Tuesday, March 6, 2007

Garrett and Tetlow, Criminal Justice Collapse: The Constitution After Katrina

For a powerful treatment of an historic episode in our own time:

Hurricane Katrina washed away the New Orleans criminal justice system. As residents evacuated, the jail flooded to inmates’ chests and police scrambled to enforce order without any communication. The water receded weeks later revealing “thousands of detainees awaiting hearings and trials . . . thrust into a legal limbo without courts, trials, or lawyers” resulting in what one judge called “a 'constitutional crisis.’” This dire situation lasted not just during the initial period of severe disruption, but for upwards of a year. While courts eventually reopened, they failed to act as eight thousand people languished for months “doing Katrina time” in prisons.
This is the opening to a new article by Brandon L. Garrett, Virginia, and Tania Tetlow, Tulane, posted on SSRN and published in the Duke Law Journal, Criminal Justice Collapse: The Constitution after Hurricane Katrina. Here's the abstract:

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal system after Hurricane Katrina. Not only did this perfect storm illuminate how unprepared our local criminal systems may remain for a severe natural disaster or terrorist attack, but it raised unique and underexplored constitutional questions. We argue that constitutional criminal procedure failed to serve its protective role during this emergency, while deferential rules rooted in federalism had the unanticipated effect of hindering provision of critical federal emergency assistance, and perhaps most important, longstanding local neglect rendered the system vulnerable to collapse. We conclude by imagining systems designed to safeguard the provision of criminal justice during emergencies.
The photo is of evacuated prisoners, held at gunpoint, on a highway overpass in New Orleans.