New Risk of Death Factor in Plea Agreements and Sentencings


The criminal justice system must address the fact that, until there is a vaccine or effective treatment for the highly communicable and potentially fatal COVID-19 virus, a prison sentence carries with it a significantly increased risk of death.

For the coming months or years, the prospect of spending any time in prison, warehoused with hundreds if not thousands of other people, with little to no control over one’s level of “distancing,” would literally be terrorizing, especially for the older or immunocompromised. Adding the real risk of contracting a deadly virus raises the specter of prison itself being unconstitutionally “cruel and unusual.”

During COVID, a Prison Sentence May Be a Death Sentence

Of course, no court would ever hold as much, if for no other reason than the practical ramifications of such a holding. Nevertheless, judges must now consider the moral implications of sentencing during COVID; i.e., how, if at all, they must account for COVID’s impact on the sentences that will be served. Where prison carries a higher risk of mortality and certain psychological torment, imprisonment is now an objectively worse punishment than it was previously. For the unfortunate inmates for whom prison will prove fatal, it will be an altogether different punishment in kind—a death sentence.

These moral implications weigh heaviest with respect to relatively minor, non-violent offenses for which a one- or two-year prison sentence might normally best “fit” the crime but for which there are legal, non-custodial alternatives. For judges sentencing in the time of COVID, the choice between probation and prison might literally be one between life and death.

Infections Spread Exponentially in Prisons

Many judges may be tempted to short shrift this conundrum by reasoning that the world outside prisons is also more dangerous and frightening, and the same defendants for whom prison might prove fatal might also be fated to die from the virus if left outside of prison, so the moral sentencing calculus is unchanged. While this is perhaps true for rare cases, and allowing that there may even be rarer cases of defendants who would oddly be spared a COVID death by being sent to prison, such reasoning is still superficial because it ignores the reality that contagions spread exponentially.

Prison’s tight quarters, communal spaces, and sweeping abridgments to personal autonomy all dramatically increase the risk of COVID infection, and more infections beget more infections, and more, and so on. The serious illnesses and deaths that follow will scale accordingly, if not more severely due to the strains these outbreaks will put on whatever healthcare is available.

All this can be simply intuited by recognizing that prison is effectively the opposite of the physical distancing and avoidance of touching potentially contaminated items that we are being pleaded with to practice to the greatest extent possible by persons for whom the virus is more than a mere abstraction, if not ordered to do so by the government officials who listen to them.

Importantly, these anti-contamination measures are not only for one’s personal safety but also to make public spaces safer for all who must navigate it, limiting the number of interpersonal vectors through which the virus can multiply. Prisons for most inmates are very much “public spaces,” with no “homes” in which anyone can “shelter in place.” Inmates are stuck with each other, and if one of them gets COVID, there’s a high probability that many others will get it.

Sadly, this is already borne out in reality. According to data collected by the New York Times, eight of the top ten localized outbreaks in the country are in correctional facilities, and data released by the federal Bureau of Prisons indicate that more than 70% of the COVID tests administered to federal inmates have come back positive.

These facts militate strongly in favor of avoiding custodial sentences whenever a non-custodial alternative is available.

Judges Face a Sentencing Dilemma

But there is something of a flipside.

Everyone is on a sort of probation right now, operating with any number of significant curtailments to autonomy. To the uninformed outside observer, many of our last eight weeks would be virtually indistinguishable from house arrest. This raises the question: Is probation even punishment in the time of COVID? If nothing else, the gap between freedom and probation has been shortened dramatically.

So, if COVID has worsened prison but effectively eroded the seriousness of probation, what is a judge to do? Shorten custodial sentences to correct for worsened conditions by, say, double counting the next 18 months in every sentence, but lengthen all non-custodial sentences to correct for their diminished severity by discounting the next 18 months by half? Makes sense where the choice between sentence type is clear, and of course either coefficient could be tweaked, but making either adjustment, let alone both of them, would only expand the universe of fuzzy cases where the choice between prison and probation isn’t clear, making the real dilemma—to imprison or not—worse.

For some judges, logic may dictate that they blind themselves to the realities of the current moment, even when that means certain deaths for defendants with minor convictions, however unknowable such deaths will be on the days of sentencing. After all, individual judges are not arbiters of morality, meting out punishments from positions of ethical enlightenment; they are, at least in theory, vessels of applicable law, shorn of their own idiosyncrasies which, if unmuted en masse, would lead to disparate and unpredictable results which would undermine the entire legal enterprise. Thus, they might well reason that if they should be sentencing differently in the time of COVID, the onus is on the legislature to say as much by passing laws to that effect.

Increased Weight to Plea Agreements

But all this thinking from the judge’s perspective ignores the reality that the overwhelming majority of criminal cases are resolved by plea agreements between the government and the defense based upon their mutual understanding and acceptance of a probable sentence or sentencing range. Doubtless, judges are cognizant of this and may be tempted to give increased weight to these agreements during the COVID crisis as a way of assuaging their moral burdens, assuming that the parties’ agreement was reached upon and accounted for the COVID pandemic and its attending risks. Where that happens, those moral burdens fall directly upon the shoulders of the advocates.

Superficially, it would appear that the heaviest burden falls on defense counsel as he or she sits across a table from (or communicates via video with) the living, breathing person facing a much-heightened risk of death if incarcerated. Frequently, defense counsel guides not only the client but members of the client’s immediate family through the maze of criminal justice, the consequences of a possible conviction, as well as the conditions of prison. Now, defense counsel must be prepared to address the significantly increased risk of death in a prison environment.

Prosecutors are zealous advocates themselves, typically charging or threatening to charge the most significant crime(s) their proofs could possibly show by reading the most culpable intent into a defendant’s every action, assuming every harm was foreseen, and maximizing the degree of harm where it isn’t clear. This “advocacy,” through their subjective lenses, maximizes defendants’ potential trial penalties, often significantly so, which can and does coerce them to plead guilty to lesser charges even when their cases are eminently defensible. But there is nothing compelling prosecutors to view cases as extremely as possible from the beginning. Writ large, a slightly less zealous, more compassionate prosecutorial lens would yield shorter and, more importantly, fewer prison sentences. In a pandemic, that would mean less suffering and death.

So, defense attorneys and prosecutors are both very much morally entwined in the humanitarian crisis playing out in America’s prisons, whether they want to be or not. To suggest that morality should play no role in plea discussions ignores the subjective judgments made by prosecutors and defense counsel representing their respective clients. Many times, the difference between judging an offense as very serious, serious, or less serious is a matter of subjective judgment. Now more than ever, morality dictates that those judgments be rigorously scrutinized before being acted upon.

As such, it is incumbent upon prosecutors and defense attorneys to view and consider their options through the COVID prism as they negotiate plea agreements. Both must recognize that a plea which would normally entail even a short prison term might now mean death, that any prison sentence makes all prison sentences (in the same prison) marginally worse, and that probationary sentences have temporarily lost some of their sting. These considerations suggest certain resolutions, such as consensual delays for defendants amenable to them and whose culpability clearly justifies one or the other form of sentence, and stipulations to or recommendations of “outside-the-box” probationary sentences for defendants whose culpability falls somewhere in the middle.

With respect to the latter, in the federal courts, such “stipulated” sentences can be reached under Federal Rule of Criminal Procedure 11(c)(1)(C), which binds the court to a specific sentence or sentencing range stipulated by the parties (if the court accepts the agreement). Government attorneys are often reluctant to enter such agreements, understanding that judges generally chafe at losing their control over sentencing. But for all the reasons set forth above, in the time of COVID, judges might well meet such pleas with a sigh of relief and thank the parties for having done the hardest part for them.

Unfortunately, judges, prosecutors, and defense attorneys alike will be increasingly sensitized to the havoc being wreaked by the COVID pandemic as more and more of them are personally affected by it. Yet the harsh realities out here in the world pale in comparison to those inside prisons, and lawyers of all stripes need not and should not wait for the death of a loved one to realize that the decisions they make in criminal cases can have life-and-death consequences until the virus is defeated.

If you or a loved one has been charged with an offense and want to learn more about potential outcomes and your legal options, contact Arseneault & Fassett, LLC at (973) 310-6664.

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