In July, Michelle Rick, then a circuit court judge in two Michigan counties, tweeted cheerily about a divorce she’d recently finalized. The participants had appeared in court via their smartphones. “He was on the road & parked his car to attend; she video-tx’d from her work breakroom,” the judge wrote. They were done in 15 minutes—faster than the proverbial Reno divorce.
Last spring, as COVID-19 infections surged for the first time, many American courts curtailed their operations. As case backlogs swelled, courts moved online, at a speed that has amazed—and sometimes alarmed—judges, prosecutors, and defense attorneys. In the past year, U.S. courts have conducted millions of hearings, depositions, arraignments, settlement conferences, and even trials— nearly entirely in civil cases or for minor criminal offenses—over Zoom and other meeting platforms. As of late February, Texas, the state that’s moved online most aggressively, had held 1.1 million remote proceedings.
“Virtual justice” (the preferred, if unsettling, term) is an emergency response to a dire situation. But it is also a vision some judicial innovators had long tried to realize. One leading booster, Michigan Chief Justice Bridget Mary Mc Cormack, told me that going online can make courts not only safer but “more transparent, more accessible, and more convenient.” Witnesses, jurors, and litigants no longer need to miss hours of work and fight traffic. Attorneys with cases in multiple courts can jump from one to another by swiping on their phones.
In July the Conference of Chief Justices and the Conference of State Court Administrators jointly endorsed a set of “Guiding Principles for Post-Pandemic Court Technology” with a blunt message: The legal system should “move as many court processes as possible online,” and keep them thereafter the risk of infection passes. The pandemic, they wrote, “is not the disruption courts wanted, but it is the disruption that courts needed.”
America’s courts are burdened by weighty encrustations of complexity and habit, from black robes and “All rise” to arcane trial procedures. COVID-19 has forced them to improvise and experiment. Now, as a post- pandemic future glimmers, we have a chance to reflect. How much of that experimentation will survive after the crisis abates? Given the stakes involved in the justice system, how much should?
THERE ARE GOOD reasons to be wary of moving fast. An estimated 42 million Americans live beyond the reach of broadband service, and older people may be unable or unwilling to master video conferencing technology. Douglas Hiatt, a Seattle defense attorney, refuses to try cases remotely (“They can hold me in contempt if they want”). “A lot of my clients are poor,” he told me. “They don’t have access to the internet … And plenty of folks are illiterate or non-English speakers and cannot navigate this stuff.”
Courthouses have addressed the digital divide by setting up Zoom kiosks and, in Texas, lending tablets to jurors. Defendants can log in at libraries, if they’re open, or call in by phone. But imagine trying to plead your case before a judge while your phone cuts in and out, your kids wail in the background, or library patrons hiss shhhh.
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