JHTL’s mission, as written in our constitution, is to promote the education, research, and publication of ideas and issues regarding technology.  Given the inextricable linkage between technology and social justice, it is beyond time that we use our status as an honor board to provide a platform for discussion surrounding the continuous inequalities that remain persistent in our communities.  This Black Lives Matter blog series seeks to highlight the deliberate disparate treatment of Black people and to provide a space for discourse surrounding technology and social justice issues

By: Shree Chudasama, Lead Articles Manager

Technology has taken on new significance in industries like healthcare and education due to the coronavirus pandemic, but its necessity has revealed the extent of the digital divide.

In the United States, upwards of six percent of the population (roughly 21,000,000 people) do not have access to high-speed internet. The Federal Communications Commission states that figure may be low, with the actual figure closer to thirty million people without digital access. Despite the availability of high-speed internet access (broadband) in 97% of urban areas, nearly 35% of Americans in rural areas do not have broadband access. That percentage increases to 40% on Tribal lands. Even when broadband is accessible, networks have reported becoming saturated during peak usage times, resulting in an inconsistent connection.

These figures are troubling considering the necessity of moving to the digital realm, particularly in the court system. Although federal and state appellate courts have transitioned to oral arguments online with some ease, gaining public access to these arguments by reporters and journalists has been challenging due to judicial barriers to broadcast or streaming.

Especially concerning is how the digital divide is reflected in courts where liberty interests are immediately at stake. COVID-19 closures in state and municipal courts, ordered by states’ highest courts, have resulted in arrestees remaining in custody while awaiting arraignment. In the United States, 49 states and territories are restricting jury trials until August or September, with 9 states and territories restricting them until further notice. Beyond the immediate effect on individuals’ Sixth Amendment right to speedy trials, the lack of access related to the digital divide has unevenly affected indigent individuals in rural and urban areas.

For instance, many state courts have turned to videoconferencing, but not all have provided resources to litigants without access to such technology. In a handful of places like Texas, Illinois, Iowa, and Idaho, state courts have created video conferencing kiosks consisting of public computers available to parties.

In a criminal courthouse in Travis County, Texas, defendants charged with misdemeanors may use such kiosks in private rooms to connect to their hearings, with technical support offered by court personnel if needed. By using specific timeslots, the courthouse can follow social distancing recommendations. In Idaho, courthouses are making these kiosks available in non-court facilities like public libraries as well. Further, California has circulated temporary rules allowing consenting defendants to appear by video or telephone in many criminal pretrial proceedings. Jurisdictions have also broadcast proceedings over YouTube to make them publicly accessible.

While this effort at increasing access is commendable, videoconferencing misses one major component of the adversarial system: the opportunity to have face-to-face discussions. The remote access of a defendant undermines the human aspect of making eye contact, observing facial expressions, and fails to provide due process as intended.

Defendants’ constitutional rights to communicate privately with counsel and to confront witnesses are hindered by showing up on a two-dimensional screen or via telephone with an unpredictable connection. Unless the defendant lives in one of the few states utilizing kiosks or lives in an area with adequate broadband, the defendant will have connection issues that impede upon their right to be present. Remote appearances jeopardize the ability of defendants to advocate for themselves, to make tangible connections with factfinders, and to be treated fairly. Further, even if a defendant consents to a remote hearing, it’s necessary to consider the circumstances leading to that consent: if the defendant consented to virtual hearings to get out of custody during a pandemic when coronavirus rates have been detrimental to incarcerated populations, is that a fair choice?

To understand the holistic impact of these court closures, it’s necessary to consider incarceration generally and the impact of COVID-19 on the population. The United States is known for having high incarceration rates, where the most affected citizens are Black, Indigenous, or Latin American (see graphic below).

 

Viewing these statistics (that remain accurate in 2020) in conjunction with the pandemic’s disastrous impact on Black Americans paints a bleak reality. Oftentimes, those defendants most negatively impacted by the digital divide and by court closures are poor people of color, which results in disproportionately high consequences for Black and Indigenous people. Re-reading the entire first half of this blog post with a lens on race and perceptual differences yields an honest look at how typical issues are exacerbated for Black parties to the legal system.

Seeing the Luddites of the legal profession embrace technology has been momentous in some ways, but the consequences of technological unavailability must be addressed by courts and lawmakers now. Failing to highlight and remedy these inadequacies in the law, particularly on the state and local level, heightens our complacency in this era of Black Lives.

Student bio: Shree is currently a third-year law student at Suffolk and the Lead Articles Manager of the Journal of High Technology Law. She graduated from Boston University with a Bachelor of Arts degree in international relations and a minor in business administration.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.