The twin crises of COVID-19 and protests against police brutality have focused attention on two of the three main branches of criminal justice: police and corrections.
Police departments have been battling calls to defund them while trying to determine how to enforce government rules to control spread of the coronoavirus.
Prisons are struggling to cope with a COVID-19 spread among inmates and staff that worsens daily, with critics demanding that more prisoners be released to avoid their demise behind bars.
Where does this leave the third, crucial prong of the criminal justice system, the judiciary?
Some judiciary leaders say they have been overlooked in all of the furor over policing and prisons.
They are hoping that Congress will include the courts in a massive new funding package aimed at helping all levels of government nationwide as well as private citizens.
Because most courts operate on a state-by-state, county-by-county basis, there are no national data showing how much their operations have been disrupted by COVID-19.
The National Center for State Courts (NCSC), the national organization representing courts, says that while courts as institutions have stayed open for business during the pandemic, they have had to overhaul their operations in five major ways: suspending most in-person proceedings, halting almost all jury trials, limiting entry to courthouses, extending filing deadlines and encouraging teleconferences and videoconferences in lieu of hearings.
The federal courts are similarly afflicted.
A new report from the Administrative Office of the U.S. Courts says that, “federal courts, especially in Sun Belt ‘hot spot’ states, have issued orders extending courthouse closures, postponement of jury trials, and the use of video and teleconferencing for most or all proceedings.”
While cases can proceed if judges can hear oral arguments remotely and issue decisions via the Internet, thousands of cases have been delayed during the four months of the pandemic so far, and many will be put off much longer.
NCSC says the disruption is extensive. State courts handle an estimated 97 percent of the nation’s judicial business. On an average business day, about three million people enter courthouses, 354,000 of them in Texas alone.
Texas courts were able to hold more than 100,000 virtual hearings with over 317,000 participants in the first 60 days of the pandemic, says a report by Texas Supreme Court Chief Justice Nathan Hecht and state court administration chief David Slayton.
Hecht heads a national “Pandemic Rapid Response Team” of six judicial leaders assembled by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) that advises courts on COVID-19 issues.
The center maintains a website that lists what state courts are doing in response to the pandemic.
The state court center estimate that there has been a slowdown in case filings nationally, including both criminal and civil cases, of about 30 percent.
Still, the center says, “those cases haven’t gone away, and filings will flood courts as they return to normal operation.”
Dependency Cases Decline
One category of cases that has declined sharply is dependency cases involving child abuse and neglect, which the center warns are likely to are likely to increase when children return to schools and day care centers.
Some courts are trying to plan for remote jury trials, but these are mostly in non-complex civil cases and not criminal charges. Some places are holding virtual grand jury proceedings.
A few courts are experimenting with using videoconferencing for jury selection, so that if a jury can be chosen, a jury trial with social distancing protocols may be possible.
One Dallas judge used videoconferencing to screen more than two dozen prospective jurors, asking them to raise their hands in response to questions about potential bias and permitting lawyers to ask follow-up questions.
The case was relatively simple, a one-day trial over a disputed insurance claim. “Courts across the country are grappling with unprecedented challenges to resuming jury trials safely,” said two experts this week in the National Law Journal.
Many counties may lack the physical space to conduct a socially-distant jury trial, which is making some court officials question whether each case must include the usual officials such as clerks and bailiffs.
The initial COVID-19 relief bill passed by Congress included $850 million in aid to the criminal justice system, but in many states only first responders and corrections facilities had access to those funds, with little or nothing for courts.
In any new relief bill, state court officials would like to have $250 million each year for 3 years, which might cover about 20 percent of courts’ needed COVID-19-related expenditures. The actual costs nationwide might exceed $1 billion.
Court officials say aid is needed in at least three categories: direct response to the pandemic, including personal protective equipment, cleaning and testing supplies; hardware and software necessary for expanding “telejustice” and cybersecurity.
In the last category, experts note that state courts house large troves of data that includes citizens’ personal information such as that included in crime databases. Several courts already have been hit by ransomware demands by hackers who have targeted government computer systems.
While courts grapple with budget issues, they also are dealing with racism accusations being leveled against the justice system generally.
A new survey by the National Judicial College (NJC), the Nevada-based national center for training judges, found that 65 percent of 634 judges who responded answered yes to the question, “Do you believe that systemic racism exists in the criminal justice system?”
Among 200 judges who offered anonymous comments, one said, “Of course it does … The burden on us judges is to, first, acknowledge the problem and then to work diligently to eradicate the problem.”
Another said, “Most of the judges I know are not overtly racist and sincerely seek to treat all people equally, but I suspect that our implicit biases impact our decision-making more than we realize.”
NJC President Benes Aldana announced that the college is organizing a series of national town halls for judges on how to address the problem of racial injustice.
The virtual events will include chief justices of state supreme courts, other members of the judiciary, leading lawyers, law professors and other experts.
“Systemic racism has afflicted our justice system for far too long,” Aldana said. “Accountability has been lacking. The work to correct attitudes and prevent further discrimination, pain and death must begin now.”
Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report