Committee for Public Counsel Services v. Chief Justice of the Trial Court (No. 2)

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

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SJC-12926

COMMITTEE FOR PUBLIC COUNSEL SERVICES & another1 vs. CHIEF

JUSTICE OF THE TRIAL COURT & others2 (No. 2).

April 28, 2020.

Committee for Public Counsel Services. Chief Justice of the

Trial Court. Commissioner of Correction. District

Attorney. Sheriff. Parole. Pretrial Detention. Supreme

Judicial Court, Superintendence of inferior courts.

Practice, Criminal, Sentence, Execution of sentence,

Parole.

The petitioners seek reconsideration or modification of our

decision in this case, which was issued on April 3, 2020.

Committee for Pub. Counsel Servs. v. Chief Justice of the Trial

Court, 484 Mass. 431 (2020). Specifically, they ask us to

reconsider our determination that neither our inherent judicial

authority nor our superintendence authority permits a judge to

stay a final sentence that is being served, absent a pending

appeal or a motion for a new trial, without violating the

separation of powers under art. 30 of the Massachusetts

Declaration of Rights. See id. at 436. The petitioners also

assert violations of this court's order with respect to

reporting requirements of information to be sent to the special

master, and, in addition, ask this court to expand the reporting

requirements so as to provide the petitioners with information

1 Massachusetts Association of Criminal Defense Lawyers.

2 Department of Correction; parole board; Attorney General;

district attorneys for the Berkshire, Bristol, Cape and Islands,

eastern, Hampden, middle, Norfolk, northern, northwestern,

Plymouth, and Suffolk districts; and fourteen sheriffs'

departments.

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that might be used to pursue other legal pathways by which the

population of those held in custody serving sentences might be

reduced.

We affirm our prior decision as to the extent of our

constitutional authority to stay final sentences absent an

ongoing challenge to the underlying conviction or a violation of

constitutional rights. Notwithstanding the petitioners'

assertion that our previous "misapprehension" of our authority

was as a result of the speed with which the decision was issued

after oral argument, the jurisprudence on this point is well-

established. We do, however, conclude that some of the

requested relief as to additional reporting requirements should

be allowed, and, accordingly, issue a revised Appendix B,

attached hereto.

As we stated in our decision, the executive branch has the

authority, inter alia, to commute sentences, issue furloughs,

and allow early parole. We urge the executive branch to

contemplate how it best might exercise those constitutional

powers to mitigate the spread of COVID-19 in the Commonwealth's

prison system.

Background. In our prior decision, we recognized that the

unprecedented and urgent conditions created by the global COVID-

19 pandemic necessitated judicial action to reduce the

population of those held in custody. Committee for Pub. Counsel

Servs., 484 Mass. at 445. Accordingly, we determined that the

advent of the pandemic amounted to a changed condition as a

matter of law, so that any individual who was being held

pretrial could seek reconsideration of the bail decision which

resulted in the pretrial detention. Id. at 435. For

individuals not charged with specified offenses as enumerated in

Appendix A, set forth in that decision, see id. at 454, we

created a strong but rebuttable presumption of release, id.

at 447 ("These categories of pretrial detainees shall be ordered

released on personal recognizance unless the Commonwealth

establishes, by a preponderance of the evidence, that release

would result in an unreasonable danger to the community or that

the individual presents a very high risk of flight").

At the same time, we determined that "[o]ur broad power of

superintendence over the courts does not grant us the authority

to authorize courts to revise or revoke defendants' custodial

sentences, to stay the execution of sentence, or to order their

temporary release unless a defendant (1) has moved under Mass.

R. Crim. P. 29, [as appearing in 474 Mass. 1503 (2016),] within

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sixty days after imposition of sentence or the issuance of a

decision on all pending appeals, to revise or revoke his or her

sentence, (2) has appealed the conviction or sentence and the

appeal remains pending, or (3) has moved for a new trial under

Mass. R. Crim. P. 30[, as appearing in 435 Mass. 1501 (2001)]."

Id. at 450.

Discussion. 1. Stays or suspensions of sentences. As the

petitioners point out, the bulk of our reasoning in the slip

opinion focused on their argument seeking a suspension of the

sixty-day time period in Mass. R. Crim. P. 29, within which a

judge may revise or revoke a sentence. See Committee for Pub.

Counsel Servs., 484 Mass. at 450. Having determined that the

sixty-day time period exists to protect the separation of

powers, we concluded that it was beyond our superintendence

authority to eliminate the requirement of a time limit. Id.

Moreover, as we noted, the conditions for which a revision may

be sought must be something that existed at the time of

conviction.3

The petitioners now ask for release, or stay, under our

inherent authority to stay sentences. We conclude that the

global stays of sentences that the petitioners request also

would co-opt executive functions in ways that are not permitted

by art. 30.

In Commonwealth v. Charles, 466 Mass. 63, 72 (2013), citing

Commonwealth v. McLaughlin, 431 Mass. 506, 520 (2000), we said

that "a judge has the inherent power to stay sentences for

'exceptional reasons permitted by law.'" We later explained the

exceptional reasons more precisely in that case by answering the

reported question, "In exceptional circumstances, a judge of the

Superior Court does have the authority to allow a defendant's

motion to stay the execution of his sentence, then being served,

pending disposition of the defendant's motion for a new

trial . . . ." Charles, supra at 79. "In the context of a

pending appeal, the practice of granting a stay of execution of

sentence 'is grounded in rudimentary notions of justice' because

a 'conviction may be reversible, but the time spent in prison is

3 In response to an issue raised by the Chief Justices of

the Trial Court, we clarify that the tolling provision of this

court's Order Regarding Court Operations under the Exigent

Circumstances Created by the COVID-19 (Coronavirus) Pandemic,

dated April 1, 2020; our updated order, dated April 27, 2020;

and any similar orders subsequently issued, apply to motions

filed under Mass. R. Crim. P. 29.

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not.'"4 Id. at 77, quoting Commonwealth v. Levin, 7 Mass. App.

Ct. 501, 512-513 (1979). See Charles, supra at 78 (elaborating

on key fact that defendant's "motion for a new trial has

presented an issue that 'offers some reasonable possibility of a

successful decision" [quotation omitted]).

Other than in circumstances where the validity of the

underlying conviction is being questioned, however, the

petitioners have not put forth anything to indicate that this

court has inherent authority to stay, across the board, all

sentences that are being executed for certain groups of

incarcerated individuals, or to create a presumption of stay for

those individuals. For even in the broadest formulation of our

inherent power, any stay, even those granted in exceptional

circumstances, must be "permitted by law." See Charles, 466

Mass. at 72; art. 30 ("the judicial [department] shall never

exercise the legislative and executive powers, or either of

them").

The power to stay sentences in the absence of a challenge

to the underlying conviction after the time period of Mass. R.

Crim. P. 29 has expired lies in the executive branch. "In

Commonwealth v. O'Brien, [175 Mass. 37, 39 (1899)], the court

said that [Commonwealth v. Hayes, 170 Mass. 16 (1897)] implies

that, under the statute," the power of the court after all

appeals have been decided "to vacate the order staying the

sentence, and to order the sentence executed, does not extend so

far as to permit a further stay of the sentence on independent

grounds not affecting the legality or propriety of the

conviction." McLaughlin, 431 Mass. at 517. "That is a strong

indication that trial judges lack authority to stay execution of

sentence on independent grounds not affecting the legality or

propriety of the conviction" (quotation omitted). Id., and

cases cited. We follow this strong indication here. See

Peterson v. Hopson, 306 Mass. 597, 601–602 (1940), and cases

4 We recognize the petitioners' assertion that an untimely

death is even less reversible than time spent in prison. As the

petitioners note, a claim of substantial and unmitigated risk of

harm or death is the gravamen of another emergency petition now

pending before this court, seeking class certification and a

preliminary injunction on the ground of violations of the

provision against cruel and unusual punishment under the Eighth

Amendment to the United States Constitution. See Foster vs.

Commissioner of Correction, No. SJC-12935. That claim is the

proper vehicle by which to seek injunctive relief.

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cited; Jamnback v. Aamunkoitto Temperance Soc'y, Inc., 273 Mass.

45, 50 (1930).5

The petitioners contend that this court should consider the

pending claims for declarative relief in another case, Foster

vs. Commissioner of Correction, No. SJC-12935, as a challenge to

all of the underlying convictions of all individuals serving

sentences, so as to satisfy the requirements of Mass. R. Crim.

P 29. This contention is unavailing. First, there is no

challenge in that case to the underlying convictions of any

individual; rather, the complaint seeks declaratory relief.

Granting a stay without such a challenge essentially amounts to

granting a furlough, which lies within the purview of the

executive branch. Thus, if a judge were to suspend execution of

a sentence that is being served, without any pending motion

challenging the conviction or the validity of the sentence when

it was imposed, there could be a significant issue with art. 30

and the separation of powers. Moreover, the parties, and the

incarcerated individuals represented by the plaintiffs in the

two cases, are not the same. In any event, we decline the

petitioners' urging that we order trial judges to suspend

sentences for large groups of inmates, or to act on a

presumption that sentences should be suspended.

5 Specifically with respect to Mass. R. Crim. P. 29, in

addition to the sixty-day filing limitation, a judge must

consider a motion to revise or revoke a sentence within a

reasonable time after the motion is filed. See Commonwealth. v.

DeJesus, 440 Mass. 147, 150-151 & n.7 (2003). See, e.g.,

Commonwealth v. Barclay, 424 Mass. 377, 380–381 (1997) (six-year

delay between defendant's sentencing and consideration of motion

to revise or revoke was unreasonable); Commonwealth v. Layne,

386 Mass. 291, 295–296 (1982) (stressing that '[w]ith the

passage of time from the date of sentencing, it becomes

increasingly difficult for a trial judge to make the

determination called for by the rule without improperly

considering postsentencing events"); K.B. Smith, Criminal

Practice and Procedure § 2028 (2d ed. 1983 & Supp. 2003). But

see Commonwealth v. McGuinness, 421 Mass. 472, 473 n.2 (1995)

("Rule 29 of the Massachusetts Rules of Criminal

Procedure, . . . requires that a motion to revise or revoke must

be filed within sixty days of the imposition of a sentence.

However, under this rule, once the motion is filed, a judge may

act on it at any time. See Reporters' Notes to Mass. R. Crim.

P. 29(a)").

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2. Motions for funds. The petitioners assert that motions

for funds for social workers and others who are needed to

establish medical parole eligibility or to put in place release

plans for paroled individuals are not being heard, or are being

denied, and that hearings are not taking place in a timely

manner. Due to the extraordinary nature of this pandemic, we

exercise our superintendence authority to require the trial

court departments to develop procedures to enable counsel to

seek expedited approval of such funds for those who are being

held pretrial, those who are civilly committed for substance

abuse treatment, and those who are serving a committed sentence.

3. Medical records. The petitioners assert that numerous

incarcerated individuals continue to experience difficulties in

obtaining copies of their medical records from the institutions

in which they are being held. According to the petitioners,

"some [institutions] are even requiring attorneys to mail

medical releases to clients." At the same time, other

institutions have been permitting attorneys to request medical

records and medical releases by electronic mail. All

correctional facilities shall accept requests by electronic

mail, and shall make copies of medical records immediately

available to the incarcerated person upon request, or to the

individual's attorney upon request accompanied by signed

permission by the incarcerated person. Because attorneys may

not visit incarcerated individuals at this time, the

institutions shall obtain the necessary permissions for medical

releases directly from the individuals; such permissions shall

be sought expeditiously upon request by the attorney.

4. Reporting requirements. In our decision in this case,

we agreed that the potential spread of COVID-19 through jails

and prisons in the Commonwealth created a situation that is

"urgent and unprecedented, and that a reduction in the number of

people who are held in custody is necessary." See Committee for

Pub. Counsel Servs., 484 Mass. at 445. To facilitate this

reduction, the petitioners request additional information from

the respondents in order effectively to exercise legal channels

by which inmates may pursue release. For example, they seek the

identity of those who are serving sentences in houses of

correction who have not reached their parole eligibility dates,

but who are eligible for early consideration pursuant to 120

Code Mass. Regs. § 200.10 (2017). We agree that it is important

that the petitioners are able to explore every extant legal

mechanism by which to reduce the population of incarcerated

individuals. Accordingly, the reporting requirements in

Appendix B, as set forth in our decision, see Committee for Pub.

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Counsel Servs., supra at 456, shall be amended to enable counsel

more readily to identify those individuals. See infra.

Similarly, with respect to individuals who are incarcerated

pending a final probation violation hearing or on a technical

parole violation, the reporting requirements set forth in

Appendix B also shall be amended. See infra.

The petitioners also assert delays and a lack of compliance

with the reporting requirements we previously ordered. To the

extent that they have information about particular instances of

such noncompliance, as we stated in our decision, the proper

channel by which to address such issues is to bring these

concerns to the special master, who may be able to investigate

and facilitate a resolution.

5. Timeliness of hearings on Mass. R. Crim. P. 29 motions.

The petitioners assert that responses to emergency motions for

resentencing under Mass. R. Crim. P. 29 have been delayed, and,

once responses are received, hearings on the motions also have

been delayed. We emphasize that responses should be filed

promptly and that hearings should be held expeditiously

thereafter, in conformance with the guidelines promulgated by

the trial court departments. As stated, see note 3, supra,

these motions are subject to the tolling provisions of this

court's orders regarding court operations under the exigent

circumstances created by the COVID-19 pandemic.

So ordered.

The case was submitted on briefs.

Rebecca A. Jacobstein, Benjamin H. Keehn, Rebecca Kiley,

& David Rassoul Rangaviz, Committee for Public Counsel Services,

for Committee for Public Counsel Services.

Matthew R. Segal, Jessie J. Rossman, Laura K. McCready,

Kristin M. Mulvey, Chauncey B. Wood, & Victoria Kelleher for

Massachusetts Association of Criminal Defense Lawyers.

David C. Kravitz, Deputy State Solicitor, for the Attorney

General.

Daniel P. Sullivan, Special Assistant Attorney General, for

Chief Justice of the Trial Court.

Charles W. Anderson, Jr., for Department of Correction.

Shara Benedetti for parole board.

Rachael Rollins, District Attorney, & Cailin M. Campbell,

Assistant District Attorney, for district attorney for the

Suffolk district.

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Thomas M. Quinn, III, District Attorney, Jonathan Blodgett,

District Attorney, Anthony D. Gulluni, District Attorney, Joseph

D. Early, District Attorney, Michael W. Morrissey, District

Attorney, & Timothy J. Cruz, District Attorney, for the district

attorney for the Bristol district & others.

Dan V. Bair, II, Special Assistant Attorney General,

& Robert Harnais for fourteen sheriffs' departments.

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Appendix B (AMENDED).

REPORTING REQUIREMENTS

1. In order to effectuate the purposes of this decision

and the underlying public health goals, while the COVID-19 state

of emergency remains in effect, the court asks the Department of

Correction (DOC) and each sheriff to provide daily reports to

the special master, the probation service, the district

attorneys, and Committee for Public Counsel Services (CPCS),

identifying:

a. The over-all inmate population;

b. The number of COVID-19 tests and number of positive

results for all inmates, correction officers, or other staff

members, including contactors, by facility; and

c. The number of inmates who have been released pursuant

to the procedures or guidance set forth in this decision.

2. In addition to the above, the sheriffs also shall

provide the special master, the probation service, the district

attorneys, and CPCS daily census reports containing the names of

pretrial detainees, the docket numbers in the cases for which

they are being held, and the offenses with which they have been

charged.

3. The probation department shall provide daily reports to

the special master, the district attorneys, CPCS, and each

sheriff containing the identity and relevant docket numbers for

any individual awaiting a preliminary hearing or a final

revocation hearing for an alleged violation of probation.

4. The parole board shall provide weekly reports to the

special master, the district attorneys, CPCS, the sheriffs, and

the DOC, containing the identities of:

a. Incarcerated individuals serving a sentence in a house

of correction who have not yet reached their initial parole

eligibility date, but who are eligible to submit a petition to

the parole board for early consideration pursuant to 120 Code

Mass. Regs. § 200.10(3) (2017);

b. All incarcerated individuals who have received a

positive vote for parole but who have not yet been released;

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c. All incarcerated individuals who have received a

positive vote for parole but for whom release is contingent upon

completing a particular program or spending time in a lower

security facility, who with counsel could seek reconsideration

of the parole contingency under 120 Code Mass. Regs. § 304.03

(2017);

d. All incarcerated individuals whose parole was revoked

and who are serving time for a technical violation of parole.

e. Any individuals who previously have submitted a

petition for medical parole, regardless of the outcome of that

petition, and who remain incarcerated.