Here to stay?: Measures implemented during pandemic could become commonplace in court system

Here to stay?: Measures implemented during pandemic could become commonplace in court system

From the Las Vegas Optic

As cases of the coronavirus began spreading across the country in early 2020, San Miguel County officials were busy making preparations, anticipating that the virus would spread to New Mexico, and to the county. New Mexico reported its first case March 11, 2020. Eight days later, San Miguel County reported its first case.

While health officials continued to learn about the new virus, one thing widely known was that it could spread quickly in congregant settings, like jails. In the weeks that followed, officials took steps to reduce the number of inmates at the San Miguel County Detention Center, and to eliminate many in-person court proceedings. Now, as the state emerges from the pandemic and a challenging 14 months, it appears some of the measures implemented in the judicial system may become standard practice.


Reducing incarcerations

During the two-week period of March 11, 2019, to March 25, 2019, the San Miguel County Detention Center had 92 criminal bookings. During the same two-week period in 2020, only 29 people were booked into the jail, a 68 percent decrease, according to data compiled by the Optic.

This was part of a concerted effort by local officials to reduce the chances of a major coronavirus outbreak at the jail. This was accomplished, in part, by simply booking fewer people into the jail.

Throughout the pandemic, many people accused of committing nonviolent crimes were issued a summons instead of being taken to jail. This is a bit of a deviation for courts and jails. Typically, when someone is charged with a crime, they are booked into jail while they await a first appearance before a judge.

According to defense attorney Brett Phelps, during that court hearing, the judge will decide if the person should be held in jail while their case proceeds through the court system, or if they can be released instead.

“What they analyze now is two factors: One, ensure the person shows up to court and two, will it provide reasonable protection to the community,” Phelps said.

In cases of a violent crime, like murder, Phelps said prosecutors are likely to file a motion to have the person held in jail until trial to help ensure the safety of the community. However, in most cases involving nonviolent crimes, the judge will assess the defendant’s ties to the community, and review any previous cases of failing to appear in court. If it seems likely they’ll make it to future scheduled court hearings, the person will typically be released, either on bond, or on their own recognizance.

Issuing a summons avoids this process. If prosecutors or a judge feel the person accused of a crime isn’t a danger to the community, and is likely to show up for scheduled court dates, a summons can be issued instead of incarcerating the person. If, however, the person fails to make it to their scheduled court date, they’ll face fines and potential jail time.

It’s a process Phelps says reduces the disruption to the lives of those charged with a crime, and it allows them to better prepare their legal defense while continuing to work or care for family.

“Even if you’re in jail for just two or three days, that can be enough to lose your job,” Phelps said. “Keeping people in work, keeping people able to take care of their kids is going to lead to a lot safer communities than sending people to jail for a few days when they’re going to be released anyway.”

Fourth Judicial District Attorney Tom Clayton said the practice of issuing a summons for nonviolent offenders is something he supports, and notes that it is something his office was doing even before the pandemic began.

“This was actually part of a movement that was taking place pre-pandemic,” Clayton said. “So we were already moving in that direction, but the pandemic created much more of a sense of needing to limit who’s in the detention center.”

According to data collected by the Prison Policy Initiative, a nonprofit research and advocacy group, 74 percent of those held nationwide in local jails haven’t been convicted. Some are held after arrest because a judge questions if they’ll show up for court, and many others are being held merely because they cannot afford their bond, or cannot arrange to have someone pay it for them.

PPI and other advocates point to summoning as a way to reduce the numbers of those stuck in jails because they are unable to make bond; however, summoning is not the only thing that can help keep jail populations lowered. Judges have the discretion to issue a variety of house arrest stipulations for people awaiting trial or other court hearings.

Judges can stipulate when a defendant is allowed to leave home — for things like a job — and can even order them to wear a GPS monitoring device.

“We must all recognize and fully appreciate that an individual that is charged is not the same as an individual convicted,” Clayton said. “There are ways for us to ensure public safety but still recognize the constitutional right that an individual is presumed innocent.”

Video hearings

The pandemic also forced the court system to change normal operations and to adapt new technologies. Throughout the pandemic, local and state restrictions on gatherings changed often and at times restricted how many people could be in a courtroom. The New Mexico Supreme Court even suspended jury trials in district courts for several weeks to help reduce the spread of the virus.

The inability to gather groups of people in a courtroom led to courts adopting video conferencing technologies as a way to continue holding hearings, something that might become a regular part of court, even after the pandemic.

According to Barry Massey, a spokesman for New Mexico Courts, discussions about making video hearings a permanent practice are happening, but he said these discussions are in the early stages.

Clayton said he would like to see virtual hearings continue, at least for certain types of criminal hearings. He sees it as a convenience for defendants, and for attorneys.

The Fourth Judicial District spans three counties and a lot of rural communities. Virtual hearings make it easier for prosecutors from his office to attend more hearings, and it allows for defendants to attend a hearing from anywhere that has an internet connection. This makes it especially easy for defendants who don’t live in the district, or even in the state.

Phelps too would like to see virtual hearings become standard, and while he agrees that not every hearing is well suited for video, he said many hearings should be held virtually because of how easy it makes it for those scheduled to appear.

For many basic hearings — the kind Phelps would like to see continue virtually — appearances are generally very brief. Many hearings last fewer than five minutes. Someone appearing in person may have to miss a full day of work in order to make that quick appearance, but when they can attend virtually, many times it can be done without leaving work.

Because of the convenience offered by virtual hearings, it can result in fewer instances of people failing to appear for scheduled hearings, too.

While neither the DA’s office nor New Mexico Courts have been collecting failure to appear data specific to New Mexico, Massey did share data collected by the nonprofit National Center for State Courts. NCSC found that in many states, instances of failing to appear has dropped drastically since the start of virtual hearings.

NCSC found that in North Dakota, nearly 100 percent of those scheduled for criminal warrant hearings made it to court, compared to about 80 percent before virtual hearings were implemented. In New Jersey, before virtual hearings, some 20 percent of cases resulted in a failure to appear. Since virtual hearings began, that number plummeted to 0.3 percent. Michigan saw similar results, with failure-to-appear rates falling from 10.7 percent in April 2019, to 0.5 percent in April 2020.

“This pandemic kind of forced our hand, so to speak. It made us go through some growing pains,” Clayton said. “I believe the technology will have a lot of room for continued use though.”