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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.
                                                                   2


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
                                                                  3


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.
                                                                   4


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.
                                                                   5


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)").
                                                                   6


     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.
                                                                   7


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.
                                                               8


     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.
                                                                   9


                      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;
                                                                 10


     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.
