The Justice System and the COVID-19 Pandemic: Resources for Policymakers


(The RAND Blog)

A member of the Seattle Fire Department leaves the scene following a medical response as efforts continue to help slow the spread of COVID-19 in Seattle, Washington, U.S. March 31, 2020, photo by Jason Redmond/Reuters

A member of the Seattle Fire Department leaves the scene following a medical response as efforts continue to help slow the spread of COVID-19 in Seattle, Washington, March 31, 2020

Photo by Jason Redmond/Reuters

by Bethany Saunders-Medina

April 20, 2020

The worldwide COVID-19 pandemic has caused massive disruptions to the justice system. Many state and local courts are closed for everything but emergency matters. Insurers have been asked to cover massive unplanned losses. And police and other first responders are finding themselves having to rethink how they can keep themselves and the public safe amid unprecedented public health concerns.

The constantly evolving nature of the catastrophe suggests a need for rapid action. The RAND Justice Policy Program, Institute for Civil Justice, and Center for Catastrophic Risk Management and Compensation (CCRMC) have a body of published works that may be of interest to businesses, consumers, judges, state and local governments, policymakers and others as they attempt to navigate the current crisis. Our large portfolio of work includes relevant research in the areas of insurance and compensation; the courts and the civil justice system; police and first responders; and pharmaceuticals, public health and liability.

Insurance and Compensation

The COVID-19 pandemic has already had an enormous impact on business and consumers. With many states currently ordering various “shelter in place” or “safer at home” mandates, commercial enterprises throughout the country have shuttered. Some have estimated that there could be more than 15,000 store closures announced by retailers and other businesses this year. The United States has already seen over 10 million Americans file for unemployment benefits at the end of March 2020.

Compensating individuals and businesses for economic losses incurred during the pandemic will likely be an important step in recovery. CCRMC has produced numerous reports on the laws, programs, and institutions that could reduce the adverse social and economic effects of natural and manmade catastrophes.

Insurers are already responding to the changing market conditions caused by the pandemic. CCRMC's previous work and current analyses on ways insurance markets have responded to past catastrophes could help insurers and governments make informed decisions.

Due to the unprecedented scale of loss currently facing businesses and consumers, it may be necessary for the federal government to step in and provide a backstop as occurred following the 9/11 terror attacks when the Terrorism Risk Insurance Act (TRIA) was passed by Congress. At the time, 9/11 required the single largest claims payout in the global insurance industry's history with insured losses totaling nearly $33 billion.

Current estimates about the scale of loss that could result from the pandemic are even more staggering. One industry insider speculated that uncovered claims requests could be as high as $220-$383 billion per month. As policymakers consider how best to handle compensating businesses while ensuring the long-term health of the insurance industry, RAND's extensive body of research on TRIA could provide valuable background and recommendations on how to design a similar program to protect against future losses stemming from large-scale public health crises.

The Courts and the Justice System

Courts have been unable to respond effectively to social distancing measures due to lack of technology infrastructure and the fragmented nature of the state and local court systems in many states. In California, for example, Chief Justice Tani G. Cantil-Sakauye recently issued a statewide order that suspends all jury trials in superior courts for 60 days. The Supreme Court of Florida has suspended all civil and criminal jury trials until May 29, 2020. Many plaintiffs and defendants are finding their cases in limbo with no recourse in sight.

RAND's Priority Criminal Justice Needs Initiative is carrying out a research effort to assess and prioritize technology needs across the criminal justice community. Many of the recommendations are broadly applicable to both criminal justice and civil justice needs. Courts could adapt to the changing circumstances by embracing the use of video conferencing and other emerging technologies to resume operations as quickly as possible.

The economic effects of the pandemic are likely to be felt long term. Courts and local governments will likely need to continue operations amidst budget cuts and austerity measures. The work we produced following the 2008 financial crisis can offer suggestions on how to respond to these financial pressures.

Police and First Responders

As local and state governments across the United States struggle to contain the COVID-19 outbreak, police officers and other first responders are being asked to rise to the challenge of helping to promote public health and safety while maintaining law and order.

Every effort must be made to safeguard the health and well-being of these essential workers. While the nature of their work makes it impossible to completely eliminate danger, communities could implement measures to manage their level of risk. RAND has produced several studies and toolkits that help agencies balance higher demand and fewer personnel with practical strategies that can lead to more efficient work.

Pharmaceuticals, Public Health and Liability

The United States has an intricate product safety and liability system that, combined with the need for rigorous scientific testing, could significantly impact the speed at which new pharmaceuticals can be introduced to the public. Current estimates on the development and availability of a COVID-19 vaccine range from 18 months to two years.

The government could carefully weigh the need to ensure the safety of the public with the need to prevent further deaths from the pandemic. RAND's prior work on product liability can help inform pharmaceutical companies and other decisionmakers on the pros and cons of fast-tracking vaccines and other potential lifesaving treatments.

Bethany Saunders-Medina is a policy analyst and coordinator for the Institute for Civil Justice at the nonprofit, nonpartisan RAND Corporation.

Commentary gives RAND researchers a platform to convey insights based on their professional expertise and often on their peer-reviewed research and analysis.