In California, home to one in eight U.S. residents, emergency measures related to the COVID-19 pandemic have scaled back the rights of criminal defendants, raising thorny questions about what process is due while public-health authorities insist on strict social distancing. Everyone understands that the state is in a temporary emergency and that some changes to the criminal-justice system are defensible, or perhaps even imperative. At the same time, many bygone emergencies have triggered some excessive impingements on rights and liberties.
And the stakes will likely extend beyond the Golden State.“Throughout the coronavirus crisis, California has been at the leading edge of adopting new measures,” Noah Feldman observes at Bloomberg Opinion. “San Francisco and other Bay Area counties were the first to adopt formal shelter-in-place orders; and California was the first state to adopt a statewide movement-restricting order. Both of these became influential models. What California does today in criminal justice may soon be followed by other states.”
Statewide changes began when Tani Cantil-Sakauye, California’s chief justice, suspended jury trials for 60 days—a nod to the impossibility of assembling juries and convening attorneys, witnesses, court reporters, bailiffs, and others without spreading the coronavirus. The order allowed exceptions if there were a “good cause shown” for an earlier trial. Governor Gavin Newsom set the stage for more changes last Friday in an executive order that gave the Judicial Council of California, the rule-making body for the state’s courts, sweeping emergency powers “to make any modifications to legal practice and procedure it deems necessary.”