Featured Articles

Valena E. Beety & Brandon L. Garrett, COVID-19 and Criminal Justice (series introduction)
Sharon Dolovich, Mass Incarceration, Meet COVID-19
Maybell Romero, Law Enforcement as Disease Vector
Valena E. Beety, Pre-Trial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests
Deniz Ariturk, William E. Crozier & Brandon L. Garrett, Virtual Criminal Courts
Pamela R. Metzger & Gregory J. Guggenmos, COVID-19 and the Ruralization of U.S. Criminal Court Systems
Barry Friedman & Robin Tholin, Policing the Pandemic
Jennifer D. Oliva, Policing Opioid Use Disorder in a Pandemic

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COVID-19 and Criminal Justice

Introduction by Valena E. Beety & Brandon L. Garrett

The COVID-19 pandemic has pushed the boundaries of our criminal legal system, testing the entrenchment of patterns in incarceration, policing, and surveillance.  During a time in which new concerns arose about racial injustice and mass incarceration, prompting searching scrutiny, this pandemic created opportunities to rethink old ways of handling criminal cases.  We thank our authors and their respective centers for contributing to—and the University of Chicago Law Review Online for hosting—this symposium, which explores both sides of the pandemic: the crisis itself and its potential to transform criminal justice.

The COVID-19 virus poses heightened danger to people in confined settings, and neither the nonbinding Centers for Disease Control guidance, nor the response of jails, prisons, and other custodial settings, was adequate to prevent rapid spread. The top infection clusters in the country were jails and prisons, and at least 1,450 incarcerated persons and correctional officers have died, with over 250,000 infected.  The response of the criminal legal system to the rapid spread of COVID-19 in carceral settings was hugely ineffectual, as the COVID Prison Project has shown in data aggregated from state prisons. The result was deadly for both persons in custody and custodial staff, as well as for a wide range of communities.  If there were any inattention to the close connection between public health and the criminal legal system before, now the intersection could not be more urgent.

Responding to these disturbing trends in America’s prisons and jails, Sharon Dolovich questions “what effect, if any, the pandemic will have on the nation’s continued commitment to mass incarceration under unduly harsh carceral conditions.” In Mass Incarceration, Meet COVID-19, Dolovich traces the historically harsh treatment of and indifference to people who are incarcerated, but points to COVID-19 as an opportunity to reframe the conversation around America’s “carceral practice.”  The information gathered by her COVID-19 Behind Bars Data Project challenges the culture of secrecy by prison administrators, and advocates for greater transparency, particularly during public health crises.  Better data are needed, too:  Dolovich describes how “many of the facilities that have been reporting COVID infections and death rates lack adequate testing, which has kept official numbers artificially low.”  As Dolovich concludes in her Essay, “[o]ur COVID response reflects the nation’s callous indifference to the fate of people in custody, an attitude that has shaped the U.S. carceral experience since at least the Civil War and into the modern era.”

Dolovich also observes that the courts have done little to halt the spread of COVID in carceral settings.  The judicial response points to the mismatch between the rapidly expanding public health crisis, which cries out for sweeping solutions, and narrow judicial remedies, as Lee Kovarsky has described.  As Dolovich shares in this symposium, the federal appellate courts and the U.S. Supreme Court have signaled that they are not open to remedies that result in controlling unsafe conditions or crowding that facilitates the spread of the deadly virus.

Another source of pandemic spread, according to Maybell Romero, has been law enforcement, particularly its aggressive response to “a protracted year of protest against police violence.”  While those protests did not pose a risk to public health, Romero argues that the law enforcement response did, flouting health guidelines and rendering the police a “literal disease vector[ ].”  Framing policing as a public health risk could equip communities to limit more effectively “the inimical effects of over-policing” on minority communities.

Exploring the need for new tools to facilitate dismissals, as Valena Beety describes in Pretrial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests, one neglected mechanism is pretrial dismissal of charges “in the interest of justice” in order to alleviate pretrial detention during COVID-19 and to respond to en masse protest arrests.  Fourteen states and Puerto Rico recognize the judicial power to dismiss a case not on the legal merits, but in the interest of justice. Courts have historically invoked their power to dismiss in response to health crises, and to protect the free speech of protesters.  Both of those situations are present in the current pandemic. 

At the same time, courts largely shut down or replaced live with virtual proceedings. Contributors Deniz Ariturk, William Crozier, and Brandon Garrett discuss that shift in Virtual Criminal Courts, highlighting the constitutional criminal procedure concerns with the move to virtual proceedings.  For certain types of preliminary appearances, the move to virtual proceedings has called into question why burdensome in-person court appearances, which disparately burden the poor, were so often required in the past.  Moving to virtual alternatives from in-person court appearance, however, has often been done without attention to the fairness and constitutional concerns that result, such as that the rights to counsel and to confrontation, as well as other rights, may be violated.

In COVID-19 and the Ruralization of U.S. Criminal Court Systems, Pamela Metzger and Gregory Guggenmos flip the script and hypothesize that the pandemic is forcing urban courts to face challenges typical of rural practice.  The authors identify the pandemic as an opportunity for lawyers and policymakers to appreciate the difficulties with which underfunded, overlooked rural criminal courts have long grappled.  In the authors’ words, “[r]ural criminal court systems have sometimes been among the first to innovate alternatives to distancing constraints”—alternatives that might be implemented elsewhere to ease the pandemic’s burdens.

Law enforcement shifted their approaches towards policing, and as Barry Friedman and Robin Tholin write in Policing the Pandemic, law enforcement could play a far greater role in safeguarding public health.  Government surveillance could and should play a role, but it must be constrained by public control and by careful rules on data collection and storage.  Further, “[r]egulations should direct the police on how to do their jobs safely—for themselves and the public.”

Behavioral health treatment also has faced new challenges, as Jennifer Oliva describes in the context of opioids.  Jennifer Oliva, a member of Seton Hall’s Center for Health and Pharmaceutical Law, brings a public health lens to COVID-19 and examines the treatment—or lack thereof—for people with opioid use disorder during the pandemic.  In particular, in a pandemic that disproportionately impacts people of color, the most successful treatments for opioid use disorder remain inaccessible to the most vulnerable communities.  Thus, “COVID-19 and the drug overdose crisis have operated ‘syndemically’ to wreak devastating health outcomes on racial minorities.” In Policing Opioid Use Disorder in a Pandemic, Oliva proposes lifting these barriers, as agencies have done for a medical treatment more accessible to White patients, buprenorphine.

From law enforcement, to local jails, to courts, to behavioral health providers, COVID-19 has called into question basic operation of our criminal system: who is held, where, under what conditions, and why were alternatives not considered at every step?  We could not be more grateful to the editors and to these contributors for exploring these issues so thoughtfully.  New thinking is much needed, because unfortunately, these challenges will remain pressing for some time—far beyond today’s pandemic.

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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 Academy for Justice.

Brandon L. Garrett is L. Neil Williams Professor of Law and Director of the Wilson Center for Science and Justice at Duke University School of Law.

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Featured photo credit to Izee.

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