The U.S. Supreme Court announced that it is postponing upcoming oral arguments. The last time that it did that was more than a hundred years ago in 1918 as a response to the Spanish flu. Case in point that our judicial system is undergoing strains that, while not entirely unprecedented, are rarely seen. And that strain will test constitutional values in the months to come.
The Sixth Amendment to the U.S. Constitution guarantees American defendants the right to a speedy trial. This right has a noble lineage. It was memorialized in the Magna Carta, and our founding fathers recognized it as a fundamental stalwart of liberty.
But the public health crisis left in the wake of Coronavirus—with social-distancing practices and orders to shelter-in-place—leaves serious questions about our criminal justice system’s ability to cope with the fallout.
State and federal courts across the country are suspending and postponing criminal jury trials. More will come. The only question is: for how long?
The United States has the largest prisoner population in the world—with some 2 million-plus inmates. That figure implies a significant pipeline of would-be prisoners or convicts. So the question has serious systemic implications.
The Sixth Amendment provides:
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
The Supreme Court has recognized that “the Sixth Amendment’s guarantee of a speedy trial ‘is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.’” United States v. Loud Hawk, 474 U.S. 302, 312 (1986) (quoting United States v. Ewell, 383 U.S. 116, 120 (1966)). It is, in other words, fundamentally important to a society that values individual rights and securing the presumption of innocence—a legal maxim more engrained in American society than perhaps any other. But the right has somewhat malleable contours.
Just what constitutes a “speedy trial”—and satisfies the Sixth Amendment right—varies from case to case depending on the circumstances. The Supreme Court has articulated a four-part test to determine whether a delay violates the right. That test looks to the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” None of the factors is dispositive. Rather, they must all be considered, along with any other relevant circumstances. It remains to be seen how the coronavirus will play into this test.
As a result, the novel coronavirus raises serious questions for our criminal justice system. Courts in the Northern District of Texas, for example, have suspended jury trials and grand jury panels for more than a month—and possibly more. This has, perhaps, become the norm. While these delays will fall under the statutory Speedy Trial Act’s exclusion (Sec. 316(h)(7)(A)), their implications under the Sixth Amendment are not as clear. It seems that the “COVID-19” defense may become a common theme in months to come.
 While the Court’s postponement of argument sessions in light of public health concerns is not unprecedented, it is a rare occurrence. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.
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