The Cost of Social Justice While Social Distancing

By: Lexis Graham

What’s Happening? It goes without being said that we are living in a time of hardship as the COVID-19 pandemic sweeps the globe. Weddings, festivals and travel plans have been cancelled.[1] Work and school have been moved online, and social gatherings have been suspended.[2] Disconnecting from social interaction during this time has been a drastic change for all. However, these measures have been put into place with good faith and hope that isolation will be the demise of the virus. While Americans on the outside are ordered to remain home and quarantine in effort to slow the spread, the overcrowding of prisoners is leading to hotspots of viral activity.[3] This is why the Department of Justice’s most recent request makes no sense.

What does this mean? The DOJ has asked Congress to craft legislation that allows chief judges to halt court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”[4] This allows for the courts to suspend pre-arrest, post-arrest, pre-trial, trial, and post-trial proceedings, holding inmates without trial and other constitutional rights during the coronavirus pandemic.[5]

Why is this a problem? The DOJ’s request has turned many heads because of its direct contradiction to habeas corpus—the constitutional right to be brought before a judge after arrest to determine that detention is lawful.[6] As Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, stated, if this legislation were to pass, “you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over.”[7] What happened to innocent until proven guilty? As Reimer simply put it, “I find it absolutely terrifying.”[8]

Can they do this? The issue is uncertain.[9] The only time habeas corpus has ever been suspended was during wartime.[10] The Suspension Clause of the U.S. Constitution allows for suspension of habeas corpus only when “in [c]ases [of] [r]ebellion or [i]nvasion the [p]ublic [s]afety may require it. [11] The question becomes whether coronavirus falls into the category of “invasion”.[12] Relying on the words of Justice Scalia in a 2004 Supreme Court opinion, what constitutes an “invasion” for purposes of habeas corpus suspension is a question for Congress.[13]

Alongside pressure from the DOJ, congressmen are being faced with pressure from activists to do the opposite and release prisoners to help minimize the spread.[14] The suspension of habeas corpus will only facilitate the growing concern of contraction among these close quarters.[15]

Although it’s rather difficult to stay positive during this time of global catastrophe, we must remember that we a fortunate to live in a time where many resources are available. Many states have started implementing video-conferencing as an alternative to courthouse arraignments.[16] While there are still constitutional complications that will arise from this tradition-diverging alternative, it is a start.[17]

[1] See Interim Guidance for Coronavirus Disease 2019 (COVID-19), Ctr. for Disease Control & Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-gatherings-ready-for-covid-19.html (last updated Mar. 15, 2020).

[2] Id.

[3] Peter Wade, DOJ Wants to Suspend Certain Constitutional Rights During Coronavirus Emergency, Rolling Stone (Mar. 21, 2020, 4:54 PM), https://www.rollingstone.com/politics/politics-news/doj-suspend-constitutional-rights-coronavirus-970935/.

[4] Betsy W. Swan, DOJ Seeks New Emergency Powers Amid Coronavirus Pandemic, Politico (Mar. 21, 2020. 1:01 PM), https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023.

[5] Wade, supra note 3.

[6] FAQs: What is Habeas Corpus, Ctr. For Const. Rights (Oct. 7, 2007), https://ccrjustice.org/home/getinvolved/tools-resources/fact-sheets-and-faqs/faqs-what-habeas-corpus.

[7] Swan, supra note 4.

[8] Id.

[9] Michael C. Dorf, Lock Us Down; Suspend Habeas; Save the Nation, Justia Verdict (Mar. 15, 2020), https://verdict.justia.com/2020/03/15/lock-us-down-suspend-habeas-save-the-nation.

[10] James A. Dueholm, Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis, 29 J. of the Abraham Lincoln Ass’n 47 (2008).

[11] U.S. Const. art. I, §9, cl. 2.

[12] Dorf, supra note 9.

[13] See Hamdi v. Rumsfeld, 542 U.S. 507, 578 (2004).

[14] Betsy W. Swan, DOJ Seeks New Emergency Powers Amid Coronavirus Pandemic, Politico (Mar. 21, 2020. 1:01 PM), https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023.

[15] Id.

[16] Laura Kusisto, Coronavirus Forces Courts to Experiment, Wall St. J. (Mar. 28, 2020, 5:30 AM), https://www.wsj.com/articles/coronavirus-forces-courts-to-experiment-11585387800.

[17] Id.

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