Federal court responses to COVID-19: From vague statements to concrete national models to reduce pretrial detention and protect rights

We review how federal courts are modifying their procedures in the face of the COVID-19 pandemic.

by Wendy Sawyer, May 6, 2020

As we have argued recently, in order to prevent more unnecessary COVID-19 related deaths among incarcerated people, authorities must minimize the use of pretrial incarceration. In the case of local jails, “authorities” means a complex web of jurisdictions and officials who have the authority to release people from jail. The federal system is a different story. Unlike local jails, federal pretrial detention is governed by a single set of laws, but that doesn’t simplify matters much when the actual decision-makers are spread out among 94 judicial districts.

So what are federal courts doing to reduce pretrial incarceration? We looked at some of the orders that federal courts have issued to deal with pretrial populations during the COVID-19 pandemic, and identified some important issues, promising approaches, and places where more dramatic action is needed.

Judges are traditionally hesitant to involve themselves with carceral operations, given the central role of separation-of-powers in American governance. But pretrial detention is a special situation, since people who are not convicted are in the custody of the court, and judges must decide whether or not defendants should be incarcerated pending trial.

Every federal court in the country has issued general orders modifying their operations during the current pandemic. Dozens of these orders address the treatment of pretrial detainees, but most of these provisions are disappointing in their narrow scope: Many orders simply require screening of symptoms, or encourage the use of video appearances, but do nothing to actually address the public health crisis posed by incarceration during a viral pandemic. Most notably, many orders instruct the US Marshals Service (which operates federal pretrial detention) to develop procedures for monitoring the health of incarcerated people, despite the Marshals’ well-documented indifference to the health of the people in its custody.

However, a handful of court orders — ranging from generalized statements of goals to specific policy changes — stand out as actually addressing the problem, and are worthy of discussion:¹

Statements of policy. On the more generalized end of the spectrum, Minnesota’s district court has entered an order directing its office of pretrial services to “reassess whether alternatives to detention exist that in its judgment will reasonably assure the appearance of the defendant and the safety of the community.” This approach is commendable, but without careful attention to the details, it runs the risk of widening the use of troublesome “alternatives” like electronic monitoring.

Protecting health one case at a time. In the middle of the spectrum of judicial responses are courts that have decided to make case-by-case decisions on pretrial detention, but have provided new procedures for speeding up the process. The federal court for Alaska has created an expedited procedure to rule on requests from people seeking release from custody prior to trial or sentencing, which includes a procedure for defendants to obtain their own medical records for use as evidence. The courts in Massachusetts and the Eastern District of Michigan have entered similar orders, with the Michigan court specifically noting the need to “reduc[e] population density in BOP and detention facilities.”

Anticipating how facilities may undermine justice. The federal court in Montana has recognized that social distancing measures will inevitably lead to more defendants being forced to communicate with their lawyers via phone or video. Accordingly, that court’s general order specifies that when that happens, “the attorney-client privilege…is not waived by the presence of third parties or the existence of monitoring.” Importantly, these protections apply whether or not facilities or phone companies advise callers that their communications are being monitored.

The court for the Eastern District of New York has taken the most comprehensive approach, by emphasizing the need for meaningful information on the conditions in facilities where people are held. The court has identified the four facilities that hold most pretrial defendants in the Eastern District, and has ordered the wardens of those facilities to provide twice-weekly reports on mitigation measures and test results. The court order goes on to direct that such reports be posted on the court’s public website.

As one can see from reading the reports submitted to the New York Court, they are sparse on details and use the bureaucratic jargon common among correctional administrators. Nonetheless, this reporting requirement is an important first step in combatting one of the pandemic’s most important drivers of fear: the lack of information.

As a currently incarcerated author noted in an article published last week, “The only way to significantly reduce inevitable deaths from an outbreak inside is to reduce the number of people inside.” While none of the court orders discussed here directly release anyone from custody, they highlight some of the issues that we will have to address when pushing for large-scale reductions in incarceration: facilitating judicial decision-making about releases, preserving privacy in an age of digital communications, and prying factual information out of correctional bureaucracies that are generally hostile to transparency.