MA Department of Correction Continues to Defy Legal Mandates for Independent Oversight Amidst COVID-19 Pandemic
Statement of Black and Pink Massachusetts, Building Up People Not Prisons Coalition, Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, and Prisoners’ Legal Services of Massachusetts
September 8, 2021
The Department of Correction (DOC) has defied the Legislature for over nine months, ignoring its obligation to release people who may be safely released in the interests of public health and to establish an independent Ombudsman to oversee the COVID pandemic response. After a thorough vetting process, the Attorney General and the Department of Public Health (DPH) put forward a highly qualified candidate for the position over six months ago, but that candidate was stonewalled. The time to set things right is now.
The Legislature mandated the creation of an independent Ombuds office to address the threat of COVID-19 in the prison system in the FY21 budget that was adopted in December 2020. In March of 2021, Dr. Monik Jimenez, a highly qualified epidemiologist, was put forward for the Ombuds role after being vetted by the Attorney General’s Office and DPH in accordance with the budget. The DOC declined to provide Dr. Jimenez with the resources and hiring autonomy necessary to create and operate an independent Ombudsman office and she was never hired. The DOC then acted unilaterally and on September 1, 2021 reported to the Legislature that it had entered into an agreement with University of Massachusetts Medical School to implement and direct the Office of the Ombudsman, with a $1.5 million budget and hiring autonomy.
Had the DOC honored the Attorney General’s process and offered Dr. Jimenez the terms it now offers UMass Medical School, the Ombuds office could have been established six months ago with critically needed work already underway. Dr. Jimenez remains the appropriate choice to direct the Ombuds office, whether she contracts directly with the DOC or with UMass Medical School to do so. UMass is an excellent institution, but was the contracted medical provider for the DOC for many years under the name UMass Correctional Health. This prior relationship immediately raises concerns regarding the independence that the law requires.
Moreover, the agreement that DOC entered into with UMass Medical School includes no mention of the most effective mechanism to ensure public health and contain the spread of the Delta variant in prisons and surrounding communities – reducing the numbers of people held in prisons. The FY22 budget requires “that given the continued prevalence and threat of the 2019 novel coronavirus within department of correction facilities, the commissioner of correction shall release, transition to home confinement or furlough individuals in the care and custody of the department who can be safely released, transitioned to home confinement or furloughed.” It also states that the Ombuds office must report to the Legislature “the department’s efforts taken relative to safe depopulation relative to the 2019 novel coronavirus” and “the amount of population reduction achieved to-date by the use of the mechanisms for release, home confinement or furlough stated in this item.” However, the agreement does not contain any of this required activity – the DOC is proceeding as if these requirements simply do not exist.
This critical omission is yet another example of the DOC thwarting legislative instruction and evading effective and independent oversight mechanisms, acting unilaterally and without community input. After dragging its feet for months, instead of contracting with an independent epidemiologist with expertise in incarceration who was thoroughly vetted over six months ago, the DOC has determined on its own to enter into an agreement with UMass Medical School to create and implement the Ombuds office, and failed to comply with the terms laid out in the law.
COVID-19 remains a grave threat in prison settings. As of August 16, DOC reported that 2,615 incarcerated people had been infected with COVID-19, and at least 23 people had died. We have already seen one outbreak at Souza Baranowski Correctional Center this summer. As of August 18, only 61 percent of DOC staff were fully vaccinated, compared to 80 percent of incarcerated people in state prisons. And the correctional officers’ union, acting contrary to other affected unions, has threatened legal action to thwart the Governor’s public health vaccine mandate for state workers. Prison operations have not yet returned to normal, with visits continuing to be restricted and the threat of lockdowns constant. Incarcerated people continue to suffer from the highly restrictive and frightening situation they have been living in for a year and a half. Their families continue to worry about them. As we enter into the fall and winter, when more surging infections are likely, we must take decisive action to prevent infections, ameliorate harmful conditions, and protect public health.
We ask for the following immediate actions:
- The Ombuds office must be created as expeditiously as possible. The DOC has failed to implement the mandates in the current budget since they were first required in December 2020, and any further delay is unconscionable.
- The Ombuds office must be fully independent, without any conflicts of interest or involvement by people or offices who have previously been employed by or contracted with the DOC.
- The DOC must ensure that Dr. Monik Jimenez is offered the opportunity to direct the Ombuds office with the same budget and autonomy it now offers to UMass Medical School, and if Dr. Jimenez is unable to assume the role for any reason, then community stakeholders must be consulted in creating the office and determining the Director.
- The Ombuds office must be guided by public health and thereby employ all effective mechanisms for managing the threat of COVID-19 in prison settings, including decarceration, as mandated by the FY21 and FY22 budget.
Building Up People Not Prisons Coalition
Charles Hamilton Houston Institute for Race and Justice at Harvard Law School