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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.
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 email@example.com and on Twitter at @marcalevin.
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