Missing Jail Data Hampers COVID-19 Release Efforts in Massachusetts

In Massachusetts, a lack of accurate, real-time data about the criminal legal system has hampered efforts by defense attorneys and some district attorneys to release incarcerated people at high risk of contracting COVID-19.

In separate filings with the state’s highest court, the Supreme Judicial Court, district attorneys in Berkshire and Suffolk counties said they had struggled to identify people in pretrial detention or serving short sentences in county jails to prioritize for release. The attorneys said this was because the offices had not received up-to-date data from judicial and law enforcement officials in their counties about the people they had in custody.

“The failure and refusal of the Berkshire County Sheriff to provide this information prevents the Berkshire DA’s office from effectively doing its part in preventing the spread of the coronavirus,” the Berkshire County district attorney’s office wrote in its March 27 filing.

“[Release] efforts have been significantly hampered by the inability to access critical data from our law enforcement partners, including real time information about those individuals who have actually been released,” the Suffolk County district attorney’s office wrote in its response to the court.

The problem, the office and others argue, isn’t just lack of cooperation by other law enforcement agencies; the root lies in Massachusetts’s failure to maintain a centralized database for tracking individuals involved in the criminal legal system, as required by state law. State agencies responsible for implementing years-old data-sharing reforms have taken little action, leaving district attorneys and others in the dark as they race to contain the spread of COVID-19, they say.

“In 2018, the legislature mandated real-time electronic data sharing among the state’s criminal justice agencies. This simply is not happening,” said Suffolk County district attorney Rachael Rollins in a statement to the Appeal. “The result is logjams and delays that prevent us from making time-sensitive release decisions. This is unacceptable, especially when lives are at risk.”

‘Incredibly old’ data systems

Massachusetts has long lacked a centralized database with information about the people being arrested, prosecuted, and incarcerated in the state. Instead, agencies across the state maintain their own often incompatible and outdated databases, making it difficult if not impossible to track individuals’ paths through the system. Prosecutors, for instance, know whom their office charges and convicts, but they have little real-time information about what happens to those individuals after sentencing or even during pretrial incarceration. 

“Their systems are incredibly old and archaic and need to be replaced,” said Lizz Matos, executive director of Prisoners’ Legal Services of Massachusetts.

The lack of data makes it difficult to effectively monitor many aspects of the criminal legal system in the state, researchers and advocates say. 

“You can sit in the back of a police car and they can scan your thumbprint and access your international criminal record, but at the same time they can’t tell us how many people are in jail on a given day and why they’re there,” said Ben Forman, research director for independent think tank MassINC. 

As a result, researchers have to rely on courts and law enforcement agencies to voluntarily share their data, which they are not always willing to do, said Leon Smith, executive director of Citizens for Juvenile Justice, which advocates for juvenile justice reform in Massachusetts.

“The advocacy community wants quality data broken out by race or ethnicity. … But from the court’s perspective, quote unquote, it makes them look bad,” Smith said, noting that Massachusetts has wide racial disparities in its criminal legal system.

In a 2017 report, the Council of State Governments Justice Center, which convened to examine opportunities for reforms to Massachusetts’s criminal legal system, devoted an entire chapter to the state’s decrepit criminal legal data systems. The statewide crime and arrest database lacked data from numerous local agencies, the authors wrote. Information on why people were detained pretrial was kept only in paper records; agencies used different standards for recording race and ethnicity; the only database of people serving jail sentences excluded many people sentenced to less than 60 days; and most data systems included minimal quality control procedures to ensure the information entered into them was accurate.

“The lack of standardized data collection and reporting requirements in Massachusetts leaves the state with an incomplete understanding of trends and outcomes within the criminal justice system,” the report said.

Reform, stalled

In 2018, the state legislature passed a major criminal legal reform bill. The legislation included a provision that called for the creation of a “cross-tracking” data system that would assign unique identifiers to every person involved in the state’s criminal legal system and require courts, law enforcement agencies, and prisons to collect basic demographic information about whom they arrested, prosecuted, tried, or incarcerated. 

The unique identifier would make it possible to follow individuals through the entire criminal legal system, from arrest to prosecution to court to prison and release.

“When it passed, it had all these data provisions that I thought were among the best in the country,” Forman said.

Yet, the state has taken little action to make the cross-tracking data system a reality. An oversight board created to monitor the implementation of the data-sharing provision, released a report in June 2019 that found that the state had not even started development on the cross-tracking system envisioned by the legislation. Most agencies were still not collecting many of the data categories outlined in the legislation, and many agencies were not using the unique identification numbers required by the law, making it impossible to match records from one agency with another.

Even when agencies were collecting data, the report found, much of the data they did collect was low quality and unsuitable for analysis. The report highlighted “considerable issues with missing data” and noted that many agencies still record information only in paper format or in unstructured text fields.

In the 10 months since the report’s release, the oversight board has only met once. According to a member of the board who requested anonymity because she was not authorized to speak on behalf of the board, a consultant hired by the state said at the meeting that fully implementing the data-sharing law would most likely take another two years. 

“It really is appalling. I don’t think there’s a polite word for it,” Forman said. “Especially because this is something the state has known has been a weakness for decades.”

The Executive Office of Public Safety and Security did not respond to The Appeal’s request for comment.

Urgent need for data

The first COVID-19 case in a Massachusetts prison was reported on March 21. Within three days, eight prisoners and three staff members, including a medical provider, had contracted the virus. By April 21, the prison system had 123 confirmed cases among prisoners and 89 confirmed cases among staff, including more than 50 cases at the state prison in Bridgewater; five prisoners had died. In the state’s local jails, 99 prisoners tested positive in addition to 90 staff.  

The rapid spread of COVID-19 in the state’s overcrowded jails and prisons makes the need for data all the more urgent, according to the Committee for Public Counsel Services (CPCS) and Massachusetts Association of Criminal Defense Lawyers (MACDL), which filed an emergency petition before the Supreme Judicial Court last month calling for the release of people from prisons and jails to control the outbreak.

“To assess whether we are meeting the goal of sufficiently reducing the prisoner population to permit the social distancing required to stem the tide of COVID-19, we must have data,” they wrote in a March 30 filing.

As of March 23, days before CPCS and MACDL filed their petition, 10 state prisons and four county jails had in-custody populations at or above their design capacity, including the Dartmouth House of Correction in Bristol County, which had a population more than twice its design capacity. 

According to Matos, executive director of Prisoners’ Legal Services of Massachusetts, this overcrowding makes disease control even more difficult. 

“For example, in the North side of Souza Baranowski Correctional Center, many prisoners are double-celled and are locked in together nearly 22 hours a day, if not longer, creating a near certainty of transmission,” Matos wrote in a March 27 letter to the Supreme Judicial Court. 

Legal filings by the state’s 14 sheriffs revealed that most jail facilities in the state lack the capacity to implement social distancing and other precautions to reduce COVID-19 infections. Six counties reported that substantial numbers of jail prisoners had to sleep within six feet of each other, and nine counties reported that most or all of the people in their custody had meals or recreation in close proximity to other prisoners. 

A spokesperson for Bristol County sheriff’s office told The Appeal last month, “Six feet apart is practically impossible in any correctional setting, in any jail, in any prison, in any state, in any county, anywhere.”

This is a start, not the finish.

Rachael Rollins Suffolk County district attorney

 On April 3, the Supreme Judicial Court issued its opinion on the emergency petition, ruling that trial courts should order the release of most people held in jail pretrial on nonviolent charges. In its ruling the court said it had limited authority to modify the sentences of people serving time in prison, but it encouraged the prison system and the parole board to release as many people as possible. 

In addition, the court ordered the state Department of Correction and the 14 county sheriffs to make daily reports to the court, the probation department, district attorneys, and public defenders on their total population, the total number of COVID-19 tests and positive cases in their facilities, and the number of people they release under the ruling. 

In response to the opinion, Suffolk County District Attorney Rachael Rollins issued a statement saying, “I am grateful for the speed with which the [court] made its decision. Lives are a stake and every hour matters. This ruling will certainly help. But this is a start, not the finish.”

The Berkshire County district attorney’s office told the Appeal that it has since received the data it originally requested from the sheriff. 

“Since making numerous requests and filing our response, the Berkshire County Sheriff’s Office provided our office with the census data that we sought. We identified 19 people out of the 178 people currently incarcerated in the Berkshire House of Correction that would qualify for the presumption of release as defined by the SJC Order,” a spokesperson for the office wrote in an email. 

The Berkshire County sheriff’s office did not respond to The Appeal’s requests for comment before publication.