By Sarah Martinson

Law360 (March 12, 2021, 4:28 PM EST) -- Criminal courts have had a difficult time adapting to the pandemic because of a lack of technology and processes for operating remotely, but they have started conducting virtual hearings and allowing for more electronic filings, according to criminal justice experts.

Courts, however, have failed to address due process issues for defendants such as restricted access to counsel while visitors are not allowed at prisons and jails to stop the spread of COVID-19 and indefinite suspension of jury trials, Brandon Buskey, deputy director of the American Civil Liberties Union's Criminal Law Reform Project, told Law360 Pulse.

"Once the trial process restarts itself, you are going to find a lot of these cases that are really, really old have deteriorated to the point where the state is going to have a real problem establishing its case," Buskey said.

Courts Needed to Innovate

According to a December report from the Council on Criminal Justice's National Commission on COVID-19 and Criminal Justice, one lesson to be learned from the pandemic is that the criminal justice system needs to update its technological infrastructure.

"Outdated record-keeping systems and other technologies limited states' and localities' abilities to quickly track and respond to outbreaks," the report said, recommending that courts modernize their systems and evaluate using new technologies.

In addition, courts typically aren't policymaking institutions and aren't accustomed to thinking about how to address problems within the criminal justice system as they arise, said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, a nonprofit research and policy organization that works with the government to improve justice systems.

Instead, courts follow procedures that are already on the books, but courts didn't have any existing procedures for how to handle a pandemic, she said.

Rahman said that some courts have handled the pandemic well, such as when the California Judicial Council or the Kentucky Administrative Office of the Courts issued statewide directives instructing judges to release people to reduce jail populations.

But courts didn't release enough people to ensure that their constitutional rights weren't abridged when governors suspended rights to speedy trials, Rahman said.

"[Courts] didn't proactively gather together defense attorneys and prosecutors to negotiate and resolve issues that could be resolved," she said. "That is the proactive policymaking role that courts could have played and we certainly didn't hear that happening in any great number."

Buskey said that indefinite delays to jury trials caused by the pandemic have increased pressure for individuals who are awaiting trial to agree to unfair plea bargains.

"Even prior to the pandemic, ours is not a system of trials, it is a system of plea bargains, and so the deck is already stacked against the defendant from the beginning," he said, noting that overly long sentences pressure defendants to accept plea bargains even if they are not guilty of charges against them.

Some courts have entertained the idea of conducting Zoom trials, or attempted trials in which jurors are socially distanced, but courts haven't proceeded with these measures as a remedy to trial delays, according to legal experts.

Defense attorneys have also voiced opposition to Zoom trials, saying that they need to be in the same room as jurors to ensure that they have their attention and that their clients get a fair trial.

"Body language is critical to competent representation," said Brian Woolf, a criminal defense attorney at Woolf Law Firm LLC. "It's too dangerous to allow jurors to be on Zoom and who knows what they look at."

Buskey said that in the absence of jury trials, prosecutors should consider dismissing charges for lower level offenses or in cases where witnesses have disappeared making it so that the prosecution can't meet its burden of proof.

"If that's not being evaluated now, folks are sitting unnecessarily, because the prosecution isn't doing its due diligence to make sure that that person needs to remain in jail," he said.

Restricted Access to Counsel

One of the ways prison and jail officials have tried to stop the spread of the coronavirus is by prohibiting visitors, including defense attorneys, greatly limiting incarcerated individuals' ability to communicate with their attorneys, according to Buskey.

Some jails and prisons have made it possible for attorneys to videoconference their incarcerated clients, but in-person communication is better for attorneys because it can be easier to show documents to their clients or to have their clients write down any recollection of events in a case, Buskey said.

"This is also a reason why states need to look more closely at cases that they can dismiss in the interest of justice, because of so many strains on the defense's ability to access counsel and put forth a valid defense," he said.

Compliance With Jail Diversion Programs

Len Engel, director of policy and campaigns at the Crime and Justice Institute, a nonprofit organization that researches improvements to criminal justice, said prosecutors have been more willing to use jail diversion programs for drug offenses and release individuals on probation while requiring them to participate in drug treatment during the pandemic to reduce incarcerated populations.

State and local officials in Colorado, Texas and California instructed law enforcement and prosecutors to increase the use of diversion programs to reduce jail populations, according to the Crime and Justice Institute.

As a result of efforts by these states and others, tens of thousands of people have been released early or diverted from jail during the pandemic. In the spring of 2020, jail and prison populations in the largest facilities across the country declined 11%, according to the institute.

However, individuals who needed to participate in drug treatment as part of their probation have had a harder time complying with this requirement because in-person drug treatment programs were suspended or stopped accepting new participants, said Engel, who co-authored a Council on Criminal Justice report about drug treatment for opioid use during COVID-19.

Engel said the use of videoconferencing increased to replace in-person drug treatment, but that high unemployment during the pandemic has also made it difficult for individuals to comply with the employment requirement of their probation.

According to a study by the University of Central Florida, 30% to 50% of people on parole or probation have lost a job since the start of the pandemic.

Probation and parole supervision have decreased during the pandemic because of the need for social distancing, but as supervision goes back to normal, more people might be sent to jail for not participating in drug treatment, not having employment or drug use, driving jail populations back up, Engel said.

"We've seen a dramatic decline [of jail populations], but [it's] not purposeful," he said. "[It's] just a result of a system, at every level, where there has been bottlenecks, or a slowing, or stopping of the [criminal justice system]," he said.

Unpaid Court Fees and Fines

Some states recognizing the pandemic's financial toll on citizens have eliminated some court fees, traffic fines and cash bail, but other states have decided to increase fees and fines to fill holes in their fiscal budget created by the pandemic.

According to the Fees and Fines Justice Center, an organization that advocates for the elimination of unjust fees and fines, New York City's plan to ramp up ticketing to collect $42 million from motorists to fill in its 2020-21 budget is one of the worst fiscal policies to come out of the pandemic.

Joanna Weiss, co-director of FFJC, said that increasing fees and fines is "one of the worst ways to respond to an economic crisis because you are trying to get money from people who are the least likely to have it."

In addition, individuals who are on probation or parole can't be released from supervision until they have paid all their court fees and fines, Weiss said.

The best thing for states to do during the pandemic is to reduce fees and fines, she said.

A model for other states to follow is California, which passed a $54.8 million budget proposal to eliminate 23 locally imposed fees for things such as ankle monitors over the next five years, according to Weiss.

"[The proposal is] a recognition that the justice system is supposed to serve everyone and should be funded by everyone," Weiss said.

Reentry Became More Difficult

For those who had been incarcerated, reentering society was harder last year because of high unemployment and business losses caused by the pandemic.

In normal economic times, formerly incarcerated individuals already have fewer job opportunities because many employers will not hire people with criminal records. With more people competing for jobs, incarcerated people were even more unlikely to get hired.

With a criminal record and no employment, private housing is almost impossible for formerly incarcerated people to secure and their criminal criminal records make them ineligible for public housing.

In addition, early prison releases made it so that individuals didn't have enough time to enroll in Medicaid or the Supplemental Nutrition Assistance Program, according to the Brennan Center for Justice, a nonprofit that conducts research in criminal justice reform.

Incarcerated people were also excluded from some of the benefits provided to millions of Americans through the Coronavirus Aid, Relief and Economic Security Act, or CARES Act. The legislation expanded unemployment insurance and offered paycheck protection to businesses, but most formerly incarcerated individuals are not eligible for unemployment insurance and the Small Business Administration tried to disqualify all business owners who had been convicted of a felony in the past five years from paycheck protection assistance, according to the Brennan Center.

"One of the lessons of the pandemic has been the need of society to reckon with extraordinary barriers we put in front of people who are returning from jails and prisons," Buskey said.

--Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.