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March 19, 2020

"'Complete chaos': How the coronavirus pandemic is upending the criminal justice system"

The title of this post is the title of this lengthy new USA Today piece. Here are just a few excerpts:

Claramary Winebrenner had a difficult choice to make: keep two pregnant inmates in jail where they might contract coronavirus, or release them knowing they’ll be a danger to themselves and to others.

Both inmates have long histories of methamphetamine abuse. One, who's six months pregnant, has no family. She'll be high in two days if left on her own, said Winebrenner, the prosecutor in rural DeKalb County in Indiana. Under normal times, keeping them incarcerated would have been the easy choice for Winebrenner. But these aren’t normal times.

The coronavirus pandemic has upended the day-to-day operations of the criminal justice system, raising significant questions about what incarceration and access to justice looks like as the virus reaches all 50 states and the District of Columbia.

Everybody, from judges to defendants, now confronts a stark reality. Jury trials have been suspended in more than two dozen states, the District of Columbia and the U.S. Virgin Islands, as well as in dozens more localities. Courthouses have either been restricted from the public or completely shut down. Judges, forced to ensure that the justice system does not grind to a screeching halt, have prioritized more urgent cases, with some holding hearings via video or telephone.

This means defendants who enter the criminal justice system will have to stay there longer, which could raise serious questions about civil liberties and constitutional rights to a speedy trial. Jo-Ann Wallace, president and chief executive of the National Legal Aid and Defender Association, said this also means defendants who are awaiting trial in jail could lose access to their homes, family and jobs — "the cascading effect" that destabilizes livelihoods.

Similar disruptions are happening in federal courts that hear some of the country’s most controversial and consequential cases. The Supreme Court postponed oral arguments for the first time in a century. The executive committee of the Judicial Conference, the policy-making body for federal courts, is asking Congress for $7 million in additional funds to pay for mental health and drug treatments that have become costlier because they must now be given individually instead of in groups.

The country's notoriously backlogged federal immigration court system is now largely at a standstill. Te Justice Department closed several courts and postponed hearings of those who are not in custody.

Meanwhile, prosecutors like Winebrenner face an uneasy, immediate question: whether to release defendants they believe should be incarcerated to avoid viral outbreaks in jails, where close quarters and overcrowding would speed the spread of the deadly and highly contagious COVID-19. “Let’s just say we’ve kind of moved the bar up. We have to get some people out of there … and bust through some rules that are very good rules for some reasons, but in this situation, some people need to get out,” she said....

For Derwyn Bunton, the chief public defender in New Orleans, the worst-case scenario is clear: Arrests will continue as if everything is business as usual, clogging up court dockets that are not moving. Reluctance to release nonviolent offenders will overcrowd jails. Defendants, still innocent until proven guilty, will sit there indefinitely. The epidemic will make its way inside facilities, where hygiene products are limited and social distancing isn't an option.

Bunton has pushed for not arresting people over minor offenses and releasing inmates accused of nonviolent crimes to avoid that worst-case scenario. But he’s been met with resistance from law-enforcement officials who say bending the rules would result in lawlessness.

Such is the conundrum in jurisdictions across the country, where defense attorneys and prosecutors with competing interests are forced to find common ground to help stem the public health crisis. “We can maintain public safety without jeopardizing public health,” Bunton said. “The cost to the community of keeping those folks in jail on nonviolent or technical violations is outweighed by the need to prevent the spread of the virus.”...

Rob Sanders, the prosecutor in Kenton County in Kentucky, said he’s seeing far more people being released from jail than at any other time in his 21 years in public service. Nearly every inmate accused of nonviolent offenses is being considered for release, he said. That includes not only defendants facing minor drug and property crimes, but also felons caught with guns and those accused of drug trafficking. “I’m apprehensive. Certainly, we don’t want to make any law-abiding citizens get victimized by someone who might otherwise have been incarcerated. That’s my biggest concern,” he said.

Sanders also fears that many defendants will not show up to hearings once court operations are back to normal. But he also acknowledges that these are unprecedented times. Taking a chance by releasing certain inmates “is something we need to do,” he said.

March 19, 2020 at 02:02 PM | Permalink


Here in Fayette County (Lexington), Kentucky, all parties (prosecutors, defense lawyers and judges) have been working to get non-violent defendants bonded out of jail. Defendants who are free on bond need not appear in Court for arraignment, and are being given dates to appear a month or more into the future. Only defendants who remain in custody at the Detention Center are being arraigned, via the video link from the jail to the Courtroom (which has been used for many years now). Also, Grand Juries in Circuit Court usually have 60 days within which to indict defendants whose cases have been bound over from District Court. Under new rules, the prosecutors can move for an additional 45 days to indict, without the defendant being released from jail (which usually happens if the defendant was not indicted within the 60 day time limit). No civil or criminal jury trial are being conducted now, and only emergency hearings and domestic violence hearings are being held.

Posted by: James Gormley | Mar 19, 2020 8:39:15 PM

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