From the Berkshire County District Attorney's Office

The Supreme Judicial Court issued an order Friday establishing guidance to criminal justice actors making determinations regarding incarceration in light of the COVID-19 pandemic.

"Public and victim safety will always be my number one priority and we obtained vital protections by negotiating with the Special Master as part of this legal proceeding. The SJC has shown leadership in a time of crisis by taking this issue up and establishing statewide guidance. An outbreak of COVID-19 behind bars risks overwhelming our already taxed medical providers, puts incarcerated individuals at fatal risk, and endangers correctional officers and staff," District Attorney Andrea Harrington said.

“The interplay between public health and public safety has never been more apparent. Our effort to lower the incarcerated population does not endanger the public because the SJC’s Order protects our community by assuring that those being held as dangerous or for committing violent crimes continue to be held.

In times of high stress, domestic violence and child abuse cases increase. We cannot afford to put residents at an increased safety risk or add to the responsibility of police departments who are working even harder now to protect vulnerable populations."

The SJC acted in response to an emergency petition calling for the reduction in population inside prisons, jails, and houses of correction filed by the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers, and the ACLU Foundation of Massachusetts.

Berkshire District Attorney Andrea Harrington filed a response urging the SJC to include public safety measures to protect the community - specifically to protect individuals at risk of domestic violence or child abuse – while also supporting public health protections.

“Fulfilling our obligation to the communities that we serve demands weighing the challenges presented by COVID-19 with other existing and anticipated public safety challenges, including, in particular, domestic violence, sexual assault, and child abuse,” Harrington wrote in the office’s response.

The SJC Order adopted District Attorney Harrington’s request for individualized determinations by a trial court on defense motions for release.

The order requires judges to consider the risk to family members, witnesses, and the community, and risks to public health. It also requires the district attorney’s offices to make every effort to connect with victims before such a release.

The order provides individuals being held pre-trial for certain non-violent crimes the presumption of release on personal recognizance and urges district attorney offices and defense counsel to come to agreed-upon conditions of release. A trial court judge will ultimately rule on defense motions for release.

The order establishes a full list of charges that exclude a defendant from presumptive release, including any allegations of domestic violence and violation of restraining orders.

The SJC order mirrors established pre-trial policies initiated by the Berkshire District Attorney’s Office. The office limits requests for pretrial detention to individuals who are dangers to the community and has virtually eliminated the use of cash bail.

The SJC further urged the Massachusetts Parole Board, Department of Corrections, and county Sheriffs to expeditiously release parole eligible individuals and ordered daily reporting of the overall inmate population, the number of COVID-19 tests and positive results for all inmates, correctional officers, and other staff members, the number of inmates released according to the order, and a census of pre-trial detainees with related charges to ensure safe reductions in the incarcerated population.

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