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Pretrial Detention in a Pandemic

Jurisdictions have failed to protect the pretrial rights of the accused. In a pandemic, those failures can be deadly.
(Illustration: CJ Ostrosky / POGO)

Over the last few weeks, there have been over 14,000 protest-related arrests nationwide, including over 2,500 in New York City alone. Arrested protesters—many of whom were detained for minor offenses like breaking curfew, or were simply in the wrong place at the wrong time—spent hours or days in crowded conditions, at high risk of catching COVID-19, the disease caused by the novel coronavirus.

Long before the current wave of protests, the United States’ incarceration rate outstripped that of any other country. Detention before trial, including for people accused of minor, nonviolent offenses, is too common. Now, in the age of COVID-19, our overuse of pretrial detention and the routine deprivation of constitutional rights that accompanies it may have deadly consequences.

In the age of COVID-19, our overuse of pretrial detention and the routine deprivation of constitutional rights that accompanies it may have deadly consequences.

On an average day, more than 2 million people across the country are locked up in jails—which primarily detain individuals accused of crimes before trial—or in prisons—where convicted inmates serve their sentences. In an average year, there are 10.6 million jail admissions. By comparison, we have fewer than 1 million hospital beds. In both jails and prisons, social distancing is nearly impossible, the risk of infection is high, and medical care is often dangerously inadequate. So it is not surprising that eight of the 10 largest clusters of COVID-19 in the country are in correctional facilities. And the criminal justice system’s overreliance on incarceration has a particularly pernicious effect on Black Americans, who are not only disproportionately jailed before trial, but who also experience dramatically higher rates of infection of COVID-19.

The federal government and state governments are responsible for protecting the health of all people in their custody, and severely inadequate medical care is considered a violation of the Constitution’s prohibition on cruel and unusual punishment.

But it is important to remember that pretrial detainees are presumed innocent, and cannot constitutionally be subjected to any form of punishment. Personal freedom is perhaps the most cherished of human rights.

And despite the over 10 million jail admissions a year, detaining a defendant before trial is, in our constitutional system, meant to be an anomaly, used only when there is no other means to prevent a defendant from fleeing before trial or seriously endangering the public. As then-Supreme Court Chief Justice William Rehnquist wrote in United States v. Salerno in 1987, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.

Then-Supreme Court Chief Justice William Rehnquist in United States v. Salerno

In practice, though, courts have failed to carefully limit pretrial detention, particularly for defendants not wealthy enough to purchase their pretrial freedom. COVID-19 has made the situation much worse, threatening both defendants’ lives and their constitutional rights, and worsening the conditions under which they are held.

Because of the spread of the disease, courts have been closed, trials and grand juries have been postponed for months, there has been a drastic increase in solitary confinement, and access to counsel has been severely restricted. These developments present numerous constitutional concerns, from deprivation of the right to counsel and speedy trial to violations of due process. And, most immediately, it is now incredibly difficult for a defendant to challenge the legality of their detention before going to trial.

Many local governments have reduced jail populations in response to the pandemic, but this is not universal. In Texas, for example, sheriffs and judges in many counties began to release low-risk and medically vulnerable prisoners, but then Governor Greg Abbott issued an executive order that restricted their power to free defendants without bond. The number of releases dropped significantly even as COVID-19 began spreading through the jails in Dallas, Houston, San Antonio, and other cities.

In the federal system, the number of arrests has decreased, but according to federal public defenders, the Justice Department continues to routinely oppose pretrial release, even as prison lockdowns make it nearly impossible to communicate with clients.

Pretrial Detention Before COVID-19

The problem of unnecessary detention before trial predates the pandemic. Despite the immediate, severe consequences of being locked up before trial, the Supreme Court has not set any clear timeline for how soon after arrest the government must bring a criminal suspect before a judge, file formal charges, or appoint a lawyer if the suspect cannot afford to hire one. As a result of this, in the words of law professors Pamela Metzger and Janet Hoeffel, “Across the United States, thousands of newly-arrested people disappear. They languish behind bars for days, weeks—or even months—without ever seeing a judge or an attorney.”

Detaining a defendant before trial is, in our constitutional system, meant to be an anomaly.

The Supreme Court has held that the right to counsel “attaches” at the first adversarial court hearing, that counsel must be appointed within a “reasonable” time afterward, and that counsel must assist in “critical stages” of a legal case. But the court has not specified what counts as a reasonable time or a critical stage.

Most states require that a defendant be brought before a judge or magistrate (a court employee who handles lower-level cases) within 24 to 72 hours of arrest, though some exclude weekends and holidays from that calculation. Similarly, the federal government requires that a defendant be brought before a magistrate judge “without unnecessary delay.” But this is not considered a constitutional requirement, so people can wait for weeks or even months to see a judge—either because of exceptions in the statute, or because they simply fall through the cracks.

Initial court appearances, when they do occur, often fall far short of a meaningful hearing. Judges may address defendants en masse, or by video, instead of individually advising them of their rights or inquiring into their case or circumstances. And only a minority of states guarantee legal representation at the first bail hearing.

Both common sense and empirical evidence show that a bail hearing, where the court decides whether and under what conditions to release a defendant before trial, is critical to the outcome of a criminal case, and that legal representation is crucial in convincing a judge not to lock up a defendant because they are too poor to pay bail. Unrepresented defendants are not trained in the law governing pretrial release. As The Constitution Project described in our 2015 report Don’t I Need a Lawyer?, defendants without a lawyer “are usually unable to influence the judicial decision and may do grave harm to their fair trial rights” by inadvertently providing information that may strengthen the case against them, or by agreeing to waive important rights.

One study cited in that report showed that providing defendants with lawyers at their first bail hearing made them more than twice as likely to be released without bail, and more than twice as likely to receive lower, more affordable bail. The point at which counsel is assigned also has an enormous influence on the outcome of the case.

Pretrial detention places criminal defendants at a huge disadvantage. They are more likely to be convicted—especially by guilty plea, which is often the fastest way out of detention—and receive much harsher sentences than defendants who face similar charges but were able to buy their freedom before trial.

Pretrial detention places criminal defendants at a huge disadvantage.

The closest analog to the current crisis is the plight of pretrial detainees held in Orleans Parish Prison before, during, and immediately after Hurricane Katrina devastated New Orleans in 2005. About 6,000 adults and children were incarcerated in the prison complex when the storm hit. Within a few days, the sheriff's office had evacuated these pretrial inmates to prisons and jails all across Louisiana. Because some of them had not yet been charged with an offense, they were held without bond and without counsel. It would be months before many of them ever saw a lawyer or the inside of a courtroom. In many cases, their families did not know where they were for weeks.

When pro bono lawyers and law students (including one of the authors of this piece) eventually tracked down the inmates, they learned that many of those who had been detained in the months after Katrina had already served the maximum sentence available in their case, all while waiting for any court proceedings to begin. Many were held in state prisons for months on end for exceedingly minor offenses, like public drunkenness or failure to pay a fine. The overreliance on pretrial detention, prosecutors’ willingness to wait months before filing formal charges, and the lack of access to counsel was likely an unconstitutional combination, and was prevalent even before the storm hit.

Pretrial Detention During COVID-19

The hardships for people currently in pretrial detention across the country have multiplied during the pandemic.

First, there is the threat of the disease itself. There are no comprehensive statistics about the number of COVID cases or deaths in local jails, which have a chronically poor record in reporting inmate deaths. Most experts say that the toll has been heavy. In May, Reuters surveyed 20 of the counties with the largest jail populations, and found 2,700 confirmed COVID-19 cases among approximately 73,000 inmates. Even for those counties, that figure was “an almost certain undercount, because testing remains limited in many of those facilities,” according to Reuters. The number of COVID-related deaths in jails is also unknown.

Courts have been closed to most hearings for months, which has closed avenues for detainees’ release from custody. Grand juries have been suspended in many jurisdictions, and many states have waived normal deadlines for charging and indicting detainees. This includes New York, where in late March Governor Andrew Cuomo suspended a requirement that prosecutors release a prisoner if they cannot obtain a grand jury indictment within six days. Normally, about 70% of felony arrests in New York state do not result in a felony indictment, so suspending the deadline eliminated a major opportunity for release. Louisiana’s governor also suspended deadlines for prosecutors to file charges against jailed defendants, raising the possibility of indefinite detention. Other states have also extended their arraignment deadlines.

Jails around the country have suspended in-person family and legal visits to reduce the spread of the virus. In many places, detainees have spent 23 hours a day locked in their cells to reduce transmission of the virus, effectively placing them in solitary confinement for weeks or months. (Prolonged solitary confinement causes enough damage to mental health that the United Nations considers it a form of torture.) Telephone calls have also been limited, and in some cases cut off entirely. When phone calls are available, they often take place in common areas, or are monitored by guards, making it impossible for defendants to speak confidentially with their lawyers.

COVID-19 has made the situation for pretrial detainees much worse, threatening both defendants’ lives and their constitutional rights, and worsening the conditions under which they are held.

All of this has made it nearly impossible for lawyers to provide any meaningful defense. “I can’t visit my clients in jail without putting myself at risk,” wrote a Seattle public defender in March. “I can’t do site visits and interview witnesses. I can’t ask our social workers to meet with clients and put together treatment plans. I can’t negotiate with prosecutors in-person—it’s difficult to even get them on the phone.”

The pressure to plead guilty in return for the prospect of an earlier release from jail is even higher than in normal times. A public defender in Harris County, Texas, asked, “How can plea agreements be made without people feeling coerced into pleading guilty, just to get out of jail to be safe from the virus?”

“My client just totally fell through the cracks,” a Massachusetts public defender told a local news outlet. “I’m doing everything I can, and I just felt so helpless. I can’t imagine how my client felt.”

Detainees who have not been assigned counsel are at even greater risk of falling through the cracks—and by its nature, the problem is invisible to the court system and the press.

Federal Detention During COVID-19

In the federal system, money bail is rare, and lawyers are generally assigned before a defendant’s first court appearance. But the rate of pretrial detention is even higher than in state criminal court. Approximately 75% of federal defendants are locked up pretrial, compared to a 38% detention rate for defendants in state court.

Based on research by law professors Alison Siegler and Erica Zunkel, there is scant policy justification for the federal system’s habit of locking up defendants before conviction. Only 2% of federal arrests are for violent crimes, and fewer than 2% of federal defendants released on bail either re-offend or fail to appear in court.

According to federal public defenders, the detention rate has not significantly declined since the COVID-19 pandemic began. Federal public defenders wrote to Congress last month that “in contrast with numerous state and local jurisdictions, DOJ [the Department of Justice] continues to routinely oppose release, even in cases where the defendants have serious, undisputed medical conditions.” They noted, “In one jurisdiction, the government has agreed to release in only 8 out of 125 cases” between March 16 and May 11.

The U.S. Marshals Service, which oversees the detention of pretrial detainees at a network of federal prisons, local jails, and contract facilities, provides very little public information about how it is handling the COVID-19 pandemic. In response to the Project On Government Oversight’s (POGO) inquiry, however, the Marshals reported that 1,213 of the approximately 57,000 prisoners in Marshals’ custody tested positive for COVID-19 as of June 8.

According to data provided by the U.S. Marshals, the highest numbers of positive tests have been recorded at the facilities housing detainees in New Mexico, with 243, and western Tennessee, with 321. Four pretrial detainees in Marshals custody have died due to COVID-19, including 56-year-old Alonzo Garza-Salazar, who was being held at the Joe Corley Detention Center in Conroe, Texas. (The Marshals’ statistics on COVID-19 testing exclude the approximately 9,500 federal pretrial detainees held in Bureau of Prisons facilities.)

There is also an ongoing outbreak at the largest U.S. Marshals jail in the country, the Central Arizona Florence Correctional Complex. Operated by the private prison company CoreCivic, the jail currently holds over 3,000 federal pretrial detainees. At one point, over 400 of them were in quarantine after being exposed to COVID-19. According to the data the Marshals provided POGO, as of June 8 just 44 of the detainees in Arizona have tested positive for the virus.

A court declaration from Christina Woehr, a federal public defender who has clients at the Arizona jail, describes the dangerous limbo that federal detainees face. One of Woehr’s clients was arrested in February, and still had not been indicted as of early May. Two other clients of hers had been arrested for very minor violations of their conditions of release from pretrial detention: in one case, for possession of a tobacco product, and in another, for walking outside of his apartment for 20 minutes, though he remained within the apartment complex.

The right to counsel, through which all other rights are protected, cannot be realized under the present conditions.

According to Woehr’s declaration, she and other defense attorneys had only one short phone call with clients before their initial appearances, which disconnected automatically after 15 minutes. Follow-up legal calls or video conferences were also limited, and were often canceled, which, when combined with case delays, left clients “frustrated, frightened, and feeling abandoned.” All of this was in addition to fear of the virus in a facility where social distancing was impossible, without adequate access to cleaning supplies, masks, COVID-19 testing, or medical care more generally.

The thousands of federal pretrial inmates held in Bureau of Prisons facilities faced even worse conditions during a nationwide prison lockdown that began on June 1 in response to anti-police-brutality protests across the country. (That lockdown has since been lifted). In a full lockdown, prisoners are confined to their cells or housing units for 24 hours a day, and lose access to telephones and video calls. Nationwide, Bureau of Prisons facilities have reported a 70% infection rate among those who have been tested.

The availability of testing, or lack thereof, also affects the justice system’s ability to protect rights afforded by the Constitution. Without robust, universal testing in jails and adequate testing in the population, attorneys cannot safely visit clients, interview witnesses, or attend court hearings.

In short, the right to counsel, through which all other rights are protected, cannot be realized under the present conditions.

How Can We Fix This?

Much like Hurricane Katrina amplified the injustices created by an already failing criminal legal system, COVID-19 has exacerbated the problems created by the nation’s unnecessary and often unconstitutional reliance on pretrial detention. The need to ensure that defendants, who are innocent until proven guilty, do not languish in jail simply due to their inability to afford bail or a lawyer, is made all the more urgent as the pandemic spreads through jails and prisons like wildfire.

Below are our recommendations, many derived from The Constitution Project’s 2015 report Don’t I Need A Lawyer?, to prevent the spread of the coronavirus among the pretrial population, as well as to ensure jurisdictions do not impede the constitutional rights of the accused in pretrial detention.

Preventing the Spread of COVID-19 Among Pretrial Detainees

  • Law enforcement officials should avoid unnecessary or mass arrests, particularly arrests of non-violent offenders or of non-violent protesters exercising their First Amendment rights.
  • Courts should triage pretrial hearings, relying on a presumption of pretrial release without money bail for people accused of misdemeanors and non-violent felonies and for those who are medically vulnerable.
  • All jurisdictions must ensure that all people in detention have a means of promptly, safely and confidentially communicating with attorneys.
  • Delays in grand jury proceedings should not excuse or delay review of evidence by prosecutors in order to determine formal charges. There should be no “temporary” suspension of constitutional obligations or criminal procedure rules, such as discovery and timely disclosure of evidence favorable to the defendant (commonly known as “Brady material”).
  • Courts should promptly consider writs of habeas corpus challenging violations of pretrial constitutional and statutory rights.
  • Jails and prisons must ensure proper social distancing and universal access to personal protective equipment and cleaning products.
  • Ongoing, universal testing must be available to all detained persons and staff, as well as medical care in line with community standards.
  • Jurisdictions should publicly report test results, hospitalizations, and deaths. Any deaths in custody should be fully and independently investigated.
  • All jurisdictions should return to in-person attorney visits and court hearings as soon as it is safe to do so.

Upholding Pretrial Detainees’ Rights in All Jurisdictions

  • Jurisdictions should set a strict deadline for initial court appearance and bail hearings after arrest, and appoint counsel prior to the hearing.
  • Jurisdictions should also ensure that prosecutors review the evidence against a criminal defendant to determine whether to formally bring charges against them or release them, within seven days of arrest.
  • First appearance hearings should be held in public and should provide the opportunity for defense counsel, pretrial release services representatives, and family members to present information supporting the defendant.
  • Judicial officers should order the least onerous condition of pretrial release, taking full consideration of factors listed in bail statutes, including indigent and low-income defendants’ financial resources.
  • Jurisdictions should use savings realized through reduction in jail populations to provide the necessary resources for public defenders and appointed counsel to effectively represent defendants at initial bail hearings.
  • The federal government and state governments should engage in increased data collection regarding pretrial representation and outcomes, particularly relating to arrest, charge, declination, dismissal, or other disposition, as well as on the time of assignment of counsel in each case.

Upholding Federal Pretrial Detainees’ Rights

  • Congress should amend the federal Bail Reform Act of 1984 to eliminate or narrow presumptions of detention; clarify the evidentiary showing required to prove risk of flight; and eliminate monetary conditions for release.