COVID-19's Impact on Criminal Proceedings

The COVID-19 pandemic has forced us to restructure our lives in many ways in the public interest of keeping people safe and healthy. While we often think and hear about how this has changed the way we go to work, school, and other things we do in our day-to-day lives, the pandemic has had a major impact on the criminal justice system. Many proceedings in our criminal justice system have relied on face-to-face interactions, as well as housing people in custody in close proximity to others. With public health guidelines in place, including the need to wear masks and social distance, have challenged criminal courts across the county to change practices to reduce exposure to the virus. While some parts of the country have been more swift in their response, other shave dragged their feet on some issues. Here we discuss how North Carolina criminal court and other aspects of our state justice system has adapted to pandemic life.

a man wearing a mask following one of the public health guidelines to prevent coronavirus or covid-19 spread

Changes Affecting Prison Facilities and Custody of Convicted Individuals

Addressing COVID-19’s spread within prisons and what is being done to stop it has been a key priority for people concerned for public safety and incarcerated people. North Carolina addressed some of these concerns at earlier stages in the pandemic, opening up avenues for people in prisons to serve the remainder of their sentence outside of a correctional facility, including the following since April 2020:

Facility Restrictions

NCDPS implemented the following restrictions and guidelines for how correctional should be maintained to reduce the spread of the virus:

  • Dramatically reducing movement of offenders within the prison system.
  • Providing extra soap and disinfecting supplies and requiring additional cleaning regimens.
  • Pre-entrance medical screenings for staff.
  • Pre-intake medical screening for offenders and a 14-day quarantine period.
  • Suspending acceptance of transfers of offenders from county jail for 14 days.
  • Suspending visitations, volunteers, work release, and various other programs that involve public exposure and mass gatherings.

Reducing Sentencing or Release from Custody

Many of the above restrictions, while helpful in stopping the spread, have introduced a great deal of hardship for incarcerated people. From limiting their ability to be in contact with legal counsel and family members, to limiting the few activities incarcerated people can engage in for their health and self-improvement, these changes have raised concerns about compliance among other issues.

To address some of these concerns, the Public Safety secretary has also been using their authority to allow certain individuals to serve the remainder of their sentence outside of a correctional facility under some corrections officer supervision. This process is somewhat similar to the federal system’s compassionate release,  though criteria and the ways to request release differ. All offenders under consideration must meet strict criteria, the most important of which is that they were not convicted for a violent crime against a person. If their crime is nonviolent, they can be considered if they fall within one of the following categories:

  • Female offenders age 50 or older with health conditions and a release date in the current year.
  • Offenders age 65 or older with underlying health conditions.
  • Offenders age 65 or older with a release date in the current year.
  • Offenders already on home leave or work release with a release date in the current year.
  • Pregnant offenders.

In addition to the above, NCDPS has been awarding “time credits” when appropriate to reduce maximum sentence.

Changes to Pretrial Detention and Bond Determinations

One aspect of criminal proceedings that has drawn a lot of concern and attention is how defendants are held in pretrial custody when they have not been convicted of any crime. The news on how COVID-19 has been impacting prison populations across the county has been nothing short of disturbing. One report from Texas, for example, showed that 80% of inmates who died of COVID-19 were in pretrial detention, or in other words, had not been convicted of a crime yet.

While the news in North Carolina has not been quite as disturbing, state prison COVID-19 cases and deaths are still very concerning. The North Carolina Department of Public Safety (NCDPS) has taken some measures to limit spread within prisons and jails as well as create opportunities for some individuals to serve their sentence or detention outside of a prison, but efforts on pretrial detention have been limited. Studies have found that during the pandemic the population of people in jails awaiting trial has decreased, but the people there tend to remain longer as procedures have slowed, which still poses a great risk.

Addressing Pretrial Conditions in North Carolina

So how has this impacted pretrial release and bond determinations in North Carolina? Unfortunately, right now there are no clear appellate cases to provide guidance on how COVID-19 should be considered with regard to pretrial release in North Carolina. However, appellate courts in other states, as well as the federal courts, can help identify “compelling reasons” related to the pandemic to argue for a pretrial release.

As one court said:

The federal government currently anticipates more COVID-19 deaths in the United States, within the span of one year, than the nation’s total casualties during World War I. . . . In the context in which preliminary detention could be a death sentence, courts, more than ever, must take all reasonable steps to ensure that individuals are detained only when there is no legal and viable alternative.

This has pushed courts to use “individualized determinations” as to whether coronavirus presents a compelling reason to justify temporary release. Some elements courts have considered are:

  • the defendant’s age
  • the defendant’s current health and any relevant health vulnerabilities
  • the current state of the pandemic, such as the significance of recent outbreaks. 
  • Access to public health, such as the number of beds available to those who fall ill.

There are also constitutional arguments in favor of reducing bonds. Defendants can argue that their current bond is excessive under the constitution’s 8th amendment, which prohibits excessive punishment as well as excessive fines and bail. Another constitutional approach is using the 6th amendment, which among many things, includes the right to legal counsel.

Witness Testimonies

When COVID-19 cases hit North Carolina hard and the state stay-at-home order began, criminal jury trials took a 6-month hiatus. While some have resumed in districts, this raised several issues, one in particular being whether the State may present remote testimony of witnesses to mitigate risk of contracting the virus.

While the pandemic concerns are valid, the Sixth Amendment of the U.S Constitution places strict limitations on state authority with respect to testimony. Unless under extraordinary circumstances, criminal defendants must waive their right to face-to-face confrontation before remote testimony may be introduced against them. This is because defendants have a federal and state constitutional right to confront and cross-examine the witness against them at trial. If this is violate, they will be entitled to a new trial.

The pandemic alone does not seem to constitute an “extraordinary” circumstance to allow for remote testing without the defendant’s waiver of rights.

The standard that North Carolina follows for determining whether remote testing can be used without waiver follow the U.S Supreme court case Maryland v. Craig. In this case, the Supreme Court decided that the defendant charged with sexual abuse of a 6 year old was not entitled to the victim’s physical presence in the courtroom, posing an extraordinary exception to the Sixth Amendment. This brought about a two-part “test” that can be followed to reason whether a defendant has the right to confront an accusatory witness. The test is as follows:

“[A] defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

So how does remote video testimony in the pandemic fit into this? First, it is important to note that in Craig, one key limitation was that the testimony was one-way, there was no technology presented that could allow for a video-conference. While two-way video testimony may seem to not need to meet the test in Craig, the North Carolina Court of Appeals has held that the State must meet its criteria. So for pandemic-related claims, so far courts have found that remote testimony satisfy’s Craig under the following circumstances:

  • Child sexual assault victims (like in the original case)
  • Witnesses with extremely serious medical conditions, or those who have recently undergone major surgeries.
  • Witnessing living with a person or people who have high-risk medical conditions.

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