The coronavirus (COVID-19) crisis has upended all aspects of everyday life in this country. By now, virtually all of us are at home, some working. Many aspects of life that we took for granted (going out to dinner, socializing with friends, seeing a movie, attending sporting events) have been put on hold, for how long we don’t know. Many aspects of this crisis (e.g., the long-term economic consequences) may not be known for weeks, months, or years. However, it is clear that what is happening in this crisis could have significant long-term effects on important institutions that may, in ordinary times, be resistant to change.
Because of my experience working on appeals and post-conviction matters in the Philadelphia District Attorney’s Office, I get questions on the effect of the coronavirus crisis on the criminal justice system. Here’s what I see.
First, the criminal justice system has not stopped or gone away. While, interestingly, reported crime rates in some places appear to have dropped because even criminals are staying home, people accused of crimes are still being arrested and charged, courts are processing those cases, and lawyers are counselling clients. What’s different is that the system is focusing its attention on serious and violent crime, with jury trials and other hearings that require judge, lawyers, the accused, and courtroom staff to being physically present in court greatly curtailed.
Criminal justice requires human interaction. Under our laws, the accused has the right to be personally present, in court, represented by counsel, for all significant aspects of criminal proceedings. In the coronavirus world, this means that, criminal cases will be greatly slowed down. This can have significant consequences for victims who await justice, and for criminal defendants awaiting trial, especially ones that are in custody. The nature of the virus itself is also necessitating law enforcement to consider the potential harm to officers, those charged with crime, and court, jail, and prison employees, from potential coronavirus exposure.
In Philadelphia, the criminal courts are closed for trials and open for only limited types of proceedings (including bail hearings and juvenile detention hearings) through April 30 at the earliest. Concurrently, the police have announced that they will continue to make arrests for less serious offenses, but will process them differently. Officers will be using discretion. On a case-by-case basis, officers will look at the severity of the offense, the person’s criminal record, their demeanor and if the individual is a danger to the community to make a determination if the person should remain in custody. These measures will ease the burden on the criminal justice and prison systems by effectively postponing criminal prosecutions for some offenses. They will also reduce the number of arrested persons sitting in jail while awaiting trial, which will help reduce the chances of coronavirus transmission in jails and prisons; ease the burden on court staff, prosecutors, defense attorneys, and judges; and allow arrested persons to self-isolate at home and thereby be able to assist family members who need their support. The police have recognized that some persons arrested now and released may never face a trial but have calculated that the tradeoff is necessary for the public good.
The federal criminal justice system (which prosecutes far fewer persons than its state counterpart) is also affected, but on a lesser scale. For instance, the Philadelphia federal court has announced that all criminal jury trials, as well as grand jury proceedings, have been continued until April 13, 2020 at the earliest. However, the court has begun to initiate the use of teleconferencing and telephone conferencing for certain non-trial criminal proceedings, including detention and preliminary hearings, so long as the accused consents to it. Because federal criminal prosecutions are a small minority of the total criminal cases prosecuted each year, the current crisis is likely to affect the federal criminal justice system to a far lesser extent than state systems.
Further delays and disruptions due to coronavirus may lead to systemic changes in the system. Voices are already urging further examination of the present system in light of knowledge and experience now being gained. In particular, some question the efficacy and fairness of the present cash bail system, which can often result in much jail time for the accused before trial. People in custody now, including those in jail for the sole reason that they lack the financial resources to make cash bail, are highly vulnerable to outbreaks of the virus due to the crowded conditions in this country’s jails and prisons, the ease of transmission under such conditions (where social distancing is impossible), unsanitary conditions, and the greater difficulty in obtaining quality medical care. At the same time, prison employees are far more vulnerable to catching and spreading the disease. Short term solutions such as Philadelphia’s “arrest and release” policy will likely ameliorate the effects of the disease in jails and prisons. There also appears to be a growing trend of judges granting bail far more freely to that same end. Some local governments have begun to release persons in jail accused of nonviolent offenses to reduce the risk of mass coronavirus outbreaks in jails, which could lead to future reforms to ease persistent jail and prison overcrowding. With experience and hindsight, lessons learned during this outbreak could lead to more permanent and lasting reforms and improvements in the criminal justice system.