Conor Friedersdorf: Let People Out of Jail
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.
Read: Releasing People From Prison Is Easier Said Than Done
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.