We need to recognize a couple of things about our justice system, in order to fully appreciate the fate that awaits it in the COVID-19 era and the tasks that now lie in front of us.
The first is that the system has nowhere near the capacity or resilience required to handle an emergency of this magnitude. Like our hospitals, which are about to be overrun with virus patients, our courts are perpetually underfunded, technologically handicapped, and already overloaded.
Case backlogs are common, hearings are routinely adjourned, and even straightforward cases stretch out over months and years. There is an entire body of constitutional law that addresses how long you can delay a person’s trial before their rights are violated, and it should tell us something that we don’t even find that remarkable anymore.
What happens when you take a creaking, overburdened system like this and place it in the path of the worst public crisis most of us have ever experienced? Our justice institutions can survive localized disasters — floods, wildfires, even terrorist attacks — because these events end relatively quickly, and the administrators can call in help from surrounding areas. What our institutions can’t survive is long, drawn-out, global emergencies of unknown duration, repeated multiple times, that disrupt schedules, force cancellations, and prevent in-person gatherings that could sicken or even kill their participants.
The justice system is not ready for this — but the hard truth is, it probably wouldn’t have been ready had this happened 10 years from now. And we don’t have the time or the resources to fix it now — the time to do that was 10 or 20 years ago. Just as you go to war with the army you have, rather than the army you wished you had, this is the justice system we’ve got.
Postponing hearings, allowing emergency e-filing, and teaching judges how to use Zoom is pretty much all that the courts have managed to do in response to the SARS-CoV-2 pandemic. Beyond that, as we’ve seen, the justice system’s best solution is essentially to give up, to shut down and hope for the best. There are no next steps.
Institutions need resilience in a crisis, just like people do. If your institution was forced to shut down because of the pandemic, then it failed its resilience test. It wasn’t there for us when we needed it.
The second feature of the justice system, though, is even harder to square with our new reality. In the short term, physical distancing is making it impossible for most trial courts to function normally. Some appellate hearings have continued by video, since no witnesses or exhibits need be present. But most civil proceedings, and almost every criminal proceeding, require people to gather together in small enclosed spaces for hours on end, waiting their turn to be called.
We’re not going to be able to safely or predictably do that kind of thing for a long time yet, especially since our current lockdown is likely to be just the first of many. How can you schedule a two-day hearing or a one-week trial eight months from now, when the government might lock down your community anytime, with little warning? How can lawyers arrange their schedules, how can witnesses book time off work or make travel reservations, under those circumstances? The logistics of court are easily derailed because there are so many moving parts that need to be tightly coordinated to get everyone in the same place at the same time.
Now, stop there. Go back to that last sentence and re-read those last eight words — “in the same place at the same time.” What this crisis has revealed is the central operating assumption of our justice institutions, which has now become our stumbling block: Everybody comes to the courthouse.
Every participant or stakeholder in a justice matter, no matter who they are or where they live, must at some point leave where they are and physically show up in front of the judge or her designate, inside the judge’s place of business, at a time specified by the judge, surrounded by the judge’s colleagues and employees, and do everything there according to the judge’s rules (including standing up when the judge enters the room). Failure to do these things will jeopardize your position; at worst, it could literally land you in jail.
Even when there’s not a global pandemic, there are enormous costs to a justice system that forces everyone to revolve around one person in one place. Every day, in criminal courts around the world, people in custody are placed in secure vehicles and escorted under guard to a courthouse, where they wait around until the judge or judge’s designate deals with their matter, after which they are either released or returned to custody.
Does it really make logistical sense (never mind hygienic sense) to round up all those people to stand in front of one person? Would it not make more sense for that one person to go to where these people are, and make whatever adjudications and decisions are required? Or to have many of these meetings take place by videoconference, so that nobody has to go anywhere?
I think that’s a discussion worth having. Or more accurately, it had been worth having, even though the vast majority of judges would never countenance the idea of going out and bringing justice to the world, rather than waiting for the world to come and get justice from them. But we’ve passed the time for discussions. We’re now building workarounds and assembling new solutions in real time, and the questions we’ll be asking are not “Will the judge approve of this?” so much as “Will this get the job done?”
Richard Susskind has made many insightful observations over the course of his career, but I suspect one will outlast all the others: “We have to decide if court is a place or a service.” For hundreds of years — right up until last month, in fact — court has been a place. By the time this pandemic has truly run its course, court will be a service.
We will not “go to court,” other than in exceptional circumstances (or in the case of criminal justice, which requires other serious reforms). We will “use the justice system,” from wherever we happen to be. Sometimes that will mean going to the courthouse and waiting for the judge to get around to our matter. But that will be the exception, not the rule — most times, we will access the justice system from our offices, our living rooms, our desktops, our mobile devices, our smart TVs.
Most family law matters, in particular, will leave courthouses and courtrooms over these next few years, and they will not return. They should never have been there in the first place. We can create, right now, an Integrated Family Law Agency to take over 90% of what a functional family court system should do, for a fraction of the time and cost. John-Paul Boyd laid out an entire blueprint for this kind of administrative model of family law dispute resolution almost two years ago. Seriously. It’s right there. Pick it up and run with it.
Our justice system is in trouble not just because it’s underfunded, under-resourced, and overburdened, as a global pandemic bears down on it like a hurricane. It’s in trouble because fundamentally, it’s all about the courts, the judges, the lawyers, and the law. It is not about the people whose rights and disputes need adjudication and resolution, or about the society that depends on the timely and affordable delivery of these outcomes in order to function.
This is why there’s not much point anymore in talking about “modernizing” or patching up our justice institutions. You can’t apply a Band-aid when you need a DNA replacement. By all means, we need to keep our system running as best it can through this crisis — we can’t let the walls give way and the roof cave in when there are so many people inside.
But everyone needs to be very clear: We are not going to all this effort simply to repair, patch up, and extend the life of a decrepit, crumbling edifice that’s already close to falling in on itself. We are keeping the old place together only long enough to clear everyone out of the building and move them to a safer location. We have to develop a new system, rather than trying to retrofit the old one. It’s time to start over.
For my thoughts about how we could begin to build those new and safer locations for justice, please see the next post in this series.