COVID-19's Lingering Effect on Justice: States Struggle to Find a Way Forward
The justice system across the US is struggling to find a balance between safety and moving forward with its responsibilities. Photo by Getty.
As states implemented social distancing guidelines due to the COVID-19 pandemic, the criminal justice system transitioned to an online format. Hybrid trials, conducted with both Zoom and limited in-person elements, cannot replace the fundamental practice of being heard by a judge and jury in a physical courtroom. Recognizing the importance of face-to-face interaction for a fair trial, some state courts are pushing to return to regular operations despite COVID-19 restrictions. The U.S. correctional system, overseeing incarceration and probation, is experiencing a different reality, as people who are incarcerated fight for more, rather than less, COVID-19 protections. Court cases in New Jersey and Texas highlight this disparate parallel. In New Jersey, local courts are fighting to return to in-person jury trials while in Texas, people who are incarcerated are advocating for prisons to take more precautions against the virus.
In New Jersey, the court system has begun resuming in-person trials. On September 16th, New Jersey Supreme Court Justice Stuart Rabner lifted the suspension that prevented jury trials from proceeding to alleviate the backlog of criminal and civil cases. Despite a detailed hybrid plan released by the New Jersey Judiciary, including the use of plexiglass and jurors spaced six feet apart, many attorneys still fear that a courtroom in a hybrid format cannot administer equal justice. Although in-person operations are important for due process, hybrid courts cannot maintain the same levels of constitutional protections as before. If courts are to safely return in person, there will be an inevitable compromise of rights.
The Bergen County Courthouse is at the forefront of the race to reopen the justice system in New Jersey. Photo by KForce.
As municipal New Jersey courts start their first round of jury trials, attorneys are challenging the constitutionality of the hybrid voir dire— the selection of a fair and impartial jury. The first case, that of Talek Lawson, who was charged with murder after a 2018 bar shooting, was temporarily put on hold due to the serious nature of the trial. Both parties agreed that with a potential sentence up to life in prison, this case was not appropriate to be a pilot for the new hybrid format. Kevin Roe, Lawson’s defense attorney, also expressed hesitancy about reopening the courts when he argued, “I do not want to have a man potentially spend life in prison in the face of a failed experiment.” So far, courts have approached these new hybrid trials with caution, allowing only “simple” trials to proceed.
The first hybrid in-person trial in New Jersey is that of Wildemar Dangcil, who is accused of attempting to set his ex-wife’s car and house on fire. Dangcil’s defense attorneys requested Superior Court Judge Robert M. Vinci to suspend voir dire and postpone the trial until certain constitutional deficiencies in the hybrid system could be amended or until regular trials could resume. James Lisa and Peter Michael, attorneys for the defendant, argue on constitutional grounds that the trial should not continue because, under the hybrid method of voir dire, the jury could not represent a fair “cross section” of the population. The current process for voir dire includes electronic notices to potential jurors, pre-selection done by a court official, and the possible exclusion of potential jurors over 65 and those with underlying health conditions. The defense claimed that 800 electronic notices were sent out and 75% of recipients failed to fill out the jury questionnaire, leaving only a slim pool of 200 people, failing to represent the population.
The Supreme Court created the standard that a jury must represent an accurate cross-section of a community in Taylor v. Louisiana when the Court struck down a Louisiana law that prevented the selection of women who had not previously sent in a notice indicating a wish to serve on a jury. Dangcil’s defense team argue that electronically processing notifications, jury questionnaires, and the online voir dire process limits a jury pool by excluding people who do not have computers, Wi-Fi, or the skills to navigate the technology. In addition, according to state reopening guidelines, individuals who are at higher risk of contracting COVID-19, such as people over 65-years-old or with underlying medical conditions such as Type 2 Diabetes, can excuse themselves.
These limitations could lead to a jury primarily composed of people who are younger and in a position to access technology. There are unique barriers posed by technology and would otherwise not exist in an in-person jury. Potential jurors without access to technology frequently represent lower socioeconomic demographics and could be excluded. In addition, while COVID-19 has proven to be more detrimental to people with underlying medical conditions, a legitimate reason for their exclusion, restricting those members of the population from the jury further creates an inaccurate cross-section of the population. A jury pool completely exempt of those over 65 or with health restrictions would be a violation of Taylor v. Louisiana. Groups that are more susceptible to serious medical complications from the virus should not have to be exposed; however, not having those groups participate in the jury process would create an unconstitutional scenario.
Judge Vinci ruled against the defense’s objection, countering that 500 not 200 jury notices were received and that, in terms of accessibility, the court delivered a laptop to the home of a potential juror who did not own one. In his response, Vinci claimed that the information presented by the defense was conjecture and based on inaccurate information. Vinci also affirmed that technical assistance was available to people who needed it, facilitating an accurate representation of the population. However, while this ruling addresses access to technology, the issue of older jurors still stands.While Judge Vinci claimed that the hybrid method of jury selection created an accurate cross-section of the population, the exclusion of older potential jurors prove contrary to his argument.
The defense appealed the case to the Appellate Division of the Superior Court, which ruled in favor of the hybrid trials, claiming that they “replicated— to the greatest extent possible—standard pre-COVID-19 processes.” While hybrid trials are a fair attempt to replicate pre-COVID-19 conditions, people impacted by the justice system deserve to have the full extent of justice applied, not just the “as best as they could.”
After this ruling, Dangcil’s attorneys filed an emergency appeal to the New Jersey Supreme Court. The State Supreme Court agreed with the lower courts that there was no “evidence to suggest that the selection was non-random or that any constitutionally cognizable group was excluded from the array.” Thus, Dangcil’s case will likely continue as soon as possible. The potential repercussions— a jury pool nonrepresentative of the population that leads to an inadequate assessment of the defendant and his case— will only become clearer with time and the constitutionality of hybrid trials remains unsolved. The defense team could still appeal based on the concerns raised about the ability of the jury to judge witnesses and credibility through COVID-19 protections such as masks and plexi-glass. When someone’s liberty is at stake, the execution of justice should be “beyond a reasonable doubt”—just like the burden of proof. Bench trials, those conducted solely between a judge and the defendant, could continue with necessary precautions like masks, testing, and plexiglass, or even virtually, but when a defendant appears in front of a jury, those cases should be postponed until there is no doubt of their fairness.
Courts are also considering constitutional challenges under the Fifth, Sixth, and Eighth Amendments, involving due process and the justice system during the pandemic. According to the New York Law Journal, COVID-19 has led prisoners to seek remedy under the Eighth Amendment’s “cruel and unusual punishment” clause, and twice the U.S. Fifth Circuit Court of Appeals has found merit in their arguments.
This issue emerged in Valentine v. Collier in the U.S. District Court for the Southern District of Texas, where people who are incarcerated in the Wallace Pack Unit, a Texas prison for the elderly and immunocompromised, have argued that the measures taken by the correctional facility to prevent coronavirus infection do not go far enough to protect them. The suit highlighted that 40% of the prison population has tested positive for COVID-19 and 20 inmates have died to demonstrate the extent to which the correctional facility has disregarded the safety of its inhabitants and failed to take steps to prevent the spread of the virus.
The district court granted an injunction and set out requirements that the facility would need to meet to protect people who are incarcerated, including wearing masks, using hand sanitizer, and providing sufficient cleaning throughout the facility. The Court of Appeals for the Fifth Circuit stayed that injunction, however, arguing that the people who are incarcerated failed to prove a “substantial risk of harm.” While the Wallace Pack Unit’s processes may not have been successful in curtailing the spread and effect of the virus, they were not unconstitutional. The court felt that the people who are incarcerated did not prove that the Texas Department of Criminal Justice purposefully ignored their health. The plaintiffs filed an emergency appeal for relief to the United States Supreme Court but they were denied, albeit on a procedural issue involving the chain of command for seeking relief. Justice Sotomayor issued a statement expressing her views on the plight of the people who are incarcerated rather than on the constitutional merits of the case. She contended that people who are incarcerated across the country are in a powerless position against the virus and that the prison failed to balance administrative convenience and the dangers of emergency situations, despite the resources at its disposal.
Since the Supreme Court based its decision on the fact that the people who are incarcerated did not follow specific procedural requirements and not on the Eighth Amendment concern, they provided little requirements for prisons to protect people against the virus. As the Fifth Circuit explained, the prison was not at fault for an Eighth Amendment violation just because the virus breached the facility. The U.S. Supreme Court developed this standard in Farmer v. Brennan, finding that a prison would violate the Eighth Amendment if it showed “deliberate indifference” to the serious harm occurring and took no steps to remedy the situation.
In this case, the plaintiffs argued that prison officials knew that they were at increased risk due to a medical condition and willfully ignored that fact. The Wallace Pack Unit had no contact tracing plan, no widespread mask mandate, and a shortage of cleaning supplies, despite the threat of COVID-19. The virus poses the biggest threat to people who are older or face underlying health problems, the very population of the Wallace Pack Unit, so the prison violated the Eighth Amendment in not imposing the appropriate protections against COVID-19. Testimony from the prison demonstrates clear misconduct that put the lives of the high-risk prisoners in jeopardy.
The COVID-19 pandemic has led to a balancing act between facilitating a fair criminal justice system and protecting people against the virus. The two cases from New Jersey and Texas present a sample of the many legal questions arising in this new era. The New Jersey case demonstrates the challenges of ensuring both safety and equal justice. As courts strive towards normalcy, different circumstances in Texas show that prisons are far from normal. The protections that many Americans take for granted—masks, hand sanitizer, the ability to social distance— are not guaranteed to be available to people who are incarcerated. Adapting the criminal justice system to the new circumstances of the COVID-19 pandemic is a constant battle. As court systems attempt to move forward, we must consider what we are willing to sacrifice in the name of justice.
Katerina Kaganovich is a Staff Writer at CPR and a freshman at Barnard College studying political science and economics. She is an intern with the New Jersey Attorney General’s Division on Civil Rights interested in American government and jurisprudence.