The Coronavirus Pandemic Puts the Courts into Unchartered Territory

This is the eigth in a series of blog posts, about judicial systems’ response to the coronavirus outbreak (SARS-CoV-2 is its technical name; Covid-19 is the disease it causes)and the justice systems’ active participation in a whole-of-society-approach (WOSA) to national security and safety threats such as Covid-19. Last updated April 1.

The coronavirus pandemic has made it abundantly clear that existential threats to our national safety and welfare requires not only a whole-of-government but a whole-of-society approach that joins government, private industry, non-profit organization, foundations, and academia. What is required of courts and justice systems is not just vigorous efforts to assure continuity of operations and access to services but a proactive response that identifies risks and vulnerabilities as the virus spreads. Two such risks and vulnerabilities are noncompliance with laws, and restrictions of rights and civil liberties.

Social Disorder and Violations of Law

Virginia Governor Ralph Northam and State Health Commissioner M. Norman Oliver issued a public health emergency order on Tuesday, March 17, prohibiting more than 10 patrons in restaurants, fitness centers, and theaters. The order gives local and state law enforcement the ability to enforce this ban. Violations carry civil penalties including immediate operation permit suspensions. Violations are also punishable as a Class 3 misdemeanor (up to a year in jail and a $2,500 fine) and a Class 1 misdemeanor (a $500 fine). How do justice systems assure compliance with the law? How do they handle violations? These are questions courts and justice systems should grapple with and prepare themselves to address. 

As wrote this blog two days ago, I was worried that my warning about “social disorder” might be seen as excessively alarmist. Today, I think not. Two situations illustrate the possibilities for social disorder brought on by the epidemic.

In the “Review & Outlook” editorial today, under the heading of “Coronavirus and Public Order,” the Wall Street Journal reports that authorities across the country are releasing inmates to reduce crowded jails that could face virus outbreaks and to make space to quarantine inmates that get sick, and “softening” law enforcement by adopting “cite and release” measures for offenders that pose no immediate danger. “The risk is that public order starts to unravel at a time when it is most needed,” argue the Journal editors.

In a column in the Los Angeles Times on March 16, Rachel Louise Snyder, the author of No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us, warns of the hidden dangers of social distancing.  Mandated quarantines and “sheltering in” increases the opportunities for victimization and domestic violence, child abuse, and elder abuse.  

The Washington Post reported on April 1 that in Spain during the first two weeks of the country’s national lockdown, calls to its domestic-violence hotline increased by 18% over the same time last year; and online consultations through the hotline’s website shot up 270 percent. “We know that the confinement situation increases the possibility of violence,” Spain’s  Equality Minister Irene Montera was quoted as saying. The government adopted measures on March 30 that would house victims of domestic violence in hotels if women’s shelters were not available.

The Washington Post also reported that Dubravka Simonovic, the U.N. special rapporteur on violence against women, warned that while countries  make significant efforts to address the spread of covid-19, “they should not leave behind women and children victims of domestic violence, as this could lead to an increase of domestic violence including intimate partner femicides.”

Compliance with Law Depends on Trust and Confidence in our Institutions

Compliance with law depends on how much trust and confidence citizens place in their courts and justice systems. And uncertainty will drag on trust and confidence. In countries where there is high level of trust and confidence in government, strong measures will get support. For example, as noted by the Economist in its March 7 brief on Covid-19, when SARS hit Toronto, Canada, in 2003, quarantine measures were effective. Only 23 out of 30,000 placed under quarantine failed to comply, a number that is well within the capacities of law enforcement, corrections, and the courts to handle. Canadians seem to regard compliance with quarantine measures as more than just a moral imperative. When asked how serious a crime of breaking quarantine orders is to them, they compared it to manslaughter.

Canada’s high level of compliance with law is supported by a global  survey conducted February 28-29, 2020 by  Ipsos MORI cited by the Economist on March 7. Seventy-eight percent of Canadians polled said total quarantines of all cities and towns given the risk of Covid-19 was acceptable to them; 22% thought that it was excessive, and that the government was overreaching. Respondents in Vietnam showed the highest level of acceptance at 91%; Italians had the lowest at 60%. In the United States, 70% of those polled accepted total quarantines.

The Wall Street Journal yesterday reported on the large number of Iranian worshipers attempting to break into holy shrines and mosques shuttered to stem the soaring deaths from the pandemic. A study by researchers at the Sharif University of Technology in Tehran cited by the Journal found that if the Iranian population begins full compliance with demands for mass quarantines immediately, Covid-19 will peak in early April with an estimated 12,000 deaths. If Iranians refuse to cooperate with the quarantines, however, Iran’s medical system will be overwhelmed when the peak occurs in June and cause 3.5 million deaths.

Scaling Back Privacy Protections and Civil Liberties: The New Normal?

There is no doubt that the pandemic is testing the extent to which democracies willing and able to curtail freedoms and impose the kind of restrictions put in place in China and South Korea. In those countries, electronic payment and social media applications on personal phones are being tapped to track people’s location and movements, to estimate their likelihood of infection, and to alert government authorities when quarantined individuals violate restrictions. Such measures will be more difficult to implement in the United States but there are today signs that they are being considered. The Wall Street Journal reported yesterday that the Trump administration is in talks with technology experts including ones from technology giants Google, Facebook, and Amazon, as well as startups such a Camber Systems, a Washington, D.C. location-tracking company – in what is an example of a whole-of-society approach – to deploy technological solutions to fighting Covid-19. Privacy experts worry that national emergency measures may become the new normal. The Journal quoted Adam Schwartz, a senior lawyer at the Electronic Frontier Foundation, an advocacy organization for civil liberties and technology saying: “We understand that given we are in this crisis, that some temporary adjustment of our digital liberties may be necessary , however it’s really important that these adjustment be temporary.”

Courts are responding to the pandemic to protect the public while maintaining access to justice. In most states, courts are taking measures such as restricting entrance to courthouses, ending jury trials and generally suspending in-person proceedings, granting extensions of deadlines including the paying of fines, and requiring or encouraging teleconferencing and videoconferencing in lieu of in-person hearings.

How the courts and justice systems will respond to new development such as social disorder and violations of laws and restriction and the scaling back of privacy protections and civil liberties remains a question. 

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