The COVID-19 pandemic has laid bare the lack of technology and the archaic rules and processes embedded in our justice system.
As we think about a post-pandemic world, even when we’re still in the thick of this crisis, every federal office, state capitol, courthouse and mayor’s office should be asking: Why is our system of justice held together with the threads of 20th century technology and 19th century processes? Also, what new practices have we developed in response to this crisis that might serve us well after we recover?
Changes made on the heels of this pandemic could erase decades of currently inadequate procedures put in place before laptops, email, text messages, or the Internet. For instance, parole officers in many states have to submit paper updates in person, prosecutors have weeks to respond to court orders to allow time for paper processing and first appearances often require all parties to be physically present.
The urgent responses we’re seeing from jurisdictions across the country show that change and innovation are possible. Leaders are swiftly overhauling technical practices in the face of life-threatening consequences and we have a unique opportunity to leverage this creative thinking and these efficient responses to create long-term and much-needed change for our criminal justice systems.
We must make this commitment to innovation our new normal.
With unique and acute pressure to protect public health, leaders are finding creative ways to adapt to COVID-19 and many are utilizing existing technology. For example, jurisdictions across the country are: expediting the process of a first hearing after an arrest; making determinations immediately on detention or release, so as not to unnecessarily detain a person; and using technology to move processes forward (e.g., holding prompt hearings online or over the phone, communicating decisions more efficiently by email and resolving issues with quick information sharing in protected digital formats).
When we take the hundreds, maybe thousands, of emergency responses and put them together, a new portrait of the criminal justice system emerges. It includes updated technology, revised rules and processes that enhance the delivery of justice.
Switching to more automated processes would result in a more efficient and resilient system for the individuals affected by it and for those working in the courts. Automation will yield significant savings by reducing burdensome agency workloads. Centralized processes will build efficiency. Once we all see that documents can be electronically filed and transmitted instead of slowly and physically moving through every hand in the judicial process, large scale change will become not just possible but inevitable.
Take Clean Slate legislation, which creates a pathway for automatic clearance of certain criminal records when an individual remains crime-free for a set time. Utah and Pennsylvania both have Clean Slate policies. In 2018, Pennsylvania became the first state to pass Clean Slate legislation, and it is now implemented. The state has since cleared nearly 35 million records that held people back from jobs, housing, education and other critical parts of daily life. Automation allows people to get on with their lives. While traditional expungement practices have ground to a halt across the country with court closures and other COVID-19-related delays, Pennsylvania cleared three million records in March and April alone due to the automated process.
Removing employment barriers for individuals with records will also benefit our communities and promote our national recovery in the wake of this pandemic because those same workers put the money they earn back into their local economies. If we fail to enact policies and update technology for people with records to participate in the economic recovery, we’ll leave behind nearly one-third of the U.S. workforce and tens of millions of vulnerable families.
In Michigan, prior to the pandemic, we had already begun the process of opening the virtual doors of our court system. For example, our online legal resource was helping more than 1.5 million users each year who were accessing dozens of toolkits on topics ranging from divorce to landlord/tenant disputes. Now, 10,000 people a day use the site, with many users looking for information about their rights to unemployment insurance and other benefits. Our pioneering online dispute resolution platform, MI-Resolve, has made Michigan the first state in the nation to provide a way for every resident to resolve disputes without a lawyer. Going forward, we need to be just as creative to make sure that all self-represented litigants can resolve their legal issues without the burden of taking off work, getting child care and going to court.
Over the past decade in Michigan, we have been building an online infrastructure so the shift to virtual courtrooms has been seamless. Since every courtroom in the state was equipped with videoconferencing systems and judges already had Zoom licenses, our judiciary has held 200,000 hours of hearings via Zoom over the past two months. Quick work by our technology team facilitated streaming those hearings on YouTube and the public can watch it all with the help of our Virtual Courtroom Directory. Meanwhile, we are pilot testing the use of text messages to notify the public of hearings or other court events. Dentists and cable guys can do it, why not courts?
Making these improvements to our criminal justice system includes changing decades-old practices and committing to the necessary costs of technological improvements and training. These changes will not be easy, but the emergency procedures implemented in the face of the COVID-19 pandemic have shown us that they are achievable.
Let’s make sure that the resources we infuse into the system are not just temporary patches. We have a chance to rebuild what we do from the ground up. Let’s create a 21st century criminal justice system that is effective, transparent, efficient and fair
Bridget Mary McCormack, Chief Justice of Michigan and co-chair of the Post-Pandemic Planning Technology Workgroup, an initiative of the Conference of Chief Justices and Conference of State Court Administrators