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Initial Court Responses to Covid-19 Leave a Patchwork of Policies

Most federal and state courts have taken some sensible precautions in response to the pandemic — but not immigration courts, which are controlled by the Trump administration.

As the global coronavirus pandemic contin­ues to unfold, courts have tried to strike a balance between the need to main­tain oper­a­tions and the social distan­cing meas­ures required to limit the spread of the virus. Such efforts are essen­tial given the volume of people passing through a court­house on any given day, and the fact that attor­neysjudges, and people who are incar­cer­ated have already tested posit­ive for Covid-19.

The Bren­nan Center is compil­ing court orders and offi­cial announce­ments from federal and state courts across the coun­try.

U.S. Supreme Court

On Monday, the Supreme Court announced that it would hear 10 of 20 previ­ously post­poned oral argu­ments by tele­phone in May. The Court said that it would make a live audio feed avail­able to the media, mark­ing the first time in history that the public will be able to hear these argu­ments live. Typic­ally, an audio feed of some of the Court’s argu­ments is avail­able retro­spect­ively though the Oyez project, but the upcom­ing argu­ments will be live-streamed via CSPAN for the first time.

The Court’s previ­ous lack of a decision on this matter sparked criti­cism from legal experts who believe that not only should the Court hold future argu­ments remotely, but that it should make these proceed­ings avail­able to the public live. Accord­ing to a new poll from Fix the Court, the public also supports such meas­ures: 72 percent of those polled were in favor of the Court conven­ing virtu­ally for the dura­tion of the pandemic.

The Court has yet to announce whether it is post­pon­ing or canceling the remain­ing oral argu­ments for its current term, a drastic step last taken in 1918 in response to the Span­ish flu pandemic.

Lower federal courts

The coun­try’s 94 federal district courts and 13 courts of appeals have respon­ded inde­pend­ently to the pandemic, but they are all encour­aging, if not requir­ing, judges to hold more proceed­ings remotely. The vast major­ity have taken a similar approach: as of April 14, 88 of the district courts have suspen­ded jury trials and other in-person proceed­ings, with some excep­tions for emer­gency or essen­tial hear­ings as defined by each court. The few district courts continu­ing to hold in person proceed­ings include courts cover­ing portions of Cali­for­nia, Alabama, Flor­ida, Geor­gia, and West Virginia.

All of the appeals courts, mean­while, have either post­poned oral argu­ments or are hold­ing argu­ments by phone or video confer­ence. Several of them have given assigned judges the discre­tion to continue to hold hear­ings in person.

The latest federal stim­u­lus pack­age included fund­ing for remote proceed­ings in federal court. The CARES Act also author­ized the use of video and tele­con­fer­en­cing for select crim­inal proceed­ings while the current national emer­gency order remains in place, and the Admin­is­trat­ive Office of the U.S. Courts subsequently announced that federal courts would provide public and media access to some of them.

In respond­ing to the pandemic, many courts have rightly prior­it­ized limit­ing the number of people who come through their doors. However, there are already signs that these responses may also be creat­ing signi­fic­ant barri­ers for people seek­ing to use courts to protect or defend them­selves or their rights. For example, nearly every federal district court that has post­poned in-person proceed­ings has invoked their author­ity to exclude these delays from require­ments under the Speedy Trial Act. The Supreme Court has called this set of laws — which is designed to guar­an­tee defend­ants’ consti­tu­tional right to a speedy trial — “an import­ant safe­guard to prevent undue and oppress­ive incar­cer­a­tion prior to trial.” Lengthy delays may have an outsize impact on black and brown communit­ies that face dispro­por­tion­ately high rates of pretrial incar­cer­a­tion.

State courts

State courts have also respon­ded rapidly to the pandemic. By the end of March, every state judi­ciary in the coun­try had issued a response to Covid-19. As of April 14, 34 states, the District of Columbia, and Puerto Rico are restrict­ing or suspend­ing most in-person proceed­ings, while 16 states have given local juris­dic­tions the option to imple­ment similar meas­ures, accord­ing to the National Center for State Courts.

Although every state court system has respon­ded to the crisis in some fash­ion, their new policies vary widely, and not all state supreme courts have the author­ity to mandate action by lower courts around their state. Notably, Cali­for­nia is one of the states that has not issued a statewide order mandat­ing the suspen­sion of in-person proceed­ings, although it has suspen­ded jury trials. Recently, however, Gov. Gavin Newsom gran­ted the state’s Judi­cial Coun­cil emer­gency author­ity to “make any modi­fic­a­tions to legal prac­tice and proced­ure it deems neces­sary in order to continue conduct­ing busi­ness.”

Like in the federal courts, the wide­spread trans­ition to remote proceed­ings at the state level raises concerns for access to judi­cial system. Defend­ants in Minnesota have complained about how family members are unable to attend trial, while court observ­ers in Louisi­ana have criti­cized the courts for cutting them out of proceed­ings they were present for previ­ously. In addi­tion, not every­one involved in the justice system has access to or the abil­ity to use the tech­no­logy required to commu­nic­ate elec­tron­ic­ally with the courts.

Immig­ra­tion courts

In contrast to federal and state courts, many of which have taken signi­fic­ant action includ­ing court­house clos­ures, 63 of the coun­try’s 68 immig­ra­tion courts remain open in some capa­city. This is likely because unlike other courts, immig­ra­tion courts are controlled by the Depart­ment of Justice and its judges are actu­ally employ­ees of that agency. The Exec­ut­ive Office for Immig­ra­tion Review of the Depart­ment of Justice has post­poned hear­ings through May 1 for persons not currently detained, but most of the immig­ra­tion courts remain open as normal.

In a start­ling pattern, courts are clos­ing briefly for clean­ing but quickly reopen­ing, even after immig­ra­tion court offi­cials test posit­ive for Covid-19. The Varick Street Immig­ra­tion Court in New York City, for example, was closed for only one day after a judge at the court­house tested posit­ive for Covid-19. The court currently remains open for filings and detained hear­ings. A similar instance occurred at the Eliza­beth Immig­ra­tion Court in New Jersey.

Immig­ra­tion advoc­ates argue that keep­ing these courts open not only poses health risks for detained persons, attor­neys, and judges, but also makes it harder for detained persons to get legal assist­ance in their ongo­ing cases. Immig­ra­tions and Customs Enforce­ment officers have instruc­ted immig­ra­tion lawyers to provide their own personal protect­ive equip­ment in order to enter deten­tion facil­it­ies despite the nation­wide short­age of such supplies. If the attor­neys do not have the equip­ment, ICE may prevent them from visit­ing their clients.

In addi­tion, immig­ra­tion courts have yet to post­pone filing dead­lines, subject to the discre­tion of the presid­ing judge. This poses hurdles to many lawyers, partic­u­larly those serving low-income communit­ies, who might not have access to the mater­i­als needed to prepare, print, sign, copy and mail or upload filings from home.

Immig­ra­tion judges, lawyers, and advoc­ates have urged the DOJ to close immig­ra­tion courts and conduct any essen­tial hear­ings remotely. On this point, there has even been rare consensus among lawyers work­ing for the Depart­ment of Home­land Secur­ity and immig­ra­tion defense lawyers. One San Fran­cisco-based judge explained that the ques­tion she and her colleagues are faced with is “do we come to work as is expec­ted…or do we follow the local guid­ance from health depart­ment offi­cials?” The Amer­ican Immig­ra­tions Lawyers Asso­ci­ation has since filed a lawsuit call­ing for imme­di­ate action to protect immig­rant communit­ies in immig­ra­tion court for the dura­tion of the public health crisis.

Look­ing ahead

These initial court policies are likely only the first iter­a­tion of responses to this crisis. Though it is still unclear how long these meas­ures will be in place, courts will even­tu­ally need to adopt new policies if and when they seek to resume more of their normal oper­a­tions. In the long term, courts will likely need to strike a new balance that ensures the access that the law requires and that the public expects.