By Kristen Arnold, J.D. candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
In 2020, the COVID-19 pandemic swept the globe, leading to efforts to quell transmission through stay-at-home orders and social distancing efforts. This frenzy ground state and federal courts to a halt, pausing trials and expanding pretrial releases. The result was longer pretrial periods and more defendants who could miss their court dates. The civil system suffered similar challenges as longer pretrial periods challenged litigants’ capacity to attend court hearings. Advocates began to push for solutions as it became clear that the pandemic was going to continue to have devastating consequences on the population. One attempted solution was to transition both civil and criminal court dates from in person to online through Zoom or an alternative teleconferencing platform. With the increasing ease of making court appearances online for those with adequate internet access, one has to wonder: what effect does the shift from in-person to online Zoom court appearances have on failure to appear rates?
Frequency and Consequences
Failing to appear (FTA) can have devastating consequences for both criminal and civil litigants. For both, penalties vary by state but can include fines, suspended licenses, incarceration, and/or additional charges. In 2019, for criminal cases, the nationwide FTA rate was about 1% and – given pre-pandemic criminal case loads – that represented over 100,000 missed court appearances. More granular data suggests a larger problem. In 75 of the largest urban counties in the U.S., around 25% of those charged with felonies missed a court appearance. For low-level offenses in New York City, researchers found that 40% of people failed to appear for court.
In civil cases, failing to appear can result in a default judgment against the defendant. Common reasons for failing to appear include lack of knowledge about the date, time, location, and other details of the court appearance, inability to attend due to work or childcare, distance to the courthouse, and events beyond one’s control (e.g., illness). Courts sometimes accept these reasons and vacate a default judgment or allow for rescheduling of a court date to fit within the defendant’s schedule. But courts can be unsympathetic (due to statute or otherwise) and the default judgments persist.
Research and Solutions
The consequences of missing a court date have prompted researchers to attempt to find ways to decrease FTA rates, including text notification reminders about upcoming court appearances, subsidies for travelling to the courthouse, and relocating hearings to facilities closer to home. The pandemic also gave rise to research on how Zoom court may be a solution to FTA rates. Results for shifting cases to online at the local level has been promising, with a 60% decrease in failure-to-appear rates in Alvin Municipal Court in Alvin, Texas. In areas of North Dakota, New Jersey, and Michigan, appearance rates skyrocketed to above 99% after the shift to remote proceedings (from 80, 80, and 89.3% respectively). More modest results from NSCS include decreases from 2020 to 2022 in cases with one missed appearance to 6% in Buckeye, AZ, as well as overall declines in Jefferson County, AL and Lincoln County, WA. Given the pandemic’s recency, the data has not yet been fully synthesized and explored at a national level, and it may be difficult to analyze it as data on appearance rates is “sparse.”
Although some of the data is promising, results are mixed, as other counties find that the switching to mandatory remote appearances has actually increased bench warrants for FTAs in La Crosse County, WI. Also, in Kansas City, MO, FTAs overall increased from pre and post implementation of remote proceedings. But some of these results may be due not to the imposition of online proceedings but to other access to justice problems. In “Criminal Court System Failures During Covid-19: An Empirical Study,” Professor Cynthia Alkon documented one defense attorney’s report that “[w]arrants were issued to [defendants] who didn’t appear [because] they were turned away for not having a mask. We were continually trying to find masks for our clients so they could get into the courthouse while in custody clients were brought [to court] from the jail without masks.” That said, online court proceedings can pose challenges and could lead to FTA. Critics point out that Zoom requires a stable internet connection and, according to the USDA, “22.3 percent of Americans in rural areas and 27.7 percent of Americans in tribal lands lack coverage.” With such large gaps in internet access for rural and tribal communities, remote proceedings without additional measures taken to protect under-serviced communities are inadequate.
What’s Next?
Data availability could go a long way in answering questions about where resources are needed and what the overall impact of remote proceedings has been on national failure-to-appear rates. In the meantime, given the gaping internet access issues in rural and tribal lands, the United States could engage with creative alternatives, such as universalizing remote court access programs through local facilities like public libraries (see Boston and New York’s 5th Judicial District) or “justice buses.” Mohave County, Arizona has also been providing remote court access kiosks in the highly rural Arizona strip for nearly a decade – thanks to the Mojave County Superior Court IT Staff’s $7,000 idea. Researchers could consider the efficacy and costs of establishing programs systematically across the United States. A 2007 estimate found that the cost of just one failed appearance exceeds $1,100 – based on the cost of rescheduling and locating the defendant – so benefits would clearly exceed the costs.
There are reasons to remain cautious about access to justice in the era of remote appearances, as attorneys report the inability to meet with clients properly before or answer questions during court (as there is no electronic alternative to passing sticky-notes or whispering back-and-forth). These concerns need not be prohibitive. Adequately securing “Breakout rooms” and ensuring no monitoring by government stakeholders could go a long way in maintaining access to client sidebars. No system is perfect, but early evidence on Zoom courts has shown promise, and future research can only answer more important questions and allow us to take another step toward increasing access to justice.
Ideas for Future Research
As the data relating to FTA rates in the status quo is based on observational data, and it is sparse, researchers should experiment to come to conclusions about whether Zoom court helps or hurts FTA rates. A randomized control trial (RCT) is an effective study design that has many benefits because of its prospective design that isolates an intervention, removes selection bias, and increases validity. Researchers could run an RCT comparing FTA rates and case length for cases randomized to mandatory online appearance versus randomized to mandatory in-person appearance. Their results would inform the public about if mandatory appearances either way have a positive or negative effect on FTA rates.
However, if data is available in certain jurisdictions, researchers should utilize different jurisdictions to see how their post-pandemic choices have affected FTA rates. They could compare jurisdictions that have stayed online with those that have gone back to in-person and control for all relevant factors (such as differences in caseloads, crime rates, etc.). This research would look at two groups of people who have gone through the same pandemic (which cannot be recreated in a linear analysis of pre- and post-covid) and would examine the impact of choices that government officials make.
If you’re interested in more details on this topic, listen to our Proof Over Precedent podcast episode.