Criminal court backlogs delay trials while defendants spend longer in jail

In many federal and state criminal courts, pandemic delays have created or worsened case backlogs, some of which could take years to address.

Many courts suspended jury trials at different points during the pandemic, most recently during the omicron wave that peaked in January.

Since 2020, cases have taken longer to resolve, and fewer have gone to trial.

Before trial, defendants are spending more time in jail, a setting where covid-19 remains contagious.

The ongoing strain on the court system has led some defense attorneys to question if they can adequately prepare cases for trial and if those trials can go forward without violating their clients’ constitutional rights.

How delays affect trials

In January, the omicron wave led federal courts in several states to postpone jury trials. Martín Sabelli, a San Francisco-based attorney and president of the National Association of Criminal Defense Lawyers, said it’s difficult to get trial dates for most federal cases. After a trial is scheduled, it could still be pushed back.

Sabelli said the pandemic has made it more difficult for defense attorneys to speak with witnesses, who may be reluctant to talk to people they don’t know. Using records to investigate cases has taken longer because offices have been understaffed or had their own delays.

Expert witnesses, who testify on their professional analysis of a case during trial, have been less willing to travel and have sometimes been blocked from meeting with Sabelli’s incarcerated clients.

“It’s very difficult to get an expert witness into a county jail or a state prison to evaluate people,” he said. “Those places are constantly under lockdown because of covid, so I’ve had experts fly across the country to do a mental health evaluation, spend a day and a half traveling and then not be allowed in.”

During the pandemic, some jails haven’t allowed attorneys to meet face to face with incarcerated clients, and the alternatives aren’t always private.

For Sabelli and other defense attorneys, one of the biggest challenges has been forming relationships with clients who are in custody.

“You can’t have a world in which you pretend trials are fair, just and constitutional if it’s premised on a world that doesn’t allow constitutionally-necessary investigations and (building) relationships with clients,” he said.

In Milwaukee County, Wisconsin, the circuit court has about 1,700 pending felony cases. The court is considering holding sessions at night to deal with the backlog.

Other courts across the state have backlogs that could take at least two years to get through, said Adam Plotkin, a lobbyist for the Wisconsin State Public Defenders Office.

“From our point of view, the biggest concern is that just trying to move cases in the sake of efficiency isn’t what the criminal justice system was intended to do,” he said. “People have rights, and they need to be protected.”

In some courts, pandemic policy changes have been temporary

To cope with case backlogs during the pandemic, courts have prioritized which cases go to trial and used video services like Zoom to move cases forward.

Communities also shifted some policies to reduce the number of people held in jails, which indirectly helped case backlogs. Some prosecutors have filed fewer charges or offered improved plea deals.

Some judges have issued fewer or less expensive cash bonds for low-level felonies and misdemeanors, allowing defendants to stay out of custody leading up to their trial.

“Part of the question … is how many of these temporary changes are going to become permanent, and what we’re seeing is it’s a court-by-court, judge-by-judge, case-by-case situation,” said Bill Raftery, a senior analyst for the National Center for State Courts.

During the beginning of the pandemic, Wisconsin courts shifted from cash bonds to signature bonds, which allow defendants to leave custody without posting money.

“We’ve seen communities run back to cash bail in the last few months, so any feeling like the pandemic maybe showed us what it could be like to reduce the pre-trial jail population seems, for the most part, to have gone away,” Plotkin said.

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How speedy is a speedy trial?

According to landmark research from the National Center for State Courts based on court data from 21 states, the average felony case takes 256 days from start to finish. None of the courts studied met the center’s time standards for resolving cases, which recommend courts resolve 90% of felony cases within 180 days.

The Sixth Amendment guarantees the right to a speedy trial, but the bar for violating that right is high.

In 1972, the Supreme Court set the standards for determining if a speedy trial violation has taken place. Courts must take into account the length and reason for the delay, if it negatively impacted the defendant’s case and if the defendant demanded a speedy trial.

Federal courts allow judges to dismiss indictments if a trial doesn’t take place in within 70 days. States set similar rules, some of which have been put aside during the pandemic.

In Kansas, cases that haven’t gone to trial within 150 days of arraignment can usually be dismissed, but last year, Gov. Laura Kelly signed into law a measure that will put that rule on hold until May 2023.

One way to reduce backlogs is case management, the systems used to advance cases through the court. Courts can assign administrative support staff to track court data, like the age of pending cases and the longest-running cases, and share that information with judges so they can decide how to move the most pressing cases forward.

Case management is about “how can we managerially and administratively address these issues,” Raftery said. “It has nothing to do with the pandemic, although the pandemic threw these issues into sharp relief.”

Previous research from the National Center for State Courts pointed out that court reform, including efforts to meet time standards and adopt case management techniques, is deeply connected to court culture.

Changing court practices is much easier with a supportive culture, the researchers concluded, writing: “Reforms need to bond with cultural values to stand a chance of influencing court performance.”

Contact BigIfTrue.org editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Twitter.

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