COVID’S Legacy: A Justice System With a ‘Lighter Touch’

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New York National Guard administers tests in New Rochelle, NY. Photo by NY National Guard via Flickr

The responses by police, prisons and courts to the pandemic showed that the U.S. criminal justice system, once considered too sluggish and hidebound to change, is capable of reform, according to a RAND Corporation study.

“The variety of pandemic responses that were required, as well as the speed and scale of those changes, created a natural experiment to test large, systemic changes to the criminal justice system in a way that many in the system and in the public more broadly would have believed unthinkable prior to the pandemic,” RAND researchers concluded after conducting a series of panel workshops with representatives of different sectors within the system.

While it’s uncertain whether all the changes will last beyond the pandemic, RAND said in a report released Wednesday that the experience could provide the foundation for reimagining a justice system with a “lighter touch.”

“As the COVID-19 pandemic recedes, stakeholders across the country have a unique opportunity to (use) lessons from the pandemic to move toward a system that works better, costs less, and is better able to meet the needs of everyone that it serves,” researchers said.

One of the principal impacts of the changes was to reduce the “density” of the system, with fewer arrests, sharply reduced court dockets, and fewer people behind bars.

“Because reducing the density of people in the justice system was a key part of responding to infectious disease risk, this response lightened the touch of the justice system on society for an extended period,” the RAND study said.

Some of the participants in the workshop argued that in some jurisdictions the changes in court and police practices only kicked systemic problems further down the road, and would have to be confronted by authorities eventually.

“We normally carry about 2,500 (pending unresolved cases) at any time,” said a member of the court system panel who, like all the members was quoted anonymously. “We now have 6,000 and another thousand cases that I could file tomorrow if they gave me a date for people to appear in court. So that’s a tremendous problem.”

But members of other workshops representing community groups and law enforcement said the next important step was to look at the successes or failures experienced by specific jurisdictions during the pandemic.

“If there’s a way to look to jurisdictions that have really thought meaningfully about what it means to really shrink the number of questions and responsibilities that the system addresses — and not just in terms of where we deploy police or who gets arrested —that for me would be the primary example of what we should be thinking about post-pandemic,” said a community organization panelist.

“And then, the next time a crisis hits, maybe with fewer questions to answer, the legal system can be a little more adept in terms of how it responds to people’s needs and how it works to save lives.”

One important takeaway that is likely to linger long past the end of this pandemic is the interdependence of the criminal justice and public health systems, the RAND researchers wrote.

“The pandemic made it undeniable that the public safety goals of criminal justice and public health are inextricable, and that past efforts to prepare the system for pandemic threats were not entirely successful,” the report said.

“That connection means that improving preparedness for future disease threats has become an additional reason to revisit the country’s approach to criminal justice, in the hope that any future infectious disease outbreak will find a system that is better positioned to weather the storm.”

Another key takeaway was the discovery that many parts of the system could operate “virtually,” from police online services to video family visits with incarcerees, with equal—if not more—effectiveness.

“The provision of education, telehealth, and substance use counseling via virtual models increased inmate access to such services….and increased individuals’ access to such services following release while under community supervision,” the study concluded.

“The ability for members of the public to connect virtually — to go to court, to speak with incarcerated family members, and to receive services — saved people who used those services money and time and made their participation in justice processes much less burdensome.”

But the study also acknowledged that virtual technology was not universally available across the country, with rural jurisdictions especially hampered by the lack of good internet connections―a situation underscoring the need to bridge the country’s “digital divide,” researchers said.

Other workshop participants also warned that the rapid move to digital services “imposed potentially serious new costs on justice-involved individuals.”

The RAND study asserted that any reforms to the system would still need to determine “how major changes affect different populations.”

Researchers noted that the confluence of the pandemic and the calls for a reckoning with U.S. racism as a result of the George Floyd killing was a key driver for change.

“It is difficult (and perhaps even impossible) to fully separate the effects of the pandemic on the justice system from the broader national environment created by calls for justice reform,” the study said.

“However, the reality that many of the actions taken to adapt to the COVID-19 pandemic were consistent with policy changes called for in (the) protests, as well as in previous reform efforts, creates more of an opportunity than a challenge.”

The next step called for by the RAND study was to collect and evaluate the available data from jurisdictions that implemented changes before things went back to normal, and the data was lost or forgotten.

Equally worrying, according to some workshop members, was the growing reluctance of some authorities to continue the measures adapted during the pandemic―especially as concerns about a surge in violent crime dominate the headlines.

“There’s a real opportunity to fundamentally shift the reach of the criminal justice system in the lives of the poorest people in the community,” said one community organizer. “But there’s also tremendous resistance.”

The RAND researchers agreed.

“Some of the most important lessons from the pandemic come from what the system did not do, including the choice to not arrest many people and not require some individuals to complete their original sentences or periods of detention for particular crimes and violations,” the study said.

“Lessons can be learned from what that inaction means for potential changes that could be made to the justice system of the future.”

The RAND study, called the Priority Criminal Justice Needs Initiative, was managed in partnership with the Police Executive Research Forum (PERF), RTI International, and the University of Denver, on behalf of the National Institute of Justice.

The full study is available here.

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