Sam Halpert, NALP Director of Public Service Initiatives

Hello there, interested public! It shouldn’t shock anyone at this point to learn that a lot has happened in the past week. Various authorities are either making or entertaining fundamental changes to the way the legal system functions in response to the extraordinary conditions under which we must all now live; similarly fundamental changes to related systems such as the penal system and the educational finance system are also underway.

In this digest, I’ve done my best to highlight articles and resources that describe overall trends that are beginning to emerge in the way these systems are adapting. In some instances, I haven’t been able to find resources that capture these overall trends. Where possible, NALP’s Public Service team is working on creating these materials. We hope to be able to share them with you soon. In the meantime, I will note the existence of a trend and reference a few key articles below.

I hope you all find this approach helpful. Please feel free to reach out to me and let me know if you have thoughts about how I can best keep you all informed in this period of uncertainty.

One more thing: In each section, news that is not related to the current crisis appears at the section’s end, separated from Coronavirus content with a horizontal line (—).

Stay well,

Sam

Remote Court Practice & Lawmaking

• In Above the Law, a California attorney posed a crucial question that the pandemic has forced upon the legal profession: “Is The Court a Place or a Service?” The author argues that “If one of the things we should be doing is to make legal services more affordable and more accessible, then COVID-19 may prompt, indeed, mandate changes in our thinking and delivery of those services.”

  This is the most succinct formulation of an issue with which attorneys and courts across the country are currently grappling. Many courts are developing policies related to remote appearances (and, alternatively, continuances of cases); we hope to collect these various policies into a centralized document for everyone to review sometime within the next week. For now, I will focus on sharing reports from the perspective of attorneys practicing before courts that are beginning to adapt their procedures in this way.

  In related news:

  • In The Washington Examiner, the VP of Criminal Justice at the Texas Public Policy Foundation argued that “this is [] a good time to assess the extent to which all hearings must be held in-person. Defendants have a sacrosanct constitutional right to confront their accuser at trial, but trials are very rare in the modern criminal justice system. Many court hearings are status conferences that could be handled through commonplace virtual meeting applications.”
  • JDSupra argued that “ ‘Social distancing’ is now a public health imperative everywhere, and it’s clear that remote computing technology will play a large role in providing both business continuity and health safety within the legal community over the next few weeks and months.”
  • In Texas, a criminal defense lawyer observed that on Law.com that “Normal for me involves a lot of wasted time. At least once a week I drive an hour in traffic (each way) to sit through a calendar that takes a judge an hour to call, just to say, “not guilty.” That’s three hours to speak for three seconds…This pandemic has been an expensive lesson in [how] arraignment calendars need to give way to a system that spares judges, prosecutors, defendants, and their attorneys from using half their day in court to say two little words.”
  • Lawfare published an overview of how federal courts are adapting their operations to comply with social distancing.
  • In Bernalillo County NM “District Attorney Raul Torrez [announced] that his prosecutors will no longer physically go to ‘non-essential’ hearings…Torrez says prosecutors from the 2nd Judicial District will only appear in hearings via telephone or video connection.”
  • In New York NY, “Public defenders in New York City say the state courts are putting staff and attorneys at risk of COVID-19 exposure during arraignments. The Office of Court Administration has set up video conferencing, but the only person in the court who is on the video and not there in person is the defendant.”
• In Washington DC, “Republican Rob Portman[, of Ohio,] joined with Democrat Dick Durbin, of Illinois, to introduce a bipartisan resolution to allow senators to vote remotely during a national crisis. During certain crises, such as the current COVID-19 coronavirus pandemic, guidelines from the CDC may advise against convening the full Senate in the Capitol.”

Student Loans & Student Debt

• In Washington DC, fundamentals of the existing student loan debt system are in flux. There are many articles out there, but a good place to start is Inside Higher Ed’s discussion of current proposals being floated at the federal level. Some key points (from the article):
  • Although Trump announced last week that “he will be waiving the interest of federal student loans[, ] student aid experts have said it doesn’t appear that the proposal would lower how much borrowers have to repay each month.”
  • A short-term break from monthly payments would likely be acceptable to right-leaning policy experts, “at least, as long as it is deferment and not some sort of forgiveness[.]”
  • In contrast, “the stimulus package put together by Senate Democrats…would not only defer monthly payments, but pay down the amounts owed[.]”
• Also in Washington DC, “Congressman Danny K. Davis (D-IL) along with Rep. Darin LaHood (R-IL) introduced the Retirement Parity for Student Loans Act of 2020, which would permit 401k, 403b, SIMPLE and governmental 457b retirement plans to make matching contributions to workers as if their student loan payments were salary reduction contributions.”
• In New York, “Governor Andrew Cuomo has suspended collections on certain student loans in the state.”
• US News & World Report published advice on “what to do if the Coronavirus affects your student loan payments.”
• The VP of Research for Savingforcollege.com said “he would expect the [student loan interest] rates for the upcoming academic year, which will be announced this spring, to fall to 1.9% for undergraduates, and to 3.5% and 4.5% for graduate students and PLUS loans, respectively.”
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• MarketWatch published an article arguing that “getting student loans erased in bankruptcy, while technically possible, is so hard and expensive that few people try; even fewer succeed. Without intervention by Congress and a change of heart at the Education Department, struggling borrowers will continue to be trapped in a virtual debtor’s prison: unable to pay what they owe and unable to move on with their lives.”

Non-Profit & Gov’t Management & Hiring

• JdSupra published “some action steps nonprofit executives, leaders and board members can take to minimize risk and mitigate the impact of the pandemic.”
• In Chicago, the ABA “launched a task force that includes representatives from the Legal Services Corp, the National Legal Aid & Defender Association, the National Center for State Courts and other groups, to address legal needs that could arise from the pandemic, including an uptick in domestic violence cases, employment-related cases and bankruptcy filings[.]”
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• Also in Chicago IL, the ABA released “Principles for Legal Education and Licensure in the 21st Century,” a document “aimed at aligning legal education and licensure more closely to better address the public’s legal needs.”
• In New York, “[a] New York State Bar Association task force has recommended several strategies to address an expected shortage of small-town lawyers set to hit rural areas across the state over the next few decades. The NYSBA’s Task Force on Rural Justice has recommended loan repayment programs, tuition assistance, relaxed residency requirements for public positions and increased hourly rates for assigned counsel in rural areas. The reforms would enable attorneys, typically saddled with major student loan debt, to take jobs in rural areas that pay lower than positions in cities and suburban towns.”

Immigration, Refugee & Citizenship Issues

• In Boston MA, “[c]oncerns over exposure to COVID-19 are increasing among Boston’s immigration attorneys after one of the courtrooms in Boston abruptly closed earlier this week.”
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• In Tennessee, the state’s “Republican-led Legislature has asked the U.S. Supreme Court to consider their failed challenge of the federal refugee resettlement program, which claims the state shouldn’t be forced to spend money on Medicaid and other services for refugees.”

Decarceration

• The Marshall Project put together a fantastic resource “rounding up [visitation] closures and other changes [to prison facilities across the country].” Their resource focuses on which facilities have suspended or limited visitation.
• Data for Progress released a memo, “Fighting the Coronavirus with Decarceration,” finding “strong, cross-ideological support for the strategy of dramatically reducing jail and prison populations to slow the spread of the coronavirus. Sixty-six percent of likely voters, including 59% of those who are “very conservative,” said that elected officials should be considering measures to reduce overcrowding in prisons and jails as a response to coronavirus.”

  Across the United States and Canada, various actors including NGOs, Public Defenders, and District Attorneys have begun to call for these measures–and some elected officials have agreed. We hope to collect as many of these various policy changes as possible into a centralized document to which we can all refer sometime within the next week. For now, I’ll leave you with the overview from Data for Progress.

Access to Justice – Civil & Economic

• In Canada, “law societies across the country are enabling staff to work from home, while providing direction to legal professionals as they try to maintain practices during a time of social distancing.”
• In the United States, Newsweek published a list of “all the cities [and states] who have announced moratoriums on evictions during [the] Coronavirus pandemic.” (As of Monday March 16; things have continued since then but this article will get you started).
• In Baltimore, “pro bono groups…have begun implementing remote services to stay connected with clients in need of free legal aid.”
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• In Canada, National Magazine reviewed “judgments rendered by our top court over the last five years [which] show[] it has increasingly relied on the idea of ‘access to justice’ in handing down its rulings.”
• In Manitoba, the provincial “law society is welcoming proposed legislation that would allow for ‘limited practitioners’ in that province.”

Access to Justice – Criminal

• In Ontario, “Attorney General Doug Downey has been left with little choice but to virtually shutter the Ontario Court of Justice after an unprecedented mutiny by all levels refusing to continue to attend the lower court in the face of COVID-19. The associations for criminal defence and Legal Aid lawyers have announced they’ll no longer appear at any OCJ courtroom after the chief justice ignored their repeated pleas to close the halls of justice to any in-person appearance.”

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• In British Columbia, “Gender-Based Analysis Plus (GBA-Plus) is now a required component of all cabinet, budget and Treasury Board submissions.” Writing for the Lawyer’s Daily, the Assistant Deputy Minister of Justice Service Branch of the BC Ministry of the Attorney General wrote about the implications of this policy for Access to Justice.

Criminal Justice Reform

• Across the United States, “[l]ocal law enforcement officials across the country are rapidly making major operational changes in preparation for the continued spread of coronavirus, as they face potential strains in resources and staffing without precedent in modern American history.” In some places, these measures include changes long sought by advocates of criminal justice reform. For example, in Dane County WI the sherriff told ABC that they were“working with all of our law enforcement partners, local, state and federal, to decrease the number of people who are physically arrested and brought to jail.”

  For one more example, in related news:

  • In Baltimore MD, “City State’s Attorney Marilyn Mosby told prosecutors [] to drop all pending charges for drug possession, attempted distribution, prostitution, trespassing, minor traffic offenses, open container and public urination…to reduce the potential spread of the virus in detention centers.”
• In New York, the District Attorneys Association of New York “called on Governor Andrew Cuomo to suspend new discovery and speedy trial reforms as the coronavirus pandemic grinds criminal court operations to a halt.”
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• Also in New York, “there [remains] a big divide over whether to roll back the state’s new bail law.”
• In Chicago IL, “Kim Foxx…took a major step toward re-election on Tuesday with a victory in the Democratic primary.”
• In Los Angeles CA, “[i]t’s looking more and more like there will be a November runoff in the race to be L.A. County’s next District Attorney.”