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.”
The council quickly acted to modify core legal protections for defendants. “Certain inmates normally have the right to be released if a hearing isn’t held within 10 days. That will be extended to 30 days,” the Los Angeles Times explained. “Defendants charged with a felony normally must be taken before a judge in 48 hours. The new deadline is seven court days.” Consider a poor person arrested on suspicion of drunk driving. Normally he would be arraigned and receive a public defender within 48 hours of arrest. Now he could sit in jail for a week without an attorney before getting the opportunity to tell his side of things to a judge.
Lawyers and civil-liberties advocates are scrambling to understand the new rules, their implications, and how to respond. Advocates for defendants fear that today’s compromises are too one-sided. “If we’re going to go down this road of denying people their speedy trial rights, then we should talk about releasing them on no-cash bail or some other form of release, such as electronic monitoring,” Alameda County Public Defender Brendon Woods declared in a public statement. “The right to a speedy and public trial is the bedrock of the U.S. Constitution and is one of the founding principles of this country. Losing that … should alarm every single person in California.”
The delay of jury trials appears far more warranted than the new timelines for pretrial defendants. With trials suspended and arrests down most everywhere as the state is on lockdown, presumably more judges can dedicate themselves to conducting speedy arraignments and preliminary hearings––and they should, given that thinning out jails and avoiding needless detentions are urgent public-health priorities expected to save some lives. People arrested for reasons that aren’t legally valid or without sufficient evidence to back up a charge may now languish far longer than before, during a particularly dangerous time to be in jail.
“The way we currently cage people is such that they cannot comply with what everyone agrees are critical public-health guidelines,” Kathleen Guneratne of the American Civil Liberties Union told me. “In our view, the judicial council should have sped up the process and made sure that more people got to court sooner, not later, because right now, this is literally life or death for people in jails. If the building is on fire, you don’t narrow the funnel so that fewer people can get out alive. You open more doors.” Indeed, there are already news reports of COVID-19 among prisoners in some facilities.
Of course, all states must ultimately conform with the Sixth Amendment to the Constitution, which states, in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The U.S. Supreme Court may ultimately decide what that means during this pandemic. Throughout, officials at every level of government should always bear in mind that until being convicted by a jury of their peers, Americans are owed a presumption of innocence.