Animating Court Performance Measurement
We have failed to breathe life into the prescriptions for the performance measures that we exhort courts to use on a regular and continuous basis.
The connection between well known health indicators like blood pressure, cholesterol level, and blood glucose and our health and wellbeing is self-evident to most informed people. We know that these measures mean something vital and something very important to us.
In my experience, the same cannot be said about the connection between such relatively common measures of court performance as time to disposition, trial date certainty, and collection of monetary penalties and fundamental justice and fairness (see Ten Reasons Not to Measure Court Performance, Made2Measure, November 19, 2008). Many judges and court managers see these measures as indicators of the relatively narrow concerns of those for whom it’s all about the numbers -- the number crunchers, the spreadsheet guys, and the IT folks who manage the case management system. These measures, quite simply, do not matter to many judges and managers; they do not appear on their radar screens.
This state of affairs, if accurately perceived, cannot be blamed on judges and managers. It is in my view largely the fault of those of us who preach the gospel of court performance measurement and management. We have failed to breathe life into the prescriptions for the performance measures that we exhort courts to use on a regular and continuous basis.
The need for animating court performance measurement came to mind as I watched a video of a presentation by Albie Sachs at the Open Society Institute. Sachs is a passionate man and his views evoke strong emotional responses from an audience. He is former judge on the Constitutional Court of South Africa, an activist, and a leading campaigner in the fight against apartheid. In the video, Sachs discusses his 2011 book, The Strange Alchemy of Life and Law. He talks his deprivations of access to justice and solitary confinement and time in detention without trial during his struggles for rights in South Africa under the apartheid regime. In 1988, while in exile in Mozambique, he lost an arm and sight in one eye by a bomb placed in his car by South African security agents.
Of course, stripped of Albie Sach’s animation, the time in detention without trial is no more than a portion of the measure of time to disposition for defendants in custody before trial, a measure I attempted to elevate in importance in a posting several years ago (see Common Measures of Performance Across the Justice System, Made2Measure, February 17, 2007). But Sach’s account of his detention without trial bears no resemblance to how I characterized the measure. Mine is lame and lifeless compared to his. He speaks of his delay and denial of justice in terms of a denial of rights, in terms of deprivations of liberty, in terms of a failure of democracy. Big important things that matter.
While I know we cannot match Albie Sach’s passion and eloquence, I know we can (and should) do a much better job at aligning court performance measures with the higher values, mission, fundamental responsibilities, and obligations of courts to ordinary citizens. The measure of trial date certainty should be made vital by not only connecting it to more effective calendaring and a court’s continuance policies and practices, but by aligning it with the certainty that is a universal principle defining the rule of law. And the measure of collection of monetary penalties should be shown to be much more than merely a measure of revenue generation by a court but, instead, like blood pressure is to health, described as a measure of a court’s performance of its fundamental obligation to enforce its orders and maximize compliance with law.
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