Generally, people don’t sign up to go to jail. Sentencing is not an optional exercise. Society has made peace with the basic punishments of prison life: deprivation of liberty, personal security, goods, privacy. COVID-19 has skipped the line. The virus has added to the list of punishments without going through the proper channels (i.e. the legislature).

To sentence someone now to custody is to sentence them — at best — to possibly becoming ill from the virus or — worst — their death.

Inmates will eventually be released from custody into the community, likely carrying the virus with them. Releasing as many from custody now will minimize the risk of inmate and therefore community infection.

This pandemic may be the hard reboot and upgrade that the court system will get — whether it wanted it or not. In the COVID-19 fight courts have sent a message: we must prioritize. There’s no room for superfluous arguments and rivalries.

The issue of how to handle the prison population is complex. Even if we were to take the health of the inmate out of the equation it leaves a massive concern for the health of the community. Many will be released from custody during this pandemic. If John Doe is arrested this week for property crimes, has a terrible record and is sentenced the following week to a quick 30 days, he will be released in roughly 20.

In that time there’s a good chance that he will be infected. Prisoners are not given hotel vouchers or a residence once released. They will spread it to others in the community, including the remote northern First Nations. The jail cannot keep them in custody simply because they’ve contracted the virus.

What can we do to reduce community infection? Get as many out of custody now. Thankfully, since the courts have been closed, we’ve created a makeshift template for how to do this.

If you haven’t already done so, the first step is to pull all in-custody files.

Step two: use one or more of the following tools.

Defence can and must work together with the Crown attorneys. Ask them to revaluate their screening positions. No one will give you anything if you don’t ask. Make it easy for them: draft proposed resolutions, summaries of the case along with custody calculations.

Obviously, it is ideal if you can obtain a joint submission.

If you cannot and must proceed with an open sentencing, the following will boost your chances of a time served disposition:

1: Implore the judge to consider COVID-19 as grounds to grant enhanced 2:1 pretrial custody credit.

2: Argue exceptional circumstances: Submit that the pandemic warrants a lower sentence, one that normally wouldn’t be granted but should be considered.

A note of caution. COVID-19 can only go so far. Keep your submissions within the realm of possibility.

My hope is that once this is all over, we do not return to the judicial system we left. Instead, we are faced with a new administration of justice that re evaluates our need to imprison.

Originally published in The Lawyer’s Daily April 22, 2020:

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