By Kenneth Tiven in Washington

An underreported aspect of the pandemic in the United States is its negative impact on almost all aspects of the judicial system. Piecing together what is available for America’s state and local courts suggests as many as five million legal cases criminal and civil have been delayed by measures to fight the pandemic. If the wheels of justice move slowly but grind finely, as the expression goes, it has gotten much worse for people at every point in the system, from advocates to judges to prisoners as well as civil litigants seeking redress.

This is extrapolated from two counties in the state of South Carolina, with a combined population of 663,000 people. The backlog is reported to be 10,000 delayed cases. Numbers like this across the 50 states suggest five million civil and criminal cases in state courts. South Carolina is not the most litigious of the 50 states. At the federal court level, there has been a greatly expanded use of technology, including temporarily authorising the use of video and teleconferencing technologies. Having more access to funding than available at the state level, it has been possible to increase bandwidth and use the latest in video technology to run the courts while still giving the public and the media access to listen.

On a per capita basis, America has more people locked up than any other nation. At 655 prisoners per 100,000 people, it contrasts with India at 35 persons per 100,000. While some US prison populations have been slightly reduced to avoid the coronavirus, this country’s disparate systems of confinement hold almost 2.3 million people. Primarily in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, and 3,134 local jails, plus immigration and other facilities. The phrase “lock ’em up” heard on the 2020 campaign trail has a chilling reality when you consider that an estimated 20 percent of people incarcerated in the USA are just awaiting trial. This problem is compounded when many state and local courts are on reduced schedules or closed except for emergency matters.

The US Supreme Court has held sessions using remote video, with the building open for official business. Public access and visitor programmes have been suspended until further notice. But live audio of one of its cases has been allowed, causing a bit of a sensation in legal and political circles. Also in a state of suspension, if not confusion as well, is the situation around graduating law students expecting to get clerkships in courts. For students who were graduating in May and June of 2020 it was a big problem and remains as such for this year’s graduates.

DuPage County, a growing suburban county to the west of Chicago, Illinois, averaged 100 jury trials a year before the pandemic, but it held just 18 before closing its courthouse a year ago. This affected traffic court and other functions in the building as well. This month, it opened a 160-metre square courtroom specially designed for social distancing and remote hearings. Lesser courtrooms were also reconfigured. This was paid for largely with federal funding allocated to the county by the CARES Act, which was the first stimulus programme in 2020. Of the total $13 million received, $6 million was spent on the courtroom upgrades and changes to jury deliberation rooms and waiting areas.

However, the key to making the building suitable was $7 million spent to replace the courthouse’s heating and eventuating (HVAC) system with one that cleans air of viruses through UV light and bipolar ionisation.

Annually an estimated 1 million visit for various reasons, including small claims court, traffic tickets, adoptions, civil unions, family court and criminal proceedings. The chief judge remarked that jury trials in a safe space are essential so that everyone can see each other lawyers, defendants, witnesses, jurors “All of those things are essential to how this system works. We are now able to recreate that cornerstone with social distancing and a safe environment.”

Throughout the nation each state has done what it feels is best. For example, Arizona authorised judges to suspend local court rules and orders if needed, and many state courts are ramping up the use of virtual tools to conduct business. Other jurisdictions have excused people over 60 years old from jury duty. Courts have to balance public safety with the rights of individuals. In cases involving evictions and awaiting trial, for example, the need for relief is immediate.

—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels

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