CORONAVIRUS AND THE PRISONER'S DILEMMA A CRIMINAL DEFENSE LAWYER'S TAKE.
April 7, 2020
I am going to talk about a thing that is come up in the news its all over the world right now. I'm talking about the coronavirus and how that is impacting the criminal justice system. I am going to confine this to the county I predominately practice in, Johnson County, Kansas. Now what's happening in Johnson County is they are basically shutting everything down. All non-essential hearings are getting moved. All jury trials are getting moved. Basically everyone's case is getting kicked down the road until the coronavirus sweeps through and we figured out what is going to happen. The idea being that we don't want to get a lot of people to court to make decisions on cases or to do anything that might help spread the coronavirus. Now the only hearing that are still going on are, "essential hearings" things like, if someone is arrested and we need to have a hearing on their bond so that they can get themselves out of jail. Any hearings that might, "get someone out of jail" are the hearings that are still taking place. How each court is handling these type of cases is different. Some have moved to video, some are still having in person hearings, regarless they are trying to minimize human contact. That is how our county is addressing the coronavirus. You can look at the press releases for Johnson county, call your lawyer for more specific information on your case. The very long story short is that everyone's case is getting moved until the court has a chance to figure out what is the best course of action.
To further discuss the coronavirus it makes me think about this problem that we talked about in law school called the prisoner's dilemma. I think that it illustrates how we all need to act together to get the best outcome in this unprecedented situation. Now the prisoner's dilemma begins when two people get arrested for a crime. When both of these two are sitting in the back of the police cruiser on the way to the police station they look at each other and say, "They can't prove anything unless one of us talks, so just keep your mouth shut and we will be fine." When the two defendants get to the police station, the police divide them up and put them in two different conference rooms. A detective comes in and starts asking questions, then starts putting pressure on each of the defendants. Saying something along the lines of, "Your partner is spilling his guts in the next room, you better start talking or hes gonna get the deal and your going to get sold down the river." This change in the plan puts each individual in a unique situation. It was originally in the groups best interest to just keep their mouth shut, but when the proposal of one betraying the other is interjected, it changes the paradigm. Now each individual starts thinking that betraying the other is in his self-interest. So it puts each person at odds with himself and the other. If he keeps the original plan he may get betrayed, if he betrays the other then he also may be acting against his interest because is going to get into some trouble as opposed to the possibility of no trouble if he just keeps his mouth shut. The only way that both of the defendants are going to get out of this is if they both act in the collective interests and at the same time their own self interest. Aka; keeping their mouths shut.
Now I think this is mirrored in our ability to deal with the coronavirus. If everyone would just act in everyone's collective interest they would also be acting in their own self interest at the same time, because the coronavirus transmission would slow rapidly. But when people, like the guy in the prisoner's dilemma, start to act under the changed paradigm and begin to act in what they believe is their "own self-interest" what they are actually doing is acting counter to their own self-interest. If a person ignores the social-distancing orders and goes out and tries to do something that might let them get ahead of others that are abiding by the rules, they may think they are operating in their own self-interest. In reality, those people are operating against their own self interest because they are subjecting themselves and others to infection and a possible prolonging of the orders for social distancing because the virus spreading will still continue.
So when you are looking at this time period when we are supposed to isolate ourselves. It makes sense to follow the rules and stay home, no matter how disruptive or how difficult it may be.