Table of Contents
Adopting untested policies helped California courts resolve criminal charges safely amid a public health crisis. Of the main policies, only remote hearings have endured—and their future is uncertain. Assembly Bill 199 allows California courts to conduct most criminal hearings remotely only through 2023.
This report chronicles how the COVID-19 pandemic affected the courts in 2020, describes policy responses, and assesses the impact of remote hearing policies on conviction and sentencing outcomes within six months of arrest.
- Pandemic conditions challenged the courts’ capacity to resolve cases. An estimated 55,000 criminal cases that would have completed within six months remained unresolved at the end of 2020.→
- Courts acted swiftly to adapt to pandemic conditions. Three main strategies included modifying pretrial release to reduce jail populations, permitting remote hearings, and extending case timelines.→
- Uneven adoption of policies, coupled with geographic differences in where people live, meant that Black and Latino defendants had greater potential than people of other races to experience pandemic policies.→
- Remote hearing policies reinforced pandemic trends for lower conviction rates, but counteracted trends in sentencing. When remote hearing policies were in place, rates of conviction within six months of arrest fell, with outcomes for white, Latino, and Black people driving this result. Misdemeanor convictions were less likely to lead to jail and more likely to receive noncustodial sentences such as probation and money sanctions, mainly for white, Latino, and Black people. Felony convictions were less likely to result in prison and more likely to lead to jail, and outcomes for Black people dominated this result.→
- Remote hearing policies contributed to racial differences in criminal case outcomes. Inequity in conviction and jail sentence rates narrowed between white and Latino defendants and between white and Black defendants. By contrast, racial inequity widened in the likelihood of being sentenced to money sanctions and probation.→
Arguably, whether a criminal proceeding is conducted virtually or in person should not influence whether a person is convicted or how they are sentenced; yet remote hearing policies have affected both. Before Assembly Bill 199 expires, policymakers will need to determine whether these outcomes are desirable and how to factor them into decisions about whether to allow criminal cases to proceed remotely.
The coronavirus pandemic posed extraordinary challenges for the administration of justice in California. Many of the largest viral outbreaks in the nation occurred in California prisons (Harris and Hayes 2021). Arrest rates tumbled as police practices shifted and people stayed home to avoid spreading the virus (Premkumar et al. 2023). Court dockets lengthened under local and statewide stay-at-home orders (SASCJ 2021).
Across the state, courts adapted to operating amid the pandemic by adopting emergency policies to facilitate operations, promote public safety, and protect public health. In criminal courts, such policies included modifying pretrial release to reduce incarcerated populations, permitting remote hearings to avoid in-person interactions, and extending case timelines to accommodate delays associated with complying with public health orders. Nationally, other states and localities adopted similar strategies (Harris forthcoming; JFA Institute 2021: 5).
Of these policies, remote hearings have endured. Early in the pandemic, courts across California rapidly increased their capacity to conduct criminal proceedings via remote technologies. One year into the pandemic, the chief justice of California convened a workgroup to study the impact of remote technology in the courts. The workgroup found that deploying remote technologies increased access to the courts, and they recommended their continued use (WPPI 2021). Shortly thereafter, the legislature enacted one of the first laws in the nation to continue remote criminal hearings (Henning 2021). Assembly Bill 199 allows remote appearances in criminal proceedings, with the exception of felony trials, through 2023.
California is not alone in continuing to hear criminal cases virtually. All 50 states and the District of Columbia have continued to permit or require remote appearances for various criminal proceedings (Harris forthcoming). For example, initial appearances, arraignments, and bail hearings are often cited as proceedings that can be held remotely. Some states, including Arizona, have recommended defaulting to remote options for these and other hearings (Arizona Supreme Court 2022: 13). Whether to conduct other types of proceedings remotely has proven more controversial. For example, a Pennsylvania task force recommended against conducting jury trials remotely (Nealon et al. 2021: 9).
Support for remote hearings has been guided by thoughtful investigations into their impact on courts, including criminal courts (e.g., Clarke and Smith 2021; Ostrom et al. 2021; Thumma and Reinkensmeyer 2022; WPPI 2021). However, that work focused mainly on how remote technologies affected court operations. Findings that the technology can improve efficiency mainly came from people who work in the courts, whose potential to be impacted by court processes differs from that of criminal defendants. None of these studies assessed whether remote hearing policies affected conviction or sentencing outcomes for criminal defendants.
Even before the pandemic, research on the impact of remote hearings on criminal case outcomes was slim. One study attributed higher bail amounts to the 1999 shift from in-person to remote bail hearings in Cook County, Illinois (Diamond et al. 2010). This lone study that examined how remote technologies affect criminal defendants’ outcomes cautions against using them during hearings in which pretrial release decisions are made, such as arraignments, initial appearances, and bail hearings.
This report chronicles the impact of the coronavirus pandemic on California’s courts in 2020, describes the courts’ swift and varied policy responses to the pandemic, and applies a racial lens to assess the impact of remote hearing policies on criminal defendants’ conviction and sentencing (money sanction, probation, jail, or prison) outcomes that occurred within six months of arrest. Although pandemic conditions were extraordinary, remote hearings have become commonplace. Assessing how they affect defendants’ outcomes is critical to charting a pathway toward equitable criminal justice policies.
The Pandemic Profoundly Affected California Criminal Courts
The highly transmissible nature of the coronavirus, and government directives intended to contain it, transformed how people interacted with each other and with the criminal justice system. State and local leaders sought to slow the spread of the virus by issuing orders to restrict social interactions. On March 19, 2020, California imposed a mandatory stay-at-home (SAH) order for all residents. By the end of May, 44 other states and the District of Columbia had issued similar orders (Moreland et al. 2020).
Reduced mobility and limited social interactions, coupled with changing law enforcement practices, contributed to sharp drops in many reported crimes and arrest rates (Lopez and Rosenfeld 2021; Nivette et al. 2021; Premkumar et al. 2023). Analyses of cellphone location data have shown that SAH orders had the desired effect: people stayed home (Alexander and Karger 2020). However, analysts attribute much of the drop in how often and how far people traveled from home to individual choices, rather than government mandates (Berry et al. 2021; Goolsbee and Syverson 2021).
To reduce virus transmission among officers and the public, law enforcement agencies reduced foot patrols, issued citations rather than book people into jail, and implemented zero bail, which allowed defendants to be released immediately after booking and may have reduced virus transmission within jails (Gumbs and Hayes 2020; Jackson et al. 2020; LAPD 2020). In California, courts often guided these policy changes. For example, on March 25, 2020, the presiding judge in Alameda County issued a general order authorizing law enforcement to cite and release people for failing to appear in some cases.
As arrest rates tumbled, the adjudication of criminal cases also ground to a near halt. Early in the pandemic, many courthouses, nationally and in California, closed or severely limited in-person operations (Baldwin et al. 2020; Piquero 2021). Exceptions occurred: as one California court official noted, “[The] court remained open and never closed.” Even when courts continued in-person operations, social distancing recommendations, cleaning protocols, and individual preferences to avoid close contact with other people affected criminal proceedings, especially their timing. Nationally and in California, courts suspended jury trials, postponed hearings, and allowed more time for cases (Harris forthcoming).
As pandemic conditions persisted, courts faced enormous criminal case backlogs and ongoing operational challenges (SASCJ 2021). The presiding judge in Orange County, California, characterized those challenges in Amended Administrative Order 20-09, writing, “[The] court is faced with an unprecedented situation of balancing the rights of residents of Orange County to justice against the Emergency Orders of the President, Governor, and the Orange County Department of Health outlining precautionary steps to minimize the danger of transmission of the virus.” The potential to conduct hearings remotely seemed to offer a solution to both problems: the wheels of justice could turn even while people stayed at home to avoid spreading the virus.
Arrests Plummeted and More Serious Crimes Were Prioritized
Understanding trends in criminal case outcomes requires understanding arrest trends because arrests made by law enforcement initiate the process that can lead to criminal prosecution, conviction, and sentencing in the courts. In the years before the pandemic, the monthly number of arrests made in California had been trending downward. However, about the same number of arrests—89,000—were made in February 2020 as had been made in the year prior, suggesting a potential leveling of that trend.
Then the pandemic arrived. Arrest levels plummeted in March and hit bottom in April, when just 44,600 arrests were made—a 57 percent decrease relative to April 2018. Throughout 2020, the number of arrests made monthly remained at least 31 percent lower than in 2018.
Misdemeanor arrests drove these patterns, but not exclusively. In a typical pre-pandemic month, California law enforcement agencies made 1.8 misdemeanor arrests for each felony arrest. By comparison, agencies made 1.2 misdemeanor arrests for each felony arrest in the last 10 months of 2020. Amid surges in April and December 2020, police made nearly as many felony as misdemeanor arrests (Premkumar et al. 2023).
Arrests for nearly all crime types fell substantially during the pandemic, as shown in Figure 1, which depicts the percent change in arrests and convictions by crime type and level. However, crimes related to fewer people moving around, especially in cars, fell furthest, as compared to pre-pandemic levels. Misdemeanor arrests for traffic-related offenses fell 62 percent while arrests for driving under the influence nearly halved. Misdemeanor vehicular homicides toppled 74 percent.
Arrests and convictions fell dramatically for nearly all crime types and levels during the pandemic
SOURCE: Author illustration from California Department of Justice (DOJ) Automated Criminal History System (ACHS) data.
NOTES: Comparisons reflect average month-by-month percent change for 2018 relative to 2020 (March–December). Convictions are those that occurred within 180 days of arrest. Conduct crimes do not rise to the level of violence, do not involve fraud, theft, or larceny, and are not related to the drug trade. Criminal Justice Violations include supervision violations, failures to appear, and other court order violations. Disorder includes disorderly conduct and other nuisance crimes. Weapons include illegal weapon sales and possession (weapon use of any kind is classified as violent). Non-Assaultive Sex includes crimes related to the sex trade and pornography. See Technical Appendix A for more information about the ACHS and how crime types are defined.
The Number of Resolved Criminal Cases Fell and Stayed Low
Most (but not all) California courts were shuttered in the early months of the pandemic and reopened haltingly. Some courts restricted the types of cases that proceeded. Others opened and closed numerous times as coronavirus waves ebbed and crested. Consequently, the number of cases that resolved through conviction, dismissal, or acquittal within 180 days declined more rapidly and recovered more slowly than arrests. Otherwise, case resolution patterns tended to mirror arrest patterns.
The resolution ratio between felony and misdemeanor cases equalized during the pandemic. In 2018, courts resolved about 1.8 misdemeanor cases for every felony case resolution—that is, just under 11,000 felony cases and just over 20,000 misdemeanor cases resolved in the average month. In March 2020, courts resolved roughly 4,000 felony and 4,000 misdemeanor cases—stunning decreases of 65 percent and 80 percent, respectively. Resolution rates rose as the year progressed, but remained far below their pre-pandemic levels. In December 2020, felony resolutions were about half and misdemeanor resolutions were 70 percent lower than in 2018.
Most criminal cases in California resolve with a conviction on at least one charge. Before the pandemic, 81 percent of cases that resolved within 180 days included a conviction, whereas 76 percent did amid the pandemic. Above, Figure 1 depicts the percentage change in convictions during the pandemic, as compared to before it, by crime type and level. Some reductions are quite startling. Relative to their pre-pandemic levels, convictions within 180 days were down 80 percent or more for some misdemeanors, including public intoxication, non-assaultive sex, theft, and fraud.
Like police, courts seemed to prioritize addressing more serious crimes. Misdemeanor convictions generally fell further than their felony counterparts. Misdemeanor weapons convictions dropped 65 percent compared to 37 percent for felony weapons convictions. Misdemeanor burglary convictions were down 62 percent versus 49 percent for felony burglary convictions. Misdemeanor convictions for drug crimes dropped 78 percent compared to 63 percent for felony drug convictions.
Convictions for most violent offenses—both felony and misdemeanor—showed lesser but marked declines relative to conduct, drug, and property crimes. Convictions for felony robbery fell 47 percent. Felony sexual assault convictions dropped 57 percent and misdemeanor sexual assault convictions toppled 63 percent. Felony homicide convictions were down 26 percent, even as felony arrests for homicide rose. Misdemeanor homicide convictions dropped 74 percent. Relative to 2018, felony assault convictions fell by one-third and misdemeanor assault convictions more than halved.
The Criminal Case Backlog Grew to at Least 55,000 Cases
With far fewer cases being resolved relative to arrests, courts faced a massive backlog of unresolved criminal cases by December 2020. Without information about charging decisions, I am unable to offer a precise calculation of the size of the backlog. Rather, I estimate the size of the backlog by comparing pre-pandemic and pandemic arrest-to-case-resolution ratios.
Before the pandemic, law enforcement averaged 3.8 misdemeanor and 3.6 felony arrests for every case resolution. In March 2020, the average was 8.0 misdemeanor and 5.8 felony arrests for every arrest that resolved within 180 days. Through December 2020, the ratio averaged 5.7 for misdemeanors and 5.4 for felonies.
If arrest-to-case-resolution ratios had maintained their pre-pandemic monthly averages, about 29,000 more misdemeanor and 26,000 more felony cases would have resolved during the pandemic, as shown in Figure 2. Instead, by December 2020, California courts faced an accumulated backlog of approximately 55,000 shorter-term criminal cases.
Statewide, a backlog of about 29,000 misdemeanor and 26,000 felony cases accumulated by December 2020
SOURCE: Author illustration from California DOJ ACHS data.
NOTES: The figure reflects cumulative cases. See Technical Appendix A for information about the ACHS and Technical Appendix B for more information about estimating the criminal case backlog.
Importantly, Figure 2 shows just one of three parts of the likely pandemic backlog: the part that pertains to cases that ordinarily complete within six months. Two additional parts include some share of the cases that take more than 180 days to complete, plus any backlog that existed before 2020. I have no information about the latter, but do have some information about the former. Estimates based on Judicial Council case processing statistics, shown in Technical Appendix C Table C1, indicate that about 94 percent of misdemeanor and 81 percent of felony charges filed by prosecutors completed within 180 days in the years leading up to the pandemic. Thus, the backlog depicted in Figure 2 likely represents most of the misdemeanor backlog amassed between May and December 2020 and a majority of the felony backlog.
Racial Inequality in the Justice System Came to the Fore in 2020
In May 2020, the world watched as George Floyd died at the hands of a Minneapolis police officer. In the wake of Floyd’s killing and subsequent international protests for racial justice, the Supreme Court of California issued a statement, partially quoted below, that recognized the inequalities in the justice system and pledged to work toward a system that treats all people fairly. At least 21 other states and the District of Columbia issued similar statements (NCSC 2020).
“In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all…
…[We] must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth.”
As the court indicated, California’s justice system produces inequitable outcomes, especially for Black people. Black people are more likely than people of other races to be stopped and searched (Lofstrom et al. 2021). Black individuals are more likely to be arrested for, convicted of, and incarcerated on felony charges (Lofstrom et al. 2020; JCC 2021a).
Racial inequities also seem to widen as people proceed through the justice system, with deeper disparities evident at imprisonment than at arrest. For example, Black Californians are just 6 percent of the state’s population, but 16 percent of those arrested and 29 percent of those incarcerated (Harris et al. 2019; Lofstrom et al. 2020).
Effectively addressing these and other inequities requires understanding how criminal justice outcomes are produced. In this spirit, I examine how the pandemic and, later, remote hearing policies, affected racial equity in conviction and sentencing outcomes within six months of arrest.
Racial Differences in Criminal Case Outcomes Shifted amid the Pandemic
If the justice system worked fairly for everyone, people accused of similar crimes and who have similar criminal histories would experience similar criminal case outcomes—no matter their race. Yet before and during the pandemic, people of different races experienced conviction and sentencing outcomes at different rates in California, as depicted in Figures 3 through 5.
Figure 3 illustrates percentage point changes in rates of conviction within 180 days during the pandemic, relative to before it, and after adjusting for current crime and criminal history factors. The racial gap in adjusted conviction rates is the difference between the groups most and least likely to be convicted. The racial gap is an indicator of racial inequity.
Figure 4 and Figure 5 show similar changes—and racial gaps—in four sentencing outcomes that occur within 180 days of arrest. Prison sentences include any prison sanction, including suspended sentences. Jail sentences include any jail sanction (e.g., split sentences) but not prison. Probation sentences do not include jail or prison, but may include money sanctions. Money sanctions include fines, fees, restitution, and court costs.
The likelihood that arrests led to convictions within 180 days fell 6.5 percentage points, from 22.0 percent before the pandemic to 15.5 percent during it. The racial gap in conviction outcomes stayed about the same during the pandemic as it had been prior to it.
However, the groups most and least likely to be convicted shifted. Before the pandemic, Black individuals were least likely (20.4%) and Latino individuals were most likely (22.7%) to be convicted. During the pandemic, Asian Americans were least likely (14.1%) and Native Americans were most likely (16.3%) to be convicted. As shown in Figure 3, Native Americans saw the smallest decrease in likelihood of conviction and Asian Americans saw the largest decrease—a difference of 2.2 percentage points.
Conviction outcomes decreased for people of all races during the pandemic, and racial inequity remained
SOURCE: Author calculation from DOJ ACHS and court policy data.
NOTES: Change in the conviction rates is by percentage points. All estimates are statistically significant at p<0.001. Figure depicts adjusted probabilities predicted after regression models that predict each case outcome as a function of a binary “before-during” pandemic indicator; the covariates in Technical Appendix Table A3, which include current charge and level and past arrest, conviction, and sentencing information; and dummy variables for each county (Los Angeles is the base). Before the pandemic is March through December 2018. During the pandemic is the same period in 2020. Average predicted probabilities were estimated holding all adjustment factors at their means. See Appendix Table C3 for underlying data, information on unadjusted outcomes, and racial gaps.
The pandemic affected sentencing outcomes less consistently. Both before and amid the pandemic, about 6 percent of those convicted received money sanctions. However, the racial gap in the likelihood of money sanctions increased by 0.5 percentage points (from 2.1 to 2.6 percentage points). Outcomes for Native Americans explain this increase. The likelihood of a Native American receiving a money sanction rose 2.1 percentage points during the pandemic, whereas inconsistent shifts among people of other races were at least five times smaller.
The overall likelihood of receiving probation decreased from 12.0 percent in 2018 to 11.4 percent in 2020. The racial gap in probation sentences fell from 2.5 percentage points to 0.8 percentage points for two reasons. First, the likelihood of Asian Americans and Native Americans receiving probation fell—from about 2 percentage points more likely to 2.3 and 1.7 percentage points less likely, respectively, to receive probation than people of other races. The likelihood of probation rose by 0.4 percentage points for Black defendants, who had been least likely (10.9 percentage points) to be sentenced to probation before the pandemic.
Racial gaps in money sanctions increased, whereas racial gaps in probation decreased amid the pandemic
SOURCE: Author calculation from DOJ ACHS and court policy data.
NOTES: Figure depicts adjusted probabilities, which are statistically significant at p<0.001.See Figure 3 notes for more information.
During the pandemic, the likelihood of receiving a jail sentence increased by 1.4 percentage points, from 73.8 to 75.2 percent. The racial gap in jail sentences also increased by 0.9 percentage points, from 1.6 to 2.7 percentage points, mainly due to lower rates of jail sentences among Native Americans (down 1.2 percentage points) and higher rates among Asian Americans (up 2.4 percentage points). People of other races were also more likely to be sentenced to jail, as shown in Figure 5.
Adjusting for other factors, prison sentences became slightly less common during the pandemic than they had been before—falling from 6.6 to 6.4 percent. However, the racial gap in prison sentences increased 0.9 percentage points, from 1.0 to 1.9 percentage points, primarily because Black people, who were least likely to be sentenced to prison within six months before the pandemic (5.8 percent), became even less likely to be sentenced to prison during the pandemic (5.1 percent).
The pandemic affected prison outcomes for people of other races differently. Prison sentences decreased for white defendants but increased for Asian and Native Americans. Latino defendants were about as likely (6.8 percent) to be sentenced to prison before the pandemic as they were amid it.
Racial gaps in jail and prison sentences increased amid the pandemic
SOURCE: Author calculation from DOJ ACHS and court policy data.
NOTES: Figure depicts adjusted probabilities, which are statistically significant at p<0.001.See Figure 3 notes for more information.
In sum, racial inequity in conviction and sentencing outcomes predated the pandemic and persisted amid it. The likelihood of conviction within 180 days fell substantially during the pandemic. Yet the racial gap remained the same, even though differences in conviction rates between specific racial groups changed. Post-conviction probation and prison sentences became less likely amid the pandemic, whereas sentences involving jail and money sanctions became more likely. Racial inequities narrowed for probation outcomes, but widened for prison, jail, and money sanctions. Understanding these preexisting and persisting racial inequities will aid in understanding how the policies courts adopted to adapt to the pandemic shaped racial equity in criminal case outcomes.
How Courts Adapted to Pandemic Conditions
At the onset of the pandemic, California’s courts acted quickly to administer justice amid the public’s reluctance to interact with others, government shutdowns, backlogged criminal cases, and the need to protect both public health and public safety—and some adaptations may have contributed to racially disparate conviction and sentencing outcomes. After the governor issued the state of emergency declaration on March 4, 2020, many superior courts began modifying their operations. For example, the superior court in Imperial County announced enhanced cleaning protocols on March 12.
However, courts also communicated their lack of authority to take more aggressive action. A March 13 press release from the Los Angeles County superior court reads, “The Presiding Judge of the Los Angeles Superior Court does not have the authority to close the courts in the event of a pandemic, which is what we are facing now, because such emergency orders must be authorized by the Chief Justice and/or Governor.” When the governor’s statewide shelter-in-place order took effect on March 19, courts were among the exempted entities. They remained open, albeit often with reduced operations. On March 27, the governor issued an order that allowed the Judicial Council to issue emergency rules to modify court operations.
The Judicial Council of California is the policymaking body for California courts. The council establishes statewide rules of court to guide superior court operations in California’s 58 counties. Superior courts have considerable latitude to operate within the policy framework the council establishes. This capacity to customize is essential to a system in which rural counties like Alpine, which has a population of 1,145, operate courts alongside those in Los Angeles, which has 10 million residents and is the most populous county in the nation.
The Judicial Council took swift action to help guide courts and give them adaptive policy options. Beginning on March 30, the council, which is headed by the chief justice, issued a series of emergency orders intended to help courts function while protecting public safety. The policies espoused in those orders included modifying pretrial release practices to reduce incarcerated populations, permitting remote hearings to maximize social distancing and avoid in-person interactions, and extending case processing timelines to accommodate the inevitable delays associated with adapting to pandemic conditions.
While some of these policies applied statewide, others could be implemented at the discretion of each superior court. Moreover, courts were given broad latitude to implement emergency policies of their own. As a result, courts adopted pandemic policies unevenly across the state.
Courts Implemented Three Main Pandemic Policies in Criminal Cases
The Judicial Council’s emergency orders provided a toolkit that allowed superior courts to modify their operations with agility. Ordinarily, rules changes such as these undergo public and judicial scrutiny. Amid the worldwide public health emergency, the council prioritized the capacity to adapt. The main pandemic policy adaptations the council recommended and that courts adopted for criminal cases were zero bail, time extensions, and remote hearings.
As the pandemic unfolded, concern about the health of incarcerated people and their potential impact to the health of nearby communities began to grow (Harris 2020; Western and Plummer 2023). The Judicial Council cited this concern in an order that set bail at $0 for most misdemeanors and lower-level felonies (Corren 2020).
Prior to the order, each county independently developed a schedule to guide the amount of bail applied to criminal offenses—and those amounts varied widely across counties (Harris et al. 2019; Tafoya 2013). By contrast, the zero-bail order set a single schedule that applied statewide to misdemeanor and low-level felony arrests made between April 13 and June 20, 2020. After the council rescinded the statewide order, some counties continued setting bail at $0 to help keep jail populations down (Ballasone 2020; Lofstrom and Martin 2020; Premkumar et al. 2023).
With orders issued on March 23 and March 30, 2020, the Judicial Council allowed courts to extend time for arraignments, trials, and other proceedings. Though the council order allowed incremental, months-long extensions to trial timelines, trials are uncommon. In California and nationally, less than 3 percent of criminal cases are tried and the rest resolve through plea bargaining. Moreover, jury trials were suspended across much of the state during 2020. Therefore, arraignment extensions were likeliest to affect criminal case outcomes in the first year of the pandemic.
The council’s order allowed the time between arrest and arraignment on felony charges to be extended from 48 hours up to seven days. Superior court orders specified misdemeanor arraignment extensions that were far more variable, ranging from about one week to three months, particularly for those released pending arraignment.
Before the pandemic, in-person criminal hearings were the default in most types of hearings. Those accused of felonies were required to appear in person. Under Section 977 of the penal code, those accused of misdemeanors (with a few exceptions) could request remote appearances or for counsel to appear on their behalf. Remote appearance requests of this type seem to have been rare before the pandemic.
Before the pandemic, remote technologies were used regularly only in a small minority of specialized hearings, mainly involving people incarcerated or working in state prisons and hospitals. For example, one court official noted, “[The] county held remote CDCR felony arraignments prior to 03/13/20.” Similarly, a May 9, 2020 press release from the superior court in Los Angeles County indicated, “Since last year, the mental health courts have used video from the California Department of State Hospitals to allow for remote testimony by treating physicians.”
During the pandemic, in-person operations became a threat to public health and to the health of people working in the courts. To help mitigate that threat, the Judicial Council issued an order allowing superior courts to conduct hearings using teleconferencing and videoconferencing technologies. Each court could decide whether, when, and how to operate remotely.
Implementing Pandemic Policies Proved Challenging
Courts faced challenges balancing stakeholder interests with the need to protect public health and safety. Most courts adopted pandemic policies in consultation with other stakeholders in their local criminal justice communities. For example, an undated Imperial County press release that applied time extension and remote hearing policies to some cases reads, “On March 16, 2020, leadership of the Superior Court of Imperial County met with representatives of Imperial County’s justice community—including the County Executive Office, District Attorney’s Office, Public Defender’s Office, County Counsel, and Child Support Services—to discuss steps the court and its partners could take to comply with the governor’s executive order and recommendations, while at the same time protecting the rights of everyone impacted by the criminal and juvenile justice systems.”
However, balancing conflicting interests also tested relationships between some courts and their justice partners. Some court orders reflect these tensions. For example, in Amended Administrative Order Number 20-09, which applied zero bail, time extension, and remote hearing policies in Orange County, the court wrote, “Despite criticism from the Orange County district attorney and public defender, who, along with other justice partners, have always been consulted with the court’s plans, the court will continue to provide justice consistent with the conditions that exist and the recommendations of Chief Justice Tani Cantil-Sakauye.”
Adapting to the pandemic also increased costs associated with, for instance, acquiring and administering new technologies and developing and executing enhanced cleaning protocols. As courts began to absorb these costs, the state cut the judicial system’s funding. Individual superior courts faced substantial budget cuts—often on the order of millions of dollars—that affected operations. A press release issued on November 6, 2020 by the Santa Clara County Superior Court detailed the impacts of those cuts and implicated resultant staffing shortages in the case backlog, “[In] June 2020, the state cut $176.9 million from trial court funding; this significant budget reduction caused in excess of a $16M deficit for the Santa Clara County Superior Court. To bridge this deficit, the court…reduced [the] available workforce.… Due to the reduction in court employees available to work, adherence to social distancing requirements, and efforts to maintain a safe, sanitized, and healthy forum in which to do business, processing times have increased across all court divisions.”
Broader trends that affected the availability of goods and services also limited courts’ ability to adapt to pandemic conditions. Even courts that adopted pandemic policies early described challenges with implementation; as one court official described, “The [court] began remote appearances about three days after the Bay Area shelter-in-place orders were instituted, and after the court was able to procure and install a limited number of video monitors. As the court was able to find and install large screen monitors in its courtrooms, the number of remote hearings gradually expanded during the weeks and months after the initial shelter-in-place orders were instituted.”
Courts Adopted Pandemic Policies Unevenly
The aforementioned challenges, which differed across counties, likely contributed to the uneven adoption of pandemic policies across the state. As illustrated in Figure 6, the 58 superior courts differed in whether, when, and for how long they applied remote hearing and arraignment extension policies to criminal cases.
Most courts adopted these policies in March. Others waited. Some courts applied, lifted, and reapplied pandemic policies multiple times, whereas others implemented them continuously. On average, arraignment extension policies applied for 81 days and remote hearing policies were in place for an average of 180 days in 2020. For three counties, I found no evidence of arraignment extensions. Similarly, I found no evidence of a remote hearing policy in nine counties.
Why courts varied so widely in whether and when they adopted pandemic policies is not always clear. Superior court orders typically included a preamble that describes the powers granted to them during the public health emergency. However, only some courts attempted to further describe the circumstances that motivated their policy decisions. Among those that did, the overwhelming weight of the evidence suggests that pandemic conditions drove policy decisions.
When implementing or extending remote hearing and time extension policies for criminal cases, presiding judges typically described the public health threat the virus posed, including citing COVID-19 case rates in the county and in county jails, rates of illness among employees, and the implications of local and state decisions—especially public health mandates—on court operations.
Counties adopted pandemic policies with considerable variation in timing, duration, and repetition.
Bars represent the number of days pandemic policies were in place between March 1 and December 31, 2020
SOURCE: Author illustration based on court orders, press releases, and local rules.
NOTE: See Technical Appendix A for information about the underlying data.
Courts Also Implemented Pandemic Policies Differently
Even when courts adopted similar pandemic policies, their orders, press releases, and rule changes reflected key operational differences. To examine these differences, I attempted to survey all superior courts to learn directly from them if and how they implemented remote hearing and time extension policies in criminal cases. Of the 58 courts, 35 responded. Their responses indicated that how each court implemented time extension and remote hearing policies varied along a few key dimensions: the proceedings to which each policy applied, whether policies became the default or remained as options, and whether official policy aligned with common practice.
Official policy and common practice did not always align
A few superior courts issued orders adopting policies that they did not implement or implemented policies that they never formally adopted. One court that never formally adopted a remote hearing policy—both by our document review and their own report—nevertheless described requiring remote appearances in some instances.
“Under Emergency Rules Related to COVID-19 and General Orders, the court was permitting and in some cases requiring remote appearances in any hearing, conference, or proceeding if the court determined that a Zoom appearance was appropriate”
Contrastingly, a court that had adopted a time extension policy also reported extending time only rarely.
“It is important to note that just because the authority to extend deadlines existed, does not necessarily mean deadlines were, in-fact extended…[Even] though the authority existed to extend arraignment deadlines, the court extended very few, if any, arraignments, as a result of video arraignments.”
Though counties reported these scenarios rarely, they illustrate the differences in how policies were implemented during the pandemic.
Pandemic policy defaults differed between and within counties
Among the counties that adopted pandemic policies, some defaulted to remote hearings or time extensions, whereas others granted them when they were requested. In short, pandemic policies could have been the rule or the exception to it, often depending on the type of criminal hearing and when in the pandemic it occurred.
“During various stages of the pandemic, the court allowed and/or required remote appearances for nearly all case types.”
“The court allowed defendants and counsel to appear remotely upon a request being submitted to the court with a reason/explanation of unavailability to appear in person.”
“Any felony time extensions were granted at the request of the parties.”
Additionally, whether a pandemic policy was the default or most commonly applied policy varied within counties throughout the pandemic, typically with coronavirus restrictions in the broader community.
“[How many cases were heard remotely] has been highly variable depending on what point of the pandemic is being referenced. For the first year or two of the pandemic, more than half to nearly all in-custodies were done remotely. That number has greatly reduced.”
“The number of remote criminal hearings were at their highest mid to late 2020 when restrictions related to our COVID response were also at their highest. Remote hearing[s] began to decline as restrictions were lifted.”
When and how courts held arraignments differed by custody status and charge
Two survey questions asked court respondents to indicate a range for the number of arraignments heard remotely by charge level and defendants’ custody status. People held in jail are “in custody,” whereas those who are not are “out of custody.” I asked respondents for their best impression of what happened in the early days of the pandemic. Two courts did not respond to these questions.
Criminal defendants held in custody were more likely to be arraigned remotely than those out of custody, regardless of offense level. Figure 7 illustrates the various ways in which the remote hearing policy was applied among the 33 courts that responded.
Three quarters of the responding counties held remote arraignments for defendants in custody, stating that “More than Half” or “All or Nearly All” of these hearings were remote. However, a few counties also reported that “None or Almost None” of the hearings for those in custody were remote.
Conversely, slightly less than half of counties held remote arraignments for those out of custody, indicating that “Less than Half” or “None or Almost None” of out-of-custody defendants had remote hearings, whereas just under one in four reported remote arraignments for “More than Half” or “All or Nearly All” of this group of defendants.
A majority of courts reported remote arraignments for defendants who were held in custody
SOURCE: Author illustration from court survey data.
NOTES: Data from 33 respondents. Two of the 35 did not provide answers to these questions. See Technical Appendix Table A2 for additional information on holding trials and sentencing hearings remotely.
The survey respondents explained this result. Whether a person was in custody or out of custody at the time of arraignment shaped when the hearing occurred—and whether it occurred remotely. Those held in custody pending arraignment were typically arraigned sooner. They were also more likely to be arraigned remotely. However, even defendants with the same custody status could be subject to different defaults. Some courts reported conducting “all” in-custody arraignments remotely.
“From March 2020–June 2020, the court was closed except for emergency and essential proceedings. During this time, all in-custody arraignments and other essential matters were conducted by Zoom. Once the court re-opened, the court continued to allow Zoom proceedings for various matters including in-custody arraignments.”
By contrast, other courts had policies to determine whether people held in custody preferred to appear in person.
“The court would require the jail inquire with the defendants if they would like to appear in person or via video for their arraignment. If they opted to appear in person they would appear in person.”
Those held in custody were arraigned from jail, where it was easier for the courts to create centralized systems to conduct arraignments remotely. By contrast, those who were released may or may not have had access to remote technologies where they lived. In addition, courts indicated challenges around informing out-of-custody defendants about remote options.
“With misdemeanors…the number of out-of-custody criminal arraignments by remote appearance was always significantly less due to the challenges of providing clear notice and instruction of how to appear remotely.”
This difference in the types of cases that courts were most likely to hear remotely, along with other pandemic policies, created a bifurcation between how the courts managed hearings for individuals accused of serious felonies compared to those accused of misdemeanors and lower-level felonies. Shifting police practices, including more liberal cite-and-release policies and zero-bail orders, meant that misdemeanor defendants were more likely than felony defendants to be released prior to arraignment.
Those accused of serious offenses were more likely to be in custody and, therefore, were arraigned sooner (within seven days, per the Judicial Council order) and more commonly via remote technology. Comparatively, out-of-custody defendants who had been accused of misdemeanors had more time between arrest and arraignment (up to 90 days) and were more likely to be arraigned in person.
Criminal Defendants’ Exposure to Pandemic Policies Varied by Race
Uneven adoption of pandemic policies, coupled with uneven distribution of racial groups across counties, led to differences in the rate that people of different races were exposed to pandemic policies after being arrested, as shown in Figure 8. Statewide, the percentage of days that pandemic policies applied in each county during 2020 had a negative correlation with the prevalence of white people and Native Americans in a county and a positive correlation with that of Black and Latino people. Correlations for Asian Americans were positive, but quite low. In other words, Black and Latino people were more likely—and white and Native American people were less likely—than Asian Americans to live in counties that adopted pandemic policies.
The rate of exposure to pandemic policies differed by the race of the arrested person in 2020
SOURCE: Author illustration from 2020 DOJ ACHS and court policy data.
NOTES: The first three columns reflect the share of arrests made in 2020 (January–December) to which remote hearing, arraignment extension, and zero bail applied. The last column reflects the share of arrests for which the most serious charge was zero-bail eligible. All differences are statistically significant at p<=0.001.
Because Black and Latino people are more likely to live in counties that adopted pandemic policies, Black and Latino people were more likely than people of other races to be arrested when pandemic policies were in place. When courts had policies in place that extended arraignments, about 32 percent of arrests involving Black and Latino individuals occurred, as compared to 28 percent of arrests involving white individuals, 26 percent for Asian Americans, and 22 percent for Native Americans.
Similarly, more than half of arrests of Black and Latino people happened when remote hearing policies applied, as compared to around 45 percent of arrests involving Asian Americans, Native Americans, and whites. State or county zero-bail orders applied to about 57 percent of the arrests made in 2020. However, relative to people of other races, Native Americans were between 8 and 16 percentage points less likely to be arrested under a zero-bail order.
These racial differences can matter. For example, Native Americans who were arrested for misdemeanors and lower-level felonies may have been more likely than people of other races to have bail amounts applied in their cases because they were far less likely to have been arrested under a zero-bail order. Higher bail amounts make pretrial release less likely, which can negatively affect case outcomes, as is discussed in the text box below.
Remote Hearings Endured in Criminal Courts as Other Policies Faded
Remote hearings may be the only pandemic policy to persist beyond the pandemic. Though a select few county courts continued to extend criminal trial timelines in 2022, arraignments now proceed on normal timelines across the state. Similarly, all counties have phased out zero-bail schedules (Premkumar et al. 2023).
In March 2021, the chief justice of California convened a workgroup to study the court policies and practices that had been implemented during the pandemic. The first interim report from the Workgroup on Post-Pandemic Initiatives (“the workgroup”) focused on remote access to the courts because “it was the central issue raised in nearly every presentation to the Workgroup,” (WPPI 2021: 1). The workgroup cited benefits of allowing remote access to the courts that included lower failure-to-appear rates and lower transportation costs. Concerns the workgroup raised included challenges around ensuring attorneys can confer privately with their clients.
Despite these challenges, the workgroup was resolute in its recommendations to “maximize remote access on a permanent basis for most proceedings” and promote “consistency in remote access throughout the state” (WPPI 2021: 10). Soon thereafter, the state legislature enacted AB 199, which allowed remote appearances in all criminal proceedings, with the exception of the felony trials, through 2023. However, the legislature approved these actions without evidence on how allowing remote appearances in criminal cases affected—or might affect—defendants’ outcomes. Unfortunately, even prior to the pandemic, such evidence was sparse. No prior study has estimated the impact of remote hearings on criminal disposition and sentencing outcomes.
Remote Hearing Policies Impacted Criminal Case Outcomes
Key features of California’s pandemic policy environment allow me to determine whether and how much remote hearing policies—independent of other pandemic policies and events—affected conviction and sentencing outcomes. Primarily, superior courts varied dramatically in when and for how long they applied remote hearing policies, as illustrated earlier in Figure 6.
To distort the impact of remote hearing policies, other policies or events would need to be similar in nature and occur with similar variation across counties. Figure 6 also illustrates the unlikelihood of that scenario, by showing how the timing and duration of arraignment extension policies varied. No two counties follow the same pattern of adopting pandemic policies.
In addition, orders from the superior courts indicate that pandemic conditions—and not a desire to expedite case processing—motivated courts to adopt remote hearing policies. Superior court orders mentioned case backlogs very rarely and never in the context of justifying a remote hearing policy. Even still, implementing remote technologies may have helped California courts overcome their case backlogs (JCC 2021b); and seasonal peaks in virus transmission, which encouraged courts to adopt or continue remote hearing policies, coincided with lower rates of case resolution. Therefore, my analyses account for seasonal virus peaks and other factors that change over time and are constant across counties as well as factors such as population density that differ between counties, are time stable, and are associated with virus transmission.
However, the analyses likely underestimate the impact of adopting (versus not adopting) a remote hearing policy on criminal case outcomes for at least two reasons. The data do not show whether individual hearings were held remotely or in person but whether a remote hearing policy was in place when each arrest was made—and some arrests made under remote hearing policies were adjudicated in person and vice versa. In addition, some of the dates during which pandemic policies applied may not be accurate (i.e., whether a remote hearing policy applied at the time of arrest is subject to measurement error). Both of these conditions tend to push estimates toward zero.
Conviction Rates Decreased under Remote Hearing Policies
Remote hearing policies contributed to the drop in the likelihood of conviction within 180 days amid the pandemic. As shown in Figure 9, the overall impact of the pandemic compares what happened in the first ten months of the pandemic to the same period in 2018. During the pandemic, conviction rates fell 5.6 percentage points for all arrests, 6.8 percentage points for felony arrests, and 5.9 percentage points for misdemeanors.
Remote hearing policies reinforced this pandemic trend. Being arrested when a remote hearing policy was in place, as compared to when it was not, reduced the average probability of conviction by 1.5 percentage points. The impact was similar (1.4 percentage points) for felony and misdemeanor cases, as shown in Figure 9.
Remote hearing policies contributed to pandemic trends that reduced rates of conviction within 180 days
SOURCE: Author illustration from 2020 DOJ ACHS and court policy data.
NOTES: Percentage points shown. * = statistically significant at p<=0.05. Overall Impact of Pandemic indicates changes in outcomes during the pandemic relative to before it. Impact of Remote Hearings indicates changes in outcomes when remote hearing policies were in place, as compared to when they were not. Overall Impact of Pandemic shows average marginal effects (AME) estimated after fixed effect linear probability models that predict each criminal case outcome as a function of a binary “before-during” pandemic indicator, the covariates in Technical Appendix Table A3, and dummy variables for each county (Los Angeles is the base). Impact of Remote Hearings shows AME estimated after two-way fixed linear probability models that predict each criminal case outcome as a function of a binary “remote hearing policy in place at arrest or not” indicator, the covariates in Technical Appendix Table A3, dummy variables for each county, and dummy variables for each month (January 2020 is the base). Each model is applied to three data samples: All arrests or convictions (felony and misdemeanor combined), Felony arrests or convictions, and Misdemeanor arrests or convictions. Pandemic models compare 2018 to 2020 (March–December). Samples sizes: All Arrests = 1,559,197; Felony Arrests = 609,749; Misdemeanor Arrests = 949,448; All Convictions = 305,317; Felony Convictions = 72,120; Misdemeanor Convictions = 233,197. Remote hearing models look within 2020. All Arrests = 801,521; Felony Arrests = 347,836; Misdemeanor Arrests = 453,685; All Convictions = 106,753; Felony Convictions = 32,347; Misdemeanor Convictions = 74,406. AME are estimated holding all other covariates (including race) constant at their means and using STATA’s margins routine. Technical Appendix B describes these methods in more detail. See Technical Appendix Tables C6 and D1–D4 for more information.
Remote hearing policies lowered the likelihood of conviction within six months for people of all races. However, the size of the impact varied across race. Only cases involving Black, Latino, and white defendants showed statistically significant impacts, as shown in Figure 10. Remote hearing policies reduced conviction rates for Black people more than for people of other races. Arrests of Black people were 2.1 percentage points (from 13.3 to 11.2% of arrests) less likely, whereas arrests of white people were 1.4 percentage points (from 13.8 to 12.4% of arrests) and those of Latino defendants were 1.3 percentage points (from 14.6 to 13.3% of arrests) less likely to lead to convictions.
Across offense levels, the likelihood of conviction fell for white, Latino, and Black defendants under remote hearing policies
SOURCE: Author illustration from 2020 DOJ ACHS and court policy data.
NOTES: Percentage points shown. * = statistically significant at p<=0.001. See note to Figure 9 for details about estimation. Average marginal effects (AME) for each racial group are estimated by holding all other covariates constant at their means and using margins in STATA. See Technical Appendix Figure C5 and Tables C6 and D2–D4 for more information.
The impact of remote hearing policies also varied within and across offense levels, particularly for Black people compared to white people. Convictions in cases involving white defendants were less affected by remote hearing policies than cases involving Black defendants. Misdemeanor cases seemed to drive these results. Conviction rates decreased by 1.3 percentage points (from 11.8 to 10.5% of arrests) for white defendants and decreased 2.2 percentage points (from 11.7 to 9.5% of arrests) for Black defendants under remote hearing policies—and the differences between the groups are statistically significant.
Sentencing Patterns Changed under Remote Hearing Policies
Remote hearing policies reinforced pandemic trends in conviction rates, but counteracted trends in sentencing. Across offense levels, defendants were less likely to receive money sanctions and probation and more likely to be incarcerated amid the pandemic, relative to before it. These overall pandemic trends are shown in Figure 11 alongside the impact of remote hearings.
Remote hearing policies acted in opposition to these pandemic trends. When remote hearing policies were in place, people convicted for any crime were 0.4 percentage points more likely to receive a money sanction and 0.6 percentage points more likely to receive probation than when such policies were not in place. By contrast, those convicted for any crime were 1 percentage point less likely to receive a jail sentence. As shown in Figure 11, these impacts counteract each other.
The impact on sentencing outcomes of remote hearing policies tended to counteract pandemic trends
SOURCE: Author illustration from 2020 DOJ ACHS and court policy data.
NOTES: Percentage points shown. * = statistically significant at p<=0.05. + = statistically significant at p<=0.06. Overall Pandemic Impact indicates changes in outcomes during the pandemic relative to before it. Impact of Remote Hearings indicates changes in outcomes when remote hearing policies were in place, as compared to when they were not. See note to Figure 9 for information about AME estimation. See Technical Appendix Figures C6–C9 and Tables C6 and D1–D4 for more information.
Remote hearing policies produced offsetting sentences. For felony convictions, jail sentences increased 1.6 percentage points and prison sentences decreased 1.5 percentage points when remote hearing policies were in place—a nearly even offset that is marginally statistically significant. Similarly, after misdemeanor convictions, jail sentences decreased 2.1 percentage points, whereas offsetting sentences that involved probation and money sanctions each increased by 1.0 percentage point, as shown in Figure 11.
Sentencing offsets are evident across race and offense level, as shown in Figure 12, but only some are statistically significant. Cases involving white defendants were 2.1 percentage points less likely to lead to jail and more likely to lead to money sanctions (1.1 percentage points) and probation (1 percentage point). Misdemeanors drove these impacts. Misdemeanor convictions of white people were 3.0 percentage points less likely to result in jail (from 81.7 to 78.7% of convictions), 1.5 percentage points more likely to lead to money sanctions (from 7.9 to 9.4% of convictions), and 1.3 percentage points more likely to receive probation (from 9.7 to 11.0% of convictions).
Remote hearing policies led to racially disparate offsetting sentences within offense levels
SOURCE: Author illustration from 2020 DOJ ACHS and court policy data.
NOTE: Percentage points shown. * = statistically significant at p<=0.05. See the notes to Figures 9 and 10 for more information about AME estimation. See Technical Appendix C Table C8 and Figures C6–C9 for more information.
Misdemeanor cases were also less likely to lead to jail for Latino (1.2 percentage points, from 80.7 to 79.5% of convictions) and Black (2.4 percentage points, from 81.8 to 79.4% of convictions) defendants. Black defendants were 1.9 percentage points more likely to receive money sanctions (from 8.3 to 10.2% of convictions) as an offsetting sentence. By contrast, Latino defendants were 1.1 percentage points more likely to receive probation (from 9.8 to 10.9% of convictions) after misdemeanor convictions.
Remote hearings marginally shifted average felony sentencing outcomes, mainly by changing the outcomes of Black people. Though felony sentencing trends were similar across racial groups, only Black defendants experienced statistically significant offsetting. Felony convictions of Black defendants were 4.0 percentage points more likely to involve jail sentences (from 66.6 to 70.6% of convictions) and 3.8 percentage points less likely to lead to prison time (from 26.6 to 22.8% of convictions). Remote hearing policies had no statistically significant impact on felony sentencing for white, Latino, or Native American defendants. Asian Americans convicted of felonies when remote hearing policies were in place were 3.2 percentage points less likely to be sentenced to probation (from 4.5 to 1.3% of convictions).
Remote Hearing Policies Shaped Racial Equity in Criminal Case Outcomes
During the pandemic, the likelihood of conviction varied among people from different racial groups, as did the likelihood of receiving one of the other sentences: money sanctions, probation, and jail. Statistically significant differences in outcomes were most consistent for Black and Latino people, relative to white people. Only a portion of these racial and ethnic differences could be explained, as shown in Figure 13.
Collectively, factors related to the current case, such as whether the offense is a felony, and to prior criminal history, such as whether a previous conviction included violence, accounted for most of the racial differences in conviction and sentencing rates that could be explained. Yet remote hearing policies also helped to explain these racial differences. Moreover, the relative size of the contributions made by remote hearing policies was similar to the size of contributions from many current and prior crime factors. This matters because whether a hearing is held remotely or not should not affect conviction and sentencing outcomes. According to the law, current case and criminal history factors could.
Remote hearing policies contributed to racial differences in conviction rates
For conviction outcomes, Figure 13 indicates that Latino people were 1.6 percentage points more likely than white people to be convicted in 2020 and that the variables in the regression model explained—or accounted for—about half of that difference. The other half remained unexplained. Black people were 1.6 percentage points less likely than white people to be convicted, with about 70 percent of that variation explained.
Remote hearing policies accounted for a nontrivial share of the racial disparities in conviction rates, amounting to -0.11 percentage points for Latino people relative to white people and -0.09 percentage points for Black people compared to white people. Put another way, of the race differences in conviction rates that the data explain, remote hearing policies accounted for 13 percent of the difference between white and Latino people and 8 percent of the difference between white and Black defendants. The size of these contributions rivals those of some current case and criminal history factors. For example, current felony charges reduced differences in Latino-white conviction rates by 0.13 percentage points and prior arrest types reduced Black-white differences in conviction rates by 0.09 percentage points.
Remote hearing policies contributed to racial differences in criminal case outcomes
SOURCE: Author illustration from 2020 DOJ ACHS and court policy data.
NOTES: Percentage points are shown. After regression analysis, decomposition analysis calculates how much of the overall differences between white people and people of other races are explained by the covariates included in the regression model and how much each group of conceptually related covariates or “factor group” contribute to that explanation. The stars next to the overall racial difference bars indicate statistical significance for overall difference between white people and people of other races and that the variables in the model together explain a statistically significant share of the overall difference. A star next to a factor group indicates that the contribution of the factor group is statistically significant at p<=0.05. The sign on the percentage point estimate indicates whether the factor increases (+) or decreases (-) the racial difference. Decompositions were calculated with b1x2 in STATA. Only factor groups related to current crime and criminal history are shown. Technical Appendix B describes these methods in more detail. See Technical Appendix Tables A3 and B1 for the variables included in each factor group. See Technical Appendix Table C9 and Figure C3 for more detail related to factor group contributions, differences between whites and other racial groups, and case outcomes that are not included in this figure.
Remote hearing policies contributed to racial differences in sentencing rates
The general conclusions related to conviction outcomes also apply to sentencing: some racial differences can be explained and some cannot. Collectively, current case and prior criminal history characteristics account for most of the explained racial differences. Even still, remote hearing policies do contribute to these explained differences, and the contributions are similar in size to some individual current case and prior criminal history factors.
Consider the likelihood of receiving a jail sentence. Even though current case characteristics—misdemeanor charges for Latino people and felony charges for Black people—account for most of the Latino-white and Black-white differences in jail sentence rates, remote hearing policies account for -0.13 percentage points (about 5%) of the Latino-white and -0.11 percentage points (about 4%) of the Black-white differences in jail sentences—and these impacts are statistically significant. For Latinos, the magnitude of this contribution rivals or bests that of prior arrest, prior conviction, and prior sentencing characteristics. For Blacks, remote hearing policies account for about a third as much of the racial difference in the likelihood of receiving a jail sentence as current misdemeanor arrest and prior conviction characteristics do. Similar conclusions can be drawn regarding how remote hearing policies shape racial inequity in probation and money sanction outcomes.
Understanding initial inequity is crucial to interpreting policy impacts
The impacts of remote hearing policies varied across the different criminal case outcomes and were consistent across racial group comparisons. Remote hearing policies reduced racial differences in conviction and jail sentence rates between white and Latino defendants and between white and Black defendants. By contrast, remote hearing policies increased racial disparities in the likelihood of being sentenced to money sanctions and probation.
Although remote hearings affected case outcomes similarly across racial groups, those impacts carry different meaning when baseline differences point in opposite directions. With conviction rates, the white-Black difference and the white-Latino difference was similar at 1.6 percentage points, but positive for Latino defendants and negative for Black defendants. The white-Black difference narrowed because Black people became more likely to be convicted than white when remote hearing policies were in place. By contrast, the white-Latino difference narrowed under remote hearing policies because conviction probabilities for Latino defendants fell relative to those of white defendants.
For sentencing outcomes, interpretations are similar across race because initial race differences in sentencing rates pointed in the same direction. Amid the pandemic, Black and Latino defendants were more likely to receive money sanctions and less likely to receive jail or probation, compared to white defendants. Under remote hearing policies, Black and Latino defendants became even more likely to receive money sanctions and even less likely to receive probation than white defendants. By contrast, remote hearings decreased the racial inequity in jail outcomes. Relative to white people, Black and Latino people became less likely to receive jail time under remote hearing policies.
Charting a Path Forward for Court Policy
The policies that courts implemented to adapt to extraordinary pandemic conditions can guide policymaking in ordinary times. Though other states have already defaulted to remote modalities for many case types, Assembly Bill 199 allows California courts to conduct most criminal proceedings remotely only through 2023. In the 2023 session, legislators have introduced several bills, including Senate Bill 22 and Assembly Bill 1214, which would allow remote hearings for criminal cases to continue for a set period.
Remote technologies do not merely offer a means to access and administer justice. Whether courts hear criminal cases remotely shapes outcomes—especially for misdemeanor cases—and the impacts vary by race. These impacts to criminal case outcomes are likely underestimates because information on whether individual hearings were held remotely is not available, so the estimates are intent-to-treat.
Remote hearing policies also contributed to racial differences in conviction and sentencing outcomes, but current case and criminal history factors account for most of the differences. Uncertainty about why remote hearing policies affect criminal case outcomes and lack of information about whether their impact persisted deeper into the pandemic suggests that California policymakers should proceed with caution as they consider whether and under what conditions to conduct criminal proceedings remotely after AB 199 expires.
The pandemic deeply affected California courts and the courts reacted swiftly
Early in the pandemic, arrest rates dropped sharply while case resolution rates plummeted even further. As arrests began to accelerate, case resolutions rose slowly. By the end of 2020, an estimated backlog of at least 55,000 cases had accumulated. Courts adapted swiftly, with the state’s 58 superior courts issuing orders to modify pretrial practices, extend case timelines, and conduct hearings remotely. No two courts adopted the same policies at the same time—and the courts implemented policies differently. As a result, Latino and Black people had greater potential than people of other races to experience these pandemic policies.
Remote hearing policies affected criminal case outcomes
From a theoretical standpoint, whether hearings are held virtually or in-person should have no bearing on whether a defendant pleads guilty to a crime or how that person is punished. Yet under remote hearing policies in 2020, the likelihood that an arrest would lead to a conviction fell and sentencing patterns changed. Misdemeanor convictions led to noncustodial sanctions rather than jail. Felony convictions resulted in jail rather than prison.
Whether these outcomes are desirable likely depends on perspective. Defendants and public defenders might view fewer convictions positively, whereas victims and prosecutors might view them negatively. Similarly, how people perceive sentences can differ. For example, those convicted of misdemeanors might prefer jail sentences on the order of months to probation terms that could last two years. By contrast, victims might prefer to see courts impose a longer period of punishment and supervision, even if confinement is not involved.
Regardless of whether these outcomes are desirable, the data suggest that people of all racial groups experienced them to some degree. Therefore, if remote hearing policies and their impacts persist beyond the pandemic, California policymakers might anticipate lower six-month conviction rates, more people convicted of misdemeanors placed under community supervision rather than in jail, and more people convicted of felonies serving time in jail, rather than prison.
Preexisting racial differences shaped the equity impacts of remote hearing policies
Remote hearing policies affected equity in criminal case outcomes fairly consistently across racial groups, but inconsistently across outcomes. For Black and Latino people relative to white people, remote hearing policies reduced racial differences in conviction rates and the likelihood of receiving a jail sentence, but increased racial differences in the likelihood of receiving probation and money sanctions. The question of how to weigh these differences is multifaceted. For example, remote hearing policies widened race differences in probation and money sanction outcomes about half as much as they decreased them in conviction and jail outcomes. Yet it may be undesirable to deepen racial inequities in noncustodial sanctions, even if those in jail sentences close.
Preexisting racial differences in outcomes matter when considering how policies affect equity. Before the pandemic, California’s criminal justice system produced criminal case outcomes that were racially inequitable. Therefore, even when remote hearing policies promote racial equity, they will produce winners and losers—and policymakers will need to weigh these disparate impacts. For example, during the pandemic, unadjusted conviction rates were higher for Latinos, relative to whites, and lower for Blacks relative to whites. Accounting for remote hearing policies increased racial equity by reducing each of these racial disparities. Therefore, when remote hearing policies were in place, Latino individuals were less likely, whereas Black individuals were more likely, than white individuals to be convicted.
Future research should assess how remote hearings affect arraignment outcomes
Most people who face criminal charges make one court appearance that shapes whether they are convicted and how they are sentenced: they appear at arraignment. Nationally and in California, more than 97 percent of criminal cases resolve through plea bargaining, during which conviction charges and sentences are typically agreed upon. Therefore, for most criminal defendants, the question of whether hearings should be held remotely reduces to the question of whether arraignments should be held remotely.
Future research on the impact of remote hearing policies should focus on this initial hearing in the adjudication process. Future research should also attempt to understand the mechanisms that underlie any impacts remote hearings have on arraignment outcomes beyond the pandemic—an understanding this study could not achieve due to data limitations. Achieving that understanding would go a long way toward helping policymakers make informed decisions about whether to hold hearings remotely.
Data underpins research that can guide transformative policymaking
Racial inequality in criminal case outcomes predated the pandemic and persisted amid it. In response to protests against racial inequality in the justice system, the Supreme Court of California committed to working toward “a justice system that works fairly for everyone.” Realizing the promise of equal justice under the law requires constant vigilance in interrogating criminal justice outcomes and how they are produced. Only by persistently monitoring, evaluating, and reformulating policies can we detect unequal outcomes, understand how they take shape, and make the necessary changes to address them. Data is the backbone that supports that work.
California currently lacks comprehensive criminal justice data. The consequences of incomplete data are evident throughout this study. Whether an event is an arrest or booking decision is unclear, which can lead to duplication of arrest records. Charging decisions are not reliably reported, so prosecutions are evident only after disposition. Whether cases proceed virtually or in-person is unknown, which led to conservative estimates of policy impact. Finally, cases could only be followed for six months, which means the estimates in this report do not apply to longer-term cases.
California is not unique in lacking data that can illuminate how racial inequalities take shape across the stages of the justice system. During the pandemic, California and its courts led the nation in adopting and implementing policies to protect public health and public safety. As the pandemic wanes, the state can also lead the nation in developing a comprehensive criminal justice information system that can help the justice system engender equality.