When the COVID-19 pandemic began to rapidly spread and shut down civic life across the country in March 2020, Maryland Court of Appeals Chief Judge Ellen Barbera released judicial guidelines as a response.
Since the pandemic began, politicians and judges have decided whose lives and whose health mattered. Legal guidelines from the Maryland judiciary offered many details about how courts would operate during the pandemic, in order to “protect core liberties and safeguard the health of the people.”
These measures included pausing jury trials, resolving cases virtually or outside of courtrooms, eviction and foreclosure moratoriums, and limiting the detention of children.
Bail reviews can take two forms: either a hearing or a habeas petition. A habeas petition is a filing that utilizes the defendant’s constitutional right to protection from unlawful or indefinite imprisonment. Essentially, it is the defendant demanding that the state prove to a judge, in that hearing, that their detention status should not change. The judicial guidelines for COVID-19 stated there was no need to prove a change in circumstance to file a habeas petition. Children charged as adults had their bail reviews automatically heard every two weeks, and what was already an overburdened system became even more so.
There are some aspects of these guidelines that benefit Baltimoreans. It is crucial to reduce the number of people incarcerated, since preventive measures such as social distancing and masking are disregarded by courts and jails, contrary to Barbera’s order. Housing children in a jail for extended periods of time during a pandemic puts their lives in peril. In addition, virtual hearings can be much more accessible for families than in-person hearings.
However, the order did not go far enough to prevent COVID-19 from spreading. Correctional facilities throughout the United States and Maryland became hotspots for COVID. The UCLA Law COVID Behind Bars Data Project has compiled the available nationwide data and determined there have been at least 646,000 confirmed COVID-19 cases of incarcerated people, including 5,219 in Maryland. Add to that the 236,000 prison staff members infected by COVID-19, a number which includes 4,716 in Maryland.
These are not just numbers or cases. They are people’s lives—lives that are impacted by prosecutors and judges.
In January 2022, an assistant state’s attorney argued the defendant’s actions occurred during the COVID-19 pandemic, and thus if the defendant “really cared about COVID, he wouldn’t be riding in a car with a gun.”
In February 2022, Judge Philip Jackson heard the case of a defendant who, prior to arrest, contracted COVID-19 and recovered in less than a week. Once in jail, he contracted COVID-19 for a second time, and it took much longer to recover. His lawyer asked for his release because of the defendant’s urgent medical situation. During the bail review hearing, Jackson asked if the defendant was vaccinated, which he was not. Jackson replied that he “does not want to sound callous,” but “it is his own fault” that the defendant contracted COVID-19.
In March 2022, Baltimore Courtwatch observers heard another assistant state’s attorney suggest that since there is a vaccine available, if someone incarcerated chooses not to get it, and then gets COVID-19, it’s their own fault and he has to suffer for committing crimes.
As reported to the Marshall Project, this is the criminalization of COVID-19 happening in real time. In a memo from March 2020, the US Justice Department said that “individuals who intentionally spread the novel coronavirus could be charged with terrorism for the “purposeful exposure and infection of others.”
When vaccinations became available, the court slowly opened. Then it closed, and opened again, in what would be several starts and stops to the regular court schedule.
On April 4, 2022, the Maryland Judiciary returned to normal operations exiting the five-phased COVID-19 resumption of operations plan. According to the court order, there is apparently no more health emergency because of “the many and sustained efforts of its government.”
The judges who make policy decisions on COVID-19 have failed to protect people, and have deemed Black and other marginalized people—especially people in jails and prisons—as not worthy of protection from the pandemic. Inside the poorly ventilated jails, masks are optional for jail staff, and the incarcerated are given extremely insufficient personal protective equipment. Despite incarcerated people being “wards of the state,” Maryland does little to protect them.
Pausing jury trials means that people whose cases are in pretrial status are ordered to spend months and sometimes years in poorly ventilated jails before their trials are even scheduled. In a March 2022 hearing, Baltimore City Assistant State’s Attorney Rita Wisthoff-Ito not only declared “COVID almost over,” but that the time delays “suck.”
Locally, despite the positives of accessibility for families and the public, one negative result of court proceedings being held via Zoom is that one of the five jails in Baltimore City spent the first two years of the pandemic refusing to allow people to virtually attend their own bail review hearings. Despite it being technically legal for a defendant to not appear, a virtual bail review means that judges do not see the person in the courtroom, which has been documented by the American Immigration Lawyers Association as harming people’s ability to access due process—a constitutional right. In other words, if a judge cannot see someone in front of them, they are more likely to order harsher penalties.
In their words and deeds, prosecutors and judges have consented to exposing people accused of crimes to COVID-19, a disease that has and continues to be fatal, and has long-term health implications. Baltimore’s criminal-legal system has chosen to expose the accused to a disease while being housed in a system that often fails to provide adequate healthcare. These policies will fall heavily on Black Baltimoreans, who are disproportionately represented in the carceral system.
In a just world, public safety guidelines would work to protect people and communities instead of profit and policing. In the meantime, Baltimore residents can work together and mask up to keep each other and our incarcerated loved ones safe.