Blog Essay

Constitutional Criminal Procedure Post-COVID

The current epicenters of COVID-19 in the United States are our jails and prisons, which has come as no surprise to public health experts and criminal law scholars who have predicted this entirely  predictable tragedy for months now.  Until recently, Cook County Jail, in Chicago, had the largest number of cases in a single location. There, both inmates and corrections officers have died from the illness.  Soon after, the jail was overtaken by an Ohio prison, where over two-thirds of inmates were reported to test positive; one fifth of all cases in Ohio are in prisons.  With so little testing being done in highly contagious and poorly equipped corrections environments, we have learned too late that there are enormous numbers of cases in facilities.  Massive incarceration outbreaks have occurred in other countries as well.  Over half of reported cases in China’s Wuhan province were among jail inmates.  The largest outbreak and number of mortalities in South Korea was in a jail.

Public health experts, lawyers, advocates, civil rights leaders, and others have called on local, state, and federal criminal system actors to take immediate action to prevent an explosion of COVID-19 cases in our jails and prisons.  Those calls have largely not been heeded.  But there have been a diverse range of responses from state and federal prison administrators, local jails, law enforcement, Governors, and Boards of Pardons, resulting in policy experimentation and new approaches towards intake, transfer, release, and conditions of confinement.  Scholars and nonprofits have worked to try to document this increasingly fast-moving disaster and policy responses as it happens.  The focus in this post is on the courts and on what constitutional theories might be available as courts consider their role.

How have the courts responded?  The National Center for State Courts (NCSC) maintains state profiles briefly summarizing statewide court delays or restrictions in response to COVID-19.  NCSC identified five of the most common judicial responses: restricting or ending jury trials, suspending in-person proceedings with limited exceptions, restricting courthouse access, granting extensions for court deadlines, and encouraging or requiring teleconferences and videoconferences in lieu of hearings.

These measures did not affect the then-incarcerated population, but other State Supreme Courts and higher-court responses have.  For example, the California Supreme Court issued emergency rules on April 6, 2020 that set a new statewide emergency bail schedule, applicable to every accused person arrested and in pretrial custody.  It also set bail at $0 with the exception of certain offenses.  The District of Columbia Court of Appeals set up on March 22, 2020 a more case-by-case process for motions seeking relief for individual people from detention based on COVID-19.  The Montana Supreme Court sent a letter on March 20, 2020 instructing judges to review jail rosters and “release, without bond, as many prisoners as [they] are able, especially those being held for non-violent offenses.”   The New Jersey Supreme Court, following a request for relief from the Office of the Public Defender, issued an order on March 23, 2020 that all inmates shall be released who were then serving a county jail sentence as a condition of probation or for a municipal court conviction.  The Ohio Supreme Court issued an order, updated on March 30, requiring that judges issue recognizance bonds at bail hearings, absent “clear and convincing evidence” that a release would present a substantial risk of harm, and barring bench warrants to arrest people for failure to appear in traffic and other minor cases, as well as encouraging release of high-risk individuals from jail.  The Pennsylvania Supreme Court rejected a call for broader-based release, but did issue guidance to localities to limit admittance of new inmates.

These varied rulings highlight the supervisor power that State Supreme Courts retain as well as the discretion that local judges can exercise over jail populations.  However, prison populations remain outside the ready regulation of State Supreme Courts.  Governors and Boards of Pardons or Departments of Corrections have the power and the opportunity to more systematically address prison release.  In many states, there is no likely procedural mechanism for judges to provide post-conviction relief from a sentence.  Therefore, drafting new compassionate relief provisions will hopefully be a new focus post-COVID.  Alternatively, pretrial bail schedules and decisionmaking is often not precisely set out in statutes, which leaves considerable room for implementation to local courts.  Local courts have taken a wide variety of approaches, some with detailed rulings regarding jail populations.  In addition, as described, state Supreme Courts can step in and offer guidance.  Emergency rules have closed courthouse doors, but at least some courts have also opened them to hear important emergency claims in order to better protect people from spread of COVID in jails and prisons.

What constitutional claims might be alleged in such litigation, increasingly being brought across the county in emergency filings?  As an emergency federal filing in Cook County, Illinois put it, “[t]his is not a complicated case on the law.”  Before describing the claims brought in these cases, it is important to note that this litigation generally has sought emergency relief. Timing has been crucial, given the rapid spread of COVID.  Many of these suits seek to obtain a temporary restraining order (TRO), or a preliminary injunction, or they seek extraordinary relief in state court using a procedure such as mandamus.  A series of courts have begun to grant such motions, including a federal court in Michigan that wrote: “The ongoing COVID-19 pandemic creates a high risk that absent an injunction by this Court, Petitioner will suffer irreparable harm in the form of loss of health or life as a result of contracting the COVID-19 virus.”

What are the contents of these proposed injunctions?  Some, like in the Michigan case, seek release of a person from custody.  Other complaints cite to recent actions taken by corrections officials.  One lawsuit noted that inmates now only receive one roll of toilet paper and one bar of soap per week, but no tests for COVID.  Many of these suits seek to enforce social distances rules, daily showers, hand sanitizer, adequate precautions for jail staff, taking inmates’ temperatures regularly, and COVID testing, as recommended in guidelines issued by the Centers for Disease Control and Prevention (CDC).  Other suits seek release of categories of individuals, such as a complaint filed in Dallas that asked for the release of all persons over age fifty.

Eighth Amendment claims regarding conditions of confinement have also been brought.   As the Supreme Court explained in its DeShaney v. Winnebago County ruling: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing.”  To be sure, under the Court’s ruling in Estelle v. Gamble, claims of inadequate treatment as cruel and unusual punishment must meet a fairly high standard of deliberate indifference — medical malpractice cognizable in state courts does not suffice.  However, the standard is different if it is not retrospective medical care that is being challenged, but rather ongoing harm.  The risk of dangerous infections disease has already been found to be exactly the type of risk that violates the Eighth Amendment.  In its ruling in Helling v. McKinney, the Court clarified that an objective “unreasonable risk of serious damage” to a person’s health can be actionable.  It also noted: “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”  Therefore, litigants may claim an objective health risk and challenge ongoing conditions posing an immediate risk of harm.  Litigation asserting such claims has been brought in a large and growing number of jurisdictions.  These include challenges to the conditions of confinement in jails, such as those in Washington D.C., and in prisons, such as in two lawsuits in Connecticut and civil detention in ICE facilities.

Due process claims can also be brought to challenge pretrial detention in jail facilities.  An ACLU complaint filed noted that persons detained pretrial may not yet be punished, and are therefore entitled to “more considerate treatment” than persons convicted of crimes.  Similarly, the complaint in the Washington, D.C. jail case raises a Fifth Amendment due process claim, alleging the right to be free from punitive pre-trial confinement.  In Chicago, inmates brought a suit arguing analogous claims, seeking to obtain release for those violations.  The federal judge in that case granted partial relief in an order.  The judge found an Eighth Amendment violation, noting “the plaintiffs have demonstrated that certain of the conditions created by the intentional actions of the Sheriff enable the spread of coronavirus and significantly heighten detainees’ risk of contracting the virus.”  The judge ordered a range of safety measures to be imposed in the Cook County jail, but declined to order prisoner release.  Finally, a federal judge’s temporary order in Florida similarly required a series of safety measures be implemented.

Still additional claims might succeed in court.  Large numbers of individuals in jails and prisons have pre-existing health conditions and behavioral health conditions.  Americans with Disabilities Act (ADA) claims could be brought as a result.  A Pennsylvania case alleges that failure to release particularly vulnerable inmates violates the ADA.  State constitutional claims may also be brought.  The Alaska Supreme Court issued a ruling interpreting its state constitution to guarantee a right to pretrial release in light of COVID.  And in North Carolina, motions for appropriate relief have been filed under a statute that permits consent motions to reduce sentences and release convicted persons.

Finally, habeas corpus can be used, under state or federal provisions, to seek release of persons from jail or prison.  Thus, in New Orleans, an emergency motion was filed raising federal and state constitutional claims, but it relied on state habeas corpus as the mechanism for release, avoiding the non-exhaustion limitations of federal habeas corpus in such settings.  Other cases, such as one in Miami, Florida, have combined constitutional claims and requests for injunctive  relief with seeking the remedy of release in federal court under federal habeas corpus provisions.

These legal claims are likely to develop in the weeks and months ahead. Whether litigation is ultimately successful, or whether courts use their own supervisory or emergency power to themselves change their practices, or whether jails and prisons will remain exposed and struggling to follow basic CDC guidelines, remains to be seen.  As noted, some courts have already granted relief.  Others have denied relief on the merits or for lack of jurisdiction.  Appellate courts are beginning to review rulings in fast-moving litigation and a rapidly evolving crisis.  The COVID emergency, however, is highly likely to result not just in new caselaw, but also in a new connection forged between court rules, constitutional rights, and public health.   Given how vulnerable persons in jail and prison have long been to contagion and a wide range of harms to their health, together with surrounding communities, this new focus is long overdue.