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.…
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