Massachusetts Prosecutors Should Use Their Power To Dismiss Cases Now

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

COVID-19 spreads through jails like wildfire. The infection rate at Rikers Island in New York City is more than 12 times that of the devastated Lombardy region in Italy. In Massachusetts, 45 prisoners have tested positive for the virus. The majority of the cases—33 as of Tuesday—are people in custody of a state-run treatment center which houses many people convicted of sexual offenses. As of Tuesday, there have been three deaths of people in the custody of the Massachusetts Department of Corrections. In Boston, Suffolk County’s Nashua Street jail has yet to report an incarcerated person testing positive for COVID-19, but it’s only a matter of time before every jail and prison in the commonwealth is affected. 

On March 30, a group of Boston doctors who are treating COVID-19 patients urged Governor Charlie Baker to use his authority to release people who could live in the community safely, as a public health and moral imperative. They said in a letter to Baker that “a plan to immediately release people from jail and prison and prevent more people from being incarcerated is the best possible protection against the virus for incarcerated people, staff of facilities, court employees, lawyers, families of people involved with the criminal legal system, and our communities.” 

On Friday, after reviewing a petition from the American Civil Liberties Union, the Massachusetts Association of Criminal Defense Lawyers, and Massachusetts’s Committee for Public Counsel Services, the state’s highest court ordered that certain people detained pretrial and those held on technical probation and parole violations would be entitled to expedited hearings regarding possible release, though they excluded many alleged offenses from consideration.

Prior to the decision, Governor Baker said of the petition that “we don’t buy as a matter of law, fact, or policy that the argument that’s being made before the court is the correct one.”

At the county level, Massachusetts district attorneys have offered a range of responses to the pandemic. Seven elected prosecutors filed a brief in opposition to the ACLU’s petition. Cape and Islands District Attorney Michael O’Keefe has pushed back against efforts to release significant numbers of people in custody, no matter the unprecedented risks they now face behind bars, telling the Boston Globe: “It makes no sense … particularly for the law-abiding citizens who are being protected from these people in the first place. Now we’re going to release them to the community?” Norfolk DA Michael Morrissey said he would consider cases individually, but would not “wave my magic wand and let someone out of the house of correction simply because they have low bail. … Some of them committed difficult crimes and already had their bail lowered.”

Suffolk County DA Rachael Rollins, on the other hand, has her office working with the defense bar to identify people in the criminal legal system who are vulnerable, or held on low bail. She has also pledged to not oppose many motions to reduce bail, as well as early release for some already convicted.  “This is what the people of Suffolk County want.” Rollins told NPR’s Boston affiliate. “[Prisoners] don’t deserve, in addition to the sentence that they got, to be in a haven for COVID-19 and essentially a death warrant, potentially.” 

Rollins’s rhetoric and willingness to work with defense attorneys are admirable. But she and other district attorneys should vigorously exercise a prosecutor’s absolute right to issue a nolle prosequi, a unilateral abandonment of a prosecution (absent overwhelming evidence of corruption) that typically isn’t challenged or denied by a court. Rollins is aware of her wide authority to dismiss cases this way: Her power to do so was recently affirmed by Massachusetts’s highest court after she challenged a Boston judge’s rejection of a nolle prosequi in a case in which a protester was arrested during a Straight Pride Parade. The high court, the Supreme Judicial Court, wrote that “the prosecutor’s sole authority to determine which cases to prosecute, and when not to pursue a prosecution, has been affirmed repeatedly by this court since the beginning of the nineteenth century.” 

Massachusetts DAs must exercise their power to nolle prosse cases involving people held in custody pretrial for nonviolent offenses. Those who are accused of committing property or drug crimes pose no threat to the safety of the public. Prosecutors should also extend the nolle prosequi to the many people throughout the commonwealth held in jail on bails as low as a few hundred dollars with jury trials unavailable.  

They must do so because asking the court to agree to bail reductions is not practical at a time when courthouses are closed and judges may not be able to hear arguments and rule promptly. Leaving the decision in judges’ hands also means risking denial. A Suffolk County sheriff’s department spokesperson told me that as of April 1 there were 471 people, presumed innocent, being held in pretrial detention in Boston’s jail alone—more than the number of available cells. The public health risk is self-evident, and rather than wait for the Supreme Judicial Court or the governor, prosecutors should use the power invested in them to dismiss as many cases as possible and defuse the threat, before the appalling travesty of Rikers is repeated in Massachusetts. 

Issuing nolle prosequis en masse has drawbacks for prosecutors. Although they would still be free to pursue prosecutions, cases would have to be refiled and restarted at a later date, possibly with new defense counsel. There is a political risk; prosecutors are often judged on their conviction rates and, as elected officials, they no doubt have nightmares about dismissing a case against someone who then commits a high-profile crime. But prosecutors are ministers of justice, and today it is unjust to require someone to sit in jail awaiting an inevitable outbreak because they were allegedly found with drugs, or accused of stealing a laptop. Massachusetts prosecutors have a “nuclear option”—the nolle prosequi—to prevent further contagion in the jails; they must use it before more lives are lost. “Massachusetts doesn’t have the death penalty as a matter of law,” Matthew Segal of ACLU Massachusetts tweeted on March 31. “But unless we change course, we’re going to have it as a matter of fact.”      

Will Isenberg is a public defender in Boston and a partner at Isenberg Groulx LLC. Follow him on Twitter @Wiloceraptor.