In this image by Goya, a person, asleep at his drawing table, is besieged by creatures associated in Spanish folk tradition with mystery and evil. The title of the print, emblazoned on the front of the desk, is often read as a proclamation of Goya’s adherence to the values of the Enlightenment—without Reason, evil and corruption prevail.
 
Wisconsin is now under an order from state government to "stay at home" to slow the spread of the new coronavirus.  It is not understatement this order has restricted the lives of people in unimaginable ways.  Gov. Tony Evers issued this order after hearing health care professionals tell him it was the only way to slow the spread of COVID-19.  In other words, there was scientific proof for the uncomfortable order issued by Gov. Evers.
 
Nonetheless, around May 2nd, protesters gathered near Brookfield Square to protest Gov. Evers orders despite the scientific basis for the orders.  Also, Wisconsin Republican lawmakers have asked the state Supreme Court to block the order, telling justices that Evers' administration broke the law in its effort to stop the spread of COVID-19.  Despite the scientific evidence to support this order, Justice Rebecca Bradley viewed those powers as too broad and compared them to tyranny.  "One of the things this order does is allow people to go to prison for leaving their homes unless it's OK with the DHS secretary," said Bradley.

So the bottom line is members of the public and Republican lawmakers have rejected scientific evidence from health care professionals that the only way to slow the spread of COVID-19 is by the stay at home orders.

Apparently, Wisconsin is in a rush to embrace beliefs not supported by science but public opinion alone.  As exemplified by the stay at home protests, its a path that’s not just anti-scientific, but self-destructive. The scientific solution to a pressing social problem is sought to be disregarded in favor of bumper-sticker simplicities and blind faith.  It seems coronavirus and ignorance are contagious.  Wisconsin believes the scientific basis for combating COVID 19 is just so impractical.  The danger is that totalitarian governments manipulate and apply anti-intellectualism to repress political dissent.  For example, in 2019, academics Adam Waters and E.J. Dionne stated that U.S. President Donald Trump "campaigned for the presidency and continues to govern as a man who is anti-intellectual, as well as anti-fact and anti-truth."  America hits peak anti-intellectualism: Majority of Republicans now think college is bad". Salon.;"Is Anti-Intellectualism Ever Good for Democracy?". Dissent.
Can unscientific beliefs be quarantined?

Of course not.  But unscientific thinking presents problems for criminal defense.  After all, some of the anti-scientific protestors at Brookfield Square will be jurors.  How will jurors who contemptuous of science decide cases where “common sense” does not square with scientific evidence?

Take for instance the case of America’s favorite “little tramp,” Charlie Chaplin.  See also, Arthur John Keeffe et al., Sense and Nonsense About Judicial Notice, 2 STAN. L. REV. 664, 670-71 (1950).  In the Stanford Law Review, Professor Keeffe explained that Chaplin had to defend against a paternity claim that was based on the woman saying she slept with no other man besides Chaplin during the period in question.  Chaplin’s defense consisted of unchallenged blood tests excluding Chaplin as a possible father.  The jury found for the woman.  Berry v. Chaplin, 169 P.2d 442, 450 (Cal. Dist. Ct. App. 1946) (jury having heard all the evidence made its determination and the verdict will not be disturbed.

If you think juries have somehow become more sophisticated scientifically, consider People v. Rivera, 962 N.E.2d 53 (Ill. App. Ct. 2011).  Rivera was prosecuted on charges of rape and murder of a young girl.  There was a DNA test result which excluded him as a possible source of semen in the girl's vagina.  But the prosecution had a jailhouse informant and a confession given after Rivera had endured four days of unrecorded interrogation and had suffered what a nurse described as a "psychotic episode.”  The prosecution explained that the presence of the other man's semen in the vagina must have resulted either from her coincidentally having had consensual sex with another man shortly before Rivera raped and killed her, or from contamination of the rape kit sample with sperm of another man sometime in the twenty-four hours after the girl's autopsy.  The state offered no evidence of contamination, and its only evidence of consensual sex was that the girl had been forced to perform oral sex at age eight, knew how to masturbate, and was wearing "red lace panties" the day of her murder.  Jury found Rivera guilty.

Rivera’s case unfortunately is not unique.  Cases examined on the CBS News show 60 Minutes the state obtained convictions of five juveniles in a rape-murder of a fourteen-year-old girl in Chicago based on their stationhouse confessions.  The juveniles say they were forced or tricked into confessing to violent crimes they never committed.  Semen recovered in the rape kit had a single-male DNA profile that failed to match any of the five defendants, but the prosecution continued.  The state's attorney explained that the five men did not ejaculate and that the semen may have been the result of necrophilia - of an unrelated man having sex with the corpse.  Each of the juveniles spent nearly half their lives in prison before being released.

Scientific ignorance in the criminal system, like real life is a dangerous thing.  In the criminal system, ignorance results in wrongful convictions.

SOURCE: Captain Steve Brancazio Boca Raton Police Department



What is a citizen who wants to follow the law to do when:

Wisconsin Governor Evers issued an executive order that to contain the spread of the deadly COVID 19 disease, people should stay at home and non-essential businesses should remain closed. 

Washington County Sheriff Martin Schultis has said failure to follow this order "is a criminal violation. It's an arrestable violation."  Kenosha County Sheriff Beth has also urged people to follow the order.  Milwaukee police are allowed to issue citations to people failing to comply with Governor Tony Evers' "Safer at Home."

However, Racine County Sheriff Christopher Schmaling has refused to enforce Gov. Evers emergency measures and enforce rules and orders to protect the public during a health crisis.  The medical profession, incidentally, disagrees with Sheriff Schmaling “I understand people wanting to verbalize how they feel and wanting to get back on their feet again, but we have to remember the greater good and the fact that we’re not going to achieve that if people are dying, and if we’re putting the health of our population at risk,” said family physician Dr. Shannon Daun.  The doctors opinion is joined by at least 36 other medical professionals.

Which sheriff is right?  Who knows?  The problem is a citizen should not be forced to decide when her liberty hangs in the balance.  Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)

Arbitrary enforcement of the law pose two problems: when criminal codes fail to clearly define the offense, citizens may not understand what conduct is prohibited and police are likely to enforce the law in an arbitrary and discriminatory manner.  Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).  One of the problems with arbitrary enforcement is its capacity to further racial injustice in the criminal justice system.  After all, police have a tendency to enforce the law against any group that may happen to “merit their displeasure.”  Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972).  This is the answer to those who say a vague law is a small price to pay for security of increased police stops.  The officer's infringement on liberty may seem to a majority of a community a small price to pay precisely because it was imposed on a minority community and not on them.  In Johnson v United States, 333 US 10, 13, 17 (1948) the Supreme Court stated that "[t]he point of the Fourth Amendment, which often is not grasped by zealous officers,"" is to protect "one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law."  The basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government.  Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)).  See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973).

“[T]he dividing line between what is lawful and unlawful cannot be left to conjecture.”  Connally v. General Const. Co., 269 U.S. 385, 393 (1926).  Law enforcement does not have the discretion to pursue their personal predilections on an ad hoc, subjective and discriminatory basis.  Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned v. Rockford, 408 U.S. 104, 108–09 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 168-71 (1972). 

"[I]t will not do to hold an average man to the peril of an indictment for the unwise exercise of his . . . knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result."  Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927).  Critically, therefore, a citizen has a right to fair warning at a point in time prior to the state court litigation and contemporaneous with the act which the state seeks to punish for a violation of the law.

This means a person can only be punished fairly if he has notice before he acts.  As matter of fairness, retroactivity is not favored in the law.  Kaiser Aluminum & Chem. Corp., et al. v. Bonjorno, 494 U.S. 827, 837 (1990); Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). 

Normally governors use executive orders for ceremonial purposes like honoring soldiers and police officers killed in the line of duty.  However in times of emergency, an executive order can do much more.

With the spread of the COVID-19 virus states like Deleware, New Jersey and Rhode Island delayed scheduled spring elections.  Chris Cillizza, Why in the world is Wisconsin still holding a primary on Tuesday?, CNN.com (Apr. 2, 2020, 3:35 PM); COVID-19 and Elections, National Conference of State Legislatures.  Following this trend, Gov. Evers issued Executive Order 74, much like the other states.  The executive order found that “as of April 5, 2020, 2,267 Wisconsinites have tested positive for COVID-19, 624 Wisconsinites have been hospitalized due to COVID-19, and 68 Wisconsinites have passed away as a result of COVID-19, 241,703 individuals in the United States have tested positive for COVID-19, and 5,854 have passed away as a result of COVID- 19, and, worldwide, more than 1,100,000 people have tested positive for COVID-19, and more than 62,000 people have passed away as a result of COVID-19.”  Therefore, every poll worker and voter who visited the polls, “faced a significant risk of exposure to someone infected with COVID19 by engaging in the process of in-person voting.”  In line with state and local public health officials who found that in-person voting on April 7 presented a "serious challenge to controlling the spread of COVID-19, " the governor postponed the election.

Hours after Gov. Evers issued Executive Order 74 postponing the election for two months, the conservative-controlled Wisconsin Supreme Court said he didn't have the authority to reschedule the race on his own.  The Court admitted that a “public health emergency [is] plaguing our state,’ but the Court said that was not the legal issue before the Court.  Rather the question was did the “Governor has the authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.”

So just what is an executive order in Wisconsin?

Although there is no general statutory or constitutional provision establishing the scope and use of executive orders, under Article V, Section 4, of the Wisconsin Constitution the governor is granted broad authority:

[Article V] Section 4. "The governor shall be commander in chief of the military and naval forces of the state. He shall have power to convene the legislature on extraordinary occasions, and in case of invasion, or danger from the prevalence of contagious disease at the seat of government, he may .convene them at any other suitable place within the state. He shall communicate to the legislature, at every session, the condition of the state, and recommend such matters to them for their.c.onsideration as he may deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed."

There are also various statutes which permit the governor to issue orders pertaining to specified matters such as special elections under Wis. Stat. § 8.50 or emergency powers of the governor under Wis. Stat. § 323.10 (“If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.”) and Wis. Stat. § 323.12(4)(b) indicating the governor can “[i]ssue such orders as he or she deems necessary for the security of persons and property.”  It is left to the Governor discretion to determine what is “necessary” to protect the public. Wis. Stat. § 323.12(4)(b) (“. . . as he or she deems necessary. . .”).  Finally, Wis. Stat. § 323.12(3) creates three separate duties a Governor shall take during an emergency: (1) “issue orders,” (2) “delegate such authority as is necessary to the [administrator of emergency management services],” (3) “and direct the [emergency management division] to coordinate emergency management activities.” (emphasis added).  Thus, in Executive Order 262, for instance, Governor Walker called a special election for Assembly District 58, “pursuant to article IV, section 14 of the Wisconsin Constitution and section 8.50 of the Wisconsin Statutes.”

Beginning with the Gov. Knowles administration in 1965, formal declarations designated ·as “executive orders" were employed to achieve various purposes not expresly authorized by statute. While his predecessors generally used mOre informal methods, Governor Knowles made frequent use of the executive order to establish a series of committees, councils, and task forces to conduct various studies and provide suggestions for possible legislation.  The Legislative Reference Bureau has noted that “fiscal, social and political environment in which governors conduct state business has changed drastically in recent years. As a result, the governor's job has become more complex and difficult and the public's expectations for state action to solve problems and provide services has risen proportionately. Thus, it is possible to view the increased number of executive orders issued in recent years in the context of the more active role the governor is required to assume in meeting the challenges of governing.”

Despite past actions by other governors similar to Executive Order 74, the Wisconsin Supreme Court said the order was not permissible.  Unlike with Gov. Walker, the Wisconsin Supreme Court read the governor’s powers narrowly. The Wisconsin Supreme Court recently held that Chapter 323 does not authorize the Governor to rewrite or suspend statutes and, therefore, ruled that he may not postpone an election set by state statute. Wisconsin Legislature v. Evers, Case №2020AP608-OA (Wis. Apr. 6, 2020)
 

There are two principal ways for all citizens to participate in our democracy – at the voting booth and in a jury box. Thomas Jefferson considered “[T]rial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Alexis de Tocqueville said, “The jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.” Supreme Court Justice Byron White, in Duncan v. Louisiana (1967), wrote: “The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power – a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” All of these scholars agree the right to jury trial, as well as the right to vote, grants to the common man and woman the ability to determine issues in a democratic way.  The right to a "trial by jury" is "a valuable safeguard to liberty" and "the very palladium of free government." The Federalist No. 83, at 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961)
 
So does a defendant have a right to jurors to appear in person for a criminal trial in the era COVID-19? 
 
Federal and state courts in all 50 states have postponed jury trials and are struggling to try and maintain court functions and access to the justice system in light of the COVID-19 pandemic and public health concerns. As a result, there is a provision in Congress’ new $2 trillion proposed COVID-19 relief bill that allows for remote proceedings, such as video and teleconferencing in some court hearings.   The Wisconsin Supreme Court has ordered that, “Judges, commissioners and clerks of circuit court are required to utilize e-mail, teleconferencing, and video conferencing technology in lieu of in-person courtroom appearances through at least April 30.”
 
Someone, somewhere is going to propose that jurors at criminal jury trials appear on-line.  For instance, the New York Post reported:

A sick juror was allowed to FaceTime into deliberations on the final day of a Manhattan federal court trial amid New York’s coronavirus outbreak.
The man — one of 11 jurists weighing the fate Al Sadr Hashemi Nejad, an Iranian banker accused of violating US sanctions against the country — called the court Monday and reported feeling unwell and requested to stay home as a precaution.
 
Judge Alison Nathan, who said the court was under “extraordinary circumstances,” ruled the electronic deliberation could move forward.
 
……….
 
Prosecutors in the case asked for a mistrial, arguing the man would not be sequestered in the same way other members of the jury are and would have access to the internet and other reading materials. Judge Nathan denied the request.
Hours after they began deliberating, the jurors voted unanimously to convict Nejad on a slew of charges including money laundering, conspiracy and fraud charges. He faces more than 100 years behind bars at sentencing.
 
On line jurors would present a number problems.
 
Technical problems
Normally, potential jurors appear together in a jury box in the courtroom.  They have the same surroundings.  Not so if a potential juror appears on line from home on some on line platform like Zoom.  This cause real problems.  Initially these platforms allow ease of access and broad information collection as default settings instead of thinking more completely about preventing harms or protecting privacy.  That is the opposite of what is needed for an on line jury trial.
 
A lesson can be learned from what happens to colleges that have been forced to have on line classes.  First, there is the problem of what is said on line during class time.  Many times statements are made that have little to do with course material but instead relate to other topics. These statements can be vulgar, racist, misogynistic toilet humor.  Are we to assume jurors, clothed in on line protection at home rather than the solemnity of a courtroom, would not behave similarly?  Even if it is not the jurors themselves, what about "zoombombing"?  Zoombombing is the process by which racist vitriol or pornographic content is shared with the group by an unwelcome user that infiltrate the online meeting.  In such circumstances, the online class must be shut down.
 
Think of the cost to the taxpayers of on line trials which are zoombombed at some point and must be started over again.
 
The nature of online lying
Research shows that contrary to what may be assumed, people do not lie more online than in real life.  However, the nature of lying on line would be a major concern for selecting a fair and impartial jury.  The same researchers, like Associate Professor of Department of Communications, UW-Madison Catalina Toma, explain that people who lie online do so to satisfy their interpersonal agenda.  Moreover, Prof. Toma also explains that “human beings are incredibly poor at detecting deception.”  So if a potential juror has as their online agenda to hide some attitude, such as racial bias, it likely will not be detected.
 
Denial of effective juror selection
Juror selection or voir dire is difficult.  One study concludes that "[v]oir dire was grossly ineffective not only in weeding out 'unfavorable' jurors but even in eliciting the data which would have shown particular jurors as very likely to prove 'unfavorable."'  Broeder, Voir Dire Examinations: An Empirical Study, 38 S. CAL. L. REV. 503, 505 (1965).  Voir dire is difficult because it is in reality a self-disclosure interview to obtain background and attitudinal information which might affect a juror's decision in the case.  Virtual juor selection guarantees to inhibit rather than facilitate such self-disclosure.  Sitting at home answering questions a potential juror is far more likely to lie than when present in the formal atmosphere of an actual courtroom.
 
Voir dire is important to determine how a potential juror’s feelings may influence their thinking on the jury . To do so, an attorney must build rapport with the potential jurors.  A minimum level of rapport between the person conducting voir dire and the jurors is necessary for a productive dialogue.  This is grossly inhibited with virtual voir dire.
 
Jurors appearing by the internet interferes the making sure a jury is impartial.  An “impartial jury” is one that is “capable and willing to decide the case solely on the evidence before it,” Smith v. Phillips, 455 U.S. 209, 217 (1982), and that disregards any personal prejudices or biases. See, e.g., Powers v. Ohio, 499 U.S. 400, 411 (1991) (referencing a defendant’s “right to be tried by a jury free from ethnic . . . [or] racial . . .prejudice”); United States v. Maldonado-Rivera, 922 F.2d 934, 971 (2d Cir. 1990) (jurors must “be able to view the evidence with impartiality and to decide the case without bias”).
 
A major function of jury selection or voir dire is to screen jurors for conscious or unconscious bias.  Most agree that exposing racial bias can be hard to root out.  As the US Supreme Court explained in Peña-Rodriguez v. Colorado, 580 U.S. ___ (2017) (no-impeachment rule of jury verdict is set aside when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant), “generic questions” about racial bias may not go far enough to expose it, but more specific questions could actually make the problem worse.  An on line jury would exacerbate the problem of exposing racial bias since a juror can hide behind a computer screen.  The court concluded that a “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”
 
Jurors are also told that the one exception to the sanctity of the secrecy to jury deliberations is if a juror in deliberations presents a racially motivated position for a position.  Jurors may be more reluctant to report racially biased statements by other members of the jury than, say, statements suggesting that a juror’s personal experiences with the subject matter of the dispute affected her vote.
 
Open and Public trials
The right to a public trial is a basic tenet of our judicial system, Walton v. Briley, 361 F.3d 431, 432 (7th Cir.2004), rooted in “ the principle that justice cannot survive behind walls of silence․” Sheppard v. Maxwell, 384 U.S. 333, 349, 86 S.Ct. 1507 (1966).  The importance we as a Nation attach to the public trial is reflected both in its deep roots in the English common law and in its seemingly universal recognition in this country since the earliest times. Gannett Co. v. DePasquale, 443 U.S. 368, 414, 99 S.Ct. 2898 (1979) (Blackmun, J., concurring in part and dissenting in part).  Open and public trials are so important that the violation of the right is considered a “structural error” requiring automatic reversal.  Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827 (1999); Waller v. Georgia, 467 U.S. 39, 49-50 & n. 9, 104 S.Ct. 2210 (1984) (agreeing that "the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee" because such a requirement "would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.")
 
The Sixth Amendment was written after our Founding Fathers knew of the notorious secret courts known as the Star Chamber under Charles I in the early 17th century.  The term "star chamber" became a generalized term for a private court that was accountable to no one (except the chief executive) and was used to suppress political dissent or eliminate the enemies of the regime.  See also, Wis. Const. Art. I, § 7 (the accused shall enjoy the right...to a speedy public trial).  See also, State v. Ndina, 2009 WI 21, 761 N.W.2d 612 (2009)
 
More recently, the Great Purges in the Soviet Union under Joseph Stalin are best remembered for the Moscow Trials, show trials in which the court became a parody of justice, most of the victims of the Terror were tried in secret. Mikhail Tukhachevsky and his fellow Red Army officers were tried in secret by a military tribunal, and their executions were announced only after the fact. The presiding judge of the Moscow Trials, Vasili Ulrikh, also presided over large numbers of secret trials lasting only a few minutes, in which he would quickly speak his way through a pre-formulated charge and verdict.
 
The Wisconsin legislature has recognized that public attendance at a jury trial is important:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses. Wis. Stat. § 757.14.  See, See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974)

However, the legislature has specifically failed to provide that a jury trial could be conducted by “audiovisual means.”  Wis. Stat. § 967.08.  There is no legal provision providing for the suspension of these constitutional or statutory rights.  See, Mitchell F. Crusto, State of Emergency: An Emergency Constitution Revisited, 61 Loy. L. Rev. 471, 504 & n.189 (2015).  The Constitution only provides that habeas corpus may be suspended, not Sixth Amendment rights.  See, U.S. Const. art I., § 9, cl. 2
 
It cannot be reasonably claimed that jurors who are in their private homes not participating in a public trial.

In the worst act of domestic terrorism in American history Timothy McVeigh stood charged with bombing the Alfred P. Murray Federal Building, in Oklahoma City, which took the lives of a hundred and sixty-eight people and injuring some seven hundred.  During the trial of Timothy McVeigh, a mother described her conversation with an employee from the medical examiner’s office about whether she would like it to return her four-year-old deceased daughter’s hand found in the rubble. The testimony was so emotionally powerful that it brought not only the witness to tears but also the jury, courtroom reporters, and the judge.  Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 ARIZ. L. REV. 143 (1999). 
 
Understandably, there was intense media interest in the case.  Robert Nelon, a First Amendment lawyer at the firm Hall Estill in Oklahoma City who represented a coalition of national news media in the case said, “The media interest was extraordinary.  Reporters covered the rescue and recovery, the personal stories of victims, the response of police and fire units, the cooperation of public officials and outside groups like the Red Cross, and the motivations of McVeigh and [accomplice Terry] Nichols.”  Stephen Jones, the lead defense attorney for McVeigh, said “The media interest was extraordinary, Reporters covered the rescue and recovery, the personal stories of victims, the response of police and fire units, the cooperation of public officials and outside groups like the Red Cross, and the motivations of McVeigh and [accomplice Terry] Nichols.”
This media interest was so intense, that Judge Richard Matsch announced on the first day of the trial, “This is not theatre.  This is a trial.”
 
So what is a criminal trial?  As Judge Matsch said criminal trials are supposed to be about the evidence produced in a case, not the emotions produced by the case.  As the U.S. Supreme Court has made clear on a number of occasions, it is of some “importance that decisions be, and appear to be, based on reason rather than caprice or emotion.”  Gardner v. Florida, 430 U.S. 349, 349 (1977).  A citizen is on trial for a social wrong which allegedly deprived another citizen of a life or property.  It is not a harm between two individuals but a harm to society as a whole.  That is why the citizen who has been wronged is not represented by an individual advocate but by an impartial representative who is supposed to represent society as a whole. 
 
This puts a public prosecutor in a vastly different position than an attorney simply representing a party in a case.  “The State, when it becomes the party in a criminal prosecution, occupies a very different position from a party plaintiff in a civil action. It is as much interested in vindicating the innocence of one wrongfully accused, as in convicting one who is really guilty. The sole object of the prosecution is, to ascertain the truth, and to maintain the law. Its process should be as ready, therefore in behalf of the accused, as against him, for the sole purpose of such process is, to procure the attendance of witnesses, by whom the truth is to be established”  West v. The State, 1 Wis. 209, 232 (1853).
 
As Judge Matsch explained, twelve people are selected to look at the evidence and decide the guilt or innocence of the other citizen.  Judges tell Wisconsin juries their decision should be “based upon reason and common sense” and not on “on mere guesswork or speculation” or “personal feelings.” Specifically, a judge tells the jury to “decide the case solely on the evidence offered and received at trial” using their “soundest reason and best judgment” to reach a verdict.  A jury is told not to “be swayed by sympathy, prejudice, or passion” but to “act with judgment, reason, and prudence.”  Finally a judge tells the jury that “these rules are intended to assure that jurors remain impartial throughout the trial.”
 
So what if there is a movement, as exemplified by the Marsy law movement,  to decide a case not on evidence but on sympathy, prejudice, or passion?  Can citizen on trial be prohibited from introducing evidence which would show the citizen was not guilty?  Should an impartial public prosecutor be replaced by a private attorney Is such a law which so drastically changes other constitutional rights currently being used in Wisconsin criminal trials constitutional?
 
The Montana Supreme Court has said “NO.”  A constitutional amendment which so broadly amended multiple sections of Montana’s Constitution was found unconstitutional.  Montana Ass’n of counties v. State, 2017 MT 267, 404 P.3d 733 (2017).  “Although well intentioned,” explained petitioner and Lewis and Clark County Attorney Leo Gallagher, “the process leading to CI-116’s passage deprived Montana voters of the ability to consider the many, separate ways it changed Montana’s constitution or explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal judicial system.”
 
Marsy’s Law misstates and misunderstands what is fairness.  Marsy’s Law represents an appeal to
personal feelings and an attempt to decide a case not on the evidence of what did or did not happen but by sympathy, prejudice, and passion.  It is a false distinction to try and equate “victim’s rights” to the rights of those accused of a crime.  The U.S. Constitution and all 50 state constitutions guarantee defendants’ rights because they are rights against the state, not because they are valued more by society than victims’ rights. Defendants’ rights only apply when the state is attempting to deprive the accused – not the victim – of life, liberty, or property. They serve as essential checks against government abuse, preventing the government from arresting and imprisoning anyone, for any reason, at any time.  Marsy’s Law does nothing to check the power of the government but provides rights against another individual.  This is the current approach of the Wisconsin Constitution.  Wisconsin Constitution Article 1, Section 9m:
 
Victims of crime. Section 9m. [As created April 1993] This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. [1993 J.R. 2, vote April 1993]
Marsy’s Law has no comparable language.

Wisconsin’s constitutional provision is similar to what was done in New Hampshire.  In New Hampshire victims’ rights statute preempts conflict between rights by stating that victims’ rights shall be enforced “to the extent . . . they are not inconsistent with the constitutional or statutory rights of the accused.” This language recognizes that victims’ rights may come into conflict with defendants’ rights and that our justice system works only if defendants’ rights against the state are upheld.
 
But, here is the worst problem as pointed out by Montana Supreme Court Justice Jim Nelson. In enforcing the victim's constitutional rights, the defendant’s constitutional rights may be violated. For example, the victim can do that by preventing the defendant’s counsel from interviewing the victim and some witnesses. If the defendant’s constitutional rights to a fair trial, to due process, to effective assistance of counsel, to confront and meet accusers and witnesses face to face and to compulsory process for witnesses, both wisconsin and Federal Constitutional law may require that the charges against the defendant be dismissed or may require a second trial -- the victims’ rights notwithstanding. That, obviously, is the last thing a crime victim needs.
 
Finally, there are existing laws much better than Marsy’s law at protecting the rights of alleged victims.  The Wisconsin and New Hampshire approachs are much better than Marsy’s Law.  And it is cheaper having to correct all the errors in Marsy’s law.  South Dakota had to engage in the taxpayer paid process of revising Marsy’s Law after it initially passed.  Montana Supreme Court Justice Jim Nelson called Marsy’s Law “A solution in search of a problem.” He explained: “Montana’s Legislature has already enacted a comprehensive body of laws that provide virtually the same victim’s rights as does I-116.” The issue is not that victim protections have not been legally prioritized. They are. Enforcement must improve and those responsible for enforcement must be held accountable. Creating a duplicative law in no way ensures that enforcement of these statutory protections will improve.  As Justice Nelson points out, “If victim's rights are truly a concern, then voters and victims should insist that the present statutory protections be adequately funded and enforced. There is always the remedy of the ballot box for public officials who won’t perform their duties.”

We previously published a list of common sense reforms that could slow the spread of the virus in jails and prisons. In light of the rapid spread of COVID-19 throughout the U.S., and specifically in prisons and jails, we found it necessary to update these recommendations with more detail about who has the power and responsibility to enact policy change, and how to reform the criminal justice system in the midst of a public health crisis.
 
Quick action is necessary for three reasons: Correctional staff and incarcerated populations are already testing positive, the justice-involved population disproportionately has health conditions that make them more vulnerable, and the staffing resources required to make policy changes will be depleted long before the pandemic peaks.
The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions. Protecting vulnerable people will not only improve outcomes for them, but will also reduce the burden on the healthcare system, protect essential correctional staff from illness, and slow the spread of the virus.
health conditions in prisons and jails
Health conditions that make respiratory diseases like COVID-19 more dangerous are far more common in the incarcerated population than in the general U.S. population.
The final reason to move quickly is that, even under normal circumstances, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties. Now that the number of COVID-19 cases is higher in the U.S. than any other country, we know that more people will continue to be directly impacted by illness, including policymakers and government leaders. With the possibility of up to 40% of government lawyers and other policymakers getting sick or taking care of sick relatives, making policy change is going to be much harder and take far longer. If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.
Here are five places to focus:
1. Reduce the number of people in local jails.
State leaders must remember that local jails are even less equipped to handle pandemics than state prisons, so it is even more important to reduce the burden of a potential pandemic on jails. Generally speaking, there are two ways to reduce jail populations: reduce admissions or release more people.
Reduce admissions. This may be the simplest strategy that would show quick results because of the high turnover in jails. If a typical jail stopped admitting people entirely, its population would be cut by 54% in just 7 days. More realistically, if that same jail could reduce admissions by just half, its population would be more than 25% smaller in a week. Different actors within the system can achieve this using their discretionary powers:
    Police can reduce the number of arrests, particularly for what they determine to be "petty offenses."
    Prosecutors can refuse to prosecute certain offenses and consent to release on one's own recognizance (ROR) most or all people charged with crimes. They can defer prosecution, dismiss charges outright, or instead refer defendants to social services or other alternatives to incarceration or detention.
    Courts can vacate "bench warrants" (warrants for unpaid court fines/fees and for failure to appear for hearings) so that law enforcement can focus on public safety concerns and so that people with active bench warrants do not avoid seeking medical attention for fear of arrest. Recognizing the extreme economic stress that most low-income people will experience during this time, courts should refuse to jail anyone for unpaid fines and fees, automatically postpone any court hearings related to fines and fees, or just proactively forgive these debts.
    Jails can refuse to rent space to other agencies. In some states, as much as 8% of the capacity is dedicated to USMS, 10% to ICE, and 66% to state prisons. In addition, jails should refuse to admit people accused of violating technical rules of their state probation or parole. As we recently found, technical violators can make up a huge part of a jail's population.
    State and local legislatures can expand the list of "non-jailable" offenses, which are not subject to arrest but can only be fined or cited.
Release more people. Jail administrators can also accelerate releases of people currently in custody. In situations where administrators and sheriffs may not have the authority to do this on their own, they are still well positioned to suggest to courts, prosecutors and defense attorneys who could be released. Here are some suggested categories for release eligibility:
    People nearing the end of their sentence. 35% of people in jails are serving a sentence, typically under a year. That means that nationally, roughly 75,000 people in jail today are within 3 months of their release date.
    People who are medically fragile, including older people (there are 20,000 people over the age of 60 in jails) and people with chronic illnesses, especially those that have higher mortality risks from COVID-19, like chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, renal failure, liver disease and the immunocompromised, including those undergoing cancer treatment. Facilities should also release pregnant women.
    People held on low bail amounts. Sadly, bail is often used as a wealth test for freedom rather than a test of dangerousness or likelihood to show up for court. But consider this: if your facility is currently holding people who would be released if they could come up with a small amount of money, why are you still holding them? Once bail has been set, the court has already concluded that the individual is not a threat to public safety, since bail is meant to incentivize court appearance, not to detain people the court considers dangerous. Prosecutors, defense attorneys, judges, and the jails -- preferably in cooperation with each other -- need to generate a list of people whose bail should be lowered to $0 and then make sure those people are released as soon as possible.
    People held for offenses that would not result in detention if they were arrested today, now that some offense-based changes have already been implemented in response to the pandemic.
2. Reduce the number of people in state and federal prisons.
This can be done through some restrictions to admissions and most dramatically by increasing releases.
The simplest way to reduce admissions is to refuse admissions for technical violations of probation and parole rules. In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.
The decision to reduce admissions for technical violations can be made at the level of individual parole or probation officers, at the supervisory level, at the level of parole and probation boards, or at the level of state and county executives and legislatures. Any and all of these actors should take immediate action.
Other groups that states should immediately consider for release include:
    People nearing the end of their sentence. Approximately 600,000 people are released from prison every year. If they are going to be released within the next few months anyway, why not release them now?
    People in minimum security facilities and who are on work-release.
    People who are medically fragile or are older. Prisons house large numbers of people with chronic illnesses and complex medical needs that make them more vulnerable to becoming seriously ill and requiring more medical care for COVID-19. (There are 132,000 people who are at least 55 years old in state prisons. The prevalence rates of chronic health conditions that put people at risk for serious complications from COVID-19 are higher in state and federal prisons than the general population.)
    Anyone whose offense is considered "minor" or anyone who has a "low likelihood" of committing another serious offense.
States have many options for how to release these individuals. Mechanisms for increasing releases include:
    Parole boards can parole more people who are parole eligible, and they can accelerate the normal review process, reduce the time between parole reviews, and eliminate the often months-long delays between parole decisions and actual release.
    Governors can grant partial clemency to people who are a short period away from parole eligibility so that the parole board can consider them for release now.
    Governors, legislatures and other agencies can change good-time formulas to allow people additional credit for time served. Commonly called things like "good time," "meritorious credit" or something similar, these systems shorten the time incarcerated people must serve before becoming parole eligible or completing their sentences. Many states give correctional agencies some discretion on awarding good time. The maximum allowed should be granted, and the formulas should be changed to make the rewards more generous.
    Governors can explore letting some people go on temporary furloughs who already meet most other criteria for release. (This used to be common in the U.S., and in response to the pandemic, Iran temporarily released 85,000 people and Ethiopia released 4,000 people.)
    Judges can resentence individuals to make them eligible for release on parole or on completion of the revised sentence.
    ICE, the U.S. Marshals Service and other agencies that send detainees to local jails for confinement can order their release, just as they should do for the people confined in the facilities that they run. These systems should not think for a moment that just because they have outsourced the jailing of these detainees, they are exempt from their moral and public health duty to reduce the density of correctional facilities.
3. Eliminate unnecessary face-to-face contact for justice-involved people.
The criminal justice system makes it difficult for people on probation, parole, and registries -- and the staff of those systems -- to practice the social distancing necessary to prevent the spread of COVID-19. There are at least 7 strategies that probation, parole, registries and the courts can implement to promote social distancing:
    Judges should postpone as many court sessions as possible. They should do so automatically and in advance. Courts should be reluctant to try cases or hold hearings over video monitors, and they should never consider detaining someone they do not feel comfortable -- for public health reasons -- having in their court room.
    Reduce the number of people on the probation and parole rolls. This would reduce the number of people subject to the conditions of probation and parole, which often contradict social distancing guidelines (i.e. required in-person meetings with parole or probation officers), and would free up probation and parole staff to focus limited resources on the higher-need people who remain under their supervision. This may require help from the governor via mass clemency, the legislature, or the courts, and could also involve strategies like applying time-served credits for successful past compliance with probation or parole restrictions.
    Reduce, rather than expand, use of GPS/electronic monitoring. Electronic monitoring requires correctional staff to install (and maintain) the devices and thus to violate social distancing guidelines. Because these devices require monitored people to request permission to leave their designated areas -- a process which can take days -- electronic monitoring will restrict people from seeking appropriate medical treatment, not to mention imposing additional user fees payable to the monitoring companies that low income people struggle to pay during the best of times.
    Minimize in-person requirements. Parole and probation offices should limit face-to-face meetings (especially in crowded offices), suspend on-site drug testing, and limit home visits.
    Courts should cancel pretrial meetings, court-ordered classes, collection of court debt, and all collateral consequences for failure to pay fines and fees.
    Courts, probation offices, and parole offices should eliminate supervision fees, including those that are paid to third-party monitoring services. Under the additional financial pressure created by the pandemic, many more people under supervision will be unable to afford fees, which will put them at risk of arrest and incarceration. This isn't a good use of criminal justice resources right now.
    When faced with technical violations of parole or probation rules -- behaviors that, for people not on parole or probation, would not warrant incarceration -- police should refuse to arrest, jails should refuse to admit, and parole/probation boards should not consider revocation. If necessary, alternative sanctions should be imposed that can be complied with from home, such as completion of an online course or more frequent phone/video check-ins.
4. Make correctional healthcare humane (and efficient) in a way that protects both health and human dignity.
Both incarcerated people and staff would benefit from a health care system that prioritizes human life and dignity over money. Here are some ideas:
    Eliminate medical copays that deter people from seeking healthcare in prison and jail. As of March 27, Hawaii, Kansas, and Nevada state prisons are still charging copays, and Delaware, Maryland, Oklahoma, and Utah have at least twice failed to respond to our inquiries about their copay policy during the pandemic. (For the current status of all states see the copays section of our virus response page.)
    Ensure that staff have sufficient paid sick leave and encourage staff to stay home if they or anyone in their family shows symptoms. Making the necessary changes to reduce overcrowding (and confinement overall) will greatly reduce the need for over-burdened administrators to ask staff to work when sick.
    Provide for basic healthcare needs behind bars, starting with the basic requisites for effective hand-washing. Stop charging incarcerated people for basic products that can protect them from illness. People in prison should not be reliant on COVID-19 fundraisers for necessities such as soap.
    Ensure that facility overcrowding never reduces the quality of the health care provided. When overcrowding or budget concerns impact health care, the first response should always be to reduce the facility population until health care can meet constitutional standards.
    Staff in courts, prisons, and jails should ensure that incarcerated people's health concerns are taken seriously.
    Ensure that the physical and mental health--and human dignity--of people who remain in prison is protected. Particularly helpful is the 40 point checklist prepared by the Washington State Office of Corrections Ombuds, based on the CDC's guidance to correctional facilities.
5. Don't make this time more stressful for families (or more profitable for prison telephone providers) than absolutely necessary.
For people in the free world, communication is almost free, but for the families of incarcerated people, phone calls, video calls and emails are quite expensive. At this time of great stress for everyone, the facilities need to do better:
    Provide unlimited, free phone calls so that families can maintain contact throughout the pandemic when visitation is suspended. Allowing people to assure themselves that their families are safe will greatly reduce stress and anxiety, which, due to the pandemic, are sky-high inside prisons and jails.
    Facilities that do not have video calling systems already in place should temporarily refit the now-empty visiting rooms to support free video calling options with publicly available services like Zoom and Skype. These services can often be installed quickly without the involvement and costs of the prison telephone industry giants.
Since our first coronavirus briefing at the beginning of March, we have been tracking how federal, state, and local officials have responded to the threat of COVID-19 in the criminal justice system. A number of jurisdictions have taken quick and laudable actions to protect the most vulnerable justice-involved people, including reducing the number of arrests and bookings, releasing people held pretrial, reducing admissions to state prisons, and suspending medical copays in most states. Given the toll COVID-19 has already taken on our jails and prisons, as well as our society at large, the time is now for federal, state, and local officials to put public health before punishment.
Footnotes

1. Although national numbers of jail releases per day are not available, the number of jail admissions — 10.6 million annually — is relatively stable, with the jail population turning over quickly, at an average rate of 54% each week. Assuming, then, that the number of admissions is about the same as the number of releases, we estimate that about 29,000 people are released from jails in the U.S. every day (10.6 million divided by 365 days per year). In comparison, in 2017, state and federal prisons admitted and released over 600,000 people, averaging about 12,000 releases a week or 1,700 per day. For state-by-state data, we estimated the number of releases in a similar fashion — we divided the number of annual admissions and releases, obtained from the Census of Jails, 2013, by 365 days. Governors of other states may want to see this table based on data from the Census of Jails, 2013:

State
Jail Admissions
Jail Releases
Alabama
286,843
249,418

Alaska
5,392
3,686

Arizona
210,399
202,484

Arkansas
258,321
232,255

California
1,102,972
995,338

Colorado
211,397
197,866

District of Columbia
12,008
12,238

Florida
732,602
680,801

Georgia
602,648
537,857

Idaho
104,539
50,384

Illinois
315,553
290,264

Indiana
270,415
277,994

Iowa
127,179
123,693

Kansas
153,914
142,759

Kentucky
548,733
509,413

Louisiana
317,091
334,730

Maine
37,995
33,934

Maryland
156,659
164,736

Massachusetts
58,115
76,253

Michigan
359,631
348,584

Minnesota
188,662
180,393

Mississippi
125,961
119,682

Missouri
252,131
239,562

Montana
48,418
39,179

Nebraska
72,616
72,687

Nevada
144,256
146,657

New Hampshire
20,841
22,187

New Jersey
147,088
134,407

New Mexico
150,488
142,035

New York
219,320
201,939

North Carolina
417,199
433,700

North Dakota
39,367
35,979

Ohio
405,313
395,648

Oklahoma
409,293
261,454

Oregon
176,549
172,476

Pennsylvania
209,732
213,319

South Carolina
301,594
325,976

South Dakota
56,477
56,851

Tennessee
461,375
439,364

Texas
1,144,687
1,083,223

Utah
97,509
98,651

Virginia
355,549
304,466

Washington
283,627
305,963

West Virginia
47,439
46,210

Wisconsin
227,243
208,406

Wyoming
29,384
30,803

1.  ↩
2. In Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.
    ↩
3. Release on own recognizance, or ROR, is essentially when someone charged with a crime is not required to pay any money for pretrial release or comply with other conditions such as pretrial supervision. For example, a prosecutor may consent to ROR when it is someone’s first arrest and there is no reason to think that the person would not show up for future court dates.
    ↩
4. In 2013, 8% of Texas jail capacity went to U.S. Marshalls Service detainees. The figure was 7% in New Hampshire, 6% in Missouri, and 5% in Arkansas, Illinois, Kentucky, Maine, Montana, and North Carolina. For the data for all states, see Table 2 to our report Era of Mass Expansion:
   Why State Officials Should Fight Jail Growth.
    ↩
5. In 2013, 10% of New Jersey jail capacity went to immigration detainees. The figure was 5% in Wisconsin, Massachusetts and Arizona, and 4% in Utah, Nevada, New York and Colorado. For the data for all states, see Table 2 to our report Era of Mass Expansion:
   Why State Officials Should Fight Jail Growth.
    ↩
6. In 2013, 68% of Louisiana jail capacity went to housing people for the state prison system. The figure was 51% in Kentucky, 50% in Mississippi, 39% in Arkansas, 36% in Tennessee, and 32% in West Virginia. For the data for all states, see Table 2 to our report Era of Mass Expansion:
   Why State Officials Should Fight Jail Growth.
    ↩
7. Professor Aaron Littman at the UCLA School of Law has compiled a spreadsheet [.pdf download] to help readers understand which local officials have the power to release people from jails. The information in the spreadsheet is state-specific.  ↩
8. Policymakers should also double their efforts — without slowing down actual releases — to plan for a continuity of health care after release, including getting people signed up for Affordable Care Act coverage and giving them referrals for other treatment as needed.  ↩
9. One way the Los Angeles County Sheriff’s Department is reducing its jail population is by allowing deputies to cite and release anyone whose total bail would amount to less than $50,000.  ↩
10. We know that some will ask about where these people will go. As is always the case, some have a home and support system waiting for them. Others will experience homelessness or housing instability. Unfortunately, the current struggle of formerly incarcerated people to secure housing is still likely safer than a possible death sentence from forced confinement in one of the densest housing situations on the planet.  ↩
11. Note that people convicted of violent crimes and sex offenses are the least likely to commit a similar offense in the future.  ↩
12. Holding court hearings via video may violate due process rights and other rights afforded under the federal and state constitutions, and it has been proven to change the outcomes of judicial decisions for the worse. For example, using video to set bail has been shown to increase bail amounts by 65%. Policy makers considering video should also consider the chilling findings from 2015 study by Ingrid Eagly of the impact of using video during federal immigration proceedings:

“Comparing the outcomes of televideo and in-person cases in federal immigration courts, it reveals an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents’ claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process — they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure.”
REPRINTED FROM: PRISON POLICY INITIATIVE, by Peter Wagner and Emily Widra
https://www.prisonpolicy.org/blog/2020/03/27/slowpandemic/

One of Aesop's Fables is the story of the Wolf and the Lamb:

A Wolf, meeting with a Lamb astray from the fold, resolved not to lay violent hands on him, but to find some plea to justify to the Lamb the Wolf's right to eat him.  He thus addressed him: "Sirrah, last year you grossly insulted me."  "Indeed," bleated the Lamb in a mournful tone of voice, "I was not then born."  Then said the Wolf, "You feed in my pasture."  "No, good sir," replied the Lamb, "I have not yet tasted grass."  Again said the Wolf, "You drink of my well."  "No," exclaimed the Lamb, "I never yet drank water, for as yet my mother's milk is both food and drink to me."  Upon which the Wolf seized him and ate him up, saying, "Well! I won't remain supperless, even though you refute every one of my imputations.

The moral to the story is simple:  A tyrant will always find a pretext for his tyranny.

According to Rolling Stone, “DOJ Wants to Suspend Certain Constitutional Rights During Coronavirus Emergency.”  Politico further explains that “In one of the documents, the department proposed that Congress grant the attorney general power to ask the chief judge of any district court to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.  The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings,” according to draft legislative language the department shared with Congress. In making the case for the change, the DOJ document wrote that individual judges can currently pause proceedings during emergencies, but that their proposal would make sure all judges in any particular district could handle emergencies “in a consistent manner.”

That means your government, which is supposed to be instituted for “We the people…..,” could arrest you and never have you brought before a judge until the government decides that the emergency or the civil disobedience is over, said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers.
 
Unfortunately, the cry to suspend the Constitution due to some emergency is not a new one.  As Justice Davis explained in Exparte Milligan which was decided after the Civil War, invalidating the criminal conviction of a civilian by military commission in a non-rebellious area as a violation of the rights to indictment and trial by jury:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority." 71 U.S. (4 Wall.) 2, 120-21 (1866).

In dealing with another perceived threat from Asia, the United States Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944) held that exclusion of all persons of Japanese ancestry from a designated "Military Area" was constitutional.  It took an ex-Nuremberg prosecutor, Robert H. Jackson, to explain the real harm caused by the Court’s decision.  Justice Jackson explained that the great harm to liberty and equality done by the military expulsion of Japanese Americans from their homes and communities was dwarfed by the still greater harm done by bending the Constitution into a form that could rationalize that course of action because of the exigency of the moment.  The principle of suspending the Constitution at the time of a proclaimed government emergency, explained Justice Jackson, is a  principle...”[that] lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting).

As the tale of the wolf and the lamb remind us, government action generated by public paranoia towards an unpopular cause or group rarely meets constitutional requirements.  City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442 (1985) (law against marginalized groups,-such as a group of mentally disadvantaged residents, cannot meet the equal protection command of the Fourteenth Amendment.).  It is not good legal policy to choose expediency over due process.  State v. King, 82 Wis. 2d 124, 138, 262 N.W.2d 80 (1978).  “[W]hat the Framers understood then remains true today—that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy.  It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms.  In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the government’s enforcement efforts remain within the strict boundaries.”  United States v. Leon, 468 U.S. 897, 929–30 (1984) (Brennan, J., dissenting).  Assertions of extraconstitutional authority by the federal government based upon the suspension of the Constitution were anticipated and precluded by the explicit terms of the Tenth Amendment which states that the federal government possesses only those powers delegated to it by the United States Constitution.  A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495, 528-29 (1935).

“It’s hard to envision how the small amount of alcohol in hand sanitizer poses a greater risk in prisons and jails than that of contracting coronavirus.”

Jails, prisons, and detention centers in America are often overcrowded and unhygienic places. This is dangerous, even under normal circumstances. But with the coronavirus spreading rapidly, the nation’s addiction to mass incarceration could be disproportionately deadly for many incarcerated people — especially those 65 and older or those with pre-existing conditions — who often live on top of each other. 

To discuss the risks that coronavirus presents to our correctional systems, I caught up with Dr. Homer Venters, a physician, epidemiologist, and the former chief medical officer of the NYC Correctional Health Services, where he played a leadership role during the H1N1 outbreak in 2009. He is the author of Life and Death in Rikers Island, a groundbreaking book that examines the severe impacts of mass incarceration on health. Currently, Dr. Venters serves as the senior health and justice fellow for Community Oriented Correctional Health Services.
Our conversation was edited for length and clarity.

Why do jails and prisons present such significant health risks to incarcerated people and to employees?
Jail and prison health systems in the United States have been designed to be very separate from the rest of the country’s community health systems. The government agencies that are crucial to managing the coronavirus response — like state departments of health, county departments of health, and the Centers for Disease Control and Prevention (CDC) — are essentially absent from jail and prison healthcare and health outcomes. As a result, jails and prisons struggle to provide even basic health services and lack most of the skills and resources to manage outbreaks.

In the broader response to coronavirus, we continue to hear about the need to think beyond the walls of a school or a house of worship, to think across a whole community, and to coordinate all our response efforts together. Meanwhile, 5,000 jails and prisons stand in stark contrast because people behind bars and the health services that they receive are so completely separate from the rest of our society.

What should jail and prison administrators do to ensure that incarcerated people and employees who work in these facilities stay safe?

One of the first steps is to make sure that jail and prison administrators are in the room with the community and public health leaders that are managing the community response to the coronavirus outbreak. You need to have leaders from these correctional settings at the table. Just as there are important implications for what happens in schools, in libraries, and in business, there are critical decisions that have to be made about jail health services. Jails, after all, cannot simply be shut down like schools.

The way jails and prisons are designed and administered promotes the spread of communicable disease. Generally speaking, these are unsanitary settings, and there is not ample access to handwashing. Most of the terms that we have learned in the last few days, like social distancing and self-quarantine, are completely not applicable in these settings. We have lots of staff and visitors coming and going, and we have to anticipate that as the coronavirus impacts the people who are detained or incarcerated, it will also impact staff. And it will mean fewer people to work in these places at just the time where the administration of these settings will actually require a very complex set of housing area decisions and other management responses.

New York Gov. Andrew Cuomo recently announced that incarcerated people will be making hand sanitizer. However, in most jurisdictions, including New York State, hand sanitizer is contraband. Should hand sanitizer and related items be more readily available and taken off the contraband list?

Given that this is a pandemic, it’s hard to envision how the small amount of alcohol in hand sanitizer poses a greater risk in prisons and jails than that of contracting coronavirus. But I would say that many places won’t get hand sanitizer, even if there is a policy decision permitting it. In fact, handwashing is one of the simplest and most important tools for preventing the spread of coronavirus. And if you spend even just a couple of minutes in any jail or prison area, you would quickly find that many of the sinks there for handwashing don’t work, or that there are no paper towels or no soap. In other words, handwashing, the most basic tool that incarcerated people have, won’t be consistently available. Jail and prison administrators should be thinking right now about how they can put more infection control measures into place very quickly. 

Some advocates are calling for an early release or medical furlough for incarcerated people who are sick or elderly. Should all jurisdictions do this? 

We especially need to be concerned about everybody in a correctional setting with a chronic medical problem who is older than age 50 or 55. It is important to think about their path out of jail and prison.

I worry that as people who work in the courts get sick — such as judges, defense attorneys, and prosecutors —  and as transportation becomes difficult, the path out of these places may become obstructed. We saw this dynamic during H1N1. We had patients who couldn’t get to court, and their path to court was their path home. That is another rationale for shrinking the size of the population of people in every prison and jail. Yes, we want to increase the likelihood that we can succeed in the management plan inside the jail or prison. But we also want to avoid blocking the path out of jail or prison and to avoid a scenario where people can’t go home because they can’t access certain types of court services.

Ultimately, this pandemic is going to impact people across a wide range of ages. And people who come into jails and prisons are a very high-risk population because they have high levels of both physical and behavioral health problems. So you have a much broader spectrum of patients at risk of contracting the virus, and many of them are at risk for really serious illness and death. Given how hard it is for those patients to access care, many of these deaths may end up being jail-attributable deaths.

In other words, I anticipate that people will die behind bars of coronavirus who would have survived if they were in the community. We know this happens with diabetes, with trauma, and with suicide. I think our lack of evidence-based systems in these places may also drive jail-attributable deaths from coronavirus.
To remedy this, I would start by looking at the path into jails and prisons or into incarceration. As the virus gets into these settings, one of the most critical tasks will be risk management. This raises questions such as: Where are the high-risk patients? How can we protect them from getting coronavirus? When they show signs of symptoms, how can we make sure we can get them higher levels of care if and when they need it? And once they develop symptoms, how are we keeping them separate from everybody else?

All of that requires the ability to use housing areas for relatively small groups of people and to cohort people into different groups for housing based on their health status. Cohorts help separate at-risk people with no symptoms from people who are in their early stages of symptoms and from people who have a diagnosis. I think this starts with reevaluating all of the points of entry in the prison system, from community policing to the courts and arraignments into the jail setting.

What worries you the most about coronavirus?
Right now, what worries me the most is the lack of communication with people who are incarcerated, with their families, and with the staff who work in these facilities, especially correctional staff. This was really a core issue during the H1N1 outbreak. Patients were terrified; correctional officers were terrified; and it was really hard for us in health services to build up a good pathway for communicating with those staff. I worry about all of the misinformation and fear that is already starting to build in jails and prisons and that it will spread like wildfire once the first few cases start happening.

The lack of information can lead to a very toxic mix, especially when you consider the power dynamic where patients don’t have autonomy while correctional officers who have lots of power don’t have information and are scared. That dynamic can contribute to very bad health outcomes and to poor conditions in jails and prisons, especially when the correctional staff and the patients or the incarcerated people have been left out of the loop. I think that is what has happened so far.

There is certainly much more information being shared between commissioners of health and the press or people perceived as their constituents than with people behind bars, both those who are held there and those who work there.

REPRINT FROM BRENNAN CENTER FOR JUSTICE,
https://www.brennancenter.org/our-work/analysis-opinion/how-coronavirus-could-affect-us-jails-and-prisons?utm_source=The+Marshall+Project+Newsletter&utm_campaign=cd93ac0c8a-EMAIL_CAMPAIGN_2020_03_14_11_31&utm_medium=email&utm_term=0_5e02cdad9d-cd93ac0c8a-174330029