As Americans seek a return to some modicum of normalcy, when it comes to criminal justice, we must not be the handcuffed to the past. Much of that past was abnormal, especially in view of new possibilities.
Not only does the United States have a fifth of the world’s population compared to 25 percent of its prisoners, we have often failed to prioritize limited resources for public safety. For example, in Michigan, a task force on reforming jails found the third-largest source of bookings was the offense of driving with a suspended license—and many of these suspensions stemmed from unpaid fines that are not related to dangerous driving.
Fortunately, necessity is the mother of invention, and the coronavirus crisis led to many changes in practices. These include the proliferation of alternatives to arrest, virtual check-ins for pretrial defendants and people on community supervision, and video hearings. As America reopens, justice systems need not reflexively return to anachronistic practices. Instead, they must leverage this opportunity to transition to a leaner and nimbler approach.
For example, many jurisdictions curtailed enforcing outstanding warrants in April and May, but are now beginning to restart this machinery. Instead of returning to an automatic process that means anyone pulled over with a warrant will be arrested and jailed, this is a chance to set priorities. Some of these hundreds of thousands of warrants are for unpaid fines and fees or for offenses ranging from routine traffic violations to jaywalking to not having a dog license.
These outstanding warrants can go back many years, and when they are executed, a person’s car is often impounded. In addition to focusing resources on executing warrants for serious offenses, jurisdictions should offer opportunities, including by video, for voluntarily clearing these warrants. In Arkansas, this was done in 2020 as a “Love Court” for Valentine’s day, but it shouldn’t be limited to a single occasion.
Similarly, jurisdictions must rethink their reliance on in-person reporting for many people who report to a pretrial services officer, probation officer, or parole officer. During this crisis, many agencies adopted recommendations in the Safer Plan and Safer Supervision Plan embraced by advocacy groups across the ideological spectrum, such as virtual check-ins and hearings.
For example, using virtual hearings, Michigan had a failure-to-appear rate of 0.5 percent in April of this year compared with 10.7 percent in April of 2019. Similarly, in New Jersey superior courts, the failure-to-appear rate fell to 0.3 percent beginning in the middle of March when hearings shifted online. This compares with the prior rate of 20 percent.
While these statistics are stark, they align with research showing that most people who miss hearings do so because of obstacles such as a lack of transportation, the inability to take time off, or lack of child care. Indeed, a Utah study also found that of those defendants who missed in-person court hearings while out on bail, 89 percent appeared within three months, therefore not becoming fugitives from justice.
These findings carry significant implications for both pretrial justice and community supervision. In pretrial justice, many routine hearings can be held remotely, but also with absconding being relatively rare, the primary reason to overcome the constitutional presumption of release prior to trial should be a significant risk that the defendant will be arrested again for a serious offense.
When it comes to probation and parole—systems that supervise 4.5 million Americans—many individuals can be supervised remotely with only rare in-person visits, a tenet of the new Pew Charitable Trusts framework for modernizing supervision. Using actuarial risk and needs assessments, supervision agencies can identify those who fall into this category.
Even for those on probation and parole who need in-person contacts, no one ever claimed sitting in a waiting room reduced recidivism. Back in 2013, Georgia transitioned from parole offices to a mobile model where officers used a combination of technology and meeting with those they supervise in their own homes. They found this led to more face-to-face time and better results.
A smaller and smarter criminal justice system can emerge from the wreckage of the coronavirus, but it requires new thinking before returning to old ways.
Marc Levin, Esq. is Chief of Policy & Innovation for Right on Crime (www.rightoncrime.com), an initiative of the Texas Public Policy Foundation. Follow @RightonCrime and @MarcALevin.