By Chris Villani

Law360 (June 3, 2020, 2:20 PM EDT) -- A Massachusetts federal judge would like to know approximately how many U.S. Immigration and Customs Enforcement detainees a state jail can hold while maintaining social distancing protocols during the COVID-19 pandemic, asking both the government and a class of inmates to weigh in during a hearing Wednesday.

U.S. District Judge William G. Young stopped short of ordering the Bristol County House of Corrections to specify a safe number of people it can house, but invited a government attorney to drill down on a question that has stumped the state's top court as it has wrestled with multiple suits alleging a dangerous level of overcrowding in prisons and jails during the crisis.

"I'm the first to acknowledge that your clients, both ICE and the sheriff, have the primary responsibility for the health and safety of people who you are lawfully detaining," Judge Young said. "And it's always been for that reason that I have, in all candor, kept trying to turn and say, 'Well, what is the number or what is the range as appropriate managers of this facility?'"

Arguing for the government, Assistant U.S. Attorney Thomas Kanwit said he would not specify a current number for the jail, which has seen its detainee population fall from 148 when the suit was first filed in March to 72 as of Wednesday morning's hearing.

He said the question of how many inmates are appropriate during a pandemic is the "elephant in the room throughout this litigation." The suit has progressed without determining what that magic number might be.

"The [state Supreme Judicial Court] has wrestled with the very same question and essentially punted on it and determined that it's impossible to determine in an absolute sense," Kanwit said.

In a decision published Tuesday, the SJC ruled in a separate case that the state's offer to test every inmate and its thoughtful response to the pandemic undermines claims that officials have acted with deliberate indifference to the crisis.

In hearing oral arguments in that case, the top court struggled with the question of how many prisoners should be released to make the facilities safer.

Kanwit said the position of ICE and the jail has always been that the facility is safe, given the precautions put in place once the pandemic began. He suggested the class was holding the jail to an impossibly high standard for maintaining social distancing.

"Plaintiffs have taken the position that, because somebody could walk by another individual, going to a bunk and walking past a detainee who is already in their bunk, that social distancing is not possible," Kanwit said. "We don't think the burden is on us to say what that range [of detainees] should be."

Judge Young has already released dozens of detainees on bail, but the government is seeking to have 10 returned to jail for alleged violations of their release conditions. The judge invited further briefing on that issue and scheduled a hearing for Monday. He also asked the class to identify individuals who are still behind bars but may be medically vulnerable, and is seeking that information within a week.

Wednesday's hearing before Judge Young addressed a motion for him to reconsider a preliminary injunction requiring Bristol County Sheriff Thomas Hodgson and jail superintendent Steven J. Souza to test all ICE detainees and staff as soon as possible.

The injunction also carried with it an order not to send any new detainees to the jail, which Judge Young said would remain in place with the understanding that the situation might be different in a week.

Judge Young said at the outset of Wednesday's hearing that the injunction would stand, but he modified it to make the testing of jail staff voluntary and stressed that no adverse actions could be taken against staff who decline. The judge was puzzled by Kanwit's claim that the staff is "recalcitrant" to being tested.

"Why are they recalcitrant?" Judge Young asked. "If someone said I could go and get a test today, I would go. Why wouldn't someone want to be tested?"

"There was a lot of feedback initially that it is considered invasive," Kanwit replied, admitting he was speculating. "It is literally invasive as well as, in a broader sense, potentially invasive, and it is painful. They do the swab very, very far up the nose."

He also said that, like the "anti-vaccine crowd," there might be some pushback on the notion of a government or court-mandated test.

Arguing for the class, Oren Sellstrom of Lawyers for Civil Rights pushed for as much testing as possible, saying the number of staff that can come into contact with detainees is "alarming."

The detainees are represented by Ivan Espinoza-Madrigal, Oren N. Nimni, Oren M. Sellstrom and Lauren Sampson of Lawyers for Civil Rights, and Reena Parikh, Muneer Ahmad and Michael J. Wishnie of Yale Law School.

The government is represented by Thomas E. Kanwit and Michael P. Sady of the U.S. Attorney's Office for the District of Massachusetts.

The case is Savino et al. v. Hodgson et al., case number 1:20-cv-10617, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Brian Dowling. Editing by Marygrace Murphy.

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