07 Apr, 2020
The Pandemic Tests our Justice Institutions but the Hardest Challenges Have Yet to Come
Yvon Dandurand and Hayli Millar
We initially hesitated to write this piece because the situation created by the COVID-19 pandemic is changing so rapidly and perspectives may rapidly fall out of date. Yet, we obviously cannot wait much longer before beginning to draw the lessons from the deep disruptions to our justice institutions caused by the global pandemic.
Some questions are more immediate than others, but we cannot avoid the more difficult questions that our justice institutions will be facing in the months and years to come as a result of this and the other cascading crises that are anticipated. Today, our justice institutions are severely tested by the crisis. They are unfortunately challenged in a manner that reveals their faults and weaknesses and highlights the failure of past justice reforms. We are still in the early stages of this “big reveal” and, already, it makes us wish we had tried harder to anticipate and prepare for the crisis. It also makes us wish that we would have had the wisdom to correct the deep institutional weaknesses and issues justice institutions have been facing for decades. It is crucially important to try to get ahead of the next stage of the crisis. Now is the time for our justice institutions to start planning for the “new normal” and avoid being caught unprepared like they are now.
For example, it is plainly obvious that prison systems are unable (some parts of the world more so than others) to cope with the pandemic as prisons are already a flashpoint for infections in many countries. Lack of access to medical care, overcrowding and unsanitary conditions make prison populations vulnerable to infections. In Wuhan, the Chinese city where the virus emerged a few months ago, more than 800 prisoners were reportedly infected. Fear of the virus is also sparking unrest and violence. A prison riot in Bogotá, Colombia, left 23 dead and 83 injured as prisoners protested about sanitary conditions that made them susceptible to the outbreak. Did we need to wait for the pandemic to improve health conditions and disease prevention in prisons?
Failures to proceed with urgent bail reforms, limit pre-trial detention and develop effective and viable alternatives tom imprisonment are now placing thousands of accused individuals and the people around them in dangerous situations and forcing the courts to make even more difficult decisions, to improvise, suspend existing rules, or even ignore some public safety risks to prevent public health risks. Similarly, a failure to develop robust information management systems now leaves some justice authorities with little data in which they can have confidence as they are making difficult, sometimes life and death, decisions without the benefit of proper metrics. Finally, the lack of attention to ensuring access to justice for all is leaving some of the most vulnerable people, without recourse or effective protection at a time where the pandemic is making them more vulnerable than ever. Some of the most vulnerable people whom criminal justice systems are not particularly good at protecting now risk being completely abandoned by it (Indigenous and other racialized individuals, victims of human trafficking, cybercrime, domestic violence; refugees and irregular migrants; sex workers; drug addicted individuals; abused children; and many others). As noted by the UN Secretary General, António Guterres, we are seeing a “horrific global serge in domestic violence” which he notes is complicated by a lack of access to adequate support, health, criminal justice or shelter resources.
We rely on policy makers and justice system managers to navigate this unprecedented and rapidly evolving situation. These professionals are confronted with exceptionally challenging choices and decisions that they feel unprepared and untrained to make. They cannot rely on routine choices or simply apply rules and protocols designed for another time. They face many unknowns and have few certainties. Some of them, by temperament, find this harder than others. Their moral compass is being tested. Decision making processes are overburdened, complicated by a lack of reliable data, even paralyzed by fear, but procrastination and inaction are no longer viable options. The role of experts, often under attack, is being redefined just as experts are themselves sensing the limits of their own expertise.
Not only have there been some major and largely unforeseen disruptions to criminal justice activities, but some of these activities have been deliberately reduced or shut down to cope with the crisis. Jury trials are postponed, courts sittings are limited, trials are interrupted or adjourned, arrests and detention are avoided and replaced by summons, legal aid lawyers are withdrawn from the courts, responses to calls for police assistance are limited to high priority calls, police resources are diverted to enforce disease prevention measures including border interdictions, and large numbers of prisoners are being released often without assessing the risk they represent, both from a security and from a health perspective, and mostly without proper planning and preparation. Justice is delayed if not denied and huge backlogs of cases are created. The civilian oversight systems that would normally oversee and scrutinize these major changes are themselves weakened by the crisis or relegated to a minor role under the pretext that the pandemic justifies expediency. With rushed, unsupervised and often unaccountable expedient measures also come greater opportunities for corruption. Justice systems, one might say, are adjusting to the situation as best as they can and, in the process, many justice professionals demonstrate great courage, innovation, and leadership. But will that be enough and what will be the longer term consequences? How deeply will the credibility and legitimacy of the criminal justice system be affected?
At the same time, the pandemic also has an impact on various types of crime, as well as local and transnational organized crime. In some instances, crime patterns and illicit markets are changing so quickly as to defy any strategic attempt to predict, prevent, and respond to them. New opportunities are created for criminal groups that are quick to adapt and scale up their activities. With new and rapidly evolving criminal markets, the realignment of police resources with these new realities is perhaps as urgent as it is improbable, at least in the short term. There are even situations where organized crime groups have provided a response to the crisis to palliate the deficiencies of the government’s own response. Finally, the threats posed by organized crime are as global as ever, at a time when law enforcement activities withdraw behind national borders and international cooperation – itself being severely tested by the pandemic – has now reached an all-time low when it comes to cooperation in criminal matters.
As the justice system is preoccupied with the more immediate challenges posed by the public health crisis, threats to the rule of law, human rights, and justice may not receive the attention they deserve. Concerns about the pandemic are used as a pretext for expanded criminalization, including criminalizing persons for non-compliance with quarantine measures, for hoarding, for price gouging, for deliberately infecting other persons, for hate-motivated crimes. Many governments are rapidly and sometimes surreptitiously arrogating themselves emergency powers under the pretext of containing the pandemic and, in the long term, this can only weaken the already fragile hold the rule of law has in many countries on law enforcement and justice institutions.
For instance, the rise and spread of digital surveillance enabled by artificial intelligence, including facial recognition algorithms, allow mass surveillance and make the “digital surveillance state” a reality. This technology is being deployed to various degrees to enforce public health isolation measures, often without much transparency, adequate privacy protection, or effective control over potential abuses. Just like the rise of terrorism ushered new surveillance tactics, the fight against the current pandemic makes those tactics more likely to be tolerated and now accepted by the population. Restrictions on some human rights can be accepted as long as they are legally justified and strictly necessary to respond to a crisis, but history shows that crises are frequently fueled and used, if not completely fabricated, to justify encroachments on human rights and civil liberties. This calls for extra vigilance in order to prevent the scaling back of hard-won rights.
At the same time, law enforcement and justice official are muting their growing concerns about the broader potential impact of the pandemic on social order, the economy, population displacement, and even conflict and terrorism. It should be remembered also that all law enforcement and justice institutions are very vulnerable to the economic fallout of extended public isolation and the forced shut down of major sectors of the economy. In fact, it may well be that the greatest tests faced by our law enforcement and justice institutions have yet to come and may yet again take most of us by surprise.
The urgency of the current situation does not lend itself to broad justice reforms and the reforms already in progress may be delayed or aborted. Some creative solutions are no doubt being proposed, including innovative approaches that may bring the courts into the digital age. However, as many of us already sense, the pandemic has the potential to profoundly reshape our law enforcement and criminal justice institutions. It will deeply test our governance mechanisms, the quality of existing leadership, our commitment to fundamental values, democracy, human rights and the rule of law, and the capacity and resilience of our institutions. How can we prepare for the “next normal” and navigate this crisis now that many of our old assumptions have been made irrelevant?
The Marshall Project. Coronavirus: A Curated Collection of Links.
Global Initiative on organized Crime (2020). Crime and Contagion: The Impact of a Pandemic on Organized Crime, Global Initiative on Organized Crime, March 2020. https://globalinitiative.net/wp-content/uploads/2020/03/CovidPB1rev.04.04.v1.pdf
Penal reform International (2020). Coronavirus: Health care and human rights of people in prison. https://cdn.penalreform.org/wp-content/uploads/2020/03/FINAL-Briefing-Coronavirus.pdf
Allen, Rob (2020). Criminal Justice in a Time of Crisis. https://reformingprisons.blogspot.com/2020/03/criminal-justice-in-time-of-crisis.html?fbclid=IwAR2fAQCbp2qzPuetPI9nU1HzuQzb7hYSSVxAKezT5285e6s57H6cNvom2L0
Photo by the Centers for Disease Control and Prevention (CDC) on Unsplash.