COVID-19, Detention, and Expungement

Famous legal scholars have discussed whether rights can exist in the abstract without remedies to secure those rights. Regardless of which conclusion a person reaches, based on my work at International Bridges for Justice (IBJ), the perspective that remedies are necessary to secure rights is clear. When a person is wrongfully arrested, detained, or incarcerated; their livelihood, peace of mind, and in the age of COVID-19 their physical health is at risk. However, being "in the right" on substantive matters is not enough; the right to appeal, habeas corpus proceedings, and other related processes are needed so that detainees and prisoners can challenge their detention. Hence, in the legal guides I made for lawyers, I included procedural rights as well as substantive rights. COVID-19 presented the greatest threat to procedural rights because conducting hearings with such a contagious disease is too risky. COVID-19 presents unique public policy challenges for face-to-face institutions to run safely. Since the disease can be temporarily airborne and exist on surfaces for an extended period of time, social distancing may not be sufficient if people are sharing the same spaces and using the same surfaces within hours (or even days) of one another. Luckily, IBJ has assisted various countries, such as Rwanda, to carryout hearings electronically. Even though visual cues may not be as visible to lawyers, judges, and jurors in an electronic hearing, the cost of sanitation, proper air filters, and N-95 masks may be too great or unavailable in certain jurisdictions. Hence, electronic hearings may be the best public health practice in some places even if it complicates due process to some extent. No legal system can promise perfection, only the greatest degree of accuracy possible under existing conditions.

In addition, I want to emphasize that just because a client is free, does not mean a lawyer's work is done. This past semester I wrote a paper arguing for streamlined expungement for those who are exonerated of a crime. Generally, for someone who is wrongfully convicted of a crime, exoneration and expungement are distinct processes. Without regurgitating my paper in this piece, I argued that the substantive and procedural requirements required for expungement are satisfied in an exoneration proceeding. Hence, since expungement proceedings are duplicative for exonerees, exoneration should automatically trigger expungement. Expungement is essential for reintegrating former prisoners, detainees, and arrestees into society because employment discrimination against these groups is rampant since records of arrests and prosecutions are publicly available in the United States and there are minimal legal protections from this group. Specifically, I delve into how social labeling has a two-fold effect on how people are perceived and how people perceive themselves. For those who are concerned with the costs of criminal justice reform, my proposal is actually cost-saving and economically beneficial; it conserves finite legal resources and helps Americans secure jobs. Moreover, in the context of expungement, we should remember that people make mistakes, sometimes horrible mistakes. As people grow and learn they may evolve as well. If we can approach felons' situations from a place of compassion, we will find that a person's worst actions should not define them.

Over the next few days, I will consider publishing my expungement paper (after consultation with my professors) and plan to publish another piece on the late political commentator Michael Brooks, which will include analysis on his political perspectives and the role of independent news sources in the media landscape. Stay tuned.