“Initially, the court system began consolidating calendars into one courtroom, thereby increasing density in each courtroom. Lawyers, defendants, court staff, and judges were all required to be present in already crowded conditions for what are largely low-level offenses. There was little to no guidance or preparation for how defense attorneys or prosecutors were to staff court parts when those attorneys became sick, already … stretched thin on a good day. Even after the decision by the court system to close all but essential court functions, there remains little to no guidance or clarity from the top.”
— Anonymous account from lawyer with city prosecutor’s office*
Across the country, court systems have taken a wide variety of approaches in addressing the coronavirus crisis—ranging from shutting down almost all court functions to making virtually no change in court operations, even in areas seeing rapidly increasing rates of infection. This variance, along with a recent survey that found that the majority of judges currently feel unprepared to administer their dockets, speaks to the need for supports to establish best practices to help America’s legal system weather the pandemic.
Congress’ most recent response package included some important supports for U.S. courthouses, primarily at the federal criminal level. This focus is expected, given the direct role that Congress plays in funding the federal judiciary and the significant constitutional rights at stake for those awaiting trial and living in incarceration. There is much more, however, that needs to be done to ensure that courts can continue to function through the pandemic—particularly at the local and state level, where more than 90 percent of cases are heard. While additional congressional action will be necessary, the Trump administration must also take independent action now to begin providing such supports.
Below is an overview of the current courtroom responses to the coronavirus pandemic as well as key issues that policymakers must address in future response efforts.
Snapshot of court actions to date
Overall, many systems are restricting access to court buildings, using remote technology, and suspending some court functions while postponing hearings and trials. Yet responses have varied significantly from jurisdiction to jurisdiction. Even when emergency response measures are ordered, implementing those measures has proven difficult and complex, and judges are making case-by-case decisions of how to administer their docket. These trends hold true for courts at all levels of government.
At the federal level, anticipating at least a three-month disruption in operations, the judicial branch has now organized a task force to provide guidance to federal courthouses on COVID-19 response while leaving individual court systems with complete discretion over how to conduct their operations. The U.S. Supreme Court has closed to the public and delayed oral arguments in several notable cases without a plan for rescheduling those meetings, but its justices continue to meet remotely to discuss pending court matters. Meanwhile, many U.S. Courts of Appeals have issued orders mandating emergency operations and postponing oral arguments, with employees either teleworking or on administrative leave. At the district court level, there appears to be widespread postponements of trials. The Northern District of Ohio, for example, has postponed all civil and criminal trials, with grand jury trials suspended unless “absolutely necessary.” Individual judges are given significant discretion in how to prioritize the cases before them. Federal immigration courts, until very recently, continued to operate without significant change.
State-level court systems are facing similar challenges in conducting their work—though, unlike the federal judiciary, some systems previously wrote general emergency or pandemic response plans that have aided their responses. Others have ordered that all “non-essential, non-emergency” court operations be suspended, while others have failed to put in place any mandatory guidance and are leaving individual courthouses to make their own rules.
In addition, to support the continuing administration of justice, some states and localities have launched efforts to safely delay arrests or are using citations for low-level offenses while reducing an incarcerated population that is already experiencing increasing rates of infections. The federal government, however, has been dangerously slow to act in this regard.
Supports for courts
As Congress was crafting what is now known as the Coronavirus Aid, Relief, and Economic Security (CARES) Act, President Donald Trump’s Department of Justice attempted to advance a proposal that would have allowed for individuals to be held indefinitely in detention without trial and for videoconferencing to be used without the consent of defendants—representing a dangerous waiver of key constitutional rights. While Congress wisely rejected such measures, it is important to underscore that such an approach is unacceptable and must not appear in future response efforts. These proposals are constitutional nonstarters and, were they to be advanced again, would be a distraction from the practical, helpful steps policymakers must take to support the courts and those that rely on them.
Instead, efforts moving forward should be grounded in addressing the following issues.
Public health standards for courthouses
Given that in-person appearances will still be needed in some cases—particularly at the pretrial and trial level—immediate steps must be taken to ensure that both personnel and parties appearing in court are protected. On that front, there are some very basic actions that the administration could execute quickly. While the Centers for Disease Control and Prevention has specific guidance for how entities such as schools and faith-based organizations should respond to COVID-19, courthouses have not been addressed similarly, despite the complexities presented by instituting social distancing practices for court functions such as filings, trials, and oral arguments. The administration should craft such standards with the assistance of legal experts, who can provide insight into the realities of court operations.
Supports for remote court services
Greater supports and guidance must also be given for remote court services in a way that both protects individuals’ constitutional rights and furthers courts’ abilities to conduct their work safely when an in-person appearance is not necessary. In the recently passed CARES Act, Congress included language that would allow for greater use of videoconferencing in federal criminal settings when agreed to by defendants. The administration should immediately launch work to further these initial efforts, incorporating a focus on state and local courts in both criminal and civil matters. As a first step, the administration should identify jurisdictions that do not have the expertise and/or financial ability to put in place such service and provide them with assistance. In addition to facilitating any helpful guidance in regard to best practices between jurisdictions, the administration should include targeted appropriations requests as future legislative response packages are developed.
At the highest level, the Supreme Court itself must begin issuing notice on its plans for postponed oral arguments and procedures for any emergency measures that may be brought before the nation’s highest court in the months to come. Congress appropriated significant emergency funds to the Supreme Court in the response package; there is little reason for the court not to share its plans and to do so quickly.
Yet it is also imperative that the administration and Congress look for ways to ensure that the public knows what court services are still available to them. This is particularly important for individuals in dangerous situations such as domestic violence, where many courts are continuing to provide some remote services but confusion abounds. In addition, as housing policy continues to evolve in response to the pandemic, court systems should be able to provide up-to-date information about individuals’ rights to stay in their homes.
Moreover, policymakers must ensure that the courts do not become shuttered to the public eye during the coronavirus pandemic. This is particularly important for jurisdictions that have not yet been able to adopt widespread access to online filings. Given that the public and reporters will no longer be able to access courthouses in-person to obtain copies of public records, steps should be taken now to support courts’ abilities to provide appropriate, publicly available information online.
Health and safety of incarcerated populations
While beginning to release some individuals to home confinement, the administration must accelerate and broaden this strategy and establish other ways to safely reduce incarceration of individuals who do not pose a danger to society. Delaying arrests for certain low-level offenses, for example, would help support the rights of those living in jails and prisons, while also easing new caseloads coming into courthouses and assisting their efforts to prioritize the most pressing matters. As noted previously, some state and local jurisdictions have already taken similar measures; the federal government should follow their lead.
As mounting numbers of judges, court personnel, public defenders, and prosecutors become ill in the months to come, court systems will experience increasing difficulty keeping essential services running. Without significant supports, serious delays of justice will occur alongside dangerous public health risks for those who must work in and access the country’s courthouses. Policymakers must prioritize the courts in the coming months in order to avoid the worst of these impacts.
Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress.
The author would like to acknowledge Caroline Fredrickson of the Brennan Center for Justice for her invaluable input.
*Author’s note: This quote comes from a personal communication with the author, who has notes on file.
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