How do we reopen our doors without simply inviting the coronavirus in alongside the business? This critical, perplexing question finds newfound urgency as the toll of lockdowns mounts and states begin to lift them in response. While the spotlight has naturally shone on how places such as hair salons and bars are grappling with this question, we should not ignore another set of places that many try to avoid: the criminal justice system.

The justice system’s response to the coronavirus in many ways mirrored that of the rest of society. It paused ‘nonessential’ elements such as many in-person hearings and temporarily shuttered various physical locations like courthouses. Undeniably ‘essential’ parts, including jails and prisons, continue to operate, albeit with modified practices, including ad hoc quarantine schemes and other attempts at protective measures.

As with the wider economy, we cannot afford to let the justice system remain in relative stasis indefinitely. Crime may be down in many places, but it has not disappeared. Both public safety and individual liberties demand some return to normalcy. And, just as its shutdown reflected the wider societal response, so too should the justice system’s new normal.

Traditionally, criminal justice has been about as reliant on face-to-face interactions as the restaurant industry. Arrests and incarceration serve as the more dramatic instances of close quarters contact, but even regular court hearings necessitate attendance in packed courtrooms for potentially hours on end. With the pandemic ongoing, a return to this old way of doing business would be no more responsible than Americans rushing back to eat and drink shoulder-to-shoulder.

Just like businesses limiting capacity at physical locations, law enforcement and the courts will need to do a better job of reducing the number of people entering courthouses and correctional facilities. Practices such as requiring arrests for low level offenses and mandating attendance at all pretrial hearings were disruptive and unnecessary before the pandemic struck. Now they could be deadly too.

Much of this can be achieved through relatively straightforward policy changes. Prosecutors, for example, could work to more proactively identify and resolve those cases susceptible to diversion, community service, or outright dismissal prior to any in court appearance. Police could likewise employ citations in lieu of arrests more frequently. Indeed, prosecutors and police in some places have already made these kinds of adjustments.

Other policy shifts will require leveraging technology better. Zoom has fueled remote meetings throughout the country; allowing defendants to opt-in to use a similar platform for many pretrial hearings would remove bodies from courtrooms as well as make it easier for defendants to fulfill employment or childcare obligations. Prosecutors could similarly reduce the need for some in-person meetings by instituting open discovery policies that make evidence more readily available online to defense counsel.

Certain parts of the old normal likely should not have a place in the new. The dogged pursuit of punishment for many low-level infractions and technical violations of community supervision terms as well as an overreliance on detention as a sanction were already costly strategies out of step with best practices. In the current environment they are prohibitively so.

Likewise, the justice system should follow the lead of all of those industries that have leaned into the pandemic’s power as a trend accelerating catalyst. Over the last decade, reform of one shade or another has improved nearly every aspect of the criminal justice process. Now is the time to double down on this movement to shed the old tough on crime trappings that equated convictions and sentence lengths with success for those that consider more holistic measures of community wellbeing.

Whenever communities begin to reopen, it is likely to be a long and painful process filled with new risks and unsatisfying choices. The pandemic has placed a premium on methods of doing business that shrink excessive crowds, cut unnecessary operations, and deliver services at a distance. The criminal justice system is no exception, and adopting these same strategies into its own new “normal” will be key to protecting public safety while maintaining public health.

Image credit: Zolnierek

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