An extended version of this essay is published in the Atlantic, located here.
Tossing a used Snickers wrapper on the ground. Taking a $2.98 Red Bull from a 7/11 in 2018. Sitting under a “No Loitering” sign. Yelling inside a Royal Farms.
The COVID-19 pandemic has highlighted a critical flaw in the criminal system – the overzealous prosecution of misdemeanor crimes. We are all attempting to find a sense of normalcy during this chaotic pandemic, but OPD clients face an additional struggle - defending themselves against petty misdemeanor charges.
The Maryland court system continues to schedule these out-of-custody misdemeanor cases, instead of prioritizing the scheduling of misdemeanor and felony cases for incarcerated clients. Clients are languishing in detention centers without the ability to safely communicate with their attorneys and families. Court dates have been reset without providing notice for many clients. Some clients have no court date at all. Some of these cases are, effectively, being held indefinitely over their heads.
The court has focused on scheduling misdemeanor cases with the hope that this will coerce guilty pleas, and reduce the case backlog caused by the court’s temporary closing in March. Some counties have scheduled up to 6 cases per hour. Attorneys are expected to resolve all of their matters, including trials, within that hour. State’s Attorney’s offices offer time-sensitive “no jail” offers for clients willing to surrender their right to a trial and enter a plea. If a client chooses to assert their constitutional right to trial, the offer disappears and the client is now faced with the possibility of incarceration. Make no mistake, this reopening plan is not about justice or safety; it is about judicial “efficiency.”
The judiciary’s blind desire to process this backlog of misdemeanor dockets comes at the expense of both our clients’ safety and health, as well as our own. Clients are risking their lives simply to defend themselves against charges of littering, shoplifting, acting disorderly, and other minor offenses. In many jurisdictions, police officers and civilian witnesses must also be present in court. Clients, police officers, civilian witnesses, attorneys, clerks, and bailiffs remain in a small, windowless courtroom for hours on end so that cases can be continued or dismissed - a resolution that could easily be achieved without exposing countless people to COVID-19.
Additionally, judges are still issuing bench warrants for clients who fail to appear and may not have received notice for trial, against recommendations to avoid doing so. By issuing bench warrants, the court fails to consider that many of our clients may not be present in court due to lack of transportation, lack of housing, inability to pay for phone services, inability to find childcare, and other external issues exacerbated by the COVID-19 pandemic. When the bench warrant is served on our client, they are often forced to spend the night in detention centers, which have morphed into epicenters of multiple outbreaks throughout the country [1].
We must place our clients’ health and our workers’ health above all else, and we can do this by demanding the dismissal of petty misdemeanors.
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[1] See e.g., German Lopez, Why US Jails and Prisons Became Coronavirus Epicenters, Vox (Apr. 22, 2020), https://www.vox.com/2020/4/22/21228146/coronavirus-pandemic-jails-prisons-epicenters (noting that US jails admit around 5 million people per year, many who are released back into community within days or weeks); Coronavirus in the US: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#hotspots (stating that 10 out of 15 “clusters” or locations with highest number of known infections in the United States are correctional facilities) (last visited Aug. 16, 2020).