Is it Time to Create a Justice Index?

Modern society loves statistics. Perhaps there’s comfort in their apparent objectivity, their cold, dispassionate, and logical statements of fact. Political junkies follow polls obsessively, and come up with complex systems to analyze them and make predictions. The most obsessive of baseball fans breeze through statistical tables that might make a Wall Street broker’s head spin.

Various groups create indexes to evaluate the standard of living in a given place, the level of human development in a given country, the quality of a country’s healthcare system, etc. Almost all of these indexes are based on statistical data. The government of Bhutan has even tried to establish objective indicia of the happiness of its populous, and has created an index to measure Gross National Happiness.

In the U.S., there are statistical indexes to evaluate the quality of individual hospitals and schools. There’s one major sector for which no such index exists, however: the criminal justice system (also reported here and here). Some lawyers, scholars, and legal analysts have suggested that this needs to change. As far as anyone can tell, there have been few, if any, comprehensive audits of the American justice system. While most people agree that the principles on which our legal system was founded are sound (being built around due process, presumption of innocence, and the right of the accused to mount the best possible defense). However, because there’s never been a comprehensive audit of the justice system, we have no idea how well these principles are being put into practice.

A recent Op-Ed in the New York Times makes an excellent case for why we should come up with a “justice index” and periodically audit the nation’s court systems for performance.

This seems like a very good idea. Of course, a diverse group of experts would be needed to come up with the criteria that the justice system would be analyzed under. Off the top of my head, I know that criminal defense lawyers, prosecutors, judges, law enforcement officials, social scientists, corrections officials, and statisticians would be necessary. There are probably a few I haven’t thought of.

There are many criteria that would have to be considered to determine the effectiveness and fairness of a criminal justice system: recidivism rates, racial and economic disparities in arrest and conviction rates, the percentage of defendants who plead guilty without an attorney, and many others.

However, depending on how you slice it, there may be hundreds of distinct criminal justice systems in the U.S.: of course, there’s the federal court system, and there are plenty of federal criminal laws under which a person can be charged. However, the federal trial courts serve “districts” across the U.S., and each district court has jurisdiction over a distinct geographic area. There are almost 100 U.S. District Courts (each state has at least one, and larger states have several). Each district court has some discretion to make its own rules, and some of these courts undoubtedly function better than others.

On top of that, each state has its own criminal justice system. And most states have at least one trial court per county, each one of which has some of its own local rules, so you can imagine that, even within a state, there will be some courts that perform better than others under various metrics.

So, auditing all of these systems might be impossible. However, the author of the article suggests starting with the criminal justice systems of some of the most populous counties and federal districts in the U.S. If only, say, a few dozen court systems can be chosen at first, an effort should be made to ensure that they represent as many different regions of the country as possible. The resulting data would probably prove invaluable.

As Americans, we tend to pride ourselves on the fairness of our legal system, and the notion that nobody is above the law. And our legal system, even if only for its stated aspirations, does give us a lot to be proud of. However, we haven’t always been the most introspective people. There have been times when we haven’t lived up to our own standards. Slavery comes readily to mind, as does Japanese internment during WWII. Nonetheless, there have always been people in America who have done everything in their power to ensure that every aspect of the U.S. government lives up to the ideals upon which it was founded.

Such an audit of the justice system, and the creation of a uniform index for future audits, would likely prove invaluable. It would allow us to see where our justice system works, and where it doesn’t.

Furthermore, if one court system in the U.S. has implemented a program that has produced a highly desirable effect (reducing crime, protecting victims’ rights, reducing recidivism, reducing wrongful convictions, etc.), such an index, and easily-accessible data from it, would give other court systems in the country guidance on what they can do better. Conversely, measures which are found to be ineffective, or even counterproductive, could be abolished or modified.

Conducting such an audit would be a significant undertaking, to be sure.

However, I believe that it’s necessary, and whatever expenses are incurred in the process will likely be paid back many times over, in the form of a criminal justice system that is more efficient, inexpensive, effective, fair, and just.