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COVID-19 and the Ruralization of U.S. Criminal Court Systems

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Pamela R. Metzger & Gregory J. Guggenmos

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The COVID-19 pandemic is imposing typically rural practice
constraints on the United States' urban and suburban criminal court
systems. 1 This "ruralization" of criminal practice offers lawyers,
policymakers, and researchers a window into the challenges and
opportunities that inhere in rural systems. This is no small matter. For
decades, lawmakers, researchers, reformers, and philanthropists have
overlooked, undertheorized, and underfunded rural criminal legal
systems-and have done so at great peril. Nearly 20 percent of the
nation's population lives in nonmetropolitan areas, where the opioid
addiction crisis rages. Rural incarceration increasingly drives mass
incarceration. The U.S. countryside warehouses the nation's prison
populations, and rural pretrial detention rates continue to rise. Indeed,
the success of criminal justice reforms depends in part on our ability to
address the incarceration crisis in rural America.

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Now, the nation's criminal legal systems are paying a new price for our
failure to study rural systems. Criminal legal systems of all sizes are
scrambling to select, implement, and study "new" distance adaptations
that are old hat to rural practitioners. Rural systems have decades of
experience navigating criminal practice in a (geographically) distanced
environment. Unfortunately, a national failure to research these
innovations means that we have missed critical opportunities to learn
about what works-and what does not-in distance-constrained
criminal practice.

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I. Rural Criminal Legal Systems

Rural court systems are at the forefront of our research and reform
agenda at the Deason Criminal Justice Reform Center. We are the only
law school research center committed to exploring small, tribal, and
rural (ST AR) criminal legal systems. Our research and scholarship
explores rural criminal process and procedure, with a particular focus
on the rural right to counsel and early-stage criminal procedure. 2 We

When we refer to rural criminal courts, we refer to the legal systems and
system actors who provide criminal procedure from arrest to sentencing.
Policing and corrections systems constitute their own rural criminal
ecosystems, which equally warrant exploration. But because those systems
have been broadly covered in the popular media, we use this Essay to address
criminal court processes.
2 See also Andrew L.B. Davies & Alyssa Clark, Access to Counsel in Local

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1

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

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Distance: Geographic isolation that precludes ready access to
criminal legal agencies and resources,
Scale: Caseloads and budgets that are too small to support local
best practices, and
Scarcity: Criminal law professionals are too few to meet local
needs.

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convene in-person rural criminal justice summits, virtual research
roundtables, and online webinars that engage rural communities and
rural legal professionals from all stages of the criminal process and
from all areas of the nation. Working with rural practitioners and
experts on legal ruralism, we have developed a theoretical framework
for analyzing rural criminal legal systems. Eschewing statistical
measures of rurality, 3 we use three key operational criteria to
distinguish rural criminal legal systems from their urban and
suburban counterparts:

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Of these characteristics, distance is the one that COVID-19 has made
most relevant to urban and suburban systems. 4

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Rural justice communities operate across vast distances, often with
harsh terrains or crumbling infrastructures. These distances create
operational and opportunity costs for rural criminal court systems.
Victims-especially victims of interpersonal violence-may be unable
to reach distant shelters. Defendants with suspended licenses or
unreliable transportation=~=~ to get to court across long distances.
Rural residents may be many miles away from criminal-adjacent

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Courts in Rural New York State, 17 NYSBA Gov. Law & Pol' J. 15 (2018).
It can be challenging to define rurality. See, e.g., Ruth Igielnik Wieder,
Evaluating what makes a U.S. community urban, suburban or rural,
====-.:,'-""-'- (Nov. 22, 2019). Of course, many places can be intuitively
categorized as rural or not: Los Angeles County is as unquestionably urban
as Garfield County, Montana is rural. But elsewhere, judging whether an
area is urban, suburban, or rural is a complex task. Government and
nonprofit agencies define rural areas by measuring a combination of factors
such as population size, population density, and proximity to large metro
areas. One such metric is the Rural-Urban Continuum Codes (RUCC). which
is used by the U.S. Department of Agriculture (USDA). The RUCC divides
counties into nine categories, capturing a rural-urban spectrum. However,
criminal legal systems often cross the geographic boundaries that these
statistical measures describe.
4 Through budget shortfalls, backlogs, and coronavirus infections, urban and
suburban systems have also experienced challenges that replicate rural
experiences associated with small scale and lawyer scarcity. Those issues are
beyond the scope of this brief Essay.

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This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

11/16/20 U. Chi. L. Rev. Online *72

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services, such as mental health and substance use disorder treatment.
Yet, there are few, if any, public transportation options. Lawyers may
travel hundreds of miles to investigate cases, interview witnesses, or
visit clients in jail.

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Across long distances with sparse populations, rural caseloads may be
too low to justify full-time court staff-or even a dedicated court
building. Rural criminal courts rarely operate on a 9-to-5 work week
schedule, much less the 24-7 timetable that is common in large urban
areas. Specialty and problem-solving courts are rare, as are the
alternatives to pretrial detention that are flourishing in metropolitan
communities. In rural lawyer deserts-areas with few or no lawyersthere are dire shortages of experienced criminal lawyers, and full-time
prosecutors, public defenders, and judges are in scant supply. 5
Stretched thin by their travel obligations, circuit-riding judges may
convene court only weekly-or even less frequently-in the
courthouses they serve. These infrequent court sittings can produce
extraordinarily long delays in initial appearances, bail hearings, and
trials. Some rural systems with access to broadband technology have
attempted to address this issue with video communication. But others
are backlogged.

II. COVID-19 and the "Ruralization" of U.S. Criminal Legal
Systems.

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At the time of this writing, COVID-19 has wreaked havoc on all
aspects of the criminal process, from policing to corrections and
reentry. COVID-19's most direct impact on the criminal justice system
arises from the necessity of physical distancing. Public health officials
encourage people to avoid three Cs: "closed or poorly ventilated areas,
crowded spaces and close contact, including close-range conversations."
But the criminal legal process traditionally depends heavily on spatial
relationships and physical engagement that defy those precautions.

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From crowded jails to jury rooms, and from attorney-client meetings
and prosecutorial witness interviews to the face-to-face confrontations
and jury deliberations that are the hallmark of our adversary system,
the U.S. criminal legal system is built on close interpersonal contacts.
We highlight below some common challenges of COVID-19 distancing
in the criminal legal process that replicate the distance-based

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There are also notable shortages of professionals who provide social,
medical, and therapeutic services often associated with the criminal justice
system.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

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challenges that rural areas routinely confront. To illustrate the
importance of studying rural criminal legal systems, we comment on
rural communities' pre-pandemic experiences with distance, describe
urban and suburban pandemic responses, and highlight how rural
experiences can guide practice improvements in all jurisdictions.

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A. Inadequate Courthouse Space

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Because of the pandemic, many otherwise serviceable courthouses are
structurally incapable of accommodating COVID-19 precautions.
Where criminal courts are reopening, only the largest courtrooms are
available for jury trials or hearings. For example, when court opened in
June 2020 in Hennepin County (l\!Iinnesota's most populous
jurisdiction), only four of its thirty-two courtrooms could accommodate
jury trials. In Champaig County, Illinois (part of the ChampaignUrbana, Metropolitan Statistical Area), the courthouse has only three
courtrooms large enough for socially distanced jury trials. When the
building reaches capacity, people wait outdoors, in newly erected tents,
to enter the space-constrained courthouse.

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In smaller courthouses with cramped courtrooms, "narrow hallways
and waiting rooms, small elevators, and shared bathrooms," it may be
impossible to retrofit spaces for COVID-19 distances. As a result, some
jurisdictions are no longer bringing incarcerated defendants to court or
allowing defendants on pretrial release to appear in person. Others are
putting jury trials on hold, postponing pretrial and sentence
proceedings, or moving these procedures online. Many jurisdictions are
searching for alternative court venues, such as "universities, schools,
and movie theaters" and other spaces that can accommodate the
cautionary distancing associated with COVID-19.
Neither space constraints nor structural inadequacies are new to rural
courts. Many rural courts have only one courtroom, and judges
negotiate-or even compete-for courtroom access. In many places,
judges, prosecutors, defenders, clerks, and sheriffs share cramped
spaces. Elsewhere rural courts are in great disrepair, with inadequate
ventilation and too few accommodations for new technologies. In some
rural criminal court systems, facilities are so limited that courts lean
on their local communities, convening heaimgs and trials in private
venues "ranging from gymnasia and fire stations to garages" and
community centers.

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Perhaps because they have experience adapting to space constraints,
rural criminal courts have been among the first to innovate
alternatives to distancing constraints. For example, consider

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

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Montana's remote Kootenai Valley, where, in May 2020, Lincoln
County (population 19,980) booked the Libby Middle High School
gymnasium to hold a mid-pandemic criminal jury trial. By contrast,
jury trials in Missoula, one of Montana's most populous counties, did
not resume until early July 2020. Or compare Wisconsin's most urban
county, Milwaukee (population 945,726), with one of its most rural
counties, Bayfield (population 15,036). The pandemic closed Wisconsin
courts in late March 2020. Just two months later, Bayfield County
""'-"="""'--'="--"'--"""--la'-'--""==="""to conduct the state's first socially
distanced criminal jury selection. Meanwhile, Milwaukee County was
still considering COVID-19 emergency plans that might employ
alternative locations.

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Bayfield is a classic rural criminal justice system. It=~~= with
budget shortfalls, long delays in court proceedings, and dire lawyer
shortages. So why was Bayfield able to move so much faster than
Milwaukee? Perhaps Bayfield's success comes from the nature of rural
legal practice, where close acquaintanceships "between the court, its
staff, the attorneys, and the public" create "familiarity [that] generally
promotes flexibility." Might rural resource constraints have forced
rural court judges and administrators to develop innovation "habits"
that helped rural legal systems adapt to the COVID-19 crisis?-Or
perhaps rural criminal courts, which lack large bureaucracies, benefit
from smaller, more nimble administration? Or do they rely on existing
social capital to resolve problems? Unfortunately, there has been little
research or scholarship that answers these questions. Yet
understanding how rural courts like Bayfield function might have
helped urban and suburban jurisdictions move swiftly to alternate
court forums.6
B. Changing Criminal Court Operations

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As criminal court proceedings move forward, lawyers and judges must
navigate the challenges of social distance while providing defendants
with their constitutional rights to counsel, confrontation, compulsory
process, and trial by jury and honoring any victim rights recognized by
state constitutions. Here again, rural jurisdictions have significant
experience adapting their court operations to the constraints of
distance. And, knowingly or not, suburban and urban jurisdictions are
following in their footsteps.

Of course, some urban courts have also made swift transitions. Our
argument is not that rural places have a monopoly on distance innovations,
but that they have decades of experiences in managing distance.
6

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

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To reduce the challenges of transporting criminal defendants across
long distances, many rural jurisdictions have adopted flexible venue
rules allowing judges in one venue to hear cases from another venue.
Because of concerns about transporting prisoners during COVID-19,
the Florida Supreme Court has entered emergency orders empowering
circuit court judges to act on out-of-jurisdiction cases of detained
criminal defendants. To minimize travel hardships, rural jurisdictions
have also allowed a wide range of remote proceedings. For example,
Arizona's criminal procedure rules allow criminal defendants who live
more than 100 miles from court to enter their guilty pleas over the
telephone.

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In places where rural criminal courts have had access to broadband,
they have long used video technolog} for pretrial proceedinbs. 7 For
example, in some of Nevada's rural counties, the arrival of broadband
allowed local court systems to supply court inte preters via video. New
York state providers of mental health and substance use treatment
have long worked \v:ith rural courts to provide remote teleservices. And
video court hearings are common among the rural practitioners with
whom we work.

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Sadly, most of these rural innovations have not been studied. 8 As a
result, urban and suburban areas are rushing to implement what are
essentially untested methods for providing constitutional criminal
rights. Although telephonic and video court proceedings are not new to
urban areas, COVID-19 has dramatically accelerated their adoption. In
some instances, courts have extended previously rural-only practices to
courts statewide. In Arizona, the Supreme Court has expanded to
allow all defendants to enter telephonic guilty pleas. Similarly, before
the pandemic, rural Graham County, Arizona (population 38,837) used
telehealth providers to restore mentally ill defendants to legal
competence. Now, an Arizona Supreme Court working group on
COVID-19 and court operations is recommending that all courts
consider telepsychiatry to treat incompetent criminal defendants.
Elsewhere, courts have moved all of their proceedings-including jurv
trials-online.
But how well do telephonic and video courts work? Can a video
allocution guarantee a knowing, intelligent, and voluntary guilty plea?
Do competency restorations conducted by video really prepare a

Elsewhere, the digital divide has made it impossible for rural courts to rely
on this adaptation. Twenty-two percent of rural residents lack reliable access
to broadband service.
8 Urban video courts are similarly under-investigated.

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This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

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C. Other Adaptations to Legal Practice

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defendant to understand their constitutional rights and mount their
own defense? What are the impacts of witness testimony when it is
mediated through technology? The jury, so to speak, is still out.
Nowhere is this knowledge deficit more apparent than in the use of
videoconferencing to conduct court proceedings. Courts across the
country have turned to videoconferencing to mitigate the slowdown in
court proceedings, even conducting virtual hearings and trials. The
lack of research on how video courts change outcomes for defendants is
particularly problematic. The only sizable empirical study on pretrial
video court proceedings addresses the use of video court in bail
proceedings in Chicago. There, researchers found that, controlling for
all other factors, defendants who appeared via video were subject to
much higher bail amounts. Have rural video bail proceedings produced
similar results? Alas, no one knows. Two decades of experimentation
in rural areas have been unexamined by researchers.

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A look at attorney practice similarly reveals the cost of ignoring rural
legal norms. COVID-19 means that urban and suburban prosecutors
as well as criminal defense attorneys must find socially distanced ways
to investigate cases, interview witnesses, litigate motions, negotiate
plea bargains, and prepare for trial. As social distancing measures
lockdown jails and shutter courthouse doors, metropolitan lawyers no
longer enjoy relatively easy access to courts, witnesses, and clients.
Instead, they have the same choices that rural lawyers do: they can
write letters, make phone calls, or set up video conference meetings.
Criminal defense lawyers confront the additional challenge of honoring
the Sixth Amendment right to counsel while working remotely. This is
~=~==== for many city and suburban attorneys, particularly
public defenders.
But distance-constrained practice is not new to rural prosecutors and
defense attorneys. Many rural criminal defense providers-public
defenders, private attorneys, and appointed counsel-advise their
incarcerated clients by telephone or video link. Many rural prosecutors
prepare their witnesses online. Those attorneys have a wealth of
experience, both good and bad, that can guide lawyers who are new to
this form of communication.

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During recent Deason Center COVID-19 roundtables with criminal law
practitioners and researchers, we were struck by how many rural
lawyers described video conferencing as a key component of their prepandemic practices. In many instances, these rural practitioners found
themselves teaching their urban and suburban colleagues about video
practice. They had developed informal norms about which procedures

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

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required in-person meetings and which could be handled online. They
had also identified important hazards associated with video practice.
But scholars and researchers have never examined their two decades
of rural experimentation with video practice.

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Conclusion: The Way Forward

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For decades, rural criminal legal systems have adapted to the
challenges of geographic distance (along with small caseload volumes,
and professional scarcity). Now, the COVID-19 pandemic is forcing
urban and suburban criminal systems to adapt to social distancing.
There are=== indications that some of these COVID-19 adaptations
will outlive the pandemic. Because those adaptations are impacting
urban and suburban criminal systems, there is already a clamor for
research into their fairness and accuracy.

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Rapid implementation of successful rural adaptions to distancing could
have been the key to early management of the pandemic in urban and
suburban courts. But we have missed that opportunity. Careful
avoidance of unsuccessful or maladaptive rural responses could have
smoothed the urban transition to distance-based practice. That
opportunity was also lost.

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We do not pretend that rural systems have all the answers to
distanced practice, or that all rural adaptations will prove to be
successful. What we argue instead is that our hyper-focus on urban
criminal justice is misplaced and our national failure to study and fund
rural innovation is a self-inflicted wound for our national criminal
legal system. 9 We concede that urban and rural areas do not offer
perfectly parallel environments for criminal law policy and practice.
Urban and suburban solutions must be tailored to the volume and
diversity of criminal cases in densely populated environments. But this
should not prevent serious and careful consideration of how rural
criminal practice and reform can inform practice nationwide.

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COVID-19 has set the stage for a post-pandemic investment and
engagement in rural criminal law communities. As we bring the
pandemic to heel, suburban and urban stakeholders must engage with
rural communities. Researchers and reformers should explore and
invest in rural systems. Our national criminal legal reform movement
must lean into collaboration, experimentation, and data-driven reform
in rural criminal systems.

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It is also patently unjust.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199

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Pamela Metzger is the Director of the Deason Criminal Justice Reform
Center at the SMU Dedman School of Law. A nationally recognized
Sixth Amendment and ethics scholar, Professor Metzger's scholarship
combines theory and practice in seeking improvements in criminal
justice. Professor Metzger's work has appeared in publications such as
the Yale Law Journal, Vanderbilt Law Review, Southern California
Law Review, and Northwestern University Law Review, and has been
widely cited by leading authorities and by the U.S. Supreme Court.

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Greg Guggenmos provides the Deason Center with statistical
consultation and research support. He graduated Phi Beta Kappa from
SMU with a B.S. and M.S. in Applied Statistics and Data Analytics.
During his time at SMU, he conducted independent research on pretrial
detention in New York, Chicago, and Boston and studied abroad in five
countries. Deeply invested in civic engagement, Guggenmos founded the
Community Bail Fund of North Texas in 2018. In 2019, he served as
the Deason Center's Law & Statistics Coordinator, providing the
Deason Center with statistical consultation and research support.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3919199