The Criminal Justice System Struggles to Adapt to the Pandemic

March 20, 2020

Measures in response to the coronavirus are rapidly progressing in the US, with workplaces, restaurants, and public events being shuttered en masse. On March 19, Gov. Gavin Newsom placed the whole of California on lockdown. Various governmental authorities and public figures have advised residents to practice “social distancing.” But this basic public safety measure is still not being extended to many people who for whatever reason are slated to come to court.

Judges coming into work do not know how to properly address the pandemic, according to a survey from the National Judicial College. In March’s Question of the Month, NJC alumni were asked, “Do you feel adequately prepared to make judicial decisions involving the coronavirus or a similar public health emergency?” Almost six in 10 said no.

Comments submitted by individual judges reflected serious concerns over how to deal with “weighing personal rights against public safety” and “whether to relax evidentiary rules and allow video testimony to avoid infection.”

On the first of those issues, the Supreme Court has long held that quarantines can be  constitutional. There is a historic body of cases for judges to draw from, like what to do when a person is ordered by a health authority into quarantine but refuses to comply. However, those rulings are often very fact-specific or dated. Federal authority over quarantining is limited to cases involving international travel or crossing state lines, meaning that the CDC plays more of an advisory role and the states take primary control. State laws have their own quirks to contend with; for example, in New York, an emergency declaration must be made before quarantines can be issued (it has been).

The second issue is more complex, and provides a window into the unforeseen legal thickets the pandemic will likely create. The Sixth Amendment provides an accused person with the right to confront witnesses in court. This mandate is taken very seriously. Even in child sex abuse cases, the Supreme Court has ruled that the child must first be “questioned in the defendant’s presence” before a trial court can let the child testify by way of closed-circuit television.

Judges in ongoing criminal cases thus could find themselves guessing whether appellate courts would take the threat of coronavirus exposure more seriously than the retraumatization of victims.

Many will note sadly that it took an unprecedented national crisis to produce these scattered common-sense moves.

Many judges and other court officials are now deciding for themselves that delaying cases for the time being is a more intelligent use of governmental resources than divining whether their ameliorative steps would be seen as legal after the fact.

Sometimes, these decisions are taken for them. In Houston, Texas, for example, the courthouse has shut down entirely after a prosecutor was exposed to COVID-19 via a family member.

Other sensible decisions are being made by criminal justice actors. Some sheriffs, including in LA and Cleveland, are releasing significant numbers of people from their jails due to public health concerns over the heightened vulnerability of incarcerated people to the virus. New York City is following suit.

In Baltimore, State’s Attorney Marilyn Mosby ordered her staff on March 18 to dismiss pending criminal charges for drug possession, attempted distribution of drugs, prostitution and other minor offenses—effectively decriminalizing these activities for the duration of the pandemic.

NYU Law Professor Rachel Barkow also noted on Twitter that one New York federal judge has issued an order releasing a man because the US Bureau of Prisons’ “suspension of visits means he can’t prepare his defense with counsel.” (The Prison Policy Initiative is urging people to write to their local prisons and jails, demanding that incarcerated people who are now denied visits be provided with free phone calls.)

Many will note sadly that it took an unprecedented national crisis to produce these scattered common-sense moves from our criminal justice system.


Photo of the US Supreme Court via Pikrepo/Creative Commons 1.0

Rory Fleming

Rory is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. He was also a communications specialist for the National Network for Safe Communications, a research center at City University of New York John Jay College of Criminal Justice. Rory is a licensed Minnesota attorney. He lives in Philadelphia.

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