NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12926

  COMMITTEE FOR PUBLIC COUNSEL SERVICES & another1 vs.     CHIEF
             JUSTICE OF THE TRIAL COURT & others.2



            Suffolk.    March 31, 2020. - April 3, 2020.

        Present:   Gants, C.J., Gaziano, Lowy, Budd, Cypher,
                            & Kafker, JJ.


Committee for Public Counsel Services. Chief Justice of the
     Trial Court. Commissioner of Correction. Sheriff.
     Parole. Pretrial Detention. Practice, Criminal, Sentence,
     Parole.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 24, 2020.

    The case was reported by Budd, J.


     Matthew R. Segal (Jessie J. Rossman also present) for
Massachusetts Association of Criminal Defense Lawyers.
     Rebecca A. Jacobstein, Committee for Public Counsel
Services (Benjamin H. Keehn, Committee for Public Counsel


    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.
                                                                   2


Services, also present) for Committee for Public Counsel
Services.
     Eric A. Haskell, Assistant Attorney General (David C.
Kravitz & Mindy S. Klenoff, Assistant Attorneys General, also
present) for the Attorney General.
     Daniel P. Sullivan for Chief Justice of the Trial Court.
     Charles W. Anderson, Jr., for Department of Correction.
     Gloriann Moroney for parole board.
     Donna Jalbert Patalano, Assistant District Attorney, for
district attorney for the Suffolk district.
     Thomas D. Ralph, Assistant District Attorney (Marian T.
Ryan, District Attorney, also present) for district attorney for
the northern district & others.
     Jane A. Sullivan, Assistant District Attorney (Elizabeth
Dunphy Farris, Assistant District Attorney, also present) for
the district attorney for the middle district & others.
     Robert W. Harnais (Dan V. Bair, II, also present) for
fourteen sheriff's departments.
     Andrea Harrington, District Attorney for the Berkshire
District, was present but did not argue.
     Robert A. Jones & Joshua S. Levy, for the special master,
were present but did not argue.
     The following submitted briefs for amici curiae:
     Katharine Naples-Mitchell for Mary T. Bassett & others.
     Ruth Greenberg for Joseph Buckman & others.
     Max Bauer for Dominick Donovan & others.
     Liam T. Lowney, pro se.
     Michael Cox, pro se.
     Andrea James, Joneisha James, Stacey Borden, Robert
Williams, Suzanne Gray, Michael Gray, Kathleen Mahan, Adelcia
Miller, Damaris Muhammed, Brooke Hadley, Reyna M. Ramirez,
Lauren Petit, Khadejah Al-Rijleh, Casandra Scarlet, Erika N.,
Paige Scott, Aaron Bray, Nana Yankah, Marsophia S. Ducheine,
L.B., L.M., J.C., Lor Holmes, J.D., W.H., K.L., S.P., Joan
Hunter, R.R., T.B., J.G., Selena Williams, Keondra Jean, J.B.,
Jude Glaubman, Nicole Sadler, Mallory Hanora, Jurrell Laronal,
Annette Bartley, Fernando Phillips, Miles McKinney, Carlos R., &
Ayana Aubourg, pro se.
     Leon Smith for Citizens for Juvenile Justice.
     Elizabeth Matos, James Pingeon, Bonita Tenneriello, & Jesse
White for Prisoners' Legal Services of Massachusetts.
     Phillip Kassel, Jennifer Honig, Coco Holbrook, & Caitlin
Parton for Mental Health Legal Advisors Committee.
     Christine M. Netski, Meredith Shih, David M. Siegel, &
Martin F. Murphy for Boston Bar Association.
     Jessica L. LaClair for Jose Rivera.
                                                                     3



     GAZIANO, J.    The 2020 COVID-19 pandemic has created

enormous challenges for every aspect of our communities.     While

scientists are racing to discover whether any existing drugs can

help to treat the virus and improve outcomes for critically ill

patients, and others are working at top speed to develop a

vaccine, currently there is no cure and no vaccine.    Health care

workers on the frontlines of the epidemic are coming down with

the virus in much higher percentages than others, while surgical

masks and other basic protective equipment are in short supply,

and hospitals with already close-to-capacity intensive care unit

beds confront the possibility of inadequate resources to care

for critically ill patients, such as lack of needed ventilators.

Everyday life is heavily disrupted; most businesses, schools,

and houses of worship are closed,3 while grocers, pharmacies, and

delivery services stretch to provide essential services to meet

basic needs, and families without paychecks worry about how to

meet those needs.   The Centers For Disease Control (CDC)

guidelines recommend that, to avoid exposure, individuals limit

contact with others, maintain a distance of at least six feet

from other individuals if they are together, engage in frequent


     3 See Order Extending the Closure of Certain Workplaces and
the Prohibition of Gatherings of More than 10 People, COVID-19
Order 21 (Mar. 31, 2020), https://www.mass.gov/doc/march-31-
2020-essential-services-extension-order [https://perma.cc/SU87-
GTAV].
                                                                      4


handwashing, and clean and disinfect frequently touched surfaces

daily in order to "flatten the curve," i.e., to reduce the

number of cases the beleaguered health care system must treat at

any one time.

     On March 10, 2020, the Governor declared a state of

emergency to support the Commonwealth's response to the threat

of COVID-19.    On March 11, 2020, the World Health Organization

formally declared the expanding spread of the COVID-19 virus a

global pandemic.    Since then, infections have spread alarmingly,

rapidly, and at an increasing rate, both in Massachusetts and

throughout the world.     In an attempt to mitigate the spread of

the disease, the Governor has imposed strict restrictions on

many aspects of everyday life, including closing business and

schools and stringently restricting public and private

gatherings.     In the week between the filing of this petition and

oral argument, confirmed cases in the Commonwealth increased

more than eight-fold, from 777 cases to 6,620 cases.4




     4 Of course, during that same period, the number of people
tested also has increased exponentially, as more laboratories
have begun processing tests. For example, in one day, March 26,
2020, 5,570 more tests were processed by the Department of
Public Health than had been processed the previous day. Prior
to that, between March 23 and 24, the number of residents tested
doubled in two days, from 6,004 to 13,749. According to the
Department of Public Health, more than 46,000 people in the
Commonwealth had been tested as of March 31, 2020, resulting in
6,620 positive tests.
                                                                    5


    Pursuant to its supervisory authority, this court has

issued a series of orders with respect to court proceedings, new

filings, and trials, designed to "protect the public health by

reducing the risk of exposure to the virus and slowing the

spread of the disease."   As the health crisis has deepened, we

have been forced to limit physical access to our court houses to

address only "emergency matters that cannot be resolved through

a videoconference or telephonic hearing, either because such a

hearing is not practicable or because it would be inconsistent

with the protections of constitutional rights," and have

directed each trial court department to issue a standing order

to determine what constitutes an emergency matter.   Each trial

court department subsequently has done so.    We have emphasized,

as well, that, "[i]n criminal cases, where appropriate, a

defendant may ask the court for reconsideration of bail or

conditions of release."

    The petitioners, the Committee for Public Counsel Services

(CPCS) and the Massachusetts Association of Criminal Defense

Lawyers (MACDL), bring our focus to the situation with respect

to COVID-19 confronting individuals who are detained in jails

and houses of correction pending trial, and individuals who have

been convicted and are serving a sentence of incarceration in

the Commonwealth.   To allow the physical separation of

individuals recommended by the CDC, the petitioners seek the
                                                                   6


release to the community of as many individuals as possible as

expeditiously as possible, indeed, on the day of argument in

this case, according to one of them.   They offer a number of

different legal theories under which a broad-scale release might

be accomplished.

     We conclude that the risks inherent in the COVID-19

pandemic constitute a changed circumstance within the meaning of

G. L. c. 276, § 58, tenth par., and the provisions of G. L.

c. 276, § 557.   To decrease exposure to COVID-19 within

correctional institutions, any individual who is not being held

without bail under G. L. c. 276, § 58A, and who has not been

charged with an excluded offense (i.e., a violent or serious

offense enumerated in Appendix A to this opinion) is entitled to

a rebuttable presumption of release.   The individual shall be

ordered released pending trial on his or her own recognizance,

without surety,6 unless an unreasonable danger to the community




     5 The petitioners further request that this court vacate all
bench warrants and order the trial courts to cease issuing new
bench warrants; suspend all conditions of probation that would
violate the CDC's recommended physical distancing; and vacate
probation orders that would require immediate detention. Based
on the record and the affidavits before us, which suggest that
actions already are happening to the extent consistent with
public safety, we decline to order further relief.

     6 Conditions of release may be imposed, consistent with
current limitations on probation supervision and global
positioning system monitoring restrictions.
                                                                      7


would result, or the individual presents a very high risk of

flight.

     The special master previously appointed by this court in

conjunction with this case will work at the county level with

each relevant court to facilitate these hearings.7    The sheriffs

of each county shall provide the special master daily census

reports for each correctional institution, and the special

master shall file weekly reports with this court, as detailed in

Appendix B to this opinion, so that the court will be better

positioned to respond to further changes in this rapidly-

evolving situation.   In addition, the Department of Correction

(DOC) shall furnish the special master daily reports of inmate

counts and rates of COVID-19 cases at each facility, as

explained in Appendix B.

     With respect to those individuals who are currently serving

sentences of incarceration, absent a finding of a constitutional

violation, our superintendence power is limited.     Those who have

been serving sentences for less than sixty days may move to have

their sentences revised or revoked under Mass. R. Crim. P. 29,

as appearing in 474 Mass. 1503 (2016) (Rule 29).     Those who are




     7 We acknowledge the extraordinary efforts of the special
master, Brien T. O'Connor, who, together with his colleagues at
Ropes and Gray, LLP, already has worked tirelessly with the
parties to draft a report and recommendation for our
consideration prior to argument in this case.
                                                                   8


pursuing appellate proceedings or a motion for a new trial may

seek a stay of execution of sentence pursuant to Mass. R. A. P.

6, as appearing in 481 Mass. 1608 (2019).   See Commonwealth v.

Charles, 466 Mass. 63, 83 (2013).   Where there is no

constitutional violation, however, art. 30 of the Massachusetts

Declaration of Rights precludes the judiciary from using its

authority under Rule 29 to revise and revoke sentences in a

manner that would usurp the authority of the executive branch.

Removing any limitation on the time in which a motion to revise

and revoke a sentence may be brought, however, would do

precisely that.   See Commonwealth v. McCulloch, 450 Mass. 483,

488 (2008), quoting Commonwealth v. McGuinness, 421 Mass. 472,

476 n.4 (1995) ("A judge may not interfere with the executive

function of the parole board by using postconviction evidence in

an order to revise and revoke").

    To afford relief to as many incarcerated individuals as

possible, the DOC and the parole board are urged to work with

the special master to expedite parole hearings, to expedite the

issuance of parole permits to those who have been granted

parole, to determine which individuals nearing completion of

their sentences could be released on time served, and to

identify other classes of inmates who might be able to be
                                                                    9


released by agreement of the parties, as well as expediting

petitions for compassionate release.8

     As the petitioners have argued, and the respondents agree,

if the virus becomes widespread within correctional facilities

in the Commonwealth, there could be questions of violations of

the Eighth and Fourteenth Amendments to the United States

Constitution and art. 26 of the Massachusetts Declaration of

Rights; nonetheless, at this time, the petitioners themselves

clarified in their reply brief and at oral argument that they

are not raising such claims.

     1.   Background.   a.   COVID-19 in jails and prisons.   All

parties agree that, for several reasons, correctional

institutions face unique difficulties in keeping their

populations safe during this pandemic.    First, confined,

enclosed environments increase transmissibility.    Maintaining

adequate physical distance, i.e., maintaining six feet of

distance between oneself and others, may be nearly impossible in

prisons and jails.   Second, proper sanitation is also a

challenge; the petitioners have submitted affidavits from




     8 We acknowledge the amicus letters of the Boston chapter of
Black and Pink, Joseph Buckman and others, Citizens for Juvenile
Justice, Dominick Donovan and others, the families of certain
incarcerated loved ones, Massachusetts Office for Victim
Assistance, Mental Health Legal Advisors Committee, Prisoners
Legal Services, certain public health professionals, and Jose
Rivera.
                                                                     10


Department of Public Health (DPH) officials stating that, during

recent routine inspections of Massachusetts correctional

institutions (prior to the declaration of emergency), DPH

inspectors discovered a concerning number of repeat

environmental health violations.

    Finally, while many people who contract COVID-19 are able

to recover without the need for hospitalization, those who

become seriously ill from the virus may require hospitalization,

intensive treatment, and ventilator support.    Severe cases are

most likely to occur among the elderly and those with underlying

medical conditions.   Those in prisons and jails have an

increased prevalence, relative to the general population, of

underlying conditions that can make the virus more deadly.      The

DOC and the petitioners agree that hundreds of those

incarcerated in the Commonwealth suffer from chronic diseases,

and nearly 1,000 incarcerated individuals are over sixty years

of age.

    Experts warn that an outbreak in correctional institutions

has broader implications for the Commonwealth's collective

efforts to fight the pandemic.     First, the DOC has limited

capacity to offer the sort of specialized medical interventions

necessary in a severe case of COVID-19.     Thus, as seriously ill

individuals are transferred from correctional institutions to

outside hospitals, any outbreak in a correctional institution
                                                                  11


will further burden the broader health care system that is

already at risk of being overwhelmed.   Second, correctional,

medical, and other staff enter and leave correctional

institutions every day.   Should there be a high concentration of

cases, those workers risk bringing infections home to their

families and broader communities.

     b.   Response to COVID-19 by courts and correctional

institutions.   In response to the COVID-19 pandemic, and

pursuant to orders of this court, the Superior Courts, the

District Courts, the Boston Municipal Court, and the Juvenile

Courts remain open for in-person proceedings only for emergency

matters that cannot be resolved remotely.9   The courts are

deciding motions related to COVID-19, including motions for

release and motions for bail reduction, via remote hearings or

based on the pleadings and without argument.10




     9 See Superior Court Standing Order 3-20 (Mar. 17, 2020);
District Court Standing Order 2-20 (Mar. 18, 2020); Boston
Municipal Court Standing Order 3-20; Juvenile Court Standing
Order 3-20 (Mar. 25, 2020). These emergency matters include
arraignments.

     10The Superior Court has reported to this court that, as of
March 25, 2020, fifty-one such motions were pending, twenty-
eight were denied, and nineteen were allowed in part or in full.
The Juvenile Court received twenty-five motions for release or
bail reduction between March 14 and March 25. As of March 27,
2020, ten had been allowed, five had been denied, and ten were
pending.
                                                                    12


     c.   Commonwealth's response to COVID-19 crisis.   The

district attorneys have taken various proactive steps in

response to COVID-19 to reduce the incarcerated population.      The

district attorneys for the Suffolk, northern, and northwestern

districts have sought to identify detainees and inmates whom

they believe would be appropriate for release.    The district

attorney for the Berkshire district notes that her office has

sought unsuccessfully from the sheriff in Berkshire County

census information necessary in order to identify appropriate

candidates for release.

     According to affidavits by the DOC and the various

sheriffs' offices that operate correctional facilities, they

have enacted screening procedures for all individuals entering

these facilities.   Employees with symptoms or positive test

results are instructed to self-quarantine at home.    New inmates

and detainees also are screened for symptoms of COVID-19; those

without symptoms are quarantined for fourteen days, and those

with symptoms are isolated.

     Individual correctional institutions also have restricted

access to the facility only to essential staff.    General

visitation is suspended,11 and transfers among facilities have




     11Most correctional facilities have offered limited free
telephone calls as a replacement to visits by family and
friends.
                                                                  13


been restricted or completely suspended.   Group programming has

been curtailed, and scheduling changes within facilities have

been enacted to reduce the number of individuals simultaneously

occupying shared spaces.

     The availability of hygiene products also has been

increased.   The DOC, the Attorney General, and the sheriffs

report that bar soap has been made available to all inmates and

detainees without charge.   Hand sanitizer has been made

available in many locations.   Inmates and detainees have been

instructed on techniques to reduce the spread of COVID-19.

Personal protective equipment, including masks, gowns, gloves,

and goggles, are available to staff in correctional facilities.

     All facilities are below their maximum capacities, based on

"operational capacity" as designated by the DOC.12   The prison

system as a whole is at seventy-three per cent capacity; the

most crowded facility is the North Central Correctional




     12"Operational capacity" differs from "design capacity."
Operational capacity is based on guidelines issued by the
Association of State Correctional Administrators. Design
capacity is measured by the DOC and reported upon by the
Governor quarterly, pursuant to St. 1985, c. 799, § 21. See,
e.g., Governor, Quarterly Report on the Status of Prison
Capacity, Second Quarter 2019 (July 2019), https://archives.lib
.state.ma.us/bitstream/handle/2452/807941/on1124679772-2019-
2.pdf?sequence=1&isAllowed=y [https://perma.cc/AL5Z-67QT].
                                                                  14


Institution, at ninety-five per cent of capacity.13   Jails and

houses of correction are operating, on the whole, at fifty-six

per cent capacity.14   The Norfolk County house of correction, at

ninety-six per cent occupancy, is the closest to capacity.

     As of April 1, 2020, there were three correctional

facilities with confirmed cases of COVID-19 among inmates; the

majority were at the Massachusetts Treatment Center (treatment

center).   Seventeen members of the treatment center's

population, one inmate at another DOC facility, two inmates who

had been in close contact at a county jail, and three staff


     13All prisons except the Souza-Baranowski Correctional
Center, which houses largely inmates serving life sentences,
currently are operating at above fifty per cent of capacity.

     Occupancy rates in men's prisons are as follows:
Massachusetts Correctional Institution (MCI), Cedar Junction
(maximum security), 64%; Souza-Baranowski Correctional Center,
41%; Massachusetts Treatment Center, 84%; MCI, Cedar Junction,
86%; MCI, Concord, 78%; MCI, Norfolk, 85%; MCI, Shirley, 89%;
North Central Correctional Institution, Gardner, 95%; Old Colony
Correctional Center (OCCC), 92%; Shattuck Correctional Unit,
79%; State Hospital at Bridgewater, 74%; Massachusetts Alcohol
and Substance Abuse Center at Plymouth, 57%; MCI, Shirley
(minimum security), 84%; OCCC (minimum security), 64%; Boston
Pre-Release, 55%; North Eastern Correctional Center, Concord,
68%; and Pondville Correctional Center, 78%. For women's
prisons, occupancy rates are as follows: MCI Framingham, 37%;
and South Middlesex Correctional Center, 31%.

     14Based on operational capacity, the county houses of
correction have the following rates of occupancy: Barnstable
County, 38%; Berkshire County, 36%; Bristol County, 55%; Dukes
County, 28%; Essex: County, 77%; Franklin County, 52%; Hampden
County, 51%; Hampshire County, 67%; Middlesex County, 54%;
Norfolk County, 96%; Plymouth County, 51%; Suffolk County, 50%;
and Worcester County, 62%.
                                                                     15


members at two other facilities had tested positive; six

additional individuals had symptoms of COVID.   Three inmates

were at hospitals, and the rest were housed in an isolated unit

or the health services unit at the treatment center.

    Correctional facilities report that they have developed

plans in the event of a wider outbreak within their facilities,

based on CDC and DPH guidelines.   At least some of these plans

contain contingencies for staffing shortages.   For the most

part, details on these plans have not been made available in the

record or at argument before this court.

    d.   COVID-19 response in other jurisdictions.     In response

to the COVID-19 pandemic, a number of State courts throughout

the country have instituted various forms of relief in order to

reduce the number of incarcerated individuals in their States.

The Chief Justice of the Supreme Court of South Carolina, for

example, issued a memorandum to all judges and court staff

directing that "[a]ny person charged with a non-capital crime

shall be ordered released pending trial on his own recognizance

without surety, unless an unreasonable danger to the community

will result or the accused is an extreme flight risk."    The

Supreme Court of Washington issued an order that, among other

measures, declares that the COVID-19 pandemic shall be presumed

to be a "material change in circumstances" for the purposes of

such motions for bail review if the individual has been
                                                                  16


identified as part of a vulnerable or at-risk population by the

CDC, and that the pandemic may constitute a material change in

circumstances and "new information" for all others seeking

amendment of a prior bail order.     The order designates as

priority matters all motions for pretrial release and bail

modification, as well as plea hearings and sentencing hearings

that will result in the anticipated release of a defendant

within thirty days of the hearing.

    The Chief Justice of the Supreme Court of Michigan issued

an order and further guidance instructing judges to "take into

careful consideration" the present state of the COVID-19

emergency in making pretrial release decisions, including

setting bail and conditions of release or probation,.     The Chief

Justice later issued a statement directing that judges should

release "far more people on their own recognizance" and "should

use probation and treatment programs as jail alternatives."    The

statement called on judges and sheriffs to "use the statutory

authority they have to reduce and suspend jail sentences for

people who do not pose a public safety risk," and urged that

"law enforcement should only arrest people and take them to jail

if they pose an immediate threat to people in the community."

    The Supreme Court of New Jersey ordered mediation in

response to a petition from the State's Office of the Public

Defender.   The mediation resulted in a consent order that
                                                                  17


suspends or commutes county jail sentences for low-risk inmates

in light of the public health crisis, unless a State or county

prosecutor objects to the release of a particular individual.

If there is such an objections, a judge or special master will

hold a hearing to determine if release would pose a significant

risk to the safety of the inmate or the public.

    2.   Relief sought.   All parties agree that a significant

COVID-19 outbreak in Massachusetts correctional institutions

would pose considerable risks to those who are incarcerated,

correctional staff, and the broader community.    They disagree

significantly about current conditions in correctional

institutions, whether widespread release for some populations

would be more harmful than beneficial, and the proper means by

which to reduce the number of people held in custody, before

trial and after conviction.

    a.   Petitioners' arguments.   The petitioners ask this court

to use its extraordinary superintendence power under G. L.

c. 211, § 3, to take a number of unprecedented steps to reduce

the number of people held in Massachusetts correctional

facilities, both pretrial and postsentence.   These actions, they

contend, are necessary practically, to save lives, and legally,

to prevent what could become substantial and widespread

violations of constitutional rights.
                                                                     18


    Specifically, the petitioners' brief describes potential

threats to the rights of those held in State custody to be free

from cruel and unusual punishment, embodied in the Eighth

Amendment to the United States Constitution, and cruel or

unusual punishment prohibited by art. 26.     Those provisions

require the Commonwealth to furnish conditions of confinement

that do not create an unreasonable risk of future harm to inmate

health and safety, an obligation the petitioners argue is

effectively impossible to meet under conditions of global

pandemic.

    The petitioners argue as well that inaction could violate

rights to due process of law, inscribed in the Fourteenth

Amendment, and art. 12 of the Massachusetts Declaration of

Rights.     For pretrial detainees, the petitioners contend that

the risk of infection and death constitutes punishment prior to

adjudication, which is not reasonably related to a legitimate

government interest, and therefore is inconsistent with due

process.    For those who have been convicted and sentenced, the

petitioners argue that due process protections are violated when

the deprivations suffered are "qualitatively different from the

punishment characteristically suffered by a person convicted of

crime."    Vitek v. Jones, 445 U.S. 480, 493 (1980).   Because the

substantial threat of infection, serious illness, and death is

not part of the sentence imposed on anyone in the Commonwealth,
                                                                  19


the petitioners contend that inaction would constitute

additional punishment without due process of law.

     In their reply brief, and at argument before us, the

petitioners state that they are not raising any constitutional

claim at this time, and rather are pointing out the possibility

of such violations if something is not done to mitigate the

situation.   The petitioners ask this court to reduce drastically

(they suggest by a factor of one-half of the population

currently held in custody) the number of individuals entering

detention, held pretrial on unaffordable bail, and serving

lawful sentences.   They propose specific measures with respect

to preventing individuals from entering State custody,15

releasing those who are detained prior to trial,16 and reducing




     15To reduce the flow of individuals into the correctional
system, the petitioners ask this court to: (1) order that risks
associated with a COVID-19 outbreak be considered in bail
hearings, probation revocation hearings, and determinations of
dangerousness under G. L. c. 276, § 58A; (2) vacate bench
warrants related to fines and fees; (3) vacate conditions of
probation that automatically trigger probation violation
proceedings upon an alleged violation; and (4) suspend pretrial
and probation conditions incompatible with social distancing.

     16For individuals being detained prior to trial, the
petitioners seek the release of those held on unaffordable bail;
held on a bail revocation for a technical violation of
probation; those over sixty years of age; and those who have
underlying health conditions that heighten their risk.
                                                                  20


sentences, staying sentences, or paroling certain groups of

individuals who are serving a sentence of imprisonment.17

     To accomplish this latter set of releases, the petitioners

suggest that this court amend Mass. R. Crim. P. 29, which allows

judges to revise sentences within sixty days of imposition "if

it appears that justice might not have been done," to eliminate

the sixty-day time limit, so that judges, including the single

justice of this court, thereby lawfully could reduce sentences

due to COVID-19.   Alternatively, they ask the court simply to

order the releases using its purported authority under G. L.

c. 211, § 3.

     b.   Respondents' arguments.   While acknowledging the

serious nature of the COVID-19 pandemic, the respondents take

varying positions in response to it and the petitioners'

arguments.   To begin, they do not agree as to whether relief

under G. L. c. 211, § 3, is appropriate.   The district attorneys

of the northern, northwestern, Suffolk, and Berkshire districts




     17The petitioners ask this court to order the release of
those serving sentences who are (1) eligible for parole and not
serving a sentence for an offense under G. L. c. 265; (2) set to
be released within six months; (3) reincarcerated after
violations of parole or probation that did not involve a new
offense; (4) over sixty years of age and not serving a sentence
for an offense defined in G. L. c. 265; (5) suffering from a
preexisting condition that heightens their risk of death from
the virus; (6) eligible for medical parole; or (7) serving
sentences in a house of correction for offenses other than those
listed in G. L. c. 265.
                                                                  21


agree with the petitioners that the risk of this pandemic is an

unprecedented, deadly threat to incarcerated individuals,

correctional officers, and civilian staff, and that

extraordinary action is needed to address this rapidly-growing

public health emergency expeditiously.   The Attorney General

states that government officials within and outside the

correctional system are committed to taking the steps necessary

to protect the health and welfare of everyone within the

criminal justice system, while acknowledging that the situation

is rapidly evolving and that extraordinary relief under this

court's superintendence powers may be appropriate in some

circumstances.

    The district attorneys for the Bristol, Cape & Islands,

eastern, Hampden, middle, Norfolk, and Plymouth districts (seven

district attorneys) state that they "are committed to taking

appropriate steps consistent with public safety to mitigate the

risks of infection in jails and prisons" for inmates and

correctional staff, and that "such measures are already

underway."   They assert that judges have been advised to take

into account, and are doing so, COVID-19 risks in making bail

determinations and deciding issues involving pretrial detention,

court houses are staffed to handle and act upon all emergency

motions for release, and correctional officials are acting
                                                                  22


promptly and allowing "meritorious petitions for release based

on medical vulnerability."

    The seven district attorneys maintain as well that the

petitioners' arguments disregard risks to public safety,

particularly the physical and mental safety of victims and their

families, especially victims of domestic violence, in addition

to abrogating rights granted under the victims' bill of rights

set forth in G. L. c. 253B.   They contend that immediate release

of some medically vulnerable individuals could pose a greater

risk to the individual than remaining incarcerated with

available medical care and treatment.   They point out that

seventy-three per cent of incarcerated males, and sixty-four per

cent of incarcerated females are serving a sentence for a

violent offense, and that their release into the community,

particularly given the reduced levels of supervision currently

available, where most supervision is by telephone and not in

person, increases risks to the community and could overburden

already overworked criminal justice systems.

    The seven district attorneys also argue that relief under

G. L. c. 211, § 3, is inappropriate, for several reasons.      They

contend that the petitioners have not shown that existing

avenues of relief are inadequate.   See Callahan v. Superior

Court Dep't of the Trial Court, 432 Mass. 1023, 1023 (2000).

They argue as well that the relief requested by the petitioners
                                                                   23


is not available under G. L. c. 211, § 3, because the

petitioners do not have standing to bring an individual claim

under that statute.   See Slama v. Attorney Gen., 384 Mass. 620,

624 (1981) ("Representative standing is generally limited to

cases in which it is difficult or impossible for the actual

rightholders to assert their claims").    In addition, they assert

that the relief sought by the petitioners would amount to a

suspension of laws, in violation of art. 30, and would be an

attempt to exert this court's superintendence power over the

executive branch, in violation of art. 30.    See Commonwealth v.

Donohue, 452 Mass. 256, 264 (2008).    They argue as well that the

petitioners are asking this court impermissibly to abrogate the

provisions of numerous statutes on parole, revocation,

commutation, compassionate release, and pardons.    Similarly, the

sheriffs' offices argue that the petitioners cannot obtain

relief because they have not exhausted the administrative remedy

of the grievance processes of the penal institutions.    See G. L.

c. 127, § 38F; 42 U.S.C. § 1997e(a).

    The respondents also disagree on the substantive merits and

the putative constitutional claims.    The district attorney for

the Suffolk district agrees with the petitioners that COVID-19

creates a situation in which the "evolving standards of decency

that mark the progress of a maturing society" have been altered

by COVID-19.   See Michaud v. Sheriff of Essex County, 390 Mass.
                                                                   24


523, 527 (1983).   She states that appropriate physical

distancing is impossible in a correctional facility, and that

continued incarceration will constitute cruel and unusual

punishment for some individuals.

    Neither the Attorney General nor the district attorneys for

the northern, northwestern, or Berkshire districts take a

position on whether any constitutional rights would be violated.

The district attorney for the Berkshire district adds that "all

of the experts and government officials in Massachusetts have

opined or suggested that the only hope of . . . reducing the

number of deaths caused by COVID-19" is physical distancing and

frequent handwashing and cleaning, which she states is

"impracticable" in jails and prisons.

    The seven district attorneys and the sheriffs argue that

the Eighth Amendment and art. 26 claims lack merit because the

petitioners have not shown "deliberate indifference" on the part

of any prison or jail official.    See Torres v. Commissioner of

Correction, 427 Mass. 611, 613–614 (1998).   They support this

argument with affidavits from the DOC and the various sheriffs,

detailing the steps taken by the correctional institutions to

address the COVID-19 pandemic, summarized supra.

    Based on their substantive and factual disagreements, the

respondents propose contrasting dispositional requests.     The

seven district attorneys and the sheriffs ask that the petition
                                                                     25


be denied in its entirety.     They argue that the steps already

being taken towards reducing the population of incarcerated

individuals are sufficient to address the advancing public

health emergency.

    The remaining district attorneys and the Attorney General

ask that this court grant relief in the form of individualized

review, with the goal of quickly reducing the incarcerated

population.   They do not approve of the blanket release of

classes of inmates, noting, as do the seven district attorneys,

the public safety concerns regarding the release of those

convicted of domestic violence or sexual assault; the dangers to

released inmates and detainees who may not have a home, a

medical provider, or a means to obtain substance abuse

treatment; and the currently decreased availability of shelters

and other social services.     The district attorneys for the

Suffolk, northern, northwestern, and Berkshire districts ask

that we create an emergency committee responsible for rapidly

and collaboratively creating and implementing a policy to reduce

the incarcerated population.     The district attorney for the

Suffolk district argues that COVID-19 should be considered in

various types of judicial decisions, and further requests that

new bench warrants not issue for failure to appear or failure of

indigent defendants to pay fines or fees.     The Attorney General

suggests that we establish guidelines for the release of
                                                                   26


pretrial detainees, and that we explore ways to allow relief for

sentenced inmates, such as an amendment to Mass. R. Crim. P. 29.

    3.   Discussion.   We agree that the situation is urgent and

unprecedented, and that a reduction in the number of people who

are held in custody is necessary.   We also agree with the

Attorney General and the district attorneys that the process of

reduction requires individualized determinations, on an

expedited basis, and, in order to achieve the fastest possible

reduction, should focus first on those who are detained pretrial

who have not been charged with committing violent crimes.

Having carefully examined the petitioners' arguments, we

conclude that a modification of Rule 29 in the manner requested

by the petitioners, such that judges could revise and revoke

indefinitely valid sentences that have been imposed posttrial

would result in a violation of art. 30 by allowing judges

essentially to perform the functions of the parole board.    See,

e.g., Commonwealth v. Ly, 450 Mass. 16, 22, (2007); Commonwealth

v. Amirault, 415 Mass. 112, 116-117 (1993).   Absent a violation

of constitutional rights, which the petitioners agree has not

been established on this record, we also do not have authority

under G. L. c. 211, § 3, to exercise supervision over parole,

furlough, or clemency decisions by the DOC, the parole board,

the sheriffs, and other members of the executive branch.
                                                                  27


    a.   The court's superintendence authority.   General Laws

c. 211, § 3, provides that the Supreme Judicial Court "shall

have general superintendence of all courts of inferior

jurisdiction to correct and prevent errors and abuses therein if

no other remedy is expressly provided."   The court's general

superintendence authority extends to "the administration of all

courts of inferior jurisdiction," and permits the issuance of

"writs, summonses and other process and such orders, directions

and rules as may be necessary or desirable for the furtherance

of justice."   In the past, we have exercised our extraordinary

superintendence authority to remedy matters of public interest

"that may cause further uncertainty within the courts"

(quotations omitted).   Simmons v. Clerk-Magistrate of the Boston

Div. of the Hous. Court Dep't, 448 Mass. 57, 61 (2006).   See

Bridgeman v. District Attorney for the Suffolk District, 471

Mass. 465, 474 (2015) (court utilized broad powers of

superintendence to address drug lab crisis affecting thousands

of potential defendants); Lavallee v. Justices in the Hampden

Superior Court, 442 Mass. 228, 239 (2004) (relief under G. L.

c. 211, § 3, is necessary to remedy shortages of attorneys to

represent indigent defendants).

    A petitioner seeking relief under G. L. c. 211, § 3, "must

present a substantial claim involving important substantive

rights, and demonstrate that any error cannot adequately be
                                                                   28


remedied in the course of trial or normal appellate review."

Lavallee, 442 Mass. at 233.     See Costarelli v. Commonwealth, 374

Mass. 677, 679 (1978) (discretionary review under court's

supervisory authority is "extraordinary" and only available "in

the most exceptional circumstances").     Here, the petitioners

claim that continued confinement in a jail or prison implicates

concerns of fundamental fairness, and rights secured by the due

process clauses of the Federal and State Constitutions (pretrial

detainees) and the Eighth Amendment (inmates serving a sentence

and pretrial detainees).

    b.    Pretrial detainees.   We conclude, given the severity of

the COVOID-19 pandemic, that the petitioners, as representatives

of incarcerated individuals, have established standing to bring

their claim, and an entitlement to relief.    To establish

representative standing, "[f]irst, the relationship of the

litigant to the third party whose right the litigant seeks to

assert must be such that the enjoyment of the right is

inextricably bound up with the activity the litigant wishes to

pursue.   Second, there must be some genuine obstacle that

renders the third party unable to assert the allegedly affected

right on his or her own behalf."    Planned Parenthood League of

Massachusetts, Inc. v. Bell, 424 Mass. 573, 578 (1997), citing

Singleton v. Wulff, 428 U.S. 106, 113-118 (1976).

"Representative standing is generally limited to cases in which
                                                                  29


it is difficult or impossible for the actual rightholders to

assert their claims" (citation omitted).   Slama v. Attorney

Gen., 384 Mass. 620, 624 (1981).   Here, the relationship between

the petitioners and the detainees and incarcerated individuals,

now focused on having their clients released from custody,

clearly is "inextricably bound up with the activity the litigant

wishes to pursue," e.g., obtaining release through litigation in

this court.   In the present circumstances, it is difficult, at

best, for incarcerated individuals to assert their claims; in

particular, the enormous volume of claims, the urgency of

expeditious hearings, the delays multiple individuals and

attorneys have averred are occurring in holding hearings on

motions for release, and the apparent belief by some trial

judges that they have no authority to allow reconsideration of

bail because detainees have not shown changed circumstances, all

place severe obstacles in the path of any individual detainee

seeking relief.

    To effectuate such relief, pretrial detainees who are not

charged with an offense listed in Appendix A, and who are not

being held without bail subsequent to a determination of

dangerousness under G. L. c. 276, § 58A, as well as individuals

who are being held pending a final probation violation hearing,

are entitled to expedited hearings on their motions for

reconsideration of bail.   These categories of pretrial detainees
                                                                  30


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.18

     In making a determination whether release would not be

appropriate, the judge should consider the totality of the

circumstances, including (1) the risk of the individual's

exposure to COVID-19 in custody; (2) whether the defendant,

although not held in preventative detention pursuant to G. L.

c. 276, § 58A, nonetheless would pose a safety risk to the

victim and the victim's family members, witnesses, the

community, or him- or herself if released; (3) whether the

defendant is particularly vulnerable to COVID-19 due to a

preexisting medical condition or advanced age; (4) for a

defendant who is accused of violating a condition of probation,

whether the alleged violation is a new criminal offense or a

technical violation; and (5) the defendant's release plan.19




     18 This ruling does not preclude other pretrial detainees,
who have been charged with one of the excluded offenses
enumerated in Appendix A, from seeking reconsideration of bail
on the ground of changed circumstances, which we have concluded
exist as a matter of law. These individuals, however, are not
entitled to a rebuttable presumption of release.
     19 Of course, those individuals who have tested positive or

are symptomatic for COVID-19, or who are in quarantine due to
having been in close contact with someone else who has tested
                                                                   31


     i.   Process to be followed.   Each sheriff in charge of a

house of correction shall inform the special master, CPCS, the

district attorney for the district in which the institution is

located, the clerks of the Superior, District, Boston Municipal,

and Juvenile courts in that district, and the probation service

daily of the identity of each person who is detained awaiting

trial in the sheriff's facility, in reports setting forth the

information specified in Appendix B.20   The defense bar and the

district attorney in each district shall make good faith efforts

to reach agreement with respect to the release of as many

pretrial detainees as possible, so that agreed-upon motions for

reconsideration of bail may be presented to trial court judges.21

     Based on the daily census reports to be provided by the

sheriffs, CPCS shall facilitate the filing of any motions for

reconsideration of the amount of bail or conditions of release,

including contacting counsel for each detainee.   Defense counsel

shall be permitted promptly to convene video or teleconferences

with their clients; the sheriffs' offices and DOC are to work




positive, must remain in isolation or quarantine and would not
be eligible for release during those periods.
     20 In addition, the DOC shall furnish the special master

daily reports of inmate counts and rates of COVID-19 cases at
each facility, as explained in Appendix B.

     21Upon request by a defendant, the sheriffs also are
required timely to provide the defendant with his or her
requested medical records.
                                                                   32


with the defense bar to facilitate such communications.      The

district attorneys should make every effort to inform any victim

of the motion, to be consistent with statutory requirements, to

the extent practical.   In light of the public health emergency

posed by COVID-19, the inability of the Commonwealth to provide

the type of notice called for by the victims' rights statute,

G. L. c. 258B, shall not be grounds for the continued detention

of a detainee otherwise entitled to release in accordance with

this decision.

    Hearings on motions for reconsideration of bail will take

place by videoconference or teleconference no later than two

business days after the filing of the motion.     A decision on the

motion shall be rendered promptly.   To enable expeditious

processing of such motions, each relevant court shall establish

a designated session to hear motions for reconsideration of bail

and release; a primary judge, a first backup, and a second

backup judge shall be assigned to each session.    Individuals who

are aggrieved by the denial of a motion for reconsideration of

bail may seek review under G. L. c. 211, § 3, from the single

justice of the county court.

    c.   New arrests.   We are persuaded that the limitations

that courts in other jurisdictions have placed on new detentions

and incarcerations are compelling, and we adopt similar measures

to reduce as far as possible the influx of new individuals into
                                                                  33


correctional institutions.   Following any arrest during the

COVID-19 state of emergency, and until further order of this

court, a judicial officer should consider the risk that an

arrestee either may contract COVID-19 while detained, or may

infect others in a correctional institution, as a factor in

determining whether bail is needed as a means to assure the

individual's appearance before the court.   Given the high risk

posed by COVID-19 for people who are more than sixty years of

age or who suffer from a high-risk condition as defined by the

CDC, the age and health of an arrestee should be factored into

such a bail determination.   This is an additional, temporary

consideration beyond those imposed by the relevant bail

statutes, G. L. c. 276, §§ 57 and 58, and by due process

principles.   See Brangan v. Commonwealth, 477 Mass. 691, 702-705

(2017); Querubin v. Commonwealth, 440 Mass. 108, 113-114 (2003).

A judge also must consider the same factors in deciding whether

to detain an individual pending a revocation hearing based on an

alleged violation of probation.

    d.   Incarcerated individuals serving sentences.    The

petitioners also seek release of multiple groups of individuals

who are currently serving sentences of incarceration.   They

suggest, inter alia, that, in order to do so, we eliminate the

requirement in Rule 29 that motions to revise or revoke a

sentence be filed within sixty days of the imposition of the
                                                                 34


sentence or the issuance of the rescript.   See Mass. R. Crim.

P. 29 (a) (2).

    "As a general matter, Massachusetts courts have recognized

that 'it is within the inherent authority of a trial judge to

"reconsider decisions made on the road to final judgment."'"

Commonwealth v. Charles, 466 Mass. 63, 83 (2013), quoting

Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387,

401 (2003).    See Commonwealth v. Cronk, 396 Mass. 194, 196,

(1985), and cases cited ("While the Massachusetts Rules of

Criminal Procedure do not expressly permit a judge to rehear a

matter, no policy prohibits reconsideration of an order or

judgment in appropriate circumstances").    That authority is

limited once final judgment has entered.

    Our 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, within 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.
                                                                     35


    Rule 29 allows revisions of a final sentence within sixty

days of its issuance or sixty days of the issuance of a decision

on any appeal from the sentence or from the underlying

conviction.   Rule 29 "recognizes that '[o]ccasions inevitably

will occur where a conscientious judge, after reflection or upon

receipt of new probation reports or other information, will feel

that he [or she] has been too harsh or has failed to give due

weight to mitigating factors which properly he should have taken

into account."   Commonwealth v. Rodriguez, 461 Mass. 256, 260

(2012), quoting Commonwealth v. McCulloch, 450 Mass. 483, 487

(2008).   "In such cases, a judge under rule 29 may 'reconsider

the sentence he [or she] has imposed and determine, in light of

the facts as they existed at the time of sentencing, whether the

sentence was just."   Rodriguez, supra, quoting McCulloch, supra.

"A judge, therefore, is not barred from reducing a sentence the

judge has imposed until the time limits established in rule 29

to revise or revoke a sentence have expired."   Rodriguez, supra.

Absent an assertion of an illegal sentence, such review is time-

limited both as to the filing of a motion for review and the

issuance of a judge's decision within a "reasonable" time.     See

Commonwealth v. Layne, 386 Mass. 291, 295-296 (1982), and cases

cited.

    The petitioners do not address the requirement of Rule 29

that the reduction be based on a sentencing judge's later
                                                                  36


determination (with or without a hearing) that "justice may not

have been done" due to some factor present at the time of

sentencing, or the reasons for that requirement.   See Layne, 386

Mass. at 295-296, and cases cited.   They apparently discount the

requirement that review under Rule 29 (a) is to "permit a judge

to reconsider the sentence he [or she] has imposed and

determine, in light of the facts as they existed at the time of

sentencing, whether the sentence was just [emphasis in

original].22   Commonwealth v. Amirault, 415 Mass. 112, 117

(1993), quoting Commonwealth v. Sitko, 372 Mass. 305, 313–314

(1977).

     "The granting of parole, [on the other hand,] is a

discretionary act of the parole board."   Amirault, 415 Mass. at

116-117, citing Lanier v. Massachusetts Parole Bd., 396 Mass.

1018, 1018 (1986).   "It is a function of the executive branch of

government."   Amirault, supra, citing Stewart v. Commonwealth,




     22In support of their argument that this court modify
Rule 29 to remove any period of limitation on a judge's
authority to revise and revoke a valid sentence, the petitioners
point to Commonwealth v. Tejeda, 481 Mass. 794, 797 (2019).
That case, however, does not advance their position. In Tejeda,
we reiterated that "we have repeatedly and unequivocally held
that a judge may not take into account conduct of the defendant
that occurs subsequent to the original sentence" (citations
omitted). Id. Although we indicated that the judge in that
case could consider, post sentencing, that a more culpable
coventurer received a lesser sentence than had the defendant, we
emphasized that "the grounds for each sentence were known" at
the time of defendant's trial. Id.
                                                                     37


413 Mass. 664, 669 (1992), and Baxter v. Commonwealth, 359 Mass.

175, 179 (1971).   "By allowing a motion to revise or revoke

sentences when the parole board does not act in accordance with

a judge's expectations, the judge is interfering with the

executive function.     The judge cannot nullify the discretionary

actions of the parole board."     Amirault, supra, and cases cited.

    Rule 29 is designed to protect the separation of powers as

set forth in art. 30.     See Clark, petitioner, 34 Mass. App. Ct.

191, 195 (1993). "The execution of sentences according to

standing laws is an attribute of the executive department of

government."   Sheehan, petitioner, 254 Mass. 342, 345 (1926).

To attempt to "revise," i.e., cut short, sentences in the

current situation would be to perform the function of the parole

board, thereby "effectively usurp[ing] the decision-making

authority constitutionally allocated to the executive branch."

See Stewart, 413 Mass. at 669, quoting Commonwealth v. Gordon,

410 Mass. 498, 501 (1991); Amirault, 415 Mass. at 117 ("[T]he

judge imposed sentences that he noted were within the

guidelines.    In considering requests for revision of those

sentences under rule 29 the judge may not consider the denial of

parole").

    While we cannot order that relief be granted to sentenced

inmates who have been serving a legal sentence, and who have not

timely moved to revise or revoke that sentence, mechanisms to
                                                                   38


allow various forms of relief for sentenced inmates exist within

the executive branch.   The parole board, for example, has

authority to release individuals who have become eligible for

parole because they have reached their "minimum term of

sentence."   See G. L. c. 127, § 133.   An inmate in a house of

correction can receive early parole consideration and be

released up to sixty days prior to the minimum term based on

"any . . . reason that the Parole Board determines is

sufficiently compelling."    120 Code Mass. Regs. § 200.10 (2017).

Once an inmate reaches eligibility, the parole board must hold a

hearing to decide whether to grant the inmate a parole permit.

See G. L. c. 127, § 133A; 120 Code Mass. Regs. § 301.01 (2017).

See also G. L. c. 127, § 134 (allowing employees other than

parole board members to conduct hearings for inmates at houses

of correction).23   The parole board "shall only grant a parole

permit if they are of the opinion that there is a reasonable

probability that . . . the offender will live and remain at

liberty without violating the law and that release is not

incompatible with the welfare of society."     120 Code Mass. Regs.

§ 300.04 (2017).    See G. L. c. 127, § 130.   If denied parole,

inmates generally are entitled to a rehearing after either one


     23The parole board reported at oral argument before us that
it has made arrangements to hold hearings via video
conferencing, and indeed was conducting two such hearings on the
day of argument.
                                                                     39


or five years, but the board may hold an earlier rehearing at

its discretion.   See G. L. c. 127, § 133A; 120 Code Mass. Regs.

§ 301.01.

     The parole board nonetheless reported at oral argument that

it has made no efforts to accelerate the scheduling of parole

hearings.   The board reports that currently approximately 300

individuals have been deemed appropriate for release and have

been awarded parole through the ordinary process, but have yet

to be granted parole permits that would result in their actual

release from custody because the board has not reduced what the

board says is a standard delay in preparing for release.24

During normal times, the two-week delay the board states is

standard might be reasonable.      But these are not normal times.

We urge the board to expedite release of these previously-

approved individuals, as well as to expedite hearings on other

inmates who are eligible for parole.

     e.   Constitutional claims.    As stated, while the

petitioners argued in their initial brief that the failure to




     24The parole board stated at oral argument that release
generally is delayed for two weeks after a favorable decision
while the board finalizes the inmate's housing plan and contacts
any victims or law enforcement agencies as required by statute.
See G. L. c 258B, § 3; G. L. c. 127, § 133A; 120 Code Mass.
Regs. § 301.06(3)(a) (2017). The parole board should use every
effort to expedite the several stages of this process as far as
reasonably possible so as to reduce the over-all number of
incarcerated inmates as quickly as possible.
                                                                    40


release incarcerated individuals violated the Eighth Amendment's

prohibition on cruel and unusual punishment, and the failure to

release pretrial detainees violated due process protections

under the Fourteenth Amendment and art. 26, in their reply brief

and at oral argument they asserted that they are not pursuing

such claims.   Accordingly, we do not consider their

constitutional claims.    See Commonwealth v. AdonSoto, 475 Mass.

497, 506 (2016), quoting Commonwealth v. Raposo, 453 Mass. 739,

743 (2009) ("We do not decide constitutional questions unless

they must necessarily be reached").

    4.   Conclusion.     Due to the crisis engendered by the COVID-

19 pandemic, pretrial detainees who have not been charged with

an excluded offense as set forth in Appendix A are entitled to a

rebuttable presumption of release on personal recognizance, and

a hearing within two business days of filing a motion for

reconsideration of bail and release, in accordance with the

procedures set forth in this opinion.

    The special master shall report weekly to this court, as

set forth in this opinion, in order to facilitate any further

response necessary as a result of this rapidly-evolving

situation.

                                      So ordered.
                                                                     41


                             Appendix A.

                          EXCLUDED OFFENSES

    1.   Any crime punishable by imprisonment in a State prison

that (i) has as an element the use, attempted use or threatened

use of physical force or a deadly weapon against the person of

another; (ii) is burglary, extortion, arson, or kidnapping; or

(iii) involves the use of explosives.      See G. L. c. 140, § 21;

G. L. c. 276, § 58A.   This includes, but is not limited to, the

following offenses:    murder (G. L. c. 265, § 1); manslaughter

(G. L. c. 265, § 13); mayhem (G. L. c. 265, § 14); assault with

the intent to murder or maim (G. L. c. 265, § 15); assault and

battery by means of a dangerous weapon (G. L. c. 265, §§ 15A,

15B, 15C); strangulation (G. L. c. 265, § 15D); assault and

battery or attempt by discharge of firearm (G. L. c. 265,

§§ 15E, 15F); attempted murder (G. L. c. 265, § 16); armed

robbery (G. L. c. 265, § 17); assault with the intent to rob or

murder (G. L. c. 265, § 18); armed assault in a dwelling (G. L.

c. 265, § 18A); use of a firearm in the commission of a felony

(G. L. c. 265, § 18B); home invasion (G. L. c. 265, § 18C);

unarmed robbery (G. L. c. 265, § 19); and stealing by

confinement (G. L. c. 265, § 21);

    2.   Any crime involving allegations of domestic violence,

including assault or assault and battery on a family member

(G. L. c. 265, § 13M); violation of an abuse prevention order
                                                                  42


under the provisions of G. L. c. 209A, and all violations of

harassment prevention orders issued pursuant to G. L. c. 258E;

    3.   Intimidation of witnesses, jurors, or persons

furnishing information in connection with criminal proceedings

(G. L. c. 268, § 13B);

    4.   Any third or subsequent violation of driving while

under the influence (G. L. c. 90, § 24) within ten years of the

previous conviction for such violation;

    5.   Motor vehicle homicide or manslaughter while operating

a motor vehicle (G. L. c. 90, § 24G, and G. L. c. 265 § 13 1/2);

    6.   All offenses punishable by a minimum mandatory sentence

involving illegal possession of a firearm, machine gun, sawed

off shotgun, large capacity weapon, or feeding device (G. L.

c. 269, § 10);

    7.   The following sex offenses:   aggravated rape (G. L.

c. 277, § 39); rape (G. L. c. 265, § 22); rape of a child under

the age of sixteen with force (G. L. c. 265, § 22A); aggravated

rape of a child under the age of sixteen with force (G. L.

c. 265, § 22B); rape and abuse of a child (G. L. c. 265, § 23);

aggravated rape and abuse of a child (G. L. c. 265, § 23A);

assault with intent to commit rape (G. L. c. 265, § 24); assault

of a child with intent to commit rape (G. L. c. 265, § 24B);

kidnapping of a child (G. L. c. 265, § 26); indecent assault and

battery on a child under the age of fourteen (G. L. c. 265,
                                                                  43


§ 13B); aggravated indecent assault and battery on a child under

the age of fourteen (G. L. c. 265, § 13B 1/2); indecent assault

and battery on an intellectually disabled person (G. L. c. 265,

§ 13F); indecent assault and battery on a person age fourteen or

over (G. L. c. 265, § 13H); enticing a child under the age of

sixteen for the purposes of committing a crime (G. L. c. 265,

§ 26C), enticing a child under the age of eighteen via

electronic communication to engage in prostitution, human

trafficking or commercial sexual activity (G. L. c. 265, § 26D);

trafficking of persons for sexual servitude (G. L. c. 265,

§ 50); a second or subsequent violation of human trafficking for

sexual servitude (G. L. c. 265, § 52); enticing away a person

for prostitution or sexual intercourse (G. L. c. 272, § 2);

drugging persons for sexual intercourse (G. L. c. 272, § 3);

inducing a minor into prostitution (G. L. c. 272, § 4A); living

off or sharing earnings of a minor prostitute (G. L. c. 272,

§ 4B); incestuous marriage or intercourse (G. L. c. 272, § 17);

posing or exhibiting a child in a state of nudity (G. L. c. 272,

§ 29A); and unnatural and lascivious acts with a child under

sixteen (G. L. c. 272, § 35A);

    8.   Any violation involving trafficking in cocaine or

heroin in excess of 200 grams (G. L. c. 94C, § 32 [b] [4],

[c] [4]; or trafficking in fentanyl or carafentanil G. L.

c. 94C, § 32 [c 1/2], [c 3/4]); and
                                                                44


    9.   All attempts, conspiracies, or accessories after the

fact of the aforementioned offenses.
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                           APPENDIX B.

                     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 DOC and each

sheriff to provide daily reports to the special master, the

probation service, the district attorneys, and CPCS,

identifying:

    a.   The over-all inmate population;

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

results for all inmates, correctional officers, or other staff

members, including contactors; 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 being held at their facilities, and the

offenses with which they have been charged.
