In Amicus Brief, Public Health Experts Urge More Releases, COVID Testing In County Jails

On December 24, 2020 — exactly nine months after the Committee for Public Counsel Services (CPCS), the Massachusetts Association of Criminal Defense Lawyers (MACDL), and the American Civil Liberties Union of Massachusetts (ACLUM) initially filed an emergency petition imploring the Massachusetts Supreme Judicial Court to take immediate action to limit the spread of COVID-19 by reducing the number of people in the Commonwealth’s jails, prisons, and houses of correction — CPCS, MACDL, and ACLUM filed a complaint for declaratory and injunctive relief before a Single Justice of the Mass. Supreme Judicial Court alleging that Massachusetts sheriffs have shown deliberate indifference to serious risk of medical harm to incarcerated and detained people throughout the Commonwealth, violating the 8th and 14th Amendments to the U.S. Constitution.

Back in March, the Houston Institute represented a group of 14 public health experts as amici curiae in support of the original emergency petition. The letter we filed noted that prisons and jails are particularly dangerous places for rapidly spreading infections; Massachusetts disproportionately incarcerates people who are particularly vulnerable to severe, even life-threatening, cases of COVID-19, whether because of structural racism, disparate incarceration, and inequitable access to healthcare and other social determinants of health, or because of exposure to air pollution, a history of smoking, age, and/or chronic illness; and incarcerated people are especially vulnerable to COVID-19 due to immutable conditions of confinement, well-documented unhygienic environments, and inadequate medical care in carceral facilities. Our conclusion: the safest response is to release as many people as practicable to self-isolate, especially those who are vulnerable due to health or age, and reduce the flow of new people into jails and prisons. In early April, after the case was fully briefed and argued within the span of just ten days, the Supreme Judicial Court agreed and created a process for presumptive releases for certain people held pretrial.

Nevertheless, nine months later and after two people have died in county jails from COVID-19, the jail population throughout the Commonwealth is higher today than it was when the Supreme Judicial Court first rendered a decision. Accordingly, on Friday, January 15th, we filed another brief as amici curiae on behalf of the same group of public health experts explaining that the pandemic is more dire now than when the court first took action, ensuring access to vaccines for incarcerated people is vital but – especially given legitimate medical distrust among jail populations – vaccines are not a panacea, decarceration remains the gold standard public health intervention in correctional environments, and routine staff testing is a necessary component of risk mitigation to prevent future outbreaks.

Depopulation remains the most effective way to protect public health in congregate environments—especially prisons and jails with limited ventilation, open communal toilets, high concentrations of medically vulnerable and elderly people, deficient medical care, and environments where physical distancing is nearly impossible. Depopulation and vaccination work hand-in-hand. For vaccines to do their job, we need to provide conditions so that they can succeed—chiefly, population decompression to enable physical distancing.

Read our brief: