Coronavirus, Courts and Jails

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.

22 thoughts on “Coronavirus, Courts and Jails

  1. Richard Kopf


    Without trying to being overly secretive by not providing details, I can tell you that an enormous amount of innovative effort is being put in by federal court staff to address the myriad of problems posed by the pandemic including the ones you properly addressed. That said, I would add one particular concern to those listed by you: jury trials.

    We are beginning to see potential jurors expressing fear of fulfilling their obligation to attend court sessions. Those concerns are not unwarranted. They need to be addressed with sensitivity. It may well be that jury trials will be suspended. We are not there yet, but not far from such a drastic action either.

    Thanks for highlighting these important consideration. All the best.


    1. SHG Post author

      I took for granted that jury trials, rare as they are these days, could await the end of the pandemic. There’s always time to convict later.

      1. Turk

        I saw that Michigan has already suspended civil trials and some criminal, and Houston has suspended all civil. ‘Tis only a matter of time. A very short matter of time.

        1. SHG Post author

          You know, if Judge Kopf was a decent human being, he would issue a nationwide injunction prohibiting us from being infected by coronavirus. But does he? No. No he does not.

          1. Turk

            Connecticut has now shut down also.
            So what the hell’s with Nebraska? If the Judge won’t do it, maybe we can send in the Nebraskan Navy?

            1. Skink

              By order of the Admiral, The Great Navy of the State of Nebraska is in dry dock for the duration. Just following orders.

          2. Richard Kopf


            Don’t clutter up the comment section by suggesting that there is even a remote possibility that I am a decent human being. I have a reputation to uphold, damn it. Besides, there is a rule, not widely known, that only district judges from the Ninth Circuit have the authority to issue nationwide injunctions ’cause everyone knows they are super smart.


          3. Charles

            If he would enjoin the virus from infecting us, that would be better. Last thing I want is to respond to an order to show cause while on a ventilator.

  2. Pedantic Grammar Police

    The horrible evil Iran dictators who I read in the media do not care at all about their people are releasing 70K prisoners to prevent the virus from spreading in prisons. I’m sure that the wonderful, kind, democratically elected rulers of the US will treat our prisoners even better! Because they care so much about us.

  3. Onlymom

    Need to look at the bright side.

    If the state at each lvl fails to at least limit the exposure. Well there will be a lot of work for lawyers filing the wrongful death lawsuit’s

    Hopefully our politicians and the criminal justice system will buy a clue and do what is needed.

    But not holding my breath

  4. PseudonymousKid

    Dear Pops,

    Stay healthy out there. Luckily, the government around these parts seems to understand and has suspended civil and most criminal jury trials. Getting jury pools together at this point seems foolish with the state of emergency and all of that.

    Too bad I need a hearing on an emergency motion I just filed. My client’s property is at stake and he will be harmed by any delay. So I gotta do what I gotta do and try to get in front of the judge ASAP regardless, I guess.

    Times are wild. Maybe they’d be less wild if we had better labor laws and healthcare. Oh well. The world is still turning.

    Best health,


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