Washington Lawyer - September/October 2020 - 38

TAKING THE STAND

The Prosecutorial
Implications of COVID-19

"Taking the Stand" appears periodically
in Washington Lawyer as a forum for
D.C. Bar members to address issues of
importance to them and that would be
of interest to others. The opinions
expressed are the author's own. For
submissions, email editorial@dcbar.org.

By Amanda Leigh Torres
framing reforms around the incarcerated population, prosecutors contribute to and push for
overall fairness in criminal justice.

THE CHALLENGE TO FEDERALISM

iStock

The federal government's authority over public
health is limited by states' police powers1 and
the Tenth Amendment, which enables the
states to promulgate and enforce laws in
furtherance of the public health.2 Although the
federal government cannot commandeer state
action, in times of emergency the federal executive branch can broaden its power and
authority to protect human life.3

very profession seems to have changed for the foreseeable future
because of the COVID-19 pandemic, which introduced a unique set
of problems to the criminal justice system. Trial lawyers now have
to navigate the complexities of daily job responsibilities from home.
Attorneys in the criminal justice system must work remotely while
keeping communities safe and ensuring access to justice. But before
courts, prosecutors, and public defenders began litigating cases on the
phone and through Zoom, they looked to federal and state executive
branches for proactive guidance on the public health crisis.
Without clear direction from the federal government, states took varying approaches to
stem the virus's spread, and today the statistics
demonstrate that fact. As state executive
branches issued social-distancing guidelines,
stay-at-home orders, and other emergency
protocols, the judiciary followed suit, and
soon courts limited in-person proceedings
and nonemergency matters. Lawyers working
in the courts every day had to adapt to the new
circumstances. The practical transformations

38 WASHINGTON LAWYER

shed light on ways prosecutors can be instruments for equitable change going forward.
Based on my own observations as a prosecutor,
I recommend proposals and reforms for
creating a more adaptable, informed, and
fair system of justice.
First, I discuss how COVID-19 created a federalism challenge for prosecutorial offices around
the country. Second, I argue that the criminal
justice system response forced a shift in the
role of the prosecutor. Third, I suggest that by

SEPTEMBER/OCTOBER 2020

When the federal government declared a
national emergency on March 13, the United
States had 1,264 reported cases of COVID-19.4
On March 16, the White House issued socialdistancing guidelines, followed days later by its
"30 Days to Slow the Spread" guidelines. State
governments, with varying degrees of decisiveness, initiated their own mitigation efforts,5 and
some judiciaries took precautionary measures
while maintaining access to justice. D.C. Superior
Court, for example, changed its operating
status, limited courthouse visitors and staff,
and postponed non-urgent matters, including
evictions.
In states with continuity between the executive
and judiciary, prosecutors could implement
safety guidelines and protocols within their own
offices and prepare staff for the changes to
court proceedings that adhered to state safety
orders. For instance, on March 13 D.C. Attorney
General Karl A. Racine announced that the
Office of the Attorney General would shift to
telework. However, in places like Florida, the
state attorneys had to make critical decisions
for employee safety even as the governor
announced on March 4 that the risk of contracting the virus was "low for Floridians."6

A SHIFT IN PROSECUTORS' ROLE

The volume and discordance of rapidly
changing information about the virus, coupled
with delayed government response, set the
stage for criminal lawyers and prosecutors

Washington Lawyer - September/October 2020

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