Jones & Bartlett Learning Criminal Justice Blog

    Punishment in the time of COVID-19: Balancing public health, safety, and punishment

    Posted by Kathryn Elvey on Jun 12, 2020 10:00:00 AM

    Surgery mask hang on barbed wire, pandemic, isolation and quarantine symbol. Iron fence and personal protective equipment on it.When coronavirus swept across the country, U.S. courts began to shut down. Hearings, trials by juries, and other court procedures were stalled to ensure the safety of all involved parties (e.g. defendants, witnesses, prosecutors, judges, etc.). This created a backlog of cases and raised concerns for court systems and accused individuals across the country. Although many types of hearings moved to teleconferences, the one type of trial that could not move is the jury trial.

    The Sixth Amendment of the U.S. Constitution guarantees citizens the right to a speedy trial and an impartial jury. Given the novel coronavirus limiting public gatherings, the ability to have a trial, let alone a jury trial, is impossible. States have stalled or canceled jury trials for an indefinite amount of time. For example, the state of New Hampshire courts website states:

    “In light of public health concerns arising over the coronavirus, please note effective April 16, 2020, all criminal and civil jury trials scheduled in New Hampshire Superior Courts have been canceled until further notice and will be rescheduled to later dates once normal court operations resume. This means there will be no jury trials until further notice.”

    This means that many individuals are not receiving the “speedy trial” as promised by the Sixth Amendment. This leaves accused individuals with a hard decision to make: take a plea deal, admit guilt for something they may not have done, and get out immediately on time served to avoid possible exposure to the virus, or should they wait for their day in court?

    While a plea deal would mean admitting guilt, one avenue that could be explored in this situation is an Alford plea. An Alford plea is when an accused individual admits prosecutors have enough evidence for a conviction, but they still refuse to admit their guilt. Typically, prosecutors do not like accepting an Alford plea because the accused is not taking responsibility for their actions by admitting fault or guilt, which may not bring peace of mind to the victims or their families. However, this may be one of the best options for accused individuals and prosecutors during this time as it avoids trial and possible exposure to the virus.

    While courts are currently struggling to adhere to the Sixth Amendment, jails and prisons are trying to avoid lawsuits for violating the Eighth Amendment. Some individuals incarcerated have argued that being locked up during the pandemic, where they are particularly vulnerable, is especially cruel. As such, prisons and jails, in not wanting to assume responsibility for the deaths of inmates, have let many non-violent individuals incarcerated out early, but this raises serious questions about balancing the rights of individuals incarcerated versus the purpose of punishment.

    So, what is the purpose of punishment? Simply, the answer often comes down to one of the following: retribution, deterrence (general or specific), incapacitation, rehabilitation, or restitution. Prison or jail is a way for accused individuals to pay their debt to society in a certain number of days or years. Yet, the issue that many prisons and jails face is: should someone be let out early to avoid getting the coronavirus, or should they have to continue to pay their debt? And why are non-violent individuals incarcerated if prisons and jails are willing to let them out for fear of a virus?

    The novel coronavirus continues to raise questions about the overall quality of the U.S. prison and jail system, which are already maxed out and overpopulated. The reality is that people with serious charges and sentences against them will not be released, even the more vulnerable (e.g. older or immunocompromised). Maybe it is time for massive prison reform (starting 30 years ago): how non-violent offenders are punished, how currently individuals incarcerated are treated, and what “punishment” really means.

    Society, Ethics, and the Law: A ReaderKathryn Elvey is the co-author of Society, Ethics, and the Law: A Reader. This first edition is an engaging, thoughtful, and academic text designed to help students make connections to ethical issues using real-world examples and thought-provoking discussion questions.

    Comprised of 57 original articles, topics range from traditional (police, courts, and corrections), to popular culture (rap, social media, and technology), to timely (immigration, gun control, and mental health).


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    Topics: Criminal Justice