The COVID era has brought physical shutdowns to American courts and an unprecedented backlog of cases. In Connecticut, pending civil and criminal cases have jumped 200 percent during the pandemic, and trials aren’t scheduled to start until at least November. As of late June, New York City had 39,200 criminal cases waiting to be heard. Meanwhile, San Diego, California has a backlog of 20,000 criminal cases. The list goes on and on.
In an attempt to manage this moment, courts have rapidly jumped online by opening Slack channels, Zoom accounts, and expanding other forms of online access. Quick action like this should be applauded for keeping the wheels of justice turning during uncertain times, however, these changes do not go far enough.
To overcome the unprecedented court backlog of cases created by the pandemic, courts must reimagine what they are. No longer strictly a brick and mortar operation, courts need to think of themselves as a digital platform. Doing so requires the adoption of open data standards, data collection methods, and application programming interfaces (APIs), the digital infrastructure needed to help courts manage the tens of thousands of cases that have piled up, become more efficient, and increase access-to-justice.
While this is no small undertaking, groundwork is already being laid to build the courts of the future. For example, the National Center for State Courts recently published open court data standards. Non-profits, like Measures for Justice and Recidiviz, are working with local justice agencies to unearth, de-silo, and publish data from the criminal justice system. At the legislative level, Florida standardized its arrest affidavit across the state to assist the creation of a centralized and uniform criminal justice data collection program. Local courts will do the majority of the data collection under this law. Collectively, efforts like these show that there is not only growing interest in improving court data, but that meaningful gains are being made. However, there is much work to be done yet.
In the U.S., state court systems are structured and administered differently state-by-state. However, before the pandemic, most courts had one thing in common: they were failing at data collection and publication. While states like California, Colorado, and Florida passed laws in recent years to better collect data created by the justice system, many other states still operate on paper and have little-to-no digital data to speak of. In Massachusetts, a state that has spent over $75 million to digitize court infrastructure, courts still don’t electronically track judges’ decisions, bail rates, or even a party’s gender. Putting the dearth of court data into perspective, a 2015 study revealed that 26 state court systems could not provide “an accurate report on how many cases were filed and disposed in any given year,” — the most basic of data points.
Even states where courts make an earnest effort to publish case-level data, such as Maryland and Pennsylvania, don’t do so in a usable way. Instead of publishing data in bulk, these court websites present information one case at a time making it impossible to aggregate and analyze the data without scraping the website and creating a database from scratch.
This lack of reusable data and spotty access to it puts a ceiling on what courts can do with technology. Without data, software solution like those that help automate court processes, analyze a court’s caseload, or provide assistance to people representing themselves without an attorney, are out of reach.
Moving Forward as a Platform
The phrase, “Government as a Platform,” was originally popularized by Tim O’Reilly in 2011. His idea was to create shared, digital infrastructure so agencies across a government could decrease redundancy and provide improved access, services, and transparency. While O’Reilly’s work focused on rethinking government across executive agencies, it’s applicable to the court systems, too. While legal proceedings are a different application, the distinction doesn’t change the conceptual model, as articulated by the Obama administration’s Digital Governance initiative, which comes in three layers.
The initiative outlines an information layer, platform layer, and the presentation layer. The information layer encompasses all of a court system’s structured and unstructured data including case filing and case outcome data as well as employment data, among other datasets.
The platform layer provides a digital infrastructure that allows data in the first layer to be managed and manipulated, and includes data management processes and software and APIs, which allow machines to interact with other machines. The presentation layer brings it all together. While the first two layers are created and managed by the courts themselves, this layer is different in that the software or machine used to present the data may be owned and operated by the court, a member of the public, or by a private entity.
This conceptual model is divergent from how courts currently think of managing information. Today, courts generally think of data in its finished form: a court order, a report, a pamphlet, or a website. Thinking as a digital platform requires courts to consider data not in its end form, but about managing data to be accurate, available, secure, and reusable. This means collecting and cleaning the standardized data that exists across courts in a particular state, but also turning unstructured data, like court rules and orders that are usually housed in PDFs or on paper, into structured data.
This approach to information management makes data interoperable, meaning it’s easy to share and use, which creates a multitude of benefits. Most significantly, it allows courts and researchers to quantify and manage the case backlog by knowing what types of cases are pending, for how long, and why. This can inform process improvements and resources for judges and court staff, attorneys, and the growing number of people that can’t afford a lawyer, of which there is at least one in 76 percent of civil cases in the U.S.
In addition, when a court manages its own data and access to it, it can break the grip of vendor lock-in. A current and common practice is that a single technology vendor will act as the gatekeeper of court data systems. This stifles innovation and competition, because rarely do one of these vendors offer clean API documentation that would allow the type of interoperable access envisioned by this proposal. When this happens — when vendor control is removed — it creates access and outside research and innovation can flourish. We’ve already seen this in other vertical markets: data from weather.gov informs the weather forecast on our phones and local government transit data populates real-time information on map applications.
Creating Social Change-as-a-Platform
When software-as-a-service was created, it put every business onto a level playing field. Tiny mom-and-pop companies and mid-sized startups could compete and innovate in the same markets as huge, multinational conglomerates. It’s put previously disenfranchised business segments right into the thick of things. Making court data available will do the same for the legal system.
It is safe to say that courts that function as a digital platform will increase the diversity of people and organizations that can assist them, ultimately expanding services, transparency, and access-to-justice. With easy access to data and dependable standards, entrepreneurs will have more certainty and a lower burden to bring new ideas to market. Courts could more easily adopt new software, like a dispute resolution platform for litigants to quickly resolve their issue outside of a physical courtroom, while still creating documentation for the court. The Civil Resolution Tribunal in British Columbia, Canada is already doing just that. Going further, lawyers will be better informed, which can help clients manage costs and expectations. Advocates and policy makers will benefit, too, since it will give them more insights into how class, race, or gender affects court outcomes and help to inform future policy changes.
Looking beyond the courts, other justice system agencies in the state including corrections, police and parole agencies can learn from this experience and adopt the same standards, increasing the ecosystem of available data and accountability.
To be clear, this proposition is not without challenges. Security will be an issue as we go forward. Court documents are filled with sensitive information including names of confidential informants, information about children, and people’s mental health history. If courts fail to protect people’s data, it will erode trust in the courts, which in turn undermines the rule of law. For any court undertaking this work, regular, third-party security and privacy audits of these systems are non-negotiable.
We may also see things get worse before they get better since more data means more revelations about what’s good about the courts and what’s bad. Those courts that let problems fester may see a rise in litigation and legislative fights to correct historic wrongs. For court administrators and chief judges, this should be leaned into and prepared for. While it may lead to short term discomfort, ultimately the heightened transparency and understanding of court processes will lead to a better functioning and informed court, as well as greater trust from the public. As an added bonus, improved data will make for more persuasive court budget requests during legislative sessions.
Of course, not everyone seeking access to data will be interested in making the justice system more fair and accessible. Some people will try to make money on a person’s darkest moments, unearthing and using eviction or arrest data to terrorize and castigate. There’s a fix for this, though. Courts can and should act as a gatekeeper of its API and whitelist individual access. This may damper some of the more egregious uses of court data. Even with these concerns, though, it’s worth moving forward. If nothing else, the pandemic has made it clear that physical courthouses can no longer be the epicenter of justice. To move forward, courts must build the infrastructure needed to be a successful service provider. In other words, courts must become a digital platform.
Jason Tashea is a writer and the editor of the JusticeTech Download newsletter. Currently at an access-to-justice tech startup, he previously taught law students about criminal justice technology, policy, and law at Georgetown University Law Center. A lawyer by training, he is a current member of the Legal Services Corp.’s Emerging Leaders Council and the IEEE’s Law Committee.