Pretrial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests

Abstract

The coronavirus pandemic, which, when paired with unsanitary and overcrowded incarceration conditions, can transform a few months’ sentence into a lifelong health condition or death, compounds the inherent dangers of incarceration in America. Since March 2020, defense attorneys have argued for the release of their clients pending trial, persuasively contending that their clients should not be exposed to a potentially lethal contagious disease for a mere allegation of violating a law. This Essay proposes that courts use their authority to dismiss such cases in the interest of justice and provide a counter to prosecutorial discretion, which has failed to lead us out of over-incarceration in the midst of a pandemic. Fourteen states and Puerto Rico have long recognized judicial power to dismiss a case not on the legal merits, but in the interest of justice. Courts have historically invoked that power to respond to health crises. When COVID-19 transforms any type of carceral punishment into a lethal punishment, courts are equipped to consider these factual circumstances and take an action that most resonates with justice: dismissal. Similarly, when protesters are arrested, courts have occasionally dismissed charges in the interest of justice to protect the principles of freedom of speech. With tens of thousands of individuals arrested at protests during the pandemic, for crimes ranging from curfew violation to disorderly conduct to sedition, dismissal based on public interest and factual context rather than legal propriety may safeguard respect for the criminal legal process in a time when it is most challenged. Finally, state prosecutors nationally anticipate filing charges against defendants once the COVID-19 pandemic abates. In the face of what might be an overwhelming and under-scrutinized docket of cases, dismissal in the interest of justice may become a necessary judicial tool. Judges can dismiss charges in order to manage the docket, focus on higher-level criminal charges, and disrupt the heightened pressure on defendants to plead guilty, particularly to low-level offenses. Quick guilty pleas can result in defendants pleading to unsubstantiated allegations or to crimes they did not commit.This Essay proceeds in four parts. Part I introduces dismissal in the interest of justice, while Part II discusses the impact of COVID-19 on people incarcerated in jails and prisons and the relevance of dismissals during the pandemic. Part III explores the application of dismissal in the interest of justice to protest arrests during the pandemic and protecting freedom of speech principles. Lastly, Part IV suggests that judges dismiss stockpiled charges for which defendants received a citation or are released on bond and months later will face a criminal proceeding. These dismissals can lead to greater efficiency for courts as they face an overwhelming docket of backlogged cases.