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.