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That said, if the Fifth Amendment proves ineffectual for pretrial detainees, they will have to rely heavily on the Sixth Amendment as they seek protection from the virus—in particular, the Sixth Amendment’s right to “the Assistance of Counsel” in criminal cases.
It’s difficult to overstate the importance of access to counsel for pretrial detainees. As the Second Circuit Court of Appeals recently stated, the “legitimacy of our criminal justice system” depends on defendants’ right to consult with legal counsel about bail hearings, plea negotiations, ongoing investigations, and trial strategy.
Since COVID-19 emerged, that has only grown more true. Speedy and public trials are a thing of the past. Judges and juries are sheltering in place, even as criminal prosecutions slowly inch forward. This puts many pretrial detainees in a frighteningly precarious position. They are stuck in jails with much higher risks of exposure to COVID-19—and much less access to quality health care—but without any end in sight.
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In these circumstances, access to counsel is paramount, especially for the many detainees whose age or medical conditions put them in high-risk categories. It is through defense counsel that these men and women can seek bail, temporary release, transfer, compassionate release, or other relief—and thus obtain the individualized assessment that courts have urged in Fifth Amendment cases.
But in some jurisdictions, the same virus that endangers pretrial detainees has also sabotaged their access to counsel. This has become a full-blown crisis in New York City. There, the federal jails have ceased all attorney visits, fumbled in setting up limited videoconferences, and sharply limited phone access. As of last week, nearly 50 percent of attorney requests to speak with clients went nowhere. Things have gotten so bad that some attorneys have been forced to file bail applications without even speaking to their clients first—which puts them at a gross disadvantage in explaining why immediate release is warranted.
This is untenable. The government cannot proceed with criminal cases, detain people in high-risk jails, reflexively resist calls for their release, and then restrict access to lawyers who seek to protect them from dangerous conditions. The Sixth Amendment stands against such abuse.
Of course, that principle is no novelty. More than a year ago, the federal defenders of New York (represented by me and my law-firm colleagues) sued the Bureau of Prisons for failing to protect Sixth Amendment rights at the federal jail in Brooklyn. In their suit, the federal defenders invoked a wealth of history and precedent confirming that jailers must ensure consistent access to counsel.
In late March, the Second Circuit issued a powerful decision allowing this case to proceed—and confirming the role of courts in ensuring “that constitutional boundaries are not transgressed by considerations of expediency.” District Judge Margo Brodie has since appointed former Attorney General Loretta Lynch to help mediate the dispute. In these proceedings and elsewhere, the federal defenders have repeatedly raised concerns about inadequate access to counsel during the COVID-19 pandemic. Still, progress remains extremely limited, well short of what the Constitution requires. Whether the federal government will meet its legal obligations to those it has detained in New York City is quite uncertain.