Over the last several weeks, as the threat posed by the coronavirus to families across the United States has become clear, the response from court systems across the country has varied significantly from jurisdiction to jurisdiction. And while the situation continues to evolve rapidly, this early lack of a coordinated approach or release of nationally recognized best practices for courts is understandable given the absence of leadership from President Donald Trump and his administration in the face of the outbreak. But this type of mismanagement from the White House has the potential to significantly contribute to mass confusion and delays in civil and criminal matters across the country and must be addressed.
Why the administration must prioritize courts in its COVID-19 response
A 2007 report co-authored by the U.S. Department of Justice’s (DOJ) Bureau of Justice Assistance recognized the threat that a pandemic such as the coronavirus poses to the legal system. Discussing workforce reductions resulting from widespread illness, the DOJ bluntly explains: “Such a reduction of available human resources could be catastrophic to the continuation of court services.”
The problem is heightened with a disease such as COVID-19 in particular: It poses an increased threat to older adults, and judges, on average, are substantially older than the general populace—meaning they are at even greater risk if exposed to the virus. But in addition to judges themselves—as well as older jurors or parties to cases—courthouses are often busy, full buildings where hundreds of people may come and go throughout the day. This raises the chance for those with serious chronic medical conditions who are also at heightened risk to be exposed to the virus as well.
Large-scale disruptions to the work of judges, other court personnel, and lawyers could have far-ranging impacts for individuals across the country. Such restrictions in services would affect not only those with extremely pressing matters—such as incarcerated people in jail awaiting a trial or those in need of a protective order—but also individuals seeking out the courts for important matters affecting their businesses and families, such as tenants facing eviction or in custody disputes. Furthermore, state and federal courts alike already face significant backlogs of cases—immigration courts are saddled with a backlog of more than 1 million cases alone—and any delays resulting from a pandemic will only worsen this state of affairs.
As the author explores below, key questions loom for court administrators as they attempt to establish appropriate guidelines for court personnel, judges, parties to cases, and jurors. Most prominently, perhaps, is that courts appear to be grappling with how to decide when to institute significant action, such as postponing in-person hearings and trials, as well as how to strengthen courts’ ability to conduct their work virtually. Unfortunately, the Trump administration seems uninterested in offering any specific, significant guidance that would provide clarity to the public and help courts respond to these challenges.
Courts’ responses to the pandemic and the lack of federal guidance
Across the country, courts at all levels are taking varying approaches to address the pandemic.
Some state court systems are following well-established pandemic and/or emergency response guidelines. When pressed, court administrators in other states have indicated that policy recommendations are forthcoming, but action has been slow. Arizona has authorized judges to suspend local court rules and orders if needed, such as by having the state appellate judges handle cases filed in the lower courts in order to address possible workforce issues. State courts in Texas and Delaware are both preparing for increased use of virtual tools that could help keep the legal system moving even if in-person meetings are deemed unsafe.
Similarly, responses vary greatly at the federal level. The Supreme Court recently closed to the public for the foreseeable future while confusion abounds in regard to future oral arguments and how to ensure the public will have any transparency into the deliberations of the country’s highest court moving forward. Some courts are waiting to make changes to court protocols while others in affected areas have taken significant action. In Washington state, for example, some federal courts have suspended all civil and criminal matters requiring an in-person appearance. The 9th Circuit Court—which has jurisdiction over Washington state, California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, and Oregon, as well as Guam and the Northern Mariana Islands—canceled all en banc hearings for at least one week.
Unlike some of the state court administrative bodies noted above, the Judicial Conference of the United States, which helps to oversee the federal judiciary’s operations, does not appear to have a clear plan in place for how courts should respond to an epidemic. On March 12, as many federal courthouses had already begun taking action, the conference did publicly announce the establishment of a task force while urging courts to follow the Centers for Disease Control and Prevention’s (CDC) general recommendations. Any confusion stemming from a lack of established best practices is likely to be exacerbated by President Trump’s irresponsible statements on the pandemic that significantly downplay the danger it poses and by the executive branch’s overall lack of leadership. This dearth of leadership as this pandemic has taken hold has resulted in bipartisan frustration that has the potential to sow confusion in courts in jurisdictions that do not already have an established pandemic response plan.
Furthermore, while most federal courts make up a separate branch of government, federal executive agencies are failing to provide any guidance for the courts that do fall under their jurisdiction—namely, immigration courts—even when asked directly by judges on those courts. In just the span of a few days, for example, the DOJ issued conflicting orders in regard to hanging CDC posters in immigration courts, first demanding that any such posters be removed, then reversing course and allowing them to be hung.
Immigration Judge Ashley Tabaddor, president of the National Association of Immigration Judges, noted the lack of robust guidance overall from the DOJ: “[W]e continue to urge the Department to be proactive on this public health issue and support the flexibility and customized responses that are necessary for each locality. So far that has not been forthcoming.”
The spread of the COVID-19 virus has the potential to dramatically affect the administration of justice in this country. So far, however, Trump’s White House and federal agencies appear not to take that threat seriously. While some state and federal courts prepare individual response plans, it is imperative that policymakers at the national level take steps to evaluate best practices and to ease the burdens that courts—and those who need access to them—are likely to face in the coming weeks and months.
Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress.
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