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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.