COVID-era lessons for our courts

Last month, New York’s court personnel returned to work full force. Inching closer to what Chief Judge Janet DiFiore calls a "new and better normal," we should consider lessons learned from the handling of criminal cases during the pandemic.

First, the good news: The COVID crisis has allowed for some screening of cases that don’t need to be prosecuted. The Nassau County DA’s office, facing an insurmountable backlog of unarraigned low-level cases, determined that some cases can be dismissed without protracted litigation. This is a commendable step, but the office could and should be much bolder. The criteria for dismissing cases is so high and the process so cumbersome that the prosecutors have barely made a dent in the pile.

Fortunately, Nassau is looking to build on this platform. On May 10, the state’s chief administrative judge signed an order authorizing court diversion, which would allow individuals to perform community service, pay fines or complete other programs before their first court date in exchange for dismissal of their cases. This is a hopeful sign. But much depends on the contours of the required programming and how it is administered. New York City has shown that cases can be diverted without making it too hard to get in and too hard to succeed, especially for the vulnerable people who are the ones usually charged with misdemeanors.

In Nassau, programs are often long-term, expensive and excessively burdensome. One result, as in Suffolk, which is already offering diversion, is that such options disproportionately serve white, privileged folks.

Any serious reform effort would need to reconsider whether the alleged misconduct — including disorderly conduct, shoplifting and traffic offenses — should take up any prosecutorial resources. Particularly given racial disparities in policing and the fact that police encounters themselves have well-documented punishing consequences, not every arrest need result in a prosecution or a diversion program at all.

The pandemic also provided an experiment in waiving clients’ appearances at routine court dates. To their credit, Nassau judges have required clients to attend very limited dates during the past year, usually for a disposition, hearing or trial. In Suffolk, the issue is completely judge-dependent. But waivers allow people to avoid the significant costs of attending court, which pre-COVID meant showing up every six weeks, often for over a year, for a misdemeanor. Finding child care, getting transportation and missing work, all for a 20-second appearance where nothing happens, does damage to individuals and communities while sowing distrust in the system. Going forward, judges should consistently waive clients’ appearances and, when attendance is required, give them the option of appearing virtually.

Online courtrooms have also produced bad news: In the virtual world we’ve been in, most proceedings have not been open to the public. The accused’s Sixth Amendment right to a public trial and the public’s First Amendment right to attend criminal court extend beyond just the trial. People should be able to observe all proceedings to ensure accountability in the courtroom. Not everyone has access to a computer, but online streaming opens courts to a broader audience. Judges can still maintain decorum, but open courtrooms must be available now, during hybrid operations, and should remain available via public videolinks in the future, much as they already are for arraignments in Nassau.

We have learned so much through this pandemic. Now, as we seek to move beyond COVID’s most horrific effects, LI courts should take the opportunity to lead the way forward.

This guest essay reflects the views of Elizabeth Nevins, who directs the Criminal Justice Clinic at Hofstra Law School.