Attorney General William Barr's Justice Department sparked controversy recently when it asked Congress for sweeping emergency powers in the name of the COVID-19 pandemic. As reported by Politico, the Justice Department requested the power to ask chief judges, the judges who run federal courthouses, to detain anyone it chose for as long as it wanted without seeing a judge. Even more frightening, Barr's request would apply not just to this pandemic but to "any natural disaster, civil disobedience, or other emergency situation."
The response was swift and negative. Sen. Mike Lee, R-Utah, did not mince Twitter characters: "Over my dead body." Eventually, Justice Department spokesperson Kerri Kupec issued a long tweet thread of her own clarifying the "confusion" over the request. Clearly, the federal criminal justice system still faces novel questions of how to balance rights and safety during this crisis. If done right, the Justice Department could come out the other side of this pandemic having implemented lasting criminal justice reforms. If done wrong, the opposite could be true.
According to The New York Times, Congress seems appropriately reluctant to support legislation that would sweep aside protections against political persecution and dictatorial power enshrined in the Constitution, including a request to allow the indefinite detention of asylum-seekers. We should pay close attention to ensure that remains the case. (Lest we forget, the rise of Hitler's Nazi Germany began with the suspension of the right to see a judge on charges, which Hitler used against political opponents. Let's not go there.)
There are, however, other recommendations Congress can consider. Some are reasonable, like extending statutes of limitations to give closed courts more time. We can't give a pass to people who may have committed crimes just because courthouses have been forced to close. In fact, since states are affected as well, some courts have already extended statutes of limitation.
To take another example, the Speedy Trial Act mandates that federal criminal trials be held in 70 days. This is an unrealistic situation for trials that require juries as well as trial teams and should be suspended because of court disruption.
But what of arraignments and bail appeals? The Justice Department suggested that we simply waive all time limits. But allowing indefinite detention means plenty of people who have been arrested but not found guilty may have to sit in the petri dishes we call jails. Prosecutors and defense attorneys in cities like New York, Dallas and San Francisco have called for police to use their discretion to arrest people who don't pose a public safety risk.
But what of arraignments and bail appeals? The Justice Department suggested that we simply waive all time limits.
Federal chief judges have also been grappling with similar public health questions. A chief judge in New York, a city at extremely high risk right now, has required that detainees be screened for fevers. If a defendant has a temperature of 100.4 degrees or more, the defendant cannot be brought to court, and the hearing is postponed. As New York City becomes a COVID-19 center, the chief judge has expanded the protections further. In Chicago, the chief judge ordered a halt to trials and hearings and to allow decisions on whether to hold or release arrested individuals to take place by video.
Right now, Congress and the Justice Department must think of health and justice as intertwined principles. As the Marshall Project, a nonprofit criminal justice news outlet, noted, "Behind bars, some of the most basic disease prevention measures are against the rules or simply impossible." In the federal corrections facilities in New York City, thousands of inmates and the guards and other staff members cannot socially distance. One of the two federal jails in New York City, the Metropolitan Detention Center in Brooklyn, infamous for freezing cells last winter, still has 25 inmates sharing one toilet. Jail and prison staff members have families and take home whatever infections they may get inside. The first federal inmate died Sunday, a few short days after Barr's directive to send some vulnerable inmates to home confinement. This is a step in the right direction, but it is insufficient.
Pretrial detainees are people who have not been convicted of a crime. About 60,000 of the over 175,000 people held in federal prisons and jails are pretrial detainees. Thankfully, one proposal being considered is to permit federal bail hearings to be teleconferenced. This would allow for the release of those charged with nonviolent offenses. In the federal system, unlike in state and local systems, bail is not simply about money. A defendant is released unless he or she is deemed a flight risk or a danger to the public (18 U.S. Code Section 3124(b)). Against all reason, as crime rates have been cut in half over the last two decades, pretrial detention is going up.
Unfortunately, many people imprisoned are there are nonviolent drug offenders. In fact, over a third of federal inmates serving time for drug trafficking have no or minimal criminal histories. So why this jump? Race plays a clear role. The most likely to be detained awaiting trial are black, Latino and Native American men. Rates of asthma, diabetes, hepatitis and cancer are higher among those in prison compared to the rest of us, so those in confinement are also a population at greater risk of death from COVID-19.
Moreover, the detention of an additional 40,000 souls in immigration facilities is a looming humanitarian disaster, along with immigration raids that drive residents away from testing and care, rather than toward it.
The Justice Department and federal courts can both do more to keep people out of federal detention and make sure the process runs as smoothly and as risk free as possible. Guidance to prosecutors and judges would help. Congress should also use this critical moment to consider how we handle pandemic emergencies when courts close so jails and prison populations don't swell.
Iran recently released tens of thousands of prisoners as a result of the coronavirus. Many were political prisoners, which should stand as a reminder that we do not want the government holding people indefinitely without seeing judges, even if the judges agree. Barr's request to Congress was dangerously broad and unnecessary. Unlimited suspension of statutes that protect defendants is way beyond anything required for public safety and well beyond this particular pandemic. Justice and fairness should not fall by the wayside, no matter the circumstances.