Opinion: It’s time for virtual justice in New York

Michael Higgins is a senior criminal defense attorney. Photo courtesy of Higgins

By Michael Higgins

In Simon Sinek’s newest book, “The Infinite Game,” he popularized the term “existential flexibility,” which is the capacity to make a 180-degree turn to navigate a completely changed environment. 

As a society we’ve been forced into flexibility due to the pandemic, and it’s worth recognizing the long-lasting good that can come from shaking up the systems we’d previously accepted as “good enough” — particularly, our criminal justice system. 

As part of this shift, legal professionals’ objectives should move away from simply getting people locked up or let off, and instead aim to improve the system itself so that justice, however it is meted out, flows more efficiently. 

Often, a crisis will necessitate a different approach to how we get things done. Sometimes that approach should be temporary, like remote-learning at schools, but other times adapting to a completely changed environment can reveal a more efficient way of doing things and should become a permanent solution. 

One of the most visible and relevant examples is in the healthcare sector. 

Thanks to the pandemic, we rely more on telehealth for our doctor appointments, and are now asking why anyone would go back to traveling to a doctor’s office to be told we have pinkeye, and why we would stand in line at CVS when Capsule can deliver medication to our door.

The pandemic has presented the criminal justice system with a similar opportunity for its own existential flexibility moment. 

The lockdown forced our court system to enter the Twenty First Century in a meaningful way, while at the same time furthering the criminal justice reform movement. When the Coronavirus first hit New York City in March, the Office of Court Administration immediately implemented video arraignments to ensure that the wheels of justice did not grind to a halt. Since then, OCA has slowly added writs, hearings and now some court appearances. 

Although there have been some glitches, the virtual court process has been working. So, with this new online infrastructure already in place, why are New York City Courts beginning in-person Desk Appearance Tickets (DATs)? DATs are commonly issued for the most benign types of infractions, such as riding a bike on a sidewalk or being in a park after dark, so requesting people come to court for the least serious of cases is unnecessary and unsafe. 

We should instead be using DATs as the foundation on which we build the future of virtual court appearances.

In the spirit of existential flexibility, OCA should be asking how to permanently expand virtual court appearances, rather than phase them out. After all, New York City is by no means out of the woods when it comes to this virus, and a recent independent study done by CrowdRx (comprised of emergency physicians and public safety experts) concluded that New York City courthouses pose “an unacceptable high risk “of spreading COVID-19 due to issues with crowding, ventilation, and the improper use of masks. The report went on to say that several courthouses had “no articulated plans to keep the public safe once they enter the courthouse.”  

Under the current conditions, it defies logic for OCA to require people to travel to unsafe courthouses for minor infractions.

Just as important as public safety is the idea that, by embracing technology, we can further advance criminal justice reform. 

Over my 20 years as a criminal defense attorney in New York City, one of the most pressing matters my clients worry about is how often they have to take off from work to make court appearances. While there are serious cases where the court needs to see the defendant in person, the notion that we are achieving justice by requiring a defendant to appear numerous times on a misdemeanor, only to see the case dismissed or resolved with a noncriminal disposition, is misguided. 

It’s not uncommon for the defendant to lose their job for continually taking days off from work, all for court appearances where nothing of substance happens with their case. There are also times when clients can’t afford childcare, so they either miss their court date or end up bringing their child with them to court. Wouldn’t it be safer and more efficient to give the defendant and their attorney a specific time on the virtual court calendar until the case goes to trial or is resolved through negotiations?  

To complement the idea of existential flexibility, Sinek also touches on courageous leadership. He believes that real leaders can break the status quo and lead their organizations in completely new directions, even when there isn’t a pandemic or other catastrophe pushing change forth. 

So, now and in the future, let’s make the criminal justice system our example and leader for positive change.  Through top-down restructuring of how we operate our court system in New York City, virtual court appearances should be embraced as a smart and effective way of keeping the public safe while simultaneously furthering criminal justice reform.

Paraphrasing Einstein: in every crisis lies opportunity. The current COVID-19 pandemic has presented such an opportunity. The moment should not be ignored. 

Michael Higgins is a senior criminal defense attorney.