Coronavirus Shouldn't Delay Justice in California

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(Bloomberg Opinion) -- In a little-noticed move over the weekend, California’s judicial council unanimously took some worrisome steps away from constitutional principles. Drawing on emergency powers conferred by state law and an executive order by the California governor, the council changed the deadline of 48 hours for arraigning arrestees to as much as a week. It also extended the date for a mandatory preliminary hearing in criminal cases from 10 days to 30 days; and it added an extra 30 days to the “speedy trial” deadlines for both misdemeanors and felonies.

These measures deserve close scrutiny on their own merits. Fast arraignments, hearings and trials are cornerstones of judicial due process. California is the most populous state in the union, and the changes will affect many arrestees.

But the measures also need a close look because they may set a trend. Throughout the coronavirus crisis, California has been at the leading edge of adopting new measures. San Francisco and other Bay Area counties were the first to adopt formal shelter-in-place orders; and California was the first state to adopt a statewide movement-restricting order. Both of these became influential models. What California does today in criminal justice may soon be followed by other states.

The measures were enacted through a worrisome legal mechanism. California’s emergency law empowers the governor to suspend any state statute temporarily during the duration of the emergency and for some days beyond. You read that right: the law allows the governor to strike laws off the books temporarily. (It doesn’t extend to the state constitution or, of course, to the federal Constitution.)

And so California Governor Gavin Newsom issued an executive order empowering the chairperson of the judicial council (who was also the chief justice of the state Supreme Court) and the judicial council to adopt emergency measures that would otherwise violate applicable California law. The Chief Justice, Tani Cantil-Sakauye, and the judicial council responded with a series of orders implementing the new dates.

On the surface, it seems reasonable to delay court dates under conditions of emergency. But on closer examination, it would have been far superior to maintain the existing dates for arraignment and preliminary hearings while allowing such hearings to take place remotely, using any available telecommunications technology, like FaceTime or Zoom.

The point of fast arraignment is to make sure that police don’t detain people without making a valid legal charge. This has long been a bedrock principle of the Anglo-American constitutional tradition.

The point of the preliminary hearing is to make sure that the government actually has some evidence to back up its charge. This is just as important — arguably even more important — than the arraignment.

To see how crucial these proceedings are, consider that when governments outside the U.S. have wanted to fight terrorism, they’ve often sought (and gotten) the legal authority to engage in so-called administrative detentions, typically lasting weeks. An administrative detention is simply a government right to hold you without any sort of arraignment or preliminary hearing. In other words, the California order effectively allows a kind of administrative detention during this state of emergency.

The 30-day extension of the speedy trial dates worries me less. These requirements do have an important role in principle: they make it unlawful for the state to rely on delay to hold detainees for long periods without a trial. In practice, however, in many instances the speedy trial dates can become subject to negotiation as part of the litigation strategy that leads to plea bargains. Adding another 30 days to these dates isn’t ideal, but it doesn’t threaten basic rule-of-law precepts.

To its credit, the judicial council did adopt an emergency rule allowing courts to use a video link for hearings. Yet the fact that it did so shows that there is a potential solution to the challenge of timely arraignments and preliminary hearings. They could be held on video under the preexisting timeframe requirements.

Given the extremely dangerous conditions for the spread of Covid-19 among incarcerated people, this is an especially bad time to make it easier for the government to hold arrestees longer.

It’s also a bad time globally for courts in the United States to weaken the protections of the rule of law. Around the world, would-be autocratic governments are using the Covid-19 pandemic to expand their power and contract civil liberties. In the United States, we’re still very far from similar measures; but the encroachment of autocracy anywhere should be a serious concern for supporters of constitutional democracy everywhere.

All U.S. states should be especially wary of making any changes, however small they might appear, that weaken judicial due process during this crisis.

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2020 Bloomberg L.P.

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