On Liberty, During a Pandemic

By U.S. Magistrate Judge Stacie F. Beckerman

I enter the courtroom and sit behind the bench in silence, without the ceremonial “all rise.” Instead of greeting the defendant, defense lawyer, prosecutor, and a small crowd of onlookers in the gallery, I sit alone and turn on my computer. On the monitor, the split-screen captures video feeds from all over the state: an individual in custody in federal prison, a defense lawyer sitting at his kitchen table, the prosecutor sitting in her home office, a court reporter, an interpreter, and me, seated and robed at my courtroom bench, positioned in front of our federal court seal. Court is in session.

Thanks to our prescient Chief Judge Marco Hernández, all live federal courthouse proceedings in the District of Oregon were shut down on March 13, 2020. But the law requires that newly arrested individuals be brought before a judge without unnecessary delay, and so, the show must go on. I was the magistrate judge on duty for all criminal matters in the Portland courthouse for the month of March, and covering for a colleague in early April, and was therefore tasked with virtualizing our daily criminal calendar. For the first few days of video court proceedings, it was business as usual (aside from the frequent “Can you hear me?”). Then the floodgates opened.

Motions from pre-trial detainees requesting release from prison in response to the pandemic began to trickle in. More motions followed, reading less like legal filings and more like medical charts, detailing each defendant’s underlying medical conditions and comorbidities: asthma, diabetes, high blood pressure, obesity, heart failure. The tone of the release requests changed as the virus spread, citing the court’s ethical and moral duty to release all individuals in custody. To deny release would be a “death sentence.” In mid-March, the motions suggested the possibility of COVID-19 exposure in the Bureau of Prisons. By mid-April, the motions cited the hundreds of already infected BOP inmates and staff.

With every new request for release, I struggled. In federal court, we imprison those charged with a crime only if they present a serious risk of danger to the community or risk of flight. As a result, most individuals in federal custody pending trial are not first-time or non-violent offenders. Most are charged with serious crimes, or have lengthy criminal histories. On one hand, arguments for wide-scale release resonated. On the other, I found myself signing an alarming number of new bank robbery complaints, noting an uptick in local shots fired, and concerned about the increase in calls to domestic violence hotlines. On a case-by-case basis, I was charged with balancing the serious health risks of keeping an individual in custody with the serious risk to the community if released.

The hardest part of my job during this pandemic has been telling an individual, as we sit face-to-face, that I cannot sign his release order. No one could have predicted that a video hearing could create a more intimate connection between judge and defendant, compared to the antiseptic courtroom where the defendant usually sits far from the judge. In our new virtual courtroom, I cannot escape what I see in the eyes in front of me. But still I must tell many of them no.

I also see the eyes of those to whom I am able to give liberty. Some have sat in prison for months, and now a virus has given them the chance to prove that they deserved the chance. Their quick smiles and quiet “thank-yous” give me hope, but I also hold my breath as I hope that my release calculus was correct.

I keep my judicial “mask” on during these hearings, but I must remove it for a moment to breathe. Deciding liberty during a pandemic is a heavy weight, made even heavier because of the close connection I feel to the human beings sitting in front of me. I meet them where they are, in their prison block. I am close enough to read their eyes, and I feel their humanity. They are scared, and I am scared for them and for the safety of those around them. I have the power to save some, but I cannot save everyone, and that is the weight I bear.

I take a walk after dinner every evening with my husband, a doctor working at a busy hospital. We reflect on how these new experiments in virtual human connection will change our respective professions. Tonight, on my final night of criminal duty (April 10, 2020), we were startled on our walk as we heard what sounded like a gunshot, and then screaming, just a few blocks away. The cacophony and calls became louder and clearer. “Thank You!” It was 7 p.m., and the voices rang from homes across our neighborhood as families shared a raucous collective thank you to our front-line workers. I had assumed the worst, until I moved closer.