Jails are full, courtrooms are empty in San Francisco

You've been arrested and charged with a crime. You've been denied pretrial release, and you don't have the money for bail. So you're sitting in jail, cooped up in a tiny two-person cell, the size of a small bathroom, for 23 hours a day. You're worried about your elderly mom. You miss your daughter. You haven't seen sunlight in weeks. By now, you've definitely lost your job, and probably your housing. But your lawyer demanded a speedy trial, and the deadline's coming up tomorrow.

The morning comes. The guards wake you up, shackle you, and put you on the bus. You're led into the courtroom. It's your jury trial date. But you don't see a jury. And the judge isn't sending your case out to trial. He picks up a piece of paper and starts reading a script. It's all about COVID-19, the trial backlog, staffing shortages, the compelling and extraordinary circumstances necessitating a continuance. And then he gives you another court date -- in February 2022. The next case is called, the guards put the shackles back on, and you're taken back to jail to wait -- and wait -- for trial.

In San Francisco, this blatant violation of speedy trial rights has become a daily routine. California law guarantees you a jury trial within 60 days of asking for one. But you can't get one in San Francisco. Right now, affluent San Franciscans can get a manicure, a haircut, or a dinner at a nice restaurant. But when it comes to basic constitutional rights for the poorest people in our society, we seem to be all out of ideas. Instead, we warehouse human beings in tiny cells for months.

A speedy trial is an accused person's most precious right, so important that it's enshrined in international human rights law. California law is also clear: A court can't violate that right just because it's overloaded with cases or short on judges -- especially when the backlog is the result of its own catastrophic management decisions. But day after day, judges are kicking the can down the road, letting hundreds of presumptively innocent people be incarcerated for months, and sometimes more than year, past their trial deadline. Without any trial deadline keeping them on their toes, prosecutors dawdle. Why bother working up a case if it's not getting tried until next year?

This is not an abstract debate. Families and loved ones are suffering, too. Describing his current situation, a client recently wrote, "I am locked up 24 hours a day.. ...The deputies wheel a phone around to our cells so we can make calls. I try to call my mom every day but I rarely get her on the phone. She is 86 years old and has schizophrenia. For the past 15 years, I lived with my mom and took care of her. I am very worried about her while I'm in here, because there is no one to take care of her." His trial deadline was in April 2021. He is still waiting.

We know the kind of damage that prolonged pretrial confinement can cause -- especially in the brutal, solitary-like conditions that are now the norm in San Francisco. Our clients tell us that they feel like they're going insane. They ask us how long it will be until they get out of jail. What can we tell them? People's physical health is also giving way under the strain of incarceration.

One person told us that since being confined to a tiny poorly ventilated cell, he has been diagnosed with serious health problems and sometimes felt like he was unable to breathe: "Since I've been here, I've been diagnosed with asthma and Chronic Obstructive Pulmonary Disease (COPD), ... I have been on lockdown four or five times due to exposure from Covid after going to the hospital for my COPD and asthma. ... Lockdown lasts for 14 days, and I can only come out of my cell for a short time after everyone else leaves. Sometimes I don't want to ask to go to the hospital or ask for a Covid test -- even though I know I need it -- because I don't want to be isolated. ..." His trial deadline was in March 2021. He is still waiting.

It didn't have to be this way. Since July this year, thanks to a successful vaccination campaign, the courts have been open without social distancing. But the judges are letting courtrooms sit empty or using them to settle non-urgent civil disputes. This is unacceptable.

As public defenders, we know that the right to trial without undue delay is not an empty right. Twenty-two-year-old Kalief Browder's death by suicide after his brutal, lengthy pretrial incarceration at Rikers Island, New York is this system's brutal reminder. What do you advise a client being railroaded by the system when the alternative to accepting an ill-advised plea is staying in jail indefinitely? What does the right to counsel mean if you can never get to court? What does the right to an impartial jury of your peers mean when seeing a jury is a pipe dream?

The U.S. Supreme Court has said that "even in a pandemic, the Constitution cannot be put away and forgotten." But in San Francisco, it has been put away and forgotten. And we are in the midst of a court-created humanitarian crisis. This is why I am one of five plaintiffs suing the San Francisco court, its presiding judge, and CEO for violating the law. We will not stand by as the court indefinitely suspends fundamental constitutional rights. We demand action.