COVID & COURTROOMS
The COVID-19 Pandemic has undoubtedly impacted our society and the fundamental access to justice. The ability to carry out due process has left many questioning, whether the pandemic will pose long-term consequences on constitutional rights. Nationwide, jury trials are on pause until further notice and each state is left to determine court operations and pandemic response procedures. Earlier this month, Chief Justice Durrant issued an Administrative Order for Court Operations During Pandemic. This order addresses the Court’s Pandemic Response Plan in Utah and provides general guidelines regarding the function of the courts. As we continue to discuss the roles of judges, motions, juries, and trials; has COVID-19 changed any of these roles as we traditionally recognize them?
INCARCERATION FACILITIES DEALING WITH COVID-19
Does the government have an obligation to address and protect inmates from COVID-19 at incarceration facilities? This diagram from The Marshall Project, displays the estimated number of inmates who have died of COVID-19 while incarcerated at United States detention centers. Does this diagram prompt questions of constitutionality, and public safety vs. human rights?
Utah’s H.B. 206 Bail and Pretrial Release Amendments took effect on October 1, 2020 and aligns with national reform trends that challenge the constitutionality of holding a defendant, based on their ability to post bail. H.B. 206 appears to evaluate defendants on a case by case basis and establish fairness based on individual circumstances and ability to pay. Although, this bill was not originally intended to address COVID-19 among inmate populations, what are some of the secondary benefits that this bill may promote in this regard?
WHAT IS NEXT?
The topics of court operations, incarceration, and Utah’s H.B. 206 can be expanded in their individual regard. However, each topic provides some sort of significance to the larger picture of justice. Here are some additional questions to consider: (please feel free to consider based on your personal opinion)
-Who suffers the most from the inability to conduct jury trials? Victims, defendants, unrelated parties and cases who have also requested a jury trial?
-Has COVID caused certain constitutional rights to conflict with one another? (i.e. speedy trial, jury pool, witness testimony)
This is a great topic to address! It reminds me of a petition for extraordinary relief filed in the Utah Supreme Court a few months back. The ACLU of Utah Foundation, Disability Law Center, and Utah Association of Criminal Defense Attorneys sought relief on behalf of those in criminal custody throughout the state who were at risk of contracting coronavirus. The State of Utah argued that the petitioners did not have standing, the Court agreed, and dismissed the case. The petitioners claimed to have "public interest standing" but ultimately, the Court said that they did not meet the burden of demonstrating that they qualified for that kind of standing. I think that more care needs to be taken for those who are currently incarcerated, but I have no idea how to accomplish that.
ReplyDeleteThis pandemic has been compared to H1N1. I worked for the Air Force, still, at the time and there was no guidance or warnings issued to us. Normally we have briefings that impact the general safety or operations of the Government. This worldwide health event has made a different impact on all aspects of the country. To address how we treat our incarcerated and prisoned, I would say we have to decide what rights to overall living they have. I say overall meaning there will be times like today that are affected by “acts of God”. I’d say overall everyday rights to comfort and health are established. But what entitlements and benefits are waived in times of national emergencies? When I was active military during times of war I assure you I did not have the comforts a prison provides. I view prison the same, there are normal accommodations and then there are extremes like we have today. Prison should not operate as normal. Prisoners should be extremely confined and very limited to interaction.
DeleteMy point is this pandemic should drive a plan to operate prisons on a very minimal comfort-based approach. It sucks for everyone, and prisoners have given up their right to happiness.
I think jails, in health crisis’, should be treated as a prison. By this I am referring to not treating jail like a revolving door. It should be a decided your alleged crime warrants semi-permanent time or nothing at all. The goal would be to keep populations very low in jails.
Yes, the government has an obligation to protect inmates from COVID-19. Similar to the fact that they must have livable conditions, food, and clothing available to them. It is a human rights issue and public safety issue for them to be protected.
ReplyDeleteThe problem with this is how do we protect inmates that are incarcerated? Using alternatives to incarceration when possible. Other methods could possibly be probation or house arrest. Do more frequent testing on both inmates and also workers. I think it will be hard to implement especially for prisons and jails that are much larger.
There is a disadvantage to many who are not able to get jury trials and are stuck with bench trials. Juries tend to lean more into the emotions in the case and not always the specific laws.
I agree with you on the jury trials. A bench trial v. jury trial could be seen as a disadvantage for both the plaintiff and defendant because they lose the ability to leverage the jury's emotion to win their case. The UT Administrative Order mentioned something about conducting "remote hearings." I wonder if they'll figure out a way to have remote jurors as well.
DeleteThis is interesting there is a definite conflict in meeting the needs of all parties. I don't have any good answers here but I do have questions. If you take the question away from COVID and talk about a common cold do jails have a responsibility to help avoid all illnesses or just ones with a higher mortality rate? What if it was the flu that will kill a few more? Is the amount of public fear of a disease to be considered? When AIDS was first becoming a big issue there was fear of being around anyone with it. Now that there is better understanding it is different.
ReplyDeleteI have an employee whos husband is a guard in a federal maximum security prison hospital in Texas. They had a COVID outbreak there that he brought home to his family. The union was looking at the rights of the guards as they were confined in the same space with the prison's. Even before he was got COVID he was required to change from his uniform outside, immediately wash it, and shower. He was also to not spend time in the same room with his family. He ate separately and slept in a separate bedroom. he was not allow to take PTO to avoid contact with ill prisoners. Have his right to be protected been violated? What about the sailors that got COVID and were required to be confined in their ships. Should the rules be applied based on the risk to your health? The sailors are basically healthy is this OK to allow them the risk. Prisoners in the hospital prison were all terminally ill should they have more care then the general populations.
Maybe all of this will get put into policy before the next pandemic and we will have answers to all of these questions.
I'm glad you recognized employees, John. Employees that work outside of the spotlight everyday often get overshadowed.
DeleteKSL reported yesterday that close to 300 inmates and more than 60 employees have tested positive at the Draper prison site. No deaths were reported. (1). The prison administrations report of conditions and the prisoners (voiced through their families that were protesting) had very different views of how things were being handled.
The virus situation is evolving. The posted document of the administrations of the court during the pandemic, dated 10/2/2020, mentioned the color coding that Utah was using to report risk, and that has just been updated. Things are continually changing, and I do think there is going to be backlash in the courts for all people involved. There will be delays. Bench trials versus Jury trials.
I do not have any answers, but I think most people are doing the best they can in whatever situation they are in. That includes the courts, prisons systems and those that are incarcerated, along with their families.
The color system may work better in a voluntary situation. If the color is orange I can still choose to treat it as red. In a confined system like a prison I think you would need to go to the highest level of concern as there is not an ability to leave the situation if you want to be more cautious.
DeleteWould this also impact students if the parents are worried but they are too poor to provide internet or at home supervision to young children so they can attend school on-line? Is this a discrimination against the poor or single parents? Does this force them into unsafe situations?
It’s hard to address how the country operates while in crisis mode without seeming like martial law has been enacted. In the military we develop plans for all types of scenarios: nuclear war, invasion, IT threats, domestic terrorism and so on. What this planning does is simulate an anticipated threat and how to react. During a threat the military can direct me how to do my job and live my life to a point. You can’t do this with the US in general and still claim to be a “free” country. We saw this in Korea, Italy, and other countries. The government and military, in those countries, would enforce public behavior. It is effective, however not what the US would do.
ReplyDeleteWe have to balance the military enforcing public behavior with not doing anything (laissez-faire style). Does that leave us an option to develop statutes that are only applicable under qualifying “act of god” scenarios. Would “speedy and public trial” have a different expectation under these contingency rights? I think there is always going to be a violation of rights in the events of a national threat. The government will always do what’s in the interest of national security/interests before a full evaluation of rights can be determined.
ReplyDeleteA really interesting topic. And I don’t have answers either but like John said, maybe this will all be addressed in a policy before the next pandemic happens (knock on wood). I hope policy and decision makers consider the long-term effects and not just immediate health concerns when they evaluate options. I think well intentioned actions; like limiting inmate’s time around each other, canceling counseling sessions or other activities, and visiting rights could reduce the number of COVID cases but exacerbate mental health issues. On the other hand, if a prison continues to run as they normally would we’ll no doubt continue to see a rise in COVID illness in proportionate to their lack of action.
The U.S. Constitution guarantees a right to health care for prisoners, who are wards of the state.
ReplyDelete"The Supreme Court has held that the Eighth Amendment's prohibition against cruel and unusual punishment requires the government to provide health care to prisoners, but has clarified that officials may be held liable for failing to provide adequate health care only if they are aware of, yet disregard, a “substantial risk of serious harm … by failing to take reasonable measures to abate it.”"
(https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2724445/)
But often prisoners have to come up with co-pays, which is difficult given their low wages inside. This limits their access to what is mostly subpar care on- site. Hospitalizations are often discouraged because of cost, security, and other issues. Plus, wardens and guards are notoriously unkind and not empathetic to prisoners' plights.
Add overcrowding to the mix and COVID-19 proliferates. In the Utah prison system, some 260+ prisoners are infected with the coronavirus. Plus, the aging prison population, many of whom are immunocompromised, puts the incarcerated in a higher risk group. I read that one prisoner with the Spanish Flu was transferred to San Quentin in 1918, resulting in about half the population of 1900 menalso contracting the flu, among three epidemic waves there. Compelling read here from the prison's resident doctor (https://www.jstor.org/stable/4575142?seq=1#metadata_info_tab_contents)
It's a tough call. Releasing some low-risk prisoners to halfway houses or extended parole is one means of addressing overcrowding in part. That happened in Utah, but what also happened is that a parolee released early because of the virus attacked a woman two days after being sprung (AP--https://www.usnews.com/news/best-states/utah/articles/2020-03-25/police-utah-woman-attacked-by-parolee-freed-due-to-virus). I think the Department of Corrections is doing a less than adequate job, but these unchartered waters are challenging in so many aspects of dealing with the rights of individuals, incarcerated or not.
Yes, I do believe that healthcare or access to healthcare is a basic human right. It is law that the inmates should have access to care while they are incarcerated. And I believe that medical care should be cared for as if any other disease or sickness to those who are incarcerated. I think it would be interesting to find out how these inmates are contracting the disease, and it is most likely spreading due to the employees. Therefore, I think that the State needs to take a higher precaution of the employees to make sure they do not have COVID 19. I have a friend that is a Nurse at a nursing and she gets tested twice per week to make sure that she does not have the disease. I do not know the precautions of the jail, but I think if the Virus is spreading with in the jail the measure should be increased to protect the inmates from the contraction of the disease.
ReplyDeleteAlso, I know there are different options to provide to the inmates such as parole or shelters, but I do believe that the inmate should be reviewed for that potential opportunity to serve the rest of the sentence in parole. There would have to be evaluation of the behavior or conduct with the facility or other terms to decide whether the inmate would be able to serve with in parole or a shelter. But I do not believe based off of numbers that the Department has taken the measure to protect the inmates from the Coronavirus.
Who suffers the most from the inability to conduct jury trials? Victims, defendants, unrelated parties and cases who have also requested a jury trial?
ReplyDeleteAs we are continually hearing within our classes, "it depends". An immediate response to this question would be the victim. As much effort, time, and money that it takes to have a case heard (as we have been learning in this class the steps through just a civil court hearing) can be exhausting. It would be yet another overwhelming piece to be pushed out due to COVID.
In addition to the grinding halt that takes place for the victims and defendants who most likely would like to move forward there are also the "unrelated parties" those who work in the judicial system who can no longer actively do their jobs - from the lawyers to the court reporters. I can't weigh need for justice against the need for income as both are suffering significantly.
Early in the pandemic, I received an email from a defense attorney who said the prosecutor was coaching his witness off-camera during a Zoom hearing. He was NOT pleased. He kept telling the judge, and the judge kept admonishing the prosecutor to stop, but, according to the defense attorney, the prosecutor kept doing it.
ReplyDelete