What the pandemic is doing to justice

By Margo Kirchner
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With courthouse closures and postponements of jury trials and other proceedings for weeks and months, at what point does justice delayed become justice denied?

Legal experts brought together telephonically by the American Constitution Society recently discussed the issue in a briefing titled “Pandemic at the Courthouse.”

The experts described effects of coronavirus social-distancing measures on the justice system to date, warned of dangers to constitutional rights, and noted a few bright spots that may lead to system improvement.

The experts’ comments follow court orders around the country bumping jury trials for weeks or months; the U.S. Supreme Court’s postponement of April and May oral arguments; and the Ninth Circuit’s recent decision to suspend federal Speedy Trial Act requirements until April 2021.

Elaine Poon, managing attorney of the Legal Aid Justice Center in Charlottesville, Virginia, noted that on the civil side, courts continue to work on several types of cases, especially cases brought by victims of domestic abuse.
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Nevertheless, Poon worries that with court slowdowns comes a decrease in protection of educational requirements for children with disabilities, fewer reviews of the status of children in foster care and conditions in immigration detention centers, and lack of attorney access to detainees. She is seeing juveniles in detention held in cells for too many hours each day due to social-distancing policies. And she worries about hearings being moved online when not everyone owns computers or phones.

Poon

She noted, though, a “paradox” in that legal aid attorneys are in some cases celebrating court shutdowns. Many jurisdictions have stayed proceedings regarding eviction, debt collection, deportation, and termination of benefits activity. In her view, because of the lack of a right to counsel in most civil cases, for decades judges heard only one side of the issues in eviction and debt collection cases, and court decisions reflected that one-sidedness. With odds stacked against defendants in those cases, court shutdowns constitute a “ceasefire.”

This ceasefire signals a silver lining of the current crisis, Poon said. The pandemic has caused judges and government officials to think about people’s health and wellbeing, which she considers a welcome change of perspective. Though she anticipates a flood of evictions and debt collection activity when COVID-19 restrictions are lifted, “we are seeing judges, we’re seeing lawmakers look at the law through the lens of public health and safety, and that’s an opportunity for us to continue to bend the system towards humanity,” she said.

She cited as another positive the reconsideration of what constitutes an emergency. As an example, prior to COVID-19 restrictions evictions were considered emergencies for the landlords. The pandemic has changed that; evictions are now nonemergency matters that can be stayed for a tenant’s benefit.

Jonathan Smith, attorney and executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs in Washington, D.C., and Shira Scheindlin, retired federal judge from the Southern District of New York, addressed the immediate and long-term effects of the pandemic on the criminal justice system.
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Scheindlin noted that although courthouses have been physically closed, state and federal courts in her home state have worked hard to remain open remotely. Jury trials, however, are on hold. According to Smith, as most courts are operating on a limited basis, many are restricting criminal work to felony arraignments and reviews of custody.

Smith noted the work being done to reduce the flow of individuals into custody. The risk of COVID-19 spreading in jails and prisons is high; physical separation is impossible in such settings, and staff enter and exit the facility every day. And in the event of the spread of coronavirus in a prison, those infected may need to be transported to hospitals for treatment, he said.

One method to reduce custody inflow that Smith is observing is police issuing summonses for future hearings rather than arresting individuals on the spot. For those arrested, Scheindlin opined that judges should be more willing to allow pretrial release if a case will be delayed.

Nevertheless, Smith noted the troubling problem of unequal enforcement of stay-at-home orders in minority and low-income neighborhoods as opposed to white, privileged communities. He questioned whether enforcement strategies are being applied equally.

Smith

According to Smith, a major focus of COVID-19 crisis advocacy has been reducing the numbers of those already in prisons and jails.

Most success to date has occurred regarding jail populations. District of Columbia prisoners have been granted extraordinary good-time credits to achieve release, Smith said. The South Carolina Supreme Court permitted release of those in local jails unless release would create an unreasonable danger or extreme risk of flight, while the Massachusetts Supreme Court ruled that all pretrial detainees held on nonviolent offenses have a rebuttable presumption of release. The Kentucky Supreme Court told lower courts to review all cases in which the defendants may be susceptible to virus complications.

The prison system has been more sluggish, said Smith. Petitions for release have been filed across the country, with little progress.
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The federal prison system notably has been slow to act; only a few individuals have been released to home confinement. In the face of the federal Bureau of Prisons’ lack of action, there is a groundswell of support for compassionate release of those over age 60 or with underlying medical conditions.

Under the First Step Act, the BOP no longer controls compassionate release, said Smith. Instead, cases go back to sentencing judges, who are already recognizing the risk of COVID-19 as an extraordinary circumstance meriting release for those over 60 or vulnerable due to medical conditions. According to Smith, hundreds of attorneys are taking these cases to help secure release, though the BOP is opposing with alternate arguments: if COVID-19 is not present in a facility, the BOP argues lack of risk to the individuals in custody; if COVID-19 is present, the BOP argues that it is too dangerous to the community to order release.

On a positive note, said Smith, these pandemic response efforts to reduce prison populations may be a test-run to show that de-carceration can work.

Both Scheindlin and Smith noted complex issues regarding speedy trial rights. Though Scheindlin understands the inability to hold a trial with a panel of potential jurors, parties, and court staff in close proximity during a pandemic crisis, she worries that the pandemic will be used to erode protection of statutory and constitutional guarantees of a speedy trial.

Disasters such as hurricanes or the 9-11 attacks previously closed courts for a short time ─ up to 30 days, for instance. Current court closures and pandemic response policies are lasting much longer, which raises concerns, said Scheindlin. She questioned in particular the lifting of Speedy Trial Act protections for a year. Pretrial detainees, in particular, she said are “presumed to be innocent and they could be stuck for a very long time incarcerated . . . unless we find a way to move the system along more quickly.”

“We have to be careful and vigilant that [the pandemic] doesn’t become an excuse to take away our constitutional rights,” she said.

Scheindlin

Scheindlin also noted the need to safeguard the right to counsel in hearings held by telephone or video conference.

“It’s one thing to have a conference with your lawyer before the proceeding . . . but things happen during a proceeding where you need to consult with counsel,” she said. Though some technologies permit a virtual breakout room for attorney and client to confer, not all do. And valuable information is gathered by judge and parties being together in the same physical space, agreed Smith and Sheindlin.

Said Smith: “It makes an enormous difference to have that physical presence” in a courtroom; remote proceedings can be artificial and uncomfortable for defendants.

Scheindlin predicts a post-pandemic push to continue conducting many proceedings remotely. She sees dangers if that occurs. For instance, in criminal cases, judges in virtual hearings may rely heavily on documentation and possibly biased assessment tools rather than the judge’s personal assessment of the defendant in court. In addition, she said, remote proceedings will impact the public’s right to observe what is happening. “There’s nothing like the public being able to be there and participate in the system.”

Smith and Scheindlin, like Poon, expressed concern over how courts will process the backlog of hearings and trials when they reopen. Scheindlin suggested that courts recruit a cadre of volunteer special masters to handle civil pretrial matters like discovery disputes.

A recording of “Pandemic at the Courthouse Doors” is available as a podcast at https://www.acslaw.org/podcast/pandemic-at-the-courthouse-doors/.