Empty the Jails

“COVID-19 is killing corrections officers and inmates …The states must find a way to balance public health and public safety with carefully tailored policies.” John Koufos, National Director Reentry Initiatives at Right on Crime; Op-Ed, Star-Ledger, NJ.COM, April 28, 2020; https://www.nj.com/opinion/2020/04/release-of-those-in-prison-doesnt-jeopardize-the-publics-safety.html

I enter or pass-by a Courthouse every single day. It was Monday, March 23, 2020. I drove slowly toward the Ocean County Courthouse Complex on Hooper Avenue, Toms River. I have been inside these buildings thousands of times. More than a week had passed since I was inside. I stopped my car in the little cut out designed for vehicles servicing the Courthouse – mostly used by the elevator repairman, law enforcement and TV satellite trucks. One glance at the Complex focused me on the jail. The Courthouse is empty, but the jail is fully operational. Holy smokes! You have to empty out the jail. You have to empty out the jail of all non-violent offenders, everywhere. Jails will become the hotbed of coronavirus illness. Part of the population is highly transient coming in and out on a given day. The other – inmates serving a multi-month county sentence, sitting in county jails awaiting a disposition on a serious state Court charge and the corrections staff. Sitting ducks all.

Prisons are mini hospitals. Loads of inmates have latent health conditions that, left untreated, result in serious health conditions. They are smokers, drinkers and drug addicts. Mix in a very serious, highly contagious, long incubation virus and you’ve got a spectacular virus spreading factory. Inmates will get sick and die. Asymptomatic inmates will come and go and pass the disease back into the civilian population. It will be impossible to trace the source. Jail and Court staff, corrections and law enforcement will all be exposed out of this virus spreading factory.

As I write, tens of thousands of nursing home patients have died from Coronavirus.  Nursing homes were not prepared. Nursing homes house loads of people with serious health conditions and are virus spreading factories, just like prisons.

Prisons are potentially fertile ground for the spread of the coronavirus, since social distancing is not practical, sanitary conditions are less than ideal, and medical assistance is limited. This is made all the worse by the scourge of mass incarceration, which has led to considerable overcrowding in a great many prisons.

District Court Judge, Jed S. Rakoff, Covid & the Courts, NY Times Review of Books, May 28, 2020. https://www.nybooks.com/articles/2020/05/28/covid-19-and-the-courts/

We have the technology to track people very easily. The GPS that allows you to track your children on a smartphone can be wrapped around an inmate’s ankle and allow corrections, probation and parole officers to know the exact location of many inmates at once. There is no technological reason to perpetuate the virus spreading factory. It all hit me like a ton of bricks.

As a divorce and family law practitioner, I have entered Court buildings nearly every day for the past 23 years.  The Courts are the next door neighbor to the prisons. If prisons are virus spreading factories, the Courts are at minimum, the landing zone for the factory off-gas. 

It all hit me even harder that the Ocean County Freeholders had just approved construction of a $50 million addition to the Ocean County Courthouse. Erik Larsen, APP.COM; https://www.app.com/story/news/local/ocean-county/government/2019/12/12/ocean-county-justice-complex-get-50-m-addition-2025/4407177002/ Wait a minute! After the coronavirus mania settles down, there will be no more Courts, but there will be a big black hole in the budget with pandemic preparedness magneting sucking pieces of every government agency in.

Coronavirus kills the Courts!

Coronavirus forces the Courts to operate like a normal business. Coronavirus reforms Court operations into a normal, technological, high functioning business. Regular business is handled electronically. Documents are electronically loaded and shared, telephone calls and video calls replace expensive get-togethers. There is no need to bring everyone together for routine matters. Almost all Court activity is routine. You only bring people together for the urgent and the big stuff. Big business figured this out years ago. There is a reason Berkshire Hathaway has one big annual meeting. It is an event. It is a time and place where the shareholders get together, have a voice, learn from the big bosses and share their input. It is not happening every day. Global corporations operate like this every day. Their key managers and directors may be located across the globe. When they need to make a decision, they get together electronically in complete confidentiality with only the key players participating. Hundreds of billions of dollars of business is transacted like this every single day. Surely, scheduling of a deposition or the exchange of documents or a mediation date can be handled electronically, seamlessly and without bothering a judge who has important issues to concentrate on.

If you empty out the jails because they are a petri dish today, you empty out the jails because they are a petri dish all the time.

If you empty out the jails because they are virus spreading factories, you empty out the Courts because Courts are a virus spreading factory. The main victims are the Court staff and judges who show up every day and the unwitting customers of the Court system – litigants, jurors, victims, witnesses and lawyers. Coronavirus kills the Courts!

I am a practicing lawyer. People hire me to give honest advice – this means information based upon my training and experience about the likely course of their case and likely results. I then formulate a strategy and execute that strategy. The analogy I often utilize is that the client owns a ship and picks the destination. I chart the course, manage the crew and get the ship to the port. I am the captain of the client’s ship. As a practicing lawyer my personal views or opinions are not that important to the client. I have a job to do for the client. I do not ask the client if they are Republican or Democrat or Yankee fan or Met fan. It is irrelevant to what I do for them. I serve their goals and interests regardless of my own point of view. This mindset serves me well. Having no particular “agenda”, enables cool evidence-based decision making. I could not sit idly by and watch $50 million be spent for a completely unnecessary Courthouse. 

In the United States, there are over 3,000 county and state Courthouses. There are more than 100 federal Court buildings. I have found no count of how many local municipalities have Court functions – the number is in the thousands. My humble observation is that 80% of Court time is spent on administrative functions. Managing paperwork, scheduling, getting things organized, trying to settle cases – are all important and worthy functions. These matters consume the Court staff and judge’s day. None of those functions require anyone being physically present in the Courthouse. These functions can all be done electronically, telephonically or through videoconferencing. I must stop the wasted $50 million spend and yell as loud and far as my voice can be heard – Stop It! Stop bringing people together to get them sick, to ruin their day, to force them to find childcare, to force them to take a day off from work, to force them through a metal detector, to force them to find a way to get to Court. Stop It! Coronavirus kills the Courts!

There is a risk to your author that the reader might find all of this a bit dramatic.

If you are still interested, come back and we will journey together starting with Bill Gates. On April 3, 2015, Microsoft founder and at any given time the richest person in the world Bill Gates took to the TED stage. What did Bill Gates warn us about… “not missiles but microbes.” https://www.ted.com/talks/bill_gates_the_next_outbreak_we_re_not_ready?language=en. Governments and societies that spend enormously on military defense and preparation preparedness drills and resources do so at their peril when they ignore public health crises. He laid out the case almost word for word and step-by-step describing the 2019/2020 coronavirus pandemic. A lack of preparedness, a lack of stockpile resources and a lack of drills. We do fire drills and terrorism drills in schools. It’s the law and drills create pathways in the brain. Government and society ignored the words of one of the most influential people of the last 70 years. Flat out ignored him. The guy has given away more money than anybody ever for more causes in the domains of education and public health. We all ignored Bill Gates to our great peril.

I bog down in facts and formulate an opinion only after thinking issues through, doing research and talking with other humans with superior knowledge. These are the hallmarks of a terrible politician. Having the most facts and coherent arguments can help in Court. I am not sure that it will help in matters of politics and government. Nonetheless, I write this book to help solve a huge set of problems whose solutions sit right below the surface. Read this blog, get animated and strident and force your leaders to evolve and automate. The technology is there for the taking. Implementing automation will save billions of dollars over time. Implementing the technology will serve the role of the Court as the great leveler of society and will keep healthy and safe all of the stakeholders and the administration of justice in the finest judiciary and finest and fairest justice system mankind has ever known.

Did they Close?

“The Supreme Court will be closed to the public until further notice amid the coronavirus pandemic…” Tucker Higgins, CNBC, March 12, 2020 https://www.cnbc.com/2020/03/12/supreme-court-closes-to-the-public-until-further-notice-amid-coronavirus-outbreak.html

Once the coronavirus hit, Courts closed. But did they? The initial shock of the virus literally closed Courts throughout the land. The buildings are closed. No one was in many of the buildings and filed pleadings simply went into a black hole. This did not last for long. Courts adapted and began to operate with telephone conferences, videoconferences and submission of papers through electronic filing. Court had been thrust into the digital realm. The infrastructure was half built. Coronavirus forced the Courts to build a system in the middle of the battlefield. Build a system or die.

Courts have been dying for a very long time. I served as a judicial law clerk in 1997 and started practicing in 1998. I immediately observed that you don’t need judges for probably 90% of what Courts and lawyers do. I felt that uneasy sense of being figured out. I thought it would happen after the 2008 crisis financial crisis. It did to an extent. Court filings dropped. Self represented people popped up left and right digital solutions cut out some of the low hanging lawyer and Court activities fruit. It took 22 years to figure it out but Courts have been figured out. Coronavirus sped things up dramatically. Technology has been running underneath the Court system like a river. Courts and bureaucracies are wizards at slowing change down. Court is very good at ignoring things that are happening in the rest of the world. Courts rightfully view their function and as an independent branch of the government. Courts are the stable bureaucracy with a mean and defiant streak. Courts say – we don’t get bossed around by the legislature or the governor will the president. That is a good thing. Elected officials come and go. Some elected officials try to bully the Courts. The Courts do not cave. The Courts remain. There is a sturdiness to the customs of running the Court system. In delivering fairness and justice we are owned by the Court moving slower than society.

The judiciary functions better than the executive branch and the legislative branch by thriving on precedent and tradition. The coronavirus has challenged the tradition. It has exposed the Court system to the same thing that companies in the sharing economy like a lyft and airBnB have done to their incumbent predecessors. It exposed the inefficient and chided the insipid parts of great institutions. When defiant means stable and predictable justice is delivered, that’s a good thing when stable and predictable means automation and progress is stymied change must occur. Coronavirus figured out the Courts.

As to the sharing economy, people still stay at hotels and take taxis. They just have a choice. If you’re going to a business meeting in Chicago, you stay in a business hotel. If you’re traveling with your family to Europe for a month, you get an airBnB. You have different needs and exercise your right to the correct and appropriate solution. Courts have never had competition. Courts had the power to run their system like an incumbent licensed taxicab business or the only upscale hotel in town. No choice – you do it my way. Technology and the coronavirus have cleared the way for options. Options on how people will resolve disputes and options on how the Courthouse will run.

Since the beginning of time, judges and Court staff have run the show based upon the four walls of the building and the amount of time allotted to the business day. If there was idle time experienced by the litigants, the jurors, the witnesses and the lawyers – so be it, the cost of doing business. In that way, the Courts have served the Courts versus the stakeholders in the system. Bureaucracies tend to take care of themselves. This mindset tends to create a lot of idle resources. Empty Courtrooms and idle judge time. Court staff only seem to be busy with some activity and report another. Again bureaucracies are great for loading tasks onto the workers whether the output contributes to the mission of the organization or not. In general, Courts are terrible at taking idle resources and optimizing those. Coronavirus has forced changes. Timeshifting from space to space and judge to judge waiting on one case that chews up a few hours before your case that would only take two minutes is standard fare in Courts. In an era where Court functions will be handled remotely the telephonic and video conferences, those idle resources are optimized. The stakeholders said put their staff stay put until they’re needed. Judges handle appropriate tasks and spend far less time working as a ringmaster chasing people down who are stuck in another Court or accessing the resources needed to open up the Court building. You don’t need a high level of security for a judge to conduct a telephone or videoconference.

Court Customers

The Court and legal system is set apart from society in the deployment of its own unique language. Industries tend to do that. They create customs surrounded by use of words in the English language but with different meanings and in different contexts. Sort of a foreign language. A quick note on nomenclature for this blog. I use the word litigants. It means the parties to a case plaintiff and defendant typically. I use it for the last time in this blog here. 

Litigants and the witnesses are the customers of the Courthouse. Litigants are pulled into Court to voluntarily or against their will. They don’t need to have a foreign term of thrust upon them. In Court land the term litigant can mean a litigant represented by a lawyer or the self represented litigants, pro se litigant. I will eliminate that term here. Customers are the users of the service. The Court system was created to serve its customers. Sometimes bureaucracies lose track of their purpose. The Court’s purpose is to serve its customers, the people that submit their disputes for resolution. On the criminal side the justice system is deployed to aid the victims of crimes, afford due process to those accused of crimes to serve the interests of society – more customers. Jurors are customers of the Court system as well. The people, the citizens writ large our customers of the justice system and count on the Court system to carry out aims set forth in our Constitution, statutes, regulations and case law. When the Courts treat people like customers they go from scared and bewildered intruders to welcome guests, welcome Court customers. 

Entering a heavily-guarded Court building can be intimidating. The Court security officers have a job to do. The primary goal is to keep judges, Court staff and Court customers safe. The likelihood of an armed attack is low. Courts have become very secure post 911. Courts are not soft targets. This means for the regular customer, a bundle of nerves and apprehension their first conflict of the day may begin with setting off the metal detector or failing to heed the instructions of the Court security officers. In a heightened state, the Court customer snaps back at the Court officer. the first confrontation of the day all in an attempt to show up to the right Court at the right time. None of this part of the experience has to do with the substantive aspects of your case or your reason for experiencing the Court system that day. As a Court regular, I see how a person’s experience walking into the Courthouse can shatter them for the rest of the day.

Note: This series 0f Ten (10) blog posts was planted and fertilized to grow into a short book. As with so many creative projects, this one has taken on a life of its own. The pace of change in the court systems handling of cases during the coronavirus lockdown gave me pause. If I write an authoritative and useful book, people will rely upon some of the key takeaways. It is entirely likely that by the time the reader needs to utilize those key takeaways they will be stale, incomplete or plain wrong. Hence, what was enthusiastically pursued as a book project will now be broken down into a series of substantive blog posts. I have extracted wisdom from many sources. A number of people were kind enough to speak with me, offer insights or pen important words as the court system wobbled. Enthusiastic thanks to: John Koufos, Right on Crime, http://rightoncrime.com/author/jgk/; Judge Thomas O’Brien (Ret.), Judge E David Millard (Ret.), Judge Philip Miller, Walter Luers, Esquire, Jack Arsenault, Esquire, Elise Holtzman, Esquire Lawyer’s Edge, Randall Kiser, Esquire, Ron Gaboury, CEO, Yorktel, Chris Draper, PhD, TROKT and Suzette Parmley, ALM, New Jersey Law Journal who contributed my directly helping me or upon whom I eavesdropped and now parlay shared wisdom here.

Image courtesy of https://unsplash.com/@emilianobar.