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 205,000 nationwide.
Commission co-chairs, 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 died.
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 home.
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.”
Unfortunately, the 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 manner.
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 trial.
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 person.
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.
Matthew 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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