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How Coronavirus Has Stifled the Criminal Justice System
By Kerry L. Erisman
   
 
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By Kerry L. Erisman, Faculty Member, Legal Studies at American Military University

“This disaster, this pandemic, is going to change the way the courts do business from now on.”- Nathan Hecht, Texas Supreme Court Justice

The novel coronavirus pandemic that has spawned the COVID-19 respiratory disease has significantly impacted the United States ever since February. Businesses and restaurants are closed, states have issued stay-at-home orders, schools are closed through the end of the school year, and the economy continues to suffer greatly.

As of early May, more than 1.2 million people in the United States have contracted COVID-19. Tragically, more than 71,000 have died as a result of COVID-19 related symptoms, according to data compiled by Johns Hopkins University.

While states begin the gradual process of systematically reopening, the effects from the coronavirus will no doubt continue for some time. The pandemic has had significant impacts on the criminal justice system, affecting law enforcement departments and officers, the court system, and correctional facilities.

Coronavirus Has Changed Law Enforcement

Law enforcement officers are the frontline faces and initial responders within the criminal justice system. Officers patrol neighborhoods and routinely initiate contact with citizens. There are more than 18,000 law enforcement agencies in the United States with more than 800,000 law enforcement personnel.

The coronavirus has significantly affected the way officers do their job. For example, in April, it was reported that 20 percent of New York Police Department personnel were out sick and more than 5,000 NYPD members tested positive for COVID-19.

The high number of cases puts a severe strain on the entire department, forcing healthy officers to work many more hours than normal, putting them at increased risk for exposure.

Social distancing recommendations to prevent COVID-19 transmissions causes officers to keep their distance from citizens and make less face-to-face contact with the public. This, in turn, has resulted in a sharp decline in arrests.

Although serious crime rates have remained nearly identical, arrests from January through April 2020 are down 60 percent compared with the same period in 2019.

[Related: The Coronavirus Pandemic Is Reducing Some Types of Crime]

Despite general crime rates staying the same, domestic violence incidents have risen sharply over the past few months. This is to be expected because, as Bristol University sociologist Marianne Hester noted, it is common for domestic violence incidents to rise whenever families spend more time together. Incidents have risen so sharply, however, that the United Nations has warned that the coronavirus lockdown could lead to 31 million new cases of domestic violence.

Effects of the Coronavirus on the Court System

The coronavirus has also significantly affected the state and federal court systems, in some cases bringing them to a near standstill.

Prior to the spread of COVID-19, many courts had lengthy backlogs of criminal and civil cases. The past few months have exacerbated the backlogs and jeopardized the constitutional rights of defendants. The Sixth Amendment provides criminal defendants the right to a speedy and public trial, but the pandemic has significantly impeded the courts from providing these rights to defendants.

[Related: Holding Prosecutors and Judges Accountable for Unequal Justice]

Court systems are struggling to figure out how to deal with defendants awaiting trial but who currently cannot be tried due to coronavirus restrictions. Many of these individuals are awaiting trials while incarcerated as the judiciary determines how to safely proceed. For example, the judiciary is struggling to determine how to proceed with jury trials that require jurors to be seated in close proximity in the courtroom and in small deliberation rooms. Is it time for prosecutors to seek alternative dispositions to those awaiting trial so as to move cases forward and begin reducing the growing backlog?

The coronavirus pandemic has affected every level of the judiciary, including the Supreme Court of the United States, which postponed oral arguments for March and April. Oral arguments are a vital part of the judicial process that occurs before the Court’s opinions are drafted. These postponements resulted in about 20 cases being put on hold, some of which could have important consequences for the Executive Branch.

Beginning this month, the Supreme Court will take unprecedented steps and conduct a series of oral arguments via telephone conference. It will also provide real-time, live streaming of oral arguments for the first time in the Supreme Court’s history.

Changes to Corrections

Finally, COVID-19 has significantly affected prisons throughout the United States. Prisoners live in close quarters and cannot maintain any type of social distancing. Prison personnel also cannot avoid close and daily contact with prisoners, putting both groups at increased risk of exposure.

Many states and federal confinement facilities have instituted measures to release nonviolent criminals early to reduce the prison population and make it safer for remaining prisoners and prison employees. For example, Attorney General William Barr has directed the Bureau of Prisons to prepare the release of nonviolent inmates, especially in areas heavily affected by the coronavirus.

In a memo dated April 3, the Attorney General noted that recent legislation “now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons.” Barr further stated that in response to the legislation, “I hereby make that finding and direct that … you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities.”

Many states have implemented similar measures and have released nonviolent offenders to help to avoid the spread of the coronavirus.

Research Needed to Understand the Total Impact of Coronavirus on the Criminal Justice System

While we are still in the midst of combating the spread of COVID-19, it is difficult to predict its long-term effects on the criminal justice system. Backlogs, for example, have extended from months to a year or more, according to a judicial assistant in the Arizona Superior Court who is also a current American Military University master’s student. When trials resume, the preference will be on criminal cases in order to meet the constitutional mandates afforded to criminal defendants.

To better understand the full picture will require criminal justice leaders and administrators to collaborate with researchers and academics to collect data and assess the ongoing changes brought about by the coronavirus pandemic. The outcomes and lessons learned from such research will hopefully help law enforcement personnel and  criminal justice leaders and administrators to be better equipped and prepared to handle any future emergency situations facing the nation.

About the Author: Kerry L. Erisman is an attorney and associate professor of legal studies with American Military University. He is a retired Army officer who previously served as an Army military police officer and later as a prosecutor, chief prosecutor, and defense attorney. Kerry writes and teaches on important criminal justice issues and military spouse issues including leadership, critical thinking, and education.

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