Criminal Justice

How the coronavirus is upending the criminal justice system

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The novel coronavirus is wreaking havoc on the criminal justice system, experts warn, and could delay the right to a fair trial and rob detainees of their day in court.

The pandemic will have consequences for criminal defendants’ right to a speedy trial under the Sixth Amendment of the Constitution, according to legal experts. If that right is found to be violated, a defendant’s conviction or sentence can be set aside.

ABA Criminal Justice Section Chair Kim Parker notes most states have statutory speedy trial limits and says the impact of the virus is going to overwhelm dockets in courthouses all over the country. She warns the impact of the disease could lead to delays and an expanding backlog of cases.

“It’s not as if anything’s going away. It just keeps backing up, backing up, backing up, and the days aren’t long enough,” Parker says.

Many federal and state courts have suspended or postponed criminal jury trials. Among the states hardest hit by the virus is New York, where state courts responded by ordering courts to finish pending criminal and civil trials while delaying new trials until further notice. In Washington state, multiple courts suspended or delayed trials. California has issued no statewide delays or restrictions, leaving it up to individual courts to decide how to handle new cases.

“California’s judicial branch is facing an unprecedented challenge with the COVID-19 virus,” Chief Justice Tani Cantil-Sakauye wrote in guidance issued Monday. “I recognize that this situation may require the temporary adjustment or suspension of court operations and procedures. I stand prepared to prioritize all such requests that may be submitted in the days ahead.”

Some courts could limit exposure to the virus by encouraging bond review hearings through video or teleconferencing. The Court of Common Pleas of Crawford County in Pennsylvania issued guidelines this week that limit sentence and parole and probation violation hearings to video or teleconferencing only. The court set the same guidelines for preliminary hearings for inmates and preliminary arraignments.

Parker says she has been talking to prosecutors who are trying to provide some relief in the wake of the crisis, ensuring that when appropriate, defendants are not held in custody. Defendants on pretrial release often have longer speedy trial limits than those who are detained. Parker notes people accused of more serious crimes are often held in custody, which will compound existing problems as more defendants enter jails.

“If you’re waiting for a trial that’s held out another 50 days, then we make our overcrowded jails already more overcrowded because people continue to be charged and continue to commit crimes that require attention,” Parker says.

Sedgwick County District Attorney Marc Bennett in Kansas is one of the prosecutors with whom Parker has been in contact. On Tuesday morning, Bennett watched Kansas state legislators on YouTube as they considered a bill that would give the chief justice of the Kansas Supreme Court emergency powers to extend speedy trial deadlines.

“We’re talking about extraordinary circumstances where health and human safety is at stake,” says Bennett.

Overcrowding in jails could have a broader impact on the public health, Bennett adds, noting deputies, health care workers, kitchen staff and civilian mentors move in and out of the jails along with inmates.

“This is going to prove to be very difficult to manage,” Bennett says.

The Innocence Project, which works to overturn wrongful convictions, said in an emailed statement it is concerned that state correctional facilities might not be prepared to protect vulnerable inmates in jails and prisons.

“It is, of course, also disappointing that this will inevitably delay justice for our clients,” the nonprofit legal organization added.

Stephen Munkelt, a criminal defense attorney in Nevada City, California, says many inmates in the system are pretrial detainees who have been arrested but not convicted, and cannot afford bail to get out.

“One of the greatest at-risk populations in an epidemic situation is people in prisons and jails. If a virus gets into that kind of institution, it’s very hard to slow it down or get rid of it,” Munkelt says, adding he would like to see officials immediately release nonviolent inmates.

With more than 2 million inmates, the United States has the highest prisoner population in the world. More than 540,000 incarcerated people who haven’t been convicted or sentenced remained detained, according to a March 2019 report by the Prison Policy Initiative. Many were stuck because they could not afford bail.

Last week, Iranian officials released 70,000 prisoners in a bid to fight the coronavirus. On Tuesday, the judiciary in Iran announced it had temporarily freed more than 85,000 people.

Prosecutors could cut into their caseloads by offering more plea deals. Neal Sonnett, a former assistant U.S. attorney who is a current ABA delegate and member of the Criminal Justice Section, says in any given week, state prosecutors, defense lawyers and public defenders might have 20 or 30 cases ready for trial.

“If a prosecutor has 25 cases set for trial, and they’re all continued or backed up and then the next week, he’s going to have yet another 25 trials. And it’s going to get to a point where there are major backlogs. And one way to deal with the backlogs is to work out plea agreements,” Sonnett says.

But Munkelt notes that in the past, prosecutors pressured people to take plea agreements instead of going to trial.

“This disruption is going to create more avenues for pressure on those accused of a crime to plead guilty rather than going through the whole process to try and establish that they didn’t commit a crime,” Munkelt says.

Parker believes the current crisis is an “important opportunity” for the criminal justice system to alter the way it does business.

“As we stuff people in jails together, we’re going to have to change how we do that so that we don’t continue to expose to the next virus or the next hurricane or the next tornado, or whatever it may be, large masses of people,” Parker says.

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