DA, defense attorneys wrangle: Who should get out of jail?

  • Northwestern District Attorney David Sullivan GAZETTE FILE PHOTO

  • Hampshire County Sheriff Patrick Cahillane GAZETTE FILE PHOTO

  • Franklin County Sheriff Christopher Donelan STAFF FILE PHOTO/PAUL FRANZ

  • Franklin County Jail and House of Corrections. RECORDER STAFF/ANDY CASTILLO

  • Hampshire County Jail and House of Correction, Wednesday, Mar. 25, 2020. STAFF PHOTO/JERREY ROBERTS

  • Hampshire County Jail and House of Correction, Wednesday, Mar. 25, 2020. STAFF PHOTO/JERREY ROBERTS

  • Hampshire County Jail and House of Correction, Wednesday, Mar. 25, 2020. STAFF PHOTO/JERREY ROBERTS

  • Hampshire County Jail and House of Correction, Wednesday, Mar. 25, 2020. STAFF PHOTO/JERREY ROBERTS

Staff Writer
Published: 3/26/2020 6:49:39 PM

NORTHAMPTON — The Northwestern district attorney’s office has downscaled its operations and is working to release some nonviolent and vulnerable pretrial detainees in local county jails due to the COVID-19 crisis. But some local defense attorneys and advocates say the area’s sheriffs and top prosecutor should do more to let people out.

Last week, Northwestern District Attorney David Sullivan publicly posted a letter that he signed along with prosecutors from across the country calling for a decrease in jail populations due to the public health crisis. 

The letter calls for releasing incarcerated people who are not a risk to public safety and who also meet one or more of these criteria, among others: those who are elderly; more vulnerable to COVID-19 due to medical conditions; within six months of completing their sentence; in jail due to technical violations of probation and parole; and unable to afford cash bail.

Also last week, Sullivan sent an email within the legal community that said his office was not “planning to revisit sentences being served by inmates whose cases are already closed.”

Some defense attorneys have taken issue with what they see as a contradiction between Sullivan’s public comments and the email he sent to the legal community and called on him to drastically reduce jail populations. But Sullivan said only sheriffs or the court have the authority to release a sentenced person on new conditions or change their sentence. He said he has agreed to the release of several pretrial detainees on clear criteria, advocated to sheriffs for the release of sentenced people who meet the criteria he signed in the letter and that his stance to only release those who are not a risk to public safety has remained constant. 

Infectious diseases such as COVID-19 can quickly spread among incarcerated people living in close quarters once introduced by staff or visitors, according to the Centers for Disease Control and Prevention. The World Health Organization in Europe said recently that inmates and staff are more vulnerable to the disease, and an outbreak could impact the public at large.

Sullivan said he has been working with sheriffs in Hampshire and Franklin counties to review its pretrial populations to determine who can be released among those who are nonviolent and most vulnerable to COVID-19.

Sullivan said Tuesday that his office cannot release already sentenced inmates. Rather, sheriffs have the authority to release someone in custody by placing the individual on a new level of custody, such as electronic monitoring. He said defense attorneys also can ask a judge to revise or revoke a sentence, as only a court can alter an imposed sentence, and that his office would agree to such a motion “if it’s meritorious.” The state Parole Board can also play a role in the release of some inmates from the county’s jails. 

“We can’t file a revise and revoke,” Sullivan said. “That’s the job of the defense attorney."

The Hampshire County Sheriff’s Office has said it is working on the release of some sentenced and pretrial individuals, especially if they are older and/or have preexisting medical conditions, among other considerations. Sullivan said in an interview Friday that he has advocated for the release of sentenced people who meet this criteria and who are nonviolent, but he clarified Tuesday that it is up to local sheriffs to make those decisions.

“The sheriffs and the parole board know these people best — they can evaluate it,” Sullivan said Friday. “Their recommendation is what should go.”

Emergency petition

On Tuesday, an emergency petition was filed in the state Supreme Judicial Court by the Committee for Public Counsel Services, the ACLU of Massachusetts and others to reduce the number of people in prisons and jails around the state to prevent the spread of COVID-19.

“There are about 16,500 human beings in our prisons and jails. None of them have been sentenced to death. Yet, without aggressive and immediate intervention, COVID-19 will likely kill many of them,” the petition reads.

Between Hampshire and Franklin counties, there are 76 total pretrial detainees, Sullivan said Tuesday. Out of the 76, his office has agreed for 19 to be released. Also on Tuesday, the Hampshire County Sheriff’s Office said it had released six pretrial detainees and four sentenced inmates to be supervised through electronic monitoring.

Franklin County Sheriff Christopher J. Donelan said his department has released 12 sentenced inmates on electronic monitoring and four pretrial detainees through bail hearings. He said the release cut the minimum-security population in half and that his office would be looking at the remaining 12 or so in the next week. Other than that, Donelan said his office has no further plans to release people under his custody.

“The approach we are taking in considering whether to release people is based on their treatment exposure, the timeline for their release and our ability to establish a re-entry plan,” Donelan said in an interview Thursday.

Donelan said his concerns about releasing a large number of inmates is the fact that most would not have re-entry plans. Many are homeless, and such a release would also put a great burden on homeless shelters, the emergency room and social service agencies. 

“We will assess, over the next week, all sentenced inmates who have less than 270 days to their end of sentence,” said Thomas Mitchell, spokesperson for Patrick J. Cahillane, the Hampshire County sheriff in an email Tuesday.

Out of the remaining pretrial detainees at both jails, 16 people have been found dangerous by a judge, 13 are held on new offenses committed while on bail, 23 are held on cash bail in district and superior court, three are held on nominal bail and the rest are held for other reasons, according to Sullivan.

Those on cash bail are held on “serious offenses,” such as domestic abuse and child abuse, said Sullivan, who added that he is not inclined to release those people as they could be threats to the public, including previous victims. Detainees who have been deemed dangerous by a judge are not being considered for release by Sullivan’s office, he said. 

In a statement, Sullivan’s office said it was looking at bail reductions for pretrial detainees with bail of $5,000 cash or less, “which covers the vast majority of nonviolent crimes and misdemeanors,” persons 60 years or older and the immunocompromised.

Sullivan said his office also will consider requests from defense attorneys to release those pretrial detainees who may not meet initial criteria. 

“We’re working with individual defense attorneys to bring the case forward to be heard,” Sullivan said. “We’re moving the ball, and they have to be there and file the paperwork.”

Sullivan also said that there has been a slowdown of complaints in court as less serious cases have been deferred until after the public health crisis ends. He also said much of his staff are now working from home, and arraignments for new arrests have been completed over teleconference. The lobby to his office is still open, Sullivan said.

Defense attorneys organize

Last week, local defense attorneys Rachel Weber and Dana Goldblatt organized a “phone blitz” calling on Sullivan to drastically reduce jail populations and to follow what they see as his own public advice “at a minimum,” according to the Facebook event

“In particular, he noted that his office would not review cases of people already sentenced, and that their considerations of release for people held pretrial would be narrower than those stated in the letter and would be determined on a case-by-case basis,” the Facebook event for the phone blitz reads in regard to Sullivan’s earlier email to the legal community. 

But Sullivan reiterated Tuesday that he does not have the authority to release an inmate or change their sentence. The bail adjustment criteria Sullivan said his office was using in the email is the same as those released publicly by his office last week.

Sullivan said he has advocated sheriffs for release based on the criteria in the public letter. He said that the email he sent within the legal community meant that his office is leaving it up to defense attorneys to ask the court for a change in their client’s sentence and that his office would agree to such motions if they believe it is merited. 

Weber on Saturday argued that working on a case-by-case basis could result in the loss of precious time. But Sullivan said that releasing someone from jail is a lengthy process that involves, among other considerations, making sure the individual is healthy and has a place to stay. He said that the public letter he signed should be taken in its entirety.

“This is all with the caveat that victim and public safety are not compromised,” Sullivan said.

In an interview Friday, Goldblatt said that since jails are “incubators of disease” and threaten potentially fatal infection of its community and the public, jail populations should be reduced “to the absolute minimum” by ending the incarceration of every nonviolent inmate to prevent the consequences of allowing COVID-19 to spread. 

“Having a jail or prison in your community right now is the equivalent of having a bomb in your backyard as a brush fire is coming at you,” Goldblatt said. “You diffuse that bomb.”

Weber said that the definition of someone who is dangerous is subjective and that it’s unclear how exactly Sullivan defines the word.

“Not everyone agrees with the DA’s definition of who is a danger to society,” Weber said, adding that she personally does not consider drug crimes or crimes against property as dangerous. 

Goldblatt said that sheriffs could define “confinement” as house arrest and release sentenced people that way. She said she spoke to 11 inmates in the Hampshire County Jail and House of Correction who told her that they cannot properly social distance and keep good hygiene as rooms are cramped — some live in rooms of 14 to 16 people, according to Goldblatt — and bar soap still costs money at the commissary, among other issues. She called on the sheriff to drastically reduce the jail’s sentenced population.

Mitchell, of the Hampshire County sheriff’s office, said that inmates are each given hygiene kits and everyone, including staff, are engaged in education about good hygiene. Additionally, Mitchell said that square footage of cells and common areas give inmates six feet of social-distancing space. He also said recreation and shower time is extended, and mealtimes are staggered to reduce large groups.

“The Hampshire County Jail and House of Correction does not have a crowding issue,” Mitchell said.

When told about the pretrial detainees Sullivan’s office had identified for release, Goldblatt called those numbers “so wildly inadequate.”

“How many people are being held on cash bail in Hampshire County? In Franklin County?” Goldblatt asked. “Because if it’s one, it’s too many.”

Lois Ahrens, the founding director of The Real Costs of Prisons Project, said incarcerated people could die as health care in jails is often lacking. She also said that it might take a court order or a new law — such as one introduced last week on Beacon Hill — to force officials to reduce jail populations.

“There has to be an outside force saying, ‘You have to do this,’” Ahrens said Tuesday.

On Wednesday, the state Supreme Judicial Court issued an order calling on county sheriffs, district attorneys, the state Department of Correction and others to respond to the petition filed in court by Thursday night.

“I definitely think this is a step in a right direction,” Ahrens said. “We need to do something to stop it now.” 

Michael Connors can be reached at mconnors@gazettenet.com. 


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