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A Courts-Focused Research Agenda for the Department of Justice

Recommendations for the Justice Department research agenda to shed more light on how to improve our nation’s vast system of local, state, and federal courts.

Intro­duc­tion

Millions of indi­vidu­als inter­act with the U.S. crim­inal and civil legal system every year. Many of them look to the courts to defend their rights and ensure fair outcomes — and all too often, courts are fall­ing short.

As a candid­ate, Pres­id­ent Biden commit­ted to combatting mass incar­cer­a­tion, ending the crim­in­al­iz­a­tion of poverty, root­ing out racial dispar­it­ies, and refo­cus­ing our crim­inal and civil legal systems on the key prin­ciples of equal­ity, equity, and justice. State and federal courts are crit­ical to achiev­ing these goals, but there is much that we don’t know about how they currently func­tion and where reform is most acutely needed.

In order for the Depart­ment of Justice (DOJ) to effect­ively support states, local juris­dic­tions, tribal govern­ments, territ­or­ies, and the federal govern­ment in refash­ion­ing our courts into more just insti­tu­tions, research and data are urgently required.

There must be an under­stand­ing not only of who is enter­ing the court system, but why they are brought into it, and what their exper­i­ences illus­trate about our vast system of local, state, and federal courts. For example, the Biden admin­is­tra­tion has emphas­ized its inten­tion to end the prac­tice of incar­cer­at­ing people for their inab­il­ity to pay court debt, yet we still know very little about how these and other pred­at­ory court prac­tices func­tion across the coun­try. The Covid-19 pandemic promp­ted an unpre­ced­en­ted exper­i­ment with remote court proceed­ings in juris­dic­tions across the coun­try, but we still know very little about how remote court impacts access to justice and the fair­ness of proceed­ings.

Pres­id­ent Biden has also emphas­ized the import­ance of racial, ethnic, gender, and profes­sional diversity on the bench — includ­ing nomin­at­ing judges who bring diversity to the bench. But while the judi­ciary publishes diversity data about Article III judges, we lack basic inform­a­tion about the demo­graph­ics or profes­sional exper­i­ence of many judges in state and Article I federal courts. These are just a few of the data and research gaps that make our courts prob­lem­at­ic­ally opaque.

Although just scratch­ing the surface, we offer some recom­mend­a­tions for the Office of Justice Programs (OJP) and National Insti­tute of Justice (NIJ) to collect addi­tional data and perform research to better under­stand how our courts do or don’t work for millions of Amer­ic­ans, as well as setting forth a research agenda that could shed more light on how to improve our nation’s vast system of local, state, and federal courts.

Fees and Fines

Many states and local govern­ments rely on fees and fines to fund their court systems and basic govern­ment oper­a­tions. Fees and fines are an inef­fi­cient source of govern­ment revenue, yet the high costs of collec­tion and enforce­ment are excluded from most analyses. What this means is that actual reven­ues from fees and fines are far lower than what legis­lat­ors expect. Court imposed fees and fines often trans­late into debt that millions of Amer­ic­ans cannot afford to pay, frequently paving a new path­way to incar­cer­a­tion. Because of over-poli­cing in communit­ies of color and the demo­graph­ics of poverty in the U.S., the burden of fees and fines falls largely on people of color and the poor. foot­note1_2hcg4sm 1 Matthew Menen­dez et al., The Steep Costs of Fines and Fees, Bren­nan Center for Justice, 2019, 13, https://www.bren­nan­cen­ter.org/our-work/research-reports/steep-costs-crim­inal-justice-fees-and-fines.

On the campaign trail, then-candid­ate Pres­id­ent Biden recog­nized that fines and fees often serve to crim­in­al­ize poverty, and he commit­ted to using “the grant­mak­ing power of the federal govern­ment to incentiv­ize the end of policies that incar­cer­ate people for fail­ing to pay fines and fees,” includ­ing policies revok­ing driver’s licenses. foot­note2_6lbc9eu 2 Biden’s campaign website noted that he would target policies to revoke driver’s licenses for unpaid park­ing and speed­ing tick­ets, but also added that “these license-related reforms will not apply to licenses revoked for driv­ing while intox­ic­ated, reck­less driv­ing, or other seri­ous driv­ing viol­a­tions.” “The Biden Plan for Strength­en­ing Amer­ica’s Commit­ment to Justice,” JoeBiden.com, accessed Febru­ary 2, 2021, https://joebiden.com/Justice/.  Resources devoted to collect­ing and enfor­cing fees and fines could be better spent on efforts that don’t unduly burden low-income indi­vidu­als and their famil­ies and actu­ally improve public safety. foot­note3_sbou9nc 3 Menen­dez, The Steep Costs of Fines and Fees, 9 –10.

Research oppor­tun­it­ies

  • Eval­u­ate juris­dic­tions that permit judges to waive or reduce fines and fees based on a defend­ant’s abil­ity to pay: Very few courts assess a person’s abil­ity to pay before they impose fines and fees or engage in oner­ous collec­tion prac­tices. Even courts that do perform this assess­ment seldom do so holist­ic­ally. Many states allow judges to waive or reduce fines and fees if the judge determ­ines the person lacks the abil­ity to pay the full amount, yet how judges exer­cise this discre­tion has never been stud­ied. The Office of Justice Programs (OJP) should select several juris­dic­tions in which to eval­u­ate judi­cial decision-making, includ­ing
    1. the percent­age of cases in which judges waive or reduce fines and fees;
    2. the range of reduc­tions and factors included in abil­ity-to-pay decisions; and
    3. the collec­tion rates of people whose fines and fees have been reduced, as compared to those assessed the initial stand­ard amount.
  • Fund and eval­u­ate abil­ity-to-pay pilot sites: Though there are limited eval­u­ations of courts that conduct abil­ity-to-pay determ­in­a­tions, in the year follow­ing the passage of a 2017 Texas law requir­ing judges to conduct abil­ity-to-pay hear­ings, the state saw a 37.5 percent decline in arrest warrants and 170,000 fewer indi­vidu­als incar­cer­ated for nonpay­ment of fines and fees. foot­note4_fagbdw7 4 Fines and Fees Justice Center, “Texas SB 1913,” June 20, 2017, https://fines­and­fees­justice­cen­ter.org/articles/texas-sb-1913-fines-fees/. The Bureau of Justice Assist­ance (BJA) should fund 5–10 sites across the coun­try to pilot and eval­u­ate abil­ity-to-pay assess­ments conduc­ted before fines and fees are imposed. There are numer­ous abil­ity-to-pay rubrics that have been developed and are in use, includ­ing the Fines and Fees Justice Center’s Policy Guid­ance on Abil­ity-to-Pay, Payment Plans, and Community Service. foot­note5_b2wzqg3 5 See Fines and Fees Justice Center, First Steps Toward More Equit­able Fines and Fees Prac­tices: Policy Guid­ance on Abil­ity-to-Pay Assess­ments, Payment Plans, and Community Service, 2020, https://fines­and­fees­justice­cen­ter.org/2020/11/17/new-ffjc-public­a­tion-policy-guid­ance-on-abil­ity-to-pay-assess­ments-payment-plans-and-community-service/.  The pilots should all adopt and apply the same rubric, which would docu­ment
    1. the extent to which courts reduce fines and fees, and whether the amount is influ­enced by an in-person court appear­ance;
    2. the costs asso­ci­ated with conduct­ing abil­ity-to-pay assess­ments; and
    3. the chal­lenges asso­ci­ated with imple­ment­a­tion of abil­ity-to-pay assess­ments, as well as the changes in defend­ants’ lives due to reduced fines and fees.
  • Study fees levied in all 50 states: DOJ should fund stud­ies that invest­ig­ate common fees imposed across the coun­try, such as proba­tion, elec­tronic monit­or­ing, warrant, book­ing, and court processing fees. This research should docu­ment
    1. the states in which vari­ous fees are assessed, the amount of the fees, and the changes to fee amounts over time; and
    2. the agen­cies and programs funded by these fees and the actual revenue they receive.
  • License suspen­sions for nonpay­ment of fees and fines: One of the most common sanc­tions that states impose on someone who has not paid fees and fines in a timely manner is suspend­ing their driver’s license. In doing so, states prevent the person from commut­ing to work or find­ing a job, perpetu­at­ing a cycle of debt and contin­ued involve­ment with the crim­inal justice system. Recog­niz­ing this harm, about a dozen states recently stopped suspend­ing licenses for fail­ure to pay fees and fines. NIJ should fund stud­ies on the impact of this legis­la­tion, includ­ing
    1. whether collec­tions of fees and fines increased or decreased compared to states that still suspend licenses for fail­ure to pay; and
    2. how license rein­state­ment impacted people’s lives, such as their abil­ity to obtain or main­tain a job after their license was rein­stated and whether their wages and hours increased after rein­state­ment.
  • Costs of assess­ing and collect­ing court imposed fees and fines: Juris­dic­tions justify the impos­i­tion and collec­tion of court imposed fees and fines with the revenue gener­ated from these programs. But those figures fail to consider not only the burden imposed on the people who have been sanc­tioned but also the admin­is­trat­ive costs asso­ci­ated with the collec­tion program. While counties and states can read­ily point to the amount of funds collec­ted from fees and fines, they do not system­at­ic­ally collect data on the hidden costs of assess­ing and enfor­cing payments, which offset revenue gener­a­tion. foot­note6_whb2uu3 6 Michael F. Crow­ley, Matthew J. Menen­dez, and Lauren-Brooke Eisen, “If We Only Knew the Cost: Scratch­ing the Surface on How Much it Costs to Assess and Collect Court Imposed Crim­inal Fees and Fines,” UCLA Crim­inal Justice Law Review 172 (2020), https://eschol­ar­ship.org/uc/item/19p8b9r6.  To determ­ine the full cost of court imposed crim­inal fee and fine enforce­ment to taxpay­ers, NIJ should soli­cit research on
    1. the types of compli­ance activ­it­ies for fees and fines that involve law enforce­ment agen­cies and proba­tion depart­ments, as well as enforce­ment policies;
    2. person­nel costs for public offi­cials (e.g., judges, prosec­utors, police, public defend­ers, and community correc­tions staff) due to court appear­ances related to crim­inal fees and fines proceed­ings; and
    3. cost of contracts with private collec­tion agen­cies, if applic­able, as well as the costs of these agen­cies imposed on the people sanc­tioned.

Muni­cipal Courts

Muni­cipal courts are local courts with juris­dic­tion over misde­mean­ors, traffic viol­a­tions, and some­times small civil claims. foot­note7_01f1ysh 7 These courts are also known as “city,” “police,” “summary,” “town,” or “justice” courts.  They are run by cities and towns, not state judi­ciar­ies, and vary widely from state to state and some­times even city to city. The inner­work­ings of these courts are not well known, with proceed­ings that are often informal, summary, and lack­ing basic due process protec­tions. As detailed in Professor Alex­an­dra Natapoff’s recent Harvard Law Review article, there are approx­im­ately 7,500 such courts across 30 states, foot­note8_79nr­du4 8 Alex­an­dra Natapoff, “Crim­inal Muni­cipal Courts,” Harvard Law Review 134 (2021): 977, https://harvard­lawre­view.org/2021/01/crim­inal-muni­cipal-courts/.  hand­ling as many as 3.5 million crim­inal cases each year. foot­note9_suofgdi 9 Natapoff, “Crim­inal Muni­cipal Courts,” 977.  Muni­cip­al­it­ies also rely heav­ily upon these courts to raise revenue through fines and fees, collect­ing as much as $2 billion annu­ally. foot­note10_3bg23mg 10 Natapoff, “Crim­inal Muni­cipal Courts,” 983.  Yet there is no entity that collects compre­hens­ive data about them.

In recent years, muni­cipal courts have been increas­ingly scru­tin­ized for dehu­man­iz­ing and uncon­sti­tu­tional prac­tices that crim­in­al­ize race and poverty. foot­note11_7xzjhbl 11 Natapoff, “Crim­inal Muni­cipal Courts,” 985 –88.  The most notable example is Ferguson, Missouri, where an invest­ig­a­tion by the U.S. Depart­ment of Justice, follow­ing the murder of Michael Brown by police officer Darren Wilson in 2014, found that the city’s police and muni­cipal courts treated Black resid­ents “less as constitu­ents to be protec­ted than as poten­tial offend­ers and sources of revenue[.]” foot­note12_gqjq71b 12 Civil Rights Divi­sion, U.S. Depart­ment of Justice, Invest­ig­a­tion of the Ferguson Police Depart­ment, 2015, 2, https://www.justice.gov/sites/default/files/opa/press-releases/attach­ments/2015/03/04/ferguson_police _depart­ment_report.pdf. A 2017 report by the U.S. Commis­sion on Civil Rights observed that “[m]unicip­al­it­ies that rely heav­ily on revenue from fines and fees have a higher than aver­age percent­age of [Black] and Latino popu­la­tions relat­ive to the demo­graph­ics of the median muni­cip­al­ity,” and that “[m]unicip­al­it­ies target poor citizens and communit­ies of color for fines and fees.” See U.S. Commis­sion on Civil Rights, Targeted Fines and Fees Against Communit­ies of Color: Civil Rights & Consti­tu­tional Implic­a­tions, 2017, 3–4, https://www.usccr.gov/pubs/2017/Stat­utory_Enforce­ment_Report2017.pdf. Another study found that “[t]he best indic­ator that a govern­ment will levy an excess­ive amount of fines is if its citizens are Black.” Dan Kopf, “The Fining of Black Amer­ica,” Priceo­nom­ics, June 24, 2016, https://priceo­nom­ics.com/the-fining-of-black-amer­ica/.

Research oppor­tun­it­ies

  • Data collec­tion: The Bureau of Justice Stat­ist­ics (BJS) should collect data about muni­cipal courts’ case­loads, includ­ing the number and types of cases, processing time, repres­ent­a­tion by coun­sel, and outcomes.
  • The effect of judi­cial selec­tion on fees and fines levied: In some states, muni­cipal court judges are elec­ted by voters. foot­note13_fkgz5xa 13 “Meth­ods of Judi­cial Selec­tion: Limited Juris­dic­tion Courts,” National Center for State Courts, accessed April 8, 2021, http://www.judi­cialse­lec­tion.us/judi­cial_selec­tion/meth­ods/limited_juris­dic­tion_courts.cfm.  In other states, they are appoin­ted by local offi­cials, such as the mayor or city coun­cil. foot­note14_9s50d3x 14 “Meth­ods of Judi­cial Selec­tion: Limited Juris­dic­tion Courts.”  In some cases, local juris­dic­tions have discre­tion over their selec­tion meth­ods for muni­cipal court judges. foot­note15_lg8jh7z 15 “Meth­ods of Judi­cial Selec­tion: Limited Juris­dic­tion Courts.”  DOJ should study the rela­tion­ship between method of judi­cial selec­tion and the fines and fees levied by muni­cipal courts.
  • Char­ac­ter­ist­ics of muni­cipal court judges: Most states do not require muni­cipal court judges to have law degrees. foot­note16_aan4b5r 16 Natapoff, “Crim­inal Muni­cipal Courts,” 979.  Educa­tion and licens­ing require­ments can differ from one city to another. foot­note17_ytb6sqt 17 Natapoff, “Crim­inal Muni­cipal Courts,” 979.  Inform­a­tion should be collec­ted on descript­ive char­ac­ter­ist­ics of muni­cipal court judges, includ­ing demo­graphic inform­a­tion, whether the judge is a lawyer, and judges’ profes­sional back­grounds.
  • Court compli­ance tools: Courts tradi­tion­ally rely on the issu­ance of bench warrants to force compli­ance when indi­vidu­als fail to appear, fail to pay fees and fines, and fail in other ways to meet oblig­a­tions ordered by courts. Yet all too often, bench warrants are a quick path to crim­inal justice involve­ment for people in poverty, who may not be able to easily make altern­at­ive arrange­ments for work, child­care, and other family oblig­a­tions. At the same time, little research has been done on the avail­ab­il­ity and use of altern­at­ive court compli­ance tools, such as auto­mated tele­phone remind­ers for court appear­ances, easy access to altern­at­ive dispute mech­an­isms for tick­ets, summonses that do not require a court appear­ance, and altern­at­ives to payment without going before a judge to obtain a find­ing of inab­il­ity to pay.
  • Identify/quantify where court revenue goes: Although “[m]unicipal courts are the primary insti­tu­tion through which cities collect crim­inal and traffic fines and fees,” foot­note18_9ia0jbk 18 Natapoff, “Crim­inal Muni­cipal Courts,” 982–83.  Professor Natapoff has docu­mented substan­tial chal­lenges in identi­fy­ing how much these courts collect each year. foot­note19_0ijkgql 19 The U.S. Census Bureau also collects “fines and forfeits” data from muni­cip­al­it­ies; however, that data includes revenue collec­ted by states and counties, not just muni­cip­al­it­ies. Natapoff, “Crim­inal Muni­cipal Courts,” 982–83.  NIJ should fund research that invest­ig­ates the type of fees and fines levied, the amount assessed, the amount collec­ted, and the destin­a­tion of court revenue.

Diver­sion

Diver­sion has been a long-stand­ing tool for prosec­utors and the courts to limit unne­ces­sary crim­inal justice involve­ment for indi­vidu­als who are charged with crimes as a result of under­ly­ing prob­lems — often relat­ing to mental health and substance abuse issues. foot­note20_o3aj­wob 20 Center for Health & Justice at TASC, No Entry: A National Survey of Crim­inal Justice Diver­sion Programs and Initi­at­ives, 2013, 1, 11, https://www.center­forhealthand­justice.org/tascb­log/Images/docu­ments/Public­a­tions/CHJ%20Di­ver­sion %20Re­port_web.pdf.  Through diver­sion, judges and prosec­utors can place indi­vidu­als, most often those charged with nonvi­ol­ent offenses, in program­ming and services with the long-term goal of break­ing the cycle of crim­in­al­iz­a­tion and address­ing the root prob­lem of minor crimes.

As a part of his plat­form to end the misdir­ec­ted “war on drugs,” Pres­id­ent Biden prom­ised to require federal courts to divert all those incar­cer­ated for drug use alone to drug courts and treat­ment, and incentiv­ize states to do the same. foot­note21_6co7p8g 21 “The Biden Plan for Strength­en­ing Amer­ica’s Commit­ment to Justice,” JoeBiden.com, accessed Febru­ary 2, 2021, https://joebiden.com/Justice/.  He assured that he would expand fund­ing for drug court at the federal, state, and local level, as well as other altern­at­ives to deten­tion courts, such as veter­ans and youth­ful offender courts. foot­note22_kbrrx29 22 “The Biden Plan for Strength­en­ing Amer­ica’s Commit­ment to Justice.” With greater inform­a­tion on the preval­ence, cost, and types of diver­sion programs, states and local­it­ies can imple­ment policies that maxim­ize the posit­ive effects of this prac­tice.

Research Oppor­tun­it­ies

  • Cost of Diver­sion: In recog­ni­tion of the coun­ter­pro­duct­ive and harm­ful impacts of crim­inal justice involve­ment, local­it­ies across the coun­try are increas­ingly divert­ing indi­vidu­als away from the crim­inal legal system and towards appro­pri­ate services. foot­note23_9mcuky7 23 “Diver­sion and Altern­at­ives to Incar­cer­a­tion,” Fair and Just Prosec­u­tion, accessed Febru­ary 3, 2021, https://fair­and­just­pro­sec­u­tion.org/issues/diver­sion-and-altern­at­ives-to-incar­cer­a­tion/.  Not only has diver­sion produced cost savings, but it has also shown to reduce recidiv­ism in the long term. foot­note24_hczndil 24 No Entry: A National Survey, 17.  However, many indi­vidu­als are locked out of diver­sion programs due to the inab­il­ity to pay for program fees. foot­note25_85kjysq 25 Amer­ican Bar Asso­ci­ation Work­ing Group on Build­ing Public Trust in the Amer­ican Justice System, Privat­iz­a­tion of Services in the Crim­inal Justice System, 2020, 11, https://www.amer­ic­an­bar.org/content/dam/aba/admin­is­trat­ive/legal_aid_ indi­gent_defend­ants/ls-sclaid-def-aba-privat­izaton-report-final-june-2020.pdf.  Any eval­u­ation of diver­sion programs across the coun­try should consider
    1. the number of indi­vidu­als locked out of diver­sion programs (either private or publicly run) due to an inab­il­ity to pay, as well as demo­graphic inform­a­tion about such indi­vidu­als;
    2. the comple­tion rates for free diver­sion programs versus those that charge parti­cipants;
    3. the racial and ethnic demo­graph­ics of indi­vidu­als in diver­sion program­ming;
    4. what sources of fund­ing communit­ies draw on for diver­sion-related mental health, substance use disorder, and other services; and
    5. how to best organ­ize the provi­sion of diver­sion-related services to ensure optimal cost-effect­ive­ness with outcomes that minim­ize subsequent contact with the crim­inal justice system.
  • Gender and Diver­sion: While some diver­sion programs focus on moth­ers and primary care­takes of young chil­dren, foot­note26_l76s768 26 See Rebecca Beitsch, “How Divert­ing Moth­ers from Prison May Break the Cycle of Incar­cer­a­tion,” PBS News­Hour, Septem­ber 14, 2017, https://www.pbs.org/news­hour/nation/divert­ing-moth­ers-prison-may-break-cycle-incar­cer­a­tion. diver­sion programs are gener­ally designed with men in mind, consist­ent with the false assump­tion that crim­inal legal prob­lems primar­ily apply to men. foot­note27_rg7tat7 27 See Eliza­beth Swavola et al., Over­looked: Women and Jails in an Era of Reform, Vera Insti­tute of Justice, 2016, 29–31, https://www.vera.org/public­a­tions/over­looked-women-and-jails-report.  The Biden campaign specific­ally noted the import­ance of diver­sion initi­at­ives aimed at women, moth­ers, and parents gener­ally, prom­ising to “review the effic­acy of programs that allow nonvi­ol­ent offend­ers who are primary care providers for their chil­dren to serve their sentences through in-home monit­or­ing.” foot­note28_mwl19qz 28 “The Biden Plan for Strength­en­ing Amer­ica’s Commit­ment to Justice.”  More needs to be known about the rela­tion­ship between gender and diver­sion programs, includ­ing
    1. the gender break­downs of formal diver­sion programs and informal diver­sion strategies, and the partic­u­lar impacts of these altern­at­ives on women;
    2. the success of exist­ing programs in support­ing justice-involved women in being primary care­takers, as well as the ways that gender-respons­ive program­ming could be designed for non-moth­ers; and
    3. the racial dispar­it­ies that exist in the design, imple­ment­a­tion, and success of diver­sion program­ming aimed at women.

Remote Tech­no­logy

Since the begin­ning of the Covid-19 pandemic, courts across the coun­try have worked rapidly to adjust their policies to continue essen­tial oper­a­tions. Many courts have turned to remote proceed­ings for a wide array of civil and crim­inal matters, includ­ing evic­tion proceed­ings, custody hear­ings, arraign­ments, proba­tion hear­ings, and bench and even jury trials. foot­note29_0n4h­c9c 29 Bren­nan Center for Justice, “Courts’ Responses to the Covid-19 Crisis,” last updated Septem­ber 10, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/courts-responses-covid-19-crisis.  While the limited use of remote tech­no­logy has been part of the legal land­scape for decades, the scope and scale of its use since March 2020 is unpre­ced­en­ted. Many court lead­ers have sugges­ted that at least some expan­sion of remote court should be made perman­ent. foot­note30_3g48ip0 30 Allie Reed and Madison Alder, “Zoom Courts Will Stick Around as Virus Forces Seis­mic Change,” Bloomberg Law, July 30, 2020, https://news.bloomber­glaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seis­mic-change.

Research oppor­tun­it­ies

  • Data collec­tion: There is a dearth of research on the impact of remote court proceed­ings on fair­ness and access to justice. A review of the exist­ing liter­at­ure suggests reas­ons for caution. foot­note31_n962231 31 Alicia Bannon and Janna Adel­stein, The Impact of Video Proceed­ings on Fair­ness and Access to Justice in Court, Bren­nan Center for Justice, 2020, 2, https://www.bren­nan­cen­ter.org/our-work/research-reports/impact-video-proceed­ings-fair­ness-and-access-justice-court.  For instance, a study of crim­inal bail hear­ings found that defend­ants whose hear­ings were conduc­ted over video had substan­tially higher bond amounts set than their in-person coun­ter­parts. foot­note32_i71lyto 32 Shari Seidman Diamond et al., “Effi­ciency and Cost: The Impact of Video­con­fer­enced Hear­ings on Bail Decisions,” Journal of Crim­inal Law and Crim­in­o­logy 100 (2010): 893, https://schol­arly­commons.law.north­west­ern.edu/cgi/view­con­tent.cgi?article= 7365&context=jclc.  Another study of immig­ra­tion courts found that detained indi­vidu­als were more likely to be depor­ted when their hear­ings occurred over video confer­ence rather than in person. foot­note33_ykig­mjt 33 Ingrid V. Eagly, “Remote Adju­dic­a­tion in Immig­ra­tion,” North­west­ern Univer­sity Law Review 109 (2015): 933–934, https://schol­arly­commons.law.north­west­ern.edu/cgi/view­con­tent.cgi?article=1217&context=nulr.  BJS should collect compar­at­ive data across time, type of proceed­ing, and juris­dic­tion that records
    1. default rates, time to case resol­u­tion, outcomes, and repres­ent­a­tion by coun­sel in in-person and remote proceed­ings; and
    2. the type of tech­no­logy used, the type of proceed­ings for which remote tech­no­logy is permit­ted, and the number of remote proceed­ings by category of case for those juris­dic­tions in which remote tech­no­logy is used.
  • User exper­i­ence surveys: The exper­i­ence of remote court may vary substan­tially depend­ing upon, among other things, the nature of the proceed­ing and the abil­ity of parti­cipants to comfort­ably access and use remote tech­no­logy. In order to fully under­stand the impact of remote court, it is crit­ical to hear from a wide array of court users. DOJ should invest­ig­ate how litig­ants (includ­ing self-repres­en­ted litig­ants), attor­neys (includ­ing legal services attor­neys and public defend­ers), judges, court admin­is­trat­ors, witnesses, jurors, and other stake­hold­ers, across a wide range of proceed­ings, have exper­i­enced the trans­ition to remote court. Prior­ity should be placed on gath­er­ing inform­a­tion on
    1. the remote plat­form and devices that were used, the tech­nical support avail­able, and whether there were any tech­no­lo­gical diffi­culties exper­i­enced due to device issues or lack of inter­net access;
    2. the accom­mod­a­tions made for indi­vidu­als who lacked a device or were uncom­fort­able parti­cip­at­ing remotely;
    3. provi­sions for public access;
    4. process-related issues around access­ing the proceed­ing remotely, intro­du­cing or view­ing evid­ence, or sens­it­ive inform­a­tion being disclosed;
    5. perceived chal­lenges with assess­ing witnesses’ cred­ib­il­ity;
    6. perceived chal­lenges with main­tain­ing courtroom order;
    7. mech­an­isms for attor­ney-client commu­nic­a­tion, includ­ing any issues with preserving confid­en­ti­al­ity; and
    8. the exper­i­ences of non-English speak­ers, indi­vidu­als with disab­il­it­ies, and other court users who may require accom­mod­a­tions.
  • Empir­ical research on the impact of remote proceed­ings on outcomes: As courts consider a long-term expan­sion of the use of remote tech­no­logy, it is import­ant to under­stand whether and how remote court impacts outcomes. Research should address the numer­ous categor­ies of civil and crim­inal proceed­ings that have been under­taken remotely, with partic­u­lar atten­tion to categor­ies of litig­ants who may face unique hurdles, such as indi­vidu­als who are self-repres­en­ted or detained. NIJ should gather inform­a­tion regard­ing
    1. a detailed compar­ison of the outcomes of proceed­ings conduc­ted in-person versus remotely;
    2. the treat­ment by judges of virtual and in-person proceed­ings in terms of time spent on each case and resources alloc­ated;
    3. the impact of remote proceed­ings on Black, Latino, Indi­gen­ous, and other people of color compared to their white coun­ter­parts, as well as the impact on those with disab­il­it­ies or people whose primary language is not English;
    4. the support provided to attor­neys and pro se litig­ants in adapt­ing to remote systems and tech­no­logy, in addi­tion to the effic­acy and impact of remote self-repres­en­ted litig­ant services; and
    5. the quant­ity and qual­ity of attor­ney-client inter­ac­tions in the remote envir­on­ment as compared to in-person proceed­ings.
  • Impact of digital divide: Virtual proceed­ings raise equity concerns for those who do not have adequate inter­net access and thus face barri­ers to parti­cip­at­ing in court remotely. Accord­ing to the Pew Research Center, there are substan­tial dispar­it­ies in access to broad­band inter­net and computers by income and race. foot­note34_rb6h1dn 34 Monica Ander­son and Madhu­mitha Kumar, “Digital Divide Persists Even as Lower-Income Amer­ic­ans Make Gains in Tech Adop­tion,” Pew Research Center, May 7, 2019, https://www.pewre­search.org/fact-tank/2019/05/07/digital-divide-persists-even-as-lower-income-amer­ic­ans-make-gains-in-tech-adop­tion/; and Andrew Perrin and Erica Turner, “Smart­phones Help Blacks, Hispan­ics Bridge Some — But Not All — Digital Gaps with Whites,” Pew Research Center, August 20, 2019, https://www.pewre­search.org/fact-tank/2019/08/20/smart­phones-help-blacks-hispan­ics-bridge-some-but-not-all-digital-gaps-with-whites/  Amer­ic­ans who live in rural communit­ies are also less likely to have access to broad­band inter­net. foot­note35_llyozur 35 Andrew Perrin, “Digital Gap Between Rural and Nonrural Amer­ica Persists,” Pew Research Center, May 31, 2019, https://www.pewre­search.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonrural-amer­ica-persists/.  The same is true for people with disab­il­it­ies, who may also require special tech­no­logy to engage in online activ­it­ies such as remote court proceed­ings. foot­note36_ecluk6g 36 Monica Ander­son and Andrew Perrin, “Disabled Amer­ic­ans are Less Likely to Use Tech­no­logy,” Pew Research Center, April 7, 2017, https://www.pewre­search.org/fact-tank/2017/04/07/disabled-amer­ic­ans-are-less-likely-to-use-tech­no­logy/.  NIJ should invest­ig­ate these dispar­it­ies, includ­ing
    1. the number of litig­ants and indi­vidu­als called to jury duty who do not have access to adequate inter­net or tech­no­logy to parti­cip­ate in virtual court;
    2. the finan­cial hurdles to parti­cip­at­ing remotely due to limited data plans or similar constraints, as well as the tech­no­lo­gical hurdles that impact parti­cip­a­tion;
    3. the accom­mod­a­tions being made for those without access to adequate tech­no­logy or inter­net; and
    4. any juris­dic­tional plans to increase digital access­ib­il­ity during ongo­ing virtual sessions or after courts reopen for in-person proceed­ings.

Diversity on the Bench

Judi­cial diversity, includ­ing racial, ethnic, gender, and profes­sional diversity, is crit­ical for ensur­ing public confid­ence in the courts and enrich­ing the judi­cial decision-making process and future devel­op­ment of the law. Exist­ing research illus­trates a lack of diversity on state and federal courts across the coun­try. foot­note37_9f4qeaq 37 See Laila Robbins and Alicia Bannon, State Supreme Court Diversity, Bren­nan Center for Justice, 2019, https://www.bren­nan­cen­ter.org/sites/default/files/2019–08/Report_State_Supreme_Court_Diversity.pdf; Tracey E. George and Albert H. Yoon, The Gavel Gap: Who Sits in Judg­ment on State Courts?, Amer­ican Consti­tu­tion Soci­ety, 2018, https://www.acslaw.org/analysis/reports/gavel-gap/; and “Diversity of the Federal Bench: Current Stat­ist­ics on the Gender and Racial Diversity of the Article III Courts,” Amer­ican Consti­tu­tion Soci­ety, last accessed April 8, 2021, https://www.acslaw.org/judi­cial-nomin­a­tions/diversity-of-the-federal-bench/. For example, a 2021 study by the Bren­nan Center found that 22 states have an all-white state supreme court bench, includ­ing 11 states where people of color are at least 20 percent of the popu­la­tion. foot­note38_lx0q1bt 38 Alicia Bannon and Janna Adel­stein, “State Supreme Court Diversity — April 2021 Update,” Bren­nan Center for Justice, April 19, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/state-supreme-court-diversity-april-2021-update.

Under­stand­ing the demo­graphic and profes­sional compos­i­tion of the bench is crit­ical for public account­ab­il­ity. It can also help inform efforts to enhance judi­cial diversity by indic­at­ing where the judi­cial “pipeline” may be inac­cess­ible. And it can be a build­ing block for schol­ar­ship on how judges reach the bench, how litig­ants exper­i­ence the courtroom, and how varied exper­i­en­tial back­grounds affect judi­cial decision-making.

Research oppor­tun­it­ies

  • Data collec­tion: There is surpris­ingly little publicly avail­able inform­a­tion about the demo­graph­ics or profes­sional exper­i­ence of judges. While the Federal Judi­cial Center publishes data for Article III judges, there is an absence of public inform­a­tion about other judges within the federal system, such as magis­trate and bank­ruptcy judges. Publicly avail­able data is simil­arly lack­ing for most state courts. foot­note39_k63i­aqw 39 Yuvraj Joshi, Diversity Counts: Why States Should Meas­ure the Diversity of Their Judges and How They Can Do It, Lambda Legal and Amer­ican Consti­tu­tion Soci­ety, 2017, 10, https://www.lambdalegal.org/diversity-counts  There is also a lack of published demo­graphic inform­a­tion about court staff, includ­ing law clerks. NIJ should soli­cit and publish demo­graphic inform­a­tion and profes­sional back­ground for state court judges at every court level, as well as Article I federal judges and law clerks work­ing in state and federal courts.
  • Research on path­ways to the bench: One of the hurdles to achiev­ing greater judi­cial diversity is a lack of under­stand­ing about path­ways to the bench and the chal­lenges faced by indi­vidu­als from under­rep­res­en­ted back­grounds. DOJ should produce research regard­ing
    1. the impact of diverse member­ship on judi­cial nomin­at­ing commis­sions or vetting commit­tees on diversity of judi­cial nomin­ees;
    2. the impact of elec­ted as compared to appoint­ive systems with respect to racial, ethnic, gender, and profes­sional diversity on the bench; and
    3. the effect­ive­ness of exist­ing innov­at­ive recruit­ment and “pipeline” build­ing programs.

Acknow­ledg­ments

The authors are grate­ful to Lisa Foster and Joanna Weiss, who direct the Fees and Fines Justice Center, for their feed­back on this report, along with Michael Crow­ley, Adam Gelb, Thomas Abt, Brandon Garrett, Allison Hast­ings, Cameron Kimble, Taryn Merkl, Ames Grawert, Ram Subramanian, and Justin Charles for their guid­ance on this project.

End Notes