WHAT CAN THE CRIMINAL JUSTICE SYSTEM LEARN FROM THE PANDEMIC

Covid-19 upended life as we knew it. In virtually every area of our lives—the way we worked, socialized, ate, and even though—things changed drastically. Everything became more virtual as we relied on computer screens to attend meetings, see our friends, order food, and try to remain connected to an outside world it was difficult to touch and see in person.

Some industries have been moving towards a more virtual way of doing things prior to the pandemic with telecommuting becoming increasingly common as higher internet speeds and new technologies made it possible. But such a shift requires investment and forward-thinking. The criminal justice system, a workplace largely governed not by the demands of private enterprise, but by government decision-makers always looking for ways to cut costs and stretch increasingly strained budgets, is generally not a hotbed for forward-thinking or technological innovation.

Despite the increase in technology over the last several decades, other than the use of computers in the courtroom, very little has changed in the way criminal courts conduct their day-to-day business. Prior to the pandemic, every court appearance still required everyone to show up in the same place no matter how trivial the hearing. So, when yours truly has a pre-trial hearing in Banning where everyone knows the only thing that is going to happen is a continuance, everyone gets in their car and makes the drive (or in the case of an incarcerated defendant, gets transported at great expense in terms of Sheriff Deputy man-hours). Then, because there is no real scheduling system in state courts, we often sit around for hours waiting for someone to show up or the judge to be ready to call the case. Lawyers, particularly those of us in private practice who are generally paid a flat fee rather than hourly, have long bemoaned the amount of time and taxpayer dollars wasted by such an archaic system.

The pandemic has forced courts to become innovative, not so much as a cost-saving measure, but in an effort to keep people physically out of the building. Overnight, the court seems to have realized how unnecessary much of the in-person formality insisted upon for years is truly necessary. Lawyers and, when necessary, defendants can appear virtually for the vast majority of appearances and nothing is lost; meanwhile, much time and money is saved. It is my great hope that a silver lining of the terrible ordeal we have all suffered this year is the continuation of this practice. The technology is now in place so all it will take is the will of the courts and legislature to continue expanding our ability to appear virtually.

Another upshot of the attempts to reduce jail populations has been a continued hard look at pre-trial incarceration. Prior to the pandemic, it was commonplace for misdemeanor and low-level felony defendants to be held in custody because they could not afford even low bail amounts. Twice during the pandemic, the Chief Justice of the California Supreme Court has instituted emergency bail orders, releasing many of these defendants. The world has not fallen apart. Counties are undoubtedly saving huge amounts of taxpayer dollars not having to house, clothe, feed, and transport to court those freed.

What we have had is essentially a forced experiment in significantly reducing the amount of pretrial incarceration in the state, something progressive advocates have long been championing. It appears, thus far, the data will help their cause. People released are not failing to appear in huge numbers or going out and committing atrocious crimes. Hopefully, this data will continue to help the cause of bail reformers as we exit the pandemic.