COVID-19 is slowing NC’s courts, but also bringing a ‘silver lining’

If justice delayed is justice denied, the pandemic would seem to be a disaster for the nation’s court systems.

But five months into the crisis, there are signs that what is slowing courts overall is actually accelerating reforms in procedures and making the justice system less punitive – and more just – for low-level offenses. When the pandemic ends, we hope that some of the changes it has forced in the court system will endure.

State Rep. Joe John, a Wake County Democrat and a former judge who chairs the legislature’s N.C. Commission on The Courts, said the pandemic could spur improvement in the speed and fairness of the judicial system. “I think it really is an opportunity amid great difficulty to see where we can make significant changes,” he said.

One significant change is already happening: Prosecutors have more incentive to drop minor charges to keep more serious criminal cases moving.

“We have worked diligently to reduce the docket where we can,” Wake County District Attorney Lorrin Freeman told the Editorial Board. “On days when the volume is too high, there are things we can let go.”

The ACLU of North Carolina welcomes that change. It said in a statement, “While larger steps are needed to address structural racism and implicit biases, recognizing that it is unnecessary to treat all minor offenses with criminal charges can go a long way to addressing some of the disparities experienced by people and communities of color in the criminal legal system.”

Bail changes

The need for social distancing in county jails is speeding long-sought reforms in a bail system that often puts non-violent offenders behind bars simply because they cannot afford to post bond.

Freeman said prosecutors are agreeing to more unsecured bonds and it could be a lasting change. “If we find those people come back to court like they’re supposed to and have not offended in the meantime, that may inform our long-term policy on bail reform,” she said.

Perhaps the most notable change brought on by social distancing is that court systems that were bogged down by paper filings and requirements for in-person court appearances now use more electronic filings and video technology.

Bill Raftery, an analyst with the National Center for State Courts, told the Editorial Board that those changes have been the “silver lining” within the procedural challenges presented by the pandemic. Some courts, he said, “have done 10 years of technological advancement in 10 weeks.”

In some cases, the innovations have been extreme, and may be pushing expediency at the expense of a fair process. In Austin, Texas last week, a jury trial – albeit only for a traffic offense – was conducted via video conference with jurors and lawyers attending remotely. But in basic procedural matters, video hearings are speeding the movement of cases and sharply reducing the number of failure-to-appear charges because, Raftery said, defendants “don’t have to take a day off from work. They just take out their smart phone.”

Easier documents

Court changes have been more pronounced on the civil side. The state’s Supreme Court Chief Justice Cheri Beasley, for instance, has ordered that documents that ordinarily require a notary can be submitted with a signed statement and some documents can be served on another party or attorney by email.

On the criminal side, making changes to accommodate social distancing must be weighed against defendant’s rights. Jury trials have been suspended since March out of concern that they can’t be safely conducted in person. The suspension has built a backlog of homicide trials even as homicides have increased in some cities. In Wake County, Freeman said, there are 65 homicide cases pending, about twice the usual number.

In serious criminal cases, justice is better delayed than hurried along by remote technology and other procedural changes that could lead to successful appeals of convictions. But some of the efficiencies and leniency the pandemic has brought should remain. For even as it delays justice, the pandemic is refining it.

This story was originally published August 21, 2020 at 12:00 AM.