I’ve posted an essay, Crisis and Coercive Pleas. It's an evolving document since the world changes every minute, but it's an attempt to put down some of my worries about the heightened risk of coercive pleas during COVID-19. Here are a few concerns: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3632052

Prison/Jail as potential death sentences: Echoing here what @JennyECarroll1 and @hashtagblevin have noted, prisons and jails, already unsafe spaces, are even more dangerous now. This is a pretty effective, if cruel, bargaining chip for prosecutors forcing a plea.

Some anecdotal evidence shows prosecutors know this and are making offers along these lines: Take this plea or take your chances in jail. https://twitter.com/radleybalko/status/1239657752001236992?s=20

Waivers: A judge shot down AUSAs demanding ppl waive right to compassionate release for 180 days. But anecdotal reports indicate they are also asking ppl to waive right to seek sentencing reduction or early termination of supervised released. https://twitter.com/RachelBarkow/status/1259905860836491264?s=20

So the waivers get more extreme because…

There are no trials! Ok, there are some trials, but not many. This makes sense from a public health perspective, but it means that if defendants don't want offer on the table, they basically have to take the plea or wait it out. They could be waiting a really long time because…

There is no speedy trial clock! Most places I could find have paused the statutory speedy trial clock because the delay is not attributable to the government. As one order put it “the ends of justice” are served by delaying trials and stopping the speedy trial clock.

A backend constitutional speedy trial claim is never easy to win and it’s unlikely that it will be much use to defendants who are sitting – either in or out of jail – waiting for their trials.

This is all made more problematic because communicating with counsel is very difficult for a host reasons I go over in essay – jails are locking down to confront the virus and the protests; even ppl who are out will have trouble meeting privately with an attorney

It’s also probably going to be difficult for defense attorneys to do much of what is required of them. In the midst of a pandemic, how do you conduct interviews? Visit the alleged crime scene? Prepare motions with kids at home?

Also, if Katrina/other disasters are any indication, it’s likely public defense will be decimated by the crisis. Lots of places, revenue for the PD comes from traffic tickets (super problematic, but a topic for another thread). With no one driving, that sources of $ is way down.

Finally, the lack of procedural protections that always exist at plea bargaining are a real worry during a crisis. For instance, defendants don’t have a pre-plea right to Brady...

That always creates a concern about coercive pleas, but given all the other challenges at the moment, it seems even more dangerous for defendants that they are not entitled to a host of rights before accepting a plea.

I’ll also make a note about a post-crisis concern. Interesting case out of Ohio which SCOTUS might agree to hear. Defendant pleaded guilty and lots of other charges were dropped. He served his sentence. https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-4430.pdf

After discovering new evidence, prosecutors come back and reindict him on basically same facts. Ohio Sup. Ct says: No double jeopardy issue. What stops a prosecutor from doing the same once crisis is over and they too go back to normal?

I know the rules of ethics might bar it, but that doesn’t make me feel better about this practice…

I'll do a separate thread about some of my ideas for solutions to my concerns. In the meantime, you should check out @hashtagblevin's piece, Criminal Law in Crisis: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3595739

...and @JennyECarroll1 piece, Pre-Trial Detention in the Time of COVID-19: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576163

Also thanks for comments from @LucianDervan, @covProf and @MaybellRomero for organizing the NIU criminal law works-in-progress workshop, where I affirmed that this idea should be an essay AND a tweet.