The state's Supreme Judicial Court is hearing oral arguments calling for a release of vulnerable inmates and pretrial detainees from the state's prisons in an attempt to "flatten the curve" on Tuesday morning. WGBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and WGBH News legal analyst Daniel Medwed to learn more about what that would mean for inmates, and how it could be accomplished. The transcript below has been edited for clarity.
Joe Mathieu: First of all, what's your take on this issue in general? We've done some stories on it. Do you think that we should be releasing large portions of the prison population?
Daniel Medwed: Well, as you know, I'm not a public health expert. But I do think we should, and here's why. First, jails and prisons are basically the perfect petri dishes to allow this virus to flourish. Inmates live in close quarters [and] often under unsanitary conditions. For example, the jail in Bristol-Dartmouth on the south coast is currently operating at 278 percent of capacity, and there have been reports that inmates in two facilities at least can't access any soap, and in four facilities have no access to hand sanitizer. So not only are inmates at a heightened risk of contracting the coronavirus, but of course, so, too, are corrections officers and other prison staff who, at the end of their shifts, go home to their loved ones and to their neighborhoods.
In addition, there are many inmates, of course, who are there for nonviolent offenses and others — even if they originally were in for nonviolent offenses — they've either aged out of crime or they're infirm now and no longer pose a public safety risk. So this could be a win-win, where you advance some public health objectives without endangering the public. Now, as for the structure of these releases, you could design them as parole grants. You could release people on parole so they're still under state supervision. You could grant reprieves to people who are facing trial — that's a temporary stay in their case. Or, in some cases, you could commute their sentences — shorten the duration of the prison terms.
Mathieu: How many prisoners are we talking about here?
Medwed: Well, in Massachusetts, we have roughly 16,500 people behind bars. That's divided into 8,000 folks in state prisons, where you serve at a felony sentence, and 8,500 people in local lockup. That's where you go when you're detained prior to trial, maybe because you can't meet bail or because you're deemed too dangerous for release, or if you've been convicted of a misdemeanor and you need to serve out a short sentence.
Mathieu: Who has the power to do this? Governor Baker, or is it up to the courts in the end?
Medwed: In theory, both of them. On the one hand, Article 73 of our state constitution vests what's called the clemency power in the hands of the governor. That's the power to pardon inmates or to commute their sentences. Now, in practice, the governor doesn't have complete autonomy in this realm. He would be confined or limited by the Massachusetts Parole Board, which offers some front-end advice, and also by some back-end restrictions imposed by the governor's counsel. But in theory, yes, the governor could play a vital role in this. On the other hand, you could seek recourse in the judiciary, which is exactly what's going on today. Many stakeholders, including the ACLU and the state public defender's office, filed an emergency petition with the SJC last week, asking the court to intervene, to slow down intake at jails and to reduce the state prison population. As you noted at the top, there's an oral argument scheduled for later this morning on this topic.
Mathieu: Yeah, that's at 10:00 this morning. Daniel, what would be the legal basis for the SJC making this type of order?
Medwed: Well, technically, that petition was filed pursuant to Chapter 211, Section 3, which relates to the SJC's "superintendent's powers", the power of the court to supervise the legal system. Now, the SJC has already issued a number of dramatic and important orders. It's halted trials in the Commonwealth, it has limited access to the courthouse [and] it has shifted most litigation activity to the telephone and to video conferencing, so this would just be an outgrowth of that supervisory or superintendent's power. Technically, the legal basis is based on the idea that we're concerned about the substantive rights of inmates, that it might be an Eighth Amendment violation — cruel and unusual punishment — to subject them to a heightened risk of contracting this deadly virus.
