I am writing this piece while sitting, alone, in my chambers at the Daniel Patrick Moynihan United States Courthouse in Lower Manhattan. I am one of several federal judges who have volunteered to come to the courthouse at least one day each week to deal with any emergency matters that cannot be handled remotely by other judges during the Covid-19 pandemic. Somewhat to my surprise, there have been relatively few such matters. With the important exception of jury trials, my court—the federal district court for the Southern District of New York, encompassing Manhattan, the Bronx, Westchester, and several more northerly counties along the Hudson—has been processing cases at a rate pretty close to normal.
This is in distinct contrast to many state courts—notably in New York, where they were essentially shut down from mid-March onward and are only now starting to move forward, remotely, with previously filed cases, and are still not accepting most new filings. The ability of federal courts to operate with something approaching normality is partly a function of our much smaller number of cases, but it is also a tribute to advance planning.
Because my court is close to Ground Zero, it was closed for about a month after the September 11 attacks, and we were determined not to let this happen again. Further disruptions in other parts of the country, such as Hurricane Katrina, brought home to the federal judiciary as a whole the need for emergency preparedness to assure continuity of operations. So the Southern District, and much of the federal judiciary generally, began planning for extreme emergencies, including pandemics, and periodically upgraded our plans to take account of new technology. As a result, when Covid-19 struck and we had to physically close the courthouse, we never stopped hearing cases. Our sister court, the federal district court for the Eastern District of New York (encompassing Brooklyn, Staten Island, and Long Island), has largely done the same.
Nevertheless, the pandemic has confronted our court with major new challenges, many of them shared with other federal and state courts. The most immediate is how to address applications from incarcerated prisoners seeking to be transferred from jail or prison to “home confinement.” Prisons are potentially fertile ground for the spread of the coronavirus, since social distancing is not practical, sanitary conditions are less than ideal, and medical assistance is limited. This is made all the worse by the scourge of mass incarceration, which has led to considerable overcrowding in a great many prisons.
Not surprisingly, then, my fellow judges and I, like many other judges throughout the United States, have received a large number of applications from federal prisoners seeking their release, either temporarily or permanently. Such applications typically take one of two forms. Those who are in jail awaiting trial because they were found to be substantial flight risks or dangers to the community (the two federal grounds for denying bail altogether) now seek reconsideration of their detention because of their enhanced risk of contracting Covid-19 and suffering severe health consequences or even death. Those who have been convicted and are now serving their sentences seek either permanent or temporary release because, as a result of their age, medical history, or other circumstances, they are at a higher risk of death from Covid-19 than most prisoners.
Putting aside the legal technicalities accompanying each of these situations, the very nature of these applications calls upon judges to make rapid predictions—guesses, really—on the basis of limited factual records. For example, the judge must speculate on how likely it is that a particular prison facility will become a hotbed of coronavirus spread. A few federal prisons have encountered significant numbers of Covid-19 cases, including fatalities, but the great majority have not. Is this because the prophylactic measures taken by the Bureau of Prisons (such as frequent extended lockdowns of prisoners in their cells) have succeeded, or is it simply the calm before the storm? And is the small number of prisoners who are reported to have contracted the virus—as compared, for example, with the substantially higher number of prison guards—a function of the isolation imposed on them, or simply of the fact that they have been tested for coronavirus at a far lower rate than the guards? And more generally, has the lack of testing in the prisons disguised the real magnitude of the problem?
Then there is the question of danger to the community. If a defendant awaiting trial was denied bail prior to the pandemic because he had a history of participating in violent gang offenses, does he pose less of a danger when, as a result of social distancing, gang-related crimes are less frequent? Or is this simply the result of less reporting rather than less misconduct? Does a defendant serving a twenty-year prison term for selling large quantities of illegal guns to narcotics dealers qualify for release because he is now in poor health and presumptively less able to resume his trade? Or, since such activity is his most likely source of income, will he, in these economically strained circumstances, resume the lucrative activity that he knows best?
And how does the risk of flight factor in? In the federal system, even a defendant awaiting trial who is not a danger to the community can be detained if there is no set of conditions (including electronic monitoring) that will reasonably assure his future appearance. Does his risk of exposure to the virus if he is detained somehow alter that determination? This would only be the case, presumably, if the current risk to his health outweighed the previously determined risk of flight. The court could find, for example, that if the defendant is released there is still a 20 percent risk he will flee, but if he is detained there is now a 5 percent risk he will die, and that is a much greater evil. But should the result be the same if the risk of flight is, say, over 50 percent (as indicated, for example, by the defendant’s repeated prior flights to avoid arrest) and the risk of death is less than a tenth of one percent (as suggested by the very low rate of coronavirus-related prisoner deaths in the federal system)? Even in the ordinary course of a court’s business, it rarely has sufficient facts to make such refined calculations. Now, given the need to resolve these motions rapidly, a court almost never has enough information to make even informed speculations about such matters before being obliged to rule.
For prisoners who are already serving their sentences, the attorney general, with the help of recent legislation, has authorized the temporary or sometimes permanent release to home confinement of the easiest cases—for instance, elderly prisoners who are in poor health and are nearing the end of their sentences for nonviolent crimes. However, the application of this policy to actual prisoners has been slow and accompanied by strange conditions, such as that the prisoner must be quarantined for fourteen days before his release, in case he has somehow already contracted Covid-19 (in which case he will not be released even though he might receive far better treatment outside).
The policy still leaves the harder cases for the courts, which must address them within fairly restrictive laws authorizing release in only limited and “extraordinary” circumstances. In such cases, the question frequently arises of how the applicant compares to other applicants or to similarly situated prisoners. For example, is a prisoner who is generally in good health but seeking release because he is seventy-five years old in greater or lesser danger from the coronavirus than a sixty-year-old prisoner who suffers from diabetes? And if the former is at greater risk, does it follow that all seventy-five-year-old prisoners should be forthwith released, even if they have been convicted of very different crimes and have substantially different amounts of time left to serve on their sentences?
These are just a tiny fraction of the conundrums confronting judges in ruling on these pandemic-related motions for release. What they have in common is that the judges must make a large number of speculations on a very limited factual basis, and they must make them fast. It is a challenge, and one with potentially fatal consequences if a judge guesses wrong.
As for the law applicable to these motions for release, that too is largely undeveloped. To give just one example, the so-called First Step Act passed by Congress in 2018 allows certain prisoners nearing the end of their sentences to be released early if they have severe health problems or can present other such “extraordinary or compelling reasons.” Does the act also allow those prisoners who are at highest risk of death from Covid-19 to be temporarily released to home confinement even if they have many more years of their sentences to serve? The federal district courts are divided on these and many other legal questions being raised by applications for release, and few, if any, of these conflicts have been resolved yet by the appellate courts. That so many judges have had to rule on more-or-less identical problems of such immediate practical importance with only limited guidance from precedent is, to say the least, unusual. Fortunately, in both the Southern and Eastern District courts, the judges have been issuing and exchanging detailed written opinions, from which something close to a consensus may yet emerge.
Dealing with applications for release is, moreover, just one of the challenges that judges face as a result of the pandemic. A challenge less apparent to the public but of huge practical importance to the proper functioning of the American legal system is finding a way to ensure that parties can make contact with their counsel and vice versa. Once again, this is most clearly a problem in connection with incarcerated criminal defendants. One of the ways the Bureau of Prisons has seemingly been able to contain the spread of Covid-19 in federal jails and prisons is through lockdowns, quarantines, and similar measures. But this means that prisoners have greatly reduced access to their lawyers. This applies not only to those facing trial (which has to be postponed in any case because jury pools are not being convened), but also to those already sentenced who are seeking pandemic-related release, or simply prisoners preparing a regular motion or appeal. In my court, we have been experimenting with setting up remote contact between incarcerated defendants and their lawyers, but the arrangements are complicated and time-limited, and thus far have only modestly reduced the problem (or so we are told by those most affected). And, even though ultimately a court could compel a federal prison to provide more meaningful contact between prisoners and their lawyers, concerns for the health of the prisoners have made most courts reluctant to interfere.
Then there is the issue that at some criminal proceedings, such as arraignments, the defendant, his counsel, and the public all have a right to be present in court. It is partly to deal with such requirements that in my court we still have a few district and magistrate judges coming to the courthouse and holding public proceedings in designated courtrooms spacious enough to allow social distancing. In other cases, the defendant appears by video from the “cellblock” (the room in the courthouse to which he is brought just prior to his court appearance), using an electronic connection whereby he can see and hear the judge and all other participants at all times but can also converse privately with his lawyer through a separate connection. Thanks in part to an amendment recently passed by Congress as part of the CARES Act, many other experiments of this kind are currently underway in federal courts throughout the country.
None of these arrangements is perfect, and the problems are magnified in other federal forums where the technological capabilities are more limited. For example, immigrants who are being detained pending deportation proceedings have far more limited access to their lawyers than they had prior to the current crisis, and the administrative law courts where the proceedings occur are much less equipped for remote appearances than federal district courts are. And while federal jurisdiction does not extend to family law matters except in very limited circumstances, I can only imagine how family court judges are coping with cases involving contact visits by children of divorced but still-sparring parents, each of whom will doubtless accuse the other of exposure to the coronavirus, and with the near impossibility of bringing all affected parties before the judge in courts that have limited technology.
Or consider everyday civil cases. As pointed out by the New York litigator Joel Cohen in a recent article in the New York Law Journal,* in any reasonably close case a crucial part of influencing the judge’s ruling on important motions is the personal interaction between judge and lawyer at oral argument in court. There the experienced lawyer can get a feel for which arguments are persuading the judge and which are not—a feeling largely derived from assessing the judge’s demeanor and reactions. Conversely, the judge can derive from counsel’s body language and mode of expression which arguments he or she is seriously pursuing and which are just “for the record.” In the past few weeks, I have presided over many remote oral arguments in civil cases, some by video links and others by telephone. Based on this experience, I can confirm that, for better or worse, personal interaction between lawyer and judge is largely absent from these arguments. Perhaps for this reason, or more likely just because of all the hassles involved in the everyday practice of law during the pandemic, many parties in my civil cases have chosen, unsolicited, to dispense with oral argument altogether and “rest on their briefs.”
This in turn raises the question of how courts will proceed after the current crisis has abated. Will they return to previous practices, will they view some of the innovations occasioned by the crisis as worth pursuing, or will they draw other possible lessons from the problems forced upon them during this time? For example, in civil cases in federal court, there is no requirement that counsel be given the opportunity for oral argument on even the most important motions—it is simply a tradition. Will the familiarity that judges have now gained with enhanced technology lead more of them to agree to conduct remote oral arguments when counsel is from out of town? While this would reduce the interplay between lawyer and judge, it would save expenses for the affected parties and might be a reasonable step. But what if the tendency of many lawyers to dispense with oral argument altogether under current conditions leads some judges to unilaterally eliminate oral arguments on most, if not all, motions, even when the crisis has passed? This would, I think, be unfortunate, if for no other reason than that it is only at oral argument that a judge gets to ask questions of counsel, which may greatly aid her decision or at least her understanding of the case.
Lurking behind all these questions is the huge problem of what to do about jury trials. If juries can reconvene in the normal manner by, say, July of this year, their absence since March will prove at most an inconvenience. And if by then the restrictions on congregating apply only to very large numbers, such as groups of fifty or more, courts can make arrangements to have jury pools split into smaller groups. But if well past July and for months to come, it is still dangerous for twelve people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met. This, I have to admit, is not an issue my court had thought much about until the pandemic came upon us.
On the one hand, our system of justice, especially criminal justice, is being materially compromised by the coronavirus pandemic, in ways both obvious and subtle. But on the other hand, with the benefit of advance planning, some courts, including my own, have been able to largely get on with their work, and most of the problems we have not solved are those for which we did not adequately plan. Let us hope that, once this terrible crisis is over, the lesson will not be lost.
—April 30, 2020