Prosecutorial Discretion During a Pandemic: Implications for the Criminal Justice System and the Rule of Law

• Author: Lawrence A. Brett
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Wake Forest University (2019)
• Pages: 747-764

Prosecutorial Discretion During a Pandemic:

Implications for the Criminal Justice System and

the Rule of Law

LAWRENCE A. BRETT*

INTRODUCTION

The COVID-19 pandemic has altered the course of history in many significant

ways. This virus is highly contagious, and it has proven to be a major concern in

densely populated communities such as prisons.

1

In addition to sheer density,

prisons tend to hold clusters of people belonging to vulnerable populations which

are at an elevated risk of becoming seriously ill or dying as a result of contracting

the virus.

2

Many localities across the nation have responded to the threat COVID

poses to prison operations by preemptively announcing non-prosecution policies

and blanket release policies.

3

Under the former, a locality announces particular

crimes or levels of offenses which will not be prosecuted for a certain period of

time or for the foreseeable future, thereby allowing those who violate these par-

ticular laws to go unpunished.

4

Under the latter, a locality allows groups of pris-

oners to be released en masse—whether by crime, by age, or by another metric or

formula—rather than based upon the exigencies of their individual situations.

5

This Note argues that the criminal justice system’s blanket release and non-

prosecution policies are not the proper response to the COVID pandemic. Rather,

case-by-case adjudication is a hallmark of this system and better serves and bal-

ances the goals of achieving justice and providing the consistency required by the

rule of law. This is a groundbreaking topic within the scholarship given the recent

and ongoing developments of this crisis. Therefore, it addresses a timely and

meaningful issue faced by actors within the criminal justice system across the

nation on a daily basis.

* J.D., Georgetown University Law Center (expected May 2022); B.A., Wake Forest University (2019). ©

2021, Lawrence A. Brett.

1. See Jacey Fortin, Losing a Loved One Twice: First to Prison, Then to Covid, N.Y. TIMES (Jan. 13, 2021),

https://www.nytimes.com/2021/01/13/us/covid-prison-inmates-family.html [https://perma.cc/T5MB-R8L7].

2. See Nicole Wetsman, Prisons and jails are vulnerable to COVID-19 outbreaks, VERGE (Mar. 7, 2020),

https://www.theverge.com/2020/3/7/21167807/coronavirus-prison-jail-health-outbreak-covid-19-flu-soap [https://

perma.cc/QKC4-AMCV].

3. See Prosecutors Responses to Covid-19, BRENNAN CTR. FOR JUST., https://www.brennancenter.org/our-

work/research-reports/prosecutors-responses-covid-19 [https://perma.cc/DMC7-AKQ9] (last visited Feb. 13,

2021).

4. See id.

5. See id.

747

Part I will provide background information on the unique and powerful role

that prosecutors play in our criminal justice system as well as the significant chal-

lenges faced by prisons and actors within the criminal justice system in trying to

contain the spread of COVID. Part II will detail the various responses to the pan-

demic taken by localities across the United States, with a focus on the commonal-

ities across jurisdictions as well as the steps that have proven the most effective.

Part III will discuss the impacts of blanket release and non-prosecution policies

on the greater criminal justice system and the rule of law, including a lack of de-

terrence, issues associated with seemingly arbitrary exercises of government

power, and the effects on crime rates and why this metric has significant limita-

tions at this stage of the pandemic. Finally, Part IV will offer some potential solu-

tions, including the use of virtual trials, carefully-utilized solitary confinement

for sick and vulnerable prisoners, and potential lessons to be learned from univer-

sities in reducing community spread, such as improvements in ventilation sys-

tems, food services, sanitation, contact tracing, and lockdowns.

I. BACKGROUND INFORMATION

A. PROSECUTORS & PUNISHMENT

The American criminal justice system has a unique hallmark: virtually unre-

viewable prosecutorial discretion. In spite of their broad authority, prosecutors,

like all other attorneys, retain a duty pursuant to Model Rule 8.4 not to engage in

conduct that is prejudicial to the administration of justice.

6

However, with such

great leeway in performing their jobs, prosecutors have a greater potential than

other actors within the criminal justice system to “abuse their powers and indulge

their self-interests, biases, or arbitrariness.”

7

In fact, no other public official in the

United States “has as much unreviewable power and discretion as the prosecu-

tor.”

8

While Model Rule 8.4 represents an ideal, the traditional checks and balan-

ces that constrain government power in other realms simply do not apply to the

prosecutor, a party which exercises legislative, executive, and judicial functions

without significant constraints.

9

In addition to the growth of prosecutorial power in recent decades,

10

jail time

has become an increasingly prevalent method of punishment in the American

criminal justice system, and prison terms have increased substantially.

11

This

6. MODEL RULES OF PROF’L CONDUCT R. 8.4 (2018) (“It is professional misconduct for a lawyer to . . .

engage in conduct that is prejudicial to the administration of justice[.]”).

7. Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. PA. L. REV. 959,

961 (2009).

8. Id. at 960.

9. See David Alan Sklansky, The Nature and Function of Prosecutorial Power, 106 J. CRIM. L. &

CRIMINOLOGY 473, 512–13 (2016).

10. Id. at 481.

11. William T. Pizzi, Understanding the United States’ incarceration rate, 95 JUDICATURE 207, 207 (2012)

(explaining the sharp and consistent increase in the United States incarceration rate since the late 1970s).

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