The COVID-19 pandemic offered vivid illustrations of the strength of globalized biopolitical imperativesFootnote 1 to manage inter-corporal mobilities and interactions. Like most social and institutional configurations, processes of repression, criminalization and penalization were importantly affected by biopolitical assessments of, and responses to, the novel coronavirus. In fact, policing and punitive institutions have been construed as “central components” of governmental responses to the COVID-19 pandemic (McClelland and Luscombe Reference McClelland and Luscombe2021, 223). While police is a constitutive element of a properly modern “medicine of epidemics” (Foucault Reference Foucault1963, 25), the articulations between a global pandemic and penality are not symmetrical. Simon (Reference Simon2013), notably, has shown how diseases have been vectors of complex transformations in the realm of penal policies and disciplinary endeavours. The COVID-19 pandemic led to conflicting carceral strategies: across the globe, the obscene use of isolation coincided with vast efforts to remove individuals from prisons.
The COVID-19 pandemic did generate a globalized episode of mass solitary confinement in prisons (Dünkel, Harrendorf, and van Zyl Smit Reference Dünkel and van Zyl Smit2022; Maruna, McNaull, and O’Neill Reference Maruna, McNaull and O’Neill2022; Heard Reference Heard2021). Lockdowns were used both as a strategy to contain the spread of the virus and as a means to manage dramatic staff shortages (Rosenberg et al. Reference Rosenberg, Puglisi, Thomas, Halberstam, Martin, Brinkley-Rubinstein and Wang2024; Prison Pandemic Papers 2022). Locked down institutions could afford prisoners as little as thirty minutes of daily out-of-cell time. This form of isolation has been used in conjunction with other stringent “medico-carceral measures” (Durnescu and Morar Reference Durnescu and Morar2020, 12), such as the quarantining of newly incarcerated individuals and the medical isolation of prisoners displaying symptoms of infection. The experiences of prisoners who survived these carceral conditions have been documented in various jurisdictions (e.g., Lackey et al. Reference Lackey, Loblack, Muprhy and Foltz2024; Rosenberg et al. Reference Rosenberg, Puglisi, Thomas, Halberstam, Martin, Brinkley-Rubinstein and Wang2024; Evans and House Reference Evans and House2024; Maruna and McNaull Reference Maruna and McNaull2023; Maycock Reference Maycock2022).
Lackey and colleagues (Reference Lackey, Loblack, Muprhy and Foltz2024) proposed to conceive of “COVID murders” as testifying to the success of the prison, whose function would be to isolate, maim and kill. Necropolitical critiques of that ilk make no room for nuanced engagements with conflicting forces criss-crossing the penal field. Among their very many problems, such perspectives cannot make sense of the globalized decarceration efforts that took place during the COVID-19 pandemic. As Maruna and colleagues (Reference Maruna, McNaull and O’Neill2022, 67–73) have documented, aligned interests of groups and institutions focused on public health, human rights and social justice fueled a global coalition advocating for mass decarceration. Showing important variations across and within nations, decarceration efforts were significant. Mobilized in at least 109 countries, they involved mainly early releases, converting incarceration sentences into conditional sentences (i.e., house arrests) and pardons (HRI 2020). However disappointing in scale it may appear to critics, some sources estimated that over one million prisoners were decarcerated in 2021 (Bruce-Lockhart Reference Bruce-Lockhart2021).
While mass solitary confinement and decarceration efforts have been critically scrutinized by scholarly endeavours, there is a paucity of research on how formal processes upstream of penality operated throughout, and in the aftermath of, the COVID-19 pandemic. Like other sectors of society, criminal legal actors and institutions managing individuals charged with criminalized incidents had to swiftly put in place exceptional operational modalities. The routine activities of criminal courts were profoundly altered by the injunction to deliver justice through technologically mediated proceedings. However, we know very little about the ways in which criminal law’s own observations of the pandemic inflected the processes through which individuals were criminalized and sentenced. We do not know, for instance, how criminal courts gave meaning to the use of lockdowns in prisons. We do not know whether and how this was integrated in routine communications and decisions about guilt and punishment. In this article, we use the notion of criminal law’s pandemic to refer to the ways in which law, conceived as an idiosyncratic epistemic system in the Luhmannian tradition (e.g., Luhmann Reference Luhmann2004; Reference Luhmann2012), self-referentially constructed elements of its environment, structurally coupled to the biopolitical management of the novel coronavirus. As we document below, criminal law’s pandemic notably resulted in extraordinary legal operations, self-described as “COVID justice.” While there is a relatively healthy body of international scholarship on virtual courts, empirical research on COVID justice in criminal legal settings is very limited.
This contribution mobilizes data produced through an ethnographic study of plea courts in Ottawa, Ontario, Canada. Our research programme was designed prior to the COVID-19 pandemic. It proposed to provide thick naturalistic accounts of penal processes in Canadian lower criminal courts. Whereas there are rich traditions of ethnographies of routine processes of criminalization and sentencing in American, British and Australian lower criminal courts (e.g., Kohler-Hausmann Reference Kohler-Hausmann2018; Natapoff Reference Natapoff2018; Roach Anleu and Mack Reference Roach Anleu and Mack2017; Ward Reference Ward2017; Feeley Reference Feeley1992), in situ qualitative research in Canada has focused on bail and specialized courts, seemingly neglecting to study the mundane processes through which the majority of criminals are manufactured and sentenced.
The remainder of the article is organized as follows. As most of our observations were conducted while the courts were still relying on technological mediation, we begin by broadly surveying critical contributions on lower criminal courts and technologically mediated court proceedings. We then briefly contextualize our study, notably outlining how the criminal legal proceedings we observed took place in the aftermath of a great drop in the use of incarceration. This leads us to engage more particularly with a recent empirical article published in this Journal (Johnson and Leclerc Reference Johnson and Leclerc2024, 13) that examined COVID deals and a decreased reliance on incarceration in Ontario’s criminal courts. After outlining the key epistemological considerations guiding our study, we document four effects of criminal law’s pandemic on Ottawa’s plea courts. First, we document how criminal law’s pandemic generated a dilated reward system for guilty pleas. Second, we report on the work of the virtual resolution team (VTR)—a workgroup dedicated to unburdening the courts from backlogs attributed to the pandemic. Finally, we show how explicit considerations for biopolitical imperatives were communicated in plea courts. This allows us to document two other effects of criminal law’s pandemic: requests to increase the credits granted for time served in locked down, noxious prisons and diverting sentenced individuals from prison on the grounds of the primacy of public health over criminal justice.
Routine criminalization and penalization go virtual
That criminal justice in Canada is achieved via adversarial mechanisms can be empirically scoffed at for being delusional or ideological. In Ontario, the latest decade-long data set (2012–23) shows a trial rate that varies between 5.1 and 2.9 percent.Footnote 2 Displaying a general pattern of decline during this period, this rate indicates that incidents coded as criminalizable and funnelled towards criminal courts are typically resolved without any complex quest for a disputed or hidden truth. Across time and space, criminalization and penalization are, first and foremost, mainly used towards a limited set of incidents. In Ontario, between 56.2 and 60.9 percent of all cases received by the Ontario Court of Justice from 2013 to 2022 involved small thefts, (non-sexual) assaults, infractions against the administration of justice and impaired driving.
Such standard criminalized incidents are typically processed in plea courts, with legal actors bringing forward a joint proposal on sentencing bargained for a guilty plea. One could go so far as to suggest that the practices of criminalization and penalization in lower criminal courts dedifferentiate the formalization of repressive policing interventions and the legal production of guilt (Natapoff Reference Natapoff2015). There are deviant cases in which there is no plea-bargaining and also exceptional cases in which guilty pleas are refused by judging authorities. However, communicational operations occurring in plea courts are typically about declaring that guilt has been found once the arraigned individuals enter their plea, transforming an informally negotiated suggestion on sentencing into a legally valid decision. Although judges have the prerogative to reject joint proposals, a study of plea courts in Manitoba has documented how “judicial discretion to reject joint recommendations approaches fictitious dimensions in all but the most extreme circumstances” (Ireland Reference Ireland2015, 324).
The academic literature on American, British and Australian lower criminal courts has analyzed and criticized many outcomes of the “inevitable and necessary” routinization of legal operations (Hunter et al. Reference Hunter, Anleu and Mack2016, 340), which is sometimes denounced as a form of “McJustice” (Robinson Reference Robinson2019; Bohm Reference Bohm2006; Di Luca Reference Di Luca2005). For decades, observers have denounced the fact that their empirical observations did not conform to normative fantasies about the rule of law (e.g., Pound Reference Pound1930) and that sentencing workers (Tata Reference Tata2020) are showing an overt disregard for the dignity of defendants (e.g., Brissette Reference Brissette2020). While much ethnography has been conducted since Feeley’s (1979 [Reference Feeley1992]) classic study of a lower criminal court in Connecticut, his key interpretation still holds: lower criminal courts constitute the end point of an “inverted system of justice” (Feeley Reference Feeley1992, 241) in which entering a guilty plea usually marks the “ritualistic termination” of the penal process (Feeley Reference Feeley1992, 293).
The bulk of criminalization thus takes place in lower criminal courts and involves a limited set of standard incidents towards which routinized responses (e.g., going rates) develop with jurisdictional, organizational and cultural peculiarities. Lower criminal courts are accustomed to some technologically mediated proceedings, most notably “prison-to-courtroom audio visual technologies” (McKay Reference McKay2018, 7). Before the pandemic, a solid body of empirical research documented the multiple ways in which remote participation penalizes defendants (e.g., McKay Reference McKay2016; Rowden, Wallace, and Goodman-Delahunty Reference Rowden, Wallace and Goodman-Delahunty2010; Diamond et al. Reference Diamond, Bowman, Wong and Patton2010; Webster Reference Webster2009). One focal point of the scholarship on distributed or virtual courts is the impact of the absence of physical co-presence on complex interactional and dramaturgical performances oriented towards truth seeking and judging (see Rossner and Tait Reference Rossner and Tait2023). These complex processes are typically circumvented in the bulk of criminalizing and sentencing decisions that lower criminal courts produce swiftly (Brissette Reference Brissette2020).
Biopolitical responses to the COVID-19 pandemic forced the basal institutions charged to deliver the bulk of criminal justice across the globeFootnote 3 to suddenly do so by relying almost solely on technologically mediated operations. Many organizations restricted access to their physical locations to essential personnel (Baldwin, Eassey, and Brooke Reference Baldwin, Eassey and Brooke2020), pivoting onto Zoom or similar platforms “overnight” (Rossner Reference Rossner2021, 336). Empirical research based on observations of the processes of tele-criminalization and tele-sentencing in pandemic times is still scant. Nir and Musial (Reference Nir and Musial2022) tasked their students with observing virtual criminal legal proceedings in a Northeastern American state and published an analysis of their journals. Their contribution empirically problematizes the assumption that virtual courts can protect defendants’ rights. It does not, however, examine how mundane criminalization and penalization were modulated by (legal observations of) an intensively biopoliticized environment. Seemingly, the work of Johnson and Leclerc (Reference Johnson and Leclerc2024) is, to date, the only published naturalistic empirical examination of sentencing decisions in virtual courtrooms during pandemic times. Their research was conducted in Ontario from January to October 2021, ending a few months before we started our observations of plea courts in Ottawa. It thus seems warranted to discuss their work within a general contextualization of our ethnography.
Ontario’s criminal courts during, and in the aftermath of, the COVID-19 pandemic
As in other provincial jurisdictions, a state of emergency was declared in Ontario in March 2020. The Ontario Court of Justice (OCJ) immediately decided to adjourn all scheduled court matters for ten weeks. Later in March, lower criminal courts were instructed to pivot online. All out-of-custody pleas would now be entered via Zoom, with the OCJ publishing login coordinates for its dockets forty-eight hours in advance. In-custody pleas were to be processed on the province’s Justice Video Network—a platform introduced two decades ago to reduce the need to transport remanded individuals. Clerks and sometimes judges would officiate from the physical courtroom, retrofitted with plexiglass shields, while all other actors would participate remotely. Court participants would typically interact synchronously in a shared representational environment. Processes of tele-criminalization and tele-sentencing in which the accused/punished individual was participating solely through audio conferencing would occur at times. The Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures), which received royal assent in December 2022, now delineates more clearly situations in which the criminally accused can enter a plea and be sentenced via Zoom or on a phone without video capacity.
In March 2022, the OCJ declared that courts would begin to transition back to in-person proceedings. In April 2022, we started to witness judges expressing their confusion about the hybrid quality of the proceedings and communicating their expectations that legal professionals ought to, when possible, appear physically in the courtroom. By the autumn of 2022, the institution had become more thickly inhabited. Members of our research team then started to observe plea courts in situ rather than on a computer screen. Nonetheless, many pleas were still processed on Zoom or via the Justice Video Network; some of our observations involved looking at a screen while sitting in the courtroom. In around November 2022, despite defendants Zooming in to enter a guilty plea being tolerated when incarceration was not contemplated, a clear expectation of in-person processing was routinely communicated to legal professionals, unless health concerns justified the use of technological mediation.
In Ontario, mundane processes of criminalization and penalization were thus managed virtually for over two years (between March 2020 and March 2022). Throughout this period, the Ministry of the Solicitor General disseminated a series of informational notes and guidelines. These communiqués, later made accessible in the Pandemic Papers repository,Footnote 4 outlined the ministry’s responses to the COVID-19 pandemic. They notably contained information about carceral capacity, as well as infection rates, vaccination rates and outbreaks in prisons. The communiqués also detailed decarceration strategies deployed by the ministry. Intermittent sentences were not served within prisons; individuals received temporary absence passes upon their arrival at the prison and were told to go back home. Early releases were used proactively. In addition to these two decarceration strategies, the solicitor general urged judges to avoid carceral sentences for non-violent incidents.
These strategies contributed to the greatest drop ever recorded in the prison population in multiple Canadian jurisdictions. News media informed everyone that this drop surpassed 30 percent in Ontario (Hasham Reference Hasham2021) and 40 percent in Nova Scotia (Bradley Reference Bradley2020). If this generalized drop was largely produced by a decreased use of remand, then the data from Statistics Canada compiled by Johnson and Leclerc (Reference Johnson and Leclerc2024, 9) reveal a drop of 49 percent in carceral sentences between 2019/20 and 2020/21. The important effects of the diversion and decarceration strategies were transitory. For instance, the Toronto Star remarked that, by “October [2020], the initial 32 per cent drop in the jail population had become a 21 per cent drop. By January the population was down only 15 per cent from pre-pandemic levels” (Hasham Reference Hasham2021). Nevertheless, in January 2022, intermittent sentences were still de facto non-carceral sentences in Ontario and the Ministry of the Solicitor General was restating its directive: judges should divert sentenced individuals from prison “where safely possible.”Footnote 5
The work of Johnson and Leclerc (Reference Johnson and Leclerc2024) demonstrates that legal actors held agonistic positions regarding the weight that should be given to these COVID-19 concerns in both bail hearings and sentencing decisions. Combining a compilation of court data produced by Statistics Canada, the observation of technologically mediated court proceedings (102 bail decisions and 107 sentencing decisions) and sixteen e-interviews with judges and defence counsels, the authors sought to reveal “if and in what ways COVID-19 pushed criminal courts and criminal justice actors in Ontario to alter their use of incarceration” (Johnson and Leclerc Reference Johnson and Leclerc2024, 1). Although they observed hundreds of court proceedings, most of the qualitative data mobilized in their contribution comes from the e-interviews. The discourses they generated notably underline how judges welcomed “COVID deals”, described as “lenient” joint proposals that would not normally be submitted (Johnson and Leclerc Reference Johnson and Leclerc2024, 13). They also suggest the quick onset of a “pandemic fatigue” (Johnson and Leclerc Reference Johnson and Leclerc2024, 18), with legal actors reportedly opposing, for instance, the granting of additional credits for time spent remanded in locked-down prisons. So-called Duncan credits could be used to top up the usual 1.5:1 ratio mobilized when sentencing remanded individuals.Footnote 6 Submissions for Duncan credits were observed in five of the 107 sentencing proceedings witnessed by the researchers:
[In one instance] the judge specifically stated that it “should not serve as precedent” (Observation Notes) given the unique factors of the case […]. In each of these five cases, however, crown attorneys argued the Duncan credit should not be granted, explaining either that pretrial discussions had been predicated on credit of 1.5:1 or that greater credit had already been baked into the resolution agreement. Crowns also demanded that the defence should proffer evidence of uniquely harsh conditions experienced by a detainee to justify this credit. (Johnson and Leclerc Reference Johnson and Leclerc2024, 16–17)
These are the only observational data about sentencing used in Johnson and Leclerc’s article. While the article provides important analyses of legal actors’ discourses about organizational practices and penology, the ways in which the empirical data are mobilized do not shed light on the sentencing processes. As such, beyond summarizing the quantitative court data produced by governmental apparatuses, it does not elucidate the ways in which criminalization and penalization were modulated by (legal observations of) an intensively biopoliticized environment.
The current study
From December 2021 to December 2022, four bilingual observers (including the authors) spent ninety-three days in plea courts in the Ottawa Courthouse. Multiple observers were frequently present in the same courtroom. On days on which dockets announced many pleas in different courtrooms, we would have observers in different courtrooms. Our research project did not include bail hearings. We observed the legal management of both out-of-custody and in-custody pleas. The remote observation of the plea courts allowed the tranquil production of thick field notes. Field notes produced simultaneously by different observers were then triangulated. When proceedings involved the participation of a translator, a slow pace and repetitions allowed observers to write down verbatim discourses. Otherwise, we attended to our imperfect transcriptions as soon as the court had recessed, became idle or had completed its daily business. In virtual proceedings that were constantly plagued by devastating technological glitches, frequent and sustained idleness was the norm.
Throughout 2021–22, we observed 343 guilty pleas, resulting in the manufacture of criminals and their immediate sentencing. We also observed much additional processing of guilty pleas not instantly attached to a penal tariff. This ethnographic period resulted in the production of over 1,000 pages of tightly typed field notes. They notably included actors’ discourses and descriptive accounts of interactional dynamics and institutional settings. The production of field notes was guided by a will to understand the public-facing performance of the mundane practices of criminalization and penalization in plea courts. In this contribution, the empirical material we present is limited to the ways in which criminal law’s pandemic inflected the processes through which individuals were criminalized and sentenced. A comprehensive analysis of elements such as the type of criminalized incidents processed and the varied ways in which legal actors differentially give meaning to their alleged authors (e.g., Indigeneity, gender, class, etc.) is well beyond the scope of this paper. Before detailing our analysis of the effects of criminal law’s pandemic, we briefly discuss epistemological considerations conjured up by the observations of legal observers.
Short prolegomenon to the analysis of the effects of criminal law’s pandemic on mundane criminalization and penalization
The empirical material presented below shows how the COVID-19 pandemic has been thematized in legal communications about penal responses to criminalized incidents. The analysis proposed below does not suggest any simple causal relation between the pandemic and decisions in Ottawa’s plea courts. Employing a Luhmannian sociological approach to law premised on operational constructivism, the notion of criminal law’s pandemic makes explicit that we observed it as a product of legal observations. In contradistinction to commonsensical discourses positing law’s adaptation to its environment, a Luhmannian perspective advances a conception of law as a self-referential epistemic site, producing its own idiosyncratic observations of (selected elements of) its complex social environment. Luhmann (e.g., Reference Luhmann1995) used the concept of cognitive openness to describe a state of affairs in which the ability to observe—granting meaning to aspects of the world by reducing its complexity—depends upon self-referential closure. The Luhmannian paradox of openness through closure is preferred to the sociolegal notion of “relative autonomy” because it specifies more precisely how law is both autonomous and dependent (Luhmann Reference Luhmann, Arnaud and Guibentif1993, 60).
In contradistinction to Johnson and Leclerc (Reference Johnson and Leclerc2024), we prioritize naturalistic observations over interviewing. While recognizing the value of interviewing key players in a given organizational setting, there are important epistemological fault lines in studying sentencing practices through the discourses that actors perform about them ex post facto in artificial settings. One issue is the problematic assumption that sentencing is the outcome of a set of individualized cognitive operations. This issue has been made particularly salient by the work of Tata (e.g., Reference Tata2007; Reference Tata2020) on the social processes of sentencing and Lynch’s (Reference Lynch2019) unforgiving critique of dominant practices in empirical research on sentencing. Another problem is the perplexing assumption that the discursive account of an action’s motive is the narrative form of its cause: treating justification as operationally equivalent to explanation pushes the observer into an endless tautological spiral. It is notably for this reason that C. Wright Mills (Reference Wright Mills and Horowitz1940) put forward the notion of “situated vocabularies of motives” in which motives are taken as socially effective interruptions of questions about projected action. In other words, the notion was developed to instrument a sociological analysis abandoning the quest for reasons, instead critically examining processes of justifications that are both socially controlled (situatedness limits the range of effective rationalizations) and socially controlling (justifications delimit the realm of possible corollaries).
Our objects are criminalizing and penalizing processes: public declarations of guilt and public utterances about the pain to be inflicted as a means to produce criminal justice. In their complacent ethnographic work, Roach Anleu and Mack (Reference Roach Anleu and Mack2017) have suggested that reason-giving allows judges to perform legitimacy. Whether scholarly attempts at legitimizing state violence are made or not, the uttering of a criminal sanction in a courtroom is the unfolding of the expressive function of penalty. It is—at least from the perspective of law (e.g., R. v M., 1996, 81)—the moment at which the infliction of pain is transmuted into a communicational gesture about the fundamental values of the nation. Harnessed to the moral indignation performed by the declaration of guilt, punishment is, then, first and foremost, a communicational event. Its analysis does not suppose any epistemological interest in what legal actors think and say about doing law when they are not doing law. Legal declarations of guilt and sentencing are institutionalized communicational events. They are public performances engaging the entire citizenry as an imagined audience. Structurally coupled to countless reverberations and available for interpretation from endless observational positions (political, moral, social scientific, economic, religious, aesthetic, philosophical, cultural, journalistic, etc.), they are social facts that are irreducible to legal actors’ intentions, motives or affects (see notably Tata Reference Tata2020; Luhmann Reference Luhmann2001; Clam Reference Clam1995).
A last remark is warranted before engaging with the effects of criminal law’s observations of the COVID-19 pandemic. Despite the considerable amount of time that we spent observing such operations in Ottawa’s plea courts, the huge amount of routinized processing of guilty pleas that we observed can only instrument a qualitative analysis. The volume of cases at our disposal could not justify any claims-making about the distribution and frequency of specific legal operations. The contribution of Johnson and Leclerc (Reference Johnson and Leclerc2024) discussed above notably illustrates the incapacity of discourses (field notes, interview data) to measure variations in the use of incarceration. As constructivist qualitative researchers, necessarily operating outside the logic of representativeness, we privilege triangulated interpretations of social processes and situated communicational achievements. In the jargon of contemporary systems theory, this means privileging the second-order observations of legal operations. These operations are the legal validation of mundane criminalizing processes and sentencing utterances during, and in the aftermath of, the COVID-19 pandemic. As we have announced above, we document four effects of criminal law’s pandemic. They pertain to 1) rewarding guilty pleas, 2) creating a virtual resolution team, 3) requesting additional credits for time spent remanded and 4) diverting sentenced individuals from prisons.
Rewarding guilty pleas
Our empirical material demonstrates that criminal law’s pandemic resulted in emphatic expressions of gratitude from judges, addressed at defendants pleading guilty. Criminal law’s pandemic, notably through the representation of a critical overburdening of the courts produced by the effects of the state of emergency, gave judges a motive to justify “extremely lenient” sentences. Our empirical material is saturated with discourses about the “extremely mitigating” effects of guilty pleas. For instance, one judge remarked:
For a sentence to be fair, it has to be just. We look at sentencing principles to come to that evaluation. What is aggravating here is that this is an offence in the context of a relationship. And you put your hands on the body, near the neck. And there is a criminal record, although there is no violence in it. Alcohol played a role here […] if you have a problem […] and you seem to have one, because you are here for the 3rd time […]. What is mitigating is that you pleaded guilty, and this saves the victim from having to come to court. You expressed remorse. You have some insight. And the plea is extremely mitigating given COVID, because there is this system backlog. (Case #45, 25 January 2022)
In another (similar) case, a different judge provided the same rationale for accepting the COVID deal brought forward by legal actors:
I will agree with the joint position. There are [many] elements which are aggravating here. The offence itself […] this is a serious incident. And this was a domestic situation. There is also a lengthy criminal record, with a record of similar assaults. But you have pleaded guilty, you have taken responsibility, you saved the victim from having to come in court, and you are saving court time, which is very important in COVID times. You are helping the community by pleading guilty. Otherwise, the system would collapse. (Case #5, 14 December 2021)
We observed multiple instances of judges expressing gratitude in their sentencing remarks, with guilty pleas associated with helping the court to manage exceptionally challenging circumstances. As the quoted remarks above show, criminal law’s pandemic allows a representation of guilty pleas as benefiting not only lower criminal courts, but also the broader community of which they are a part. Here is another manifestation of the use of this vocabulary of motives (by the same judge on the same day as Case #5 above): “This is an extremely lenient sentence. What is mitigating is that you pleaded guilty and doing so you are helping the court in COVID times. People taking responsibility help the community. This is extremely mitigating” (Case #11, 14 December 2021).
The empirical material presented so far illustrates the rewarding of guilty pleas in judges’ discourses following the formal acceptance of joint proposals brought forward by the Crown and defence counsels. It should be noted that, in their submissions, it was typical for prosecutorial actors to emphasize that the bartered proposal was deemed reasonable “only because of COVID.” Although we are inclined to infer that the sentencing discourses above mark the endpoint of bartered penal tariffs, they could have been preceded by negotiated facts and charges. Despite our blindness to legal interactions outside the public operations of courts, we were able to witness the stunning impacts of criminal law’s pandemic on a set of charging practices: the (selective) downgrading of the criminal offence of impaired driving to careless driving—an infraction of the province’s Highway Traffic Act. While it constitutes a practice of rewarding guilty pleas, the selective decriminalization of impaired driving that took place in the midst of criminal law’s pandemic corresponds to a legal operation that is radically distinct from the judicial endorsement of clement criminal sentences jointly proposed by lawyers.
Selectively decriminalizing impaired driving
A guilty plea exchanged for the conversion of allegations of impaired driving into a charge of careless driving presents confounding benefits for the accused, who avoids the punishing effects of a criminal record.Footnote 7 From January to April 2022, joint proposals on incidents legally coded as careless driving were proudly presented in the legal arena as the “achievement” of the VRT. In January 2022—the first time we observed the Crown making reference to the VRT—we witnessed the lawyer reading very quickly a blurb about it, aimed at justifying the Crown’s position: “because of the effects of COVID, the team is looking into ways to use resources efficiently while balancing the protection of the public.” With the many variations in the repetitive mentions of the VRT that we jotted down and with the observations of interactions between legal actors outside the official activities of the plea courts (see below), we formed this understanding of the mandate of the VRT: under the leadership of a senior prosecutor, the team sought to identify cases in which “triable issues” decreased the likelihood of guilty pleas. Members of the VRT would then proactively propose exceptionally lenient deals to the defence, which in turn would be presented as special joint submissions in plea courts. The Crown would typically indicate that the joint submission was a VRT product and then read the quick blurb about the team, suggesting something to the effect that scarce resources need to be used smartly in the pandemic context. Although our empirical material contains exceptional legal operations in which judges refused joint proposals, none were resolutions promoted by the VRT.
In the winter of 2022, the legal processing of resolutions bartered by the VRT was mundane and speedy. Consider, for instance, these field notes:
It is 9:02am, the court’s Zoom link comes live.
The judge [J] comes in one minute later. A defence counsel [L] intervenes immediately, signifying he wants to process a careless.
A clerk interjects: they do not have the information.
J: “So what the clerk is trying to tell you, is that next time you need to do your job and have the paperwork in front of the court and not have the clerk do your job!”
L: “My apologies your honor, but this was brought forth by the Crown [C].”
J addresses C and repeats the same blaming trope. After a few minutes, the clerk manages to find the information and arraigns the defendant: he was driving the wrong way, with alcohol readings of 1.90mg/100ml of blood; this is processed as careless driving. A guilty plea is entered, immediately legally translated as a finding of guilt.
J: “There is a joint for $2000 fine and 12 months POA [Provincial Offences Act] probation with 6 months interlock and 0 alcohol […]. This is one of the resolutions based on the delays caused by the pandemic. You are one of the beneficiaries of this […]. The blood concentration was close to 200!”
The judge then re-reads the joint submission, this time as sentence. “You understand the conditions? And the other criminal charges?”
C: “Withdrawn please.”
J: “You have 12 months to pay the fine.”
Defendant [D]: “Thank you your honor.”
After a short moment of silence, another defence lawyer intervenes.
L: “The next matter is Mr. D. This is a similar careless, also with a joint submission.”
The clerk arraigns quickly. D confirms his guilty plea.
C: “These are the facts your honor. D stopped his vehicle in the middle of Carling [avenue]. Drunk. Blood was at 230!”
L: “Facts are admitted.”
J: “I make a finding of guilt. Submission?”
C present the same deal than in the previous case, except that this time Back on track [Ontario’s Remedial Measures Program for Impaired Drivers] is added. This discrepancy is not discussed. C indicates that this case was resolved by the VRT: “with the impact of COVID, the resources are scarce, the team deemed it reasonable to resolve this through HTA [Highway Traffic Act].”
J: “I hope this makes you realize the gravity of the offense. The resolution is reasonable given the conditions under which the court system is forced to operate these days.”
J then re-reads the submission as sentence, asks if D understands the conditions. C ends the routine and opens the door to the next case by confirming that the other charges are withdrawn. (Cases #104 and #105, 15 March 2022)
With the practices of the VRT quickly (albeit only temporarily) integrated into the court’s habits, the decriminalization of a serious incident of impaired driving was legally enacted in a few minutes. We have witnessed judges abruptly interrupting prosecutors narrating facts, intimating that the production of this form of legal knowledge was superfluous. Individuals would need to pay a fine and go through a period of probationary surveillance. Variations in sanctions included whether individuals would see their driver’s licence suspended or keep their driver’s privileges on the condition that they would pay for a machine to be installed in their vehicle that would control its ignition through a breath analyzer. Some also needed to complete a special programme, notably aiming to educate them about the need to segregate drinking and driving.
In the first months of our ethnography, the microphones in the courtrooms remained permanently turned on. We were thus privy to ordinary discussions between those present in the courtroom even when it was not in the business of delivering justice—ranging from professional conversations about criminal cases to small talk about colleagues’ vacations, kids and, of course, the weather. Not too long after judges had inquired about our identities and interests, court clerks started to mute the microphones when the court paused its official activities. Before this had happened, we notably observed the following interaction between the lead of the VRT and a judge who had, on many occasions, voiced her dissatisfaction while assenting, resigned, to joint proposals brought forward by the team:
J: “You are efficient Mr. C!”
C: “No no! Mr. Clerk is doing a fantastic job! You could put a monkey instead of the Crown and this would work.” C talks about being the boss of VRT, which is set to end in April. He boasts: “We are crushing a bunch of things set to go to trial! And not just in Ottawa, we are doing Pembroke and a few other places […] It is a tough balance […] [alcohol] readings over 200! In a normal world this would never fly […] but in some jurisdictions, it’s at least 12 months waiting time for a trial […].”
J: “I assume that this discretion given to the Crown will be taken away as soon as we are back to normal.” (26 January 2022)
A few hours later, the lead of the VRT would introduce yet another special joint proposal to the same judge. In her response, she positions herself as a frustrated and powerless conveyor belt of problematic joint submissions:
C: “I understand your honor’s position on these offenses, but the virtual resolution team was involved here. Given COVID in community and jail settings, and freeing up time for other trials to proceed, this can be mitigating, and it is not contrary to the administration of justice.”
J: “Mr. D: The Crown has indicated that he knows how I feel about these offenses. It would normally lead to a period of incarceration. If you breach, I will be the judge dealing with this, and COVID or no COVID, you will go to jail! Do you understand!?” (Case #52, 26 January 2022)
In decriminalized impaired-driving incidents, sentencing discourses do not emphasize the critical importance of guilty pleas. The key trope is rather the good fortune of defendants who had their charges dealt with by the VRT. For instance, one judge remarked: “You seem to understand how lucky you are not to end up in jail.” Another asked: “Mr. D, you understand that you came that close to a real disaster, right? This is COVID justice sir. Reflect on that.” In another case, the judge quipped: “given the pandemic, you are benefiting from the fact that Mr. Crown was tasked to make these cases resolved so that the system does not crash.” It is important to note that the decriminalization of impaired driving was not a systematized effect of criminal law’s pandemic; some individuals were still legally manufactured as criminals when the VRT was actively working to “crush a bunch of things set to go to trial.”
Requesting additional credits for time spent remanded
Criminal law’s pandemic also led defence counsels to request that the time their clients spent detained in the noxious and frequently locked-down Ottawa-Carleton Detention Center be credited higher than 1.5:1. R. v Duncan (2016) set a path to go beyond this ratio, should the remand conditions justify it. While numerous submissions of defence counsels made references to the exceptional conditions of pretrial detention, with some requesting a ratio of 2.5:1, Duncan was explicitly cited in only four of the 115 in-custody cases in our field notes. Similarly to what Johnson and Leclerc (Reference Johnson and Leclerc2024) reported, we observed the Crown opposing a ratio greater than 1.5:1. In one instance, both the judge and the Crown stated that official documentation from the prison did not really “support” the claims of the defence counsel. The accused interrupted, yelling that he only gets thirty minutes out of his cell per day, “with no yard time.” Despite initially appearing to share the Crown’s position, the judge credited sixty days for thirty-five days of remand. This was done without explaining the mathematics of the penal quantum (an omission that was not unusual in our material).
We have also witnessed instances in which the Crown either supported or did not oppose using a ratio greater than 1.5:1. These were instances in which this put the detained individual “at time served,” with the sentencing then coinciding with liberation from prison. In one of the cases in which Duncan was cited in the defence’s submission, the counsel presented a virtually joint submission. The Crown limited its intervention to pointing out that the individual’s criminal record was lengthy and clarifying that its only departure from the proposal was that the probationary term should be accompanied by counselling obligations, to which the judge assented:
L: “There were many periods of lockdown, especially in March. On a typical 1.5, 49 would equal 74 days. But we are asking for an enhanced credit because of the principles enunciated in Duncan. I would suggest 3 to 3.5 months of time served to be taken off […].”
C: “The record is lengthy and terrible: lots of theft, failures, robberies, B&Es, things like that. The last in December 21 he got 150 days credit for pre-sentence […].”
J: “This is a very long record […] there’s not so much violence in the past, but now it seems to be included […] It is in society’s interest that you are undergoing treatment and counselling while on probation. For 49 days, with 16 days in lockdown, I will give you 3 months total. I think your lawyer got you a good deal on this one.” (Case #144, 13 April 2022)
In one of the exceptional cases in which we observed a judge refusing a joint proposal, the use of Duncan credits would have placed the remanded person at time served. The individual had been remanded for thirty-five days. The joint proposal is a sentence of sixty days of incarceration. Credited at 1.5:1, the time remanded counts for fifty-three days of jail, leaving seven days to serve. The request is thus to remove this remaining week of incarceration. This is denied by the judge, notably because the joint proposal is already considered to be “an extremely light sentence,” with the judge noting that he’s only “going along with the joint” because he appreciates the “the value of moving cases along in the context of the pandemic with limited court resources.”
Diverting sentenced individuals from prisons
The fourth effect of criminal law’s pandemic consists of explicit efforts to keep at least some sentenced individuals out of prisons on the grounds of biopolitical imperatives. Our material provides details of stated rationales in atypical sentencing decisions that contributed to the great drop in the use of incarceration, discussed above. These decisions took three specific forms. The first form is the use of intermittent incarceration sentences as a means to meet penological expectations formally, while factually avoiding the use of the prison. Where criminalized incidents are legally constructed as requiring the denunciatory or deterring effects attributed to the prison, a carceral sentence could be used, knowing that the ministry’s decarceration imperative would result in the individual immediately receiving a temporary absence pass and never setting foot in prison:
J: “There has to be consequences. The principle is deterrence. If you continue to do what you are no longer allowed to do, then there is no deterrence for others. You are taking responsibility, this is good, and it really helps the court in the context of COVID. I balance all this and I think that society has no interest in you losing your job. But there is a denunciatory aspect needed here. I think a short custodial sentence is needed. […] This will be 21 days intermittently: what day would you like to go to jail to be processed? Friday? Do you want to do this this Friday sir?”
D: “That works.”
J: “OK. So you go on weekends. I don’t know the exact details of the temporary absence program. They will explain it to you.” […]
D: “So, Friday at 3pm, I go to the detention center and then I spend the whole weekend there?”
J: “No you won’t.”
L thanks J and tells D he will call him later to explain the program. (Case #46, 25 January 2022)
The second form that diversion took was merely temporary. Legal actors would use adjournments to delay the utterance of a carceral sentence, aiming to allow the soon-to-be prisoner to avoid dismal prison conditions:
J: “From a public health perspective, public safety does not require him to be placed into custody right away […]. The Innes road jail […] half the pods are in lockdown […] there’s a real struggle to contain [the virus] […]. Public safety does not require expeditious incarceration. We will need to get this done, but for now public health and your client’s health call for a postponement. This came up in a judges’ meeting yesterday—there’s no clear directive on this, but in this case, this is appropriate.” (Case #55x, 21 January 2022)
Finally, the third form of sentencing communications integrating legal observations of an intensely biopoliticized environment insisted that individuals deserve to be submitted to the highest degree of penal intensity: under normal circumstances, they would have been incarcerated. We have provided some examples above, when discussing the decriminalization of impaired driving. Even when uttering criminal sentences (rather than sanctions for HTA infractions), judges’ commentaries, volume and tone appeared to us as dismayed and frustrated:
J: “If we were not in the midst of a pandemic and this huge outbreak at OCDC [prison], I am not sure I wouldn’t be sending Mr. D to OCDC for mooning in front of kids. If you are back in front of me and you do this again in front of kids, you will go to jail! COVID or no COVID, mental issues or not, you will go to jail!” (Case #28, 12 January 2022)
Discussion and conclusion
Despite being the scene on which the bulk of criminals are manufactured, lower criminal courts seem to have generated little ethnographic curiosity in Canada. In this contribution, we carved specific elements out of our ethnographic material, focusing on institutionalized events through which law constituted what it self-described as COVID justice. Corresponding to a set of different operational and communicational practices, it relied on a variety of motives and legitimating tropes provided by a self-referential product: criminal law’s pandemic. We have focused on four effects of criminal law’s pandemic articulated to mundane punishment, including aspects of the submissions of legal actors, practices of decriminalization and judges’ penological discourses. We have shown how guilty pleas were rewarded in Ottawa’s plea courts, documenting sentencing discourses in which clemency is interwoven with gratitude, constituting a sort of grateful punishment.
Criminal law’s pandemic had much broader and complex effects than those we discussed. Among them were the many problems associated with the obligation to go virtual. At least two of these problems should be mentioned here, given their impacts on the ways in which declarations of guilt and sentencing decisions are managed in plea courts. First, remanded individuals have routinely seen virtual meetings with their lawyers cancelled because of poor operational capacity at the prison, strained by dramatic staff shortages. In the sea of requests for adjournments that constitute a significant part of the routine activities of lower criminal courts, those presented for cases involving remanded individuals were quite typically motivated by the impossibility for lawyers to get access to their clients. Second, because of the limited capacity of the prison personnel to accommodate law’s demands for scheduled remote connectivity, remanded individuals would frequently appear virtually in the courtroom from the courtroom’s cell block: the prison would have remanded individuals transported to the carceral space of the court for them to access the Justice Video Network—sometimes simply to sit through the adjournment of their case. Canadian research suggests that transportation may well be one of the worst dimensions of the experience of remand (Pelvin Reference Pelvin2019).
Naturalistic accounts of lower criminal courts have compared them to “supermarkets” or the “marketplace,” suggesting that properly socialized legal actors have a good sense of pricing practices—that is, “going rates” or penal tariffs (e.g., Arazan, Bales, and Blomberg Reference Arazan, Bales and Blomberg2019, 65; Natapoff Reference Natapoff2013, 1070; Feeley Reference Feeley1979 [Reference Feeley1992: 187]). Sociolegal scholars have notably used the common practice of plea-bargaining to problematize the assumption that sentencing is the outcome of a set of individualized cognitive operations, as we did above. The normalization of situated plea-bargaining practices complicates the assessment of the baseline range of penal tariffs: one interested in carefully weighing the discount afforded by a negotiated plea will have difficulty in constituting a large empirical body of cases authorizing generalizations about sentencing practices devoid of a priori resolution discussions. This formulation—resolution discussion—was the language recommended by the 1997 Criminal Justice Review Committee to avoid mobilizing an explicit reference to bartering, while strongly advocating for the increased use of a barter system to speed up the processing of cases. Burke Scott (Reference Burke Scott2018) showed how the Canadian legal system slowly moved from construing plea-bargaining as an existentially threatening pathology to—if we use the language of the Supreme Court of Canada—an unexceptional practice essential to its well-being (R. v Anthony-Cook, 2016).
While our methodology is unsuited for weighing the reduction in penal intensity produced via plea bargains in the odd context of our ethnography, the prosecutorial offers to effectively decriminalize impaired-driving cases certainly generated extraordinary benefits for (some) defendants. Focused on legal communications about guilt and punishment in lower criminal courts, our methodology is also unsuited for producing a situated genealogical account of the VRT. Further research, mobilizing a different methodological design, is needed to understand the organizational birth of the VRT and its backstage strategies to fight the effects of criminal law’s pandemic. Further research should notably try to make sense of the fact that all the resolutions proposed by the team were related to incidents of impaired driving.
In the plea courts that we have observed, prosecutorial offers to decriminalize cases of impaired driving in exchange for a guilty plea represent the most organized efforts to manage criminal law’s pandemic. Actively prioritizing the simplification and streamlining of the legal management of (some) incidents, the VRT provided a unique manifestation of “McDonaldized” processes (Bohm Reference Bohm2006) in lower courts. Processes of decriminalization brought forward by the team were blatantly motivated by a strictly managerial agenda that silenced penological concerns in formal responses to (sometimes really serious) incidents of impaired driving, such as ambitions of deterrence, denunciation and incapacitation. The VRT also increased the salience of some of the most deleterious effects that plea-bargaining can have within organizations claiming to be administering justice: judges are transformed into reticent acquiescent officers, the discretionary power to shape the State’s formal response to a problematized incident is placed in the Crown’s hands and the mechanisms aiming to foster accurate, accountable and legitimate judgments and sanctions are sidestepped (see also Cox and Gripp Reference Cox and Gripp2022; Okafor, Warren, and Stewart Reference Okafor, Warren and Stewart2022; Natapoff Reference Natapoff2018).
Observations of law’s environment that were mobilized in the courtrooms notably thematized prison settings at a local scale. This was done purposefully, in multiple ways. Whether citing Duncan or not, defence lawyers evoked exceptionally dire remand conditions to request a higher ratio of credits for time served, oftentimes trying to get their clients removed from prison immediately upon sentencing. The Crown also used its representations of the jail settings to submit that decriminalizing impaired driving incidents is not contrary to the administration of justice. As for judges, peculiar prison conditions were used to motivate the legal validation of exceptional joint proposals as well as a host of decisions, such as accepting adjournment motions so that a carceral sentence was postponed (hoping for eventual betterment in prison settings), using intermittent sentences as a pragmatic way to divert individuals from incarceration, and allowing individuals to dodge ‘just deserts.’
COVID justice, then, presented itself in two main configurations. A first one, vividly illustrated by the proactivity of the VRT and what we termed grateful punishment, is constituted by the partial circumvention of the normative work of lower criminal courts through focalization on a purely organizational processing of tasks (i.e., criminal cases). Whereas the international literature on such organizations has documented how the ceremonial quality of declarations about guilt is typically poor (something that has not puzzled enough sociologists of punishment), criminal law’s pandemic further accentuated how, in the realm of mundane punishment, the administration of justice may be operationally concerned more with administering than with justice proper. The second main configuration of COVID justice, chiefly illustrated by sentencing discourses about carceral diversion and legal constructs of noxious prison conditions, is premised on the idea of a community solidarized by a ubiquitous viral threat. When operative, this configuration sees lower criminal courts downplaying the utility and necessity of intense and immediate penal responses to criminalized incidents on the grounds of the (however temporary) primacy of public health over criminal justice stricto sensu. As such, while organizational concerns tended to transform punishable subjects as trading partners in the management of caseloads, biopolitical concerns led criminal law to engage with punishable subjects as deserving punishment, but also, first and foremost, as communal members deserving care and consideration. In both cases, as we saw, this sometimes manifested at the expense of the deontological beliefs of judges—yet another demonstration of the poverty analyses of organizational processes reducing sentencing practices “to the internal cognitive machinations of the sentencing judge” (Lynch Reference Lynch2019, 1155).
COVID justice, however, did not alter every single aspect of the routinized operations of lower criminal courts. Indeed, the focal point of this contribution led us to neglect many unadulterated legal operations. We did not, for example, report on the legal validation of joint proposals to incarcerate the poor pleading guilty to stealing cheap booze (at a time when other criminalized individuals were diverted away from the local prison on the grounds of public health). COVID justice never functioned as a critique of repressive, criminalizing and penalizing practices. It instituted a set of contortions to mundane punishment. Yet, it cohabited with a realm of practices and discourses in which criminal law’s pandemic was not selected by legal observers. As suggested by the operational constructivism of social systems theory, it was thus inexistent for the purpose of these legal operations—available in the past and the future, but absent in the present law.
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