Reducing the Staggering Backlog of Court Cases

The Fulton County, GA courthouse. Fulton County has over 200,000 in backlogged criminal cases.

The Fulton County, GA courthouse. Fulton County has over 200,000 in backlogged criminal cases. ISTOCK.COM/Rex_Wholster

 

Connecting state and local government leaders

COMMENTARY | State and local leaders can tackle the massive backlog of criminal cases by expanding pretrial services, transforming indigent defense and embracing restorative justice processes.

The Covid-19 pandemic has created an extraordinary backlog of criminal cases.

For example, in Fulton County, Georgia, home of Atlanta, the number of backlogged cases has hit 206,000, which includes approximately 600 murder cases awaiting trial. In Seattle, a judge estimated that even excluding nonviolent cases, it would take 13 years to clear the logjam.

This massive buildup of criminal cases across the country has serious implications. In some instances, this can mean a defendant facing a charge who would have been deterred or rehabilitated if their case had been processed could reoffend. Or an innocent person languishes in jail for months prior to trial.

More broadly, such severe delays leave victims in the lurch, demoralize court staff, negate the defendant’s right to a speedy trial, and keep the system from achieving its goals of accountability and rehabilitation.

Policymakers can take several steps to urgently improve the pace and quality of justice, drawing on both their resources and, potentially, federal justice-related assistance through the American Rescue Plan Act. Many of the key short- and longer-term measures state and local officials can implement are outlined in a series of reports from the National Commission on Covid-19 and Criminal Justice, a diverse panel of experts convened by the Council on Criminal Justice and co-chaired by former U.S. Attorneys General Loretta Lynch and Alberto Gonzales.

Some immediate steps jurisdictions can take to reopen courts and maintain public health include restarting grand jury proceedings and trials with appropriate protocols, such as social distancing, rapid Covid-19 testing and improved ventilation. While some prosecutors have rightly dismissed minor cases to help clear backlogs, some local and state governments may also need to create more courts and hire more prosecutors and public defenders to reduce the case backlog.

Pretrial services, probation and parole agencies, meanwhile, are ramping up in-person appointments but should also continue virtual check-ins for individuals who are low risk to offend that proliferated as the coronavirus spread.

However, these efforts while necessary are not sufficient. To fully address logjams, jurisdictions must innovate and create a better “new normal” by expanding pretrial services, transforming indigent defense and adopting restorative practices.

Expanding Pretrial Services

Pretrial service agencies offer diversion programs that can shrink the existing backlog while keeping people out of jail unnecessarily. They also provide defendant oversight and programming to reduce the likelihood of re-arrest during the increasingly lengthy gap between arrest and adjudication by offering services like text reminders of court dates, counseling and employment referrals.

However, with case dispositions delayed, pretrial caseloads are becoming unmanageable with existing resources, even when the lowest-risk defendants are appropriately culled from caseloads. Harris County, Texas experienced a 1010% increase in the pretrial supervision population from January 2015 to November 2020, pushing regular compliance caseloads to over 600 defendants per officer.

Additionally, pretrial services programs are mostly absent in many rural areas—and those that do exist are often starved for funding. In some states, such as Texas, probation departments may serve pretrial clients, but their funding is primarily based on how many adjudicated individuals are on supervision. This disincentivizes diversion and delays the provision of services well past the time when they may be most needed—immediately following arrest. 

One rural county, Summit County, Colorado, has identified pretrial services as an ARPA funding priority. This can help reduce reliance on fees paid by defendants, most of whom are indigent and have suffered economically during the pandemic.

However, pretrial services are not a one-size-fits all, particularly when it comes to arrests attributable to substance use disorders and mental illness. The default position of the presumption of innocence is paramount in setting conditions of any pretrial diversion program. Yet, there’s a tension between waiting for a determination of guilt and delivering interventions after arrest as that is the most effective time to provide interventions that produce desired outcomes, like avoiding re-arrest and promoting employment.

Defendants must be individually assessed to avoid conditions that are unrelated to risks and needs but can lead to re-arrest. For example, a defendant who shows no indications of alcoholism and is not facing DWI or other alcohol-related charges should not be prohibited from drinking.

But failing to intervene in any way during months or even years before an adjudication occurs carries risks, which include harm to any victims associated with new crimes as well as potential harm to the defendant, such as a fatal overdose. Not only have overdoses spiraled during the pandemic, but data indicates that people leaving jail are more than 12 times as likely as those in the general population to suffer a fatal overdose in the two weeks after release.

Indigent Legal Services

In addition to fortifying pretrial services, jurisdictions should bolster the quality of indigent legal services by expanding “holistic defense.” Attorneys practicing holistic defense help their clients address underlying issues ranging from exposure to violence to housing instability that contributed to their offenses during the months or years a case is pending. This model has been shown to significantly reduce unnecessary incarceration.

While holistic defense is a relatively new concept, nonprofits such as Bronx Defenders not only provide constitutionally required legal representation, but also have social workers on staff who refer defendants to temporary housing, drug treatment and other needed services. Lubbock, Texas has also found success with an independent county office for assigning attorneys that includes case managers who make these connections.

Restorative Practices

A third action that can help clear case backlogs is the use of restorative justice processes, which are collaborative, informal mechanisms for repairing the harm caused by crime. Where appropriate, they can bring satisfactory resolutions to both perpetrators and victims.

For example, when agreed upon by the victim and defendant, victim-offender mediation not only helps thin backlogs, but also promotes greater victim satisfaction and lower recidivism. Meditations similar to what a judge in Idaho is deploying to clear his court’s pandemic-triggered backlog typically result in binding agreements that require the perpetrator to take responsibility and apologize for the harm caused, and also provide restitution and, in some cases, perform community service.

The staggering logjams plaguing our courts reveal a system on life support. And justice delayed is justice denied. By embracing new methods, the criminal justice system will not only reduce the massive backlog but also allow it to fulfill its mission of accountability, rehabilitation and public safety.

Marc Levin, Esq. is chief policy counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twitter at @marcalevin.

NEXT STORY: The Safest and Least Safe Cities in the U.S.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.