In crafting COVID-19 responses, courts face dual challenges to protect both the health and the constitutional rights of the public. As a result, local, state, and federal courts must adopt practices that prevent COVID-19 transmission and maintain access to justice.
The National Center for State Courts reports that the five most common court responses to COVID-19 have been:
1. Restricting jury trials 2. Suspending in-person court proceedings 3. Restricting physical access to courthouses 4. Granting extensions for deadlines, fees, and fines 5. Encouraging teleconferences in lieu of in-person proceedings
According to a survey by the National Association of Pretrial Services Agencies, a majority of jurisdictions reduced custodial arrests (85%), bail amounts (60%), and complaint filings (54%). Meanwhile, most jurisdictions have increased the use of video conferencing for court hearings (90%), releases for those awaiting trial (81%), and cite and release practices (65%). Many jurisdictions have also temporarily reduced or suspended proceedings for technical violations of supervision terms.
Implementation of these policies has not been without complication. Case backlogs are rising as court closures continue into the fall. In Georgia, thousands of felony cases in the Atlanta area were awaiting a grand jury at the time of this report's release. In Harris County, Texas, where trials were suspended, nearly 41,000 felony cases were awaiting trial at the end of July. Moreover, there is some pre-pandemic evidence that video hearings may affect perceptions of witness credibility, result in harsher detention decisions, and lead to other consequences.
Like other sectors of the justice system, courts, prosecutors, and public defense attorneys anticipate dramatic budget cuts in the upcoming fiscal year. In California, the state Assembly proposed a $150-million cut for the judicial branch, contingent on whether or not states receive additional federal funding.
Limit in-person proceedings.
Subject to constitutional requirements, establish guidelines to limit jury trials and in-person court proceedings, reserving in-person proceedings for essential cases or when counsel identifies a compelling need. Criteria should prioritize cases that will go to trial and defendants who are incarcerated, among other factors.
When in-person proceedings must occur, ensure, at a minimum, CDC-recommended levels of physical distancing for staff, defendants, victims, witnesses, and juries. Make masks – including transparent ones for witnesses and jurors – mandatory for everyone involved in proceedings and make them available upon request. Adapt courthouse physical space to provide distance or sanitary barriers between individuals. When certain locations or proceedings impede social distancing, consider using alternative larger facilities (e.g., gyms, tented spaces outdoors) where people can maintain adequate spacing. Strictly enforce the use of a CDC-informed screening tool to assess anyone brought to or from the court, identifying possible exposures or people at higher risk of infection. Increase ventilation and filtration in indoor spaces to the extent possible.
Limit public access to court facilities.
Consult with experts, such as state epidemiologists and public health administrators, for guidance on opening or closing court facilities, taking into account air ventilation and filtration systems in courthouses and office buildings, local infection rates, and other factors. Ensure reasonable access to trials – virtually or, as deemed safe, in person - for necessary individuals, such as victims, stakeholders, and government officials. Provide virtual alternatives for the public to access proceedings; subject to constitutional requirements, restrict public access when it would negatively impact the safety or feasibility of proceedings.
Identify opportunities to reduce population density in jails and other court-related facilities, including: limiting the use of bail for individuals awaiting trial to only those who pose a significant danger to the community or substantial flight risk; reviewing and reconsidering bail decisions for individuals held pretrial who pose a minimal risk to public safety but are unable to pay their bond; and establishing criteria to review individuals near the end of their sentence in local jails for potential release or transfer to alternatives to incarceration. Also consider COVID-19 and other extenuating circumstances in limiting bench warrants or failure-to-appear warrants.
Use technology to deliver essential services.
Establish protocols to use technology to deliver courthouse services and move appropriate cases toward disposition, so long as it does not infringe upon the rights of individuals or hamper the administration of justice. Establish online tools to resolve less serious cases, such as pending municipal cases, ordinance violations, traffic tickets, or minor criminal offenses. Use teleconferences, video hearings, and other technology in lieu of in-person court proceedings. Deliver as many courthouse services (e.g., issuing licenses, records requests, collection of fines and fees) virtually as possible. Use technology, such as text reminders, to communicate about deadline extensions, due dates, fines and fees, and scheduled appearances. Ensure to the extent possible availability of technology in government facilities, so that defendants, victims, and witnesses can participate in proceedings, and so that defendants and their counsel can safely confer.
Extend fees and fines.
Grant extensions for in-person filing or collection of fees and fines.
Maintain speciality and treatment courts.
Consult with national experts, such as the National Association of Drug Court Professionals, to maintain operation of specialty and treatment courts, either virtually or, as appropriate, in person.
Encourage collaboration, communication, and cooperation among prosecutors, the defense bar, jail administrators, and the judicial branch. Work collaboratively to identify cases that can be resolved outside of the formal court process. In all roles and decisions, consider the impacts of COVID-19 on defendants and stakeholders, including: the risk of infection or transmission for individuals at high risk based on age or underlying conditions; adverse economic impacts affecting the ability to pay fees, fines, and bail; and limited access to technology.
Develop and execute communications plans.
Communicate proactively with court personnel, litigants, and the public about procedures and protocols, providing facts and information in a clear and candid manner.