The COVID-19 outbreak has affected substantive criminal laws in only a few areas. Most notably, violations of shelter-in-place orders may be treated as misdemeanors in many states and counties. Enforcement of these orders is a priority. In many cases, police officers have adopted an educational approach for first-time violations, explaining the order and issuing a warning. Repeat violations or serious violations often will lead to penalties, which depend on the jurisdiction.
On the other hand, measures adopted to contain the virus may significantly affect criminal procedures. To comply with social distancing mandates, many courts at federal and state levels have shut down almost completely. Courts in some states have decided to finish trials that have started but not start new trials, while courts in other states have suspended all trials, including ongoing trials. Adding to the confusion, many states have not adopted an overarching policy for handling the situation. In California and certain other states, each trial court can decide individually how to move forward.
Right to a Speedy Trial
One of the most important rights of criminal defendants under the U.S. Constitution is the right to a speedy trial, provided by the Sixth Amendment. Criminal justice advocates have voiced concerns that this right may be violated during the COVID-19 outbreak. A court has the authority to set aside a conviction or sentence if the right is violated. Legislatures in many states have imposed specific limits for the time in which the prosecution can bring a defendant to trial. Without modifying this limit, many people who commit crimes may avoid a conviction due to the mounting backlog of cases.
Some states may consider temporarily extending the speedy trial deadline. In Kansas, for example, the legislature may grant the Chief Justice of the Kansas Supreme Court emergency powers to extend the deadline. However, this issue likely will be raised in many criminal cases across the U.S. once the emergency subsides.
Bond Hearings and Detention
A related issue involves overcrowding in jails, which has increased as pending cases mount. Criminal justice advocates and medical experts have warned that conditions in jails pose serious risks to the health of not only inmates but also law enforcement officers, staff, and visitors. For a defendant to leave custody, a judge generally needs to approve their request at a bond hearing. While most courts are closed for in-person hearings, some courts have allowed bond hearings to proceed by video conferencing or phone. Courts also may conduct sentencing hearings, probation and parole violation hearings, and preliminary hearings in criminal cases through remote technology. For example, one of the defendants in the college admissions fraud cases recently was sentenced to seven months in federal prison by a U.S. District Court judge in Boston. The judge used video conferencing to conduct the hearing.
Expanding pre-trial release may alleviate the speedy trial concerns discussed above. Defendants who are not detained prior to their trial often are subject to later trial deadlines than defendants in custody. However, judges and law enforcement may feel reluctant to grant bond in cases involving serious crimes. This is because a defendant could tamper with witnesses or destroy evidence of their crime after being released. Criminal justice advocates counter that many suspects remain in detention because they cannot afford bail. This may mean that reducing the bail amounts for non-serious offenders could relieve overcrowding in jails.
Impact on Plea Bargains
The vast majority of criminal cases in the U.S. are resolved through plea bargains. This means that a defendant pleads guilty in exchange for a lower charge, a lesser sentence, a reduction in the number of charges, or some other concession by a prosecutor. During the COVID-19 outbreak, defendants and prosecutors may have even greater incentives to reach a plea bargain. A defendant could stay out of unhealthy conditions in jail if they accept a sentence that does not involve incarceration. Meanwhile, a prosecutor could resolve cases more efficiently and reduce their backlog.
Defendants should be aware that pleading guilty can have serious and lasting repercussions, though. A person with a criminal record may face a social stigma and struggle to find a job, especially in the adverse economic conditions that have resulted from the COVID-19 outbreak. Defense attorneys urge that people who believe that they are innocent still should consider fighting to keep their record clean, rather than rushing to plead guilty.