Court actions to address COVID-19 could further spread COVID-19

This past weekend, California Chief Justice Tani G. Cantil-Sakauye, with the approval of the Judicial Council, took several extraordinary actions to address the impact of COVID-19 on the courts throughout the state. In the opinion of the California Public Defenders Association the actions taken will result in the further spread of the virus into our homes and communities. CPDA and other organizations provided timely comments to the Judicial Council explaining why the proposal violated the constitutional rights of our citizens and proposed alternatives that would help stop further spread of the virus in our jails and in our communities. Not only were our comments not addressed during the hearing, but they do not appear to have been considered.

Instead under the order promulgated more people will be held in local jail facilities for longer periods of time without judicial review. They will be held in local and county jails in close quarters where the spread of the virus is beginning to explode. Once released from custody, these individuals will be more likely to have contracted the virus because of the extension of the time limits. All these conditions increase the risk of the spread of the virus among those who work in the criminal justice system and those held in the jails.

The chief justice and the Judicial Council could and should make it their priority to play a critical role in reducing the density of the jail population. Instead of extending the time to bring those detained in our jails before the court, the order should have required all courts in the state to release on their own recognizance individuals arrested for minor offenses and those who have less than a year left to serve in custody. Unfortunately, we have become aware that some courts in this state continue to hold people in jail for minor offenses such as driving without a license and petty theft, and in some instances have refused to open their courtrooms at all. Courts in every county must be ordered to remain open to hear bail motions and to timely review the reasons for arrest and to consider the release those who should be released.

Our association believes that we must work together to ensure the safe operation of the courts, consistent with the advice of the medical community and public health experts. We believe that court operations can and should continue and that social distancing is possible in courtrooms and the hallways of courthouses if the jail population is significantly reduced. We further believe that it is crucial during this public health emergency to protect clients, court staff, jail personnel, lawyers and judges and to ensure that safe practices are implemented. Common sense measures should be put in place so that everyone who enters a courthouse is screened for fever or cough, seated at a distance of six feet between people, provide remote public viewing, allow out of custody defendants to forego appearing in person, provide sanitizer throughout the courthouse, and clean courtrooms and holding cells daily.

When our courts allow for the suspension of basic constitutional and statutory rights of its citizens, citing the exigency of a public health emergency we all suffer. In 1989, Justice Marshall warned, "(h)istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure ... when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it."

CPDA stands in alliance with public defenders throughout the state and nation in protecting the rights of indigent clients accused of crimes. CPDA is committed racial justice and to treating all those accused of criminal behavior with dignity and respect. We implore the chief justice and the Judicial Council to rescind the suspensions and extensions of the right to speedy hearings, and to impose the common sense protections we have recommended to protect all those involved in the criminal justice system in our state to help prevent the spread of this deadly virus. 