Arguments over the seriousness of COVID-19 should be behind us. Whether millions contract it, even die from it, will be a matter how it’s dealt with, and that will only be known after the fact. Ironically, if we deal with it well, or at least better than expected, it will appear that it was less of a threat than many thought, even though it would have been every bit as dangerous had we dealt with it less well. Go figure.
In any event, among the many places where the normalcy of operations creates needless risk are courts and jails. Some have already taken measures to limit or shut down in anticipation of “penal distancing.” Many have not. It’s time to deal with the reality that the legal system has a host of reasons, some good, some not so good, to do things the way it does. But this changes the balance: death from disease is not the punishment.
Court Appearances: Routine court appearances, requiring the defendant to appear in court to show that he’s still there, are one of the grandest time wasters around, but taken for granted as a normal part of the system. In state courtrooms, they’re “cattle calls,” with all defendants told to appear in the morning and waste the day sitting around until they spend their 30 seconds before the judge, only to be told to come back some other day.
Defendants should be excused from court appearances. If need be, have defendants check in with counsel and counsel can represent to the court that they’re in communication with defendants.
As for the court appearances themselves, there are two ways to address them. There is the half-measure of scheduling appearances at specific times, as is done in federal court, so that the room isn’t needlessly filled with lawyers sitting around awaiting their turn. The better idea would be to conduct appearances by teleconference, particularly given how little is generally accomplished at a routine court appearance.
These ideas would work in the best of circumstances, but would require a degree of reinvention of the routine for courts, which is always difficult and meets with the usual resistance to change. However, the current circumstances justify immediate precautions, since compliance with the direction to appear should not be upon pain of death. And if concern for the health of defendants and counsel isn’t a sufficient reason, the health of court staff and even judges is at risk as well.
Jails*: Other than nursing facilities for the elderly, there is likely no place better suited for a health disaster than a jail. Pre-trial detainees remain innocent and no matter what fears are harbored about them or how justified those fears may be, death by disease is not a risk to be imposed on anyone, and absolutely not a pre-trial detainee.
Where the line should be drawn may be in dispute, but it would seem appropriate that any inmate charged with less than, say, a Class B felony should be automatically released, thus eliminating crowding in jails, facilitating cleanliness measures for the reduced population and making it at least possible that healthcare for anyone infected can be managed.
Again, if concern for the welfare of pre-trial detainees, for whom risk of death by disease is not part of the deal, isn’t sufficient to move you, consider that there are guards and other staff who will be at extreme risk as well. Their health is also at risk.
Are these changes too extreme? Maybe, but that’s the point, we don’t know. If we eliminate needless risks in court and jails, we will hopefully avoid a significant contributor to the spread of coronavirus. If we don’t take action to prevent this harm from happening, and subsequently realize that the legal system’s reluctance to adjust to health realities was a massive failure and did substantial and needless harm, there will be little to do about it except wallow in regret.
Now is the time to take action and eliminate needless and improper risk. Courts and jails are part of a system intended to help society, not spread disease. Whether it helps under the best of circumstances is an argument for another day. Today, the risk of COVID-19 is the foremost concern and it needs to be addressed.
*Prisons and post-conviction inmates present somewhat different issues, and have been deliberately left out of this discussion.