Court systems around America are learning important lessons about the value of offering remote hearings in response to COVID-19.
We at the Pretrial Justice Institute (PJI) believe the success of these changes shows that courts can provide access to justice in new ways—and it debunks the longstanding myth that the responsibility for court appearance falls only on the shoulders of the accused. Providing more flexibility can go a long way in improving court appearance rates.
Early data from the National Center for State Courts (NCSC) shows that court appearance rates increased with the use of remote hearings during COVID-19:
- In parts of North Dakota, criminal warrant hearing appearance rates went up from 80 to nearly 100 percent, with failure to appear rates dropping significantly across all hearing types.
- In New Jersey, appearance rates in criminal cases rose from 80 percent to 99.7 percent since mid-March, when the courts began to conduct virtual hearings.
- And in Michigan, appearance rates rose across all cases from 89.3 percent in April 2019 to 99.5 percent in April 2020. When asked about this new way of doing business, Michigan Supreme Court Chief Justice Bridget M. McCormack told the NCSC that the expansion of remote hearings has launched a fundamental change in the way courts do business in the state, and said, “we are not going back.”
That said, I worry that as the country reopens, this newfound court flexibility could fade, especially if the volume of arrests returns to pre-COVID levels. Those of us working in systems all have a role to play in ensuring these new ways of operation become standard practice. Court appearance rates are amongst the most relevant, practical and useful measures for success, along with liberty rates and public safety. The early data suggest that more court flexibility could improve all these measures.
Perhaps now is also a good time to ask ourselves: In whose interests were the changes in flexibility predominantly made?
When everything shut down in March due to the pandemic, the judiciary worked around the clock to make the shift to more remote hearings. If we are honest, this decision was likely to ensure the health and safety of court employees—people who have more privilege and power in the legal system than people accused. This shift could have happened pre-COVID to make appearance easier for people impacted by the system, but it didn’t. Why is that?
Is it possible that we didn’t ever push for more remote court hearings because the process is the punishment? Something that would have benefited the accused wasn’t tried until it benefited those working in the system. That’s the teachable moment here.
At PJI, we firmly believe there’s no pretrial justice without racial justice. The more we have reflected on our collective approach to pretrial reform over the years, we realized that we were overly focused on technical fixes and our impact on systems was limited. We weren’t having in-depth, look-at-yourself in the mirror conversations about systemic racism, power and privilege.
Today, as we all examine court practices through these lenses, it’s worth reminding ourselves who has had the power all along to imagine and implement changes that would raise equity and access to justice. It is many of us who are at the table as part of the Safety and Justice Challenge.
Justice systems that view their purpose and practices through an equity lens will keep using remote hearings if requested by the accused, offer court date reminders to all people, and provide flexibility around transportation, childcare and the ability to change a court date if a person has to work. They will ensure that remote hearings don’t have unintended consequences, like limiting access to counsel. However, systems that continue to see their work through a white supremacy lens will focus on the comfort and convenience of the court, measuring the accused’s respect for the law with arriving on time for a court appointment.
We need to move away from viewing pretrial systems as paternalistic, and instead see them as collective and collaborative. We need to innovate so that everyone wins.
—Sue Ferrere is the Director of Impact at the Pretrial Justice Institute