Criminal Defendants In Limbo As Trials Put On Hold During Pandemic

Interior of an empty courtroom with gavel and sounding block on the desk.
An empty courtroom is somewhat normal now as many courts around the country have been in extended recess during the pandemic. CREDIT: Getty Images

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BY CANDICE NORWOOD / PBS NewsHour

When the coronavirus pandemic shut down courtrooms around the country, criminal defense attorneys had to quickly figure out how to continue to serve their clients.

Over the last two months, a combination of factors have delayed court proceedings, leaving criminal defendants in limbo as they wait for their stalled cases to move forward. Most court services have been restricted to essential functions, which include arraignments and bail hearings. Criminal jury trials have been put on hold, and states have changed defendants’ speedy trial rights due to the emergency court closures. Thousands of civil and criminal cases are becoming backlogged, attorneys and judges told the PBS NewsHour.

“Everything is kind of suspended animation,” said Nina Ginsburg, president of the National Association of Criminal Defense Lawyers.

On any given day, about 631,000 people are being held in local jails in the U.S., of whom roughly 74 percent have not yet been convicted, according to 2020 data. Many are held as a result of their inability to post bail. A report by the Department of Justice determined that from 1990 to 2004 the median bail for detained felony defendants in state courts was $15,000. Through the bail bond system, defendants can pay a percentage of their bail — which is 10 percent in most states — in addition to some form of collateral to get out of jail while they await trial. That is still a prohibitive price for many in the U.S.

Amid the pandemic, some jurisdictions have moved to suspend arrests for nonviolent offenses, or to release vulnerable inmates to reduce jail overcrowding. But even with these efforts, many pretrial detainees — those not yet convicted of a crime — are sitting in jails, uncertain of when their cases may proceed.

Defendants have a constitutional right to a “speedy” trial, as laid out in the Sixth Amendment, though it does not specify what speedy means. Many states have codified these rights by setting parameters for that length of time. In California, for example, trials must commence within 30 to 60 days of an arraignment, depending on the crime of which the defendant is accused. Felony cases must come to trial within 60 days while lesser crimes must come to trial sooner, or the case could be dismissed unless the defendant waives the requirement. Other states, like Texas, do not define a fixed speedy trial period.

Amid the pandemic, states have modified those speedy trial rights to accommodate state court closures. Without specified legal deadlines to move their cases along, pretrial detainees can be forced to wait in jail until courts can reopen. A number of judges and attorneys expressed uncertainty about when in-person proceedings will resume at full capacity.

“In this unprecedented time, public defenders understand that, for now, there is a need to suspend speedy trial [rights],” said Rosalie Joy, vice president of defender legal services at the National Legal Aid and Defender Association. “But the concern is: when does that end?”

As states begin to gradually reopen non-essential businesses and services, courts in Virginia, Kentucky, Nevada and beyond have announced plans to resume in-person services. Some have also expressed plans to begin in-person jury trials in June or July. However, resuming these services requires careful planning in order to maintain public safety and there will continue to be limits for most systems, which means backlogs will grow as well.

In a memo earlier this month, Virginia’s chief justice wrote that for each week court dockets are limited only to emergency cases, which do not include criminal jury trials, approximately 60,000 more cases are added to the system’s backlog for general district courts. Another 18,000 cases are added to the juvenile and domestic court backlog and 19,000 are added to circuit courts, he added.

In Texas, the state’s Chief Justice Nathan Hecht told the NewsHour that courts were able to conduct more than 84,000 hours of hearings using the video-conferencing platform Zoom within the first seven weeks of court shutdowns. Still, that was only about 20 percent of what the courts would usually be able to do, Hecht added.

Jails and prisons, in particular, have become hotspots for virus transmission. At one Ohio prison, 73 percent of about 2,500 inmates tested positive for the virus in April. Another facility in Indiana last month reported 9