SJC: Nonviolent offenders can seek release

Decisions will be made on a case-by-case basis.

The National Guard brought tents to the Dukes County Sheriff's Department. - Lexi Pline

The state’s highest court ruled Friday that individuals charged with nonviolent crimes and held on bail can seek release while COVID-19 remains a threat.

In the decision, which was prompted by a lawsuit brought by civil rights groups, the state Supreme Judicial Court also ruled that hearings should be expedited, but stopped short of the relief sought in the lawsuit. The state’s district attorneys, including Cape and Islands District Attorney Michael O’Keefe, and sheriffs, including Dukes County Sheriff Robert Ogden, opposed the lawsuit.

“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,” the decision states. “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.”

Hearings should be held within two days of the individual filing a motion, according to the decision. It also requires the Department of Correction and county sheriffs to file daily reports listing the number of COVID-19 tests conducted and positive results for staff, correctional officers, and anyone in custody.

Prior to Tuesday’s hearing, Ogden told The Times prisoners are safer in the Edgartown jail than they would be on the outside. “Bottom line, our inmate population and the public in general are safer with our incarcerated staying in place,” he wrote. “We have no cases of COVID-19 in our facility, we are more sterile than most homes, we practice social distancing to a far greater degree than the general public, we have all the resources in-house to sustain this population indefinitely, in a humane and healthy atmosphere,” he said.

Ogden could not be immediately reached for comment on the SJC decision.

“For those of us who opposed this, we considered this a major victory,” O’Keefe told The Times Sunday. He added about the lawsuit, “It was a wasted two weeks of work going through this nonsense.”

As for the requirement of hearings, O’Keefe said it’s no different than what’s done now. “The trial court, district courts, and district attorney offices all across the state have done this from the beginning and will continue to do it,” he said. “There will be no wholesale release of prisoners. Decisions will be made on an individual basis, by a judge, who will hear both parties and then make a decision.”

A press release on the website of the American Civil Liberties Union of Massachusetts (ACLUM), praised the relief, but criticized the justices for not doing more. 

“We are glad that this decision affords some relief for pretrial detainees, as well as important reporting requirements,” Matthew Segal, the ACLUM’s legal director, said in the release. “But we believe it falls short of what is necessary to prevent more illness and death among people in custody, correctional staff members, and the broader community. We urge every branch of Massachusetts government to do what it can to save the lives of people inside Massachusetts detention facilities, and in so doing to keep all of us safer.”



  1. Well done, SJC.
    Of course Ogden was going to oppose release of anyone, including the non-violent offenders granted release by the SJC.
    It was never about “community safety”, but about justifying his already bloated budget.
    When the Commonwealth sees how perfectly functional the DCHOC can be with further reduced resident and staffing levels, he will never get the money tap open as wide as it has been.
    Panicked, he tried to justify it for all sorts of reasons. Fortunately, the wisdom of the SJC has prevailed.

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