So I'm here with Meredith Rountree, colleague, my Northwestern colleague. She's a professor of law at Northwestern University Pritzker School of Law, where she teaches criminal procedure and many courses in the criminal justice area. Seasoned and experienced lawyer, and a passionate advocate, and someone who's followed these issues rather closely. So thank you, Meredith, for joining me. It's my pleasure. So let's turn directly into this and the topic is the COVID-19 crisis and situation with respect to criminal law. In the criminal justice system, at present, and by present, I really mean the last few weeks, last few days and with your crystal ball, the coming weeks and months, what do we see in the criminal justice system and, in particular, focusing first on the courts? I think it's impossible to underestimate the impact of the pandemic on the criminal justice system. It is really on a soup to nuts, from arrest to prisons having an immense impact. Starting with the court makes a lot of sense. So some of the legal issues that courts are having to, or either dealing with now, or will be dealing with in the aftermath, some of them may be familiar, like speedy trials, statutes of limitations on prosecutions, rights to a public trial. Those are issues that are going to be litigated really as this is over. But essentially what's happening is that courts have, for the most part, shut down their trial processes for criminal cases and certainly for civil cases. So people are not proceeding to trial in most jurisdictions. People may not be being indited or the government is not able to pursue charges because of difficulties of the current situation. Can I jump in just on that point? Absolutely. Grand juries. Are they convening grand juries now? I know that's only a sliver of the criminal justice system, but an important part. I don't know. Just this morning, I understood that some federal grand juries were seeking permission to have some kind of convening. Even if you're in the federal jurisdiction and you're in the New York, you're still going to be constrained by different public health measures about staying at home and limitations on number of people in the room. There can be some digital presence, just like we're teaching. But for much of the criminal system, those digital options are not available or they're not really refined. So part of what we might see as a result of the pandemic is a push towards some more to digitalization. But if you can't charge people, if you can't convene a grand jury, you can't charge people or corporations, then that can implicate statutes of limitations on prosecutions. The politicos reported that the Department of Justice has proposed to Congress suspending or extending certain statutes of limitations. Our couple of Federal Courts have decided to do that. Questionable legality, but courts, in general, are trying to figure out what to do with the situation when you can't convene grand juries. Let's say, you can't bring in juries to hear cases and decide cases. In Cook County, people are going to court for very good public health reasons, but they're not going to court even to argue motions where it's just the lawyers and the judge or to exchange discovery. Sorry to interrupt. Do we have any evidence from just last few weeks of folks not being charged, basically being released in low-leve? We'll talk about incarceration afterwards, but just on the charging front, because they're low-level offenses, law enforcement have other things to do and all of that had happened. If we've seen that, is there a development of priorities of which kinds of cases are being charged and which aren't? I can really only speak to what I've been reading in the paper that came through other sources about what's happening in Cook County. A couple of different things are happening. Reporting have seen a decrease in lower-level offenses by the police, they're deciding people they might ordinarily arrest and maybe take to booking, they are opting against that because of the fact that many of the jails really in a terrible situation. The way it would ordinarily work is if you're arrested, and it can be, for many situations, people will go to a judge and the judge will have to decide, "Can this person be released on bonds or just under say-so that they're going to show up in court or must they be put in the jail because they're a danger to the community or they're not going to show up for court?" This is it. As you can imagine a very active area right now of trying to bond out as many people as possible. There is an incipient backlash now maybe more on the state level than on the county level, concerns about who is being released and I think that there is a sense there. There's probably a core group of people, most people think cannot be released from the jail. If this goes on for awhile, let's focus for a moment on juries. Do we have any precedent in the best of your knowledge of remote juries? I mean, could you even conceive of trials being held with juries not being together? Answering your last question, no, no. I think it would be so hard to do. I think jurors are there to make all sorts of credibility determinations. So they need to be looking at people. See the look on the face of the witnesses in there. Yeah, exactly. Yeah. I was just imagining what would it be like to have a trial or something where everybody wearing masks. It's just like I can't know what's happening if we aren't through with this mess. So we are very far, I think. Also, just aside from the basic technological props, I think it would require a very different setup to have jurors do it by video. What are they supposed to be looking at? The witness, the defendants, what's going on at the courtroom, that seems very remote to me. So this is related, but to pivot a little bit from the practicalities or the impracticalities of conducting a trial in that way, understanding the jury trials are only part of the justice system, some of the constitutional issues. So the right to a speedy trial might be impacted, maybe we'll see some litigation from there. The right to confront witnesses. Could you give us your take on how plausible you think those constitutional claims are, if God forbid, we continue for a while in a situation in which trials can't happen or there's still the possibility of remote trials? Yeah. I think the speedy trial rights exist essentially on two planes. One is that there's a constitutional right to a speedy trial, and there's also statutory rights to a speedy trial. The constitutional right is really pretty big. I don't think that there is a strong sense that people will be able to proceed on a constitutional claim given the comprehensive nature of the pandemic. It's shutting everything down. I think the statutory issues are being resolved by, for instance, the highest state courts on California and also Illinois. The California and Illinois Supreme Courts issued a ruling, essentially putting everything on hold. At least in Illinois, in the sense that there's not a lot that can be done to challenge that, that they have the authority to modify the statute under these circumstances. Arguments may evolve. I think that one of the biggest challenges is going to be in the legal criminal justice system but also beyond, just like how we unwind this? When do we decide it's safe to go to trial? What sort of half measures are possible? I think trials, in particular, are difficult because as you mentioned, the right to confront witnesses, there's a strong body of law that needs our in-person confrontations. Just like the jurors need to see the witnesses, the witness needs to see the defendant in person. A lot of our trial idea is very much a show up and see how people respond. Correct. There's also all these cul-de-sac issues, I mean, more than that, there are important issues. But, for example, the availability of witnesses, right? You could have an in-person scheme when things come more back to normal. But witnesses who were reticent to appear in proximity with others in the courtroom, what is that do to their rights and interests of criminal defendants and the state? Yes. Even really thinking on mechanical dimensions tools like being able to serve someone, to compel them to come to court, all of that is complicated right now because of limitations on our ability to go out, the law enforcement to be tasked with those kinds of responsibilities. There's a lot going on that makes all of this much harder and sometimes impossible. Can I touch very briefly with you on the on the appellate scheme? I've noticed that a number of the state courts, less so, maybe the federal appellate courts, although that's moving too, are holding proceedings remote, hearings remote. So do you have any qualms about the rights of convicted criminal defendants now being having their oral arguments on appeal held before judges remotely? I can't say I do, and maybe because I'm so acculturated by now to doing things remotely. I think that the ability to file the legal pleadings, to have judges read those and have argument before, I think that that can fit fairly well with remote media. Certainly, with incarcerated people, they are not present at those arguments. So I don't see a particular problem with that, and I think it's good to be able to keep moving forward with those appeals as long as the lawyers are able to work on the cases in which judges are able to work on. It may be that criminal lawyers working on appeals and in trials have to develop a different skill set in some respects, and that's a segue. I want to ask you, maybe you could reflect a bit on what the challenges the COVID-19 represent for criminal lawyers in the system? I think they are probably more acute for lawyers who do different kinds of work. So for appellate lawyers, it's not necessarily just thinking about it particularly different. You do legal research online, you write your pleadings on a computer and you file them electronically, people read them, and then you could argue online. There are two parts though of the criminal justice system. One is the trial section, but also in post-conviction review, which happens after appeals. Both of those are very fact development intensive phases of the legal proceedings. Those lawyers are really particularly effective right now. You're supposed to go out and conduct investigations, but it's very hard to have the ACL people to go out and visit the people, witnesses about what's going on. Travel is impossible. I had a fantasy of going to in a case I used to work on, to interview a series of incarcerated witnesses this summer, and that is not going to happen. It's not going to happen. I can't fly there and I can't get into those prisons and I'd be crazy to do that. It's hard to gather documents. The essential offices are closed or they are on real skeleton staff. So trying to get certain crucial documents, that's not going to happen either. Defense lawyers are not having in-person meetings with clients incarcerated in many jurisdictions and they're even having difficulty getting to the phone and video access the client. So it's one thing to be in touch and talk about issues but sometimes defense lawyers need to show clients documents. Say it's like, this is the discovery we're getting, what do you think? Where can we go with this? This morning I was looking at a recent motion by the lawyers for the man charged with shooting people in the Pittsburgh synagogue and killing people in the synagogue. They asked for, and they were granted suspension of all their pending deadlines because for the reasons I've mentioned, they can't talk to anybody, they can't see their client, they can't conduct investigation. It's just that on top of the usual problems of running your own home school and coping with illness? Sure. Yeah. I'm glad you mentioned the latter. Just to touch on this in passing, of course, given the widespread infection rate and all of that, criminal lawyers having their own health challenges and the health challenges their family will obviously implicate issues of representation right of clients during this period. Actually, right before this call, I heard a really discouraging, it's not even a statistic, but just word that many public defenders in Cook County have had exposures to the virus and they're not alone. Absolutely. Let's shift to the incarcerated. It's just a gruesome aspect, there's no other word for it is the predicament of folks obviously in proximity with one another, incarcerated for whatever particular period of times, whatever crimes, where there's clearly been a spike. Maybe we don't even know how large that is, but the predicament is really large. Can you talk us through how our criminal justice system is or is not dealing with the special problem of the incarcerated? It is really a disaster. I am overwhelmed if I think about it too closely. There are a couple of big points I want to make is that first is, it is terrible for people who are incarcerated, but also for everyone who is working in those facilities. We always as much as we isolate people who are awaiting trial or who are convicted and serving sentences, jails and prison are always part of our community because of the staff who are going in and out, the healthcare that ill prisoners are constitutionally entitled to, often that's going to be served in the community. So if a prisoner needs ICU care, needs a ventilator, that's happening in the community hospitals. So we really are all in this together. Certainly in the prisons they're high-volume facilities. Jails are somewhat different, but those are high traffic facilities, in terms of folks coming through. That's right. So jails therefore, mostly they are overwhelmingly a pre-trial population, they have not been convicted of crimes yet. They've just been arrested on probable cause. So they are there. There's also can be a lot of turnover because they're just waiting for bond to be posted. So normal times, people might only be in jail for one or two days before they're going in and out. That's also a consideration here, is there's a much more fluid population. Cook County Jail is a national hotspot. There are over 300 detainees and over 200 staff who have tested positive. Social distancing is not a realistic possibility except maybe at the margin with some staff. That's exactly right. The architectures of these facilities, both jails and prisons are all about housing as many people as possible within a fairly convened space. So I do believe that there are wardens and sheriffs who are trying to create better circumstances. But the fact of matter is the architecture is prohibited, there difficult institutions to keep clean under best of circumstances and there are a lot of resistance to providing soap and hand sanitizer, which we could talk about. Prisons are especially concerning because that is, to be geriatric in prison is when you're over 50 years old because the stresses of living in prison, and that is the fastest growing population that we have. In Illinois, a number of people have been released to a medical follow and they're still the process of making recommendations, but prisons do house an older, more valuable of population. They also tend to be more of rural places with a more stressed healthcare system. The House of Cards, they're need of medical treatment. If it's not provided in the prisons, then they can potentially overwhelm the medical facilities in the areas in which they are. That's exactly it. We have testing positive numbers, but they're just like in the rest of our world, the tests are reserved for people who are already manifesting symptoms and the informal reports we get is that the ability to test prisoners is not nearly to scale. Staff in some systems are being tested more, but prisoners, it's really dire for lack of testimony. So it's an overwhelming problem, but nonetheless, we seek to tackle it in various ways. So what can the law do about it? So let's start with maybe some of the more extreme solutions, which is release. There's been some efforts drawn to releasing folks in advance to the end of their sentences for non-violent offenses. I don't know how that's playing out, is that even a short-term strategy, say nothing of a long-term strategy? I think release is certainly the right thing to do, especially when we're talking about elderly prisoners with underlying conditions that make them vulnerable to severe illness. In terms of recidivism are not seen as acute. Yeah. I think the Bureau of Prisons has released about 1,000 people to home confinement. I think we need to approach the issue of people who are in for violent offenses, partly is even people who have committed violent crimes, they get old too and they get a lot less crime thrown as they get older. We know that after 40, people's risk of recidivism drops significantly, but we also have ways to get people and continue monitoring them. Electronic monitoring is an option to make sure that they're keeping home confinement, which is what all of us should be doing. So I think we should not be afraid of releasing people who have violent criminal histories, we should instead focus on the need to get them out of the liberties of deadly situation. I mean, these are variations on the same theme, but if we shift from policy solutions that could be implemented through bureau of prisons, administrative agencies, legislatures, there's also some litigation. Yes. ACLU among others, been very active in litigation on behalf of these prisoners. Are you optimistic or hopeful or I should have a less normative latent, what do you think of these claims that are being brought to a sick relief, which might be release? Which might be release and recognizing. It might be super hygienic staff. Spacing? Yeah. I think it's essential to have a litigation arm to this. I think that for instance, the governor can act more quickly in deciding to release people on furloughs or departments of corrections could work more quickly. But I think that that is not sufficient to keep the pressure on to do what you're saying, which is really give people access to soap, to hand sanitizer, to enable them to be physically separated from each other. Right now what they've done in many facilities is just lock people in their cells. But if you're double cell, that is not a solution and given how space is in prisons, that's also the not even necessarily a six of true six foot distance. I think litigation has been crucial in Illinois, the Cook County litigation is ongoing, but I think that there have been significantly more hurdles in the prison litigation, but those folks are indefatigable. Great. Well, thank you. There's many more issues that we haven't gotten to discuss and many more miles and miles to travel, but I really appreciate your perspectives on these issues. Absolute, it's my pleasure. Thanks.
