By demonstrating shared responsibility and accountability for performance outcomes that address injustice on a broad scale, justice institutions and systems can create a “market” for solutions to societal problems.
Accountability mechanisms and strategies that use broad citizen engagement to bolster government responsiveness in solving social problems have garnered much attention from both scholars and practitioners.1 Today there are new actors—citizen volunteers, social entrepreneurs, foundations, nonprofits, civil society organizations, and private businesses, both big and small—that collaborate with governments in finding solutions to serious social problems, thus blurring traditional divides between civic, business, and philanthropic responsibilities.
Perhaps due to their traditional adherence to principles of judicial independence and separation of powers, justice institutions and judiciaries throughout the world have tended to go solo in their justice reform efforts—independent of other branches of government and other sectors of society. By demonstrating shared responsibility and accountability for performance outcomes that address injustice on a broad scale—instead of focusing on their own narrow internal organizational challenges using input and output measures of resources, activities, and operations that are often not widely understood—justice institutions and systems can create a “market” for solutions to big justice-related societal problems with actors other than justice sector insiders.
Justice institutions and judiciaries throughout the world have tended to go solo in their justice reform efforts—independent of other branches of government and other sectors of society.
In this article, we suggest that there are opportunities for justice reform in an “economy of solutions.”2 After citing several relatively modest examples of the emergent solution economy operating in the justice arena (figure 1), we propose the adoption of duration of pretrial custody, an example of a performance measure that shows considerable promise of serving as a potent nonmonetary “currency” for justice reform in the solution economy.3
In their 2013 book The Solution Revolution: How Business, Government, and Social Enterprises Are Teaming Up to Solve Society’s Toughest Problems, William D. Eggers and Paul Macmillan argue that, in today’s climate of fiscal constraint and political impasse, we cannot expect government alone to tackle entrenched social problems.4 They describe what they see as an emerging solution economy in which governments collaborate with new actors outside of government in such activities as crowdsourcing, crowdfunding, ridesharing, app development, and impact investing to fight poverty, provide low-cost health care, prevent obesity, and develop renewable energy. Government, business, philanthropy, and social enterprise come together in this solution economy, blending market forces with altruism to tackle tough problems. The nontraditional, nonmonetary “currencies” that are traded in the solution economy are evidence of progress toward the solutions and the improved reputations of the problem solvers for “moving the needle on the dial.”
By moving away from the traditional, unilateral top-down model for delivering services, governments in this solution economy are not the sole agents of social change but, instead, act as enablers by focusing on desired social outcomes that everyone understands and values—and thus opening heretofore closed doors to many new problem solvers.5
Using prizes and challenges. Competitions for prizes—open to everyone, not just credentialed, pedigreed experts—are one area that illustrates how justice reform has entered the solution economy. They are an example of what Eggers and Macmillan call “public value exchanges”—a more cost-effective alternative, often staggeringly so, to traditional government procurement. Such competitions typify the solution economy, wherein entrepreneurs, businesses, donors, and nonprofits join governments to spread social impact.6 The organizers announce a challenge and offer a prize, and then stand back as smart and ambitious individuals and groups compete to come up with solutions. New actors create new markets for social good and trade in solutions instead of money.
The World Bank Multi-Donor Trust Fund for Justice Support in Serbia recently joined forces with the Serbian Ministry of Justice and Public Administration to launch the first-ever “justice competitions” in Serbia. The aim was to overcome reform “fatigue” and garner fresh input to the justice reform process from the general public, including students, artists, and the media. One part of the program is a “suggestion competition” in which entrants send in their suggestions to improve justice service delivery; the winner is awarded a $1,000 prize. The second part of the program is a photo competition; entrants submit a photo depicting how they think justice in Serbia will look upon European Union accession, and again the winner is awarded a $1,000 prize. All of the latter entries are showcased at a public photo exhibition. Marketing efforts for the competitions targeted social media, news websites, public posters, civil society organizations, and stakeholders’ distribution lists.7
There is a striking similarity between the winners and nominees in the above initiative and those in another competition, the 2013 Innovating Justice Awards, a collaborative effort of four nongovernmental organizations working in the justice arena.8 With a few exceptions, winners and nominees are not government employees. Instead, they are people like Frank Richardson, the founder of OpenTrial, a firm based in the United Kingdom with the goal of promoting “legal system transparency that engenders improved accountability, civic engagement, and reform.”9 A self-described “natural entrepreneur,” Richardson submitted an idea for a “Fair Trials App,” a smartphone application that allows courtroom observers to check court proceedings against fair trial criteria and make the results available for public scrutiny on the Internet. While he clearly sees profit potential in his work, Richardson’s aim is “strengthening justice and the rule of law.”10 Like many other innovators—Eggers and McMillan call them “wavemakers” who are changing conventional beliefs and practices—Richardson mixes profit making and social mission.
Driving citizen engagement. Then there are people like Al Varney, a community leader in Monrovia, Liberia, who, like Frank Richardson and other competitors in the Innovating Justice Awards, is among the many social entrepreneurs around the world helping to create a new market for justice sector transformation through citizen engagement. With his recently started initiative, a court monitoring system called the Open Justice Initiative, Varney is working to build creative tools for social accountability, supported by training, design support, mentorship, and seed funding from Accountability Lab, an independent nonprofit organization.11
Twice a week, volunteer monitors from the Open Justice Initiative observe four magisterial courts in Monrovia and generate a justice “scorecard” that includes measures relating to the number of cases processed, whether the judge arrives on time, whether bond fees are returned to defendants, and whether a bulletin of cases is made public. The first comprehensive scorecard will be published soon in local newspapers to generate debate and be discussed with Ministry of Justice officials. While the Open Justice Initiative is still in its infancy, its courtroom monitors have stated that their presence alone has significantly reduced late arrival of judges, curbed open illegal transactions in court (such as bribery), and increased attendance among public prosecutors.12
Our aim is to make people accountable.
Varney, dubbed an “accountapreneur” (someone with an entrepreneurial approach to accountability) by Accountability Lab, intends this court monitoring system to help rebuild Liberia and solve the problem of an unresponsive justice system that does not allow ready access to justice in his community. “I have noticed that . . . there has been a lot of attention on the education sector [and] on the health sector, and there has been a lot of donor funding as it relates to infrastructure, but there has been little as it relates to our justice system,” said Varney in a recent video. “The reason we went to war was because people never had access to justice. People failed to go to court because they never had money. They were marginalized, so they decided to use arms as a means to solve their problem.”13 He felt that if people wanted to have good justice, it was up to the community to monitor it. Varney’s plan is not to “witch hunt” and work at cross-purposes with the courts, but rather to collaborate with them to create an effective justice system. “Our aim is to make people accountable,” said Varney.
Justice institutions and justice systems that continually and transparently answer the question “How are we doing?”—sharing their performance data while embracing citizen feedback mechanisms—proclaim their shared responsibility and hold themselves accountable for performance outcomes that matter to ordinary citizens. Trading in the currency of performance data and societal outcome measures for specific solutions, they effectively move the important work they do beyond their own four walls. This takes justice out of the hands of only government “insiders” such as judges, prosecutors, defense attorneys, ministers of justice, and justice system executives and managers, as well as the government contractors working on these officials’ behalf. The outcomes achieved by a transparent and responsive justice system, in effect, become part of a larger solution economy, where there are many more agents of change. In this new environment, engaged participants “trade” in nontraditional currencies such as shared performance data, their own reputations, and societal outcomes that show that governments, businesses, and social enterprises together are all making a difference.
The common thread through this joint behavior consists of shared values and mutual advantage. Performance outcome measures become powerful collaborative tools—they become the “currencies” in the solution economy, enabling citizens and organizations in all sectors of society to work directly with others on societal problems.
Eggers and Macmillan remind us that solving society’s most intractable problems “begins with understanding what actually moves the needle.”14This means that achieving justice reform requires identifying and developing performance measures that have social and commercial value as currencies in the solution economy; that are readily understood and appeal to the widest possible audience; that closely align with key success factors recognized by society at large; and that drive and inspire success by enabling multi-sector problem solving. It is important that such measures attract the attention and energy not only of change agents inside justice institutions and systems, but also of others in society who see social value and mutual advantage in the solutions that the measured social outcomes represent.
One such measure is the duration of pretrial custody, an easily understood and relatively simple measure that matters to ordinary citizens and policy reformers alike who worry about the injustice, and the attendant financial burdens and societal costs, of prolonged and unjust pretrial detention. It is defined as the period for which criminal defendants who have not been convicted of a crime are incarcerated while awaiting trial. Individuals in pretrial custody account for roughly one-third of all incarcerated individuals globally, according to some estimates.15 Simple statistics describing the average (mean), median, range, and variance of the time defendants spend in pretrial custody can be computed across numerous variables and disaggregated by criminal case type, location and units of courts and jails, defendant characteristics (such as income level), type of prosecution and defense, and other factors.16
The economic and social costs of prolonged and unjust detention can be especially devastating for people living in poverty.
Duration of pretrial custody is a performance measure with the potential of having an outsized effect. It has drawn the attention not only of justice system insiders (judges, prosecutors and defense attorneys, and law enforcement and corrections officials) but also of many groups and individuals outside the formal justice systems who care about reducing crime, ensuring public safety, fighting poverty, reducing costs, making wise use of public resources, combating disease, promoting human rights, and making our legal systems more just.
Prolonged unjust detention, the inequitable treatment of incarcerated pretrial defendants who are poor or belong to a marginalized group, and the staggering financial and social costs of jail overcrowding are societal problems common throughout the world.17 Recent studies in the United States found that pretrial detention is associated with a greater likelihood that defendants will be sentenced to jail or prison, as well as given longer sentences than other defendants who are similar in every known way except their pretrial release status. Moreover, among low- and moderate-risk defendants, the length of pretrial detention is positively associated with the likelihood that pretrial detainees will reoffend.18 Prolonged pretrial detention can also have negative impacts on a nation’s public health. Evidence indicates that the risk of exposure of pretrial detainees, as well as other detainees and prison guards, to infectious diseases such as HIV and tuberculosis is heightened, particularly where prisons are overcrowded.19
The economic and social costs of prolonged and unjust detention can be especially devastating for people living in poverty. In Bangladesh, for example, prisons are severely overcrowded, and imprisonment simply means “locking away” defendants without offering prospects for rehabilitation or reintegration into society. Almost 70 percent of prisoners in Bangladesh are held in pretrial detention.20
Because it is clear, focused, and actionable, and because it is an easily understood indicator of an entrenched social problem, duration of pretrial custody is a potential rallying point for reform and improvement efforts that can bring government, citizens, groups, and organizations together in a solution economy. Justice institutions, social enterprises, and businesses can collaborate to reduce the average duration of pretrial custody, thereby not only creating efficiencies in court case processing that reduce the prison population, but also addressing a host of social problems.
How can justice systems and institutions—including the courts, prosecution and legal defense departments, ministries of justice, and law enforcement and corrections agencies—be responsive to the problems associated with pretrial custody as part of the solution economy? As a start, they could gain considerable public trust and reap political capital simply by putting detailed data on pretrial custody into the public domain, making it available for real-time feedback, and inviting social enterprises and businesses to join them in problem solving. They could, for example, collaborate with civil service organizations in identifying and examining the divergence between the mean and median number of days in pretrial custody among all criminal defendants. When the mean and median diverge, inflating or deflating the mean but not the median, it may be because relatively small groups of defendants (such as the poor and marginalized) are treated differently than the rest. The characteristics, treatment, and conditions (such as overcrowded and disease-ridden jails) of individuals with especially long pretrial prison stays (as well as especially short stays—which may occur among the rich, for example) could be examined for potential irregularities. So could these outliers’ experience with case processing and pretrial events, including factors related to the issuance of warrants, initial appearance and arraignment, charging practices, plea agreements, bail decision making, pretrial services, custody conditions, and alternative sentencing. Doing so might lead to solutions for reducing the number of days defendants spend in detention and improving pretrial custody conditions.
Such collaborative approaches, where justice institutions and justice systems are integrators, enablers, and market makers, are very similar to the way open data programs work in many cities and countries. Governments produce and commission performance data about everything from police response times and prison statistics to street cleaning schedules, school testing scores, business licenses, and restaurant inspection reports. These data are made available to the public, and businesses and social enterprises are invited to use and distribute the data to generate social and commercial value for mutual advantage.
Governments, justice systems, and individual justice institutions can impel a solution economy in the justice sector in several specific ways.
Develop the “right” performance measures. First and foremost, governments, justice systems, and individual justice institutions should identify and develop performance measures that have broad social value. The “right” ones are outcome measures that ordinary citizens care about, such as measures of access to justice, timeliness and court delay, procedural fairness, judicial independence and integrity, and public trust and confidence in the courts. Developing such measures often means infusing already identified internal performance measures with meaning for the widest possible audience. For example, in addition to duration of pretrial custody, a measure such as collection of monetary penalties, adopted by many justice systems throughout the world, may appear to most people to be no more than an internal indicator of the efficiency and cost-effectiveness of the process of collecting fines, fees, and other monetary penalties imposed by justice authorities. Justice systems and institutions should make it clear that this measure is much more than an internal measure of efficiency of one government entity. It is instead a much broader indicator of compliance with the rule of law, premised on the principle that justice is not fully served until all court orders have been enforced and complied with and all parties are held accountable for their financial obligations under law.
See performance measures as an alternative to monetary currency. Governments, justice systems, and individual justice institutions should think of performance measures and the social impact that they signify, as well as the attendant reputation of those who move the dial on these measures, as alternative non-monetary currency. For example, a district court in a district of 20 courts that outshines the others in collection of monetary penalties can parlay its reputation for excellence into greater public trust and confidence and increased competitiveness for government funding. Citizen volunteers, social entrepreneurs, and civil service organizations that assist in the court’s collection efforts may also gain a reputation for making a social impact that can be exchanged for goods and services.
Share the data. Governments, justice systems, and individual justice institutions should get into the habit of putting their performance data into the public domain, not as an obligatory gesture toward government accountability and transparency, but instead as an opportunity for reform not otherwise available. Justice environments are complex, even chaotic; many formal justice systems and institutions simply do not have the means to make sense of them, and they are limited in their capacity to implement broad justice reform. They should engage new actors in the solution economy so that the non-traditional currency of performance measures and results gets circulated and used—in other words, that the measures and results get into the hands of the right actors, in the right way, and at the right time (ideally in real or near real time). Posting performance measures on a court’s website, well-hidden in the depths of the site, is not nearly sufficient.
Look for shared value and mutual advantage.Justice influences how—and how well— people live, including their health, education, access to safe water and shelter, personal security, dignity, voice and empowerment, and equality of opportunity. Justice is a part of the normative framework of human development and well-being. Governments, justice systems, and individual justice institutions should ask themselves which “solvers” in the solution economy—citizen volunteers, social entrepreneurs, foundations, nonprofits, civil society organizations, and private businesses—share the values of justice and could see mutual advantage in justice outcomes measured by specific performance measures. They should aggressively create opportunities for collaboration with these solvers.
One example of such collaboration is in the city of Philadelphia, which has long had a crime problem. Philadelphia has been ranked between the fourth and the seventh most dangerous American city throughout the past decade.21
In 2014, mayor Michael Nutter decided to try a different approach to crime and justice: launching a competition. The city launched a $100,000 challenge called FastFWD that invited entrepreneurs to develop innovative solutions to crime and justice. “We wanted to open up the solution space,” explains Story Bellows, who led the initiative for the city. “We were looking for solutions we didn’t expect and didn’t even know existed.”22
In addition to $10,000 in seed money, each of the winners earned the chance to do a pilot project with the city. Most of the winners were fairly new to the justice space and not beholden to the “This is how we’ve always done it” mindset. Their independence of thought freed them up to bring very new approaches to very old problems of law and justice. One of the winners was Jail Education Solutions, a tablet-based learning platform built for inmates by a young entrepreneur whose father was an educator at California’s Folsom State Prison. “We know that educational training reduces recidivism and saves taxpayer dollars, so we’re excited that Philadelphia is enabling technology that can improve the opportunities of so many returning to our communities,” says Jail Education Solutions co-founder Brian Hill.23
Balance judicial independence and comity. Finally, judiciaries should disavow a narrow view of institutional independence that disallows comity, collaboration, and shared responsibility with the other branches of government and other sectors of society, including citizen volunteers, social entrepreneurs, foundations, nonprofits, civil society organizations, and private businesses. Such a narrow view is clearly rejected by the influential Trial Court Performance Standards,24 which are generally embraced by justice systems around the world. The five standards in the performance area of “independence and accountability” meld the principles of separation of powers and judicial independence with the need for comity, public accountability, and responsibility. Standard 4.1, “Independence and Comity,” specifically requires courts to maintain their institutional integrity but observe the principle of comity in their governmental relations.
The findings, interpretations and conclusions expressed herein are those of the authors and do not necessarily reflect the views of the International Bank for Reconstruction and Development, the World Bank and its affiliated organizations, or those of the executive directors of the World Bank or the governments they represent.
Deloitte Consulting LLP’s Social Impact practice helps clients in the public, private, and social sectors address pressing societal challenges. Our multidisciplinary teams can co-create new solutions with clients and help evolve those critical solutions beyond the concept and pilot phases. We focus on strengthening critical linkages between sectors, quantifying and communicating impact, and mobilizing the fast-evolving ecosystem of players—in the ultimate pursuit of moving from aspiration to tangible impact for the organization and for society.