Foster v. Commissioner of Correction

Docket Watch 2020

By Kymberlee Stapleton

Correctional facilities across the United States house and employ large numbers of people. Keeping these people safe during the COVID-19 pandemic has been a tremendous challenge. In April 2020, several incarcerated inmates and individuals civilly committed for substance abuse treatment filed a class action lawsuit in a Massachusetts court that alleged their conditions of confinement posed an unreasonable risk of COVID-19 exposure.[1] They claimed that the failure to reduce the number of confined individuals to allow for greater social distancing amounted to cruel and unusual punishment and violated their substantive due process rights.[2]

In Foster v. Commissioner of Correction (“Foster I), the Supreme Judicial Court of Massachusetts addressed the plaintiffs’ motion for a preliminary injunction that sought to require the Department of Correction (“DOC”) to take immediate steps to reduce the number of detained individuals while the suit proceeded to trial. To prevail, the plaintiffs would have to show a likelihood of success on the merits of their underlying claims.

The court first examined class certification and narrowed the plaintiffs into two smaller subgroups: (1) medically vulnerable inmates, and (2) individuals civilly committed for substance abuse treatment.[3] The court then addressed the constitutional claims of the two subclasses separately because only individuals being “punished” can assert claims of cruel and unusual punishment under the Eighth Amendment. Because the civilly committed individuals were not being punished, their claims were limited to substantive due process violations.[4]

Eighth Amendment Claims

The medically vulnerable inmate plaintiffs argued that their conditions of confinement and the failure to expedite the release of inmates violated their constitutional rights.[5] To succeed on this claim, the plaintiffs were required to satisfy a two-part test. The first element required an objective showing that their living conditions “pose a ‘substantial risk of serious harm.’”[6] The second element was subjective, requiring a showing that “prison officials acted or failed to act with deliberate indifference.”[7] The court found that the plaintiffs met the first element, but failed the second element.

Almost immediately after the governor declared a state of emergency in Massachusetts, the DOC implemented policies that included social distancing in all of its facilities, the elimination of almost all group programming and recreation time, increased sanitation, distribution of cleaning supplies and masks to all inmates and staff, lockdowns prohibiting access into the facilities by visitors, a mandatory two week quarantine for all new inmates, daily health screening for all staff, and widespread testing for all staff and inmates.[8]

The court acknowledged that despite these policies, it may not be feasible to maintain sufficient physical distancing in all instances, and thus the increased risk of contracting COVID-19 while incarcerated poses an objectively substantial health risk.[9] However, because prison officials took significant steps to reduce exposure to and protect inmates from the spread of COVID-19, it was unlikely the plaintiffs would be able to establish that the DOC acted with subjective “deliberate indifference.”[10]

Substantive Due Process Claims

In Massachusetts, individuals can be civilly committed to a secure facility for substance abuse treatment if they pose a danger to themselves or others.[11]  The purpose of inpatient substance abuse treatment is “to promote the health and safety of the individual committed[.]”[12] The second subclass of plaintiffs argued that civilly committing them during a pandemic violates their substantive due process rights under the federal and state constitutions. 

For such a claim to pass muster under the federal Constitution, a “reasonable relation” must exist between the “‘conditions and duration of confinement’” and “‘the purpose for which persons are committed.’”[13] Under this lenient standard, the government must simply show that confining an individual for treatment is reasonably related to the public safety needs of the state.[14] The state constitution, however, mandates a strict level of judicial review. The statute must be “‘narrowly tailored to further a legitimate and compelling governmental interest and [be] the least restrictive means available to vindicate that interest.’”[15]

The court found that the need for substance abuse treatment has not diminished during the pandemic. It then concluded that on the record before it, the civil commitment statute satisfied both levels of scrutiny and that the plaintiffs did not show a likelihood of success on the merits of their substantive due process claims.

However, the court went on to use its supervisory authority to prohibit lower court judges from civilly committing individuals during the state of emergency absent a written or oral finding on the record that the danger of an individual’s substance abuse disorder outweighs the risk of COVID-19 exposure and transmission. Committed individuals were given the ability to seek reconsideration of their commitment orders under this mandate.[16]

The court denied the motion for preliminary injunction and transferred the case to the Superior Court for a final adjudication on the merits. Chief Justice Ralph D. Gants wrote a concurring opinion, joined by two other justices, to emphasize that the DOC is doing its best to manage the COVID-19 crisis under the circumstances. Justice Gants wrote separately to highlight three points. First, he said more can be done to reduce the prison population, such as releasing inmates on home confinement, increasing parole release, and providing more opportunities for inmates to earn good time credit.[17] Second, he emphasized the need to plan beyond the current lockdown policies that, if left unaltered, could become Eighth Amendment violations if continued long term.[18] Finally, he urged the DOC to prepare for a “second wave.”[19]

The same day it decided Foster I, the court also decided two motions to dismiss filed by the governor and the chair of the parole board in Foster v. Commissioner of Correction (Foster II).[20] The plaintiffs alleged that both “fail[ed] to implement an effective mechanism to reduce the incarcerated population to a safe level. . .”[21] 

In regard to the governor, the plaintiffs claimed he was liable because he refused to utilize his executive authority to pardon and grant clemency, and they sought to compel him to use that plenary emergency power to order a reduction in the prison population. The court proclaimed that it “should tread lightly in telling any Governor when or how to exercise his or her powers.”[22] The court then found that the “failure to act” claims against the governor were not actionable and granted his motion to dismiss.

In regard to the parole board, the plaintiffs argued that the board made little effort to increase the use of medical parole or to modify the criteria for release to better streamline the parole process in light of the virus. The court concluded that the plaintiffs alleged facts that were sufficient to state a claim if proven and denied the parole board’s motion.[23]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1]Foster v. Comm’r of Correction, 146 N.E.3d 372, 378 (Mass. 2020).


[3]Id. at 388.

[4]Id. at 390.


[6]Id. at 391 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

[7]Id. at 390-91.

[8]Id. at 394.

[9]Id. at 391-92.

[10]Id. at 395-96.

[11]Id. at 397-98; Mass. Gen. Laws ch. 123, § 35.

[12]Foster, 146 N.E.3d at 398.

[13]Id. at 397 (quoting Seling v. Young, 531 U.S. 250, 265 (2001)).

[14]Id. at 398.

[15]Id. (quoting Commonwealth v. Weston W., 455 Mass. 24, 35, 913 N.E.3d 832 (2009)).

[16]Id. at 401.

[17]Id. at 404 (Gants, J., concurring).

[18]Id. at 407-08.

[19]Id. at 408.

[20]Foster v. Comm’r of Correction, 146 N.E.3d 408 (Mass. 2020).

[21]Id. at 410.

[22]Id. at 412.

[23]Id. at 414.

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