ATTORNEYS FOR for 11 prisoners accused the Massachusetts Department of Correction on Wednesday of deliberate indifference to a provision in the state budget requiring the release of inmates during the pandemic, but state officials said the law isn’t absolute and gives them wide discretion.

Superior Court Judge Robert Ullmann heard testimony from both sides on Wednesday, and took the matter under advisement.

Part of the claim from Prisoners’ Legal Services, representing the inmates, now includes whether the Department of Correction ignored legislation passed in December that says DOC Commissioner Carol Mici “shall release, transition to home confinement, or furlough individuals in the care and custody of the department who can be safely released, transitioned to home confinement, or furloughed with prioritization given to populations most vulnerable to serious medical outcomes associated with COVID-19 according to the Centers for Disease Control and Prevention’s guidelines.”

The agency says Mici has discretion to determine who can be safely released. “That is exactly what the budget language calls on Commissioner Mici to do – to exercise her discretion, to determine which inmates can be released safely and absent a finding by her that an inmate can be released safely, they’re not going to be released to the public,” said Stephen Dietrich, an attorney representing the DOC.

Dietrich said Mici is charged with the well-being of the prison population and public safety. “She needs to wear both hats,” he said. “And that’s exactly what she’d done in this case before the budget language came out and after the budget language.”

Since December, the Department of Correction has released four prisoners to home confinement through an electronic ankle bracelet monitoring program, which officially launched on February 7 after delays. The organization has also identified about 25 minimum security inmates who can potentially be sent to approved homes until the pandemic is over. What hasn’t been addressed is how or if to release medium and maximum security prisoners, who comprise a large chunk of the 6,500-inmate population.

“We have a constitutional claim of deliberate indifference,” said Bonnie Tenneriello, an attorney with Prisoners’ Legal Services. “Even before this law, as COVID raged out of control in the DOC throughout the fall and winter, the DOC has continued to reject steps to reduce its population.”

She alleged existing DOC measures have failed to control the virus, and the current home confinement program is “token.” She said the DOC’s recent decision to close two minimum security facilities and transfer prisoners to other facilities endangered the inmates by moving them from single to double cells holding multiple people, increasing their likelihood of being unable to social distance.

Tenneriello told Ullmann he shouldn’t wait to see if COVID-19 vaccinations at the facilities improve the situation. “The delay has already cost lives,” she said, noting that 13 prisoners have died since September 30, and spikes in cases continue to happen.

Dietrich said there has been a 17 percent drop in the prison population since April 2020, and that should be taken into consideration when weighing the claim of deliberate indifference. Dietrich also said there were zero cases of COVID-19 at prison facilities for three months during the summer, another positive indicator. Currently, there are 96 active cases, he said, and most are in two facilities.

Tenneriello said the reduction in prison population took place before the fall surge and was not enough to keep the virus at bay. She said there have been numerous outbreaks at multiple facilities.

Dietrich said the fall spike in cases could be attributed to “the entire country undergoing the worst surge in the history of the pandemic. And rather than that DOC numbers reflect deliberate indifference, they instead reflect and mirror the community spread, over which DOC had no control over.”

Dietrich said 32 out of 38 prisoners who had filed affidavits to the court raising COVID concerns had not filed official grievances with the agency, so their complaints should be thrown out because the DOC would technically have no idea what it was being indifferent to. Ullmann indicated the failure to file grievances with DOC “would have some bearing on whether DOC was deliberately indifferent.”

The DOC insisted the distribution of COVID-19 vaccines to inmates and staff – ahead of most of the general public – shows the agency is not indifferent to the welfare of inmates. “That’s a game changer,” said Deitrich.

Asked by Ullmann if he should consider waiting to see if more prisoners get the first dose, or if the infection rate starts to decrease, Tenneriello said, “the delay has already cost lives,” and said he should proceed quickly. 

When Ullmann expressed concern over the Supreme Judicial Court’s report that over 50 percent of correctional officers were refusing to be vaccinated, Dietrich suggested the number might actually be higher.

“That does not reflect staff who may have been vaccinated at some other sites other than at a DOC site. They’re under no obligation to report the fact that they’ve been vaccinated. So that number reflects a staff vaccinated by the DOC. The total number could be a higher number,” he said.