This week, Jews around the world will read the Torah portion known as Shoftim (Judges). This particular section of Deuteronomy instructs the Israelites to establish judges and officers in their communities, and includes the famous injunction, “Justice, justice shall you pursue.”
Like many, I have long been fascinated and perplexed by this command. Why is “justice” repeated twice? And why are the people instructed to pursue justice rather than to achieve it? The answers that immediately spring to mind — the second “justice” is for emphasis, and the command to “pursue” a nod to the idealism of the rule — do not fit comfortably with the larger text of the Torah. The direct repetition of a word, for example, is not common in Biblical text, and traditional exegesis demands that the second use carry a separate and independent meaning. Over the years, I have heard and read many thoughtful takes on the issue. Perhaps, for example, the repetition of “justice” captures substantive and procedural justice, or justice for the individual and for the community, or social justice and justice under the law.
The term “pursue” is equally difficult. Granted, it is impossible for any society to actually achieve perfect justice; perhaps dogged pursuit is all that can be expected of us. But the Torah includes other commands that are equally inconsistent with human nature. “Do not covet,” for example, is an impossible task for mere humans to adhere to, yet it comes with no qualifying language. So why say “pursue” here?
These questions pop into my mind every year around this time, a natural consequence of reading Shoftim around the start of the new law school year. But this time, there was another reason to take a close look at the Biblical injunction to pursue justice. It came in the form of an extraordinary recent episode of Bari Weiss’s new podcast, Honestly. In this episode, Weiss and guest podcaster Kmele Foster examine the “Central Park Karen” story from last summer. They reveal that the simple, straightforward story that was presented to the public is in fact complex, nuanced, and oftentimes messy. And it raises all sort of difficult questions about how our society metes out justice, both in and out of court.
Continue reading “Two ways of pursuing justice”
Several sources are reporting that a gunman came to the home of U.S. District Judge Esther Salas yesterday, and shot her son and husband when they answered the door. Her son, age 20, was killed and her husband was badly injured. Judge Salas was apparently in the basement at the time and was not hurt. The gunman, who was apparently dressed as a delivery driver, is still at large.
The motive for the shooting is unknown, although Judge Salas has presided over some high profile criminal cases since taking the federal bench in 2010. Unfortunately, attacks on judges and their families have happened before.
This is very sick, terrible news to start the week.
The federal courts’ COVID-19 Judicial Task Force released a detailed report on Wednesday, containing recommendations for conducting jury trials and convening grand juries during the coronavirus pandemic. This Bloomberg Law piece provides a bit of additional context.
The report relies on guidance from the Center for Disease Control, and acknowledges that district courts may be ready to open, and open more fully, at different times during the next few weeks. It is a careful, detailed, and thoughtful report. It also illustrates the complex issues that virtually every organization — public or private — is facing right now regarding reopening: cleaning, social distancing, virus screening, transparency, scheduling, travel safety, and so on. Ask any school administrator, business owner, local bureaucrat, or public official, and you’ll hear about the same predictive difficulties.
The bottom line: courts are navigating this crisis just like the rest of us. Preparation is essential, but only time will provide real clarity.
Courts worldwide are using videoconferencing technology for a wide range of proceedings during the coronavirus pandemic, including (in some instances) trials. And disturbing new ground was broken this past week, when a judge in Singapore sentenced a defendant to death by remote video. The defendant had been found guilty of participating in a drug deal, and Singapore has a zero tolerance policy when it comes to illegal drugs.
This is probably not the place or time to reflect on Singapore’s draconian criminal laws and sentencing practices. But regardless of where one falls on the capital punishment debate, there is something especially dehumanizing about receiving a death sentence through a video screen. The judge (or jury) should have to look the defendant in the eye–face to face–when assessing such a punishment.
American courts have been experimenting with Zoom sentencing, and in fact a federal district court is scheduled to sentence a white collar defendant by videoconference on June 4. But that defendant is based in France and is hoping to avoid prison time altogether; it is night and day when compared to the Singapore sentence.
(h/t John McCarthy)
While most states are delaying trials or holding them via videoconference, Oregon’s courts are continuing in-person jury trials for many criminal defendants. Social distancing guidelines have been put into place, but there is much trepidation on the part of jurors and observers alike.
“It is very unusual,” said Paula Hannaford-Agor, the director of the Center for Jury Studies at the National Center for State Courts, a nonprofit organization that supports state court systems. “To the best of my knowledge, Oregon has been the only state that I’m aware of that has been doing trials.”
Across the country some of the orders limiting or halting court functions are set to expire, Hannaford-Agor said, while others states have closures or limited court functions that extend until June and even July. Though Multnomah County has reopened trials, neighboring Clark County, Washington, has decided to delay all trials until at least July 6.
“Jury service is the very definition of community spread,” Hannaford-Agor said. “There’s probably no better way to spread the infection than putting anywhere from 50 to 300 people in a room together sitting side-by-side for hours at a time.”
In Oregon, many trials have been rescheduled. But for some criminal defendants who are in custody that’s not possible. Oregon law has less flexibility than other states when it comes to speedy trials and no emergency provision to delay them. In custody defendants get the right to a [trial] within 60 days of their arrest.
A glance at the recent developments, and what to look for in the future.
It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.
Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”
Kudos to the Miami Herald for posting this story on the first Zoom hearing in a criminal case in the Miami-Dade court system. Most interestingly, the story includes an edited video of the hearing, in which the judge sat in the courtroom, the prosecutor on her home patio, and the primary witness in the front seat of his police SUV.
It is reassuring to see that the justice system is continuing to operate relatively smoothly under difficult circumstances. It is also comforting to observe how seriously some courts are taking their ongoing responsibility to provide transparent and accessible justice.
The novel coronavirus is affecting societies worldwide, and judicial systems are no exception. Here is a selection of the latest news and profile stories on how courts are dealing with the epidemic:
What is the state of Israel’s courts in the time of coronavirus? (Jerusalem Post)
Uncertainty looms over Supreme Court as lower courts transition to teleconferencing (Washington Free Beacon)
Federal Judge’s Sentencing acknowledges COVID-19 (Forbes) (a story about the sentencing of certain defendants in the “Varsity Blues” college admissions scandal)
COVID-19 and Online Dispute Resolution: It’s a Whole New World Out There (op-ed for the Connecticut Law Tribune)
7th Circuit suspends most paper copies to slow spread of COVID-19 (Chicago Daily Law Bulletin)
Previous roundup coverage here. And check the home page for additional discussion of coronavirus and the courts.
Last week, Congress passed the CARES Act, which most notably was designed to give a push to the American economy in the wake of the COVID-19 crisis. Nestled within that Act was a provision that permitted the Judicial Conference of the United States to determine that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally.” Such a finding would then permit chief judges of individual federal district courts to temporarily authorize videoconferences or teleconferences in certain criminal proceedings, solely in response to the coronavirus crisis.
The Judicial Conference made that authorization on Sunday, leaving it now to individual districts to determine whether to implement videoconferencing. It is worth noting that the legislation (which was passed with significant input from the Judicial Conference) is relatively narrow, and applies only to the current COVID-19 emergency. Moreover, the general authorization applies only to certain types of criminal proceedings: in particular, no felony plea or sentencing could be done by video- or teleconference unless the district court makes additional findings that such proceedings (1) cannot be done in person “without seriously jeopardizing public health and safety”, and (2) that “there are specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.”
This is an entirely practical step, representing collaboration between Congress and the courts to protect the efficient operation of the criminal justice system. Whether it will open the door for further use of videoconferencing in non-emergency situations, however, is very much unsettled. And the current legislation has drawn criticism in some circles that it reduces much-needed transparency in criminal justice.
Earlier this year, New York State’s poorly thought-out bail reform law formally went into effect. (New York City courts began implementing it even earlier under the directive of Mayor Bill de Blasio.) The law requires state judges to release criminal defendants without bail except in the most egregious cases. While the law was intended to address perverse effects of existing bail laws on minority communities, it backfired spectacularly from the very start. In December, a woman accused of an anti-Semitic attack on the streets of New York City was released even after admitting her deed; she was involved in another criminal incident less than 24 hours later (and eventually was charged with federal crimes for which bail is required). She was not alone: many stories have identified criminal defendants who were released without bail despite being charged with violent crimes; some of the defendants have even expressed their own surprise at being released. Both de Blasio and New York Governor Andrew Cuomo, who initially championed the legislation, have publicly announced that they have had second thoughts.
The law is deeply problematic because it denies state judges a role fundamental to their jobs: the discretion to determine the conditions under which a criminal defendant should be released. Now some judges are speaking out against it themselves. At a recent forum, Bronx Criminal Court Judge George Grasso called for immediate efforts to change the law:
Grasso, a former deputy police commissioner, acknowledged the deep racial and income disparities that informed the push to overhaul the bail law, but said state lawmakers should amend the measure to allow for judicial discretion in setting bail and remanding defendants considered dangerous.
“The scope of removal of judicial discretion on bail matters in this reform package is breathtaking,” Grasso said in prepared remarks. “New York State is the only state in the United States that does not let judges consider ‘dangerousness,’ but instead resorts to twisted logic.”
“We should stop the charade now,” he continued. “It is my opinion that without significant changes, the current legislation will not only be a missed opportunity for long overdue criminal justice reform, but also a significant threat to public safety.”
This is a noteworthy development. Judges typically do not speak publicly on the state of the law, even laws that directly affect the administration of courts and the justice system. Offering a personal opinion on the validity or effectiveness of a law opens a judge to charges of bias or partiality. So it takes a real crisis for judges to feel the need to speak out so publicly.
And Judge Grasso is right. Whatever its original intent, the new law ties the hands of the courts, makes New Yorkers less safe, and reduces public confidence in the criminal justice system.