BOSTON — The state's highest court heard from nine lawyers Tuesday during a marathon 4-hour-plus hearing on the question of what to do with more than 16,000 inmates in Massachusetts jails and prisons during the coronavirus pandemic. 

The hearing came a week after the court had appointed a Boston attorney as "special master" in an attempt to work out an agreement. 

But it seemed no one was entirely satisfied with the result of that attorney's work, a proposal that advocates for prisoners say swings too far toward keeping people in custody, lower-level court judges saying it would take away too much of their discretion, and some of the state's prosecutors saying that would usurp their authority as elected officials and jeopardize public safety.

In a report not publicly released until just before the hearing Tuesday, Brien T. O'Connor of Ropes and Gray, the private attorney appointed as "special master," proposed a process that would exclude certain categories of offenses, including violent crimes, as well as set up a process that would require district attorneys to compile lists of anyone who would be eligible for release. 

Earlier this month lawyers filed suit seeking the immediate release of potentially thousands of prison and jail inmates who, they argued, were at risk of death due to coronavirus. 

One of the attorneys for the prisoners, Matthew Segal, said the categories of crimes that would bar inmates from release were "very broad, so broad in fact that even people that are held on bail after being deemed not dangerous would still be ineligible for release." 

Others would be unable to seek release because of a proposal that would bar them if they had served time within the prior five years. 

But justices, including the North Shore's David Lowy and Scott Kafker, suggested that the categories in the report do not preclude anyone else from asking for a hearing. 

Lawyers representing the state's trial court judges, meanwhile, said they fear that creating blanket categories of inmates who would be entitled automatically to release under various circumstances, including in cases where there is an agreement between a district attorney and a defense lawyer, would turn those judges into a "rubber stamp." 

Dan Sullivan, who spoke on behalf of the lower court chief justices and the commissioner of probation, urged the SJC to have "confidence" in them.

Releasing inmates solely on the basis of their health, for instance, "is exactly the kind of shortcut that will lead to inadvertently releasing a person who is more than capable of committing violent crime," Sullivan argued.

He also said the judges are entitled to have all the information they need to make a decision, and shouldn't be forced to rule immediately. 

"If someone is released and commits a heinous crime, it won't come back to the DA or the members of the committee, it will come back to the trial judge, and the question will be 'what did you know?'" said Sullivan. 

Worcester County prosecutor Jane Sullivan, who argued on behalf of seven district attorneys, including Essex DA Jonathan Blodgett, raised a similar argument, saying that forcing judges to release detainees due to underlying health problems, infringes on their discretion.

"The fact that someone has an underlying health condition doesn't make him any less likely to re-offend," she argued. 

Those district attorneys also say that the SJC would be violating the separation of powers outlined in the constitution if they forced their prosecutors, who are part of the executive branch, to take any particular actions.

They say that the power to alter someone's sentence, absent any error by the sentencing judge, belongs to the governor – who, Sullivan argued, could use the state's Civil Defense Act to order the release of inmates in an emergency. 

The hearing, conducted by telephone, was characterized at the outset by Chief Justice Ralph Gants as  "a rather extraordinary hearing in an extraordinary time." 

It was also conducted without any members of the press or public allowed to listen in – with Gants going on to explain that the exclusion was intended to maintain the quality of an audio recording of the proceedings, which were promised to be released within an hour of the hearing's conclusion. 

The recording of the full hearing was released three hours later. 

Courts reporter Julie Manganis can be reached at 978-338-2521, by email at or on Twitter at @SNJulieManganis. 

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