Criminal Justice under the Coronavirus: DOJ tries to suspend Habeas Corpus and County Jails become ‘Black Sites’


The spread of a fatal respiratory disease like COVID-19 could be unstoppable in a correctional institution.

By Alexander Locksley 

The U.S. Justice Department has quietly petitioned Congress for the ability to ask chief judges to detain individuals indefinitely. The request is part of the department’s push for new powers to address the COVID-19 pandemic. 

The department’s request was first reported by Politico on Saturday, March 21. While reporting the story, Politico was able to review various documents submitted to lawmakers which sought the authority to alter a host of bedrock legal tenets — including the statute of limitations, asylum claims and court hearings themselves. 

One document proposed that Congress grant the U.S. Attorney General the power to request the chief judge of any district court to essentially pause any court proceeding. The attorney general would be able to request a halt “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience or other emergency situation.” 

Additionally, the DOJ’s proposal would also grant chief judges the authority to halt court proceedings at any time in the justice process during declared emergencies. 

Language in a circulated draft of proposed legislation would allow chief judges to stop cases at the “pre-arrest, post-arrest, pre-trial and post-trial procedures in criminal and juvenile proceedings and civil process and proceedings.” 

By including pre-arrest, the DOJ’s proposal would allow individuals to be arrested and to only face a judge after a declared emergency is over, Norman L. Reiner, executive director of the National Association of Criminal Defense Lawyers, told Politico. 

The U.S. is currently engaged in about 35 ongoing national emergencies, the oldest dating back to 1979. Although the vast majority of these ongoing emergencies are related to sanctions on hostile governments and individuals, several of the declarations deal with continuing domestic issues — including election interference, immigration and the Coronavirus. 

The department also requested the suspension of the statute of limitations for criminal investigations during national emergencies and for one year after the emergency. The DOJ has also asked Congress to change the law to explicitly state that people with COVID-19 are unable to apply for asylum. 

The proposal has drawn criticism from individuals on both sides of the aisle, with libertarian leaning Rep. Justin Amash (I-Mich.) writing that “Congress must loudly reply NO.” 

Although the DOJ’s proposals are only in draft form — and are almost guaranteed to die in the Democratic controlled House of Representatives — similar restrictions are already being enacted at the state and local level. 

County and district courts across Texas have severely reduced their dockets and suspended jury trials. In suburban Brazoria County, just south of Houston, the four county courts at law announced that they would have one jail docket per week and limit the docket to 10 defendants. 

The courts also decided to cancel all arrangements and juvenile dockets for the months of March and April. Along with restricting access to the court system, Brazoria County has also announced that it won’t be fulfilling any Public Information Act requests for the foreseeable future. 

Local and federal governments aren’t alone in their decisions to alter the workings of the justice system in an effort to deal with emergencies. Texas’ two highest courts — the Texas Supreme Court and the Court of Criminal Appeals — issued a joint order allowing all lower courts to “modify or suspend all deadlines and procedures” for 30 days after Gov. Greg Abbott’s disaster declaration expires on April 30. 

Both courts issued the ruling after they had already suspended oral arguments and closed buildings because of the virus. Many courts throughout Texas have followed suit and begun using video conferencing to conduct hearings. 

However, because each court is approaching the problem in its own idiosyncratic way Texas has developed a patchwork approach to the problem. In some counties the courts are using Zoom to hold hearings, other courts in other counties are using Skype. 

This lack of standardization has led some criminal justice reformers to worry about the security and stability of the programs being adopted. Moving court proceedings online could also hamper defense councils’ ability to examine evidence and other necessary materials. There are also questions about the attorneys’ ability to confidentially approach the bench and confer with their clients. 

Some civil rights advocates are also worried about how Texas courts’ decision to embrace tele-justice will affect poor and rural defendants’ ability to access proceedings, given that large parts of Texas still lack high-speed Internet access. 

Statewide, more than 2 million Texas households don’t have high-speed Internet. Although connectivity is a profound issue in rural Texas — where 31 percent of homes are still living in the dial-up era — there are many urban areas where Internet access remains spotty. 

About one-third of the populations of Brownsville and Laredo don’t have any form of Internet access at all. Over in Jefferson County — home to Beaumont, Port Arthur and some of the largest petrochemical plants in North America — only 45 percent of the population has high-speed Internet access. 

It’s not just the lack of high-speed Internet that is concerning to court watchers, there are also questions about access to video conferencing capabilities in urban county jails. In Austin, only a few Travis County judges can utilize video conferencing capabilities at a time. 

Additionally, only one room in the Travis County Jail is outfitted for video conferencing. Both issues are creating long delays for hearings, which is keeping inmates in county jails longer. 

Keeping inmates in jail is something that counties are trying not to do. Given the low amount of air circulation and the high amount of people inside a jail, the spread of a fatal respiratory disease like COVID-19 could be unstoppable in a correctional institution.

The Texas Department of Criminal Justice has already stopped accepting prisoners from some county jails — most notably the Dallas County Jail, where seven inmates have tested positive for COVID-19 so far. 

TDCJ announced the new policy after three people — an inmate, an employee and a contractor — tested positive at the Holliday Unit in Huntsville and another inmate tested positive at the Lychner State Jail in Atascocita. 

The positive tests have resulted in 42 Holliday Unit employees self-isolating at home. Holliday, a men’s transfer unit, has 435 employees, 319 in security and 81 in non-security. The jail can house 2,128 inmates and has a medical staff of 25. 

The Lychner State Jail is a men’s facility that serves state jail offenders from the Greater Houston Area. Lychner has 413 employees, 285 security and 76 non-security. It has a maximum capacity of 2,276 inmates and boasts a medical staff of 28.

Although Texas’ mammoth state-run prison system has been spared an outbreak, the same can’t be said for the 254 county jails. In Houston, the Harris County jail has reported that, so far, one inmate has tested positive for COVID-19. One positive case is not the end of the outbreak, more than 20 inmates are already exhibiting symptoms and another 1,000 may have been exposed. 

In an effort to try to arrest the spread of the disease, the Harris County jail is planning on releasing 1,000 non-violent offenders to allow the remaining 7,000 inmates to better practice social distancing. Some other Texas counties are trying to police the spread of the virus by attempting to reduce the number of people coming into the jail. 

Brazoria County is considering increasing the number of citations issued and plea bargains offered to non-violent offenders. Under a plan laid out by District Attorney Jeri Yenne, some non-violent suspects that normally would be arrested may receive citations in order to keep them out of custody. 

Each case will be judged on its own merits and the case-by-case approach will extend to felonies as well as misdemeanors, according to a statement from Yenne. She added that law enforcement officers and prosecutors will evaluate “if there is a component of violence” when determining if a suspect should be arrested or receive a citation.” 

The new policies and procedures are designed to keep the virus out of the Brazoria County jail as long as possible.

“The last thing we want is for this thing to get in our jails,” Brazoria County Sheriff Charles Wagner said. The ‘keep it out at all costs’ mentality prompted jails and prisons across Texas to suspend or cancel all in-person visitations. 

Some counties have opted to keep on-site video visitations available to inmates, attorneys and family members. Others, like Tom Green County, have decided to suspend all on-site visitations. 

In place of on-site visitations at the county jail in San Angelo, the Tom Green County Sheriff’s Department is only allowing smart phone and Internet visitations in a county where only 59 percent of the county’s 118,000 people have access to high speed Internet. 

The Tom Green County Sheriff’s Department is also limiting the number of virtual visitations inmates can receive to two video calls per every seven days. Anything after that will cost inmates and their families. 

In an initial statement outlining the new policy, the sheriff’s department didn’t elaborate on whether or not a consultation with an attorney would count towards one of the two visits an inmate could receive in a seven-day period. 

The Tom Green County Sheriff’s Department also failed to disclose whether or not inmates that had already received their two allotted visits per seven days would be charged for speaking with their own lawyers. 

While it may seem that Texas that Texas law enforcement officers and prosecutors are acting with an abundance of caution, these recent decisions — coupled with the DOJ’s proposal to suspend habeas corpus — can be viewed in a very troubling light. 

Closing courtrooms, isolating prisoners and discussing proposals to suspend habeas corpus leads to some frightening questions namely, what’s next? Are our county jails going to become the equivalent of CIA black sites, where people go in, but no one knows if they come out?

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