With the administration no longer able to ignore the threat posed by the coronavirus, it’s decided to secure some additional powers for itself while the nation’s defenses are low. As Betsy Woodruff Swan reports for Politico, the DOJ is seeking to add “indefinite detention” to its list of criminal justice perks as courtrooms around the nation undergo significant operational restrictions.
The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the novel coronavirus spreads throughout the United States.
Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.
The DOJ has refused to comment on this power grab. Not all of it is unusual. Plenty of cases already in progress are going to be delayed because of restrictions on courts meant to stem the flow of the virus. But this goes beyond cases that are already underway. This would affect people who’ve only been accused of criminal acts and have yet to receive even a single day in court.
The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings,” according to draft legislative language the department shared with Congress.
Judges already have some power to control proceedings during emergencies, but this asks judges to treat cases where only an arrest has occurred as events that can be strung out indefinitely. With so many lives already disrupted by the shutdown of businesses and services, putting an accused person’s life in indefinite limbo is only going to cause more harm to a population that is already suffering plenty of it.
Fortunately, this has already been shot down by members of Congress. And it’s not just along party lines. Riley Beggin reports for Vox that the rejection of the DOJ’s power move is bipartisan.
Legal experts and politicians on both sides of the aisle quickly condemned the request. Sen. Mike Lee (R-UT) tweeted “OVER MY DEAD BODY;” Democratic Senate Minority Leader Chuck Schumer (NY) wrote, “Two Words: Hell No;” and Democratic New York Rep. Alexandria Ocasio-Cortez tweeted “Absolutely not” — a sentiment Sen. Rand Paul’s (R-KY) chief strategist, Doug Stafford, agreed with.
This isn’t quite the same thing as being shot down in the halls of Congress itself, so there’s still a small chance the DOJ will get its way. But this doesn’t bode well for its opportunistic move, which seems more punitive than useful, especially when putting more people behind bars increases the odds of the virus spreading. Quarantine is almost impossible in jails and prisons, and even if you don’t care about accused criminals, the people staffing jails aren’t able to perform their duties without mingling with a possibly infected population.
The DOJ is also asking for a prosecution pause button while court proceedings are on hold, allowing it to bypass the statute of limitations for cases originating during this national emergency. It would give the DOJ at least a two-year pass, covering both current cases and any developing within a year of the “end” of the national emergency. There’s nothing wrong with asking for this, since doing otherwise would basically give criminals a free pass for federal crimes committed during the national emergency. But it does suggest it’s far more than the economy that’s going to be disrupted for months (or years) to come.
If there’s anything positive in this last request, it’s that it may result in better prosecutorial discretion. With manpower limited and courts mostly closed for business, the DOJ will have to pick and choose which cases it wants to pursue. This will hopefully lead to less effort wasted prosecuting people for things like lying to feds or being talked into being terrorists by FBI informants.
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