Introduction

The Challenge of Judicial Reform

The Problem of Judicial Reform in Latin America

The Experience of Latin American Judicial Reform in Latin America

Some Specific Areas for Further Attention

Some Unanswered Questions on the Role of Judicial Institutions and Societal Expectations

Conclusions

Sources Consulted

Some Specific Areas for Further Attention:
Obviously, one impediment to success is our inability to reach some very basic agreements about objectives and purposes. The current treatment will not attempt to advance them. Rather it focuses on areas for incremental improvement, ways we can do better what we have already decided we want to do. In the course of effecting these improvements, the more transcendental issues should, however, be kept in mind -- since there is always the danger of resolving them unintentionally and to wholly undesirable ends. Moreover, as reforms progress, these issues will eventually emerge. This appears to be the case in the countries which have advanced furthest or attempted the greatest changes. Colombia may well be an example of the second category -- the uneven progress, unanticipated consequences, and escalating costs of the 1991 reforms are likely to force attention to the basic issues earlier rather than later, as participants and ordinary citizens recognize the trade-offs implicit in the extremely ambitious and not entirely consistent agenda.

Although fifteen years of experience with reform has helped develop a substantial body of knowledge about what works and what doesn’t at the level of usual activities [ 17 ], two somewhat contradictory tendencies discourage its adequate use. The first is a desire on the part of many participants to reinvent the wheel -- to deny that their problems have anything to do with those found elsewhere and thus to demand that new solutions be developed for their special circumstances. Tailoring responses to national realities is important, but a failure to look first at others experience and to consider adopting what is useful has wasted resources and often produced solutions that are different but no better than the available models. The phenomenon is especially common in the design of complementary (i.e. nonjudicial) services and information systems and to some extent in the drafting of new laws [ 18 ]. An opposing but equally damaging tendency is unfettered imitation -- the adoption of “successes” without much attention to the special circumstances allowing them to work, or without an examination of what that success really signified. This latter point is particularly important -- those who have lived with judicial councils, adversarial criminal procedures, or alternative dispute resolution are often amazed by the inherent virtues ascribed to these systems by those promoting their adoption elsewhere [ 19 ]. Justice like every other discipline has its fads, and they rarely turn out to be as effective as their immediate popularity implies.

These two tendencies, often apparent in the same programs, are shared by all reform participants, including major and minor donors and the technical advisors they bring to the work. In the latter cases, they are particularly puzzling and harmful. Donors and external advisors are presumed to have a more global view and thus a command of the lessons of experience. Still, it is not uncommon to find that even programs sponsored by the same donor appear completely uninformed by that donor’s work elsewhere, adopting measures that have already demonstrated unsatisfactory results or investing in the redevelopment of already successful mechanisms.

There are a multitude of explanations for these phenomena. Simple human nature dictates that everyone wants to be special and that quick fixes are more appealing than complex solutions. Studying an issue is hard and often unrewarding work; original solutions usually win more credit for their authors, and those who hedge their recommendations with caveats and conditions are less likely to be heard than those who promise rapid, unqualified success. Justice reform aims at improving judicial performance, but it is also a business and a political cause and thus offers opportunities to participants which transcend or circumvent its apparent objectives. All of these considerations will continue to influence reform programing and will always encourage it to be less logically and technically driven than the planners might desire. However, if we can’t change human nature or eliminate the wider set of agendas behind specific reforms, we can introduce measures to promote better practices and to take better advantage of what we have learned.

The underlying changes are attitudinal -- those involved in specific reform programs must come to recognize they are part of an evolving discipline and that the experience of others does count. The change cannot be imposed. It can be facilitated by making that experience more easily available, and by the adoption of policies which reward its use. Donors are critical here -- first in making an effort to consolidate and disseminate the lessons of experience, within their own agencies and more broadly, and by encouraging national partners to visit other countries and observe program alternatives in action before adopting their own. Donors can also make the appropriate changes in their own operating procedures, insisting for example that designers review and utilize these lessons, placing a premium on proposals that build on others work, and specifically addressing these issues in their evaluations. Finally, they can provide financing for conferences, workshops, exchanges, and studies specifically devoted to reviewing and evaluating competing approaches to common problems. These are not the activities currently undertaken, which usually feature collections of uncoordinated presentations on too many themes and with too many agendas to facilitate critical analysis. Themes should be more narrowly defined, participants chosen for their ability and willingness to address the issues objectively (as opposed to merely selling their own program or view), and the agenda should set forth the terms of debate and the anticipated product. For example, a conference on training would not be limited to a dozen descriptive explanations of national programs, but rather might focus on how to do effective needs assessments, evaluate impact, or link training to career advancement. Presenters might be provided lists of questions or topics to be covered before hand or with a theme paper to which they would respond. The same types of conferences and workshops could also be organized by judiciaries or judicial schools, drawing on national and international participants.

One product of these information exchanges will be the creation of improved approaches and solutions out of the combined experience of various countries. Another may be the exploration and selective elimination of some of the persisting myths of judicial reform -- the attractive oversimplifications or out-and-out errors that emerge every time someone decides to try their hand at the topic. These range from the ephemeral goals like judicial independence or apoliticism which, it turns out, are not only impossible but also undesirable in the extremes often sought, to some traditional benchmarks and solutions -- the constitutional earmarked percentage of the national budget, government by external council, or the test to detect judicial vocation -- which prove far more difficult to realize and far less beneficial in their results than their promoters had imagined. Most of these objectives and solutions address important issues, and some contain elements meriting further investigation, but much time and many resources could be saved if their flaws and shortcomings could once and for all be recognized. The most dangerous of all of them may be the notion that reform itself can be reduced to a technical formula or model which once defined can be automatically and almost mindlessly followed. That belief may account for some of the greatest disappointments and worst mistakes; those lulled into its acceptance are usually unprepared to recognize their own errors until they have taken on fairly substantial dimensions.

Much of what we know about judicial reform is at the level of reform activities -- how to set up a judicial school or curriculum, how to develop an improved system of court administration, or how to restructure a Fiscalía or public defense office. There are still enormous gaps in this knowledge, and as noted, much of it is inadequately used. However, its fullest utilization would still not resolve a higher order problem, that of how to combine activities into a single reform program and of how to structure the latter so as to produce real improvements in judicial performance. The challenge is not to find a fail-safe formula for reform; as noted above that is an unlikely goal. It is instead to continue to test relationships to arrive at more effective and efficient means for making discrete improvements.

This is essentially a means ends problem and one which requires attention to both areas. It often begins with an inadequate statement of the ends or desired improvements. Where the goal is reform, without further qualifications, the target too easily becomes the realization of the individual activities included: a higher budget, a less politicized appointment system, or better trained judges. These it should be noted are not themselves objectives -- they are means. If we did have an ideal model -- the perfectly functioning judiciary -- and a precise definition of its component parts, then a statement of means might be sufficient -- x units of training combined with y units of information system following the adoption of certain legal changes. Even here, resource constraints would force its incremental realization. Absent both a model and limitless resources, a better, more precise definition of ends is necessary to help select means and to determine whether they are having an effect.

A second reason for focusing on ends is our inadequate, and often incomplete understanding of the problems to be resolved [ 20 ]. Many of the myths referred to above are one aspect of this phenomenon. Often representing solutions disguised as problems (e.g. the solution is higher budgets for the problem that is judicial poverty), they reflect a truncated analysis of the larger ill and one which ignores critical contributing factors. In other cases, the flaw stems from our misperceptions of judicial operations. One possible example is the frequent contention that excess demand and impossible workloads force courts and other actors to perform poorly. The few existing empirical studies [ 21 ] often indicate that the real workload, what actually occupies the time of judges, prosecutors and police, is hardly excessive and that they could do far more with improved procedures, work habits, and perhaps some monitoring of output. Specifying the problem more accurately cannot eliminate these misperceptions, but it will allow further analysis to test for errors and encourage the development of more effective solutions to address what is found.

Once the problems are adequately stated, the second part of the equation -- the development of reform strategies -- is easier to address. Obviously, a part of this is the better use of our accumulated knowledge to match means and ends, and to ensure that the means are adequately designed and implemented. Even if training is required, there is still the choice of what kind and how much as well as how to organize it in the most cost-effective manner. However, training is rarely the only solution, and where a variety of means is indicated, often to address a variety of objectives, the remaining dilemma is how to mix, coordinate, and sequence them. Sequences and mixes dictated by logic, convenience, or just how things work out (e.g. doing what is easiest or more attractive first) may not be the best answers. They can lead to dead ends (when the easy things are done, reform stops), counterproductive results (the information system is designed before new procedures are introduced) or suboptimize complementarities and synergies (early training helps reduce resistance to proposed laws and provides information to improve their content). There are some broader strategic dilemmas -- whether it is best to change laws gradually or redraft codes en toto; whether top down or bottom up strategies are best in restructuring organizations; when to use and how and when to replicate pilot projects; whether to replace or retrain ill prepared staff and how to combine and structure positive incentives and sanctions to encourage better performance; how and when to draw external constituencies or potential users into the reform design and implementation process.

The list is much longer, and it is doubtful that many of the questions will have clear cut answers. The broader point is that our persisting ignorance requires intelligent experimentation -- when we recognize what we don’t know, we can attempt to expand the frontiers of our own knowledge, testing alternatives and recording the results so as to allow mid course corrections in on-going projects and incorporate better methods in the next ones. If there is to be a new generation of justice reforms, it will have to build not only on the lessons of past efforts, but also on a more systematic exploration of how to incorporate them most productively.

In the earliest reforms, costs were not an issue. Donors had to account for what they put into reform projects, but no one asked what national participants would or could contribute to maintaining reformed systems. In an era where budgetary and workforce reductions were the general rule in the public sector, justice seemed to be the one area of governmental operations exempted. In some sense, this was justified. Latin American nations had been spending too little on their courts and other sectoral institutions for decades and if they wanted better service they would have to pay for it. However, in the last few years there have been signs that this blank check will be withdrawn. On the one hand, it is not evident that increased investment and operating budgets have bought the best services. The concern here is not how much is spent, but rather maximizing the returns. On the other, however, as countries reach and surpass the traditional targets -- 6 percent of the national budget as in Costa Rica, or in some cases even more -- and still more needs are identified, the very legitimate question of how much a country can spend on justice begins to be broached. Alongside this issue, the first question of cost-efficacy, is far easier to address.

Judicial planners and leaders will have to address both issues, although they may postpone the second one if they can make progress on the first. Access to higher budgets and generous external funding has allowed considerable waste, and the reform process itself has further encouraged it. When new services or procedures are introduced, it is usually easier to add offices and staff, rather than forcing changes in what already exists. This avoids additional resistance and produces results more quickly. Production increases but productivity remains unchanged. For the users, things look better for awhile, but increased demand or an end to budgetary expansion eventually calls attention to the sector’s continuing low efficiency. Adding more judges, defenders, or police without increasing their individual output is a short term, and in the end, very unsatisfactory solution. It has introduced other problems -- the proliferation of offices, organizations, and officials has encouraged a duplication of functions, overlapping powers and missions, and less rather than more coordination among them. A sector which always posed a certain amount of confusion and puzzlement to potential users has become more perplexing. Whole organizations may serve purposes few citizens understand, and anyone with a complaint may be still less clear as to where to present it, or once it is presented, who will handle it. Many of these new or reformed entities have already begun to create internal divisions devoted to more specialized concerns, without, many users protest, ever fully addressing their primary functions [ 23 ].

The ambitious restructuring of the sector, its entrance into nontraditional activities, and the promises of more, often subsidized services for all have run smack into budgetary constraints. A concerted effort to rationalize operations and increase productivity may buy more time, but the still larger issue is what society will finance. Justice like any other public service has a price tag, and if the users don’t always pay it directly they in the end will finance it -- and in the course of events receive less of some other good. Judicial training, public defenders, and courtroom social workers and psychologists must be paid for, just as must the more usual services of police, judges, and prosecutors. The implicit question has two parts: what will be a public service, and what public service will be provided gratis [ 24 ]? Costa Rica for example has an exemplary public defense office, which until recently provided services to all comers, under the assumption that a free defense was a constitutionally guaranteed right. The service is still provided and has expanded into new areas (civil and family law), but those who can afford to pay are now charged. The discovery that in most Latin American countries a majority of civil cases involve the collection of bad debts has raised a similar issue -- the first question is whether such cases should be addressed publicly (or whether a private service might be more appropriate.) The second is whether such services should be provided free, or whether special courts with user fees might not be more desirable [ 25 ].

The two aspects of the dilemma are complicated by another feature -- the tendency of subsidized (or for that matter, better) services to alter demand patterns and to attract more users. This is implicitly their intent, but the increase can over tax the system, reducing quality or forcing rationing, and it may not represent the most efficient use of overall resources. Where litigation costs little, more people will litigate, rather than seeking to resolve their conflicts in other fashions or simply deciding to live with them. This is not always beneficial from the individual or societal standpoint. The theme has been explored by any number of specialists [ 26 ]. Here, I would only note that few Latin American reformers have addressed it, and the oversight could be costly in a literal and figurative sense.

The choice between public or private, free or for-fee services includes a lot of middle ground. Special courts, public or private mediation services, progressive fee schedules, filtering mechanisms or other devices to discourage some users, and partially rationed or subsidized programs are all possibilities. They structure the choice, but they do not eliminate it. The era of infinite expansion is ending, and governmental leaders, judicial planners, and citizens will have to decide not only how to provide services more efficiently, but also what will be provided. Arguably, the choice should not be left to the sector alone; it is patently political and thus merits discussion by a far broader community.