Criminal Justice Section members should pay close attention to rapidly developing guidance from state and federal courts concerning COVID-19. The most recent guidance is summarized below, and the relevant orders are linked. Please also check with your local courts to track developments affecting you and your clients; as of 11:00 a.m. Monday, March 16, 2020, 16 counties were reporting court closings and/or advisories.
EFFECTIVE MONDAY, MARCH 16, 2020, for 30 days, Chief Justice Beasley ordered the rescheduling of District and Superior Court proceedings calendared between March 16 and April 16. No District or Superior Court matters can be added to the calendar during the 30-day period either.
Individual judges presiding over criminal proceedings may take actions with respect to their cases that are lawful and consistent with the WDNC order, taking into account criminal defendants’ right to a speedy trial and the application of that right to defendants who are detained pending trial
The time period of any continuances granted under the order will be excluded under the Speedy Trial Act
To reduce the possibility of exposure:
The U.S. Marshal’s Service is directed to immediately remove any ill detainees from the courthouse
Judges will stagger court hearings as much as possible
Magistrate Judge hearings will be moved to larger courtrooms
Magistrate Judges will use After Hours Warrants procedures and will continue to develop the capability to use Skype for initial appearances
Settlement conferences and non-evidentiary proceedings will be conducted by Skype
Court employees experiencing symptoms are to remain at home on leave or telework
Although not specifically stated, criminal case proceedings will continue
The following persons shall not enter any U.S. Courthouse or U.S. Probation Office, without the prior permission of the Chief Judge:
Anyone who, within the last 14 days, traveled:
To China, South Korea, Japan, Italy, Iran, or Egypt
To the State of Washington
To New Rochelle, New York
To any other country or region that is the subject of a Level 3 Travel Health Notice issued by the CDC;
Anyone who resides or has had close contact with someone who falls within the descriptions above;
Anyone displaying symptoms of COVID-19, including fever, cough, or shortness of breath;
Anyone diagnosed with, or having had contact with anyone diagnosed with, COVID-19; and
Anyone who has been asked to self-quarantine
Any attorney that is scheduled to appear before a judge in the EDNC but cannot due to the restrictions above should contact the judge’s case manager
NC State and Federal Prisons
There has been a great deal of reporting about the fact that COVID-19 poses a particular threat to inmates, who are confined in close quarters with others and lack the same access to soap, hand sanitizer, and social distance as those at liberty. Indeed, China, Iran, and Italy have reportedly struggled to address the spread of COVID-19 in prison populations. I have not yet seen a specific plan for combatting COVID-19 in North Carolina’s state jails and prisons, but one hopes that such a plan is forthcoming. The U.S. Bureau of Prisons has published a COVID-19 Action Plan, available here.
The key components are:
Social visits are suspended for 30 days
BOP will allow for additional inmate telephone calls (500 minutes per month instead of 300)
Legal visits are suspended for 30 days, although case-by-case accommodation will be made and confidential legal calls will be allowed
Attorneys seeking an in-person visit with their client or a confidential call should contact the institution Executive Assistant
All inmate facility transfers will be suspended for 30 days, with certain exceptions
BOP will implement nationwide modified operations to maximize social distancing
Finally, because of the increased risks associated with COVID-19 in prisons, I have heard that at least one federal judge has varied downward from a prison term to a term of house arrest plus probation. That may be something for defense counsel to consider requesting at sentencing during this pandemic.
UPDATE: March 17, 2020
In yesterday’s Judicial Updates on COVID-19 post, I wrote that I had not yet seen a plan for combatting COVID-19 in North Carolina’s jails and prisons. Now I have. Effective March 16, the North Carolina Correctional System implemented a number of policies to limit the spread of COVID-19. Jamie Markham at the UNC School of Government posted an excellent rundown of the new policies and procedures. You can find his posthere.