The Pandemic, Prisoners, and the Commonwealth: Cruel and Unusual?

Today I am hosting a guest blog from third-year student Eric Jepeal.


This past August I was fortunate to be appointed to serve on the Massachusetts State Advisory Committee (SAC) to the U.S. Commission on Civil Rights (USCCR). USCCR is a federal agency established by Congress to advance “civil rights through objective and comprehensive investigation, research, and analysis on issues of fundamental concern to the federal government and the public.” USCCR is Congressionally mandated to have SACs in each state and the District of Columbia. The members of these SACs advise and facilitate the work of the USCCR, and are colloquially referred to as the “eyes and ears” of the USCCR. 

Prior to my time at Boston College, I interned for the USCCR and worked on various projects related to solitary confinement, bail reform, and fair housing. In light of the COVID-19 pandemic, our SAC released a statement of concern regarding incarcerated persons. As you may be aware, the Supreme Judicial Court recently issued an opinion regarding litigation in Massachusetts brought by prisoners’ rights advocates and organizations to provide relief to incarcerated persons in the Commonwealth (CPCS v. Chief). Unfortunately, the SJC found it lacked authority to provide relief to prisoners who are more than sixty days into serving their sentences. 

This case is of Constitutional significance. The SJC seemed, at least to me, to consider that the imposition of increased risk of infections (and associated death) on prisoners may run afoul of the Eighth and Fourteenth Amendments of the U.S.  Constitution (but did not rule on such arguments, and plaintiffs did not argue these points in this litigation, albeit they raised them). It further seems to me that the Commonwealth is condemning individuals to die when they would not have otherwise. The death penalty has been eliminated in Massachusetts since 1984. At least five prisoners have already died from COVID-19 in the Commonwealth. Civil rights should not be curtailed in any context. We do not have a “fair weather” Constitution. 

While our SAC calls on the legislature and Governor Baker to exercise their inherent powers to help broad categories of these persons, I must also reiterate that call to action. Incarcerated persons have families; the vast majority of them will be released from prison one day and return to our communities. An untold number of these people have even been wrongfully convicted. I find it deplorable that we have not done more for these people—especially those who are already eligible for parole, or are at heightened risk of infection and mortality from COVID-19.

The Jesuits have a saying: cura personalis, or, care of the whole person. I am strongly reminded of my conversations with Professor Michael Cassidy from my 1L Criminal Law class about theories of punishment. Why do we punish people? I believe in rehabilitation and redemption. It is the Jesuit way. It is the human way. I am grateful to Boston College for my legal education that has enabled me, at least in a very small way, to try and advocate for these individuals.

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