“Injustice happens in empty courtrooms.”[1] This belief serves as a guiding star for Courtwatch PG, a growing courtroom observation effort based in Prince George’s (PG) County, Maryland. Courtwatch PG is powered by Life After Release, an advocacy organization led by formerly-incarcerated women in the D.C. metro area.[2] Courtwatch PG uses virtual court access to observe bond hearings, where each day members of the community—mostly poor, mostly Black and Brown—await a judge’s decision on whether they will return to a cage, or whether they will return to their homes and families.[3] Not only does pretrial detention disproportionately affect already-marginalized communities, but it also has ripple effects that exacerbate poverty. Courtwatch programs like Courtwatch PG seek to reduce this harm by increasing transparency in otherwise opaque courtroom proceedings. Virtual court access helps to make this transparency more than an empty promise.

How Pretrial Detention Harms Poor Communities

The causal relationship between pretrial detention and poverty flows in both directions. Poverty increases the likelihood of pretrial detention in part because poor communities—especially poor communities of color—face increased rates of surveillance and policing that result in disproportionate arrests.[4] Once arrested, over sixty percent of pretrial detainees nationwide remain caged because they cannot afford to post bail.[5] Even in jurisdictions where some bail reforms have taken effect, the problem can persist. In Maryland, for example, where the law has prohibited setting bail higher than what is financially feasible for the defendant since 2017,[6] judges often continue to set unaffordable bonds (even while ordering an increasing number of people to be held without bail).[7] As a result, even community members who pose no danger or risk of flight remain incarcerated solely due to a lack of financial resources.

The downstream effects of pretrial detention can also ravage the lives of poor community members. Even days-long absences from home and jobs—not to mention absences that stretch into weeks or months—can create a snowball effect of life-altering consequences.[8] Detention often results in missed work, which can lead to loss of job, which can lead to loss of housing.[9] Loss of housing and loss of employment, in turn, make caring for children more difficult, creating massive instability for families.[10] Unsurprisingly, individuals who have faced pretrial detention are more likely to suffer from lack of employment, lack of housing, and lack of crucial family connections years into the future.[11] Even more drastically, pretrial detention (where by definition, the incarcerated person has not been convicted of a crime) can be deadly. Most in-custody deaths occur during pretrial detention, and in 2022, at least nineteen people died in pretrial detention in New York alone.[12] Recent news reports have described multiple horrific jailhouse deaths of individuals held pretrial—such as LaShawn Thompson, who died covered in bedbugs after three months in an Atlanta jail.[13] The consequences of pretrial detention can destroy lives, exacerbate poverty and further marginalize communities of color most impacted by over-policing.[14]

How Courtwatch Programs Can Help

Of course, ending the harm caused by our current system of pretrial detention—and mass incarceration more broadly—requires many tools. Courtwatch programs are one item in that toolkit, creating important avenues for the public and policymakers to confront these systems that disproportionately harm poor, Black, and Brown community members.

Courtroom observation can reduce some immediate harms of pretrial detention and can help shore up power to produce systemic change. On a basic level, courtroom observation can help ensure that detained community members (called “loved ones” by Courtwatch PG volunteers) do not find themselves alone in the carceral system.[15] Courtwatchers take note, for example, when a loved one has a health condition or requires medication, and they can contact the jail to highlight needs that would otherwise go unmet.[16]

On a larger scale, Courtwatch programs can advance systemic change by shining a light on injustices and indignities that would remain in the shadows. When a judge laughs at a community member’s mental illness or sets an unaffordable bond in violation of the law, for example, volunteers at Courtwatch PG collect this information. They then challenge injustices over social media and generate accountability by writing letters to judges, the State’s Attorney’s Offices, police departments, and jail officials.[17] Courtroom observation can help identify trends, collect data, and generally illuminate inhumane treatment targeting the most vulnerable members of the community. A 2022 lawsuit on behalf of plaintiffs illegally detained in Prince George’s County jails relied extensively on information collected by Courtwatch PG.[18]

 

Why Virtual Court Access Matters

Virtual court access facilitates courtwatching by removing the barriers that can otherwise turn the right to public hearings into an empty promise. Although courts without remote access are technically “open” to the public, logistical challenges—such as transportation costs, work schedules, and lack of child care—can render this fundamental right practically meaningless, especially for poor communities on whom these burdens fall most heavily.[19] Thanks to virtual courtroom access, anyone from high school students to retirees can help protect rights and create accountability from anywhere in the country. Courtwatch programs have experienced significant growth in recent years, in part because the pandemic necessitated more virtual (and therefore more conveniently accessible) court proceedings.[20] Courtwatch DC launched last summer, and in February, a new National Courtwatch Network debuted as a hub for court transparency efforts across the country.[21]

Legislators must support courtroom transparency by supporting policies—like virtual access—that allow community members to attend their loved ones’ court proceedings and allow Courtwatch programs to thrive. Following the threat of discontinued remote court access in Prince George’s County, a movement to “keep courts virtual” served as a catalyst for Maryland legislation to codify remote court access.[22]  Senate Bill 43 (previously introduced in 2022 as Senate Bill 469 with House Bill 647) has received wide-ranging support from activists, local officials, and civil rights organizations.[23] The Thurgood Marshall Civil Rights Center, for example, recently produced a report on PG County bond hearings advocating for virtual access like that provided for in Senate Bill 43.[24] The bill has undergone numerous revisions to address concerns from critics (for example, judges will be able to restrict remote access if it would endanger an important state, defendant, or public interest).[25] In spite of this broad-based support, the bill has faced an uphill battle. After the previous version of the bill died in committee in 2022, the Maryland Senate judicial proceedings committee condemned the new bill to a similar fate by voting against it in March 2023.[26]  Advocates for virtual courtroom access remain determined, however, and will reintroduce the bill next year.[27] They will need support, and legislators must recognize the importance of robust public access to courtrooms through virtual access.

Virtual court access and increased courtroom transparency do not, on their own, solve the problems of criminalization, discrimination, and poverty that make courtroom transparency so important in the first place. Nevertheless, visibility and accountability can play an important role in mitigating harm now and dismantling oppressive systems for the future. As carceral practices continue to produce trauma and sustain inequality, these efforts could not be more necessary.

 

[1] Katie Mettler, Courtwatchers, Fiona Apple Fight Against “Assembly Line of Injustice”, Wash. Post (Feb. 16, 2023, 5:00 PM), https://www.washingtonpost.com/dc-md-va/2023/02/15/courtwatch-network-launch-fiona-apple/.

[2] Id.

[3] About Us, Courtwatch PG, (last visited Mar. 18, 2023), https://courtwatchpg.com/; QuickFacts: Prince George’s County, Maryland, U.S. Census Bureau (2022), https://www.census.gov/quickfacts/princegeorgescountymaryland (finding Prince George’s County is sixty-one percent Black and twenty percent Hispanic or Latino).

[4] Kami Chavis Simmons, Future of the Fourth Amendment: The Problem with Privacy, Poverty and Policing, 14 U. MD L. J. Race Relig. Gender & Class 240, 242, 257 (2015); Amelia L. Diedrich, Secure in Their Yards? Curtilage, Technology, and the Aggravation of the Poverty Exception to the Fourth Amendment, 39 Hastings Const. L.Q. 297, 313-17 (2011); Magnus Lofstrom, Joseph Hayes, Brandon Martin & Deepak Premkumar, Racial Disparities in Law Enforcement Stops, Pub. Pol’y Inst. of Cal., 3 (2021), https://www.ppic.org/publication/racial-disparities-in-law-enforcement-stops; see generally William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 Geo. Wash. L. Rev. 1265, 1272 (1999).

[5] U.S. Comm’n on Civil Rights, The Civil Rights Implications of Cash Bail ii (2022), https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.

[6] Md. Code Ann., Rule 4-216.1(e)(1) (West).

[7] Letters from Courtwatch PG to judges in Prince George’s Cnty., MD (2020–2023) (on file at https://courtwatchpg.com/judges) (see “Unaffordable Bonds – 11/9/2,” “Judge Lewis Unaffordable Bonds – 10/3/22,” and more letters documenting instances of unreasonable bonds); Lynh Bui, Reforms Intended to End Excessive Cash Bail in Md. Are Keeping More in Jail Longer, Report Says (July 2, 2018, 5:22 PM), https://www.washingtonpost.com/local/public-safety/reforms-intended-to-end-excessive-cash-bail-in-md-are-keeping-more-in-jail-longer-report-says/2018/07/02/bb97b306-731d-11e8-b4b7-308400242c2e_story.html.

[8] Tiffany Bergin et al., The Initial Collateral Consequences of Pretrial Detention, NYC Crim. Just. Agency, (Sept. 27, 2022) https://www.nycja.org/publications/the-initial-collateral-consequences-of-pretrial-detention; U.S. Comm’n on Civil Rights, supra note 5.

[9] Bergin et al., supra note 8.

[10] Id.

[11] Id.; Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, Am. Econ. Rev. 201, 204 (2018).

[12] Natalie Lima & Susan Nembhard, Pretrial Deaths in Custody Are Prevalent But Preventable, Urban Wire (Dec. 14, 2022), https://www.urban.org/urban-wire/pretrial-deaths-custody-are-prevalent-preventable.

[13] Daniel Wu, Man Died After Being ‘Eaten Alive’ by Bugs in Filthy Jail Cell, Family Says, Wash. Post (Apr. 14, 2023, 5:21 AM), https://www.washingtonpost.com/nation/2023/04/14/fulton-jail-bed-bug-death/; see Eric Ferkenhoff & Valerie Bauman, Man Starved to Death in Arkansas Jail Despite 11 Years of Federal Oversight, Newsweek (Mar. 3, 2023 at 6:00AM) https://www.newsweek.com/arkansas-man-jail-death-starvation-federal-oversight-1785225; Tana Ganeva, Indiana Jail Let Man with Schizophrenia Starve to Death in Solitary, Lawsuit Alleges, The Appeal (Apr. 12, 2023), https://theappeal.org/joshua-mclemore-died-solitary-jackson-county-jail-indiana/; Kim Chandler, Lawsuit: Mentally Ill Man Froze to Death in Alabama Jail, Associated Press (Feb. 17, 2023), https://apnews.com/article/emergency-care-prisons-legal-proceedings-alabama-lawsuits-be0cbc6e970b7d709ea4af453c9af6ee.

[14] Lofstrom et al., supra note 4; Simmons, supra note 4, at 257.

[15] Mettler, supra note 1.

[16] Letters from Courtwatch PG to jail at Prince George’s County, MD (2020–2023) (on file at https://courtwatchpg.com/jail) (including numerous letters advising jail staff of detainee health conditions).

[17] Accountability letters from Courtwatch PG (2020–2023) (on file at https://courtwatchpg.com/accountability-letters).

[18] Katie Mettler, Judges Ordered Their Release from Jail. They Weren’t Let Out, Lawsuit Says, Wash. Post (July 20, 2022, 12:47 PM), https://www.washingtonpost.com/dc-md-va/2022/07/20/lawsuit-illegal-detainment-pretrial-release/.

[19] Courtwatch PG, Ensure the Public Has Remote Access to Courts Fact Sheet (2022), https://courtwatchpg.com/wp-content/uploads/2023/01/Remote-Access-Fact-Sheet.pdf.

[20] Lexi McMenamin, Why Court Watching Matters, with Fiona Apple and Courtwatch PG, Teen Vogue (Feb. 28, 2023), https://www.teenvogue.com/story/why-courtwatching-matters-fiona-apple-courtwatch-pg.

[21] 3 Ways Courtwatch DC Challenged Injustice in 2022, ACLU District of Columbia, (Dec. 20, 2022, 12:00 AM) https://www.acludc.org/en/news/3-ways-courtwatch-dc-challenged-injustice-2022; Mettler, supra note 1.

[22] Campaigns, CourtWatch PG (last visited Apr. 15, 2023) https://courtwatchpg.com/campaigns; Katie Mettler, Court Watchers, with Fiona Apple’s Help, are Fighting to Keep Virtual Access Beyond the Pandemic, Wash. Post (Mar. 18, 2022, 5:21 PM), https://www.washingtonpost.com/dc-md-va/2022/03/18/virtual-court-access/; H.B. 647, 2022 Reg. Sess (Md. 2022).

[23] S.B. 43, 455th Leg., Reg. Sess. (Md. 2023), https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0043; S.B. 469, 454th Leg., Reg. Sess. (Md. 2022), https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0469?ys=2022RS; Katie Mettler, Senior Judge Urges Md. Courts to Keep Virtual Access Beyond Pandemic, Wash. Post (Apr. 7, 2022, 6:00 AM), https://www.washingtonpost.com/dc-md-va/2022/04/07/maryland-court-virtual/; Katie Mettler, ‘Fiona Apple, Don’t Be Mad at Me’: Md. Court Transparency Bill Rejected Again, Wash. Post (Mar. 24, 2022, 6:00 AM), https://www.washingtonpost.com/dc-md-va/2023/03/24/howard-court-transparency-maryland-prince-georges/.

[24] Mettler, ‘Fiona Apple, Don’t Be Mad at Me’: Md. Court Transparency Bill Rejected Again, supra note 23; Justin Hansford et al., Inside Prince George’s County Bond Hearings Thurgood Marshall Civ. Rts. Center, (2023), https://thurgoodmarshallcenter.howard.edu/sites/tmcrc.howard.edu/files/2023-03/Court Watch PG 2023 Report-2.pdf.

[25] Hansford et al., supra note 24.

[26] S.B. 43, 455^th Leg., Reg. Sess. (Md. 2023), https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0043; Mettler, ‘Fiona Apple, Don’t Be Mad At Me’, supra note 23; S.B. 43, 2023 Sess. (M.D. 2023), https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0043.

[27] Mettler, ‘Fiona Apple, Don’t Be Mad At Me’, supra note 23.