Indiana Legislation to Require Greater Transparency of Judges in Handling of Criminal Matters

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” -- Louis D. Brandeis, 1913

Senator Mike Gaskill of Indiana recently introduced Senate Bill 444, legislation that creates the Public Safety and Judicial Accountability report, a report card on how judges handle criminal cases.  As policy makers and practitioners look for solutions to the problems in the criminal justice system, they are confronted with many issues, including putting extreme scrutiny on the police who investigate the crimes and the district attorneys who prosecute them.  Certainly, there has been much blame on state legislators, who often face criticism for things they couldn’t possibly have done.

READ: Senate Bill 444: Judicial Transparency

In the criminal justice system, however, it takes three branches of government to tango. And of the three, there is one group, directly at the helm of the criminal justice system, that often escapes scrutiny: the judges that apply the law and seek to make decisions that the community perceives as just.

So, how are they doing in terms of doing their jobs?  We just don’t know is the answer, and no one is helping us to find out.  State Court systems from around the country beg for budgets based solely on workload models, breaking down the time judges spend and measuring how long it takes to do the cases, including handling the hearings and writing the opinions.  Are some judges faster than others in handling their cases?   We might be able to ascertain that—that some judges take more time than others to do the same.  But what does that say about justice?  Not much.

As it turns out, the legislative and executive branch face much greater scrutiny and transparency in their handling of criminal cases, directly on the merits of what they do and almost never based on how long it takes.  The judicial branch faces almost zero scrutiny on what they do, except in an individual case where a judge may do something outrageous, and instead on how long they take to do their jobs.  Certainly, there are no statistics that might help the public and policy makers understand what the judge is doing in the basic performance of their duties and whether it is working from a lens of justice and even common sense.

To put it simply: is this Judge Maximum Manny or Minimum Mary or somewhere in between?

Senate Bill 444 helps the public come to some assessment of basic statistics, what might be considered a judge’s public safety report card, called by S.B. 444 the annual Public Safety and Judicial Accountability Report, in four critical areas: (1) convictions and acquittals; (2) sentencing averages; (3) success or failure when granting probation as an alternative to incarceration; and (4) success or failure on pretrial release.  In addition, the legislation requires comparative data—in other words, if we have 30 judges in this jurisdiction, where do they fall on all the measures as compared to each other.

We applaud this legislation, and believe it is likely to become a national model.  We encourage the Indiana Judiciary Committee to quickly hear this legislation.  Certainly no one would oppose greater transparency by simply creating a compilation of already public records.

For those that believe some jurisdictions are too harsh, let’s see if that is the case.  Are certain jurisdictions or judges too reliant on sentencing to the penitentiary as compared to their counterparts?  Or are certain judges too lenient in granting probation?  When it comes to pretrial release, are some judges imposing bails that are just too high when compared to their counterparts thus relying too heavily on preventative detention, or are some judges giving too many get out of jail free cards that their new crimes while on bail and failures to appear are a serious outlier?  These are the questions S.B. 444 begins to help the public answer.

Compilation of this data has nothing to do with challenging judges or threatening judicial independence.  If judges are doing a good job, like any job, then being more transparent should only serve to increase confidence in the judiciary and help us conclude that if the criminal justice system is broken, it is the other two branches that are to blame.  Indeed, only sunshine will lead us to the proper conclusion.