The Justice Department wants the power to detain suspects indefinitely without trial. That was the storyline last week. DOJ, you were to believe, was exploiting the COVID-19 crisis to carry out a Constitution-shredding gambit, completely in line with two intertwined media caricatures: Donald Trump’s authoritarian streak and Bill Barr’s long held affinity for executive branch imperialism. If you listened to enough of the commentary around the initial reports, you were pretty sure Trump and Barr were about to lock up Joe Biden, the prime-time hosts at MSNBC, and maybe even the New York Times editorial board.
It should by now go without saying that the distorted story was remote from reality.
The Justice Department made some proposals . . . but it did so at the urging of Congress, not unilaterally. The upshot was to empower the courts, not the executive. In fact, “empower” is an overstatement. The idea was to give judges latitude to deal with due process deadlines that necessarily become problematic when some catastrophic event undermines the capacity of courts to function.
The profound challenge that the COVID-19 pandemic poses to our health-care system, potentially in all U.S. states and territories, is the predominant news story of 2020. Less obvious but all too real nonetheless is the challenge it poses for the criminal-justice system.
This is an unavoidable consequence of any kind of “critical incident” — the jargon that security personnel and first responders use to describe catastrophic events, which include everything from natural disasters (e.g., earthquakes) to medical emergencies to terrorist attacks.
I was still a federal prosecutor when we had to deal with the 9/11 attacks. The World Trade Center, which was destroyed on September 11, 2001, was located just a few blocks from the federal and state courthouses in lower Manhattan. Also in the vicinity were detention facilities, the headquarters of both the New York City Police Department and the FBI’s New York field office, and prosecutors’ offices (including the Southern District of New York, where I worked).
Because conditions were too dangerous near Ground Zero, we had to move operations to a nearby “offsite” along the West Side Highway. It became the hub of what developed into the most expansive investigation in American history. The probe stretched nationwide and overseas, in conjunction with desperate search and rescue operations (nearly 3,000 Americans having been killed — and original estimates suggesting the death toll could be multiples higher), intelligence analyses indicating that additional jihadist strikes could be imminent, a campaign of anthrax mailings (real and fake) that further compromised government functions, and preparations for responsive combat operations in Afghanistan.
As it turned out, although many of the 9/11 security precautions remain with us to this day, the emergency arrangements in the justice system were short-lived. There were no additional waves of attacks, so the imperative of further “hardening” government facilities that were obvious targets (such as courthouses in which jihadists had been prosecuted) ebbed. Terrorist attacks are different from natural disasters in that they raise legal issues pertaining to treatment of the criminal culprits: questions about whether civilian due process must be applied; about who can be detained, where, and on what standard of proof; and so on. But these special contingencies only applied to a relatively small subset of people.
By contrast, there are systemic complexities that addle the administration of justice regardless of whether a catastrophic event is caused by criminal conduct. They are a function of constitutional and statutory safeguards for persons accused and convicted of crimes. These complexities are apt to be more vexing in the current infectious-disease crisis than they were after the terrorist attacks two decades ago. That is why the Justice Department was asked to address them. Indeed, DOJ would have had no choice but to do so even if Congress hadn’t asked.
For one thing, the ongoing crisis will be more extensive in geographical and temporal scope. The coronavirus is spreading throughout the country. Although some states have “hot spots” while others have barely been affected, all states will have to prepare. Even if President Trump’s optimistic hope to begin a return to normalcy in a couple of weeks proves to be practical, the return will be gradual and social distancing will be a fact of life throughout America for many months. To put it mildly, that complicates the convening of grand juries, the conducting of jury trials, the making and processing of arrests, the detention of prisoners, etc.
By law, any accused has the right to a speedy and public trial, based on an indictment returned by a grand jury. Federal offenses have statutes of limitations (usually, five years); if a charge is not filed within the limitations period, prosecution is time-barred. Under the Speedy Trial Act, if a defendant is arrested on a complaint (a sworn statement establishing probable cause), prosecutors have a limited time in which to file an indictment — basically, between ten and thirty days, depending on whether the defendant is detained or granted bail. Once an indictment is filed, the trial must presumptively commence within seventy days of arraignment. There are various legal grounds for extending some of these deadlines, including a court finding that it is in the interests of justice to do so. Even in normal times, then, a defendant who is denied bail can languish in custody for a long time awaiting indictment and trial. That is not uncommon in violent crime cases, as well as cases involving defendants who pose a high risk of flight.
These are not normal times. In COVID-19 hot-spot areas, such as New York City, many court functions have been suspended. If a grand jury cannot convene, it is legally impossible to file an indictment. If a statute of limitations lapsed during that time, no future prosecution would be permissible. If a petit jury cannot convene because the threat to health is too serious, there can be no trial; if a trial cannot be scheduled, the defendant’s speedy trial rights could be violated (even if the statute of limitations has not run). And, as should be obvious, social distancing is not conducive to maintaining conditions of prison confinement, which are innately populous and intrusive. If these matters were not addressed, the epidemic could result in the release of many dangerous criminals back into the community, and the inability to prosecute them for provable felonies.
To forestall these problems, the Justice Department has proposed that the Chief Justice of the Supreme Court be vested with authority to waive the statute of limitations in the event of a national emergency. In addition, DOJ has suggested that the chief judges in all 93 federal districts be authorized to extend other deadlines; individual judges already have this power (and are actively exercising it), but conferring the power on a single experienced judge in each district would promote uniformity (while nevertheless accounting for the fact that conditions in various states and federal districts are different, and may call for different resolutions). Meanwhile, Attorney General Barr has directed the Bureau of Prisons to prepare to transfer to home confinement inmates who are elderly or in poor health. The idea is to ameliorate prison crowding, a condition that can contribute to the spread of virus.
Would one result of these proposals be that some defendants will be detained “indefinitely” without trial? Of course it would . . . but that can’t be helped because we do not know when the COVID-19 crisis will subside enough for routine court functions to resume. But we are not talking about locking the jailhouse door and throwing away the key. DOJ suggested that the continuing need for the emergency measures be regularly reevaluated, and that the measures be terminated upon a judicial finding that they are no longer necessary. “Indefinite” detention here means we do not now know a definite date; it does not mean forever.
Let’s remember, too, that what DOJ posited were proposals. It would be up to Congress to enact them into law.
In short, this was the very opposite of a power grab. It was an exhibition of executive branch respect for the Bill of Rights and the separation of powers, not a matter of running roughshod over them.