My husband and I are both public defenders in Maryland. Last week, he attended his first scheduled bench trial since the courts were closed in March. The client, witnesses, court staff, and attorneys were all expected to appear in court and potentially be exposed to COVID-19. And for what? To adjudicate a misdemeanor charge of malicious destruction of property worth less than $1,000.
Even as the pandemic has forced this country to rethink seemingly every facet of American life, the criminal courts continue the routine processing and prosecution of petty misdemeanor crimes. My co-workers have had to appear in court to represent clients on traffic cases, charges of simple drug possession, disorderly conduct, and other misdemeanors. But this business-as-usual approach to minor offenses is immoral and dangerous. People charged with misdemeanors during the pandemic should receive amnesty.
Nearly 13 million misdemeanor cases clog American criminal-court dockets every year. Black and brown people are disproportionately charged with these offenses, which largely arise from housing instability, poverty, and racist policing practices. The country punishes people for actions taken in the furtherance of survival, and in the throes of addiction and mental-health struggles. The process of charging, arresting, prosecuting, and punishing these types of offenses does nothing to deter future conduct, because it does nothing to change the material conditions and structural inequities that affect the lives of the accused every day.
Because many trials were on hold through the spring and early summer, the already-overloaded caseload has only swelled. Those who couldn’t afford or weren’t given bail have been languishing even longer than usual behind bars, many without a trial date. Now courts across Maryland have been slowly opening this summer. Those at home, who were released before and during the pandemic, are being called to return to the courthouse for their trial, risking their safety. Some of these cases will be dismissed in court; what used to simply cost people’s time now may cost their health too.
Prosecutors’ answer to the mounting backlog of cases caused by COVID-19 seems to be not amnesty, but plea deals. Even under normal circumstances, pleas are coercive. Accept the scarlet letter of a conviction—along with the lifetime of collateral consequences—in exchange for a lesser punishment now, or face the merciless wrath of the prosecutor and the court later. But plea deals have become even more coercive and barbaric during the pandemic. Take a plea deal or risk a day in court that may expose you, your family, and your community to COVID-19. The coronavirus makes every charge, no matter how minor, a potential death penalty.
Postponing these cases any longer, until trials are safe, is unrealistic. No one knows when that time will come, and many people who can’t afford bail will wait indefinitely behind bars, where COVID-19 rates have been high. Besides, simply putting cases on hold violates the constitutional right to a speedy trial. Protecting this right is important: It keeps evidence and witnesses fresh and allows complainants and the accused to move forward with their life more quickly.
Dismissing broad categories of misdemeanor cases is the obvious solution. Mass amnesty is not new. Andrew Johnson famously granted wholesale amnesty in 1868 to traitorous Confederate soldiers who fought to defend slavery. Jimmy Carter granted amnesty to hundreds of thousands of people who skirted the draft during the Vietnam War. Ronald Reagan signed a law granting amnesty to undocumented immigrants who entered the U.S. before 1982. There are plenty more familiar and less controversial examples of amnesty. Forty states and D.C. have passed laws that reduce or eliminate criminal penalties for people who overdose on drugs and for the people who call 911 to get them medical help.
Though prosecutors often articulate a fierce loyalty to alleged victims of crimes, their intended role is to represent and protect the entire community. When balancing the minor loss of property against the health and safety of our neighbors during a pandemic, public health must come first. In April, in response to the backlog growing amid the pandemic, a district attorney’s office in Shasta County, California, dismissed more than 6,500 old low-level cases. Many more prosecutors’ offices can and should move to dismiss pending misdemeanor cases. Charges such as trespassing, disorderly conduct, simple drug possession, and prostitution should be an easy call for prosecutors to dismiss en masse. But crimes with some financial loss, such as theft and malicious destruction of property, should be included in any amnesty project as well.
By dismissing these cases ahead of the trial date, prosecutors won’t gamble with the health and safety of the judges, bailiffs, witnesses, clients, attorneys, clerks, and other people whose presence is necessary to hold a criminal trial. Mass dismissal of these cases will also lower jail populations. And local governments could reallocate resources normally used to prosecute thousands of low-level offenses to restitution funds.
The legal system is usually slow to evolve, and the pandemic hasn’t changed that reality. But how many lives must be risked to uphold the status quo? And if Black lives truly matter, what is the justification for putting the health of mostly Black defendants, families, and witnesses in danger over something as trivial as a misdemeanor property crime? At its core, amnesty is a recognition that there are more important things in this world than punishment. The country can’t keep measuring justice through the length of a jail sentence, or the amount of a restitution order, while a pandemic rages.