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OPINION

Courts should not deny due process during coronavirus pandemic

What does the SJC decision to close the courts mean for the thousands of people unable to defend themselves or their health?

Anthony Benedetti, chief counsel of the Committee for Public Counsel Services, the state's public defender agency.
Anthony Benedetti, chief counsel of the Committee for Public Counsel Services, the state's public defender agency.The Boston Globe/Boston Globe

It has been said that the right to a zealous defense in the courts is one of the highest and most essential privileges of citizenship — and that powerful promise that we have made to one another does not go away during times of emergency and fear.

The Committee for Public Counsel Services appreciates that when the Supreme Judicial Court effectively closed the Commonwealth’s courts on the heels of the coronavirus pandemic, it was looking out for the health and safety of us all. However, we are concerned about what this will mean for the thousands of people who are fighting to maintain their constitutional rights but are unable to effectively defend themselves or their health. These include everyone from prison inmates to juvenile defendants and families with cases involving the Department of Children and Families.

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Attorneys across the state are requesting, in appropriate cases, to have their clients’ bail lowered or simply to have them released. Many people awaiting trial pose no threat to public safety, but they themselves are placed at increased risk by reason of pretrial detention. This community-wide change in circumstances requires us to take a fresh look at bail orders for many pretrial detainees.

But if the courts are closed for business, the people behind prison walls won’t have a fair opportunity to make their case for release. The motions need to be heard on an expedited basis. If the doors to the courthouses are locked, the doors to the jails will remain unfairly locked as well.

Our attorneys have been told that we should be conducting hearings by phone or videoconference. Our concern is that this process is inherently unfair. It’s impossible to have any kind of hearing that feels just without all of the parties in the same room. When all of the parties cannot see what is going on, when all of the participants are not reminded of the humanity of the other participants, and when an attorney cannot consult in the moment with their client or vice versa, the process is flawed and broken.

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For the same reasons that people say things on social media that they would never say in person, these remote hearings can suffer from a diminution of compassion.

The Department of Correction, sheriffs, judges, and the district attorneys need to make difficult yet courageous decisions about releasing people held on bail who are not a threat to public safety and people incarcerated who are vulnerable to the coronavirus. To do otherwise risks increasing the threat to thousands of individuals who are unable to socially distance.

Overcoming these obstacles is only part of our growing concerns during this troubling time. Having our courts closed also directly affects our other constitutional directives in serious ways.

When people hear “public defender,” they often picture a defense attorney standing next to an adult client. But in Massachusetts, we are much more than that — we defend juveniles in delinquency cases, we provide counsel to individuals facing civil commitment to mental hospitals, and we represent children and parents in cases involving the DFC.

For young people in the juvenile justice system, delays will often mean additional time at the Department of Youth Services. For many, the additional time in lockup awaiting trial is counterproductive — it is traumatic and undermines long-term public safety.

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Citing the ongoing health crisis, some hospitals have prevented attorneys from visiting clients who are involuntarily committed. Our attorneys have been advised to seek a court order for access, but if civil commitment trials are not being held fairly, our clients’ constitutional rights are being violated.

With courts effectively closed, it will also be harder for us to work with DCF to reunite families — a goal that we both share. With reunifications delayed, children will continue to be subjected to the risks of living in communal care.

Perhaps it is apropos that we have been hit with all of these issues now. After all, it was 57 years ago last week that the Supreme Court laid down its ruling in Gideon v. Wainwright — the decision that created the right to counsel across the United States.

It is our charge to keep Gideon’s promise in peaceful and turbulent times, and during this crisis we all need to work together to make sure our clients don’t fall through the cracks.

Their rights are your rights, and we all deserve a zealous defense.

Anthony Benedetti is the chief counsel for the Committee for Public Counsel Services.

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