Delayed Justice As Cases Stall: The Impact of COVID-19 on the Criminal Justice System

Eva Reyman

Edited by Julia Drobish

ABSTRACT

When COVID-19 hit in 2020, it sparked unprecedented upheaval and uncertainty. The pandemic brought legal issues to the forefront, from social justice to gender inequality, and demonstrated the importance of advocating for what is right. It also caused changes in the criminal justice system. Numerous questions arise, namely: what has happened to court cases since the pandemic, and what laws relate to or have come about in response to these changes? It is important to understand the pandemic’s role in shaping this phenomenon because it provides insight into social justice in the modern world.

The first section of the article lays out the issue of case backlogs. It considers specific cases in which defendants still await cases and impacted families long for justice. The second section of the article focuses on laws pertaining to the delays and how many of these, including constitutional rights, are not being upheld by courts. In particular, the Sixth Amendment guarantees criminal defendants the right to a speedy trial. Additionally, the Speedy Trial Act of 1974 clarifies that a trial must start within seventy days of the prosecutor filing the indictment. Clearly, people are not following these laws, as both prisoners and those who have been wronged continue to wait for much longer than the aforementioned time frame. The article will exhibit how these issues undermine an equitable legal system that protects human rights and offer potential solutions.

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INTRODUCTION

This article aims to discover how COVID-19 has impacted the United States criminal justice system, specifically how it has stalled cases and delayed justice around the country. The states' responses to cases illustrate the pandemic's effect on criminal justice across the nation. Each state has imposed regulations pushing back cases as the pandemic lingers, with court officials citing large congregations and the inability to maintain social distancing as reasons for the delays. For example, the pandemic caused Alaska to suspend criminal trials until January 10, 2022.1 Other states adopted similar suspensions following the pandemic's onset, and over the past two years, delayed justice permeated the entire country. However, critical new legal rulings and the laws that have emerged from the pandemic, specifically in response to and discussing COVID-19, provide a solution to the delay. One way of addressing the backlogs caused by COVID-19 through new laws is lengthening the time prisoners remain at home, and upon the end of this period, re-evaluating the necessity of their return to prison.2 This option offers a remedy to the intensity of the case delays and helps preserve prisoners' rights by allowing those who have complied with the conditions of home confinement to return to society, not prison. Ultimately, this article examines how and why COVID-19 caused a significant backlog in criminal cases, what laws pertain to this issue, and what new legislation has been created to address this delay of justice.The circumstances caused by COVID-19 show how global changes vastly impact important areas of human life and that the only way to address these lapses in

1 Court Operations During COVID-19: 50-State Resources, JUSTIA (Dec. 2021), https://www.justia.com/covid-19/50-state-covid-19-resources/court-operations-duringcovid-19-50-state-resources/. 2 Garland, Merrick, Statement by Attorney General Merrick B. Garland, THE UNITED STATES DEPARTMENT OF JUSTICE (Dec. 21, 2021), https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland-0.

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human rights is to use the legal system to create fair laws in response to a rapidly evolvingworld.

I. DELAYED CASES

The pandemic caused significant disruptions in normal court operations and procedures, resulting in countless stalled cases. Courts began suspending trials and dismissing cases when COVID-19 emerged in the United States in 2020. Since the beginning of the pandemic, a pattern of unresponsiveness has continued throughout the country, creating unease and unrest as countless individuals and families wait for justice. The phenomenon that began two years ago continues to this day: cases arise, courts disregard them, and attempt to focus on pre-existing ones, but even these become obsolete as courts battle further obstacles. It began speeding up COVID-19 when cases decreased but fell again due to the winter surge beginning around November 2021. With rapidly increasing cases throughout the winter months, California experienced the largest spike since January 2021. David A. Carrillo, executive director of the California Constitution Center, referred to the halting of jury trials and the increase in online courtroom proceedings as a decision between access to justice and public safety.3 His comment illuminates how the case backlog has only gotten worse as COVID-19 lingers on, causing major issues early on in the pandemic but also recently, during this past winter. One impediment to criminal justice and keeping the cases on schedule is the issue of jury trials; due to the pandemic's social distancing laws and countrywide measures dissuading large gatherings, courts are conducting fewer jury trials. Some contend that it is impossible to continue these jury trials as COVID-19 cases break out among judicial officers, court staff,

3 Lyons, Byrhonda, Covid Surge Upends Some California Courts – Again, CAL MATTERS (Jan. 7, 2022), https://calmatters.org/justice/criminal-justice/2022/01/covid-california-court/.

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lawyers, litigants, and jurors.4 Furthermore, prisoners are disproportionately suffering from COVID-19 as their shared living conditions make social distancing almost impossible and lead to a higher risk of diseasetransmission, extending the backlog and harming prisoners' health.5 This poses a substantial threat to criminal justice, but courts insist they will not compromise the criminal justice process even as social distancing is a major factor. They opt to either push back trial dates or move forward, but with virtual hearings. Rather than offering a viable alternative, both options have disproportionate consequences for both individuals in prison and their families and people affected by crime. By delaying trials, courts force those awaiting justice to wait even longer, with noclear end date. In March 2020, when the pandemic had just begun in the United States, an incident occurred at Brooklyn hospital. Eighty-six-year-old Janie Marshall was shoved for allegedly having violated social distancing rules in her shared room at the hospital. This action resulted in her death. Although aggressor Cassandra Lundy was charged with manslaughter and assault as the death was ruled a homicide, courthouses were closed, and jury trials canceled, so Marshall's family waited over a year for justice. Similarly, a criminal district court in Bexar County, Texas, witnessed a 67% increase in felony cases from March 2020 to February 2021. One case involved Scott Deem, a firefighter killed battling a fire in a gym in May 2017. His family was forced to wait an exceedingly long amount of time, no doubt extended by the pandemic, as they still waited into 2021.6

4 What Is COVID-19's Impact on Speedy Trial Rights? MOLO LAMKEN LLP (ML) LAW FIRM/ATTORNEYS, https://www.mololamken.com/knowledge-What-IsCOVID-19s-Impact-on-Speedy-Trial-Rights (last visited Mar. 24, 2022). 5 PISTOR, KATHARINA, COVID-19 AND PRISONERS' RIGHTS, 1–16, Essay in LAW IN THE TIME OF COVID-19 (Apr. 2020). 6 Chan, Melissa, 'I Want This Over.' For Victims and the Accused, Justice Is Delayed as COVID 19 Snarls Courts, TIME (Feb. 23, 2021, 10:12 AM), https://time.com/5939482/covid-19-criminal-cases-backlog/.

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Legal issues occupy the forefront of this devastating delay. When the pandemic began, the Justice Department aimed to provide more agency to the chief justice and other top judges, giving them room to choose if they postponed hearings. For example, the Department under Attorney General William P. Barr shut down court operations early in the pandemic, much to the dismay of criminal justice reform advocates and civil libertarians, as cases piled up and the number of people awaiting justice increased substantially. Jeffrey Robinson, director of the American Civil Liberties Union's Trone Center for Justice and Equality, stated that Civil rights leaders are enraged. This example, among others, appears not to consider the defendant's lives and, further, families affected by crime. He contends that the proposed law does not make anyone safer and instead could create more unrest as it allows for suspended criminal rights, stripping people of their constitutional protections and guaranteed privileges set forth in the criminal legal system. He maintains that this law and subsequent shutdown only illuminates people wanting power but lacking consideration for human rights, as the government employs this tactic to showcase its authority.7 Although Congress has the ability to delegate more powers to agencies in times of crisis, the federal government's response to COVID-19 has been dismal. Instead of creating more opportunities to uphold citizens' rights, it appears that governmental agencies have stifled the rights of those affected by the criminal justice system by allowing for a backlog to emerge. Furthermore, virtual courts pose an additional problem as cases continue to stall. Some defendants do not have the resources for computers or access to them and the internet. By creating a sole solution through virtual courts, financially challenged families are at a significant disadvantage as they may not have access tocomputers or reliable internet. Yet even this solution

7 Zapotosky, Matt, Justice Department's Coronavirus Considerations Rankle Civil Liberties Advocates, THE WASHINGTON POST (March 23, 2020), https://www.washingtonpost.com/national-security/justice-department-coronaviruslaws/2020/03/23/6b860018-6d01-11ea-b148-e4ce3fbd85b5_story.html.

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of online trials still does not address all of the cases, and the backlog continues to worsen. The pandemic has also made it increasingly difficult to acquire legal representation, even for someone financially stable in the current world. It is especially hard during COVID-19 to obtain any kind of legal help, much less strong representation when a person faces economic difficulties. Individuals without legal representation, especially those facing economic hardships and accessibility needs, have had a more difficult time adapting to the more technologically reliantlegal world COVID-19 has brought about. For example, litigants without computers are burdened by what certain people promote as a positive and accessible step and cannot participate in these online proceedings. The courts' adoption of technology at such a quick rate and its implementation as the sole mode of conducting trials has disproportionately affected people who do not have readily available access to both legal representation and the internet. While the online platform opened up avenues for litigants with lawyers, making it much easier to file cases in bulk, litigants without legal representation found it harder to navigate everything online.8 In order to address the backlog, it is imperative that courts begin with the issue of providing access to all, whether that entails in-person trials, lending computers, or offering a private place to go with reliable internet. Moreover, defendantswithout legal representation due to a variety of factors suffered significantly when they also faced issues such as language barriers or cognitive disabilities. Unfortunately, no specific pandemic-related law as of yet speaks to this population's needs. If such disparity in the criminal justice system exists, it will remain difficult to move forward and fight against the stalled cases.

8 How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, THE PEW CHARITABLE TRUSTS (Dec. 1, 2021), https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courtsembraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations.

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Even as conditions improved over summer 2021 to address the backlog, courts still faced this issue. For example, Georgia's Fulton County hypothesized that its 10,000-casebacklog would take thirty-six months and $60 million to get through.9 Even with increased staffing, defendants' rights to a speedy trial with unnecessary delays are not upheld. Efforts such as these illustrate how the pandemic has uprooted the criminal justice system, and its profound consequences highlight the need for additional laws addressing the delays. The legal system and revolutionary legislation must respond to COVID-19's disruption.

II. NEW LAWS EMERGE IN RESPONSE TO COVID-19, BUT CONSTITUTIONAL RIGHTS STILL NOT UPHELD

Various laws pertaining to the criminal justice system are already in place, but COVID-19 has brought about the emergence of many new ones in response to the pandemic's effects. However, the pre-existing laws give rise to issues as they fail to deliver reprieve while COVID-19 upends the criminal justice system. For example, a key legal issue relates to the Sixth Amendment to the U.S. Constitution, which guarantees criminal defendants the right to a speedy trial.10 This amendment protects criminal rights as it prohibits prosecutors from waiting an inordinate amount of time, therefore safeguarding justice. The Speedy Trial Act requires the government to file an indictment within thirty days of an arrest, and the trial must begin no later than seventy days following the indictment.

9 Nahra, Alia, How Covid-19 Is Still Battering the Criminal Legal System, BRENNAN CENTER FOR JUSTICE (June 16, 2021), https://www.brennancenter.org/our-work/analysisopinion/how-covid-19-still-battering-criminal-legal-system. 10 What Is COVID-19's Impact on Speedy Trial Rights? MOLO LAMKEN LLP (ML) LAW FIRM/ATTORNEYS, https://www.mololamken.com/knowledge-What-Is-COVID-19sImpact-on-Speedy-Trial-Rights (last visited Mar. 24, 2022).

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COVID-19 has caused two modifications of the act to be invoked. First, the Speedy Trial Act can be modified,and the timetable extended if a defendant or crucial witnesses are unavailable, meaning they resist appearing for the trial. The pandemic provided a reasonable excuse for courts to delay criminal trials, as parties involved in countless cases became ill or were uncomfortable in a social setting due to the social distancing guidelines. As the pandemic lingers, however, the question of this extension's legality arises. As vaccines, masks, and decreased cases remove the justification for the continuation of trials. Second, a court is allowed to lengthen the guarantees of the Speedy Trial Act if it "serves the ends of justice." Some courts employ this terminology by using the government's directions to social distance and avoid large gatherings to prevent people from contracting the virus. They contend that these rules "serve the ends of justice," creating yet another legally based justification for stalling criminal rights. Both reasons illuminate COVID-19's devastating impact on cases' delay: earlier in the pandemic, defendants and key witnesses frequently fellill and felt uncomfortable attending a trial in person. Nevertheless, minimal excuses remain, but courts still delay, ignoring the constitutionally protectedrights enclosed in the Speedy Trial Act. Paralleling the inequities discussed with regard to theprior guarantees of the Sixth Amendment, other protections secured in this amendment, as well as the Fifth Amendment of the U.S. Constitution, also suffer. The Fifth Amendment ensures that all defendants have a fair trial,11 which the pandemic disrupts invarious ways. Furthermore, the pandemic’s introduction of virtual courts calls the soundness of the Fifth Amendment into question, as certain populations serve as jurors much less than others, limiting juries' partiality. For example, the elderly, people with pre-existing health conditions, and minorities face the majority of issues as they are more likely to suffer worse consequences of COVID-19. Additionally, healthcare

11 Criminal Procedure, LEGAL INFORMATION INSTITUTE, (last visited Mar. 16, 2022), https://www.law.cornell.edu/wex/criminal_procedure.

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workers labor even harder as they manage the frontlines, so they must remain at theirjobs and thus appear less on juries. These factors reflect COVID-19's effect on defendants' constitutional rights; a limited juror pool removes the guarantee of impartiality as a much less representative population makes its way through and serves on the jury or even has the chance to be selected.12 During jury selection, parties must remain unbiased and not discriminate based on race or gender, as established in Batson v. Kentucky, 474 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S. 127 (1994).13 But the elimination of potential key jurors generates a substantial issue, and people of certain gender identities and ethnicities are less likely to be considered for a jury position. One response to the pandemic's disproportionate effect on criminal justice as cases stall is a new proposed Bill, SB 315.14 This expands upon preexisting legislation that provides a pretrial diversion program for anyone charged with a misdemeanor. It does so through the introduction of the COVID-19 Alternative Adjudication Program, which would call for courts to dismiss an accusatory pleading if six months have passed since the defendant was released from custody and as long as they were not charged with a subsequent misdemeanor or a felony. The Immigrant Legal Resource Center is a strong proponent of the bill and believes that it could directly improve the backlog and protect public health as it provides judges with the ability to dismiss low-level criminal cases.15 The bill was revolutionary in the

12 Constitutional Concerns Related to Jury Trials During the COVID-19 Pandemic, NCSC (Mar. 29, 2021), https://www.ncsc.org/__data/assets/pdf_file/0034/57886/Constitutional-ConcernsRelated-to-Jury-Trials-During-the-COVID-19-Pandemic.pdf. 13 Criminal Procedure, LEGAL INFORMATION INSTITUTE, (last visited Mar. 16, 2022), https://www.law.cornell.edu/wex/criminal_procedure. 14 SB-315 Criminal procedure: COVID-19 Alternative Adjudication Program, CALIFORNIA LEGISLATIVE INFORMATION (Jul. 29, 2020, 9:00 PM), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB315. 15 Horiuchi, Kimberly, Criminal Procedure: COVID-19 Alternative Adjudication Program,

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time of COVID-19 and would even erase the record of the initial arrest. The COVID -19 Alternative Adjudication Program depicts how new changes to criminal procedure can help fight back against countless barriers to justice that have only increased in severity as the pandemic remains. Additionally, one can view this bill as a response to backlogged cases and an attempt to accelerate the recently halted criminal justice process. The aforementioned bill, among other new laws, presents an exceptional solution to the current backlog; through the legality of the criminal justice system itself, policymakers find avenues to reclaim justice. The introduction of such bills provides a different outlook on COVID-19 and the criminal justice system. This new path lays the foundation for laws thatimprove the lives of incarcerated populations by ameliorating the backlog issue. Similar bills can help these populations in the United States and even all around the world, as they face asymmetric consequences and unfair phenomena like case delays. Another way of addressing the backlog through new legislation is extending prisoners' home confinement and not requiring everyone to go back to prison. One example of this path is that on December 21, 2021, Attorney General Marrick Garland released a statement declaring that people who have cooperated with the requirements of home confinement should be allowed the opportunity to continue transitioning back into society instead of returning to prison.16 He issued this regarding the Office of Legal Counsel's decision permitting the Bureau of Prisons to allow those in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act to remain there. In January 2021, the office had previously stated that the prisoners would have to be recalled when the COVID-19 emergency ended.17 This decision is crucial to upholding justice as it grants relief to incarcerated populations and ameliorates the

TRACKBILL, https://trackbill.com/bill/california-senate-bill-315-criminal-procedurecovid-19-alternative-adjudication-program/1693172/ (last visited Apr. 7, 2022). 16 "Statement by Attorney General Merrick B. Garland." 17 "Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency."

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immense case backlog by allowing them to return to society rather than prisons.Using laws and legislation to improve the criminal justice system is an important and now essential step due to the pandemic's impact.

CONCLUSION

COVID-19 caused dramatic changes to the criminal justice system. The pandemic uprooted the standard timeframe of criminal procedure and created inconceivable case delays. This backlog had a tremendous effect on those awaiting justice as victims of crime and prisoners whose rights have not been fully upheld amidst COVID-19. Virus breakouts and social distancing laws changed the legal landscape over the past two years and made in-person trials more difficult. However, attempting to conduct cases virtually proved an insufficient response as financial challenges and equal access to the internet stand in the way of technological equity. Therefore, new legislation that combats the delays while promoting social justice is a pivotal response to these issues and a crucial step towards establishing an improved criminal justice system.

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