.5 days of good time credit for the month of
April. Therefore, in April, inmates were eligible for one-half
the good time credits they ordinarily would have been able to
obtain. The commissioner indicated in her testimony that she
was considering expanding these opportunities in May; the record
does not indicate whether she has done so.
The DOC has not used furloughs since the 1990s, based on a
belief that it is "bad policy" to release an inmate who later
12See Robert Malloy & another vs. Department of Correction,
SJC No. 12961.
21
must be reincarcerated. Accordingly, the DOC has not furloughed
any inmates during the pandemic.
The commissioner does not believe that she has statutory
authority to allow inmates to serve any portion of their State
prison sentence under home confinement. We do not agree. See
G. L. c. 127, §§ 48, 49, 49A; Commonwealth v. Donohue, 452 Mass.
256, 265 (2008); discussion part 6, infra.
3. Plaintiffs committed for substance abuse treatment.
Under G. L. c. 123, § 35, Massachusetts courts are authorized to
commit an individual for involuntary substance use disorder
treatment upon a finding that the individual has a substance use
disorder and that the disorder poses a likelihood of serious
harm. See Matter of G.P., 473 Mass. 112, 120 (2015).
Generally, committed individuals are sent to unsecured
treatment facilities licensed by the DPH or the Department of
Mental Health. See G. L. c. 123, § 35. If DPH informs the
judge issuing the commitment that no such facilities are
available, or "if the court makes a specific finding that the
only appropriate setting for treatment for the person is a
secure facility," the judge may commit the individual to a
secure facility designated by the commissioner. Id. Currently,
there are three secure facilities in the Commonwealth. The DOC
operates the Massachusetts Alcohol and Substance Abuse Center
(MASAC), which is located at the MCI-Plymouth prison. The
22
Hampden County sheriff, under an agreement with the DOC,
operates the Stonybrook Stabilization and Treatment Centers at
Ludlow and Springfield, both of which are located at the Hampden
County Correctional Center.
a. General precautions. Both the DOC and the Hampden
County sheriff's office have taken steps to protect their
patients from COVID-19. All persons entering their facilities
are screened for symptoms of COVID-19 and are held in a medical
quarantine unit for fourteen days. Staff members are required
to wear masks; for certain activities, they also wear gloves.
The degree of compliance with these requirements remains in
dispute. A declarant and an affiant for the plaintiffs state
that masks and gloves are not consistently used or changed
between uses at MASAC. All patients have been given masks and
soap. MASAC does not provide soap in the bathrooms, so patients
must bring their personal soap with them. At MASAC, a private
vendor cleans and sanitizes the facility daily, including within
patient rooms. Between March 13 and April 23, 2020, the MASAC
population declined by eighty-two percent, and the Stonybrook
population declined by fifty-seven percent. As of May 25, 2020,
MASAC held forty-three patients. This amounts to twenty-nine
percent of its design capacity and seventeen percent of its
operational capacity. Due to the low censuses, all patients
have been given single occupancy rooms. On May 23, 2020, MASAC
23
reported that two patients tested positive for COVID-19. One
MASAC staff member had also previously tested positive.
b. Treatment. The parties offer divergent accounts of the
degree to which treatment has been interrupted by the pandemic;
the Superior Court judge did not make findings discrediting any
of these differing reports. Plaintiff Mark Santos was committed
to MASAC on March 4, 2020. He avers that because MASAC went
into a lockdown on April 3, 2020, he was required to remain in
his cell, and could leave only to go to the restroom, make a
telephone call, or receive medication. Santos states that most
treatment classes were canceled in mid-March, and he attended
only one daily group session before the lockdown. The lockdown
was still in effect when he was released on April 9, and Santos
avers that he received no treatment during the lockdown. The
DOC concedes that it instituted a lockdown at MASAC in order to
make COVID-19 response plans, but maintains that the lockdown
lasted only three days.
Declarant Robert Peacock was committed to MASAC on
April 24, 2020, and executed his declaration on April 28, 2020.
He stated that he had been locked in his cell continuously since
being committed, and could leave only to shower. He said as
well that he had received no counselling or any other type of
24
treatment since his arrival.13
The DOC asserts that, for the first three days of their
fourteen-day intake, patients are restricted to an observation
room and assessed daily by clinical staff. After three days,
patients who have been "detox cleared" are moved out of the
observation room but remain in the separate unit. For the
remainder of the fourteen-day period, patients receive
"individual services" from a substance use disorder counsellor.
Thereafter, MASAC patients are moved to the general treatment
unit, where they attend group sessions and other programming.
The Hampden County sheriff's office reports that new
patients are provided substance abuse treatment while in their
initial fourteen-day quarantine, and that, due to the lower
population, patients currently receive more programing overall
than they would have prior to the pandemic.
Discussion. 1. Standard of review. "A party seeking a
preliminary injunction must show that success is likely on the
merits; irreparable harm will result from denial of the
injunction; and the risk of irreparable harm to the moving party
13The DOC maintains that Robert Peacock initially exhibited
signs of withdrawal and confusion, and therefore was kept in an
observation room until April 28, 2020, when he was "detox
cleared." The DOC asserts that, on April 29, 2020, he met with
a substance abuse counsellor, who described the program,
explained the expectations of patients, and gave him some
written treatment materials.
25
outweighs any similar risk of harm to the opposing party"
(quotation and citations omitted). Doe v. Worcester Pub. Sch.,
484 Mass. 598, 601 (2010). "In cases in which a public entity
is a party, a judge may also weigh the risk of harm to the
public interest in considering whether to grant a preliminary
injunction" (citations omitted). Id. See Fordyce v. Hanover,
457 Mass. 248, 255 n.10 (2010); Packaging Indus. Group, Inc.,
380 Mass. at 616-617. "[T]he movant's likelihood of success is
the touchstone of the preliminary injunction inquiry. [I]f the
moving party cannot demonstrate that he is likely to succeed in
his quest, the remaining factors become matters of idle
curiosity." (Quotations and citations omitted.) Maine Educ.
Ass'n Benefits Trust v. Cioppa, 695 F.3d 145, 152 (1st Cir.
2012).
2. Class certification. In their complaint and in their
motion for injunctive relief, the plaintiffs purport to
represent one over-all class of individuals that also is made up
of two smaller subclasses. They seek class certification for
all classes. The broad injunctive relief sought by the
plaintiffs is possible only if there is a class that may be
certified. Thus, in order to determine whether their class
claims have a reasonable likelihood of success, a prerequisite
for granting a preliminary injunction, we first must determine
whether the requested classes may be certified.
26
Under Mass. R. Civ. P. 23 (a), as amended, 471 Mass. 1491(2015), members of a class may represent the class "only if
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to
the class, (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately
protect the interests of the class." Additionally, the court
must conclude that "the questions of law or fact common to the
members of the class predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication
of the controversy." Mass. R. Civ. P. 23 (b). The plaintiffs
bear the burden of providing "information sufficient to enable
the motion judge to form a reasonable judgment that the class
meets the requirements of rule 23" (quotation and citation
omitted). Gammella v. P.F. Chang's China Bistro, Inc., 482
Mass. 1, 12 (2019).
While the precise contours of the global class that the
plaintiffs ask us to certify remain somewhat unclear, they are
clear as two specific putative subclasses: medically vulnerable
individuals who are at high risk for serious complications or
death from COVID-19 due to their underlying medical conditions
or age, and those being held for treatment pursuant to G. L.
27
c. 123, § 35.
We conclude that the plaintiffs have shown a substantial
likelihood that a class of medically vulnerable inmates who are
currently serving criminal sentences, or who will begin serving
such sentences in the future, can be certified. According to
the commissioner, nearly one-half of the DOC population is
potentially at heightened risk of a serious course of the
disease, leaving little question of numerosity. While there may
be some variance between facilities, the legal claim and its
basic factual underpinning are common to all potential class
members: that the increased risk of contracting COVID-19 caused
by the current conditions of the correctional facilities, in
concert with the individuals' medical vulnerability, constitutes
cruel and unusual punishment. Because this is precisely the
claim of several of the named class members, they appear to be
sufficiently typical and to have a substantial basis to show
that they adequately and fairly can represent the class.
Although the plaintiffs have shown that they are not
precluded from establishing a substantial likelihood of success
on the merits in at least one of their requests for class
certification, we do not have an adequate basis in this record
to ascertain the proper contours of who qualifies as medically
vulnerable. Nor, on this record, can we determine whether there
is adequate commonality in the named plaintiffs and the
28
superclass of all incarcerated individuals the plaintiffs also
seek to represent. While we understand the pressing urgency of
this litigation, the Superior Court judge is better positioned
to take expert testimony and to determine the appropriate
definition of medically vulnerable individuals for purposes of
this litigation. See Weld v. Glaxo Wellcome Inc., 434 Mass. 81,
87 n.8 (2001), citing Carpenter v. Suffolk Franklin Sav. Bank,
370 Mass. 314, 317–318 (1976) (unlike its Federal counterpart,
rule 23 of Massachusetts Rules of Civil Procedure does not
mandate early ruling on class certification).
The second subclass that the plaintiffs seek to represent,
those being held under G. L. c. 123, § 35, presents an entirely
different issue. As the defendants point out, Mark Santos, the
proposed representative of this class, was released eight days
before the filing of the complaint. He makes no claim that he
is likely to be committed again. Thus, he would not be able to
bring this claim on his own behalf because injunctive relief,
preliminary or otherwise, would not redress his asserted
injury.14 See Los Angeles v. Lyons, 461 U.S. 95, 102 (1983);
LightLab Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 194
14Our holding in Matter of a Minor, 484 Mass. 295, 299-300
(2020), that the minor's release from commitment did not render
his appeal moot, is inapposite. Santos does not appeal from the
initial commitment decision. Cf. id. Rather, he argues, on
behalf of the class, that the conditions of confinement during
the pandemic render continued confinement unconstitutional.
29
(2014). Because he could not bring an action on his own behalf,
Santos cannot represent the purported class.15 See Doe v.
Governor, 381 Mass. 702, 704–705 (1980).
The plaintiffs' ability to locate a substitute class member
seems virtually certain. Indeed, even this limited record
contains an affidavit from Peacock, who was relatively newly
committed when the complaint was filed, setting forth his
concerns about lack of programming, the close to twenty-four
hours per day he was held in his room, proximity to others when
using certain necessary facilities, and cleanliness of shared
surfaces.
If, as appears virtually certain, the plaintiffs are able
to obtain a suitable representative whose claims are typical of
the class, we anticipate that they will succeed in meeting the
certification requirements. Multiple questions of law and fact
15Any anticipated future mootness of the class
representative's individual claims should not preclude class
certification, where the "claims are so inherently transitory
that the trial court will not have even enough time to rule on a
motion for class certification before the proposed
representative's individual interest expires" (citation
omitted). See County of Riverside v. McLaughlin, 500 U.S. 44,
52 (1991), and cases cited. See also Gammella v. P.F. Chang's
China Bistro, Inc., 482 Mass. 1, 20 n.24 (2019); Gonzalez v.
Commissioner of Correction, 407 Mass. 448, 452 (1990). Thus,
had Santos been committed when the complaint was filed, his
subsequent release would not have prevented the class from being
certified or Santos from continuing to represent it. Here,
however, the issue is not mootness; rather, Santos lacked
standing from the start. See County of Riverside, supra at 51(distinguishing mootness from lack of standing).
30
are common to all putative class members, including issues
regarding conditions of treatment and the risk of transmission
in these conjugate settings. Based on the broad nature of the
plaintiffs' arguments, the issues in common apparently
predominate over those they may not share. The numerosity
requirement almost certainly will be met because dozens of class
members likely exist, and new commitments are ongoing, rendering
joinder of all members impracticable. See Gammella, 482 Mass.
at 11–12 & n.15. Lastly, adequacy exists due to the apparent
lack of conflict between class members, and class counsel's
ability vigorously to pursue the action. See In re Hyundai &
Kia Fuel Economy Litigation, 926 F.3d 539, 566 (9th Cir. 2019).
Thus, we defer the issue of certification to allow the
plaintiffs to locate and substitute an appropriate
representative. See Gonzalez v. Commissioner of Correction, 407
Mass. 448, 451-453 (1990) (holding that named plaintiff's claims
were moot, denying defendant's motion to dismiss, and remanding
matter to Superior Court with instructions to dismiss in set
period of time if substitute plaintiff could not be found). See
also Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974) (party may
amend pleading "by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires").
Despite the open questions of class certification that we
31
remand for resolution in the Superior Court, we address the
merits of the preliminary injunction, which has been briefed and
argued before us. See O'Sullivan v. Secretary of Human Servs.,
402 Mass. 190, 192 (1988) (reaching merits of case, despite
mootness of named plaintiffs, because defendants did not argue
mootness and because counsel "apparently [were] prepared to
pursue this action on behalf of [a substitute plaintiff]");
Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 Mass. 705,
713 (1977) (no error where court ruled on merits of case without
ruling on class certification); Gooch v. Life Investors Ins. Co.
of Am., 672 F.3d 402, 432–433 (6th Cir. 2012) (no error where
court ruled on preliminary injunction before class
certification). The urgency of the claims raised convinces us
that delaying resolution of the motion would do an injustice.
3. Constitutional claims. While the plaintiffs' briefs do
not make this distinction entirely clear, because only inmates
who have been convicted and are serving a sentence are subject
to punishment by the Commonwealth, the Eighth Amendment claims
are applicable only to this group. Any relief sought by civilly
committed individuals must be sought on the grounds of a
violation of substantive due process rights; because they are
not being punished, the Eighth Amendment's protections against
cruel and unusual punishment do not apply. See Youngberg v.
Romeo, 457 U.S. 307, 315–316 (1982).
32
We consider first the claims of the incarcerated
individuals.
a. Eighth Amendment claims. The plaintiffs contend that
their conditions of confinement, and the defendants' failure to
expedite the release of a greater number of individuals from
incarceration, using any of a number of mechanisms, violate
their rights under the Eighth and Fourteenth Amendments and
arts. 1, 10, 12, and 26.
Because we have not held that art. 26 provides greater
protections with respect to conditions of confinement than does
the Eighth Amendment, and conditions for the civilly committed
must be at least as good as for those who are serving sentences
of incarceration, see Youngberg, 457 U.S. at 321-322, we
consider first the plaintiffs' likelihood of success under the
Eighth Amendment.
"The Eighth Amendment . . . prohibits any punishment which
violates civilized standards and concepts of humanity and
decency." Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992).
As the plaintiffs observe, the Eighth Amendment applies to
conditions of confinement that are separate from and independent
of any condition imposed as a part of sentencing. See Helling,
509 U.S. at 32-33.
"[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution imposes upon
it a corresponding duty to assume some responsibility for
33
his safety and general well being. . . . The rationale for
this principle is simple enough: when the State by the
affirmative exercise of its power so restrains an
individual's liberty that it renders him unable to care for
himself, and at the same time fails to provide for his
basic human needs -- e.g., food, clothing, shelter, medical
care, and reasonable safety -- it transgresses the
substantive limits on state action set by the Eighth
Amendment . . . ." (Quotation and citation omitted.)
Id. at 32.
In order to establish an unconstitutional condition of
confinement, a claimant must show both an objective element and
a subjective element. Wilson v. Seiter, 501 U.S. 294, 298
(1991). The objective element requires an inmate to show that
his or her living conditions amount to a "serious deprivation[]
of basic human needs," Rhodes v. Chapman, 452 U.S. 337, 347
(1981), which can include denial of medical care for serious
medical needs, Estelle, 429 U.S. at 102-105.
The subjective element requires an inmate to demonstrate
that prison officials acted or failed to act with deliberate
indifference. Id. at 106. See Torres, 427 Mass. at 614. "[A]
prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he [or she] must also draw the
inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). While
34
subjective knowledge is a question of fact that a claimant must
establish, and it is necessary to distinguish between obvious
risks and a prison official's actual knowledge of the risk,
where the risk is so obvious that a reasonable person would
realize it, "a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious." Id. at 842.
b. Risk of contracting COVID-19 in the Commonwealth's
prisons. As stated, an inmate asserting unconstitutional
conditions of confinement first must establish, objectively,
that the conditions pose a "substantial risk of serious harm."
See Farmer, 511 U.S. at 834, citing Helling, 509 U.S. at 35.
See also Rhodes, 452 U.S. at 347 (Eighth Amendment violation
requires showing that living conditions amount to "serious
deprivation of basic human needs," including denial of medical
care for serious medical needs).
The defendants contend that the incarcerated plaintiffs
will be unable to establish the objective component of their
deliberate indifference claim; they argue,
"No prisoner has been forced to endure an extreme
deprivation or even an unreasonable risk to their health or
safety. The measures mentioned above, such as increased
cleaning and sanitizing operations, distribution of PPE to
all inmates and staff, posting of educational and
institutional flyers and memoranda, and encouraging social
distancing as much as possible, rival that which is being
done in the community to help combat the spread of an
insidious disease that all Americans, inmate or not, are at
35
risk of contracting."
We do not agree. Notwithstanding the claim that no inmate has
had to endure an unreasonable risk to health or safety as a
result of being incarcerated during the COVID-19 pandemic, there
can be no real dispute that the increased risk of contracting
COVID-19 in prisons, where physical distancing may be infeasible
to maintain, has been recognized by the CDC and by courts across
the country.16 See, e.g., Baez vs. Moniz, U.S. Dist. Ct., No.
20-10753-LTS (D. Mass. May 18, 2020) ("There is, and can be, no
meaningful dispute that COVID-19 presents a substantial risk of
serious harm to health, to the proposed class of petitioners in
this case as well as to members of society at large"); Refunjol
vs. Adducci, U.S. Dist. Ct., No. 2:20-cv-2099 (S.D. Ohio May 14,
2020) ("The objective component of the inquiry is beyond debate.
Nobody can dispute that COVID-19 is a sufficiently serious
medical need . . . ."); Frazier vs. Kelley, U.S. Dist. Ct.,
No. 4:20-cv-00434-KGB (E.D. Ark. May 4, 2020) ("[I]t cannot be
disputed that COVID-19 poses an objectively serious health risk
16That the CDC interim guidance for prisons recognizes that
in some instances it may not be feasible to maintain the
recommended six feet, and offers other guidance that may help to
reduce the risk as far as possible in such circumstances, does
not mean, as the defendants appear to suggest, that the CDC
recommends maintaining a lesser distance among incarcerated
individuals than among others; it clearly states repeatedly that
six feet or more "ideally" should be maintained between
incarcerated individuals, including in housing arrangements.
See Interim Guidance, supra at 3, 4, 11, 13, 19, 20.
36
to named plaintiffs and the putative classes given the nature of
the disease and the congregate living environment of the . . .
facilities").
Having concluded that the incarcerated plaintiffs almost
certainly will succeed in establishing the objective component
of their claims under the Eighth Amendment, we turn to
consideration of the subjective component, i.e., whether the
plaintiffs are likely to be able to establish deliberate
indifference on the part of the defendants.
4. Deliberate indifference. a. Applicable standard.
"While Estelle[, 429 U.S. at 105-106,] establishes that
deliberate indifference entails something more than mere
negligence, the cases are also clear that it is satisfied by
something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result." Farmer,
511 U.S. at 835. "With deliberate indifference lying somewhere
between the poles of negligence on the one end and purpose or
knowledge at the other," courts frequently have described it as
"recklessly disregarding" a substantial risk of harm. Id. at
836, and cases cited. In other words, the subjective standard
for deliberate indifference requires the same showing of
"subjective recklessness" as would apply in the criminal
context. Id. at 839-840.
This is not a static determination. In a suit for
37
prospective relief, "the subjective factor, deliberate
indifference, should be determined in light of the prison
authorities' current attitudes and conduct," including "their
attitudes and conduct at the time suit is brought and persisting
thereafter." Farmer, 511 U.S. at 845, quoting Helling, 509 U.S.
at 36. In making the requisite showing of subjective
culpability, the prisoner may rely "on developments that
postdate the pleadings and pretrial motions, as [prison
officials] may rely on such developments to show that the
[prisoner] is not entitled to an injunction." Farmer, supra at
846.
b. Analysis.17 Following the United States Supreme Court's
reasoning in Estelle, 429 U.S. at 106, and Helling, 509 U.S.
at 32-33, concerning prison officials' Eighth Amendment duty to
take reasonable steps to protect inmates from the spread of
serious communicable diseases, inmates across the country have
The plaintiffs urge that, rather than the objective and
17
subjective components of deliberate indifference, this court
apply the objective standard used in Kingsley v. Hendrickson,
135 S. Ct. 2466, 2473 (2015), in evaluating their Eighth
Amendment claims. This reasoning is misguided. Kingsley
involved a claim by a pretrial detainee under 42 U.S.C. § 1983,
concerning the use of excessive force. The detainee asserted a
violation of his substantive due process rights. Accordingly,
to prevail, he was required to show only that the intentional
use of force was excessive or objectively unreasonable, and not
that the official intended it to be so. This standard, however,
is inapplicable to claims of deliberate indifference under the
Eighth Amendment.
38
brought a variety of actions successfully challenging the
policies, or lack of policies, of prison officials regarding the
spread of contagious diseases and other conditions that threaten
health throughout a prison. In Lareau v. Manson, 651 F.2d 96,
109 (2d Cir. 1981), for example, the United States Court of
Appeals for the Second Circuit applied this line of reasoning to
hold prison officials liable for violating the Eighth Amendment
when they made no efforts to screen incoming inmates for
contagious diseases, despite significant overcrowding that
further heightened the risk of infection. The court held that
aggrieved prisoners need not demonstrate that "an infectious
disease has actually spread in an overcrowded jail before
issuing a remedy." Id. See, e.g., DeGidio v. Pung, 920 F.2d
525, 533 (8th Cir. 1990) (prison officials were deliberately
indifferent to inmates' serious medical needs by consistent
pattern of reckless or negligent conduct in failing to prevent
and control prison's tuberculosis epidemic); Dunn v. White, 880
F.2d 1188, 1195 (10th Cir. 1989), cert. denied, 493 U.S. 1059(1990) (observing that prison's failure to protect incarcerated
inmates from human immunodeficiency virus [HIV] infection may
violate Eighth Amendment); Smith v. Sullivan, 553 F.2d 373, 380
(5th Cir. 1977) (concluding that housing scabies- and gonorrhea-
infected inmates with healthy prisoners violates Eighth
Amendment).
39
Where the risk of serious harm is substantial, but prison
officials have undertaken significant steps to try to reduce the
harm and protect inmates, courts have concluded that there was
no Eighth Amendment liability.18 In Butler v. Fletcher, 465 F.3d
340, 345 (8th Cir. 2006), cert. denied, 550 U.S. 917 (2007), for
example, the United States Court of Appeals for the Eighth
Circuit determined that the sheriff in charge of a county jail
was not deliberately indifferent to the risk of a tuberculosis
infection within the jail where the county adopted "policies
[that] specifically acknowledged the risk and promulgated
detailed procedures for the diagnosis, segregation, and
treatment of . . . inmates infected with active cases of
[tuberculosis]." See Johnson v. United States, 816 F. Supp.
1519, 1522-1525 (N.D. Ala. 1993) (applying reasoning in Lareau,
651 F.2d at 109, and concluding that inmate did not establish
violation of Eighth Amendment from being housed in cell with
patient who was dying from acquired immune deficiency syndrome,
where prison officials' policies educated inmates on "universal
precautions" and prohibited type of high risk behavior that
18Courts have relied on similar reasoning in considering
prison officials' policies with respect to other widespread
risks to health and safety. See, e.g., Rish v. Johnson, 131
F.3d 1092, 1099 (4th Cir. 1997) (requiring inmates to clean up
blood and bodily fluids without providing them gloves); Wallis
v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995) (requiring inmate
to clean attic full of asbestos, known carcinogen, without
protective equipment).
40
could result in HIV infection).
While there are as yet no appellate court decisions on
claims asserting a violation of the Eighth Amendment due to the
increased risk of exposure to COVID-19 in prisons, a number of
Federal District Courts have considered the issue using a
similar analysis. For example, in Baez, No. 20-10753-LTS, the
United States District Court for the District of Massachusetts
concluded that the inmate-petitioners had not established a
likelihood of success on the merits. Given prison officials'
"many measures and policies aimed at keeping COVID-19 from
entering the facility," and the "meaningful actions" undertaken
"aimed at controlling and mitigating against the spread of
COVID-19 within the facility," the plaintiffs were unlikely to
show that prison officials had been "obdurate, wonton, or
reckless with respect to [the risk of COVID-19], or . . .
otherwise failed to take reasonable steps aimed at preventing or
mitigating the risk that COVID-19 presents to those detained."
Id. In Kevin M.A. vs. Decker, U.S. Dist. Ct., No. 20-4593 (KM)
(D.N.J. May 1, 2020), the United States District Court for the
District of New Jersey concluded that, due to the "numerous
affirmative steps to try and stop the spread of COVID-19" taken
by jail officials, and the "protocols for individuals who
exhibit symptoms," the inmate-petitioner had failed to
demonstrate deliberate indifference, notwithstanding that he
41
became ill with COVID-19 while in custody.
To combat the spread of COVID-19 as far as possible, the
DOC has undertaken a number of measures, set forth in the
appointed judge's findings of fact, many of which are stipulated
to by the parties. These measures included lockdowns of the
facilities; prohibiting all outside visitors; restrictions and
self-examination on entry to any facility; isolation of
symptomatic inmates and those who have tested positive;
requiring staff to stay home for fourteen days if they have any
symptoms; mandating that staff wear masks when in contact with
inmates; distribution of additional cleaning supplies to all
inmates; increased cleaning of frequently touched surfaces;
making alcohol-based hand sanitizer available to inmates in
numerous facilities; having inmates eat in their cells or
housing units rather than at tables in larger groups; and
instructions, posters, and information on COVID-19 and its
spread, in both Spanish and English. To reduce inmates
congregating in close contact with each other, the DOC has
eliminated most group programming, work release, and academic
and job skills classes, as well as outdoor recreation time and
access to gyms and libraries, i.e., any activities where groups
of inmates would be together.
Over the course of this litigation, the DOC has obtained
and distributed PPE to staff and, recently, all inmates. It has
42
required that staff in contact with inmates, and all inmates who
leave their cells or dormitories, wear masks at all times. The
DOC also recently has instituted some limited amount of outdoor
time for all inmates, in small groups approximately every four
days, so that physical distancing can be maintained.
In evaluating whether deliberate indifference has been
established, courts often have examined guidelines and standards
from professional associations and State codes. "Published
standards of medical care or adopted guidelines such as the
tuberculosis manuals . . . do not establish absolute standards
for measuring the constitutionality of official actions. But
neither may they be ignored by [S]tate officials, however. Such
standards and guidelines are useful measures for 'determining
whether contemporary standards of decency have been met.'"
DeGidio v. Pung, 704 F. Supp 922, 956 (D. Minn. 1989), aff'd,
920 F.2d 525 (8th Cir. 1980), quoting Ramos v. Lamm, 639 F.2d
559, 567 n.10 (10th Cir. 1980), cert. denied, 450 U.S. 1041(1981). See, e.g., Lareau, 651 F.2d at 106 ("To inform itself
of contemporary standards, the district court considered
correctional guidelines and standards from a number of
organizations"). See also Williams v. Edwards, 547 F.2d 1206,
1214 (5th Cir. 1977) ("In the past we have affirmed findings of
constitutional violations based in part on [S]tate code
violations. . . . Such a standard is a valuable reference for
43
what is minimal for human habitation in the public view, thus
serving as an indicator of evolving notions of decency"
[quotation and citation omitted]).
At oral argument, the plaintiffs were unable to point to
any area in which they assert that the DOC is not in compliance
with the CDC's interim guidance on prisons and jails with
respect to COVID-19. When questioned, the plaintiffs conceded
that the DOC in fact is in compliance with all CDC interim
guidance for correctional facilities. While compliance with
professional guidance is not enough, on its own, to establish
constitutionality (or a lack thereof), see Bell v. Wolfish, 441
U.S. 520, 543 n.27 (1979), such compliance does provide useful
indications to be considered in conjunction with other factors,
see Ramos, 639 F.2d at 567 n.10 ("a variance from [S]tate
standards or from standards promulgated by certain professional
organizations does not establish a per se constitutional
violation[;] it is a factor to be considered in determining
whether contemporary standards of decency have been met"). The
DOC's current compliance with CDC's interim guidance weighs
against a determination that the plaintiffs are likely to
succeed on the merits of their claims.
Another notable factor is the DOC's current widespread
testing program. As stated, testing, contact tracing, and
quarantine are considered the sine qua non of any effort to
44
control the COVID-19 pandemic. See generally Interim Guidance,
supra. On March 19, 2020, the DOC first tested a symptomatic
inmate for COVID-19. Thereafter during that early period, only
inmates who presented as symptomatic, or, in a few cases, those
who had been in close contact with an inmate who had tested
positive, were being tested for COVID-19. When the plaintiffs
first commenced this action, the special master in CPCS v. Trial
Court, 484 Mass. at 456-457 (Appendix B), was presenting daily
reports showing little to no testing for COVID-19 at many
facilities, and, in particular, no testing of inmates at
facilities where a correction officer or other staff member had
tested positive for COVID-19. Based on the special master's
reports, the plaintiffs and the amicus American Civil Liberties
Union urged this court to conclude that there had been an Eighth
Amendment violation due to an apparent lack of basic contact
tracing, testing, and isolation, as recommended by the CDC, and
asked us to order testing of all inmates in DOC facilities. At
the same time, when the complaint in this case first was filed,
and even after the matter was assigned to the Superior Court
judge for fact finding, the DOC was asserting difficulty in
obtaining tests and a shortage of tests in all facilities.
Since that initial period of a few tests for symptomatic
inmates, if a test was recommended by an individual clinician
and as tests were available, the DOC has modified its testing
45
strategies substantially. After oral argument in this case, and
increasingly throughout the month of May, the DOC has begun
widespread testing of nonsymptomatic inmates, as well as
offering testing to all correction officers upon request.
At oral argument, the attorney for the DOC stated that the
DOC had access to 10,000 COVID-19 tests, and that the DOC was
planning a large-scale testing program. In response to requests
by this court for additional information on the subject pursuant
to Mass. R. A. P. 16 (l), the DOC clarified that, as of May 11,
2020, it had 2,073 tests in its possession, was using a mobile
testing van to conduct tests, had been assured that there was
now no limit on the number of tests that it would be able to
obtain, and had begun to implement a system-wide testing plan.
Under this plan, all inmates and all staff at each facility,
regardless of whether they are symptomatic, will be offered
tests, and all facilities will have been tested by May 31, 2020,
following a schedule of approximately two days of testing at
each site.
Current widespread DOC testing efforts, if continued as
planned, will provide much of the testing relief that the
plaintiffs, and the amicus American Civil Liberties Union, urge
this court to order. This further supports the conclusion that
the plaintiffs are not likely to succeed on the merits of their
claims for violations of the Eighth Amendment.
46
In sum, on this record, it appears unlikely that the
plaintiffs will be able to establish deliberate indifference on
the part of the DOC regarding their conditions of confinement as
a result of the pandemic. We turn to consider their claims for
violations of substantive due process.
5. Substantive due process claims for individuals
committed under G. L. 123, § 35. The plaintiffs argue that
commitment to a secured facility for substance abuse treatment
during the COVID-19 pandemic violates committed individuals'
substantive due process rights.
a. Professional judgment. In Youngberg, 457 U.S. at 315–
316, individuals who had been civilly committed based on
intellectual disabilities brought substantive due process
challenges regarding their conditions of confinement. The
United States Supreme Court concluded that, "[i]f it is cruel
and unusual punishment to hold convicted criminals in unsafe
conditions, it must be unconstitutional to confine the
involuntarily committed -- who may not be punished at all -- in
unsafe conditions." Id. Therefore, "when the State takes a
person into its custody and holds him [or her] there against his
[or her] will the Constitution imposes upon it a corresponding
duty to assume some responsibility for his [or her] safety and
general well-being." DeShaney v. Winnebago County Dep't of
Social Servs., 489 U.S. 189, 199-200 (1989), citing Youngberg,
47
supra at 317. See Williams v. Hartman, 413 Mass. 398, 403
(1992).
Relying on these holdings, the plaintiffs maintain that
commitment for substance abuse treatment during the COVID-19
pandemic creates unsafe conditions of confinement. Under
Youngberg, 457 U.S. at 323, however, to establish a violation of
substantive due process, it is not sufficient to allege only
that conditions are unsafe. Rather, the test is whether a
"decision by [a] professional is such a substantial departure
from accepted professional judgment, practice, or standards as
to demonstrate that the person responsible actually did not base
the decision on such a judgment."19 See Hopper v. Callahan, 408
Mass. 621, 626–627 (1990), quoting Youngberg, supra.The plaintiffs contend that commitment to a secured
facility during the COVID-19 pandemic is so contrary to
19In determining whether there was a violation of
substantive due process, some courts have applied the standard
of deliberate indifference to decisions made by
nonprofessionals. See, e.g., Lanman v. Hinson, 529 F.3d 673,
684 (6th Cir. 2008). This court, however, has rejected the
application of the deliberate indifference standard to
individuals who have been civilly committed because of their
intellectual disabilities. See Hopper v. Callahan, 408 Mass.
621, 627 & n.4 (1990). Additionally, the United States Supreme
Court's decision in Kingsley, 135 S. Ct. at 2473, casts doubt on
the applicability of a subjective standard to claims challenging
conditions of confinement for nonsentenced individuals. See
Smith v. Washington, 781 Fed. Appx. 595, 597-598 (9th Cir.
2019), quoting Castro v. County of Los Angeles, 833 F.3d 1060,
1071 (9th Cir. 2016), cert. denied, 137 S. Ct. 831 (2017)
(applying objective test to civil detainees).
48
substance abuse treatment principles that it necessarily
constitutes a substantial departure from professional judgment.
They rely on the COVID-19 guidance from the Substance Abuse and
Mental Health Services Administration (SAMHSA), an entity within
the United States Department of Health and Human Services, which
states that residential treatment "has not been shown to be
superior to intensive outpatient treatment." Therefore,
"[b]ecause of the substantial risk of coronavirus spread with
congregation of individuals in a limited space such as in an
inpatient or residential facility, SAMHSA is advising that
outpatient treatment options, when clinically appropriate, be
used to the greatest extent possible." SAMHSA, Considerations
for the Care and Treatment of Mental and Substance Use Disorders
in the COVID-19 Epidemic (rev. May 7, 2020).
Contrary to the plaintiffs' characterizations, this
guidance does not state that inpatient treatment is never
advisable during the pandemic. Rather, SAMHSA states that
"[i]npatient facilities and residential programs should be
reserved for those for whom outpatient measures are not
considered an adequate clinical option[, such as] those with
mental disorders that are life threatening." Id. Commitment
under G. L. c. 123, § 35, intended to be a "carefully
circumscribed . . . tool of last resort," by definition is
limited to situations in which the individual poses a likelihood
49
of serious harm. See Matter of a Minor, 484 Mass. 295, 311
(2020). If outpatient treatment, or any other plausibly
available option, would "bring the risk of harm below the
statutory thresholds that define a likelihood of serious harm,"
a judge may not commit the subject of a petition to any
facility, secure or unsecure. See id. at 310, citing Matter of
G.P., 473 Mass. at 128-129.
Commitment to a secure facility requires an additional
finding that an unsecure facility is unavailable or
insufficient. See G. L. c. 123, § 35. Once committed, the
superintendent of the facility may release an individual early
if there is not a likelihood of serious harm. See id. These
restrictions, if followed, should limit commitment to
individuals "for whom outpatient measures are not considered an
adequate clinical option," as recommended by SAMHSA.
The plaintiffs have presented no evidence of individuals
having been committed in contravention of these requirements.
Nonetheless, the plaintiffs maintain that commitment for
substance use disorder during the pandemic constitutes a
violation of professional judgment in every case. Without a
more complete factual record, and without expert guidance, we
are not able to reach such a broad conclusion.
b. Reasonable relation. The plaintiffs argue also that
civil commitment for substance abuse treatment during the COVID-
50
19 pandemic does not advance sufficiently the treatment goals of
G. L. c. 123, § 35, and therefore violates their substantive due
process rights. Due process under the Federal Constitution
"requires that the conditions and duration of confinement under
the [statute] bear some reasonable relation to the purpose for
which persons are committed." Seling v. Young, 531 U.S. 250,
265 (2001), citing Foucha v. Louisiana, 504 U.S. 71, 79 (1992).
As the DOC notes in its opposition, however, under the
Massachusetts Declaration of Rights, civil commitment is subject
to a higher level of judicial review, i.e., strict scrutiny.
See Matter of a Minor, 484 Mass. at 309. Under strict scrutiny
review, a statute cannot stand unless it is "narrowly tailored
to further a legitimate and compelling governmental interest and
[is] the least restrictive means available to vindicate that
interest." Commonwealth v. Weston W., 455 Mass. 24, 35 (2009).
Both the "reasonable relation" standard and review under
strict scrutiny require the government to identify a purpose for
which a statute was enacted, and to show how the government
action is connected to that purpose. Review under strict
scrutiny, however, requires the government meet a much higher
burden for both elements of the test. Rather than simply
identifying a permissible purpose, the government must show that
the statute is designed to address a compelling government
interest. Otherwise put, here, rather than requiring only that
51
the civil confinement be reasonably related to the government's
interest, the confinement must be narrowly tailored to that
interest as well as the least restrictive means by which to
accomplish the intended goal.
Because the plaintiffs presented their arguments to us
under the Federal standard, we address it first. In Doe v.
Gaughan, 808 F.2d 871, 874 (1st Cir. 1986), the plaintiffs
argued that, because they were committed to a correctional
institution, rather than a mental health facility, the nature of
their confinement was not reasonably related to the purpose for
which they were confined. The United States Court of Appeals
for the First Circuit disagreed; the court concluded that the
secure facility bore a "reasonable relationship both to the
[S]tate's public safety needs and to the patients' own
therapeutic interests in a secure environment." See id. at 878.
Conversely, in Jackson v. Indiana, 406 U.S. 715, 738-739 (1972),
the United States Supreme Court held that the confinement of an
incompetent defendant for more than three years bore no
reasonable relation to his commitment because there was no
substantial probability of his becoming competent.
General Laws c. 123, § 35, states that the purpose of
commitment is "inpatient care for the treatment of an alcohol or
substance use disorder." This treatment is intended to promote
the health and safety of the individual committed and others, as
52
demonstrated by the statutory requirement that a committed
individual pose a danger to him- or herself, or a member of the
community. See G. L. c. 123, § 35. Therefore, if patients are
not receiving meaningful and reasonably effective treatment for
substance use disorders, which advances their health and safety,
their commitment violates Federal due process requirements.
The DOC and the Hampden County sheriff's office report that
committed individuals are held for the first fourteen days in a
separate unit and do not participate in group programming. The
plaintiffs argue that, during those fourteen days, committed
individuals receive "next to no treatment," and thus that their
confinement bears no reasonable relationship to the purpose of
commitment. The DOC reports, however, that after an initial
three-day observation period has ended, and the individual has
been "detox cleared," the individual receives daily "individual
services" from a substance abuse disorder counsellor. The
Hampden County sheriff's office reports that individuals receive
substance abuse treatment during their first fourteen days of
commitment. The record contains no information regarding the
nature and extent of these services.
We agree that, if the first fourteen days involve no real
treatment, or only minimal treatment, the plaintiffs would have
a strong claim. The DOC's deputy commissioner of clinical
services and reentry avers that many individuals are released
53
after thirty days of confinement. As the plaintiffs note, the
first fourteen days of confinement account for almost one-half
of the total period of commitment for those individuals.
Without more information regarding the limited treatment
provided, however, and without expert testimony regarding the
efficacy of that limited treatment, we cannot conclude that
commitment during the pandemic bears no reasonable relation to
the purposes of the statute.
c. Strict scrutiny. As stated, the plaintiffs' complaint
and its arguments before this court rest on substantive due
process requirements under the Federal standard. Because civil
commitment involves a loss of liberty, a fundamental
constitutional right, however, we also consider the plaintiffs'
constitutional claims under the more stringent standard embodied
in the Massachusetts Declaration of Rights. "In substantive due
process analysis, the nature of the individual interest at stake
determines the standard of review that courts apply when
deciding whether a challenged statute meets the requirements of
the due process clause." Aime v. Commonwealth, 414 Mass. 667,
673 (1993). See R.B., petitioner, 479 Mass. 712, 717–718
(2018); Commonwealth v. Travis, 372 Mass. 238, 246 (1977).
Freedom from physical restraint is a paradigmatic
fundamental right, essential to a free society. See Pembroke
Hosp. v. D.L., 482 Mass. 346, 347 (2019), citing Matter of E.C.,
54
479 Mass. 113, 119 (2018). Civil commitment under G. L. c. 123,
§ 35, thus is subject to strict scrutiny under the due process
protections in the Massachusetts Declaration of Rights.
Accordingly, the statute "must be narrowly tailored to serve a
compelling governmental interest" and "also be the least
restrictive means available to vindicate that interest."
Massachusetts Gen. Hosp. v. C.R., 484 Mass. 472, 489 (2020).
Here, the question whether G. L. c. 123, § 35, could
survive strict scrutiny review, absent a pandemic, is not before
us. As nothing in the plaintiffs' filings or the record touches
on the question of strict scrutiny, we assume without deciding,
as we did in Matter of a Minor, 484 Mass. at 309 n.9, that the
statute at baseline does not violate substantive due process.
Accordingly, we examine whether the current public health crisis
alters the strict scrutiny analysis such that commitment to a
secure facility during the COVID-19 pandemic must be
unconstitutional.
As stated, the purpose of commitment for substance abuse
treatment is to promote the health and safety of the committed
individual and others through such treatment. We have no
evidence that the dangers of substance use disorders, or the
need for treatment, have diminished during the COVID-19
pandemic. Thus, issues regarding COVID-19 have no impact on the
question whether there is a compelling and legitimate government
55
interest.
The pandemic, however, may affect whether commitment is
narrowly tailored to that interest. If the commitment and
treatment do not promote effectively the government's interest
in the individual's and others' health and safety, the
government action cannot survive strict scrutiny. See Grutter
v. Bollinger, 539 U.S. 306, 333 (2003) ("means chosen . . . must
be specifically and narrowly framed to accomplish [their]
purpose" [citation omitted]). In this regard, the increased
risk of COVID-19 transmission in congregate settings is highly
pertinent.
As we recognized in CPCS v. Trial Court, 484 Mass. at 436,
"confined, enclosed environments increase transmissibility" of
COVID-19. "[M]aintaining six feet of distance between oneself
and others . . . may be nearly impossible" in these settings.
Id. As with the jails and prisons at issue in that case,
"proper sanitation is also a challenge" for the commitment
facilities, as shown by DPH inspections in January and February
of 2020, identifying dozens of repeat violations at MASAC and
the Stonybrook facilities.20 Id. at 436-437.
The record here contains only the plaintiffs' summaries
20
of what the DPH reports state, and not the actual reports. We
have taken judicial notice of some of the publicly accessible
reports, which are available for download on the DPH's website,
and which are consistent with the plaintiffs' representations.
56
At the same time, these facilities have taken significant
steps to lessen the risk of transmission of COVID-19. Staff
members are required to wear masks when in contact with
patients, as well as gloves for some activities, and all
committed individuals have been given masks. Newly committed
individuals are placed in a separate unit for the first fourteen
days and are not permitted to attend group sessions. All
persons entering the facilities are screened for symptoms of
COVID-19. Soap and hand sanitizer are widely available, and
multiple other hygiene-related protocols have been instituted.
Although the expert affidavits discuss the general risk of
transmission in correctional facilities, they do not
specifically address conditions at MASAC or in the Stonybrook
facilities. Nor do they address whether the pandemic changes
the need for or the efficacy of commitment to a secure facility
for substance use disorder treatment. Moreover, on this record,
the plaintiffs have not presented evidence indicating that a
less restrictive alternative would have been sufficient to avoid
a likelihood of serious harm for any currently committed
individuals. See Massachusetts Gen. Hosp., 484 Mass. at 483–484
("record . . . reveals no realistic alternative"). Given the
limited record before us, we cannot say that there has been a
57
fundamental change in the need for or efficacy of commitment.21
We conclude that the plaintiffs have not shown a likelihood of
success on the merits. See Garcia v. Department of Hous. &
Community Dev., 480 Mass. 736, 747 (2018).
Nonetheless, we see fit to address the situation under our
supervisory authority. Going forward, a judge shall not commit
an individual under G. L. c. 123, § 35, unless the judge finds
that the danger posed by the individual's substance use disorder
outweighs the risk of transmission of COVID-19 in congregate
settings. "Given the high risk posed by COVID-19 for people who
are more than sixty years of age or who suffer from a high-risk
condition as defined by the CDC, the age and health of [the
individual] should be factored into [the] determination." CPCS
v. Trial Court, 484 Mass. at 449. Additionally, the judge must
find that commitment is necessary notwithstanding the treatment
limitations imposed by quarantine protocols. A judge's findings
may be made in writing or orally on the record. These
requirements will remain in effect for the duration of the
21These considerations apply as much to nonsecure,
inpatient treatment facilities as they do to the secure
facilities at issue here. The record is devoid of any
information regarding the conditions present in nonsecure
treatment facilities in the Commonwealth. Therefore, we have no
basis for determining whether COVID-19 transmission is more
likely in secure locations, and accordingly are unable to make a
determination on the plaintiffs' alternative request for
transfers to nonsecure facilities.
58
COVID-19 state of emergency, unless altered by further order of
this court. These are additional, temporary requirements beyond
those imposed by G. L. c. 123, § 35, due process principles, and
any other applicable law. See Matter of a Minor, 484 Mass. at
307-310; Matter of G.P., 473 Mass. at 120-122, 124-129.
Furthermore, as with the bail determinations that were the
subject of much of our decision in CPCS v. Trial Court, 484
Mass. at 434-436, current orders of commitment may have been
made without consideration of the crisis currently ravaging the
planet. We therefore conclude that the risks of COVID-19
transmission constitute a "material change in circumstances"
with regard to any order of commitment currently in effect. See
Littles v. Commissioner of Correction, 444 Mass. 871, 878
(2005); Commonwealth v. Cronk, 396 Mass. 194, 196 (1985). See
also CPCS v. Trial Court, supra at 435 ("risks inherent in the
COVID-19 pandemic constitute a changed circumstance" under bail
statutes). Any individual who is committed pursuant to G. L.
c. 123, § 35, at the time of the issuance of the slip opinion in
this case may file a motion for reconsideration of the
commitment order. Hearings shall take place by videoconference
or teleconference no later than two business days after the
filing of the motion. A decision on the motion shall be
rendered promptly.
6. Ongoing response to the continuing pandemic.
59
Conditions as a result of the pandemic, and society's response
to them, are changing rapidly. The CDC's interim guidance
itself states that it is subject to change and that individual
guidelines "may need to be adapted based on individual
facilities' physical space, staffing, population, operations,
and other resources and conditions." Interim Guidance, supra
at 1. While the court acknowledges the DOC's significant
efforts to reduce the risks for incarcerated individuals due to
the pandemic, to date the crisis generated by the pandemic
continues worldwide. All of the defendants must remain vigilant
in continuing to respond swiftly to ongoing and changed
conditions brought about as a result of the pandemic, while
retaining the testing, contact tracing, and quarantining
policies they now have put in place, that the CDC recognizes as
the heart of any plan to combat the pandemic.
Moreover, as the commissioner's counsel acknowledged at
oral argument, while the pandemic continues, the lockdown
conditions instituted by the DOC to prevent a serious risk of
harm themselves risk becoming Eighth Amendment violations. The
CDC's interim guidance notes that measures taken by correction
facilities to reduce transmission of COVID-19, such as canceling
activities and visitation, may be deleterious to the mental
health of inmates. These effects necessarily will be even more
pronounced for inmates in solitary cells, who are segregated
60
from all other humans for twenty-three or more hours per day.
Solitary confinement, even when imposed for good reason, "bears
'a . . . terror and peculiar mark of infamy.'" See Davis v.
Ayala, 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring),
quoting In re Medley, 134 U.S. 160, 170 (1890). "[C]ommon side-
effects of solitary confinement include anxiety, panic,
withdrawal, hallucinations, self-mutilation, and suicidal
thoughts and behaviors." Davis, supra at 2210, citing Grassian,
Psychiatric Effects of Solitary Confinement, 22 Wash. U.J.L. &
Pol'y 325 (2006). "Suicides, attempts at suicide, and self-
mutilations are common among inmates thus confined." Ruiz v.
Estelle, 503 F. Supp. 1265, 1360 (S.D. Tex. 1980), aff'd in
part, rev'd in part, 679 F.2d 1115, amended in part, vacated in
part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042(1983). Thus, "even the permissible forms of solitary
confinement might violate the Eighth Amendment if
[i]mposed . . . for too long a period" (quotations and citation
omitted). Jackson v. Meachum, 699 F.2d 578, 582 (1st Cir.
1983). See Hardwick v. Ault, 447 F. Supp. 116, 126 (M.D. Ga.
1978) ("indefinite duration of confinement shock[ed] the
conscience," especially in cell block "where prisoners [would]
go for several days without leaving their cell except briefly").
Similarly, deprivation of exercise may be "'reasonable' in
certain situations, such as during a 'state of emergency.'"
61
Thomas v. Ponder, 611 F.3d 1144, 1155 (9th Cir. 2010). Long-
term "deprivation of exercise" on the other hand, "may
constitute an impairment of health forbidden under the [E]ighth
[A]mendment." Miller v. Carson, 563 F.2d 741, 751 n.12 (5th
Cir. 1977), citing Estelle, 429 U.S. at 97. See Spain v.
Procunier, 600 F.2d 189, 199 (9th Cir. 1979) ("denial of fresh
air and regular outdoor exercise and recreation [over period of
years] constitutes cruel and unusual punishment"); Ruiz, 503 F.
Supp. at 1367 ("Even if accomplished according to appropriate
procedures and for valid reasons, long term confinement of
inmates in administrative segregation, without opportunities for
recreation, constitutes cruel and unusual punishment"); Sinclair
v. Henderson, 331 F. Supp. 1123, 1131 (E.D. La. 1971)
("Confinement for long periods of time without the opportunity
for regular outdoor exercise does, as a matter of law,
constitute cruel and unusual punishment . . .").
At this juncture, it appears that the COVID-19 pandemic
will continue to demand extraordinary, and coordinated, efforts
by all parties, as well as the courts. This is so also with
respect to the different entities within the executive branch.
Even the commissioner acknowledged at oral argument that
reducing the number of incarcerated individuals being held in
any given facility, if it can be done lawfully, is a desirable
goal for controlling the spread of communicable diseases such as
62
COVID-19. In their brief, the plaintiffs point to numerous
measures that they assert have been undertaken in other States
to reduce prison populations, among them release to home
confinement, enhanced good time sentence deductions, and early
parole.
With respect to one such measure, release to home
confinement for those who have been serving a sentence, for
example, the commissioner asserted before the hearing judge that
she believes the DOC has no authority to authorize such releases
for inmates who are serving sentences. We agree with Chief
Justice Gants that G. L. c. 127, §§ 48, 49, 49A, and this
court's holding in Donohue, 452 Mass. at 265, indeed would allow
the commissioner to release certain individuals who currently
are serving a sentence in a prison or house of correction to
home confinement, under specified conditions, prior to the
completion of their committed sentences, for certain
educational, employment, and training programs. See post
at .
The specific measures the defendants might choose to reduce
the number of incarcerated individuals in DOC custody are not as
important as the goal of reduction, and not ordinarily for a
court to decide. Nonetheless, the DOC's argument that, due to
concerns regarding separation of powers under art. 30 of the
Massachusetts Declaration of Rights, this court would never have
63
authority to order a reduction in the prison population is
unavailing; should the court conclude, at a later point, that
the defendants have held inmates under unconstitutional
conditions of confinement, it would have authority to issue
orders necessary to remedy that situation.
As two justices of the United States Supreme Court
commented recently with respect to the determination by a United
States Court of Appeals to stay a Federal District Court judge's
order granting a preliminary injunction sought by a group of
particularly vulnerable incarcerated inmates due to their
conditions of confinement, "[i]t has long been said that a
society's worth can be judged by taking stock of its prisons.
That is all the truer in this pandemic, where inmates everywhere
have been rendered vulnerable and often powerless to protect
themselves from harm. May we hope that our country's facilities
serve as models rather than cautionary tales." Valentine vs.
Collier, U.S. Supreme Court, No. 19A1034 (May 14, 2020).
Conclusion. The motion for a preliminary injunction is
denied. The matter is transferred to the Superior Court, where
litigation on the complaint shall proceed as an emergency
matter, with due speed in consideration of the circumstances,
before the same Superior Court judge who was designated to make
findings of fact with respect to the motion for a preliminary
injunction. In addition to rulings on the merits, the judge
64
shall resolve all questions of class certification, including
any amendment of the complaint or substitution of parties.
So ordered.
GANTS, C.J. (concurring, with whom Lenk and Budd, JJ.,
join). The essence of this case is summarized in a single
sentence in the judge's findings of fact: "Commissioner Mici
[(commissioner)] believes that [the Department of Correction
(DOC)] is doing the best it can to manage the COVID-19 crisis
given the physical layout of the facilities and the inmate
population." The record supports her belief that the DOC is
doing "the best it can" to attempt to prevent the COVID-19 virus
from entering prisons and to limit its spread within the
facilities that it has entered. And it is likely true that, for
all practical purposes, the "physical layout" of prison
facilities is a "given," in that it cannot be materially altered
quickly enough to make a significant difference.
But even acknowledging that public safety would not permit
a drastic reduction of the prison population, the inmate
population is not a "given." The commissioner herself
recognizes, as do the World Health Organization1 and the United
1 "Enhanced consideration should be given to resorting to
non-custodial measures at all stages of the administration of
criminal justice, including at the . . . post-sentencing
stage[]. Priority should be given to non-custodial measures for
alleged offenders and prisoners with low-risk profiles and
caring responsibilities . . . ." World Health Organization
Regional Office for Europe, Preparedness, Prevention and Control
of COVID-19 in Prisons and Other Places of Detention, at 4 (Mar.
15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019
/434026/Preparedness-prevention-and-control-of-COVID-19-in-
prisons.pdf [https://perma.cc/4ZGQ-RN5U].
2
States Department of Justice,2 that measures should be taken to
reduce the inmate population and that doing so can help to
contain the spread of COVID-19. To be sure, the commissioner
makes clear that any such reduction should be done in a manner
that is consistent with law and appropriate in light of the
health and safety of the public. I agree, and I write
separately from the court's opinion (with which I wholeheartedly
agree) to make three points. First, there is considerably more
that the DOC and the parole board can do to reduce the inmate
population, consistent with law and appropriate in terms of
public health and safety. Second, as the pandemic drags on, it
is even more important to press forward with such reductions
because the current lockdown that is being used by the DOC to
contain the virus cannot reasonably continue indefinitely. And
third, although what the DOC and parole board are doing now may
not likely demonstrate a reckless disregard for the health and
safety of prisoners arising from the risk of transmission of the
2 On March 26, 2020, and again on April 3, 2020, the United
States Attorney General instructed the Federal Bureau of Prisons
to prioritize the use of home confinement as a tool for
combatting the risk that COVID-19 poses to vulnerable inmates
while protecting public safety. See Office of the Attorney
General, Prioritization of Home Confinement as Appropriate in
Response to COVID-19 Pandemic (Mar. 26, 2020), https://www
.justice.gov/file/1262731/download [https://perma.cc/3RKS-8FYN];
Office of the Attorney General, Increasing Use of Home
Confinement at Institutions Most Affected by COVID-19 (Apr. 3,
2020), https://www.justice.gov/file/1266661/download [https:
//perma.cc/RK4L-4B93].
3
COVID-19 virus, continuing unchanged along that same path in the
months ahead might constitute reckless disregard, especially if
we are hit with a new wave of COVID-19 cases.
1. More can be done to reduce the prison population. In
2019, approximately 600 inmates were released each month from
DOC custody. Those releases were offset by 557 admissions per
month, yielding a net monthly reduction of 43 inmates. However,
as a result of the pandemic, the number of criminal admissions
has dramatically fallen, from 190 in January and 161 in February
2020, to 87 in March and 15 in April. Given the sharp reduction
in criminal admissions, one would expect that the over-all
prison population would naturally fall, and it has by
approximately eight percent between January 1 and May 21.3 But
the vast majority of this decrease arises from the drop in
admissions; actual releases grew only modestly in April 2020 to
526 (compared to an average of 424 in January through March
2020), with virtually all of the increase in releases arising
from an increase in parole permits in April to 141 (compared to
a monthly average of 52 in January through March 2020). In
contrast, the county jail population, in large part fueled by
3 There were 7,923 inmates in DOC custody on January 1,
2020, see MA DOC Jan 1 Inmate Snapshot, https://public.tableau
.com/profile/madoc#!/vizhome/MADOCJan1Snapshot/Jan1Snapshot,
dropping to 7,278 by May 21, see May 21, 2020 Special Master's
Report.
4
our decision in Committee for Pub. Counsel Servs. v. Chief
Justice of the Trial Court, 484 Mass. 431 (2020), fell more than
thirty per cent between April 5 and May 21, 2020. See May 21,
2020 Special Master's Report. To be sure, it is far easier to
release detainees who have yet to be tried than sentenced
prisoners. But the fact remains that more inmates can be
released in accordance with law, without compromising public
health and safety.
a. Home confinement. The commissioner claims that she
does not have the legal authority to allow any sentenced
prisoner to serve any part of a prison sentence in home
confinement. The commissioner is mistaken.
Under G. L. c. 127, § 48, "[t]he commissioner shall
establish and maintain education, training and employment
programs for persons committed to the custody of the [DOC].
. . . Such programs shall include opportunities for academic
education, vocational education, vocational training, other
related prevocational programs and employment, and may be made
available within correctional facilities or, subject to the
restrictions set forth in [G. L. c. 127, §§ 49 and 86F], at
other places approved by the commissioner or administrator"
(emphasis added). Id. General Laws c. 127, § 49, provides:
"The commissioner of correction, or the administrator of a
county correctional facility, subject to rules and
regulations established in accordance with the provisions
5
of this section, may permit an inmate who has served such a
portion of his sentence or sentences that he would be
eligible for parole within eighteen months to participate
in education, training, or employment programs established
under [§ 48] outside a correctional facility . . . . In
the case of a committed offender who participates in any
program outside a correctional facility established under
[§ 48], the time spent in such participation shall be
credited toward the serving of his sentence in the same
manner as though he had served such time within the
facility. . . . The commissioner or such administrator
shall make and promulgate rules and regulations regarding
programs established under [§ 48] outside correctional
facilities. Such rules and regulations shall include
provisions for reasonable periods of confinement to
particular correctional facilities before a committed
offender may be permitted to participate in such programs
and provisions for feeding, housing and supervising
participants in such programs in such manner as will be
calculated to maintain morale and prevent the introduction
of contraband to the facility."4,5
In Commonwealth v. Donahue, 452 Mass. 256 (2008), we
considered whether a sheriff had the authority under § 48 and
§ 49 to release a prisoner from a house of correction and place
him in home confinement under a global positioning system (GPS)
monitoring program where the prisoner had an approved home and
work plan and was monitored by a GPS bracelet. We concluded
that "G. L. c. 127, §§ 48, 49, and 49A, provide specific
legislative authorization for the GPS program and for the
4 Participation in such programs is limited for prisoners
serving a life sentence, for sex offenders, and for prisoners
who were sentenced for specified violent crimes. See G. L.
c. 127, § 49.
5 General Laws c. 127, § 86F, applies only to sheriffs, not
to the commissioner.
6
placement of Donohue, or similarly situated inmates, in it."
Id. at 265. We specifically rejected the argument that these
statutes did not permit home confinement, declaring that "[t]o
the contrary, the statutory scheme suggests a legislative intent
to allow this kind of arrangement." Id. at 266. The
commissioner has the same authority under these statutes to
place prisoners in home confinement, monitored by a GPS
bracelet, as part of an inmate's participation in an education,
training, or employment program.
General Laws c. 127, § 49A, requires the commissioner to
establish in each correctional facility a committee to evaluate
the behavior and conduct of inmates within the prison and
recommend whether an inmate "shall be permitted to participate
in any program outside a correctional facility, exclusive of
parole." There is nothing in the record regarding the
activities of these committees and no explanation as to why,
especially at a time when the commissioner recognizes the need
to reduce the prison population, eligible prisoners who have
demonstrated good behavior and conduct have not been approved
for home confinement to participate in education, employment, or
training programs.
b. Parole release. As I have noted, the parole board has
stepped up its pace of activity and has released nearly three
times more prisoners in April than it did on average in the
7
first three months of this year. But there are at least two
ways in which the parole board can release more prisoners,
consistent with its statutory obligation to release a prisoner
on parole "only if the board is of the opinion, after
consideration of a risk and needs assessment, that there is a
reasonable probability that, if the prisoner is released with
appropriate conditions and community supervision, the prisoner
will live and remain at liberty without violating the law and
that release is not incompatible with the welfare of society."
G. L. c. 127, § 130.
First, § 130 requires the parole board to make two
determinations: whether "there is a reasonable probability that
. . . the prisoner will live and remain at liberty without
violating the law" and whether "release is not incompatible with
the welfare of society." Id. With respect to the second
determination, it is appropriate for the parole board to
consider whether the prisoner has tested positive for COVID-19
and, if so, whether he or she could be safely quarantined and
medically monitored or treated upon release. But it is also
appropriate for the parole board to consider the increased risk
to the inmate, to fellow inmates, and to the general public of
continuing custody in a prison where he or she is particularly
vulnerable to an outbreak of COVID-19 given the close quarters
and difficulties of social distancing in a prison. This
8
consideration is most acute in prisoners who are at special risk
of death or serious illness from COVID-19 because of their
advanced age or compromised immune system. In Christie v.
Commonwealth, 484 Mass. 397, 401-402 (2020), we declared in the
context of a judge's determination whether to stay a defendant's
execution of sentence pending appeal:
"We also note that the health risks to persons in custody
arising from this pandemic require that we adjust the
analysis applied to motions to stay the execution of
sentence pending appeal. In ordinary times, in considering
the second factor, a judge should focus on the danger to
other persons and the community arising from the
defendant's risk of reoffense. See [Commonwealth v. Cohen
(No. 2), 456 Mass. 128, 132 (2010); Commonwealth v. Hodge
(No. 1), 380 Mass. 851, 855 (1980)]. In these
extraordinary times, a judge deciding whether to grant a
stay should consider not only the risk to others if the
defendant were to be released and reoffend, but also the
health risk to the defendant if the defendant were to
remain in custody. In evaluating this risk, a judge should
consider both the general risk associated with preventing
COVID-19 transmission and minimizing its spread in
correctional institutions to inmates and prison staff and
the specific risk to the defendant, in view of his or her
age and existing medical conditions, that would heighten
the chance of death or serious illness if the defendant
were to contract the virus." (Emphases in original.)
A comparable adaptation to the pandemic should be made to the
parole board's evaluation of whether "release is not
incompatible with the welfare of society" under § 130.
Second, some inmates who are granted parole because they
meet the criteria in § 130 do not promptly obtain the parole
permits needed for release and must first obtain a transfer to a
long-term residential facility or a step-down to a lower-
9
security facility before they can receive their permits. In
this pandemic era, such a condition of release would prove a
"Catch-22" situation for many inmates otherwise eligible for
parole release: because all transfers among facilities have
ceased, such inmates could not meet the condition established
for their release. The parole board should reevaluate all such
conditions where they prevent the release of those whom the
board has already determined will be unlikely to reoffend upon
their release.
c. Earned good time. The majority of prisoners who are
released from custody are released because they have completed
their sentence. The DOC declares that it "has no control" over
the completion of sentences. But to the extent that the
commissioner has the authority to grant good time credit of up
to fifteen days per month under G. L. c. 127, § 129D, plus an
additional ten days of credit for the successful completion of a
program, the commissioner has the ability to reduce a prisoner's
sentence by approximately one-half (180 days per year if the
prisoner receives fifteen days per month, and another ten days
for each completed program). The pandemic put a temporary end
to the programs that enabled inmates to earn good time, and the
commissioner deserves credit for allowing inmates to earn seven
and one-half days per month by maintaining a diary. But with
more than two months having passed since the Governor's
10
announcement that a state of emergency existed, it is time for
the commissioner to devise new programs that can be accomplished
by inmates in the midst of a pandemic that would enable them to
earn the full complement of possible good time, including
completion credit, and reduce the over-all length of their
sentences.
2. Planning beyond the lockdown. To prevent the COVID-19
virus from entering DOC facilities and to mitigate its spread in
those facilities that already had cases, the commissioner
initiated a system-wide lockdown on April 3, 2020. In practice,
this means that inmates who are housed in cells remain there for
twenty-three hours a day, and those who live in dormitory-style
housing cannot leave their units. Inmates eat meals in their
cells or units; use of gyms, weight rooms, and outdoor spaces is
strictly limited; and work opportunities and classes have been
suspended.
These stringent policies might have been necessary to quell
the outbreak by reducing contact between inmates and by making
it easier to conduct contact tracing when positive cases were
identified. But while this may have averted a worst-case
scenario in the early days of the pandemic, the court's opinion
notes that the DOC may soon face another challenge: the mental
health impact of an extended lockdown, with its own implications
11
under the Eighth Amendment to the United States Constitution and
art. 26 of the Massachusetts Declaration of Rights.
According to the DOC, this is the first time in recent
memory that the entire Massachusetts prison system has been
locked down because of health risks. The longest recorded
lockdown at any DOC facility lasted for four months in 1995
following an assault on a correction officer at the
Massachusetts Correctional Institution at Cedar Junction. This
system-wide lockdown has already been in place for two months,
but I believe that the DOC recognizes that it cannot reasonably
continue for the many months that will pass until a COVID-19
vaccine becomes widely available. The isolation arising from a
lockdown over time will have increasingly severe mental health
ramifications, particularly in a population that already has a
higher-than-average prevalence of mental health issues. And if
the lockdown were to continue, there may come a time when the
lockdown itself raises serious questions about the DOC's
deliberate indifference to inmate mental health.
I do not profess to know what should be the next step
beyond lockdown; I know only that there will be a need for a
next step, that it must be carefully considered by correctional,
public health, and mental health professionals, and that, as we
are learning from our experience outside the prison walls,
reopening to permit increased human interaction poses even more
12
challenges than the formidable challenges arising from
sheltering in place. Soon, the DOC will have to develop
protocols that are, to the extent possible, protective of both
inmate physical health and mental health. And doing so will be
easier and more likely to succeed with a smaller prison
population, which will provide greater potential for social
distancing and give prison superintendents more flexibility in
their use of available prison space, cells, and facilities.
3. Planning ahead for a second wave. I recognize that,
when it became apparent that COVID-19 had spread through
Massachusetts communities, the DOC had to improvise quickly and
make adjustments to avoid rampant spread of the virus in its
correctional facilities. But what is appropriate in reacting to
an immediate and unpredictable threat might not be appropriate
as the threat drags on over many months. Reducing the size of
the prison population, especially the size of the elderly and
infirm prison population, in a manner that is consistent with
law and public safety takes time, both to identify appropriate
candidates for release and to ensure that they have appropriate
release plans. But there will be time before the fall to
accomplish sensible reductions in the size of the prison
population, including the release or transfer to home
confinement of many elderly and medically vulnerable prisoners,
to give prison superintendents the better options to protect the
13
physical and mental health of inmates that come with fewer
prisoners. With experts warning of a potential resurgence of
COVID-19 in the winter, see CDC Director Warns Second Wave of
Coronavirus Is Likely to Be Even More Devastating, Wash. Post,
Apr. 21, 2020, https://www.washingtonpost.com/health/2020/04
/21/coronavirus-secondwave-cdcdirector [https://perma.cc/3SVZ
-BQCX], the DOC has the opportunity and, indeed, the obligation
to begin preparing for that possibility. Policies that pass
constitutional muster in the face of an unprecedented emergency
may not be constitutionally sufficient after the department has
had time to consider and plan its response to a now-foreseeable
threat.