COVID AND THE COURTS

The COVID-19 pandemic is creating an absolutely unprecedented crisis in the criminal justice system. Across California, courts have largely responded by limiting access to the courts, delaying trials and arraignments, suspending statutory time limits, and limiting court operations.

The result of these actions has generally been to make it harder rather than easier for people to get out of custody, an absolute necessity to curb the spread of the virus. Jails and prisons are already dirty places where inmates and guards interact in close proximity with limited access to hygiene. Many counties have already reported confirmed infections in the jail. Here in Orange County, there are already 5 with limited testing and the people who are known to have had contact with those inmates are not being isolated.

The response has been widely disparate across counties, but Orange County’s has been among the worst. Despite a court order strongly urging him to release as many inmates as possible, Sheriff Don Barnes has declined to act broadly, insisting that he can keep inmates safe even as the early signs of a wildfire-like spread build. In the face of this, Orange County courts have continued limited operations, but taken very little action to free high-risk incarcerated defendants.

On March 19^th, Judge Cheri Pham repeatedly told lawyers arguing for their clients’ release or at least significantly lowered bails that she had no reason to believe the jail was any less safe than the alternative of release for the defendants. She said this despite being informed of significant health issues that many suffered that made them more susceptible to serious harm if contracting the disease and despite the fact that many of these defendants sat crammed in small holding tanks all day with their arms shackled so that they could not even cover their mouths when sneezing.

Keep in mind, the people appearing in court that day were, by definition, people who have not been convicted, but only charged. They are people who are presumed innocent. That presumption should be expanded during this pandemic to a presumption for pre-trial release, a step the Massachusetts Supreme Judicial Court took literally as I was finishing this blog. Right now, those being held pre-trial are being held solely because they do not have the financial resources to bail out, while those who do are able to safely await the end of the crisis while out of custody on bail.

In 1981, in People v. Watson, the California Supreme Court authorized prosecution for second degree murder for drunk driving accidents where the prosecution could prove “implied malice.” Essentially, what this means is that if the prosecution can prove that someone drove drunk, knowing how dangerous such conduct is to human life, this could amount to the “reckless indifference” required to prove implied malice.

The actions of the courts and prison and jail officials across this country right now meet this standard. That inmates will die as a result of their actions is not probable, it is certain. Some already have. Unless a jail or prison official can guarantee that their inmates and personnel can follow the CDC guidelines, which require social distancing of at least 6 feet, constant washing of hands, and frequent disinfecting of surfaces, the health of the inmate must take precedence or these judges will be issuing death sentences.

It is time to empty the jails. Any potential harm that may come from some action is justified by the human lives that will be saved.