This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
Can due process survive a pandemic?
That’s in doubt in California, after the state’s Judicial Council, the courts’ rulemaking body, approved “emergency measures” on Saturday that could keep people in jail longer without a hearing, access to counsel, and the judicial oversight to which they are entitled.
The Council, chaired by Chief Justice Tani G. Cantil-Sakauye, unanimously approved the new measures, which allow for delays in criminal proceedings, during a special emergency meeting held via phone. The action was the state courts’ latest attempt to balance the public health mandate to minimize in-person contact during the COVID-19 emergency with the need to provide essential services and access to the courts.
But as advocates—including some who scrambled to oppose the measures with only a day’s notice—point out, delaying court hearings in criminal cases will only exacerbate health risks to people who are detained, unfairly burden low-income people held in jail because they cannot afford to pay cash bail, and threaten constitutional protections that ensure due process for people charged with a crime.
“The right to a speedy and public trial is the bedrock of the U.S. Constitution and is one of the founding principles of this country,” Alameda County Public Defender Brendon Woods said in a statement condemning the action. “Losing that . . . should alarm every single person in California. If you’re going to take such extraordinary measures of denying people Due Process rights then you also have to take the extraordinary measure of releasing them.”
The measures approved Saturday extend two deadlines: the first for initial appearances in court and the second, for preliminary hearings, where a court determines whether there is enough evidence to support the charges. Typically, people arrested, charged with a crime, and jailed in California must first appear before a judge within two business days, but the new order extends this to a week. The deadline for preliminary hearings has been extended from 10 court days to 30 court days—a timeline that could work out to over a month in real time.
And while the chief justice had already suspended all jury trials in the state for 60 days, the latest order appears to add another 30-day delay on top of that.
During Saturday’s meeting, Justice Brad R. Hill, an appeals court judge in Fresno and member of the Judicial Council, acknowledged that “these are extraordinary measures,” but said that, in light of the epidemic and constraints on court capacity, they “are a much needed lifeline to courts across our state.” Cantil-Sakauye said in a statement that the measures will “preserve the rule of law” and “protect the rights and liberties of all Californians,” while also complying with public health guidelines.
The Judicial Council’s action followed an executive order, signed the day before by Governor Gavin Newsom, that gave the chief justice and the Judicial Council sweeping new authority “to adopt any rules concerning civil or criminal practice or procedure they may deem necessary to respond to the COVID-19 pandemic,” even when such rules conflict with statutory protections. In that case, the order says, “the relevant statute is suspended.”
Both the chief justice and the Council have publicly recognized the need to reduce jail populations to slow the spread of the coronavirus, but extending key deadlines in criminal cases is exactly the wrong approach. It will mean more people in jail, not fewer, and it will increase jail time instead of shortening it. This is especially true for lower-income people, who will be jailed because they can’t pay the amount set in a bail schedule, and may have to wait a week before a judge can do anything about it. That this vote came just as a person detained in the L.A. County jail tested positive for COVID-19 underscores the grave health risks longer jail stays will create.
It’s also alarming that the order applies for another 90 days after the state of emergency is lifted, a provision added ostensibly to ease the burdens of any backlog that may arise in the meantime. But the solution to avoiding backlogs is dismissing charges and releasing people—not circumventing speedy trial rights for months even after courts are fully open.
Woods, the public defender in Alameda County, has been working with prosecutors and other officials to release people from the county jail as a response to the threat of COVID-19, an effort that has so far led to the release of over 300 people. He called the Judicial Council’s action a “dark day for justice,” that comes at the expense of his clients, “the poorest people, [B]lack and brown people, locked in cages.”
The ACLU of Northern California echoed that view in a letter opposing the measures, arguing that the delays “would drastically increase the length of incarceration for an already vulnerable population.” If courts cannot comply with due process and the state’s statutory deadlines then people should be released, they wrote.
Kathleen Guneratne, a senior staff attorney at the ACLU of Northern California, said in an interview that the urgency to provide due process is heightened during this pandemic, when the decision to detain someone is a life or death matter. Judges should find ways “to speed up and not slow down access to the courts,” she said.
Cantil-Sakauye issued guidance previously for courts to reduce jail populations in response to the coronavirus, including by “lowering the bail amount to $0 for many lower level offenses.” But Guneratne said she finds “cold comfort” in that guidance in light of the new procedural measures. She pointed out that the guidance excludes certain categories of offenses, including some misdemeanors, and is nonbinding. If courts impose these newly authorized delays, she said, more people could languish in jail for longer.
“One of the things that distinguishes us from a police state is that we retain our rule of law even in the face of an emergency,” Guneratne told The Appeal. “We have to remember that civil liberties are not a gift from the state that can be taken away.” And with these new emergency rules, “we have to be deeply concerned about the precedent we are setting.”