The Current State & Condition of Courts, the Intersection of Criminal Law & Immigration Law, and Access to Justice in Tennessee with a Focus on Hamilton County
As of today, April 13, 2020, courts across Tennessee are trying to operate under the current health pandemic created by the Coronavirus. Decision-makers throughout Hamilton County have taken decisive action to combat and minimize community spread of COVID-19. Approximately one month ago, a number of businesses and institutions, including Hamilton County Schools, canceled classes, closed offices, and instituted work-from-home guidelines.
Pursuant to an order issued by the Tennessee Supreme Court on March 13, 2020, Hamilton County General Sessions and Criminal Courts suspended all in-person proceedings other than proceedings necessary to protect constitutional rights of criminal defendants from March 16, 2020 to March 31, 2020.
On March 25, 2020, the Supreme Court extended the original order, suspending in-person proceedings through April 30, 2020. The order further instructed the presiding judge of each judicial district to “develop a written plan to affirmatively address issues regarding the incarceration of nonviolent offenders in furtherance of efforts to reduce the jail population, including but not limited to bond reductions or eliminations, deferred sentences, or suspended sentences.”
Pursuant to these plans, an attorney’s access to both incarcerated clients and the courtroom have attempted to be solved by allowing video conferencing. In most circumstances, if a person in a criminal case has posted bail, the courts are continuing the cases until at least May or June when hopefully things will be back to normal at the courthouse.
Some courtrooms in Hamilton County only allow the attorneys to come make announcements such as an agreed resolution in an order of protection cases in Circuit and Chancery Court, but will still hear a contested case should all the parties want to proceed with a hearing.
Criminal Courts in Hamilton County are in session, but each Judge uses his own discretion for whether they expect the attorneys to appear in person or by video for a hearing. Generally, a person in custody is eligible to be released from custody once they post bail or they have served the required amount of time on a criminal sentence. But before that person is released:
- the jail will run the inmate’s NCIC and check to see if there are any holds from other jurisdictions;
- These holds could include being wanted in another state for another crime or violation or being wanted by a federal jurisdiction such as United States District Court for a federal criminal offense or an ICE hold because of someone’s status as a non-citizen; and
- Tennessee Courts have held that an individual may be held for a “reasonable time”, which the courts have interpreted is up to 30 days, for a hold from another jurisdiction.
As per the intersection of criminal law with foreign nationals, U.S. Immigration and Customs Enforcement (ICE) temporarily adjusted its enforcement actions, and policies on March 18, 2020. ICE holds, detainers, and enforcement actions are still taking place, but ICE epidemiologists are regularly updating infection prevention and control protocols, and issuing guidance to ICE Health Service Corps (IHSC) staff for the screening and management of potential exposure among detainees.
ICE officers and agents still continue daily enforcement operations to make criminal and civil arrests, prioritizing individuals who threaten national security and public safety, but limit actions if they concern schools, places of worship, and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities
ICE is actively working with state and local health partners to determine if any detainee requires additional testing or monitoring to combat the spread of the virus, and thereby the following policies should be noted:
- ICE does not conduct enforcement operations at medical facilities, except under extraordinary circumstances;
- ICE recognizes the substantial impact of temporarily curtailing personal visitation, but the agency has determined it necessary to maintain the safety and security of the facility, the detainees and those who work at the facility;
- ICE continues to facilitate communication with families in the absence of visitation through extended access to telephones, teleconferencing, video visitation and email with extended hours where possible.
In terms of attorneys, and their detained clients, the following rules have been given, and are subject to change:
- contact visits require all legal visitors to “provide and wear” PPE;
- overall authority to approve legal visits lies with the Warden or Facility Administrator;
- ICE encourages attorneys appearing in-person for court at ICE facilities, to contact the Executive Office for Immigration Review (EOIR) for any additional requirements;
- there are Standing Orders specific to the immigration courts at Adelanto, Arlington, Atlanta, Baltimore, Batavia, Boston, Buffalo, Chicago, Cleveland, Conroe, Dallas, Elizabeth, Florence, Hartford, Kansas City, Las Vegas, New York-Varick, Omaha, Pearsall, San Antonio, Lumpkin, Tacoma, Tucson, and York—and this is subject to change; and
- standing orders can allow for telephonic appearance by attorneys without a motion, while others can require notification to the court ahead of time, but by less formal means, including by email.
Overall, during this global pandemic, ICE will continue to focus enforcement on public-safety risks and individuals subject to mandatory detention based on criminal ground, but for those individuals who do not fall into those categories--then ERO will exercise discretion to delay enforcement actions until after the crisis, or use alternatives to detention. Also, Homeland Security Investigations (“HSI”) will continue to carry out mission-critical criminal investigations into child exploitation, gangs, narcotics trafficking, human trafficking, human smuggling, and continued participation on the Joint Terrorism Task Force.