The title of this post is the title of this notable new paper authored by Thea Johnson now available via SSRN. Here is its abstract:
Even in the best of times, trials are rare. In the midst of the current pandemic, trials have vanished altogether in certain parts of the country; in other areas they occur sporadically as courts grapple with how to hold trials safely. This makes sense from a public health perspective, but the lack of trials, along with other challenges posed by the coronavirus crisis, poses a heightened risk that defendants will be coerced into false and unfair pleas.
Coercive pleas are part and parcel of the criminal system, but the current crisis provides several avenues for even greater abuse of defendants through the plea process. In Part I of this essay I explore the particular concerns related to plea bargaining during the COVID-19 crisis and address three broad areas: 1) the particularized fear of a prison or jail sentence during a pandemic, 2) the difficulty with holding — or complete lack of — jury trials, and 3) issues with access to counsel and other procedural challenges that defendants will face during and after the crisis.
Part II offers some solutions to mitigate the risk of coercive pleas. The essay encourages criminal courts to think about holding jury trials via video, despite the many obvious challenges. The essay also defines several ways in which judges can take a more active role in protecting against coercive pleas during the pandemic. And, as the essay explores, this crisis may also provide opportunities for creative problem solving that can outlast the virus.
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