It’s not just private businesses and schools being impacted by the social distancing rules and lockdowns taking place all over the nation. Our criminal justice system is feeling the pinch also, as courts deal with mandatory staffing reductions and the need to avoid having large groups of people gathered together in front of a judge. This is restricting the ability of states to process suspects in normal fashion. In response to this pressure, Politico reports that the Justice Department quietly filed a request to have emergency powers granted to them so they can maintain order without the normal procedures that are generally followed, and some of what they’re asking for is disturbing to say the least.
The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the coronavirus spreads through the United States.
Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.
There are more requests on the list, including the ability for the chief judge of any district court to “pause court proceedings” when the court is impacted by civil disobedience or other emergency situations. Such a “pause” could be put into effect for pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures. In other words, this would effectively throw habeas corpus out the window for the duration of the pandemic. You could, in theory at least, be arrested and tossed in a cell and left there indefinitely without getting the chance to appear before a judge and ask to be released, have bail set or anything else.
Drastic times may call for drastic measures, but this obviously has some civil rights advocates on edge over what could amount to a suspension of many constitutional rights. At Outside the Beltway, James Joyner opines that while the optics certainly look bad and he remains distrustful of the Trump administration in terms of a power grab, the DOJ has made their case fairly well and this could be needed.
Policing and administration of a justice system are essential services that can’t be suspended even during this time of social distancing. Police officers simply have to patrol their beats to keep their communities safe. And judges have to continue going to work to issue warrants and do other vital parts of their jobs. Presumably, both are enacting some safeguards for self- and community-protection but the bottom line is they have to do their jobs.
But we surely can’t ask grand juries and petit (trial) juries to meet, certainly not under the usual procedures. And courthouses have to be on minimal staffing, both to protect non-essential workers and because somebody has to take care of all the kids who are home from schools that are shut down.
Under these circumstances, it seems perfectly reasonable to automatically extend statutes of limitations. Similarly, allowing the use of videoconferencing technology to maintain social distancing seems obviously prudent.
But there are limits to how much Joyner is willing to tolerate in terms of keeping the criminal justice machinery running. He gives a firm “hell no” to the idea of indefinite detention without access to counsel and the courts. He feels we must protect any defendant’s right to a fair and speedy trial, even if we have to modify our definition of “speedy” a bit while the pandemic runs its course.
I tend to agree. Surely we can help the Department of Justice keep the wheels from coming off entirely without sacrificing essential rights. Perhaps we could ask the courts to defer prosecution of minor crimes until the backlog is cleared and focus only on the most serious violent crimes and criminals who would be most likely to present a credible threat to public safety if they were simply cut loose. It’s not an ideal situation, but as Joyner points out, we can’t have the cops simply stop enforcing the law. At that point, civilization as we know it effectively breaks down and the country goes into full Mad Max mode. In order to avoid that potential outcome, some adjustments in how the courts process their caseloads may be required.