For weeks, public health officials have warned that the coronavirus will spread rapidly in the United States but the infection rate could slow with social distancing and severe restrictions on mass gathering. The nation’s judiciary did not listen. Civil, criminal, and immigration courts continued to operate normally, with very few exceptions, until late last week. Even on Monday, after both the president and most governors had declared a state of emergency, a huge number of America’s courts continued to operate, forcing judges, attorneys, litigants, defendants, immigrants, and court staff into close quarters with potentially infected individuals. Conversations with more than two dozen lawyers and court staff (who requested anonymity to avoid professional blowback) across the country reveal a system that is disastrously unprepared for a pandemic—and facilitating the coronavirus’s spread.
Because the American judiciary is so decentralized, there is no single contingency plan that governs all courts in case of an emergency. Most state and federal courts are making up their own rules as they go. All 94 federal district courts and 13 federal appellate courts are scrambling independently to devise a strategy for COVID-19. In many states, individual trial and appeals courts are also struggling to meet their legal obligations without contributing to the spread of the virus. Immigration courts are under the control of the discombobulated and ineffectual Trump administration. So are agencies, like the Social Security Administration, that hold administrative hearings to adjudicate individuals’ access to public assistance. Meanwhile, thousands of jails, prisons, and immigrant detention facilities remain unwilling or unable to meaningfully address COVID-19, putting both detained people and staff at risk of infection. The legal system is actively jeopardizing millions of people’s health and lives.
State judiciaries’ sluggish response to the crisis was on display Monday in courtrooms around the country. Slate spoke with defense attorneys in Florida, New Jersey, New York, North Carolina, Washington state, and the District of Columbia who witnessed large groups of defendants congregating in courthouses after police arrested them for low-level offenses. Many people had been jailed for at least one night for crimes like driving without a permit and possession of drug paraphernalia. In northern New Jersey, according to an attorney who was present, a prosecutor argued on Monday that defendants are, in fact, safer from the virus behind bars. But a defense attorney in the region told Slate that her clients in jail have no access to soap or toilet paper.
This lawyer also asked a judge on Monday to release her client from jail due to the coronavirus. Her client is in his mid-50s, recently had surgery, and is charged with a nonviolent offense. The judge quickly stopped the attorney and stated that she would not entertain a coronavirus-based argument, even for an immunocompromised defendant. A similar report came from D.C. Superior Court, where judges have been hesitant to factor the coronavirus into their decisions. On Friday, an attorney requested leniency for her client, who was charged with a misdemeanor technical probation violation after his first conviction, in light of the virus. The judge refused, saying she can only consider “the law” in sentencing. She sentenced him to 30 days in jail.
Some state courts maintained business as usual through Friday but altered their schedules over the weekend. Many courts have suspended “non-essential hearings,” but failed to clarify which hearings qualify as essential. There are countervailing interests at stake: Defendants have constitutional rights, like due process and a speedy trial, that are imperiled by a court closure. Defendants who have been charged but not yet convicted will be forced to languish behind bars if they cannot get a bail hearing.
Some courts are trying to move as many people through the system as quickly as possible to address these concerns. Courts in Cuyahoga County, Ohio, will hold mass plea hearings. The federal Eastern District of Virginia will postpone misdemeanor and traffic cases.
As of Monday, federal district courts around the country were still in operation, though many had suspended jury trials. Chief Justice John Roberts, the head of the federal judiciary, has not issued public guidance to these courts, leaving them to fend for themselves. The chief judge of each federal district court must decide when, and if, to shutter completely. Similarly, the chief judge of each federal appeals court must determine how, and if, to hold oral arguments, and how to keep deciding cases in spite of the interruption. The Supreme Court has canceled March’s oral arguments.
Many immigration courts, which are controlled by the Executive Office for Immigration Review at the U.S. Department of Justice, were still operating on Monday too. EOIR cancelled all master calendar hearings on Sunday—these are short hearings, scheduled months or years in advance, that typically begin the deportation process. But courts are still holding other kinds of hearings, except in Seattle, whose immigration court has shut down entirely. According to a DOJ official at the Los Angeles Immigration Court, the agency has failed to provide employees with any meaningful guidance. This official told Slate that last week, a court administrator told staff that COVID-19 is “like the flu” and “not a big deal.” All last week, she said, “people were coming into courtrooms sick.” EOIR was just beginning to develop a telework plan on Monday and was withholding all information about future operations from staff.
An employee at the New York City Immigration Court spoke of similar disarray. This individual told Slate that her supervisor ignored repeated pleas to mitigate the risk of infection to staff. Immigrants with symptoms of COVID-19 have repeatedly appeared in court. When judges canceled hearings for the day to limit exposure to these individuals, this supervisor reportedly expressed anger that they had not simply moved to a different courtroom.
On Sunday, the union representing Immigration and Customs Enforcement prosecutors joined immigration judges and lawyers to call on the Department of Justice to shutter immigration courts entirely. This unprecedented alliance of frequent foes condemned the DOJ’s response as “insufficient” and “not premised on transparent scientific information.” (The agency has yet to answer this letter.)
There are currently more than 50,000 individuals in immigrant detention. There are already coronavirus outbreaks cropping up at these detention facilities. But the government has put forth no comprehensive plan to test and treat patients. The same is true for inmates in state and federal facilities. A defense attorney in King County, Washington—a COVID-19 hot spot—told Slate on Monday that “there is no plan to protect people in jail from coronavirus. People are still held on nonviolent charges, and people are still cycling through on all sorts of minor charges.” As long as police continue to arrest individuals for low-level offenses, these people will be put in jail and then sent to a courthouse. Even if prosecutors decline charges, these individuals may have already been exposed to the virus and could spread it.
Many jails and prisons, including youth lockups, are canceling in-person visitation to limit coronavirus exposure, an emergency precaution that has led to an information blackout. Coronavirus testing remains virtually nonexistent behind bars. Many prisons do not provide hand soap, requiring people to purchase it through the commissary. Given the unsanitary conditions in prisons, these facilities are poised to become an epicenter of the pandemic.
Even the nation’s administrative courts—where constitutional concerns are diminished, and an individual’s liberty isn’t usually on the line—have responded slowly to the coronavirus. Social Security Administration Commissioner Andrew Saul, a Donald Trump appointee, dramatically rolled back employees’ ability to telework, and an employee at the agency told Slate that he is hesitant to backtrack. As of Monday, Social Security claimants—for example, those requesting disability payments—were still required to appear at in-person hearings. These disabled individuals are highly vulnerable to COVID-19. But an employee at the Social Security Administration told Slate that the agency refuses to let them participate through phone hearings, even though it has the technological capacity to do so.
What would an effective, responsible response to the coronavirus from the justice system look like? It would begin with law enforcement officers, who could stop arresting people for low-level offenses, saving them a trip to jail and court. It would extend to prosecutors, who would decline to charge low-level offenders who are brought to court, and stop requesting bail for minor crimes. Prosecutors could also request no prison time for nonviolent offenders and agree to quick plea bargains. Judges could set low or no bail, taking COVID-19 into account, and impose more lenient sentences to keep prisons as empty as possible. Prisons and jails would give inmates unlimited access to soap, water, and other essential hygiene products, while granting them free and unlimited access to phones so they can stay connected with their families and lawyers. Immigration courts would postpone all hearings for individuals who are not currently detained and allow detainees to go free unless they pose a danger to their communities. Many hearings could be conducted online or over the phone.
But the American justice system is wedded to the status quo. Even in the face of a pandemic, too many judges, prosecutors, and policymakers refuse to take steps that help shield everyone from the virus. The justice system purports to keep us safe. But if it cannot suspend its carceral compulsions for the duration of the crisis, it will put us all at greater risk.