Transparency as a Sword

As a general matter, I support transparency in the criminal justice system.  It is difficult to obtain reliable data about crime and criminal prosecutions --- especially data from state and local systems.  Because we elect many state and local criminal justice officials, this lack of data and transparency is troubling.  If the public is unable to discover what criminal justice actors are doing, then they will find it difficult to hold those actors accountable.

And so, I was surprised to hear a number of people here in the state of North Carolina complaining about a state law that requires the gathering and dissemination of criminal justice data.  The law requires the collection and reporting of information about when judges waive the collection of court fees in criminal cases.  Here’s the full text of the relevant statute:

The Administrative Office of the Courts shall maintain records of all cases in which a judge makes a finding of just cause to grant a waiver of criminal court costs under G.S. 7A-304(a) and shall report on those waivers to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1 of each year. The report shall aggregate the waivers by the district in which the waiver or waivers were granted and by the name of each judge granting a waiver or waivers.

The people who are complaining about this law argue that it creates pressure for North Carolina judges not to grant waivers to criminal defendants.  To be clear, the legislature can’t prohibit judges from granting all waivers---if defendants are indigent, then the Constitution forbids the state from imposing these court fees. 

Since I learned about this law, I’ve been wondering:  Is there a way to square my desire for more readily available criminal justice data with the idea that these reports are a bad idea?  After all, for those of us who wish to study the criminal justice system, more data is better than less data.  And if voters need transparency in order to hold their official accountable, then shouldn’t they have this information about their judges?  After all, judges are elected here in North Carolina.

After some reflection, I think that this sort of information could be very valuable.  But it would depend on the nature of the information that was gathered and how much of that information was disseminated.

For example, I could imagine a world in which the Administrative Office of the Courts were asked to gather information that would allow us to put these waiver decisions in context.  For example, the office could also collect information about the annual income or net worth of every defendant.  And then it could present the waiver information in the context of the assets that defendants have or the salaries that they earn.  That information might allow us to assess whether judges are granting waivers only to those defendants who are actually indigent.  If the report tells me that the judges in my county are only granting waivers to people with incomes below $25,000, then I can feel pretty comfortable that waivers are being granted properly.

But the current reports do not provide any relevant context.  Instead, the report consists only of the number of cases in which these fees were waived and those in which they were not waived.* Those numbers are presented both by county and by individual judge, just as the statute requires.  (You can see a copy of the report here.)  So if a judge gives a waiver to a person who has no assets and an annual income of $0, that waiver will be recorded (and reported) no differently than a waiver for a person making $40,000 per year.

It is hard to see the value of a report in which the number of waivers and the proportion of waivers are the only information being provided.  Why should I care about the number of waivers being granted without any further context about the waiver?  That number, without context, is relevant only if people think that waivers ought to generally be granted or generally be refused.  And because I doubt that many voters think that waivers should generally be granted, the reports seem to be a way to try and pressure judges to keep the number of waivers that they grant as low as possible. **

In other words, it seems as though transparency here is being used as a sword against judges.  And the result may well be judges failing to grant waivers to defendants whom they might otherwise consider to be indigent.

 

* There are a few additional columns with information about partial waivers, civil judgments, and other similar data.

** As others have noted, the North Carolina legislature seems to be trying pretty hard to make it difficult for judges to grant waivers, even to those who are truly indigent.