Category: Issue 2

Designing for Justice: Pandemic Lessons for Criminal Courts

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all the key players in decision-making. This Article suggests that the criminal courts would have been better able to manage the decision-making process if they had been using Dispute System Design (DSD). DSD is a collaborative, inclusive process that would have given the courts an established process for decision making which could have assisted criminal courts to better adapt to new and changing circumstances and to keep a focus on justice in the decision-making process.

This Article argues that the use of Continuity of Operation Plans (“COOP”), as a planning tool, may have reinforced the lack of collaboration in federal and state courts, and reinforced the failure to consider the impact that operational changes may have had on justice. This Article gives examples of a variety of changes that the criminal courts adopted to conduct necessary court processes and questions whether the process for decision-making negatively impacted the system’s ability to adapt to the changes COVID-19 demanded. Finally, this Article offers lessons that courts can use from this unparalleled time. This Article proposes that criminal courts adopt Dispute System Design processes as a regular part of their planning which would facilitate inclusive justice focused decision-making in future crises that will undoubtedly also require operational changes.

Remote Justice & Domestic Violence: Process Pluralism Lessons from the Pandemic

Domestic violence procedures, like so many court processes around the world, were forced to go online and remote during the pandemic. The impact was dramatic—there were fewer restraining order petitions filed in the first place and an even lower amount granted. In short, domestic violence survivors, among the most vulnerable in our court system, were even more challenged in the last two years. Like many court systems, Milwaukee will never go back to being fully in-person for all procedures in conjunction with domestic violence. The evolving hybrid choices could provide additional access to justice, or these processes could create additional barriers to successful filing of restraining orders in court and accessing needed social services for survivors.

Interestingly, the shift to remote and online processes has been successful and effective in other contexts. How can we explain the difference? Using the lens of process pluralism, this Article addresses four key factors: (1) context—recognizing that domestic violence survivors are a unique set of court clients and present specific challenges; (2) process plurality—the use of different and hybrid technological options considering party access to technology and advocate support, synchronous versus asynchronous modes, efficiency, and benefits versus costs of video/face to face interactions; (3) imagination—the need to evolve and create new process options to meet the concerns of particular contexts and courts; and (4) justice—ensuring that processes are both procedurally and substantively just, providing voice, legitimacy and fair outcomes to participants. In conjunction with empirical research conducted on survivors and service providers in the Milwaukee County area during the pandemic, this Article will review each of these principles and outline crucial next steps for the court to protect the most vulnerable.

Blinding Justice and Video Conferencing?

This Article discusses how to blind justice and reduce racial justice inequities when conducting dispute resolution processes for civil matters via video conferencing. The sheer volume of cases conducted via video conferencing during the pandemic provides an opportunity to begin examining this prescient issue. Post-pandemic, video conferencing remains a preferred mode of conducting dispute resolution processes for some dispute resolution cases because of its time and cost-saving benefits. This Article explores how we might we build on what we have learned to yield equitable justice outcomes.

This Article focusses on three major racial justice equity issues magnified by video conferencing: remediating the digital divide; addressing the implicit racial biases that are exacerbated by video conferencing; and responding to Black participants’ procedural justice concerns when dispute resolution processes when video conferencing traverse the public/private divide. This Article culls from the emerging research and discussions about the intersectionality of video conferencing and implicit racial bias observed in virtual court hearings, interviews, and anecdotally during the Covid pivot.

Online Mediation and the Opportunity to Rethink Safety in Mediation

The pandemic and the rapid shift to online mediation affords practitioners and policy-makers an opportunity to revisit our codes of conduct for mediators in earnest. In particular, the ABA Model Standards of Conduct for Mediators are due for a reassessment in light of their many decades of service to the mediation community. The use of online mediation presents unique concerns in the area of safety, and addressing those concerns should lead to a broader discussion of mediators’ obligations to provide a safe process for participants. While there has been much discussion around adopting new standards for Online Dispute Resolution (“ODR”) which helps inform mediator obligations in areas like data security, mediators also need to be mindful of and help participants prepare for their own physical safety during an online mediation. This Article endorses an expansive approach to safety in mediation, arguing that in online settings mediators must be mindful of data security while also taking into account the physical and emotional safety needs of parties participating remotely in a mediation.

Zoom Jury Trials: The Inability to Physically Confront Witnesses Violates a Criminal Defendant’s Right to Confrontation

The COVID-19 pandemic forever changed the United States’ justice system. During the pandemic, courts across the country rapidly incorporated remote technology into the courtroom as a way to keep the justice system moving. Incorporating remote technology in the courtroom, however, has put criminal defendants’ Six Amendment right to confrontation at risk. This Article argues that Zoom jury trials in the criminal justice system are unconstitutional and infringe on a criminal defendant’s right to confrontation. This Article analyzes years of Supreme Court precedent, as well as conflicting decisions out of the United States Circuit Courts of Appeal, to assess the constitutionality of a fully remote criminal jury trial, a topic on which there has been little scholarly discussion.

This Article highlights three main concerns with introducing Zoom as a permanent feature of our criminal justice system including issues with reliability, non-verbal communication, and witness credibility.