'Complete chaos': How the coronavirus pandemic is upending the criminal justice system

Claramary Winebrenner had a difficult choice to make: keep two pregnant inmates in jail where they might contract coronavirus, or release them knowing they’ll be a danger to themselves and to others. 

Both inmates have long histories of methamphetamine abuse. One, who's six months pregnant, has no family. She'll be high in two days if left on her own, said Winebrenner, the prosecutor in rural DeKalb County in Indiana.

Under normal times, keeping them incarcerated would have been the easy choice for Winebrenner. But these aren’t normal times. 

The coronavirus pandemic has upended the day-to-day operations of the criminal justice system, raising significant questions about what incarceration and access to justice looks like as the virus reaches all 50 states and the District of Columbia.

Everybody, from judges to defendants, now confronts a stark reality. Jury trials have been suspended in more than two dozen states, the District of Columbia and the U.S. Virgin Islands, as well as in dozens more localities. Courthouses have either been restricted from the public or completely shut down. Judges, forced to ensure that the justice system does not grind to a screeching halt, have prioritized more urgent cases, with some holding hearings via video or telephone. 

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This means defendants who enter the criminal justice system will have to stay there longer, which could raise serious questions about civil liberties and constitutional rights to a speedy trial. Jo-Ann Wallace, president and chief executive of the National Legal Aid and Defender Association, said this also means defendants who are awaiting trial in jail could lose access to their homes, family and jobs – "the cascading effect" that destabilizes livelihoods. 

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Similar disruptions are happening in federal courts that hear some of the country’s most controversial and consequential cases. The Supreme Court postponed oral arguments for the first time in a century. The executive committee of the Judicial Conference, the policy-making body for federal courts, is asking Congress for $7 million in additional funds to pay for mental health and drug treatments that have become costlier because they must now be given individually instead of in groups.

The country's notoriously backlogged federal immigration court system is now largely at a standstill. The Justice Department closed several courts and postponed hearings of those who are not in custody.

Meanwhile, prosecutors like Winebrenner face an uneasy, immediate question: whether to release defendants they believe should be incarcerated to avoid viral outbreaks in jails, where close quarters and overcrowding would speed the spread of the deadly and highly contagious COVID-19.

“Let’s just say we’ve kind of moved the bar up. We have to get some people out of there … and bust through some rules that are very good rules for some reasons, but in this situation, some people need to get out,” she said. 

Winebrenner ultimately did not recommend the release of the pregnant inmates, saying their drug addiction poses a greater danger to them than the virus. At least in jail, she said, they can get medical care and stay sober.

“Tough calls are being made on a number of rightfully held inmates,” Winebrenner said. “We are balancing safety for the community against the great benefit of a low jail population, which ultimately, is also for the community.” 

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Public health vs. public safety

For Derwyn Bunton, the chief public defender in New Orleans, the worst-case scenario is clear: 

Arrests will continue as if everything is business as usual, clogging up court dockets that are not moving. Reluctance to release nonviolent offenders will overcrowd jails. Defendants, still innocent until proved guilty, will sit there indefinitely. The epidemic will make its way inside facilities, where hygiene products are limited and social distancing isn't an option. 

Bunton has pushed for not arresting people over minor offenses and releasing inmates accused of nonviolent crimes to avoid that worst-case scenario. But he’s been met with resistance from law-enforcement officials who say bending the rules would result in lawlessness. 

Such is the conundrum in jurisdictions across the country, where defense attorneys and prosecutors with competing interests are forced to find common ground to help stem the public health crisis.

“We can maintain public safety without jeopardizing public health,” Bunton said. “The cost to the community of keeping those folks in jail on nonviolent or technical violations is outweighed by the need to prevent the spread of the virus.”

Winebrenner is on the same page. She had asked law enforcement officials who patrol her county to bend the norms. 

“If it’s not a public safety issue, … if there’s not a darn good reason to arrest somebody, don’t arrest them,” she said. 

Other counties in Texas and California have started releasing inmates. 

Rob Sanders, the prosecutor in Kenton County in Kentucky, said he’s seeing far more people being released from jail than at any other time in his 21 years in public service. Nearly every inmate accused of nonviolent offenses is being considered for release, he said. That includes not only defendants facing minor drug and property crimes, but also felons caught with guns and those accused of drug trafficking.

“I’m apprehensive. Certainly, we don’t want to make any law-abiding citizens get victimized by someone who might otherwise have been incarcerated. That’s my biggest concern,” he said. 

Sanders also fears that many defendants will not show up to hearings once court operations are back to normal. But he also acknowledges that these are unprecedented times. Taking a chance by releasing certain inmates “is something we need to do,” he said.

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In Erie County in New York, reducing the jail population has not been as pressing, said John Flynn, the county prosecutor. State bail reforms that took effect this year allowed defendants accused of misdemeanor and nonviolent felonies to go free while awaiting trial, significantly reducing jail population. 

More pressing for Flynn is the issue with grand juries. New York, one of about two dozen states that require grand jury indictments for people charged with serious crimes, has stopped empaneling grand juries in response to the pandemic. Prosecutors have 45 days to take the case to a grand jury, but they’re now unlikely to meet that deadline. 

Flynn said the state should enact emergency laws lifting that 45-day limit, though he also acknowledged it may risk incarcerating defendants indefinitely without an indictment.

“While I recognize that defendants have their civil liberties, we also have to recognize that we are in a state of emergency,” he said. “I’m not saying disregard civil liberties, but we have to have a balance here.”

‘Complete chaos’

The mass disruptions will create backlogs that will most certainly burden already strained court systems. The justice system at the end of the pandemic will likely be even more sluggish than it is now. 

“The new normal is complete chaos right now,” said Steven Halpert, juvenile division chief for the public defender’s office in Harris County, Texas.

In the juvenile system, the delays and backlogs mean some teenagers may age out before their cases are processed, Halpert said.

“We have to finish the procedure before (they turn) 18,” he said. “We have to do something. It’s a small percentage of the overall kids, but I’m concerned about those.”

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But the disruptions, while painful, are necessary, said Greg Banks, the prosecutor in Island County in Washington state. 

“Yes, we will add to the backlog, and it’ll be difficult to dig our way out of it. But the downside of not acting is the infection rate balloons. Our public system collapses,” he said. “I’d rather fight my way back from a backlog of cases than to participate in the mismanagement of this epidemic.”

Anne Marie Schubert, the prosecutor in Sacramento, California, said the difficult adjustments in the criminal justice system are critical to help preserve the country’s healthcare infrastructure.

“We play a part in this role to protect the human race. … We don’t want to be in a position where health systems have to make life and death decisions,” Schubert said. “I can’t predict where we’re going to be in three to four weeks. At the end of the day, the criminal justice system will survive.”

In DeKalb County, where the courthouse is now closed, Winebrenner had spent the last few days jumping from one pretrial hearing to the next, postponing cases that can wait, thinking about how she and her five part-time deputy prosecutors can do their jobs without a courtroom – all while frantically finding laptops so secretaries who keep her office running can work from home. 

“Nobody’s prepared for this,” she said. “Nobody’s prepared with a plan for this.”

Contributing: Richard Wolf