Washington Lawyer - September/October 2020 - 39

TAKING THE STAND
having to decide how to keep people safe in
a remote work situation.
Prosecutors started to wear masks, socially
distance, limit the number of people physically
at work, and design remote work schedules.
Fortunately, electronic case management
systems limited case disruptions. Where strategizing with trial partners and colleagues
ordinarily happened in the courtroom or
office, many of us still sought those treasured
sessions by scheduling weekly video chats
with division partners. Remote network access
and reduction of in-court hours provided
additional opportunities for training, case
development, and defense negotiation.
To postpone jury trials while ensuring constitutional protections, courts around the country
tolled speedy trial7 and expedited hearings for
incarcerated individuals for nonviolent offenses
or alleged probation violations.8 Most emergency matters were heard by phone or video,
or under strict social-distancing guidelines.
Prosecutors broadened remote work access to
enable victim contact, defense attorney negotiation, and remote hearings from home.
The courts' release of pretrial detainees held on
nonviolent offenses9 resulted in two significant
developments: state dismissal of low-level
criminal offenses and the stipulated release of
incarcerated individuals. Importantly, stipulations helped to avoid bond hearings and
increased defendants' access to their attorneys.
They also forced prosecutors to consider both
exposure to COVID-19 and the defendant's loss
of employment as additional bond factors.

branches and the judiciary are profoundly
intertwined, and thus should collaborate to
determine consistent policies.
Create Collaborative Common-Sense Plans.
Local prosecutorial offices can create a plan
with public defenders that anticipates healthrelated quarantines or social distancing. Plans
should include ways to minimize person-to
person contact between attorneys, prioritize
discovery, and postpone non-emergency
hearings. As courts reopen, face coverings
should be mandatory, with court staff providing them to anyone entering without
a mask.

The volume and discordance of
rapidly changing information
about the virus, coupled with
delayed government response,
set the stage for criminal
lawyers and prosecutors having
to decide how to keep people
safe in a remote work situation.

1 See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)
("Throughout our history the several States have
exercised their police powers to protect the
health and safety of their citizens"); see also ncsl.
org/research/health/public-health-chart.aspx.
2 Connors, K., "Federalism and Contagion:
Reevaluating the Role of the CDC," 12
ConLawNOW 75 (2020), available at https://
papers.ssrn.com/sol3/papers.cfm?abstract_
id=3555888.
3 Haffajee, R. L., J.D., Ph.D., M.P.H., & Mello, M., J.D.,
Ph.D., "Thinking Globally, Acting Locally - The
U.S. Response to Covid-19," The New England
Journal of Medicine, available at nejm.org/doi/
pdf/10.1056/NEJMp2006740?articleTools=true.
4 statista.com/statistics/1103185/cumulativecoronavirus-covid19-cases-number-us-by-day.
5 Sanger, D. E., et al., "Before Virus Outbreak, a
Cascade of Warnings Went Unheeded," New York
Times (March 19, 2020).

Our world has changed, perhaps in permanent
ways. I propose practical changes that, if
implemented now, can minimize the
uncertainty and promote fairness in our
criminal justice system post-COVID-19.
Follow Science. I suggest the federal government take the lead in combating health crises
and create examples based on science for
states to follow. State and local executive

COVID-19 has exposed longstanding issues
within the criminal justice system. Prosecutors,
whose goals are public safety and equal
justice, must reckon with the fact that we are

PROMOTING JUSTICE POST-PANDEMIC

Amanda Leigh Torres is an assistant state
attorney in Tampa, Florida. Previously, Torres
served as law clerk to D.C. Superior Court Chief
Judge Robert E. Morin. The author gives special
acknowledg-ments to her mentor, Associate Judge
Zuberi Bakari Williams of the District Court of
Maryland, for his contributions to this article.

NOTES

Make Inmate Safety a Priority. The United
States has the highest incarcerated population
in the world.10 Incarcerated persons are as
deserving of protection as anyone else, yet are
unable to socially distance or quarantine during
pandemics. Because of these difficulties,
I suggest prison bureaus and law enforcement
agencies issue broad action plans that prioritize
inmate safety. These plans should include
funding proposals for personal protective
equipment, improvement of physical spaces,
and logistical frameworks for transportation
to and from hospitals and psychiatric facilities.
Going forward, prosecutors must be more
thoughtful and critical of their positions on
pretrial and early release for non-violent and
traffic-related crimes.

Prosecutors canceled jury trial subpoenas for
witness appearances in trials and evidentiary
hearings. Although jury trials and dispositive
motions were postponed, courts moved
arraignments, bond hearings, and emergency
matters to phone and video. The uncertainty of
when or if things would ever return to normal
prompted parties to resolve cases earlier.

instruments in a system that needlessly
incarcerates people. By using our response
during this pandemic as a guide, we can
promote public safety by caring for the lives
of accused or convicted individuals.

6 See Governor DeSantis' remarks, available at
clickorlando.com/news/local/2020/03/04/nopositive-coronavirus-cases-in-orange-countydozens-under-observation.
7 Wiley, COVID-19 State Responses, available at
wiley.law/alert-COVID-19-State-Responses.
8 See Persons Incarcerated or Imprisoned in
Montgomery County Administrative Order
(April 15, 2020), issued by Administrative Judge
Patricia Mitchell, available at courts.state.
md.us/sites/default/files/import/coronavirus/
montgomerycountyinmateorderdc.pdf.
9 Responses to the COVID-19 Pandemic, available
at prisonpolicy.org/virus/virusresponse.html.
10 ACLU, "Flattening the Curve: Why Reducing
Jail Populations Is Key to Beating COVID-19,"
available at aclu.org/report/flattening-curvewhy-reducing-jail-populations-key-beatingcovid-19?redirect=covidinjails (citing 2018 U.S.
incarceration data from the Bureau of Justice
Statistics and 2018 world incarceration data from
the Institute of Criminal Policy Research).

SEPTEMBER/OCTOBER 2020

WASHINGTON LAWYER 39

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3555888 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3555888 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3555888 https://www.nejm.org/doi/pdf/10.1056/NEJMp2006740?articleTools=true https://www.nejm.org/doi/pdf/10.1056/NEJMp2006740?articleTools=true https://www.statista.com/statistics/1103185/cumulative-coronavirus-covid19-cases-number-us-by-day/ https://www.clickorlando.com/news/local/2020/03/04/no-positive-coronavirus-cases-in-orange-county-dozens-under-observation/ https://courts.state.md.us/sites/default/files/import/coronavirus/montgomerycountyinmateorderdc.pdf http://www.prisonpolicy.org/virus/virusresponse.html https://www.aclu.org/report/flattening-curve-why-reducing-jail-populations-key-beating-covid-19?redirect=covidinjails https://www.aclu.org/report/flattening-curve-why-reducing-jail-populations-key-beating-covid-19?redirect=covidinjails https://www.aclu.org/report/flattening-curve-why-reducing-jail-populations-key-beating-covid-19?redirect=covidinjails

Washington Lawyer - September/October 2020

Table of Contents for the Digital Edition of Washington Lawyer - September/October 2020