NAACP Open Letter: Use of Remote Technology in Criminal Justice widens the Digital Divide

AN OPEN LETTER TO OUR COMMUNITY, and addressed to our Superior Court and Supreme Court Judges of Washington State:
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The Seattle King County NAACP is aware and concerned of the Washington State Supreme Court’s Order regarding the modification of jury trial proceedings issued on June 18, 2020. The order can be found here: http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/Jury%20Resumption% 20Order%20061820.pdf. This order will allow Washington State trial courts to begin using video technology as part of Voir Dire, i.e. the jury selection process. The order states in part:                       

The use of remote technology in jury selection, including use of video for voir dire in criminal and civil trials, is encouraged to reduce the risk of coronavirus exposure. Any video or telephonic proceedings must be conducted consistent with the constitutional rights of the parties and preserve constitutional public access. Authorization for video- conference proceedings under CrR 3.4(d)(1) and CrR 3.4(d)(1) is expanded to include jury selection, though the requirement that all participants be able to simultaneously see, hear and speak to one another does not require that all potential jurors be able to simultaneously see one another.

This means the Washington State Supreme Court will allow trial courts to implement procedures that require potential jurors to participate in the jury selection process through the use of video technology. Potential jurors will presumably be able to participate through Zoom or some other similar technology.
The Supreme Court’s order is a perfect example of the systemic racism in the criminal justice system. People of color, especially those in lower income groups, will be unable to participate as potential jurors if they do not have access to broadband internet access and the hardware capable of utilizing the technology selected by the trial courts.

There are many articles written about the “digital divide” in America. This is to say, articles about the different technology available to different socioeconomic groups in the United States. For example, the Pew Research Center published an article on May 7, 2019, detailing the digital divide. You can find the article here: https://www.pewresearch.org/fact-tank/2019/05/07/digital-divide-persists- even-as-lower-income-americans-make-gains-in-tech-adoption/. It states, “Thirty years after the debut of the World Wide Web, internet use, broadband adoption and smartphone ownership have grown rapidly for all Americans – including those who are less well-off financially. But even as many aspects of the digital divide have narrowed over time, the digital lives of lower- and higher-income Americans remain markedly different.” The article goes on to say, “With fewer options for online access at their disposal, many lower-income Americans are relying more on smartphones. As of early 2019, 26% of adults living in households earning less than $30,000 a year are “smartphone-dependent” internet users – meaning they own a smartphone but do not have broadband internet at home. This represents a substantial increase from 12% in 2013. In contrast, only 5% of those living in households earning $100,000 or more fall into this category in 2019.”

The effect of the Supreme Court’s order will be to decrease the number of potential jurors from communities of color. I do not believe the Supreme Court is intentionally engaging in racism. However, I think their order is an example of the systemic racism inherent in the criminal justice system. They have enacted a policy without any input from the communities it will affect the most and the result of this change will be to decrease the number of minorities included in the pool of potential jurors.

This order was issued without any input from stakeholders in the criminal jury trial process right after the Washington State Supreme Court issued an open letter that states, “The devaluation and degradation of black lives is not a recent event. It is a persistent and systemic injustice that predates this nation’s founding. But recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge: the injustices faced by black Americans are not relics of the past. We continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed.”

The procedure authorized by the Washington State Supreme Court is similar to the Jim Crow laws of the past. This procedure allows those who can afford the technology to participate in the criminal justice system as a potential juror to the exclusion of those who cannot.

This procedure is wrong because the effect will be to decrease the participation of an already underrepresented community in the jury trial process as potential jurors.  This process decreases the chances of Black and Brown people ever having a jury of their peers.   Part of the jury experience is interacting and discussing with each other and watching body language, this will be almost impossible. 

Carolyn Riley-Payne
President of Seattle King County NAACP