Coronavirus and the Constitution- Fairfax criminal lawyer weighs in

Coronavirus must not lengthen pretrial detention nor be used to shred the Constitution, says Fairfax criminal lawyer

Coronavirus reactions have reduced courthouse activity in various jurisdictions, battered the stock market, closed government activities and many educational institutions, forced quarantines, imposed travel bans, and led to such government state of emergency measures as banning large gatherings of people. As a Fairfax criminal lawyer and civil libertarian, I know that during times of emergency the Constitution is most at risk of both short term and long-lasting damage.

Coronavirus must not lead people to mass hysteria, nor stereotyping of people from regions with high coronavirus cases. Whether or not COVID-19 is more dangerous or contagious than the annual flu, at least the annual flu has a vaccine, which has not yet been developed for COVID-19.

Coronavirus must not be permitted to detain criminal defendants for longer pretrial periods nor to extend protective order length

Various area federal and state courts are curtailing court activities without notice and comment periods, other than the judges consulting with smaller groups of such lawyers as voluntary bar association leaders. Well made plans of this sensitive sort are best made with full deliberation. To the extent that any of these judicial decisions relating to the coronavirus have been made in haste, I ask judges to be open to input from lawyers about how their COVID-19-related policies might need amendment to protect criminal defendants from extended pretrial detention periods, and preliminary protective order subjects from extensions of those orders without a hearing. I do like the extent to which the COVID-19 court policies are more liberal about opposing parties continuing their trial dates by mutually signed notices to the court.

Trial and preliminary hearing date postponements harm criminal defendants jailed pretrial

Any judicial coronavirus-related policies must avoid curtailing the availability and frequency of bond review hearings and appeals, nor of the availability of judicial officers — including magistrates — to make initial pretrial release determinations for criminal defendants.

A recent Fairfax judicial policy addresses more liberal granting of continuances when witnesses are sick, but that needs to be balanced against the reality that any such trial date continuance extends the pretrial incarceration length of criminal defendants held without bond or who are unable to pay their bail. Consequently, it is important for judges to make immediately available a new bond review hearing for detained criminal defendants caught by such continuances.

Of course, the high level of contagiousness of coronavirus should be considered by sentencing judges, considering that inmates suffer by the fear of contracting the disease let alone the suffering by those who get sick from the disease.

Criminal defendants jailed pretrial need full access to their lawyers

Before the coronavirus, numerous Virginia jails already had restrictive policies for the times of day that criminal defense lawyers may visit their clients, and requiring advance notice for contact visits. COVID-19 should not be used as a reason to further restrict lawyers’ access to their jailed clients.

Once the coronavirus is resolved, I am concerned whether governments will immediately stop their overreaching state of emergency ways with quarantines and crowd limits stemming from this virus.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor and DUI prosecutions. Please call 703-383-1100 to schedule a free in-person consultation with Jon Katz about your court-pending criminal case.