DATA DESIGN IN THE JUSTICE SECTOR
US & Canada: Digital Fragmentation
The legal futurist Richard Susskind writes the same book every four years, he jokes in one of his latest. For 40 years he’s been saying that “we can and should find ways of using technology to improve the practice of law and the administration of justice.” That message causes many justice sector leaders to roll their eyes, however, having been burned so badly and so often with past failures to do so.
As Attorney General in Canada’s largest province, I learned in my first week that I’d inherited a lawsuit commenced against the Province of Ontario by a legal tech conglomerate contracted to deliver on its latest and greatest project entitled Integrated Justice. Many, many hundreds of millions of dollars later, we agreed to a settlement that left Ontario poorer, and its justice system less integrated than ever.
Fragmented by Design
In part because of experiences like Ontario’s notorious Integrated Justice failure, governments are loathe to embark upon any ambitious project to fulfill Susskind’s compelling evangelism for technology and justice. Smaller projects have been started, but they either fizzled or merely served to fortify compartmentalization. To make matters worse, the administration of justice in US and Canada is beyond fragmented — vertically, and horizontally.
Put another way, the justice sector is entirely decentralized, defying any description of a system. If one can say that there is any design to the sector, the designers are solicitors who assign and confine each player’s authority. So too are the designers and accountants, who budget and audit accordingly, within each player’s balance sheet. These lawyer and accountant designers are bringing their expertise to bear, to fortify their microsystem, permitting it to function in a legally and financially sound manner. Each justice player is akin to a town, with its own governance, administration, and constituency. The towns are mobilized geographically, often clustered together by geographic proximity, but that is where the cluster ends — geography. Like 19th Century towns throughout North America, there is no common infrastructure, planning, governance, or coordination within the sector, other than geography. No criticism or judgement intended, to be sure. These are just the facts.
Police, prosecutors, public defenders, private defence lawyers, judges, court administration and corrections each have their own siloed, internally derided IT systems. So siloed, there is no central inventory of the varied IT systems. Each player insists that sharing their data across the sector is a security risk and beyond their internal fiscal or administrative capacity. Recall that each justice player is a town seeking to fortify its own legal authority and financial viability; to mitigate its own risk portfolio. It is not built to coordinate with others. On the contrary, the justice sector is fragmented by design, literally fortifying its walls and greeting any interlopers with great suspicion. Enter the IT planner, who eventually gives up, moving back to the health care sector.
Now multiply that by every local police force in every municipality, plus every province or state; plus a federal jurisdiction, overlapping and underlapping. Lastly, these justice players are typically led by people better known for their specialized expertise, such as advocacy, rather than for strategy and management. The talent becomes the industry governors. No wonder Susskind must repeat his message in book after book.
This is not the part where the author claims to have cracked the nut. This is the part where one humbly identifies the next step in an iterative process of maturing information management in this industry: the development of a secure Centralized Data System (SCDS) for the entire justice sector, starting in subnational jurisdiction — pick any state or province — with one organization, big (corrections) or small (legal aid). One has to start somewhere, with the willing and able, then invite others to join.
The Environment
The day is coming when consumers and voters put their foot down, demanding to see their file including all the information that institutions of power have on an individual, or else. Canadians are going to insist on knowing why, when and how access to their personal information is provided to others. This future may seem unlikely to boomers and Gen X’ers, but when the millennials achieve legislative power, that will happen. When the class actions start, that will happen. It is already happening in the marketplace. Today, it’s Airbnb, Facebook and Twitter. Tomorrow, it’s health care, education, justice. Democracy wants what it wants, and it will want to take back control of private information taken by powerful institutions, some for profit, others for public interest, but all always defined by the takers, not those whose dignity has been taken. The winners will be those institutions that become early adaptors to this new reality; who can deliver back dignity lost, hand over the file, and effectively manage peoples’ private information, because those institutions are trusted stewards of that information, of that dignity. The winners will become the trusted, and the trusted will win.
The slow to adapt, will lose, in the marketplace, by losing customers. In the public sector, the winners will be those sectors that earn peoples’ trust, which will translate into democratic success for the elected. That is exactly what happened during the pandemic, in Canada, in our view. Both the federal government and all incumbent provincial governments were re-elected, save one. Perceived pandemic mismanagement ended the political career of Alberta’s Premier. For the rest, though nobody offered up a standing ovation, democracy nevertheless extended the contract with their governments for another term. That same political dynamic will imprint itself upon federal, provincial, and municipal elections. Voters will insist upon retaking control over their dignity, their personal information, and the elected will promise as much, driving information management revolutions throughout the private and public sector.
Even if this prediction is wrong, the information revolution has a logical next step: integration, intersection, coordination, and data-based policies and execution. If economic recession and stagnation continues, governments cannot rely upon economic gains to finance the supply to meet the increasing demand from an ever-increasing population, and increasing voter demand for better health care, better education, better public services. If they can’t spend more, governments will have to do better with what they’ve got. And what they’ve got is too much information fragmentation, creating gross inefficiencies and productivity losses in the global marketplace. The winners, however, will be the first to adapt.
Boom or bust, the current environment spells trouble for our justice systems in Canada. The justice players, mirroring their global counterparts, are bracing for an increasingly complex landscape in the coming years. Different players have some knowledge and experience with cybercrime and digital privacy, and they are hearing a lot about Artificial Intelligence developments. They know that justice technology is something likely to change in the future, but they are also weary of its evangelists. The political and economic environment is also known to face new demands, compounded by socioeconomic challenges like climate change and the housing crisis. It stands to reason that technology will assist their exclusive fiefdom, but there are few leaders willing to transform their town using technology. That would require a capital expenditure in IT infrastructure, which in turn would necessitate an IT strategy for the geographic sector. But as has been observed above, the system is not designed for any centralized strategy, because there is no centralized justice system, only fragmented, autonomous players fortifying their autonomy and financial security.
Pandemic Tech Disruption …
Yes, the pandemic disrupted justice sector technology, but it was localized, discoordinated and rendered uneven results, especially for the unrepresented. In order to research the justice sectors’ pandemic response in the US, Pew researchers cleverly searched the centralized database of pandemic emergency orders. (At the Canadian Civil Liberties Association, I spent a good part of the pandemic begging federal and provincial officials to share their legal orders with the public, as the publication of official Cabinet legal orders rarely occurred until days or weeks after they went into force. This was a failure of the federal and provincial Attorneys General, who were supposed to uphold the rule of law in their jurisdictions). Once the pandemic ended, however, the various US decentralized authorities went back to the business of isolating themselves. While an NGO exists in the US to mitigate that decentralization amongst state courts, it can research and publish but lacks any authority, and it only applies to courts. There is no equivalent in Canada, where pandemic technology gains languish as a patchwork of regional responses, with some provinces charging ahead (BC), and others stalling.
Outside the pandemic, one is hard pressed to find many local examples of technological breakthroughs. The current Deputy Minister to the Premier of BC, for example, overhauled the BC civil justice sector for what most would call small claims court — the Civil Resolution Tribunal (CRT), functioning today in a manner that leverages technology, justice, and public access thereto. Armed with a PhD and disarming manner, she led the transformation through dint of leadership and talent. When the longest serving Deputy Attorney General retired, she was named his successor, sprouting optimism that a centralized justice technology strategy was afoot. Now Deputy to the Premier, however, the scope of her responsibility has changed.
So, there are exceptions, but BC remains without any pending inventive solutions like public engagement digital platforms, outside the CRT. The same is true for every province and territory, every US state. Even seemingly straightforward limitations, such as the inability to electronically share calendars, exacerbate case management issues and coordination difficulties among legal professionals. This lack of efficiency is creating fiscal costs and depletes access to justice. The sharing of discovery, a crucial pre-trial phase, is still dependent on outmoded methods like paper or CD-ROM. This absence of a real-time, digitally accessible system slows the legal process. These inefficiencies often culminate in an overall lack of access to justice, particularly impacting marginalized communities who cannot afford legal costs priced for corporations and high wealth individuals.
… but no post-pandemic reform momentum
These issues accentuate the urgent need for substantial reform and modernization of our many provincial justice systems to better serve Canadians in the context of a continually diversifying demographic profile. This diversity brings a spectrum of societal needs and perspectives that must be considered to truly modernize the justice system. The winners that adapt will be those that have a head start.
A Secure Centralized Data System
Central to these reform efforts would be the implementation of a unified, integrated data platform across a state or provincial justice system. Without a holistic view of individual and judicial data, it’s nearly impossible to share pertinent information about an individual’s experience within the system efficiently among relevant authorities. This impedes the delivery of timely and effective resolutions. The absence of streamlined access to scheduling and case data further inflates court backlogs and results in wasted time that could be better spent on improving overall operations. Most critically, this disjointed data landscape hampers the contextual understanding necessary for the fair delivery of justice. A secure Centralized Data System (SCDS) for the justice sector, could address these issues, improving coordination, efficiency, and, ultimately, the quality of justice served. By integrating information into such a system, governing judicial bodies can make informed decisions to drive necessary changes and improvements in our justice system. One discrete part of one province or state will be the place where the nucleus of a Secure Centralized Data System is born.
More on that in my next post.
