Jun 4, 2014 | Article

In the late 1980s, Latin American nations began reforming their criminal justice systems. The initial reforms emphasized due process rights to reverse abuses exacerbated under dictatorial regimes. Moderate but stable crime rates made system efficacy a lesser concern. Similar reforms are occurring in Eastern Europe, spurred by European Union (EU) accession criteria. Both regions introduced parallel measures to enhance judicial independence and give sector institutions greater control over operations and personnel.

The criminal justice reforms started by enacting new procedural and substantive codes emphasizing prosecutorial (as opposed to judicial) investigation, oral trials, the right to defense, and legal aid for indigent defendants. Latin Americans considered this a transition from “inquisitorial” (i.e. continental or civil law) to adversarial systems. In Eastern Europe, reforms simply followed Western European trends. European doctrine and codes also had a major influence in Latin America, despite occasional local claims and the US government’s belief that countries were adopting American-style systems.

Code revision is one way to initiate reform. Yet, this strategy falls short when incorporating the assumption that laws automatically change behavior. Some codes were poorly drafted, especially in their treatment of how investigations would be conducted, police-prosecutorial relations, and judges’ role in pre-trial matters. The larger issue was the lesser attention to the organizational restructuring and other internal changes needed for effective implementation. In Latin America, a subsequent concern with rising crime rates produced amendments to make the laws “less soft on crime.” The additions put more defendants in pre-trial detention for longer periods. They did not demonstrably improve the investigation and prosecution of any but the simplest (in flagrante) crimes.

Similar problems are emerging in Eastern Europe. Investigative judges are disappearing (as they already have in parts of Western Europe), but prosecutorial investigation is generating sizable backlogs, especially for high impact crimes. Legal assistance programs have lagged despite EU pressure. They are not the public defense offices adopted in Latin America, but rather the traditional funding of private attorneys to represent the indigent. For less organized countries, public defense offices facilitate monitoring, but their efficacy in Latin America varies greatly.

Critics increasingly focus on the reforms’ limited progress toward an initial secondary goal, dealing more effectively with crime. The early due process improvements have suffered some reversals; the promise of more effective treatment of crime has advanced still less. The systems have grown physically and financially. They employ more prosecutors and judges, many of them earning higher salaries and recruited under more stringent criteria. Training programs have expanded, automation has been added, and infrastructure improved. However, even after 10 to 20 years, classic performance indicators like clearance rates, number of investigations completed, disposition times, and conviction rates are hard to access and in many instances are not even tracked. When data are available, improvements over the past are rarely evident. So what are the problems and how can they be remedied?

Excessive reliance on legal change, training, and more personnel: Whether or not codes are well drafted, legal change is an ineffectual way to alter behavior. Many lawyers reject this lesson, and so continue pursuing legal remedies for performance weakness. Training is important, but too much has focused on the general principles behind the codes or selected skills. Very little emphasizes how to manage caseloads, decide what to prioritize (and for prosecutors what they will discard or mediate), as well as the respective roles of the major actors and especially their interaction. Prosecutors may know how to investigate a single case, but struggle with organizing the several hundred they receive annually. Judges charged with “supervising” investigations often exceed their mandates, conducting mini-trials on bail requests or search warrants. Trial judges typically exercise little control over dilatory maneuvers, while police and prosecutors remain embroiled in struggles over coordination.

A greater number of better quality staff is also arguably needed. But additions have been made with little consideration for work levels, resulting in many having little to do. In Eastern Europe, staff numbers have skyrocketed with some of the continent’s highest staff-to-population rates – e.g. Serbia’s 39 judges per 100,000 inhabitants as opposed to a Western European average of 15.

Persistence of traditional practices: The codes proposed to change everything, but what they didn’t explicitly alter often continues. A staged approach to prosecutorial involvement remains frequent. In Latin America, the first instance investigation and adjudication of a case can involve the sequential intervention of up to four prosecutors; appeals typically involve still others. While oral hearings are held, participants frequently read their submissions, judges delay drafting final opinions, and both prosecutors and judges seem reluctant to utilize legitimate procedural shortcuts for fear of complaints and disciplinary actions. Innovative practices have been introduced in a few countries – e.g., use of alternative dispute resolution in some Mexican states to settle misdemeanors and efforts to introduce alternative sentencing. However, these examples are still exceptional.

Institutional strengthening: Some systems are gradually restructured to allow specialization in different types of crimes. But estimates of staffing needs, for professionals or support personnel, are often back-of-the-envelope calculations. Despite the elimination of judicial investigation, courts claim to need more judges and staff to assist them.  Workloads are often low and production targets either nonexistent or set arbitrarily. While prosecutors can dismiss meritless cases, this has not accelerated the handling of higher priority crimes. In both regions, the former judicial backlog has moved to prosecution – a rapid accumulation of cases in investigative limbo. Despite high investments in automation (often by donors), its use to monitor performance is minimal, at best limited to individual evaluations. Applications to detect structural issues are rare.

Further changes are often stymied by politics, corruption, and inertia. Police reform, presumably critical to criminal justice, has proved nearly impossible in many countries. Police are frequently among the few personnel who do not benefit from higher salaries, stricter recruitment standards, and improved monitoring. While their numbers have often increased, quality lags. Even governments wishing to introduce police reforms can be constrained by the interlocking interests supporting current practices, uncertainties about better models, and likely costs.

Still victims of the Cinderella syndrome?

In Latin America, the judiciary was the Cinderella branch of government, a term applicable to sector institutions in both regions. Their importance and funding have increased, as has in most cases their formal control of their own operations.  External interference has not disappeared, but is usually exercised less blatantly. Internal leadership and management capacity constitute a bigger challenge. Their underdevelopment is reflected in performance data and continuing low public approval. Decades of external control or cautious self-restraint have not prepared leaders for more active roles, nor provided much idea of how to pursue them. Pressures from citizens, governments, donors, and organizational members are often conflicting, complicating choices on a path ahead.

When pushed to do something, sector leaders complain with some reason that existing laws pose critical constraints; new legislation, including the procedural codes, often constitutes “unfunded mandates,” enacted without adequate budgetary analysis. Additional, usually unrecognized obstacles include the tenure in position (immovability) afforded to many judges and prosecutors and the frequent practice of electing new Chief Justices every one to two years.

The exit from this impasse requires different types of analysis, planning, and exploration of alternative resource use.  Leadership must build these capacities in their institutions. This transformation is recent and still incomplete even in more developed regions, but their experience could accelerate the shift elsewhere. Change eventually must come from within, but donors could assist by facilitating contacts with more successful systems rather than continuing to fund traditional inputs with little attention to their effective use.

Author

Linn Hammergren is currently an independent consultant working on development projects in the areas of judicial reform, anti-corruption, and donor assistance strategies. She formerly worked for the World Bank, USAID, and (as an assistant professor of Political Science) Vanderbilt University. Her most recent book is Justice Reform and Development: Rethinking Donor Assistance to Developing and Transitional Countries.