Justice Delayed: Addressing the Criminal Court Backlog in Texas

The COVID-19 pandemic has affected virtually every facet of state government, and Texas’ criminal courts are no exception.

In an average pre-pandemic week, 186 criminal jury trials would be held across Texas. That figure dropped to an average of 4 per week in 2020, despite many courts using virtual hearings and socially distanced proceedings. The latest surge has continued to cancel jury trials in some jurisdictions.

The tens of thousands of unheard cases resulted in a historic backlog so severe that it could take up to five years to return to pre-pandemic case levels – undermining the fundamental American right to a speedy trial for defendants and resolution for victims.

A workable solution requires acknowledging problems in our criminal docket that pre-date the pandemic. The nationally accepted standard is that no more than 2% of felony cases should take longer than one year. Before the pandemic, 20% of criminal cases in district courts were older than the one-year benchmark by the time they were concluded. By June 2021, nearly 35% of all cases were over a year old, and more than half of the criminal docket was older than standards say they should be.

In short, it takes longer to resolve the most serious cases. Delays in criminal cases have caused overcrowding in county jails across Texas as defendants wait for trial. As of January 1, 47,312 Texans were waiting for trial in county jails – a 21% increase over January 2016 and the second-highest monthly figure over the same period.

And pretrial detention has a broad economic impact. For example, a study published by the Brookings Institute last March found that an increase in county pretrial detention rates was associated with increased poverty for the incarcerated and their families and decreased employment rates, something Texas cannot afford in a tight labor market. This is partly because defendants who are held longer are more likely to get convicted and sentenced regardless of their actual guilt, see worse earnings and employment outcomes, and experience higher recidivism rates.

For defendants who can obtain pretrial release, the delayed trial could increase costs for extended pretrial services in some counties and leave them in legal limbo as they wait for trial, or in the worst cases, they might get arrested for a subsequent offense.

To overcome this problem requires state and local agencies to dedicate more people and more resources and to better coordinate efforts across jurisdictions.

More people mean more judges, specifically eligible retired judges, to process incoming cases while elected judges address the long list of pending jury trials. It also means more staff to support those judges and provide vital court services like language interpreters and court reporters.

More resources means leveraging today’s technology. While not every criminal proceeding can fairly or efficiently translate to a virtual setting, IT solutions should be deployed for routine appearances by attorneys and hearings on purely legal issues where defendants’ rights are not immediately at stake. This requires software licenses and hardware like webcams along with necessary tech support for court staff, lawyers, and the defendants and witnesses themselves.

Coordination means alignment between the Office of Court Administration and the counties where the backlogs are most severe. The Texas Legislature recently made a down payment on supporting additional judges, staff, and technology. State and local governments need to work together to target the people and resources where they can have the greatest impact.

The constitutional right to a speedy trial reflects concerns of fairness on the part of the accused, but it also reflects a societal interest – we all benefit from the prompt disposition of criminal justice by our courts.

To strengthen the legal system, and likely save money in the process, Texas should deploy the resources necessary to break the backlog of criminal cases.