What does it mean for an individual to have a meaningful right to a speedy trial when the whole world seems to be on hold? How long can we ask someone to wait for justice in a situation when everyone is asked to be patient? As the United States approaches two years of life in a holding pattern, it is time to focus on how we can best serve those caught up in the justice system, even at times of emergency.
The challenges of guaranteeing constitutional rights in the time of coronavirus
Even as much of the world has shut down, some aspects of life simply have to carry on. But, in some instances, the collision of constitutional rights with coronavirus necessity has stretched systems to the breaking point. One area in which this can especially be seen is in the realm of criminal law. At the federal level, the right to a speedy trial is governed both by constitutional requirements, which set minimum standards, and by the Speedy Trial Act, through which Congress has delineated a specific timeline for trials. However, although the right to a speedy trial is guaranteed by federal law, the majority of criminal prosecutions take place at the state level. States face different challenges in seeking to bring defendants to trial, and with Covid-19 complicating things, we may see even sharper contrasts. Some states have remained relatively open throughout the pandemic, while others have taken greater precautions. Since the majority of the Covid-19 response took place at the state level, we should expect to see different outcomes for defendants seeking to be brought to trial depending on the responses of their states.
Defendants who were scheduled for trial in 2020 are now set to wait for another year before they see the inside of a courtroom. One court in Pennsylvania estimates that it could take them up to two years to clear the backlog of cases that has built up during the last year. Meanwhile, in Orange County, California, the right to a speedy trial is on an indefinite pause; officials have yet to develop a timeline for when they plan to resume holding jury trials. This shutdown isn’t without critics, even from within the judiciary: a judge in the Central District of California has dismissed several cases due to his belief that the defendants in the cases have been denied their constitutional right to a speedy trial. In Illinois, the Supreme Court has “essentially suspended speedy-trial deadlines” as fears around the coronavirus continue to linger. The National Center for State Courts has suggested that it might be justifiable to postpone trials, but not to cancel them.
Does Zoom offer a way forward?
Some jurisdictions have made moves to ease concerns about the right to a speedy trial by offering defendants trials via Zoom. But while Zoom may be the right answer for many businesses suffering from lockdowns, it’s unclear that it can be an effective remedy for the judicial system. Given the newness of the technology in the judicial system, it is understandable that some defendants may prefer to wait until they can be guaranteed an in-person jury trial rather than take their chances with Zoom. Commentators have noted that the Zoom option essentially asks defendants to choose between which right they prefer to exercise: the right to a speedy trial or the right to confront witnesses against them. It’s also worth noting that not all courtroom occurrences are equal under federal law: it may be permissible to conduct grand jury proceedings virtually, but more problematic to conduct full trials in this manner.
Precedent for trial continuances in times of emergency
In December 2020, the National Center for State Courts issued a memo arguing that the delay of trials during the Covid-19 pandemic is probably justified under current law. Indeed, this is not the first time that justice has been delayed due in part to an emergency situation. Courts have previously approved trial delays caused by the eruption of Mt. St. Helens and the 9/11 terrorist attacks. Courts in at least one state also closed during the flu pandemic of 1918—though even that shutdown was not as long-lasting as the one that has so far been occasioned by the coronavirus pandemic. The Supreme Court of the early 20th century delayed its sessions for about a month in response to the 1918 flu pandemic. Fortunately, the 21st century Supreme Court seems to have weathered the coronavirus pandemic more smoothly than most courts across the nation.
The consequences of justice delayed
It’s easy to see where fears around the health consequences of holding trials come from. Coronavirus death tolls continue to rise at alarming rates, even as cases finally appear to be falling as the vaccination rolls out. But while the health consequences are serious, the consequences of long-delayed trials are severe as well. Some criminal defendants who are unable to proceed to trial find themselves lingering in jails, with negative impacts on their employment status, relationships, and health. Even those who aren’t jailed pre-trial might find themselves struggling mentally with the burden of an unresolved trial hanging over their heads.
The pain of delayed trials is felt not only by defendants: crime victims and their families are also suffering as the long-awaited resolutions to their cases take years to unfold. It’s this concern, in part, that has motivated courts in Salt Lake City to begin an experimental pilot program to resume jury trials.
Trial delays also impact civil plaintiffs. While their deprivation of rights might not be as notably severe as the deprivation suffered by criminal defendants, there is a high risk that civil plaintiffs with strong claims might feel pressure to accept lower settlements than they would ordinarily take.
A non-traditional emergency
After a year, it’s quite clear that the coronavirus crisis is unlike any emergency we’ve seen so far. Unlike the emergency situations presented by terrorist attacks or volcanic eruptions, the emergency posed by the coronavirus truly has no end in sight. It is one thing to ask defendants to wait a few extra months for the vindication of their rights—in certain circumstances, a fair balancing of public policy needs and the rights of the accused may truly fall on the side of delay. It is another thing entirely to ask defendants to wait indefinitely. In lieu of waiting indefinitely, some defendants may even opt to accept plea deals which they would reject under better circumstances. This could leave many with a permanent criminal record, obtained due to the circumstances of the pandemic.
Even those who truly believe that it would be unreasonable and unsafe to hold jury trials during the pandemic should be prepared to ask themselves whether they are comfortable with the precedents being set by this prolonged delay. It’s not particularly difficult to imagine a future emergency that poses somewhat less of a risk than the coronavirus being used to justify delays in other situations. If it’s justifiable to delay trials for a year during the coronavirus, might it be justifiable to delay them by six months due to wildfires, or for plaintiffs to feel pressured into accepting Zoom trials during a particularly virulent flu season?
On a more optimistic note, it’s also possible to imagine a world where, rather than making things more difficult for people awaiting trial, technology could improve access and outcomes. If trials are not conducted at courthouses, but broadcast to the world, actors might be held more accountable. If lawyers, judges, and defendants alike are comfortable interacting virtually, perhaps we don’t need to be concerned about virtual witness examinations. For indigent defendants for whom accessing the courtroom is a burden that takes them away from their jobs and their families, Zoom could provide an opportunity to access justice without fear of losing out on wages. It’s too soon to tell, but it’s clear that there are could be advantages to conducting proceedings online—and that some courtrooms will never go back.
It’s too early to tell what the long-term effect of the coronavirus will be on speedy trial rights, but to a certain extent, the genie has been let out of a bottle. We now know that the 6th Amendment right to a speedy trial is more contingent and negotiable than we might have imagined back in 2019. The only question remaining is where the boundaries lie.