CPCS v. Chief Justice of the Trial Court (COVID-19 Litigation)

Recognizing a public health emergency related to the coronavirus pandemic, the Committee for Public Counsel Services (CPCS), the Massachusetts Association of Criminal Defense Lawyers and the ACLU of Massachusetts sued the Trial Court to seek the release of incarcerated people held in jails and prisons across the commonwealth.

On April 3, the Supreme Judicial Court issued its decision. A summary of the decision and some resources to get further information or assistance are set out below.

Who is presumed eligible for release?

The following incarcerated people are eligible for a “presumption of release.” This means that the court must let them out, possibly with conditions of release, unless a prosecutor proves they are dangerous or a flight risk.

  1. People held on bail, prior to trial, under G. L. c. 276, § 58, who are not charged with an excluded offense. (See: Pg. 41-44 of Opinion)
  2. People being held for a probation violation hearing. (See: Pg. 41-44 of Opinion)

To get a hearing, a person’s lawyer must file a motion. Hearings for those who are presumed eligible for release must take place by videoconference or teleconference no later than two business days after the motion is filed.

Who is not presumed eligible for release?

There are three types of incarcerated people who will not be presumed eligible for release:

  1. Those who are serving a sentence
  2. Those who are being held on dangerousness under G. L. c. 276, § 58A
  3. Those who are charged with an excluded offense (See: Pg. 41-44 of Opinion)

While people who fall in these three categories are not presumed eligible for release, there are ways to seek release during the ongoing COVID-19 pandemic. People held pretrial may bring a motion to reconsider either the bail or a finding of dangerousness. The SJC has ruled that COVID-19 is considered a changed circumstance as a matter of law.

For those serving a sentence: If the incarcerated person was sentenced – or if their appeal was denied less than 60 days ago – they may file a motion to revoke or revise their sentence. This motion is a request for a different, less severe sentence. If the person has a pending appeal or a pending new trial motion, they may ask the court for a stay of sentence.

There are also opportunities to seek parole, for example, early parole from a house of correction sentence for a “sufficiently compelling” reason or medical parole. The court is now requiring the Parole Board to provide us with the names of people who may be eligible for some of these categories of parole. You should also contact the COVID-19 hotline (617-482-6212) directly if you think you meet the criteria. If you leave a voicemail, please explain your health condition in detail. Please also tell us where you are, what you were convicted of, what court you were sentenced out of, your docket number, your parole eligibility date, your wrap-up date, and your attorney at sentencing.

All correctional facilities and prisons must report daily the following information:

  1. The overall inmate population
  2. The number of COVID-19 tests and number of positive results for all inmates, correctional staff
  3. The number of inmates who have been released

In addition, the sheriffs will also provide CPCS with the names of pretrial detainees being held at their facilities, and the offenses with which they have been charged. The ACLU of Massachusetts has created a database where it is tracking testing, positive cases, and releases in prisons and jail during the COVID-19 pandemic, as documented in reports made by Massachusetts prisons and jails to the Supreme Judicial Court (SJC).

If you have additional questions:

  1. Contact the incarcerated person’s lawyer.
  2. If the lawyer’s name is known, search for their telephone number at the BBO.

Contact the CPCS Hotline at (617-482-6212). Before calling, please gather as much of the following information as possible:

  1. Incarcerated person’s full name
  2. Name of facility where they are incarcerated
  3. Court where their case is pending or where they were sentenced and docket number
  4. Whether the case was appealed
  5. Full name of incarcerated person’s current or prior lawyer