Foster v. Commissioner of Correction (No. 1)

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SJC-12935

STEPHEN FOSTER1 & others2 vs. COMMISSIONER OF CORRECTION &
others3 (No. 1).

Suffolk. May 7, 2020. - June 2, 2020.

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

Commissioner of Correction. Parole. Commissioner of Public
Safety. Governor. Imprisonment, Safe environment.
Constitutional Law, Sentence, Imprisonment, Cruel and
unusual punishment. Due Process of Law, Sentence,
Commitment. Practice, Criminal, Sentence, Execution of
sentence. Practice, Civil, Civil commitment.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 17, 2020.

The case was reported by Cypher, J.

James R. Pingeon for the plaintiffs.

1 On behalf of himself and all others similarly situated.

2 Michael Gomes, Peter Kyriakides, Richard O'Rourke, Steven
Palladino, Mark Santos, David Sibinich, Michelle Tourigny,
Michael White, Frederick Yeomans, and Hendrick Davis, on behalf
of themselves and all others similarly situated.

3 Chair of the parole board, Secretary of the Executive
Office of Public Safety and Security, and the Governor.
 2

Stephen G. Dietrick for Commissioner of Correction &
another.
Ryan P. McManus, Special Assistant Attorney General, for
the Governor.
Michael R. Byrne for the parole board.
The following submitted briefs for amici curiae:
Tatum A. Pritchard for Disability Law Center, Inc.
Rachael Rollins, District Attorney for the Suffolk
District, & Hon. Jon Santiago, pro se.
Matthew R. Segal for American Civil Liberties Union of
Massachusetts & another.

GAZIANO, J. The plaintiffs, incarcerated inmates serving

sentences or individuals who are civilly committed under G. L.

c. 123, § 35, commenced this class action in the county court,

alleging that their conditions of confinement expose them to

unreasonable risks from the COVID-19 pandemic. They claim,

among other things, that the defendants' failure to take readily

available steps to reduce the incarcerated population to safe

levels so as to permit adequate physical distancing within

prison walls constitutes cruel and unusual punishment in

violation of the Eighth Amendment to the United States

Constitution and art. 26 of the Massachusetts Declaration of

Rights, and violates substantive due process requirements

guaranteed under the Fourteenth Amendment to the United States

Constitution and arts. 1, 10, and 12 of the Massachusetts

Declaration of Rights.

The plaintiffs sought a preliminary injunction enjoining

the Department of Correction (DOC) from (1) housing any prisoner
 3

in a facility where the population exceeds its design-rated

capacity and (2) "[h]ousing any prisoner in a cell, room, dorm,

or other living area where they must sleep, eat, or recreate

within six feet of another person."4 To accomplish this, the

plaintiffs asked that the DOC be ordered to reduce the number of

incarcerated individuals such that the proper physical

distancing can be maintained in all facilities. They also

requested that the parole board be ordered to expedite the

release of certain groups of inmates, consider the risks of

COVID-19 in all parole decisions, and adopt a presumption of

release on parole for all inmates who are eligible for parole.5

In addition, the plaintiffs sought to enjoin the DOC from

continuing to confine individuals who are civilly committed

pursuant to G. L. c. 123, § 35.

4 The plaintiffs also asked that the Department of
Correction (DOC) be enjoined from housing any inmate in a cell,
dormitory, or other living area that does not comply with the
minimize size standards established by the Department of Public
Health (DPH) as set forth in 105 Code Mass. Regs. §§ 451.320-
451.322 (2004); maintaining any medical services unit or
medication distribution area in which inmates have to wait
within six feet of each other; and transferring any inmate from
a county jail to the DOC.

5 The parole board sought to dismiss all claims against it
on the grounds that it is not responsible for conditions of
confinement in DOC facilities and has no control over them, and
also that the plaintiffs' requests for relief exceed the bounds
of the parole board's statutory authority; that motion was
denied. See Foster v. Commissioner of Correction (No. 2), 484
Mass. , (2020)(Foster [No. 2]).
 4

The single justice reserved and reported the case to the

full court.6 She also remanded the matter to the Superior Court

"for fact-finding that will enable the full court to decide the

case in the first instance." A Superior Court judge, by special

assignment, conducted a series of evidentiary hearings, took

limited testimony from all parties over three days, collected

affidavits, and submitted his findings to this court. We also

ordered the defendants to provide answers to additional

questions pursuant to Mass. R. A. P. 16 (l), as appearing in 481

Mass. 1628 (2019).

The initial question before us at this stage is whether a

preliminary injunction should issue. This in turn requires a

determination whether the plaintiffs are likely to succeed on

the merits of their claims. See Packaging Indus. Group, Inc. v.

Cheney, 380 Mass. 609, 616-617 (1980).

To prevail on an Eighth Amendment claim, an individual must

establish that the punishment is inconsistent with "the evolving

standards of decency that mark the progress of a maturing

society." See Trop v. Dulles, 356 U.S. 86, 100-101 (1958).

Prison officials have a duty under the Eighth Amendment to

protect inmates in their custody from the spread of serious,

6 The Governor moved in this court to dismiss the claims
against him on the ground of sovereign immunity; that motion was
allowed, and thus, the Governor is no longer a party to this
case. See Foster (No. 2), 484 Mass. at .
 5

communicable diseases, including where the complaining inmate

does not show symptoms of the disease, or where "the possible

infection might not affect all of those exposed." Helling v.

McKinney, 509 U.S. 25, 33 (1993) ("We have great difficulty

agreeing that prison authorities may not be deliberately

indifferent to an inmate's current health problems but may

ignore a condition of confinement that is sure or very likely to

cause serious illness and needless suffering the next week or

month or year").

Thus, to be entitled to a preliminary injunction in their

claims for unconstitutional conditions of confinement because of

the risk of spread of a disease, the incarcerated plaintiffs

must show that they are likely to establish that the defendants

have been deliberately indifferent to a substantial risk of

serious harm to their health or safety. See Estelle v. Gamble,

429 U.S. 97, 103-104 (1976); Torres v. Commissioner of

Correction, 427 Mass. 611, 613-614, cert. denied, 525 U.S. 1017

(1998).

It is undisputed, as we recognized in Committee for Pub.

Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass.

431, 445 (2020) (CPCS v. Trial Court), that, due to the COVID-19

pandemic, the situation inside the Commonwealth's jails and

prisons "is urgent and unprecedented, and that a reduction in

the number of people who are held in custody is necessary."
 6

Nonetheless, on the record here, we conclude that the

incarcerated plaintiffs are unlikely to succeed on the merits of

their claim for violations of the Eighth Amendment, and thus

their motion for a preliminary injunction must be denied.

As to the plaintiffs' argument that commitment to a secure

facility for substance abuse treatment during the pandemic

violates the substantive due process rights of the committed

individual, on this record, the plaintiffs do not seem to have a

representative class member at this point, and thus are unlikely

to succeed on their petition for a class-based preliminary

injunction. Nonetheless, some immediate relief is necessary

with respect to those who have been civilly committed pursuant

to G. L. c. 123, § 35. Under our supervisory authority pursuant

to G. L. c. 211, § 3, we conclude that these individuals are

entitled to a new hearing to enable a motion judge to take into

account treatment limitations in the current circumstances, and

to weigh the balance of potential benefits from treatment and

the potential harms as a result of being held in wings of

prisons and jails or other conditions of confinement during the

pandemic.7

7 We acknowledge the amicus letters of the American Civil
Liberties Union of Massachusetts and the Massachusetts
Association of Criminal Defense Lawyers; of the district
attorney for the Suffolk district and Hon. Jon Santiago, pro se;
and of Disability Law Center, Inc.
 7

Background. 1. COVID-19 in Massachusetts correctional

facilities. Despite a massive, concerted global containment

effort, COVID-19 has continued to spread, both around the world

and in Massachusetts.8 Few inhabited places worldwide have been

spared from infections; the Massachusetts correctional system is

not among them.

For many, the virus causes only mild symptoms. For others,

particularly the elderly or those with preexisting conditions,

the disease poses a substantial likelihood of serious illness or

death. Indeed, since February 29, 2020, the disease has killed

more than 100,000 people in the United States and more than

6,700 people in Massachusetts. The demographic distribution of

severe cases is of particular importance here, because

Massachusetts has the highest percentage of elderly prisoners

relative to all other States.9 Prisoners also have been shown to

age more rapidly than the general population, typically

developing the chronic conditions and disabilities associated

with old age ten to fifteen years earlier than their

8 According to data published by the DPH, on April 17, 2020,
the date the plaintiffs' complaint was filed, there were 34,402
confirmed cases of COVID-19 in Massachusetts. By the date of
oral argument on May 7, 2020, that number had more than doubled
to 73,721 cases. As of May 29, there were 95,512 confirmed
cases in Massachusetts.

9 As of May 11, 2020, thirteen percent of the prisoners in
DOC custody (957 of 7,343) were age sixty or older and thirty-
one percent (2,265) were age fifty or older.
 8

nonincarcerated counterparts. According to estimates by the

Commissioner of Correction (commissioner), fifty percent of the

inmates under her care and control either are over sixty years

of age or have an underlying medical condition that puts them at

heightened risk for a severe course of COVID-19, should they

contract the virus.

In CPCS v. Trial Court, 484 Mass. at 456 (Appendix B), we

appointed a special master and established daily reporting

requirements in order to monitor the populations of

Massachusetts correctional institutions, and the progression of

COVID-19 within them. As of May 25, 2020, the DOC reported 396

confirmed cases among inmates. The vast majority of these cases

were found in three institutions: the Massachusetts

Correctional Institution (MCI)-Shirley (160 cases) and MCI-

Framingham (84 cases); and the Massachusetts Treatment Center

(MTC) (130 cases). Five other institutions had at least one

case among the incarcerated, and the rest reported zero

confirmed cases. The data do not reveal how many of these

individuals are actively symptomatic or how many have recovered

from the disease. Eight incarcerated individuals have died of

COVID-19.

Staff at a number of correctional institutions also have
 9

tested positive for the virus.10 As of May 25, 2020, 182 DOC

staff, across eleven DOC facilities, had confirmed cases of

COVID-19. While MCI-Shirley, the MTC, and MCI-Framingham again

had the highest numbers of positive tests, the distribution of

infections amongst staff is broader than that of the inmates.

As we noted in CPCS v. Trial Court, 484 Mass. at 437, infections

among staff are of particular concern. They not only risk

bringing the virus into prisons, thereby spreading it amongst a

closely confined, captive, and especially vulnerable population,

but they also risk spreading the virus from prisons into the

broader community. Id. As with inmates, the data do not reveal

how many staff are currently symptomatic or recovered.

Currently, no correctional staff have died of COVID-19.

As part of ascertaining how crowded these facilities are,

the parties ask us to compare the total number of prisoners to

dueling definitions of prison capacity: operational capacity or

design capacity. Operational capacity is based on guidelines

issued by the Association of State Correctional Administrators.

CPCS v. Trial Court, 484 Mass. at 439 n.12. Design capacity

refers to "[t]he number of inmates that planners or architects

intended for the institution," as revised by a rating official

10In discussing staff, we include both those employed
directly by the DOC and also vendors and subcontractors who work
within correctional institutions.
 10

from within the DOC. See Governor, Quarterly Report on the

Status of Prison Capacity, Fourth Quarter 2019, 10 (Apr. 2020)

(defining design capacity). In every facility in Massachusetts,

the operational capacity is higher than the design capacity,

sometimes significantly so. In the most pronounced example, the

North Central Correctional Institution at Gardner (NCCI-Gardner)

has a design capacity of 568 inmates, but an operational

capacity of 974 inmates.

The metric matters. As of May 25, 2020, no DOC facility

was over its operational capacity, and five were operating at

less than fifty percent of operational capacity.11 The DOC

system as a whole was at approximately sixty-five percent of

operational capacity (6,639 prisoners out of a total operational

capacity of 10,209). By contrast, five institutions were over

their design capacities, including NCCI-Gardner (medium

security), which was at 160 percent of its design capacity. In

aggregate, the DOC was operating at approximately eighty-nine

percent of its design capacity (6,639 prisoners and design

capacity of 7,492).

11The three institutions at which there have been the most
significant COVID-19 outbreaks do not stand out as notably
crowded. The MTC is at 80% of operational capacity and 94% of
design capacity; MCI-Shirley (medium security) is at 81% of
operational capacity and 121% of design capacity; and MCI-
Framingham is at 20% of operational capacity and 26% of design
capacity.
 11

2. Efforts at containment in correctional institutions.

This court and all parties agree that correctional institutions

face unique difficulties in keeping their populations safe

during this pandemic. Because the constitutional adequacy of

the DOC's measures to control the spread of COVID-19 in its

facilities is central to this litigation, we review them at some

length.

a. Policy directives. When the Governor declared a state

of emergency on March 10, 2020, the DOC began implementing its

COVID-19 control plans. Beginning on March 12, 2020, the

commissioner delivered a series of directives, memoranda, and

advisories to both inmates and staff. These essentially weekly

communications document escalating and responsive efforts to

implement guidance from the Centers for Disease Control (CDC)

and the Department of Public Health (DPH). The interim guidance

by the CDC itself recognizes that full compliance with best

practices is not feasible in all facilities; therefore, the

commissioner has required each facility in Massachusetts to

create its own compliance plan. See Interim Guidance on

Management of Coronavirus Disease 2019 (COVID-19) in

Correctional and Detention Facilities (Mar. 23, 2020) (Interim

Guidance), https://www.cdc.gov/coronavirus/2019-

ncov/downloads/guidance-correctional-detention.pdf

[https://perma.cc/MXY3-ETDL].
 12

For example, the first memoranda issued guidance concerning

proper hand-washing technique, sanitation, and questions used to

screen potentially symptomatic staff and inmates. The advisory

issued on March 20, 2020, limited transports between facilities,

authorized staff to wear personal protective equipment (PPE) in

high-risk parts of facilities, and upgraded cleaning and

disinfection protocols. One week later, the guidance required

staff to wear masks, provided PPE to certain inmates in

especially high-risk areas, and allowed alcohol-based hand

sanitizer, something that previously had been discouraged in

prison settings. On April 3, 2020, the commissioner initiated a

system-wide lockdown. Since then, inmates who live in cells

have been spending twenty-three hours per day in their cells,

while inmates living in dormitory-style housing have been unable

to leave their units.

While the plaintiffs contest whether these various

directives are sufficient ultimately to ensure inmate safety, it

is difficult to dispute that they show ongoing attention -- at

least at the level of planning and policy -- both to guidance

from the CDC and DPH and to the evolving situation on the

ground. Nonetheless, as the boxer Mike Tyson once said,

"Everyone has a plan until they get hit." That is to say, even

the most meticulous and exceptional planning by the DOC still

might not meet constitutional muster if there are pervasive
 13

failures in implementation. We therefore examine the execution

of these plans and procedures.

b. Physical distancing. Physical distancing between

individuals (so-called "social distancing") has been a

cornerstone of the public health response to COVID-19, both in

the United States and around the world. See generally Interim

Guidance, supra. The CDC defines social distancing as "the

practice of increasing the space between individuals and

decreasing the frequency of contact to reduce the risk of

spreading a disease (ideally to maintain at least [six] feet

between all individuals, even those who are asymptomatic)." Id.

at 4. By following these practices, the goal is to slow the

rate at which the disease progresses through the population.

Since the first case of COVID-19 was detected in a DOC

facility, the DOC has taken steps to implement physical

distancing within all of its facilities. Initially it banned

contact sports, and later banned all use of gyms, weights, and

prison yards. Some inmate beds were moved further apart, and,

in accordance with CDC guidance, inmates were asked to sleep

head to foot, so as to increase the distance between their

faces. Meals now are served in cells or dormitories to avoid

congregation in dining areas. Staff have attempted, apparently

at times unsuccessfully, to reduce or eliminate medication

lines.
 14

Certain aspects of prison design limit the degree to which

physical distancing is possible. Due both to the fact that some

single cells have been reserved for quarantining inmates and

because of the underlying building designs, currently fifty-

eight percent of inmates sleep either in a two-person cell or in

a dormitory-style room. Since the lockdown, these inmates sleep

and live within six feet of at least one other inmate, and

sometimes many more. Approximately seventy percent of prisoners

eat within six feet of another prisoner.

For example, plaintiff Michael White resides in a

dormitory-style room at MCI-Concord that contains bunkbeds for

approximately eighty inmates. The beds are three feet apart,

the sinks are one foot apart, and White generally eats within

arm's reach of at least one other inmate. White's account of

attempting to maintain appropriate distance in a dormitory

setting is consistent with accounts by plaintiffs Ryan Duntin

and Dana Durfee. Moreover, while the occupants of a dormitory

may be siloed from other groups of inmates in the prison

(something the DOC calls "cohorting"), if an asymptomatic guard

or other staff member were to introduce the virus, this type of

"cohorting" would be ineffective to prevent the spread of COVID-

19 to those housed in the unit.

The DOC argues that, even if those in double cells are

unable to maintain physical distance from their cellmates, the
 15

conditions are consistent with physical distancing guidance

provided by the CDC because each pair of cellmates is analogous

to a family unit in the broader community -- not distanced from

one another, but from every other set of cellmates. This

argument has merit as far as it goes, but runs up against basic

aspects of prison design: those housed in double and single

cells still often must share showers, toilets, sinks, and

telephones with those in other cells on their tier or in their

block. Inmate testimony credited by the Superior Court judge

consistently reported a lack of physical distancing with those

in other cells while individuals use these essential fixtures or

await their turn to do so.

c. Facility sanitation and personal protective equipment.

The DPH is statutorily required to conduct biannual inspections

of DOC facilities for compliance with health and sanitation

regulations and to report on its findings and recommendations.

See G. L. c. 111, § 20; 105 Code Mass. Regs. §§ 451.401 et seq.

The plaintiffs draw our attention to recent reports for each DOC

facility showing that health code violations for most facilities

number in the hundreds. The plaintiffs emphasize violations of

regulations that recommend a specific amount of floor space per

prisoner, and point out that twelve DOC facilities house at

least some inmates in cells that do not meet the DPH recommended

standards. These violations are concerning generally, and all
 16

the more so under conditions of global pandemic.

We note, however, that the mere number of violations only

paints a partial picture. It does not distinguish between

mandatory regulations (105 Code Mass. Regs. §§ 451.100, 451.200)

and recommended standards (105 Code Mass. Regs. §§ 451.300).

Furthermore, the violations vary significantly in severity. At

MCI-Framingham, for example, violations range from a paper towel

dispenser that was not stocked at the time of inspection and a

dusty wall fan to evidence of a "chronic rodent and insect issue

in the food service areas." Counting the number of violations

alone does not capture this distinction. Some chipped paint has

little bearing on our analysis here; bathroom and shower areas

at the MTC that were so poorly maintained as to yield an

"increased risk of disease transmission" are highly germane.

In March 2020, the DOC began ordering large amounts of PPE

and cleaning supplies. Cleaning regimens at all DOC facilities

have been enhanced, and disinfectant cleaning supplies have been

made available to inmates so that they may clean their own

cells. As stated, the DOC also has begun to allow alcohol-based

hand sanitizer, which it has distributed widely across its

facilities. Despite these efforts, both cleaning supplies and

hand sanitizer periodically have run short. The precise extent

of these shortages varies by institution and remains the subject

of some factual dispute.
 17

While initially PPE was provided only to correctional staff

in specific, high-risk areas, its use has expanded as the

pandemic has progressed. Since March, staff have been required

to wear masks at all times within the facilities. Between April

24, 2020, and April 28, 2020, the DOC distributed surgical masks

to all inmates. Not all staff have complied entirely with PPE

mandates; likewise, some inmates have not followed the DOC's

"strong encouragement" to wear the masks provided. Supervising

officers have used video surveillance records to discipline

officers who have failed to comply with PPE requirements,

including one officer who was suspended for five days when he

and all of his staff were found not to be wearing masks.

d. Entrance screenings and quarantines. To prevent the

introduction of the virus into its facilities, the DOC has

limited access to prisons; it has allowed only staff and

attorneys to enter, and has prohibited visitors and volunteers.

Each facility screens all those who seek entry according to

protocols developed with reference to the guidance issued by the

CDC and DPH. These protocols involve a questionnaire and self-

administered temperature check; those with temperatures over

99.9 degrees Fahrenheit categorically are denied admittance.

The effectiveness of these screenings are limited by the fact

that, as all parties agree, asymptomatic individuals can spread

the disease.
 18

In every facility, the DOC has set aside areas to isolate

and quarantine confirmed and suspected cases of COVID-19, as

well as inmates who have refused to be tested. Individuals

entering DOC custody are quarantined for two weeks. As of

May 1, 2020, there were "many open cells in the quarantine

unit[s]" available should COVID-19 cases spike. Inmates who

believe they are at heightened risk proactively may request

isolation (being held in a single cell), subject to a medical

evaluation, but there is not enough space to place all inmates

at heightened risk, which would amount to one-half of the DOC

population, in single cells. Moreover, both the commissioner

and the plaintiffs share a concern for the mental health

implications of long-term single-cell isolation.

e. Testing. The DOC's testing strategy has evolved as the

pandemic has progressed. The DOC conducted its first COVID-19

test on March 19, 2020, when an inmate at the MTC presented with

symptoms. DOC reports that initially it followed CDC and DPH

guidelines by deferring to the medical judgment of the medical

providers at each facility as to the testing needed. This

generally involved testing inmates who were symptomatic or who

had been in close contact with someone who tested positive.

On April 22, 2020, large-scale mobile testing became

available to the DOC, and it began administering tests to any

inmate or patient who voluntarily agreed to be tested, facility
 19

by facility. As of May 25, 2020, the DOC had offered tests to

all inmates or patients at thirteen facilities. According to

the schedule it submitted in its Mass. R. A. P. 16 (l) letter,

all inmates will be offered an initial test by the end of May.

Any staff member may receive a test at any time upon request.

f. Decreasing population. The plaintiffs seek an order

requiring the defendants to reduce the population of

incarcerated persons until no prisoner is housed in a

correctional facility where the population exceeds the design

capacity of the institution or until no inmate is housed in a

cell that does not meet the DPH-recommended floor space

regulations. It is unclear how many individuals would be

required to be released in order to meet these criteria. At the

evidentiary hearing, the commissioner agreed that decreasing the

inmate population at DOC facilities could help contain the

spread of COVID-19, and that measures to do so should be taken,

so long as they are lawful and appropriate in light of the over-

all health and safety of the public.

The commissioner has several tools at her disposal to

reduce the population in DOC custody, including medical parole,

good time credit, and furloughs. The Superior Court judge found

that the DOC has taken multiple steps to expedite the medical

parole process, including shortening internal deadlines,

reviewing home plans earlier in the process, and notifying
 20

MassHealth so that the inmate has medical insurance upon

release. Since our decision in CPCS v. Trial Court, 484 Mass.

at 435-436, 456-457 (Appendix B), twenty-six individuals have

been approved for medical parole; it remains unclear how many of

those individuals actually have been released.12

Pandemic lockdown conditions effectively can lengthen

sentences by limiting the opportunities by which inmates

ordinarily would be able to earn good-conduct sentence

deductions, or "good time credit." See G. L. c. 127, § 129D.

The statute permits 7.5 days of good time credit per activity,

and fifteen days total per month. See id. In response to the

pandemic, the commissioner awarded full good time credit for the

month of March 2020 for anyone who had been earning such credit

on March 1. She also established a journaling program by which

inmates can earn 7.5 days of good time credit for the month of

April. Therefore, in April, inmates were eligible for one-half

the good time credits they ordinarily would have been able to

obtain. The commissioner indicated in her testimony that she

was considering expanding these opportunities in May; the record

does not indicate whether she has done so.

The DOC has not used furloughs since the 1990s, based on a

belief that it is "bad policy" to release an inmate who later

12See Robert Malloy & another vs. Department of Correction,
SJC No. 12961.
 21

must be reincarcerated. Accordingly, the DOC has not furloughed

any inmates during the pandemic.

The commissioner does not believe that she has statutory

authority to allow inmates to serve any portion of their State

prison sentence under home confinement. We do not agree. See

G. L. c. 127, §§ 48, 49, 49A; Commonwealth v. Donohue, 452 Mass.

256, 265 (2008); discussion part 6, infra.

3. Plaintiffs committed for substance abuse treatment.

Under G. L. c. 123, § 35, Massachusetts courts are authorized to

commit an individual for involuntary substance use disorder

treatment upon a finding that the individual has a substance use

disorder and that the disorder poses a likelihood of serious

harm. See Matter of G.P., 473 Mass. 112, 120 (2015).

Generally, committed individuals are sent to unsecured

treatment facilities licensed by the DPH or the Department of

Mental Health. See G. L. c. 123, § 35. If DPH informs the

judge issuing the commitment that no such facilities are

available, or "if the court makes a specific finding that the

only appropriate setting for treatment for the person is a

secure facility," the judge may commit the individual to a

secure facility designated by the commissioner. Id. Currently,

there are three secure facilities in the Commonwealth. The DOC

operates the Massachusetts Alcohol and Substance Abuse Center

(MASAC), which is located at the MCI-Plymouth prison. The
 22

Hampden County sheriff, under an agreement with the DOC,

operates the Stonybrook Stabilization and Treatment Centers at

Ludlow and Springfield, both of which are located at the Hampden

County Correctional Center.

a. General precautions. Both the DOC and the Hampden

County sheriff's office have taken steps to protect their

patients from COVID-19. All persons entering their facilities

are screened for symptoms of COVID-19 and are held in a medical

quarantine unit for fourteen days. Staff members are required

to wear masks; for certain activities, they also wear gloves.

The degree of compliance with these requirements remains in

dispute. A declarant and an affiant for the plaintiffs state

that masks and gloves are not consistently used or changed

between uses at MASAC. All patients have been given masks and

soap. MASAC does not provide soap in the bathrooms, so patients

must bring their personal soap with them. At MASAC, a private

vendor cleans and sanitizes the facility daily, including within

patient rooms. Between March 13 and April 23, 2020, the MASAC

population declined by eighty-two percent, and the Stonybrook

population declined by fifty-seven percent. As of May 25, 2020,

MASAC held forty-three patients. This amounts to twenty-nine

percent of its design capacity and seventeen percent of its

operational capacity. Due to the low censuses, all patients

have been given single occupancy rooms. On May 23, 2020, MASAC
 23

reported that two patients tested positive for COVID-19. One

MASAC staff member had also previously tested positive.

b. Treatment. The parties offer divergent accounts of the

degree to which treatment has been interrupted by the pandemic;

the Superior Court judge did not make findings discrediting any

of these differing reports. Plaintiff Mark Santos was committed

to MASAC on March 4, 2020. He avers that because MASAC went

into a lockdown on April 3, 2020, he was required to remain in

his cell, and could leave only to go to the restroom, make a

telephone call, or receive medication. Santos states that most

treatment classes were canceled in mid-March, and he attended

only one daily group session before the lockdown. The lockdown

was still in effect when he was released on April 9, and Santos

avers that he received no treatment during the lockdown. The

DOC concedes that it instituted a lockdown at MASAC in order to

make COVID-19 response plans, but maintains that the lockdown

lasted only three days.

Declarant Robert Peacock was committed to MASAC on

April 24, 2020, and executed his declaration on April 28, 2020.

He stated that he had been locked in his cell continuously since

being committed, and could leave only to shower. He said as

well that he had received no counselling or any other type of
 24

treatment since his arrival.13

The DOC asserts that, for the first three days of their

fourteen-day intake, patients are restricted to an observation

room and assessed daily by clinical staff. After three days,

patients who have been "detox cleared" are moved out of the

observation room but remain in the separate unit. For the

remainder of the fourteen-day period, patients receive

"individual services" from a substance use disorder counsellor.

Thereafter, MASAC patients are moved to the general treatment

unit, where they attend group sessions and other programming.

The Hampden County sheriff's office reports that new

patients are provided substance abuse treatment while in their

initial fourteen-day quarantine, and that, due to the lower

population, patients currently receive more programing overall

than they would have prior to the pandemic.

Discussion. 1. Standard of review. "A party seeking a

preliminary injunction must show that success is likely on the

merits; irreparable harm will result from denial of the

injunction; and the risk of irreparable harm to the moving party

13The DOC maintains that Robert Peacock initially exhibited
signs of withdrawal and confusion, and therefore was kept in an
observation room until April 28, 2020, when he was "detox
cleared." The DOC asserts that, on April 29, 2020, he met with
a substance abuse counsellor, who described the program,
explained the expectations of patients, and gave him some
written treatment materials.
 25

outweighs any similar risk of harm to the opposing party"

(quotation and citations omitted). Doe v. Worcester Pub. Sch.,

484 Mass. 598, 601 (2010). "In cases in which a public entity

is a party, a judge may also weigh the risk of harm to the

public interest in considering whether to grant a preliminary

injunction" (citations omitted). Id. See Fordyce v. Hanover,

457 Mass. 248, 255 n.10 (2010); Packaging Indus. Group, Inc.,

380 Mass. at 616-617. "[T]he movant's likelihood of success is

the touchstone of the preliminary injunction inquiry. [I]f the

moving party cannot demonstrate that he is likely to succeed in

his quest, the remaining factors become matters of idle

curiosity." (Quotations and citations omitted.) Maine Educ.

Ass'n Benefits Trust v. Cioppa, 695 F.3d 145, 152 (1st Cir.

2012).

2. Class certification. In their complaint and in their

motion for injunctive relief, the plaintiffs purport to

represent one over-all class of individuals that also is made up

of two smaller subclasses. They seek class certification for

all classes. The broad injunctive relief sought by the

plaintiffs is possible only if there is a class that may be

certified. Thus, in order to determine whether their class

claims have a reasonable likelihood of success, a prerequisite

for granting a preliminary injunction, we first must determine

whether the requested classes may be certified.
 26

Under Mass. R. Civ. P. 23 (a), as amended, 471 Mass. 1491

(2015), members of a class may represent the class "only if

(1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common to

the class, (3) the claims or defenses of the representative

parties are typical of the claims or defenses of the class, and

(4) the representative parties will fairly and adequately

protect the interests of the class." Additionally, the court

must conclude that "the questions of law or fact common to the

members of the class predominate over any questions affecting

only individual members, and that a class action is superior to

other available methods for the fair and efficient adjudication

of the controversy." Mass. R. Civ. P. 23 (b). The plaintiffs

bear the burden of providing "information sufficient to enable

the motion judge to form a reasonable judgment that the class

meets the requirements of rule 23" (quotation and citation

omitted). Gammella v. P.F. Chang's China Bistro, Inc., 482

Mass. 1, 12 (2019).

While the precise contours of the global class that the

plaintiffs ask us to certify remain somewhat unclear, they are

clear as two specific putative subclasses: medically vulnerable

individuals who are at high risk for serious complications or

death from COVID-19 due to their underlying medical conditions

or age, and those being held for treatment pursuant to G. L.
 27

c. 123, § 35.

We conclude that the plaintiffs have shown a substantial

likelihood that a class of medically vulnerable inmates who are

currently serving criminal sentences, or who will begin serving

such sentences in the future, can be certified. According to

the commissioner, nearly one-half of the DOC population is

potentially at heightened risk of a serious course of the

disease, leaving little question of numerosity. While there may

be some variance between facilities, the legal claim and its

basic factual underpinning are common to all potential class

members: that the increased risk of contracting COVID-19 caused

by the current conditions of the correctional facilities, in

concert with the individuals' medical vulnerability, constitutes

cruel and unusual punishment. Because this is precisely the

claim of several of the named class members, they appear to be

sufficiently typical and to have a substantial basis to show

that they adequately and fairly can represent the class.

Although the plaintiffs have shown that they are not

precluded from establishing a substantial likelihood of success

on the merits in at least one of their requests for class

certification, we do not have an adequate basis in this record

to ascertain the proper contours of who qualifies as medically

vulnerable. Nor, on this record, can we determine whether there

is adequate commonality in the named plaintiffs and the
 28

superclass of all incarcerated individuals the plaintiffs also

seek to represent. While we understand the pressing urgency of

this litigation, the Superior Court judge is better positioned

to take expert testimony and to determine the appropriate

definition of medically vulnerable individuals for purposes of

this litigation. See Weld v. Glaxo Wellcome Inc., 434 Mass. 81,

87 n.8 (2001), citing Carpenter v. Suffolk Franklin Sav. Bank,

370 Mass. 314, 317–318 (1976) (unlike its Federal counterpart,

rule 23 of Massachusetts Rules of Civil Procedure does not

mandate early ruling on class certification).

The second subclass that the plaintiffs seek to represent,

those being held under G. L. c. 123, § 35, presents an entirely

different issue. As the defendants point out, Mark Santos, the

proposed representative of this class, was released eight days

before the filing of the complaint. He makes no claim that he

is likely to be committed again. Thus, he would not be able to

bring this claim on his own behalf because injunctive relief,

preliminary or otherwise, would not redress his asserted

injury.14 See Los Angeles v. Lyons, 461 U.S. 95, 102 (1983);

LightLab Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 194

14Our holding in Matter of a Minor, 484 Mass. 295, 299-300
(2020), that the minor's release from commitment did not render
his appeal moot, is inapposite. Santos does not appeal from the
initial commitment decision. Cf. id. Rather, he argues, on
behalf of the class, that the conditions of confinement during
the pandemic render continued confinement unconstitutional.
 29

(2014). Because he could not bring an action on his own behalf,

Santos cannot represent the purported class.15 See Doe v.

Governor, 381 Mass. 702, 704–705 (1980).

The plaintiffs' ability to locate a substitute class member

seems virtually certain. Indeed, even this limited record

contains an affidavit from Peacock, who was relatively newly

committed when the complaint was filed, setting forth his

concerns about lack of programming, the close to twenty-four

hours per day he was held in his room, proximity to others when

using certain necessary facilities, and cleanliness of shared

surfaces.

If, as appears virtually certain, the plaintiffs are able

to obtain a suitable representative whose claims are typical of

the class, we anticipate that they will succeed in meeting the

certification requirements. Multiple questions of law and fact

15Any anticipated future mootness of the class
representative's individual claims should not preclude class
certification, where the "claims are so inherently transitory
that the trial court will not have even enough time to rule on a
motion for class certification before the proposed
representative's individual interest expires" (citation
omitted). See County of Riverside v. McLaughlin, 500 U.S. 44,
52 (1991), and cases cited. See also Gammella v. P.F. Chang's
China Bistro, Inc., 482 Mass. 1, 20 n.24 (2019); Gonzalez v.
Commissioner of Correction, 407 Mass. 448, 452 (1990). Thus,
had Santos been committed when the complaint was filed, his
subsequent release would not have prevented the class from being
certified or Santos from continuing to represent it. Here,
however, the issue is not mootness; rather, Santos lacked
standing from the start. See County of Riverside, supra at 51
(distinguishing mootness from lack of standing).
 30

are common to all putative class members, including issues

regarding conditions of treatment and the risk of transmission

in these conjugate settings. Based on the broad nature of the

plaintiffs' arguments, the issues in common apparently

predominate over those they may not share. The numerosity

requirement almost certainly will be met because dozens of class

members likely exist, and new commitments are ongoing, rendering

joinder of all members impracticable. See Gammella, 482 Mass.

at 11–12 & n.15. Lastly, adequacy exists due to the apparent

lack of conflict between class members, and class counsel's

ability vigorously to pursue the action. See In re Hyundai &

Kia Fuel Economy Litigation, 926 F.3d 539, 566 (9th Cir. 2019).

Thus, we defer the issue of certification to allow the

plaintiffs to locate and substitute an appropriate

representative. See Gonzalez v. Commissioner of Correction, 407

Mass. 448, 451-453 (1990) (holding that named plaintiff's claims

were moot, denying defendant's motion to dismiss, and remanding

matter to Superior Court with instructions to dismiss in set

period of time if substitute plaintiff could not be found). See

also Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974) (party may

amend pleading "by leave of court or by written consent of the

adverse party; and leave shall be freely given when justice so

requires").

Despite the open questions of class certification that we
 31

remand for resolution in the Superior Court, we address the

merits of the preliminary injunction, which has been briefed and

argued before us. See O'Sullivan v. Secretary of Human Servs.,

402 Mass. 190, 192 (1988) (reaching merits of case, despite

mootness of named plaintiffs, because defendants did not argue

mootness and because counsel "apparently [were] prepared to

pursue this action on behalf of [a substitute plaintiff]");

Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 Mass. 705,

713 (1977) (no error where court ruled on merits of case without

ruling on class certification); Gooch v. Life Investors Ins. Co.

of Am., 672 F.3d 402, 432–433 (6th Cir. 2012) (no error where

court ruled on preliminary injunction before class

certification). The urgency of the claims raised convinces us

that delaying resolution of the motion would do an injustice.

3. Constitutional claims. While the plaintiffs' briefs do

not make this distinction entirely clear, because only inmates

who have been convicted and are serving a sentence are subject

to punishment by the Commonwealth, the Eighth Amendment claims

are applicable only to this group. Any relief sought by civilly

committed individuals must be sought on the grounds of a

violation of substantive due process rights; because they are

not being punished, the Eighth Amendment's protections against

cruel and unusual punishment do not apply. See Youngberg v.

Romeo, 457 U.S. 307, 315–316 (1982).
 32

We consider first the claims of the incarcerated

individuals.

a. Eighth Amendment claims. The plaintiffs contend that

their conditions of confinement, and the defendants' failure to

expedite the release of a greater number of individuals from

incarceration, using any of a number of mechanisms, violate

their rights under the Eighth and Fourteenth Amendments and

arts. 1, 10, 12, and 26.

Because we have not held that art. 26 provides greater

protections with respect to conditions of confinement than does

the Eighth Amendment, and conditions for the civilly committed

must be at least as good as for those who are serving sentences

of incarceration, see Youngberg, 457 U.S. at 321-322, we

consider first the plaintiffs' likelihood of success under the

Eighth Amendment.

"The Eighth Amendment . . . prohibits any punishment which

violates civilized standards and concepts of humanity and

decency." Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992).

As the plaintiffs observe, the Eighth Amendment applies to

conditions of confinement that are separate from and independent

of any condition imposed as a part of sentencing. See Helling,

509 U.S. at 32-33.

"[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution imposes upon
it a corresponding duty to assume some responsibility for
 33

his safety and general well being. . . . The rationale for
this principle is simple enough: when the State by the
affirmative exercise of its power so restrains an
individual's liberty that it renders him unable to care for
himself, and at the same time fails to provide for his
basic human needs -- e.g., food, clothing, shelter, medical
care, and reasonable safety -- it transgresses the
substantive limits on state action set by the Eighth
Amendment . . . ." (Quotation and citation omitted.)

Id. at 32.

In order to establish an unconstitutional condition of

confinement, a claimant must show both an objective element and

a subjective element. Wilson v. Seiter, 501 U.S. 294, 298

(1991). The objective element requires an inmate to show that

his or her living conditions amount to a "serious deprivation[]

of basic human needs," Rhodes v. Chapman, 452 U.S. 337, 347

(1981), which can include denial of medical care for serious

medical needs, Estelle, 429 U.S. at 102-105.

The subjective element requires an inmate to demonstrate

that prison officials acted or failed to act with deliberate

indifference. Id. at 106. See Torres, 427 Mass. at 614. "[A]

prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement

unless the official knows of and disregards an excessive risk to

inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he [or she] must also draw the

inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). While
 34

subjective knowledge is a question of fact that a claimant must

establish, and it is necessary to distinguish between obvious

risks and a prison official's actual knowledge of the risk,

where the risk is so obvious that a reasonable person would

realize it, "a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was

obvious." Id. at 842.

b. Risk of contracting COVID-19 in the Commonwealth's

prisons. As stated, an inmate asserting unconstitutional

conditions of confinement first must establish, objectively,

that the conditions pose a "substantial risk of serious harm."

See Farmer, 511 U.S. at 834, citing Helling, 509 U.S. at 35.

See also Rhodes, 452 U.S. at 347 (Eighth Amendment violation

requires showing that living conditions amount to "serious

deprivation of basic human needs," including denial of medical

care for serious medical needs).

The defendants contend that the incarcerated plaintiffs

will be unable to establish the objective component of their

deliberate indifference claim; they argue,

"No prisoner has been forced to endure an extreme
deprivation or even an unreasonable risk to their health or
safety. The measures mentioned above, such as increased
cleaning and sanitizing operations, distribution of PPE to
all inmates and staff, posting of educational and
institutional flyers and memoranda, and encouraging social
distancing as much as possible, rival that which is being
done in the community to help combat the spread of an
insidious disease that all Americans, inmate or not, are at
 35

risk of contracting."

We do not agree. Notwithstanding the claim that no inmate has

had to endure an unreasonable risk to health or safety as a

result of being incarcerated during the COVID-19 pandemic, there

can be no real dispute that the increased risk of contracting

COVID-19 in prisons, where physical distancing may be infeasible

to maintain, has been recognized by the CDC and by courts across

the country.16 See, e.g., Baez vs. Moniz, U.S. Dist. Ct., No.

20-10753-LTS (D. Mass. May 18, 2020) ("There is, and can be, no

meaningful dispute that COVID-19 presents a substantial risk of

serious harm to health, to the proposed class of petitioners in

this case as well as to members of society at large"); Refunjol

vs. Adducci, U.S. Dist. Ct., No. 2:20-cv-2099 (S.D. Ohio May 14,

2020) ("The objective component of the inquiry is beyond debate.

Nobody can dispute that COVID-19 is a sufficiently serious

medical need . . . ."); Frazier vs. Kelley, U.S. Dist. Ct.,

No. 4:20-cv-00434-KGB (E.D. Ark. May 4, 2020) ("[I]t cannot be

disputed that COVID-19 poses an objectively serious health risk

16That the CDC interim guidance for prisons recognizes that
in some instances it may not be feasible to maintain the
recommended six feet, and offers other guidance that may help to
reduce the risk as far as possible in such circumstances, does
not mean, as the defendants appear to suggest, that the CDC
recommends maintaining a lesser distance among incarcerated
individuals than among others; it clearly states repeatedly that
six feet or more "ideally" should be maintained between
incarcerated individuals, including in housing arrangements.
See Interim Guidance, supra at 3, 4, 11, 13, 19, 20.
 36

to named plaintiffs and the putative classes given the nature of

the disease and the congregate living environment of the . . .

facilities").

Having concluded that the incarcerated plaintiffs almost

certainly will succeed in establishing the objective component

of their claims under the Eighth Amendment, we turn to

consideration of the subjective component, i.e., whether the

plaintiffs are likely to be able to establish deliberate

indifference on the part of the defendants.

4. Deliberate indifference. a. Applicable standard.

"While Estelle[, 429 U.S. at 105-106,] establishes that

deliberate indifference entails something more than mere

negligence, the cases are also clear that it is satisfied by

something less than acts or omissions for the very purpose of

causing harm or with knowledge that harm will result." Farmer,

511 U.S. at 835. "With deliberate indifference lying somewhere

between the poles of negligence on the one end and purpose or

knowledge at the other," courts frequently have described it as

"recklessly disregarding" a substantial risk of harm. Id. at

836, and cases cited. In other words, the subjective standard

for deliberate indifference requires the same showing of

"subjective recklessness" as would apply in the criminal

context. Id. at 839-840.

This is not a static determination. In a suit for
 37

prospective relief, "the subjective factor, deliberate

indifference, should be determined in light of the prison

authorities' current attitudes and conduct," including "their

attitudes and conduct at the time suit is brought and persisting

thereafter." Farmer, 511 U.S. at 845, quoting Helling, 509 U.S.

at 36. In making the requisite showing of subjective

culpability, the prisoner may rely "on developments that

postdate the pleadings and pretrial motions, as [prison

officials] may rely on such developments to show that the

[prisoner] is not entitled to an injunction." Farmer, supra at

846.

b. Analysis.17 Following the United States Supreme Court's

reasoning in Estelle, 429 U.S. at 106, and Helling, 509 U.S.

at 32-33, concerning prison officials' Eighth Amendment duty to

take reasonable steps to protect inmates from the spread of

serious communicable diseases, inmates across the country have

The plaintiffs urge that, rather than the objective and
17

subjective components of deliberate indifference, this court
apply the objective standard used in Kingsley v. Hendrickson,
135 S. Ct. 2466, 2473 (2015), in evaluating their Eighth
Amendment claims. This reasoning is misguided. Kingsley
involved a claim by a pretrial detainee under 42 U.S.C. § 1983,
concerning the use of excessive force. The detainee asserted a
violation of his substantive due process rights. Accordingly,
to prevail, he was required to show only that the intentional
use of force was excessive or objectively unreasonable, and not
that the official intended it to be so. This standard, however,
is inapplicable to claims of deliberate indifference under the
Eighth Amendment.
 38

brought a variety of actions successfully challenging the

policies, or lack of policies, of prison officials regarding the

spread of contagious diseases and other conditions that threaten

health throughout a prison. In Lareau v. Manson, 651 F.2d 96,

109 (2d Cir. 1981), for example, the United States Court of

Appeals for the Second Circuit applied this line of reasoning to

hold prison officials liable for violating the Eighth Amendment

when they made no efforts to screen incoming inmates for

contagious diseases, despite significant overcrowding that

further heightened the risk of infection. The court held that

aggrieved prisoners need not demonstrate that "an infectious

disease has actually spread in an overcrowded jail before

issuing a remedy." Id. See, e.g., DeGidio v. Pung, 920 F.2d

525, 533 (8th Cir. 1990) (prison officials were deliberately

indifferent to inmates' serious medical needs by consistent

pattern of reckless or negligent conduct in failing to prevent

and control prison's tuberculosis epidemic); Dunn v. White, 880

F.2d 1188, 1195 (10th Cir. 1989), cert. denied, 493 U.S. 1059

(1990) (observing that prison's failure to protect incarcerated

inmates from human immunodeficiency virus [HIV] infection may

violate Eighth Amendment); Smith v. Sullivan, 553 F.2d 373, 380

(5th Cir. 1977) (concluding that housing scabies- and gonorrhea-

infected inmates with healthy prisoners violates Eighth

Amendment).
 39

Where the risk of serious harm is substantial, but prison

officials have undertaken significant steps to try to reduce the

harm and protect inmates, courts have concluded that there was

no Eighth Amendment liability.18 In Butler v. Fletcher, 465 F.3d

340, 345 (8th Cir. 2006), cert. denied, 550 U.S. 917 (2007), for

example, the United States Court of Appeals for the Eighth

Circuit determined that the sheriff in charge of a county jail

was not deliberately indifferent to the risk of a tuberculosis

infection within the jail where the county adopted "policies

[that] specifically acknowledged the risk and promulgated

detailed procedures for the diagnosis, segregation, and

treatment of . . . inmates infected with active cases of

[tuberculosis]." See Johnson v. United States, 816 F. Supp.

1519, 1522-1525 (N.D. Ala. 1993) (applying reasoning in Lareau,

651 F.2d at 109, and concluding that inmate did not establish

violation of Eighth Amendment from being housed in cell with

patient who was dying from acquired immune deficiency syndrome,

where prison officials' policies educated inmates on "universal

precautions" and prohibited type of high risk behavior that

18Courts have relied on similar reasoning in considering
prison officials' policies with respect to other widespread
risks to health and safety. See, e.g., Rish v. Johnson, 131
F.3d 1092, 1099 (4th Cir. 1997) (requiring inmates to clean up
blood and bodily fluids without providing them gloves); Wallis
v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995) (requiring inmate
to clean attic full of asbestos, known carcinogen, without
protective equipment).
 40

could result in HIV infection).

While there are as yet no appellate court decisions on

claims asserting a violation of the Eighth Amendment due to the

increased risk of exposure to COVID-19 in prisons, a number of

Federal District Courts have considered the issue using a

similar analysis. For example, in Baez, No. 20-10753-LTS, the

United States District Court for the District of Massachusetts

concluded that the inmate-petitioners had not established a

likelihood of success on the merits. Given prison officials'

"many measures and policies aimed at keeping COVID-19 from

entering the facility," and the "meaningful actions" undertaken

"aimed at controlling and mitigating against the spread of

COVID-19 within the facility," the plaintiffs were unlikely to

show that prison officials had been "obdurate, wonton, or

reckless with respect to [the risk of COVID-19], or . . .

otherwise failed to take reasonable steps aimed at preventing or

mitigating the risk that COVID-19 presents to those detained."

Id. In Kevin M.A. vs. Decker, U.S. Dist. Ct., No. 20-4593 (KM)

(D.N.J. May 1, 2020), the United States District Court for the

District of New Jersey concluded that, due to the "numerous

affirmative steps to try and stop the spread of COVID-19" taken

by jail officials, and the "protocols for individuals who

exhibit symptoms," the inmate-petitioner had failed to

demonstrate deliberate indifference, notwithstanding that he
 41

became ill with COVID-19 while in custody.

To combat the spread of COVID-19 as far as possible, the

DOC has undertaken a number of measures, set forth in the

appointed judge's findings of fact, many of which are stipulated

to by the parties. These measures included lockdowns of the

facilities; prohibiting all outside visitors; restrictions and

self-examination on entry to any facility; isolation of

symptomatic inmates and those who have tested positive;

requiring staff to stay home for fourteen days if they have any

symptoms; mandating that staff wear masks when in contact with

inmates; distribution of additional cleaning supplies to all

inmates; increased cleaning of frequently touched surfaces;

making alcohol-based hand sanitizer available to inmates in

numerous facilities; having inmates eat in their cells or

housing units rather than at tables in larger groups; and

instructions, posters, and information on COVID-19 and its

spread, in both Spanish and English. To reduce inmates

congregating in close contact with each other, the DOC has

eliminated most group programming, work release, and academic

and job skills classes, as well as outdoor recreation time and

access to gyms and libraries, i.e., any activities where groups

of inmates would be together.

Over the course of this litigation, the DOC has obtained

and distributed PPE to staff and, recently, all inmates. It has
 42

required that staff in contact with inmates, and all inmates who

leave their cells or dormitories, wear masks at all times. The

DOC also recently has instituted some limited amount of outdoor

time for all inmates, in small groups approximately every four

days, so that physical distancing can be maintained.

In evaluating whether deliberate indifference has been

established, courts often have examined guidelines and standards

from professional associations and State codes. "Published

standards of medical care or adopted guidelines such as the

tuberculosis manuals . . . do not establish absolute standards

for measuring the constitutionality of official actions. But

neither may they be ignored by [S]tate officials, however. Such

standards and guidelines are useful measures for 'determining

whether contemporary standards of decency have been met.'"

DeGidio v. Pung, 704 F. Supp 922, 956 (D. Minn. 1989), aff'd,

920 F.2d 525 (8th Cir. 1980), quoting Ramos v. Lamm, 639 F.2d

559, 567 n.10 (10th Cir. 1980), cert. denied, 450 U.S. 1041

(1981). See, e.g., Lareau, 651 F.2d at 106 ("To inform itself

of contemporary standards, the district court considered

correctional guidelines and standards from a number of

organizations"). See also Williams v. Edwards, 547 F.2d 1206,

1214 (5th Cir. 1977) ("In the past we have affirmed findings of

constitutional violations based in part on [S]tate code

violations. . . . Such a standard is a valuable reference for
 43

what is minimal for human habitation in the public view, thus

serving as an indicator of evolving notions of decency"

[quotation and citation omitted]).

At oral argument, the plaintiffs were unable to point to

any area in which they assert that the DOC is not in compliance

with the CDC's interim guidance on prisons and jails with

respect to COVID-19. When questioned, the plaintiffs conceded

that the DOC in fact is in compliance with all CDC interim

guidance for correctional facilities. While compliance with

professional guidance is not enough, on its own, to establish

constitutionality (or a lack thereof), see Bell v. Wolfish, 441

U.S. 520, 543 n.27 (1979), such compliance does provide useful

indications to be considered in conjunction with other factors,

see Ramos, 639 F.2d at 567 n.10 ("a variance from [S]tate

standards or from standards promulgated by certain professional

organizations does not establish a per se constitutional

violation[;] it is a factor to be considered in determining

whether contemporary standards of decency have been met"). The

DOC's current compliance with CDC's interim guidance weighs

against a determination that the plaintiffs are likely to

succeed on the merits of their claims.

Another notable factor is the DOC's current widespread

testing program. As stated, testing, contact tracing, and

quarantine are considered the sine qua non of any effort to
 44

control the COVID-19 pandemic. See generally Interim Guidance,

supra. On March 19, 2020, the DOC first tested a symptomatic

inmate for COVID-19. Thereafter during that early period, only

inmates who presented as symptomatic, or, in a few cases, those

who had been in close contact with an inmate who had tested

positive, were being tested for COVID-19. When the plaintiffs

first commenced this action, the special master in CPCS v. Trial

Court, 484 Mass. at 456-457 (Appendix B), was presenting daily

reports showing little to no testing for COVID-19 at many

facilities, and, in particular, no testing of inmates at

facilities where a correction officer or other staff member had

tested positive for COVID-19. Based on the special master's

reports, the plaintiffs and the amicus American Civil Liberties

Union urged this court to conclude that there had been an Eighth

Amendment violation due to an apparent lack of basic contact

tracing, testing, and isolation, as recommended by the CDC, and

asked us to order testing of all inmates in DOC facilities. At

the same time, when the complaint in this case first was filed,

and even after the matter was assigned to the Superior Court

judge for fact finding, the DOC was asserting difficulty in

obtaining tests and a shortage of tests in all facilities.

Since that initial period of a few tests for symptomatic

inmates, if a test was recommended by an individual clinician

and as tests were available, the DOC has modified its testing
 45

strategies substantially. After oral argument in this case, and

increasingly throughout the month of May, the DOC has begun

widespread testing of nonsymptomatic inmates, as well as

offering testing to all correction officers upon request.

At oral argument, the attorney for the DOC stated that the

DOC had access to 10,000 COVID-19 tests, and that the DOC was

planning a large-scale testing program. In response to requests

by this court for additional information on the subject pursuant

to Mass. R. A. P. 16 (l), the DOC clarified that, as of May 11,

2020, it had 2,073 tests in its possession, was using a mobile

testing van to conduct tests, had been assured that there was

now no limit on the number of tests that it would be able to

obtain, and had begun to implement a system-wide testing plan.

Under this plan, all inmates and all staff at each facility,

regardless of whether they are symptomatic, will be offered

tests, and all facilities will have been tested by May 31, 2020,

following a schedule of approximately two days of testing at

each site.

Current widespread DOC testing efforts, if continued as

planned, will provide much of the testing relief that the

plaintiffs, and the amicus American Civil Liberties Union, urge

this court to order. This further supports the conclusion that

the plaintiffs are not likely to succeed on the merits of their

claims for violations of the Eighth Amendment.
 46

In sum, on this record, it appears unlikely that the

plaintiffs will be able to establish deliberate indifference on

the part of the DOC regarding their conditions of confinement as

a result of the pandemic. We turn to consider their claims for

violations of substantive due process.

5. Substantive due process claims for individuals

committed under G. L. 123, § 35. The plaintiffs argue that

commitment to a secured facility for substance abuse treatment

during the COVID-19 pandemic violates committed individuals'

substantive due process rights.

a. Professional judgment. In Youngberg, 457 U.S. at 315–

316, individuals who had been civilly committed based on

intellectual disabilities brought substantive due process

challenges regarding their conditions of confinement. The

United States Supreme Court concluded that, "[i]f it is cruel

and unusual punishment to hold convicted criminals in unsafe

conditions, it must be unconstitutional to confine the

involuntarily committed -- who may not be punished at all -- in

unsafe conditions." Id. Therefore, "when the State takes a

person into its custody and holds him [or her] there against his

[or her] will the Constitution imposes upon it a corresponding

duty to assume some responsibility for his [or her] safety and

general well-being." DeShaney v. Winnebago County Dep't of

Social Servs., 489 U.S. 189, 199-200 (1989), citing Youngberg,
 47

supra at 317. See Williams v. Hartman, 413 Mass. 398, 403

(1992).

Relying on these holdings, the plaintiffs maintain that

commitment for substance abuse treatment during the COVID-19

pandemic creates unsafe conditions of confinement. Under

Youngberg, 457 U.S. at 323, however, to establish a violation of

substantive due process, it is not sufficient to allege only

that conditions are unsafe. Rather, the test is whether a

"decision by [a] professional is such a substantial departure

from accepted professional judgment, practice, or standards as

to demonstrate that the person responsible actually did not base

the decision on such a judgment."19 See Hopper v. Callahan, 408

Mass. 621, 626–627 (1990), quoting Youngberg, supra.

The plaintiffs contend that commitment to a secured

facility during the COVID-19 pandemic is so contrary to

19In determining whether there was a violation of
substantive due process, some courts have applied the standard
of deliberate indifference to decisions made by
nonprofessionals. See, e.g., Lanman v. Hinson, 529 F.3d 673,
684 (6th Cir. 2008). This court, however, has rejected the
application of the deliberate indifference standard to
individuals who have been civilly committed because of their
intellectual disabilities. See Hopper v. Callahan, 408 Mass.
621, 627 & n.4 (1990). Additionally, the United States Supreme
Court's decision in Kingsley, 135 S. Ct. at 2473, casts doubt on
the applicability of a subjective standard to claims challenging
conditions of confinement for nonsentenced individuals. See
Smith v. Washington, 781 Fed. Appx. 595, 597-598 (9th Cir.
2019), quoting Castro v. County of Los Angeles, 833 F.3d 1060,
1071 (9th Cir. 2016), cert. denied, 137 S. Ct. 831 (2017)
(applying objective test to civil detainees).
 48

substance abuse treatment principles that it necessarily

constitutes a substantial departure from professional judgment.

They rely on the COVID-19 guidance from the Substance Abuse and

Mental Health Services Administration (SAMHSA), an entity within

the United States Department of Health and Human Services, which

states that residential treatment "has not been shown to be

superior to intensive outpatient treatment." Therefore,

"[b]ecause of the substantial risk of coronavirus spread with

congregation of individuals in a limited space such as in an

inpatient or residential facility, SAMHSA is advising that

outpatient treatment options, when clinically appropriate, be

used to the greatest extent possible." SAMHSA, Considerations

for the Care and Treatment of Mental and Substance Use Disorders

in the COVID-19 Epidemic (rev. May 7, 2020).

Contrary to the plaintiffs' characterizations, this

guidance does not state that inpatient treatment is never

advisable during the pandemic. Rather, SAMHSA states that

"[i]npatient facilities and residential programs should be

reserved for those for whom outpatient measures are not

considered an adequate clinical option[, such as] those with

mental disorders that are life threatening." Id. Commitment

under G. L. c. 123, § 35, intended to be a "carefully

circumscribed . . . tool of last resort," by definition is

limited to situations in which the individual poses a likelihood
 49

of serious harm. See Matter of a Minor, 484 Mass. 295, 311

(2020). If outpatient treatment, or any other plausibly

available option, would "bring the risk of harm below the

statutory thresholds that define a likelihood of serious harm,"

a judge may not commit the subject of a petition to any

facility, secure or unsecure. See id. at 310, citing Matter of

G.P., 473 Mass. at 128-129.

Commitment to a secure facility requires an additional

finding that an unsecure facility is unavailable or

insufficient. See G. L. c. 123, § 35. Once committed, the

superintendent of the facility may release an individual early

if there is not a likelihood of serious harm. See id. These

restrictions, if followed, should limit commitment to

individuals "for whom outpatient measures are not considered an

adequate clinical option," as recommended by SAMHSA.

The plaintiffs have presented no evidence of individuals

having been committed in contravention of these requirements.

Nonetheless, the plaintiffs maintain that commitment for

substance use disorder during the pandemic constitutes a

violation of professional judgment in every case. Without a

more complete factual record, and without expert guidance, we

are not able to reach such a broad conclusion.

b. Reasonable relation. The plaintiffs argue also that

civil commitment for substance abuse treatment during the COVID-
 50

19 pandemic does not advance sufficiently the treatment goals of

G. L. c. 123, § 35, and therefore violates their substantive due

process rights. Due process under the Federal Constitution

"requires that the conditions and duration of confinement under

the [statute] bear some reasonable relation to the purpose for

which persons are committed." Seling v. Young, 531 U.S. 250,

265 (2001), citing Foucha v. Louisiana, 504 U.S. 71, 79 (1992).

As the DOC notes in its opposition, however, under the

Massachusetts Declaration of Rights, civil commitment is subject

to a higher level of judicial review, i.e., strict scrutiny.

See Matter of a Minor, 484 Mass. at 309. Under strict scrutiny

review, a statute cannot stand unless it is "narrowly tailored

to further a legitimate and compelling governmental interest and

[is] the least restrictive means available to vindicate that

interest." Commonwealth v. Weston W., 455 Mass. 24, 35 (2009).

Both the "reasonable relation" standard and review under

strict scrutiny require the government to identify a purpose for

which a statute was enacted, and to show how the government

action is connected to that purpose. Review under strict

scrutiny, however, requires the government meet a much higher

burden for both elements of the test. Rather than simply

identifying a permissible purpose, the government must show that

the statute is designed to address a compelling government

interest. Otherwise put, here, rather than requiring only that
 51

the civil confinement be reasonably related to the government's

interest, the confinement must be narrowly tailored to that

interest as well as the least restrictive means by which to

accomplish the intended goal.

Because the plaintiffs presented their arguments to us

under the Federal standard, we address it first. In Doe v.

Gaughan, 808 F.2d 871, 874 (1st Cir. 1986), the plaintiffs

argued that, because they were committed to a correctional

institution, rather than a mental health facility, the nature of

their confinement was not reasonably related to the purpose for

which they were confined. The United States Court of Appeals

for the First Circuit disagreed; the court concluded that the

secure facility bore a "reasonable relationship both to the

[S]tate's public safety needs and to the patients' own

therapeutic interests in a secure environment." See id. at 878.

Conversely, in Jackson v. Indiana, 406 U.S. 715, 738-739 (1972),

the United States Supreme Court held that the confinement of an

incompetent defendant for more than three years bore no

reasonable relation to his commitment because there was no

substantial probability of his becoming competent.

General Laws c. 123, § 35, states that the purpose of

commitment is "inpatient care for the treatment of an alcohol or

substance use disorder." This treatment is intended to promote

the health and safety of the individual committed and others, as
 52

demonstrated by the statutory requirement that a committed

individual pose a danger to him- or herself, or a member of the

community. See G. L. c. 123, § 35. Therefore, if patients are

not receiving meaningful and reasonably effective treatment for

substance use disorders, which advances their health and safety,

their commitment violates Federal due process requirements.

The DOC and the Hampden County sheriff's office report that

committed individuals are held for the first fourteen days in a

separate unit and do not participate in group programming. The

plaintiffs argue that, during those fourteen days, committed

individuals receive "next to no treatment," and thus that their

confinement bears no reasonable relationship to the purpose of

commitment. The DOC reports, however, that after an initial

three-day observation period has ended, and the individual has

been "detox cleared," the individual receives daily "individual

services" from a substance abuse disorder counsellor. The

Hampden County sheriff's office reports that individuals receive

substance abuse treatment during their first fourteen days of

commitment. The record contains no information regarding the

nature and extent of these services.

We agree that, if the first fourteen days involve no real

treatment, or only minimal treatment, the plaintiffs would have

a strong claim. The DOC's deputy commissioner of clinical

services and reentry avers that many individuals are released
 53

after thirty days of confinement. As the plaintiffs note, the

first fourteen days of confinement account for almost one-half

of the total period of commitment for those individuals.

Without more information regarding the limited treatment

provided, however, and without expert testimony regarding the

efficacy of that limited treatment, we cannot conclude that

commitment during the pandemic bears no reasonable relation to

the purposes of the statute.

c. Strict scrutiny. As stated, the plaintiffs' complaint

and its arguments before this court rest on substantive due

process requirements under the Federal standard. Because civil

commitment involves a loss of liberty, a fundamental

constitutional right, however, we also consider the plaintiffs'

constitutional claims under the more stringent standard embodied

in the Massachusetts Declaration of Rights. "In substantive due

process analysis, the nature of the individual interest at stake

determines the standard of review that courts apply when

deciding whether a challenged statute meets the requirements of

the due process clause." Aime v. Commonwealth, 414 Mass. 667,

673 (1993). See R.B., petitioner, 479 Mass. 712, 717–718

(2018); Commonwealth v. Travis, 372 Mass. 238, 246 (1977).

Freedom from physical restraint is a paradigmatic

fundamental right, essential to a free society. See Pembroke

Hosp. v. D.L., 482 Mass. 346, 347 (2019), citing Matter of E.C.,
 54

479 Mass. 113, 119 (2018). Civil commitment under G. L. c. 123,

§ 35, thus is subject to strict scrutiny under the due process

protections in the Massachusetts Declaration of Rights.

Accordingly, the statute "must be narrowly tailored to serve a

compelling governmental interest" and "also be the least

restrictive means available to vindicate that interest."

Massachusetts Gen. Hosp. v. C.R., 484 Mass. 472, 489 (2020).

Here, the question whether G. L. c. 123, § 35, could

survive strict scrutiny review, absent a pandemic, is not before

us. As nothing in the plaintiffs' filings or the record touches

on the question of strict scrutiny, we assume without deciding,

as we did in Matter of a Minor, 484 Mass. at 309 n.9, that the

statute at baseline does not violate substantive due process.

Accordingly, we examine whether the current public health crisis

alters the strict scrutiny analysis such that commitment to a

secure facility during the COVID-19 pandemic must be

unconstitutional.

As stated, the purpose of commitment for substance abuse

treatment is to promote the health and safety of the committed

individual and others through such treatment. We have no

evidence that the dangers of substance use disorders, or the

need for treatment, have diminished during the COVID-19

pandemic. Thus, issues regarding COVID-19 have no impact on the

question whether there is a compelling and legitimate government
 55

interest.

The pandemic, however, may affect whether commitment is

narrowly tailored to that interest. If the commitment and

treatment do not promote effectively the government's interest

in the individual's and others' health and safety, the

government action cannot survive strict scrutiny. See Grutter

v. Bollinger, 539 U.S. 306, 333 (2003) ("means chosen . . . must

be specifically and narrowly framed to accomplish [their]

purpose" [citation omitted]). In this regard, the increased

risk of COVID-19 transmission in congregate settings is highly

pertinent.

As we recognized in CPCS v. Trial Court, 484 Mass. at 436,

"confined, enclosed environments increase transmissibility" of

COVID-19. "[M]aintaining six feet of distance between oneself

and others . . . may be nearly impossible" in these settings.

Id. As with the jails and prisons at issue in that case,

"proper sanitation is also a challenge" for the commitment

facilities, as shown by DPH inspections in January and February

of 2020, identifying dozens of repeat violations at MASAC and

the Stonybrook facilities.20 Id. at 436-437.

The record here contains only the plaintiffs' summaries
20

of what the DPH reports state, and not the actual reports. We
have taken judicial notice of some of the publicly accessible
reports, which are available for download on the DPH's website,
and which are consistent with the plaintiffs' representations.
 56

At the same time, these facilities have taken significant

steps to lessen the risk of transmission of COVID-19. Staff

members are required to wear masks when in contact with

patients, as well as gloves for some activities, and all

committed individuals have been given masks. Newly committed

individuals are placed in a separate unit for the first fourteen

days and are not permitted to attend group sessions. All

persons entering the facilities are screened for symptoms of

COVID-19. Soap and hand sanitizer are widely available, and

multiple other hygiene-related protocols have been instituted.

Although the expert affidavits discuss the general risk of

transmission in correctional facilities, they do not

specifically address conditions at MASAC or in the Stonybrook

facilities. Nor do they address whether the pandemic changes

the need for or the efficacy of commitment to a secure facility

for substance use disorder treatment. Moreover, on this record,

the plaintiffs have not presented evidence indicating that a

less restrictive alternative would have been sufficient to avoid

a likelihood of serious harm for any currently committed

individuals. See Massachusetts Gen. Hosp., 484 Mass. at 483–484

("record . . . reveals no realistic alternative"). Given the

limited record before us, we cannot say that there has been a
 57

fundamental change in the need for or efficacy of commitment.21

We conclude that the plaintiffs have not shown a likelihood of

success on the merits. See Garcia v. Department of Hous. &

Community Dev., 480 Mass. 736, 747 (2018).

Nonetheless, we see fit to address the situation under our

supervisory authority. Going forward, a judge shall not commit

an individual under G. L. c. 123, § 35, unless the judge finds

that the danger posed by the individual's substance use disorder

outweighs the risk of transmission of COVID-19 in congregate

settings. "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 [the

individual] should be factored into [the] determination." CPCS

v. Trial Court, 484 Mass. at 449. Additionally, the judge must

find that commitment is necessary notwithstanding the treatment

limitations imposed by quarantine protocols. A judge's findings

may be made in writing or orally on the record. These

requirements will remain in effect for the duration of the

21These considerations apply as much to nonsecure,
inpatient treatment facilities as they do to the secure
facilities at issue here. The record is devoid of any
information regarding the conditions present in nonsecure
treatment facilities in the Commonwealth. Therefore, we have no
basis for determining whether COVID-19 transmission is more
likely in secure locations, and accordingly are unable to make a
determination on the plaintiffs' alternative request for
transfers to nonsecure facilities.
 58

COVID-19 state of emergency, unless altered by further order of

this court. These are additional, temporary requirements beyond

those imposed by G. L. c. 123, § 35, due process principles, and

any other applicable law. See Matter of a Minor, 484 Mass. at

307-310; Matter of G.P., 473 Mass. at 120-122, 124-129.

Furthermore, as with the bail determinations that were the

subject of much of our decision in CPCS v. Trial Court, 484

Mass. at 434-436, current orders of commitment may have been

made without consideration of the crisis currently ravaging the

planet. We therefore conclude that the risks of COVID-19

transmission constitute a "material change in circumstances"

with regard to any order of commitment currently in effect. See

Littles v. Commissioner of Correction, 444 Mass. 871, 878

(2005); Commonwealth v. Cronk, 396 Mass. 194, 196 (1985). See

also CPCS v. Trial Court, supra at 435 ("risks inherent in the

COVID-19 pandemic constitute a changed circumstance" under bail

statutes). Any individual who is committed pursuant to G. L.

c. 123, § 35, at the time of the issuance of the slip opinion in

this case may file a motion for reconsideration of the

commitment order. Hearings shall 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.

6. Ongoing response to the continuing pandemic.
 59

Conditions as a result of the pandemic, and society's response

to them, are changing rapidly. The CDC's interim guidance

itself states that it is subject to change and that individual

guidelines "may need to be adapted based on individual

facilities' physical space, staffing, population, operations,

and other resources and conditions." Interim Guidance, supra

at 1. While the court acknowledges the DOC's significant

efforts to reduce the risks for incarcerated individuals due to

the pandemic, to date the crisis generated by the pandemic

continues worldwide. All of the defendants must remain vigilant

in continuing to respond swiftly to ongoing and changed

conditions brought about as a result of the pandemic, while

retaining the testing, contact tracing, and quarantining

policies they now have put in place, that the CDC recognizes as

the heart of any plan to combat the pandemic.

Moreover, as the commissioner's counsel acknowledged at

oral argument, while the pandemic continues, the lockdown

conditions instituted by the DOC to prevent a serious risk of

harm themselves risk becoming Eighth Amendment violations. The

CDC's interim guidance notes that measures taken by correction

facilities to reduce transmission of COVID-19, such as canceling

activities and visitation, may be deleterious to the mental

health of inmates. These effects necessarily will be even more

pronounced for inmates in solitary cells, who are segregated
 60

from all other humans for twenty-three or more hours per day.

Solitary confinement, even when imposed for good reason, "bears

'a . . . terror and peculiar mark of infamy.'" See Davis v.

Ayala, 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring),

quoting In re Medley, 134 U.S. 160, 170 (1890). "[C]ommon side-

effects of solitary confinement include anxiety, panic,

withdrawal, hallucinations, self-mutilation, and suicidal

thoughts and behaviors." Davis, supra at 2210, citing Grassian,

Psychiatric Effects of Solitary Confinement, 22 Wash. U.J.L. &

Pol'y 325 (2006). "Suicides, attempts at suicide, and self-

mutilations are common among inmates thus confined." Ruiz v.

Estelle, 503 F. Supp. 1265, 1360 (S.D. Tex. 1980), aff'd in

part, rev'd in part, 679 F.2d 1115, amended in part, vacated in

part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042

(1983). Thus, "even the permissible forms of solitary

confinement might violate the Eighth Amendment if

[i]mposed . . . for too long a period" (quotations and citation

omitted). Jackson v. Meachum, 699 F.2d 578, 582 (1st Cir.

1983). See Hardwick v. Ault, 447 F. Supp. 116, 126 (M.D. Ga.

1978) ("indefinite duration of confinement shock[ed] the

conscience," especially in cell block "where prisoners [would]

go for several days without leaving their cell except briefly").

Similarly, deprivation of exercise may be "'reasonable' in

certain situations, such as during a 'state of emergency.'"
 61

Thomas v. Ponder, 611 F.3d 1144, 1155 (9th Cir. 2010). Long-

term "deprivation of exercise" on the other hand, "may

constitute an impairment of health forbidden under the [E]ighth

[A]mendment." Miller v. Carson, 563 F.2d 741, 751 n.12 (5th

Cir. 1977), citing Estelle, 429 U.S. at 97. See Spain v.

Procunier, 600 F.2d 189, 199 (9th Cir. 1979) ("denial of fresh

air and regular outdoor exercise and recreation [over period of

years] constitutes cruel and unusual punishment"); Ruiz, 503 F.

Supp. at 1367 ("Even if accomplished according to appropriate

procedures and for valid reasons, long term confinement of

inmates in administrative segregation, without opportunities for

recreation, constitutes cruel and unusual punishment"); Sinclair

v. Henderson, 331 F. Supp. 1123, 1131 (E.D. La. 1971)

("Confinement for long periods of time without the opportunity

for regular outdoor exercise does, as a matter of law,

constitute cruel and unusual punishment . . .").

At this juncture, it appears that the COVID-19 pandemic

will continue to demand extraordinary, and coordinated, efforts

by all parties, as well as the courts. This is so also with

respect to the different entities within the executive branch.

Even the commissioner acknowledged at oral argument that

reducing the number of incarcerated individuals being held in

any given facility, if it can be done lawfully, is a desirable

goal for controlling the spread of communicable diseases such as
 62

COVID-19. In their brief, the plaintiffs point to numerous

measures that they assert have been undertaken in other States

to reduce prison populations, among them release to home

confinement, enhanced good time sentence deductions, and early

parole.

With respect to one such measure, release to home

confinement for those who have been serving a sentence, for

example, the commissioner asserted before the hearing judge that

she believes the DOC has no authority to authorize such releases

for inmates who are serving sentences. We agree with Chief

Justice Gants that G. L. c. 127, §§ 48, 49, 49A, and this

court's holding in Donohue, 452 Mass. at 265, indeed would allow

the commissioner to release certain individuals who currently

are serving a sentence in a prison or house of correction to

home confinement, under specified conditions, prior to the

completion of their committed sentences, for certain

educational, employment, and training programs. See post

at .

The specific measures the defendants might choose to reduce

the number of incarcerated individuals in DOC custody are not as

important as the goal of reduction, and not ordinarily for a

court to decide. Nonetheless, the DOC's argument that, due to

concerns regarding separation of powers under art. 30 of the

Massachusetts Declaration of Rights, this court would never have
 63

authority to order a reduction in the prison population is

unavailing; should the court conclude, at a later point, that

the defendants have held inmates under unconstitutional

conditions of confinement, it would have authority to issue

orders necessary to remedy that situation.

As two justices of the United States Supreme Court

commented recently with respect to the determination by a United

States Court of Appeals to stay a Federal District Court judge's

order granting a preliminary injunction sought by a group of

particularly vulnerable incarcerated inmates due to their

conditions of confinement, "[i]t has long been said that a

society's worth can be judged by taking stock of its prisons.

That is all the truer in this pandemic, where inmates everywhere

have been rendered vulnerable and often powerless to protect

themselves from harm. May we hope that our country's facilities

serve as models rather than cautionary tales." Valentine vs.

Collier, U.S. Supreme Court, No. 19A1034 (May 14, 2020).

Conclusion. The motion for a preliminary injunction is

denied. The matter is transferred to the Superior Court, where

litigation on the complaint shall proceed as an emergency

matter, with due speed in consideration of the circumstances,

before the same Superior Court judge who was designated to make

findings of fact with respect to the motion for a preliminary

injunction. In addition to rulings on the merits, the judge
 64

shall resolve all questions of class certification, including

any amendment of the complaint or substitution of parties.

So ordered.
 GANTS, C.J. (concurring, with whom Lenk and Budd, JJ.,

join). The essence of this case is summarized in a single

sentence in the judge's findings of fact: "Commissioner Mici

[(commissioner)] believes that [the Department of Correction

(DOC)] is doing the best it can to manage the COVID-19 crisis

given the physical layout of the facilities and the inmate

population." The record supports her belief that the DOC is

doing "the best it can" to attempt to prevent the COVID-19 virus

from entering prisons and to limit its spread within the

facilities that it has entered. And it is likely true that, for

all practical purposes, the "physical layout" of prison

facilities is a "given," in that it cannot be materially altered

quickly enough to make a significant difference.

But even acknowledging that public safety would not permit

a drastic reduction of the prison population, the inmate

population is not a "given." The commissioner herself

recognizes, as do the World Health Organization1 and the United

1 "Enhanced consideration should be given to resorting to
non-custodial measures at all stages of the administration of
criminal justice, including at the . . . post-sentencing
stage[]. Priority should be given to non-custodial measures for
alleged offenders and prisoners with low-risk profiles and
caring responsibilities . . . ." World Health Organization
Regional Office for Europe, Preparedness, Prevention and Control
of COVID-19 in Prisons and Other Places of Detention, at 4 (Mar.
15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019
/434026/Preparedness-prevention-and-control-of-COVID-19-in-
prisons.pdf [https://perma.cc/4ZGQ-RN5U].
 2

States Department of Justice,2 that measures should be taken to

reduce the inmate population and that doing so can help to

contain the spread of COVID-19. To be sure, the commissioner

makes clear that any such reduction should be done in a manner

that is consistent with law and appropriate in light of the

health and safety of the public. I agree, and I write

separately from the court's opinion (with which I wholeheartedly

agree) to make three points. First, there is considerably more

that the DOC and the parole board can do to reduce the inmate

population, consistent with law and appropriate in terms of

public health and safety. Second, as the pandemic drags on, it

is even more important to press forward with such reductions

because the current lockdown that is being used by the DOC to

contain the virus cannot reasonably continue indefinitely. And

third, although what the DOC and parole board are doing now may

not likely demonstrate a reckless disregard for the health and

safety of prisoners arising from the risk of transmission of the

2 On March 26, 2020, and again on April 3, 2020, the United
States Attorney General instructed the Federal Bureau of Prisons
to prioritize the use of home confinement as a tool for
combatting the risk that COVID-19 poses to vulnerable inmates
while protecting public safety. See Office of the Attorney
General, Prioritization of Home Confinement as Appropriate in
Response to COVID-19 Pandemic (Mar. 26, 2020), https://www
.justice.gov/file/1262731/download [https://perma.cc/3RKS-8FYN];
Office of the Attorney General, Increasing Use of Home
Confinement at Institutions Most Affected by COVID-19 (Apr. 3,
2020), https://www.justice.gov/file/1266661/download [https:
//perma.cc/RK4L-4B93].
 3

COVID-19 virus, continuing unchanged along that same path in the

months ahead might constitute reckless disregard, especially if

we are hit with a new wave of COVID-19 cases.

1. More can be done to reduce the prison population. In

2019, approximately 600 inmates were released each month from

DOC custody. Those releases were offset by 557 admissions per

month, yielding a net monthly reduction of 43 inmates. However,

as a result of the pandemic, the number of criminal admissions

has dramatically fallen, from 190 in January and 161 in February

2020, to 87 in March and 15 in April. Given the sharp reduction

in criminal admissions, one would expect that the over-all

prison population would naturally fall, and it has by

approximately eight percent between January 1 and May 21.3 But

the vast majority of this decrease arises from the drop in

admissions; actual releases grew only modestly in April 2020 to

526 (compared to an average of 424 in January through March

2020), with virtually all of the increase in releases arising

from an increase in parole permits in April to 141 (compared to

a monthly average of 52 in January through March 2020). In

contrast, the county jail population, in large part fueled by

3 There were 7,923 inmates in DOC custody on January 1,
2020, see MA DOC Jan 1 Inmate Snapshot, https://public.tableau
.com/profile/madoc#!/vizhome/MADOCJan1Snapshot/Jan1Snapshot,
dropping to 7,278 by May 21, see May 21, 2020 Special Master's
Report.
 4

our decision in Committee for Pub. Counsel Servs. v. Chief

Justice of the Trial Court, 484 Mass. 431 (2020), fell more than

thirty per cent between April 5 and May 21, 2020. See May 21,

2020 Special Master's Report. To be sure, it is far easier to

release detainees who have yet to be tried than sentenced

prisoners. But the fact remains that more inmates can be

released in accordance with law, without compromising public

health and safety.

a. Home confinement. The commissioner claims that she

does not have the legal authority to allow any sentenced

prisoner to serve any part of a prison sentence in home

confinement. The commissioner is mistaken.

Under G. L. c. 127, § 48, "[t]he commissioner shall

establish and maintain education, training and employment

programs for persons committed to the custody of the [DOC].

. . . Such programs shall include opportunities for academic

education, vocational education, vocational training, other

related prevocational programs and employment, and may be made

available within correctional facilities or, subject to the

restrictions set forth in [G. L. c. 127, §§ 49 and 86F], at

other places approved by the commissioner or administrator"

(emphasis added). Id. General Laws c. 127, § 49, provides:

"The commissioner of correction, or the administrator of a
county correctional facility, subject to rules and
regulations established in accordance with the provisions
 5

of this section, may permit an inmate who has served such a
portion of his sentence or sentences that he would be
eligible for parole within eighteen months to participate
in education, training, or employment programs established
under [§ 48] outside a correctional facility . . . . In
the case of a committed offender who participates in any
program outside a correctional facility established under
[§ 48], the time spent in such participation shall be
credited toward the serving of his sentence in the same
manner as though he had served such time within the
facility. . . . The commissioner or such administrator
shall make and promulgate rules and regulations regarding
programs established under [§ 48] outside correctional
facilities. Such rules and regulations shall include
provisions for reasonable periods of confinement to
particular correctional facilities before a committed
offender may be permitted to participate in such programs
and provisions for feeding, housing and supervising
participants in such programs in such manner as will be
calculated to maintain morale and prevent the introduction
of contraband to the facility."4,5

In Commonwealth v. Donahue, 452 Mass. 256 (2008), we

considered whether a sheriff had the authority under § 48 and

§ 49 to release a prisoner from a house of correction and place

him in home confinement under a global positioning system (GPS)

monitoring program where the prisoner had an approved home and

work plan and was monitored by a GPS bracelet. We concluded

that "G. L. c. 127, §§ 48, 49, and 49A, provide specific

legislative authorization for the GPS program and for the

4 Participation in such programs is limited for prisoners
serving a life sentence, for sex offenders, and for prisoners
who were sentenced for specified violent crimes. See G. L.
c. 127, § 49.

5 General Laws c. 127, § 86F, applies only to sheriffs, not
to the commissioner.
 6

placement of Donohue, or similarly situated inmates, in it."

Id. at 265. We specifically rejected the argument that these

statutes did not permit home confinement, declaring that "[t]o

the contrary, the statutory scheme suggests a legislative intent

to allow this kind of arrangement." Id. at 266. The

commissioner has the same authority under these statutes to

place prisoners in home confinement, monitored by a GPS

bracelet, as part of an inmate's participation in an education,

training, or employment program.

General Laws c. 127, § 49A, requires the commissioner to

establish in each correctional facility a committee to evaluate

the behavior and conduct of inmates within the prison and

recommend whether an inmate "shall be permitted to participate

in any program outside a correctional facility, exclusive of

parole." There is nothing in the record regarding the

activities of these committees and no explanation as to why,

especially at a time when the commissioner recognizes the need

to reduce the prison population, eligible prisoners who have

demonstrated good behavior and conduct have not been approved

for home confinement to participate in education, employment, or

training programs.

b. Parole release. As I have noted, the parole board has

stepped up its pace of activity and has released nearly three

times more prisoners in April than it did on average in the
 7

first three months of this year. But there are at least two

ways in which the parole board can release more prisoners,

consistent with its statutory obligation to release a prisoner

on parole "only if the board is of the opinion, after

consideration of a risk and needs assessment, that there is a

reasonable probability that, if the prisoner is released with

appropriate conditions and community supervision, the prisoner

will live and remain at liberty without violating the law and

that release is not incompatible with the welfare of society."

G. L. c. 127, § 130.

First, § 130 requires the parole board to make two

determinations: whether "there is a reasonable probability that

. . . the prisoner will live and remain at liberty without

violating the law" and whether "release is not incompatible with

the welfare of society." Id. With respect to the second

determination, it is appropriate for the parole board to

consider whether the prisoner has tested positive for COVID-19

and, if so, whether he or she could be safely quarantined and

medically monitored or treated upon release. But it is also

appropriate for the parole board to consider the increased risk

to the inmate, to fellow inmates, and to the general public of

continuing custody in a prison where he or she is particularly

vulnerable to an outbreak of COVID-19 given the close quarters

and difficulties of social distancing in a prison. This
 8

consideration is most acute in prisoners who are at special risk

of death or serious illness from COVID-19 because of their

advanced age or compromised immune system. In Christie v.

Commonwealth, 484 Mass. 397, 401-402 (2020), we declared in the

context of a judge's determination whether to stay a defendant's

execution of sentence pending appeal:

"We also note that the health risks to persons in custody
arising from this pandemic require that we adjust the
analysis applied to motions to stay the execution of
sentence pending appeal. In ordinary times, in considering
the second factor, a judge should focus on the danger to
other persons and the community arising from the
defendant's risk of reoffense. See [Commonwealth v. Cohen
(No. 2), 456 Mass. 128, 132 (2010); Commonwealth v. Hodge
(No. 1), 380 Mass. 851, 855 (1980)]. In these
extraordinary times, a judge deciding whether to grant a
stay should consider not only the risk to others if the
defendant were to be released and reoffend, but also the
health risk to the defendant if the defendant were to
remain in custody. In evaluating this risk, a judge should
consider both the general risk associated with preventing
COVID-19 transmission and minimizing its spread in
correctional institutions to inmates and prison staff and
the specific risk to the defendant, in view of his or her
age and existing medical conditions, that would heighten
the chance of death or serious illness if the defendant
were to contract the virus." (Emphases in original.)

A comparable adaptation to the pandemic should be made to the

parole board's evaluation of whether "release is not

incompatible with the welfare of society" under § 130.

Second, some inmates who are granted parole because they

meet the criteria in § 130 do not promptly obtain the parole

permits needed for release and must first obtain a transfer to a

long-term residential facility or a step-down to a lower-
 9

security facility before they can receive their permits. In

this pandemic era, such a condition of release would prove a

"Catch-22" situation for many inmates otherwise eligible for

parole release: because all transfers among facilities have

ceased, such inmates could not meet the condition established

for their release. The parole board should reevaluate all such

conditions where they prevent the release of those whom the

board has already determined will be unlikely to reoffend upon

their release.

c. Earned good time. The majority of prisoners who are

released from custody are released because they have completed

their sentence. The DOC declares that it "has no control" over

the completion of sentences. But to the extent that the

commissioner has the authority to grant good time credit of up

to fifteen days per month under G. L. c. 127, § 129D, plus an

additional ten days of credit for the successful completion of a

program, the commissioner has the ability to reduce a prisoner's

sentence by approximately one-half (180 days per year if the

prisoner receives fifteen days per month, and another ten days

for each completed program). The pandemic put a temporary end

to the programs that enabled inmates to earn good time, and the

commissioner deserves credit for allowing inmates to earn seven

and one-half days per month by maintaining a diary. But with

more than two months having passed since the Governor's
 10

announcement that a state of emergency existed, it is time for

the commissioner to devise new programs that can be accomplished

by inmates in the midst of a pandemic that would enable them to

earn the full complement of possible good time, including

completion credit, and reduce the over-all length of their

sentences.

2. Planning beyond the lockdown. To prevent the COVID-19

virus from entering DOC facilities and to mitigate its spread in

those facilities that already had cases, the commissioner

initiated a system-wide lockdown on April 3, 2020. In practice,

this means that inmates who are housed in cells remain there for

twenty-three hours a day, and those who live in dormitory-style

housing cannot leave their units. Inmates eat meals in their

cells or units; use of gyms, weight rooms, and outdoor spaces is

strictly limited; and work opportunities and classes have been

suspended.

These stringent policies might have been necessary to quell

the outbreak by reducing contact between inmates and by making

it easier to conduct contact tracing when positive cases were

identified. But while this may have averted a worst-case

scenario in the early days of the pandemic, the court's opinion

notes that the DOC may soon face another challenge: the mental

health impact of an extended lockdown, with its own implications
 11

under the Eighth Amendment to the United States Constitution and

art. 26 of the Massachusetts Declaration of Rights.

According to the DOC, this is the first time in recent

memory that the entire Massachusetts prison system has been

locked down because of health risks. The longest recorded

lockdown at any DOC facility lasted for four months in 1995

following an assault on a correction officer at the

Massachusetts Correctional Institution at Cedar Junction. This

system-wide lockdown has already been in place for two months,

but I believe that the DOC recognizes that it cannot reasonably

continue for the many months that will pass until a COVID-19

vaccine becomes widely available. The isolation arising from a

lockdown over time will have increasingly severe mental health

ramifications, particularly in a population that already has a

higher-than-average prevalence of mental health issues. And if

the lockdown were to continue, there may come a time when the

lockdown itself raises serious questions about the DOC's

deliberate indifference to inmate mental health.

I do not profess to know what should be the next step

beyond lockdown; I know only that there will be a need for a

next step, that it must be carefully considered by correctional,

public health, and mental health professionals, and that, as we

are learning from our experience outside the prison walls,

reopening to permit increased human interaction poses even more
 12

challenges than the formidable challenges arising from

sheltering in place. Soon, the DOC will have to develop

protocols that are, to the extent possible, protective of both

inmate physical health and mental health. And doing so will be

easier and more likely to succeed with a smaller prison

population, which will provide greater potential for social

distancing and give prison superintendents more flexibility in

their use of available prison space, cells, and facilities.

3. Planning ahead for a second wave. I recognize that,

when it became apparent that COVID-19 had spread through

Massachusetts communities, the DOC had to improvise quickly and

make adjustments to avoid rampant spread of the virus in its

correctional facilities. But what is appropriate in reacting to

an immediate and unpredictable threat might not be appropriate

as the threat drags on over many months. Reducing the size of

the prison population, especially the size of the elderly and

infirm prison population, in a manner that is consistent with

law and public safety takes time, both to identify appropriate

candidates for release and to ensure that they have appropriate

release plans. But there will be time before the fall to

accomplish sensible reductions in the size of the prison

population, including the release or transfer to home

confinement of many elderly and medically vulnerable prisoners,

to give prison superintendents the better options to protect the
 13

physical and mental health of inmates that come with fewer

prisoners. With experts warning of a potential resurgence of

COVID-19 in the winter, see CDC Director Warns Second Wave of

Coronavirus Is Likely to Be Even More Devastating, Wash. Post,

Apr. 21, 2020, https://www.washingtonpost.com/health/2020/04

/21/coronavirus-secondwave-cdcdirector [https://perma.cc/3SVZ

-BQCX], the DOC has the opportunity and, indeed, the obligation

to begin preparing for that possibility. Policies that pass

constitutional muster in the face of an unprecedented emergency

may not be constitutionally sufficient after the department has

had time to consider and plan its response to a now-foreseeable

threat.