When the COVID-19 pandemic struck, the U.S. criminal justice system sprang—or stumbled—into action. Some prisons released low-risk prisoners into society rather than keep them in hazardously crowded cells; some courtrooms switched to virtual trials; and across the nation, we grappled with how to penalize newly defined crimes, from violating mask mandates to vaccine fraud.
But changes on this scale may be small potatoes compared with those climate change is introducing into the criminal justice system, according to an exhaustive new review by legal scholar Laurie Levenson.
Levenson outlines three main components of the criminal justice system that climate change stands to disrupt: physical infrastructure, crimes committed, and the nature of defense arguments made in court. The first category is perhaps the most obvious: prisons, jails, and courtrooms are “woefully ill-prepared to address climate disasters.” Aside from endangering incarcerated people and guards, wildfires, hurricanes, and heat waves can derail the fundamental right to a speedy trial. Courtrooms may need to improvise more flexibility, as some have during the pandemic, to avoid violating a defendant’s Sixth Amendment rights during lengthy climate catastrophes. From Hurricane Katrina to Hurricane Ida, one prediction is already patently clear: retrofitting or upgrading facilities is expensive, but the cost of waiting until after disaster strikes is even greater.
Climate change can also influence the kinds of crimes people commit and are tried for. While natural disasters bring out genuine good Samaritans and exemplary community support, they can also attract unscrupulous agents eager to take advantage of the suddenly vulnerable or sympathetic. As a consequence, we may see a rise of individual assaults or a proliferation of fraudulent relief organizations.
The final area of criminal justice that could shift with climate is in the realm of defense. If governments fail “to provide lawful alternatives for individuals as they face dire situations, including access to food, shelter, medical supplies, and transportation…[they are] left with no choice but to violate the law given the circumstances of his or her situation,” explains Levenson. This doctrine, called the “necessity defense,” has significant implications for issues such as climate migration, as well as for reframing actions like looting.
Girding the American criminal justice system for these sea changes is crucial, but hardly at the forefront of climate adaptation initiatives. But with a major infrastructure bill creeping through Congress, added to a summer of climate catastrophes, and the aftertaste of racial justice reckonings fresh in the public mind, the political climate may be ripe to make sure criminal justice institutions can adapt better to climate disruption than they did to COVID-19.