Arizona Report on Prosecutorial Response to COVID-19.

• Author: Ring, William P.

January 1 thru April 15, 2020 (1)

Pandemics are foreseeable events. But COVID-19 was not a foreseeable pandemic.

Through March of 2020, the Arizona state economy was robust. State general fund revenues were 8.1% higher than the prior year. (2) The January 2020 economic forecast for Arizona assumed state revenues would increase by 3.6% and remain on a similar 3-4% growth trajectory through 2022. (3) The growth in revenue is attributable to growth generally in the Arizona economy, which is characteristically cyclical but in a then-strong phase. At the close of 2019 no one of ordinary intelligence knew that the SARS-CoV-2 virus even existed. On January 13, 2020, Arizona Governor Doug Ducey gave a State of the State address with no hint of the kinds of decisions that leadership would require of the Executive just 60 days later.

SARS-CoV-2 quickly changed that perspective. We all now have a common, visceral experience of what happened next. And as prosecutors, we also know what the recent events of history have required of us.

EXECUTIVE SUMMARY

What prosecutors do under pressure--and equally, what they choose not to do--matters very much to the principle of Justice.

Pandemics are foreseeable events. But COVID-19 was not a foreseeable pandemic. And while presently the disease has neither a vaccine nor a cure, prophylactic treatment requires social distancing whose best practices (4) have a blunt impact on the administration of justice. It is not an impact upon what the principle of Justice means. It is an impact to the administration of justice; that is, how Justice as an enduring principle is administered in everyday practice under these highly unusual circumstances. Prosecutors were at the forefront of leadership, identifying early the importance of remote deployment; the need for adaptive and innovative use of technology for administration of cases; the need to address the health of jail populations while maintaining public safety; and the new priority of taking what is learned about the application of technology to court administration, and then making permanent the institutional changes that improve the efficiency and the efficacy of the criminal justice system. The crisis will pass. What happens next will not look like it did before we knew what coronavirus was. Sadly, the trajectory of the illness is still in front of us as are the best practices we can derive from our experiences.

THE CRIMINAL JUSTICE SYSTEM AS CRITICAL INFRASTRUCTURE

The United States Department of Homeland Security, Cybersecurity and Infrastructure Security Agency (CISA), identifies 16 sectors of "critical infrastructure". (5) The Government Sector is one such critical infrastructure and the term is comprehensive of federal, state and local assets including courthouses. (6) Critical infrastructure has a special responsibility to maintain functionality during crises. A functioning critical infrastructure is an imperative for the protection of public health and safety. The CISA provides guidance on identifying essential workers who function within the critical infrastructure. (7) The State of Arizona also adopted a means for identifying critical infrastructure, (8) and relatedly, the minimum level of physical presence that is necessary for government to remain open for transaction of public business. (9) The conclusion is that the criminal justice system, operating within local courthouses, is critical infrastructure and that its employees are an essential workforce.

REMOTE DEPLOYMENT

The designation of essential carries with it the responsibility to remain functional.

While "essential" is inclusive of the role of prosecutor, and while the "courthouse" is most often associated with where prosecution is carried out, there is no specific requirement that all prosecutorial functions must be conducted within a courthouse or even a physical office. The designation of essential carries with it the responsibility to remain functional. And that responsibility incorporates consideration for the attributes of COVID-19 and the CDC (and other local) directives concerning public health and social distancing. Because remaining functional is not directly tied to a brick-and-mortar structure, the obvious solution to social distancing is to make separation happen by leaving the office and deploying remotely. However, survey results suggest that deploying remotely and doing it successfully are two different concerns. Success in alternative settings (the "remote" location) is highly contingent upon available technology and its acceptability in the criminal justice ecosystem.

The Brick-and-Mortar Office

The survey asks several questions surrounding remote deployment. The fields surveyed include the office, the courtroom, contacts with law enforcement, and relationships with victims. (10) Nearly all prosecution agencies deployed remotely. (11) What varied most significantly is the amount of physical presence each agency maintained with the brick and mortar office and the quality of that presence, whether physically closed or accessible by appointment.

The most common shared practice was to close the structure, retain a skeletal crew, provide physical access to the public and law enforcement by appointment only, and rotate the onsite crew inclusive of both prosecutors and staff. One respondent compared their response to the situation commonly encountered during the Christmas to New Year's week. (12) Rotation of both prosecutors, staff and victim advocates was a common practice.

Respondents presented a clear message to their employees for strict social distancing in the workplace. Several respondents noted that, in addition to rotations as described above, employees were working staggered shifts during the same workday, working fewer but extended workdays (the 4 * 10 workday), and working extended work weeks to include Saturdays. The combination of one or more of these practices allowed for depopulating the office setting which achieved better social distancing.

Although most every office instituted remote deployment, a few offices provided a split of telecommuting and physical office presence, one office providing a "2-3 split" (2 days in/3 days out; staggered across the workforce) or a 50/50 split with half at home and half in the office. One office deployed prosecutors remotely and then took the remaining staff and temporarily housed them in the vacant prosecutor office space, thus achieving a level of social separation for those that remained in the office.

Several respondents noted that the Facilities Departments of their greater organizations enhanced their cleaning services and included sanitizing dispensaries for frequent use. A few organizations had access to PPE (personal protective equipment).

Technology's Role In Remote Deployment

Ninety percent (90%) of the offices responding to the survey also deployed remotely, at least in part. The remaining respondents did not have a remote footprint. (13) Every office that deployed remotely was dependent upon hardware, software, and technology to do so. Although most offices were successful, some were not. (14) Three critical items that made remote deployment more successful were: (1) the presence of a pre-existing VPN access capability; in combination with: (2) a software case management system such as Prosecutor by Karpel (PbK) or Justiceware; and finally: (3) a videoconferencing platform such as Microsoft M-Teams, Zoom, Skype or other equivalent communication software.

The Courtroom Setting

The strongest response to successful application of social distancing came with the use of telephonic appearances in the courtroom. There was wide utilisation of teleconferencing. This tool was accompanied in many jurisdictions with the use of videoconferencing. Tele- and videoconferencing co-existed in several jurisdictions and, when linked to the same equipment in detention facilities, most all criminal court functions were capable of being performed with a semblance of normality. This bundling of technological hardware...