October 2, 2020
The National Commission on COVID-19 and Criminal Justice issued its interim report looking at ways to reduce the pandemic’s impact on jails and prisons as well as the courts and law enforcement.
The pandemic has consumed
every facet of life across the country and around the world. The virus has been
quick and deadly, infecting nearly 7 million people and killing more than
President George W. Bush’s former Attorney General Alberto Gonzales and
President Barack Obama’s former Attorney General Loretta Lynch found that more
than 168,000 prisoners and 29,000 correctional staff around the U.S. have
tested positive for COVID-19. More than 1,000 inmates and 50 employees have
Among law enforcement,
3.5% of police personnel have been exposed to COVID-19 and at least 114 police
officers have died. More than one in three of police agencies lack sufficient
personal protective equipment.
The pandemic has resulted
in the widespread closing of social and recreational gatherings - from
religious institutions to athletic events, the public has been shut out.
Businesses have closed. Schools have cancelled classes. Millions are out of
work, out of school, and those who remain are often working and learning from
The workings of the
criminal justice system have been dramatically altered in order to preserve
both safety and health. The Commission found that criminal justice leaders have
been challenged by a lack of credible and consistent guidance leading to a
system plagued by a “patchwork of plans and policies.”
criminal justice system - prisons, jail, the court, and law enforcement - has
always been a patchwork of laws, initiatives and reforms. Although science
appears to be the enemy of the current administration, traditionally science
and medicine have been models of consistent evidence-based practices.
The difference between
medicine and criminal justice is that medical practitioners know what works -
criminal justice practitioners don’t.
A doctor in Georgia will
treat the symptoms of acute myocardial infarction (AMI), or heart attack, with
the same general protocol as doctors in Oregon or Kansas. The current protocol
for treating patients with AMI is either pharmacological (clot-dissolving
therapy) or mechanical (coronary angioplasty).
The criminal justice
system is different. Although criminal justice practitioners boast of using
evidence-based practices there are no standard best practices accepted by all
criminal justice practitioners. While one state may be implementing policies to
reduce the state prison population another is enacting new mandatory minimum
sentencing to put more people in jail for longer periods of time.
Therefore, it is no
surprise that the Commission is concerned about the “patchwork” of measures to
deal with the influence of COVID-19 on the criminal justice system.
I am hopeful the
Commission will continue to drill-down on some of the report’s 33
recommendations. The Commission acknowledged that judges “limit jury trials and
in-person court proceedings, reserving in-person proceedings for essential
cases or when counsel identifies a compelling need.”
That does not get to the
root of the problem. Jury trials have essentially disappeared as a result of
COVID-19. The concern for jurors and court personnel is real. However, men and
women sitting in jail accused of a crime have a right to be heard in a timely
The U.S Constitution
provides that those accused of a crime have the right to “be confronted with
the witnesses against him.”
Some courts have adopted
the use of video conferencing to deal with bond hearings, preliminary hearings
and other time-sensitive matters when an accused is sitting in jail awaiting
However, trial by video
will not work. Cross-examining witnesses via video conferencing can be
challenging, especially when the judge, witness and lawyers are all in
different locations wearing face coverings. When the Constitution provided that
an accused has the right to confront witnesses - that confrontation was in
The Commission’s work was
swift and deliberate, but as the pandemic continues to wreak havoc on every
American institution, with no end in sight, there is more work to be done.
T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His
book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You
can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.
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