Being a Defendant in the Era of Coronavirus

As if being accused of a crime was not difficult as is, coronavirus has made being a defendant even more trying. The difficulties it brings include uncertain court dates, altered court policies, challenges to communication, the possibility of being jailed during a pandemic, and more.

The Virginia Supreme Court first declared a “judicial emergency” on March 16, 2020. All courts in the Commonwealth were closed, except for emergency matters such as bail reviews and protective order cases, until April 6, 2020. All other cases were continued to later dates. A series of later orders by the Virginia Supreme Court extended the period of judicial emergency to later and later dates. As of the date of this post, June 9th, the judicial emergency is currently extended until June 28th.

This has brought several challenges to defendants in the Commonwealth. First, trial dates that defendants have planned their lives around have been rescheduled, sometimes multiple times. There are defendants who planned moves to locations out of state, or arranged travel from out of state, based upon court dates that they had good reason to think would stand firm. Now these defendants face great additional expense to meet their legal obligations.

Defendants also face burdens from altered court policies. For example, in many courts, only those who are judges, court staff, parties, witnesses, or attorneys are allowed in courtrooms. While the intent is understandable, it does have the effect that it crowds personnel not in one of those categories into the hallways outside the courtrooms, and so the policy can be counterproductive. A more prudent approach might be to allow all in the courtrooms, but mandate a separation between each person in the courtroom (except for those who live with someone present with them in the courtroom).

Communicating with necessary parties has presented new challenges. Some Commonwealth’s Attorneys offices are operating with reduced staffing. This has resulted in not only fewer people available to speak with, but also an over-reliance on automated phone trees filled with prerecorded messages. These phone trees are a great tool to convey answers to the most common inquiries, but they are not capable of dealing with unique questions during an era when so many are going through special circumstances.

Despite the difficulties that defendants are facing using the court system, they still are facing the threat of jail time. Many Virginia jails have been making an effort to release non-violent offenders who face health risks from coronavirus, but defendants, including those in high risk categories, continue to be sentenced to jail time. Delayed entry to jail has been the most favorable outcome that I have seen, though there are alternatives that would be suitable for those at high risk.

Many are unable to get important milestones accomplished in their lives because of how courts are currently functioning. They have no resolution to criminal or civil litigation. They are unable to record deeds in person in many jurisdictions. They are unable in many cases to have their driver’s licenses restored.

Avoiding the spread of coronavirus is an important goal, and it is good that Virginia’s judiciary has acted aggressively to combat this disease. We have to make sure that the costs of these measures are considered, however. We don’t want people to get sick, but we also have to try to avoid hurting Virginians in other ways.