Pretrial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests

Valena E. Beety1Professor of Law, Arizona State University Sandra Day O’Connor College of Law; Deputy Director, Academy for Justice. Thank you for excellent feedback from Darryl Brown and Anna Roberts, both of whom have written valuable scholarship on dismissals in the interest of justice.  My gratitude as well to ASU law students Zach Stern, Priyal Thakkar, and Alejandra Curiel Molina for their research assistance. Finally, thank you to University of Chicago Law Review editor Matthew Reade for his insightful edits on this piece, and for his tremendous work and partnership in organizing this symposium.

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A part of the series, COVID-19 and Criminal Justice.

The most dangerous place to be in America is prison or jail. The coronavirus pandemic, which, when paired with unsanitary and overcrowded incarceration conditions, can transform a few months’ sentence into a lifelong health condition or death, compounds the inherent dangers of incarceration in America. Nationally, in fact, jails and prisons are among the worst sites for the spread of the novel coronavirus (COVID-19).

Since March 2020, defense attorneys have argued for the release of their clients pending trial, persuasively contending that their clients should not be exposed to a potentially lethal contagious disease for a mere allegation of violating a law. This Essay proposes that courts use their authority to dismiss such cases in the interest of justice and provide a counter to prosecutorial discretion, which has failed to lead us out of over-incarceration in the midst of a pandemic.

Fourteen states and Puerto Rico have long recognized judicial power to dismiss a case not on the legal merits, but in the interest of justice. Courts have historically invoked that power to respond to health crises. When COVID-19 transforms any type of carceral punishment into a lethal punishment, courts are equipped to consider these factual circumstances and take an action that most resonates with justice: dismissal.

Similarly, when protesters are arrested, courts have occasionally dismissed charges in the interest of justice to protect the principles of freedom of speech. With tens of thousands of individuals arrested at protests during the pandemic, for crimes ranging from curfew violation to disorderly conduct to sedition, dismissal based on public interest and factual context rather than legal propriety may safeguard respect for the criminal legal process in a time when it is most challenged. 

Finally, state prosecutors nationally anticipate filing charges against defendants once the COVID-19 pandemic abates. In the face of what might be an overwhelming and under-scrutinized docket of cases, dismissal in the interest of justice may become a necessary judicial tool. Judges can dismiss charges in order to manage the docket, focus on higher-level criminal charges, and disrupt the heightened pressure on defendants to plead guilty, particularly to low-level offenses. Quick guilty pleas can result in defendants pleading to unsubstantiated allegations or to crimes they did not commit. 

This Essay proceeds in four parts. Part I introduces dismissal in the interest of justice, while Part II discusses the impact of COVID-19 on people incarcerated in jails and prisons and the relevance of dismissals during the pandemic. Part III explores the application of dismissal in the interest of justice to protest arrests during the pandemic and protecting freedom of speech principles. Lastly, Part IV suggests that judges dismiss stockpiled charges for which defendants received a citation or are released on bond and months later will face a criminal proceeding. These dismissals can lead to greater efficiency for courts as they face an overwhelming docket of backlogged cases.

I.   Dismissal In the Interest of Justice: A Little-Used Judicial Power

Dismissal in the interest of justice is a frequently unknown and even more likely underutilized sua sponte power held by judges. In fifteen jurisdictions, every trial judge has the authority to act “in the furtherance of justice” and consider the factual context of criminal charges in order to dismiss criminal indictments.2Cal. Penal Code § 1385 (2015); Idaho Code Ann. § 19-3504 (2015); Minn. Stat. § 631.21 (2015); Mont. Code Ann. § 46–13–401 (2015); Okla. Stat. tit. 22, § 815 (2015); Or. Rev. Stat. § 135.755 (2015); Alaska R. Crim. P. 43(c); Iowa R. Civ. P. 2.33(1); N.Y. Crim. Proc. Law § 210.40; P.R. R. Crim. P. 247(b); Utah R. Crim. P. 25; Wash. R. Crim. P. 8.3; Conn. Gen. Stat. §§ 54-56 (2009); Ohio R. Crim. P. 48(b); Vt. R. Crim. P. 48(b)(2). From our common-law tradition, prosecutors hold the power to dismiss or nolle prosequi charges. Prosecutorial power to dismiss is normally limited to the period of time before the jury is impaneled, although recent state legislation expands that power for prosecutors to dismiss sentences post-conviction, even years later.3Cal. Penal Code Sec. 1170; See Ind. Code Ann. Sec. 35-38-9-5; Andrew Fogle, Indiana’s Second-Chance Law: How Expungement Works in Indiana (2018 presentation). For unique post-conviction equity remedies, see Cortney E. Lollar, Invoking Criminal Equity’s Roots, 107 Va. L. Rev. (forthcoming 2021).

Dismissals in the interest of justice by judges are not based on the charges being legally insufficient.4For example, in New York a court may dismiss an action “even though there may be no basis for dismissal as a matter of law.” N.Y. Crim. Proc. Law § 170.30 (allowing the dismissal of a complaint because the instrument is defective, the defendant has immunity, the prosecution is barred because of previous prosecution, the prosecution is untimely, the defendant has been denied a speedy trial, or the existence of some other jurisdictional or legal impediment). Instead, dismissals are based on facts and context.  They are issued to serve justice even when the charges are legally proper. For every charge, prosecutors must consider whether sufficient evidence exists as well as whether the prosecution is in the public interest. Judges routinely check prosecutors by posing the “sufficient evidence” query again—such is the nature of a plea or trial in determining sufficiency of the evidence.  Dismissal in the interest of justice revisits the second consideration of whether the charge is in the public interest, and the judge must ultimately decide whether to give deference to the prosecutor.

The factual context for judicial dismissals of charges can be wide-ranging. Particularly relevant to the current COVID-19 pandemic, judges dismissed charges in the interest of justice in a previous epidemic, AIDS.5See John Wirenius, A Model of Discretion: New York’s ‘Interest of Justice’ Dismissal Statute, 58 Alb. L. Rev. 175, 218 (1994). In the 1990s, prosecutors and judges, albeit infrequently, used nolle prosequi and dismissal in the interest of justice, respectively, to dismiss indictments against defendants who were HIV positive. One such opinion from a judge in New York City resonates today: “[D]ismissal may also be granted even where the evidence of guilt against the defendant is unquestioned. . . . Our city hospitals, in large part, are being consumed in battling this plague.”

Not only did judges dismiss charges in the interest of justice against defendants who had AIDS in the 1990s, trial courts also dismissed charges against ACT-UP protesters. ACT-UP, AIDS Coalition To Unleash Power,6See Douglas Crimp, AIDS Demographics (1990). See also Meredith Irish, Accelerating Change: A History of Actup’s AIDS Activism, 5 Duke J. Gender L. & Pol’y 247, 247–48 (1998) (“Readers will recognize some of the most widely reported ACTUP demonstrations highlighted in Crimp’s book, such as the demonstration at New York City’s St. Patrick’s Cathedral in 1989. A majority of the media portrayed the demonstration as an act of “legions of sacrilegious ‘homosexual activists’ desecrating the host.”). organized in March 1987 to protest the deaths of LGBTQ people with AIDS, to dispel myths around their deaths and AIDS, and to urge governmental response to the pandemic through funding AIDS research to create a vaccine and treatment.7ACT-UP identified itself as “a diverse, nonpartisan group of individuals united in anger and committed to direct action to end the AIDS crisis. We protest and demonstrate; we meet with government and public health officials; we research and distribute the latest medical information; we are not silent.” Original Working Document, ACT UP/New York (2003). ACT-UP organized “die-ins” and reclaimed the Nazi-era pink triangle designation of homosexuality, proclaiming “silence = death.” Indeed, ACT-UP protested the Food and Drug Administration (FDA) and the National Institute of Allergy and Infectious Diseases (NIAID), directed then, as now, by Dr. Anthony Fauci, who currently leads the White House Task Force response to the COVID-19 pandemic.8During a televised briefing of the COVID-19 Task Force discussing the disparity of cases in communities of color, Dr. Fauci stated: “This has happened before when there was incredible stigma against the gay community. And the gay community responded with the most incredible courage, strength, and activism.” ACT-UP’s protests ultimately led Dr. Fauci and the FDA to adopt parallel-track studies for AIDS medication and to move more quickly to approve promising treatments.

These are powerful, but unique, situations, and judges have otherwise been reluctant to dismiss cases in the interest of justice. Despite the expansive power, most state courts narrowly interpret their own power to dismiss cases in the interest of justice, such that “they overwhelmingly defer to prosecutorial preferences about whether cases should proceed or be dismissed.” While dismissal in the interest of justice provides an avenue to monitor prosecutorial conduct and ensure the rights of the accused and the fair administration of justice, courts frequently decline to pursue this path.

The majority of states leave the power to dismiss and its applicability broad and undefined. Over the past fifty years, charges have been dismissed due to the defendant’s health condition, immigration status, freedom of speech in street protests, or simply to clear a court’s docket. The high court in New York state described the power thus: “Throughout this history, and no less today, its thrust, even to the disregard of legal or factual merit, has been ‘to allow the letter of the law gracefully and charitably to succumb to the spirit of justice.’”

As an exception to the general rule of providing broad undefined power, New York details ten specific factors for a court to consider, and has two separate statutes for dismissing misdemeanors and felonies. These dismissals are known as “Clayton motions” after the wrongful conviction of Robert Clayton,9John F. Wirenius, A Model of Discretion: New York’s “Interests of Justice” Dismissal Statute, 58 Alb. L. Rev. 175, 181–86 (1994). an illiterate Black man. After Mr. Clayton spent 19 years in prison for a crime he did not commit due to a coerced false confession, and his conviction was vacated, the state prosecutor brought the charges again.10John F. Wirenius, A Model of Discretion: New York’s “Interests of Justice” Dismissal Statute, 58 Alb. L. Rev. 175, 181–86 (1994). When the trial judge dismissed the new charges, particularly motivated to dismiss because the maximum sentence possible was 20 years at the time, the prosecutor appealed. The appellate court in New York demanded that the trial judge consider the statutory factors before sua sponte dismissing the charge in the interest of justice. Courts are now required to consider the enumerated statutory factors and make their determination on the record.11N.Y. Crim. Proc. Law § 210.40. In determining whether a “compelling factor, consideration, or circumstance” exists, the court must examine and consider ten factors: “(a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety and welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.” These factors include “the history, character and condition of the defendant,” “the purpose and effect of imposing upon the defendant a sentence authorized for the offense,” and “the impact of a dismissal upon the confidence of the public in the criminal justice system.”

Some state statutes protect courts’ inherent power to dismiss charges as part of governing their own courtrooms, both to promote justice and to promote efficiency and the “effective administration” of a court’s docket. As the Supreme Court of Ohio framed it, “[t]rial courts are at the front lines of the administration of justice in our judicial system, dealing with the realities and practicalities of managing a caseload and responding to the rights and interests of the prosecution, the accused, and victims. A court has the ‘inherent power to regulate the practice before it and protect the integrity of its proceedings.’” Furthermore,“[t]rial judges have the discretion to determine when the court has ceased to be useful in a given case.”

Dismissal in the interest of justice is a commonly available remedy among western states.12Adopters include Utah, Washington, California, Montana, Idaho, Oregon, and Alaska. See Cal. Penal Code § 1385 (2015); Idaho Code Ann. § 19-3504 (2015); Mont. Code Ann. § 46-13-401 (2015); Or. Rev. Stat. § 135.755 (2015); Alaska R. Crim. P. 43(c); Utah R. Crim. P. 25; Wash. R. Crim. P. 8.3. California legislators granted judges the capacity to dismiss cases in the furtherance of justice in their first meeting as a state legislature in 1850. The new state legislature granted courts the power to dismiss an action either sua sponte or on a prosecutor’s motion for dismissal, provided the reasons are on the record. In California, the judge may dismiss the charge in furtherance of justice at any time—before, during, or after the trial. In Montana, the state supreme court declared, “The legislature has not attempted to define the phrase ‘in furtherance of justice’ . . . , hence it is left for judicial discretion exercised in view of the constitutional rights of the defendant and the interests of society to determine what particular grounds warrant the dismissal of a pending criminal action.” Sharing the power of dismissal between the prosecutor and the judge appears concomitant with libertarian ideals of western states. Of the courts that can dismiss charges, most of them have the right through statute, although some can dismiss through state rules of criminal procedure.

Finally, dismissal in the interest of justice is designed as a remedy “to maintain also public confidence in the administration of justice.” In a system that frequently only examines procedural due process and whether a charge or sentence is legal, dismissal in the interest of justice returns equity to the role of judges and ostensibly to the responsibility of prosecutors. These dismissals turn on justice and fairness, not legal process. Procedure without substance becomes, as we have seen, a tool for mass control, rather than for justice.

II.   Dismissing Cases of Jail Detainees in the Interest of Justice During COVID-19

The coronavirus of 2019 is infecting, harming, and killing incarcerated people in the United States at a rate far exceeding the impact on non-incarcerated civilians.13This is also true for immigration detention facilities. See Karlyn Kurichety, Deliberate Endangerment: Detention of Noncitizens During the Covid-19 Pandemic, 68 UCLA L. Rev. Discourse 118 (2020) (exploring “the dire situation facing detained noncitizens as a result of the government’s decision to imprison tens of thousands of people in civil confinement during an unprecedented global pandemic”). People with disabilities are particularly vulnerable. See Jasmine E. Harris, The Frailty of Disability Rights, 169 U. Pa. L. Rev. Online 29, 33 (2020) (“COVID-19 is a perfect storm of systemic flaws with people with disabilities at its eye”). While other scholars have addressed the importance of non-incarcerative sentences and decreasing pretrial detention during COVID-19, this Essay examines instead the capacity of judges to alternatively dismiss charges in the interest of justice due to compounding effects of the health epidemic on individuals. The impact of detention in jail for people accused of a crime but not convicted can already mean loss of employment, housing, or even custody of children. On average, 500,000 people are incarcerated in pretrial detention every day; they generally stay in jail for a month, although some can spend years. Now their health is at risk.

COVID-19 is highly contagious and has spread quickly through jails. Jails detain people who are pretrial, who are serving sentences less than a year, or who are in the process of transfer to a state prison for a longer sentence. The rate of infection has been many times higher than that of non-incarcerated individuals due to the close and unavoidable proximity of prisoners. Social distancing has simply not been possible, particularly due to overcrowding.

Defense attorneys have asked for accountability for the health conditions in jails. The World Health Organization proposed “enhanced consideration of noncustodial measures” “at all stages of the administration of criminal justice” including pretrial, and recommended people be released from custody pretrial. Prisons and jails have been sued for their subpar sanitation and lack of cleanliness, even before COVID-19 standards. The lack of basic soap in prisons particularly drew attention. As but one example of the dramatic impact of unsanitary conditions in close quarters, the rate of infection at New York City’s Rikers Island jail in Spring 2020 was more than six times the rate of New York City, which itself was an early epicenter of COVID-19. Finally, as Lee Kovarsky points out, COVID in detention centers is particularly disturbing because of how quickly the infection can move into and through a prison or jail, how incarcerated people are vulnerable to chronic diseases and substance use disorders, and the subpar health infrastructure in place. Jails are not protected from COVID-19 entering, nor are civilians protected from COVID-19 transmitting out of jails and prisons, because guards and staff act as vectors between communities. The United States has failed to stop the spread of COVID-19 in prisons and jails.

Defense attorneys and advocates are fighting for the release of people from jails, both those convicted and serving relatively short sentences and people awaiting trial. They have filed bail motions, as well as release requests for sick or elderly nonviolent offenders. The Michigan State Appellate Defender and Criminal Resource Center provided templates and sample motions for clients currently incarcerated to seek release, as well as sample medical affidavits. Similarly, the National Association for Criminal Defense Lawyers created templates to challenge pretrial confinement. The National Association of Public Defenders created a chart with templates and resources for motions and petitions in a variety of jurisdictions.

Some public defender offices have created pandemic litigation committees to file initial motions to modify release conditions.14Interview with Maricopa County Assistant Public Defender on August 27, 2020, by student Alejandra Curiel Molina (on file with the Law Review). Defense attorneys have argued for release of pretrial detainees who are at high risk of health complications if they contract COVID-19. However, when prosecutors have argued that defenders are being “opportunistic” in seeking release, or that it is safer for the defendant to be incarcerated, state courts have increasingly sided with the prosecutors and not granted release unless the defendant specifically falls within an at-risk category.15Interview with Maricopa County Assistant Public Defender on August 27, 2020, by student Alejandra Curiel Molina (on file with the Law Review).

The efforts to release people from jails has resulted in some significant success. Fewer clients are being sent to jail by the original appearance judge than was common pre-pandemic.16Interview with Maricopa County Assistant Public Defender on August 27, 2020, by student Alejandra Curiel Molina (on file with the Law Review). Cook County courts in Chicago created an expedited bond process for inmates who are “elderly, pregnant, or have underlying conditions such as asthma, diabetes or a heart condition.” Attorney General William Barr told federal prosecutors to take the “COVID-19 pandemic into account when deciding whether to seek pretrial detention for criminal defendants” and that “prosecutors should consider the pandemic as a factor, especially in cases where the defendant presents little risk of flight or harm to the community, or in cases where the defendant is particularly susceptible to COVID-19.” The New Jersey Supreme Court issued a judicial order on March 22, 2020 that all incarcerated people in jail for probation violations or low-level offenses be released.

The pretrial liberty interest is valuable. Bail, as originally intended, adopts a presumption in favor of freedom. As the Supreme Court said in United States v. Salerno, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The New Jersey Supreme Court order returns our system to one where prosecutors must affirmatively demonstrate that a jailed individual will pose a significant risk to the public or else the person will be released. Indeed some states, like California, are seeking generally to eliminate cash bail for low-level offenses to keep jail populations down. This brings the focus back to the presumption of liberty, and that a defendant should not lose said liberty because of an accusation of wrongdoing. Research has already shown that pretrial detention is more frequently a result of lack of cash to pay for bail, rather than a strong public safety argument for incarceration.

Still, the initial efforts to reduce jail populations and release individuals have slowed and even reversed in some locations. The Prison Policy Initiative tracked how out of 668 jails, 71 percent saw an increase in population size from May 1 to July 22. Eighty-four of those jails had a higher population on July 22 than in March. While jail populations saw a median drop of 30 percent between March and May, the numbers are rising again. For example, judges in Philadelphia released “certain nonviolent detainees” held for low-level charges, and the Philadelphia police suspended low-level arrests; this reduced Philadelphia’s jail population by 17 percent by mid-April. However on May 1, the Philadelphia police announced they would resume arrests for property offenses, reversing the numbers.

Prosecutors had the authority to issue large-scale remedies of advocating for the release of incarcerated people in jails pretrial; they did not do so. Thus, this Essay advocates for the authority of another courtroom player—the judge—to ensure individual remedies. Moral and ethical value rests in releasing individuals to save lives and prevent potentially life-long health ramifications, particularly for people who have not been convicted of any crime. The ABA Criminal Justice Standards Regarding the Special Function of the Trial Judge identify the role of the judge as “safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice.”

III.   Dismissing Cases Against Protesters In the Interest of Justice

In this historic moment of protests arising nationally and en masse, dismissal in the interest of justice can play a valuable role. The summer of 2020 brought intense protests across the political spectrum: from protests against racist police violence to protests against COVID-19 mask ordinances and business closures. The vast majority of arrestees, however, were people protesting the police and racism in the criminal legal system. By the beginning of June, police had arrested more than 10,000 people nationally at protests. By the end of June, Los Angeles police alone arrested 2,500 protesters for failure to disperse or curfew violations. Many arrests could not be factually or legally substantiated and were intended to end the protest, rather based on probable cause that the person violated a law. In Denver, the city attorney’s office dismissed 320 curfew charges that arose from George Floyd protests, emphasizing “the profound value of peaceful protest.” Courts can anticipate postponed charges to be filed in bulk when the COVID-19 pandemic abates. 

In the summer of 2020, Black Lives Matter (BLM) protesters challenged police violence and tactics used against Black and Indigenous people, and other people of color. BLM protests also pushed for valuing the lives of people of color during a national pandemic, and the lives most in danger: people of color incarcerated in jails and prisons. Our prisons and jails disproportionately incarcerate Black and Brown people, and a through-line could be drawn from the identity of incarcerated people as people of color, to court reluctance to release them from prison and jail during COVID-19, despite their heightened risk of health harm.  As Jennifer Oliva writes elsewhere in this symposium, Black and Indigenous people, and other people of color have not only been negatively racialized and discriminated against in healthcare, they have particularly suffered during COVID-19. When protesters vocally challenge racism in incarceration and policing, and they are arrested by police and charged by prosecutors, judges should consider dismissal in the interest of justice and weigh the democratic principle of freedom of speech.

Historically, courts in New York City dismissed disorderly conduct charges against civilians who protested that city’s now invalidated police policy of “stop and frisk.” The policy was widely condemned as targeting people of color. One court held that “the harm demonstrated in this case is minimal as the defendants were said to have been involved in the free exercise of political speech and no harm is alleged… the public’s confidence in the criminal justice system would be preserved with the dismissal of these proceedings.”

New York City police also arrested ACT-UP protesters for disorderly conduct or resisting arrest when they were protesting and demonstrating for attention to the AIDS epidemic. In People v. Ben Levi, a New York City trial court dismissed the charges and held that “demonstrations involving no offensive conduct and an objective as laudable as that of the defendants here, with an impact of unlawful activity as minimal as occurred here, should be entitled to be treated with an approach grounded in the principles of freedom of expression, as well as with compassion.”

Out of the fifteen states where judges can dismiss charges in the interest of justice, some of them are sites of protests and protest-arrests in 2020: California, New York, Oregon, and Washington are some examples.  Police made generic sweep arrests in these states, and judges are empowered to dismiss these cases. Judges can dismiss them as unjust or against the public interest, in addition to controlling their dockets and focusing on other alleged crimes and offenders, as will be discussed in the final Part of this Essay.17See Part IV. Precedent exists for dismissal of protest-related charges.  Furthermore, in some states, judges can dismiss charges for “outrageous governmental conduct” when a dismissal is in the interest of justice, which may be applicable.

As another recent, but pre-COVID, dismissal in the interest of justice demonstrates, judges can effectively use the power to dismiss in response to protecting free speech, and even to protect the values of free speech that the law might not reach. In 2019, a Dutchess County, New York, court dismissed a disorderly conduct charge against a defendant in the interest of justice. Prosecutors charged 66-year-old Laurie Sandow with intending to “cause public inconvenience, annoyance or alarm, or . . .  [disturbing] any lawful assembly or meeting of persons.” According to the prosecutor’s allegations, “the defendant disturbed a City of Poughkeepsie Common Council meeting” when she was told repeatedly by the Council at Large and the Chair to stop speaking during a public speaking portion of the public meeting, and continued to speak in a loud voice until she was escorted out of the building by police.18People v. Sandow, No. CR-3454-19, 2019 WL 9104252, at *2–3 (N.Y. City Ct. Dec. 31, 2019).

The court found that the defendant had prepared a statement to read during her three minutes of time in the public-comment portion of the meeting, and shared concerns about specific alleged unethical actions by council members. In response, a councilmember got up, unplugged the microphone and ended the mandated recording of the public meeting, then joined another councilmember and a sergeant at arms with a gun to surround the defendant and ultimately escort her from the room and arrest her for disorderly conduct.19See People v. Sandow, No. CR-3454-19, 2019 WL 9104252, at *2–3 (N.Y. City Ct. Dec. 31, 2019). No motion or vote by the council preceded these actions against the defendant. When the microphone was plugged in once again and the recording continued, one councilmember, Natasha Cherry, expressed on the record her concern, “If we have rules, they have to apply all the time, not just when people don’t like what someone’s saying or not when they are talking about specific people. We have all been attacked up here. . . .”

The court ruled that simply because the prosecutors and city council did not like the content of the defendant’s speech, that does not mean the speech was impermissible. The defendant had a constitutional right to speak her sentiments. “When a public body permits the public to speak at its meeting, it cannot then silence a speaker if a member, or even every member of that body, dislikes the content of that speech . . . [S]peech at these public governmental meetings for discussion of matters involving public concern is entitled to normal First Amendment protections against ‘general restriction and ad hoc parliamentary rulings by presiding officials.’” The charge was then dismissed in the interest of justice.

These examples are precedent for courts dismissing charges against protesters on expansive free speech grounds.  Even if free speech doctrine alone does not make the charges or arrests clearly unconstitutional, judges have the capacity to dismiss these charges in the interest of justice.

IV.  Applying Dismissal in the Interest of Justice to Anticipated Filings of COVID-19 Related Charges in Order to Manage Court Dockets

In April, the Governor of Louisiana suspended legal deadlines for prosecutors to file charges, via an executive order. These reports, as well as anecdotal statements by district attorneys, indicate that a number of prosecutors are not charging during the pandemic, but anticipate filing charges once the COVID-19 health crisis abates. Phoenix is just one locale where the prosecutor’s office has a backlog of cases that will be filed eventually, the majority of which are drug offenses.20Interview with Maricopa County Assistant Public Defender on August 27, 2020, by student Alejandra Curiel Molina (on file with the Law Review).The public defender relayed that one prosecutor “alone had 160 cases on her desk waiting to be filed.” And the public defender believes thousands in Phoenix are waiting to be filed. Many state prosecutors’ offices have instructed law enforcement to delay arresting individuals and instead issue citations unless those individuals pose a serious threat.

When these charges are finally filed, courts will be overloaded, and the guilty plea cycle will kick into high gear. Courts can control their docket in this anticipated situation by dismissing charges in the interest of justice. Docket control is a recognized and valid reason for judges to dismiss cases in the interest of justice.21See, e.g., State v. Fitzpatrick, 172 Vt. 111, 118, 772 A.2d 1093, 1099 (2001) (“We are not prepared to state that docket congestion is irrelevant because it may affect the ability of the trial court to provide a speedy trial to the defendant before it and to other defendants.” (citing United States v. Rossoff, 806 F. Supp. 200, 203 (C.D. Ill. 1992) (tripling of criminal caseload a factor in court’s decision to dismiss with prejudice after a second hung jury)). The courtroom is a judge’s domain, and administrative decisions are at the discretion of the judge. Since dismissal in the interest of justice motions are sua sponte on the initiative of the court, judges can dismiss these cases for administrative reasons.

Notably, this may be a time of great importance for protecting defendants’ rights.  Yet judges are reluctant to dismiss charges in the interest of justice, or embrace their authority as a counter to prosecutorial discretion. If prosecutors are not thoughtful about the impact of filing an overwhelming number of cases and proceed to do so, including protest charges that are factually unsubstantiated, our system of plea bargains may threaten to convict even more people of charges for which they are not guilty.

Conclusion

This Essay advocates for a more expansive use of dismissal in the interest of justice, particularly in response to charges during and immediately after the coronavirus health crisis. This judidical power in fifteen jurisdictions can appropriately apply during the pandemic to recognize the severe health ramifications of jailing someone pretrial, and can apply post-pandemic in response to an overwhelming onslaught of charges filed by prosecutors who have delayed filing during the pandemic. Finally, for those delayed cases that are sweep arrests of protesters, judges should continue the historical work of dismissing charges that infringe on freedom of speech in the interest of justice.

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Valena E. Beety is Professor of Law at Arizona State University Sandra Day O’Connor College of Law and Deputy Director of the Academy for Justice.

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