SEVERAL JUSTICES of the Supreme Judicial Court on Tuesday appeared skeptical of claims that county jails are showing deliberate indifference to prisoners by failing to provide regular COVID-19 testing and, in some cases, appropriate videoconferencing opportunities. 

Justice Scott Kafker, questioning attorney Jessie Rossman of the ACLU, who was representing the Massachusetts Association of Criminal Defense Lawyers, said Massachusetts offers a vaccine to every inmate who wants one, making it hard to argue that the sheriffs are “deliberately indifferent” to prisoners’ health.  

With vaccination rates rising, Kafker said, the attorneys had a better argument months ago. “It seems like you’re swimming against the tide here of fact,” Kafker said.  

The Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers sued the state’s 13 sheriffs, who operate the county jails, seeking to require the jails to conduct weekly COVID surveillance testing of all inmates. Their brief says that inmates are particularly susceptible to COVID because they live in close quarters, and CDC guidance indicates screening is essential to stop the virus’s spread. Surveillance testing of staff and inmates is one option laid out by the CDC for prisons, in addition to testing at intake and testing an entire unit when an infection is identified. 

What we now know is screening testing is essential to stop the spread of COVID-19 in jails and prisons,” Rossman said in court.  

But the sheriffs say they are relying on guidance from the state Department of Public Health, which does not require them to conduct surveillance testing. Assistant Attorney General Dan Bair, representing the sheriffs, said testing of all prisoners provides a snapshot in time and gives a “false sense of security.” The jails instead test people who are symptomatic or who were exposed to someone with COVID-19. Some jails have tested entire units following outbreaks.  

“We’re following the guidance of DPH,” Bair said. “They are the experts. If they told us to engage in serial screening testing, we would do it.” 

Bair questioned the wisdom of requiring surveillance testing as the pandemic is easing. “We have inmates who have endured being isolated, not having visitations,” Bair said. “Just as these restrictions are easing up, just as we are attempting to convince them to be vaccinated… now we’re going to institute an invasive test once per week?” 

During oral arguments, several justices expressed skepticism that the defense lawyers could meet the legal standard of showing that the sheriffs are demonstrating “deliberate indifference” to the health of inmates when any prisoner can get a COVID-19 vaccine. 

Justice Frank Gaziano called vaccinations the “elephant in the room” and said they were “a checkmark in respondents’ column,” meaning a point in favor of the sheriffs. He noted that in some states, defense attorneys are suing for access to vaccines, while Massachusetts prioritized vaccinating prisoners.  

Kafker, while questioning Bair about why the jails are not doing surveillance testing, said, “It is difficult to argue that more testing isn’t better.” But, he added, “Whether it’s deliberate indifference, I have a great deal of skepticism about.” 

Justice Dalila Wendlandt said her focus is on improving case numbers. According to the sheriffs’ brief, only 13 county jail inmates have been hospitalized due to COVID-19 and only two died throughout the pandemic. Although the jails overall have reported around 1,700 inmate cases and 1,300 staff cases,  only eight inmates and three staff had the virus during the week of May 6. The jails have taken precautions such as cleaning, issuing protective equipment, limiting visitors, moving to single cells, and isolating sick prisoners.  

“The trend is downwards,” Wendlandt said. “The measures implemented by the houses of correction, apparently they seem to be working.” 

When Rossman argued that there could still be asymptomatic spread, and even mild illness can lead to long-haul symptoms, Wendlandt pointed out that the jails are offering vaccines. “Why isn’t that the cure?” Wendlandt asked. “Anyone worried about long haul problems has that option.”  

The defense attorneys note that there is a high rate of vaccine refusal among correction officers, with more than 1,600 staff refusals among nine county jails. Four sheriffs do not report those numbers. 

As of May 12, according to the sheriffs’ brief, 3,600 inmates had gotten one shot of the Moderna vaccine, and nearly 2,900 inmates had gotten both doses. There were 4,500 inmates who refused the vaccines. Over 4,300 staff had gotten one shot and 4,000 had gotten a second dose.  

Rossman acknowledged that the context has changed since the case was first filed in December. 

The issue of vaccines also factored into arguments over videoconferencing. The defense attorneys say Essex and Bristol counties are still failing to provide “meaningful and confidential modes of communication between incarcerated people and their lawyers” during the pandemic, according to court briefs. Essex County has limited videoconferencing software, which does not allow screen sharing and does not let a third party, like an interpreter, call in. Bristol County has said it lacks the technology to offer any videoconferencing. 

Bair argued that both counties are now “open for business” offering in-person visits to attorneys, just as they did pre-pandemic. “The pandemic’s easing, everyone who wants to be vaccinated can be vaccinated, and ultimately they can enter into the facility and conduct business as usual,” Bair said. 

Rebecca Jacobstein, an attorney for the Committee for Public Counsel Services, argued that some attorneys are still uncomfortable entering the jail. Even if an attorney is vaccinated, they may have a medical condition that makes them more vulnerable. 

Jacobstein also noted that both inmates and correction officers are among the populations who are least likely to be vaccinated. “We are vaccinated, and we would hope that our clients are getting vaccinated. But there is definitely a great disparity in Massachusetts and everywhere, where certain people are getting vaccinated and certain people are not,” she said. 

Jacobstein portrayed the need for videoconferencing as a “stopgap measure” until attorneys, and outside experts and interpreters, can be more confident that they will not contract COVID-19 or pass it on by visiting a client in prison. Even once someone is vaccinated, Jacobstein said, “It’s low risk when you’re vaccinated. It’s not no risk.”  

But both Kafker and Wendlandt pressed Jacobstein on why individual cases – like an attorney with an underlying medical condition – cannot be addressed through an individual accommodation, rather than establishing a constitutional precedent requiring sheriffs to provide videoconferencing.  

“You can get vaccinated, your client can get vaccinated, you can put on your mask, insist your client is wearing a mask, you have the option of meeting in person,” Kafker said. “We’re still going to find at this time with those options that the right to counsel is being deprived? It just seems like it’s an uphill climb.” 

Justice Elspeth Cypher questioned the implications for other professions if defense attorneys could establish a right to videoconferencing to avoid a low-risk situation. “What do we do with teachers, firefighters, police officers who face similar situations, who might not be in prison, but in doing their jobs, they’re still at risk?” Cypher asked.