Russell Hebets Sept. 1, 2020

A Request Has Been Made

U.S. legislators will soon review, if they are not already, a request from the Justice Department for authority to detain people indefinitely in situations like the coronavirus pandemic. The sort of indefinite detainment set out in the request infringes the constitutional right of habeas corpus and probably others, and therefore you would expect criminal defense lawyers to look down on it. In our case, you would be right. Still, worthwhile considerations may fall on either side of the issue, so let’s take a closer look before denouncing the Justice Department’s move here as the nefarious power grab we always knew it was. Just kidding. You know, mostly.

What Even Is Habeas Corpus?

First we need to understand the importance of habeas corpus. Habeas corpus is your right after arrest to see a judge and seek release while you wait for trial. This is one of the suite of protections the Constitution gives us from wrongful incarceration at different stages of the criminal justice process. To those who have known nothing else, these protections may seem antiquated or paranoid, but they were not put in place frivolously: many people throughout history have wasted away in jail for no good reason, and many others waste away now in authoritarian states without safeguards like habeas corpus. Just as a suppressed virus may renew its activity the more we lapse in watchfulness against it, so the quality of careless imprisonment that has infected other governments may infect our own the more we take our rights for granted.

What the Request Says

With all that in mind, we turn to the substance of the DOJ’s request. If approved the request would allow the attorney general to ask a district court to pause all proceedings under the court’s  jurisdiction “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” Other parts of the request enlarge the limited existing power of chief justices to suspend criminal cases in emergencies. The rationale for these changes is that individual courts, struggling to manage their dockets during the COVID outbreak, have already resorted to whatever emergency suspensions they can to avoid speedy trial violations and the like, and the DOJ is merely aiming for consistency from one court to another. 

Our Question

But the question that occurs to us is why? As the DOJ itself says in its defense of the request, courts have already proven able to keep criminal cases from slipping through the cracks during this national emergency. Moreover, the law is inconsistent between states in a thousand ways— does this one point of inconsistency matter so much? Does the executive branch need to insinuate itself into the matter at all, or could it be left to individual chief justices to decide? It is hard not to see the request mostly as a strike against defendants, in some cases no doubt a devastating strike, for the sake of increased power. Ask yourself though, how would you feel if you were in custody unable to post bond, and your case was put on hold for an unknown time until some “emergency situation” had resolved to the attorney general’s satisfaction? If a pandemic is not a good reason for criminals to escape justice, neither is it a good reason to erode the liberties that, whether we know it or not, we all depend on.