This article is an edited excerpt from "Selected Essays, A Report of the National Conference on Legal Information Issues," to be published this year.
By Hon. George Nicholson
and Jeffery A. Hogge, esq.
Special to Government Technology
In 1952, U.S. Supreme Court Justice Robert H. Jackson described the proper relationship between the branches of government: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."
This model of interbranch cooperation extolled by Justice Jackson applies directly to the coordination needed among the three governmental branches to improve the criminal justice system. It also applies to the coordination needed inside the judicial branch by those who need to be kept separate to some extent, such as the prosecutor and public defender.
Participants in the criminal justice system must energetically coordinate their efforts to enhance the enterprise while retaining the spirit of the separation of powers and the discrete functions within criminal justice. The technology is here to do this, and criminal justice cannot responsibly ignore it.
RETOOLING AN AGE-OLD SYSTEM
Criminal justice involves a wide range of professional participants, from lawmakers to law enforcers, prosecutors and defenders to tribunals and correctional agencies. For decades, even centuries these criminal justice participants have worked mostly independently, sharing information by the printed page and face-to-face or voice-to-voice encounters.
As the world pulls into the fast lane of the Information Age, criminal justice has fallen behind dramatically. What was once a workable system is becoming increasingly unworkable as public safety falters, civil rights diminish, and public trust in criminal justice wanes.
It is not enough to shovel faster. Criminal justice must enter the Information Age by incorporating technology as a tool to make the system run efficiently and effectively. This will happen only when the participants make an enthusiastic common cause to fully integrate the information processes involved in criminal justice while maintaining independence for parts which must remain separate.
While all participants in criminal justice use technology to some extent, rarely is there planning or cooperation to integrate their various applications. Invisible but real barriers prevent the coordinated use of technology to promote the flow and utility of information between the participants. Removing these barriers will improve criminal justice overall by increasing efficiency and effectiveness and reducing costs.
Make no mistake -- there are valid boundaries among criminal justice participants established by constitution and statute. These relate primarily to the division of power among the branches -- legislative, executive and judicial -- and the preservation of the adversarial system. These divisions are important for protecting delegated authority and preserving the separation of powers. Thus, it is appropriate for these boundaries to reflect the legally mandated functions of the entities. Nevertheless, these boundaries should not retard or prevent the flow of information and the sharing of technology, except as necessary.
OBSTACLES TO TECHNOLOGICAL INTEGRATION
It doesn't take a brilliant futurist to know criminal justice will eventually be paperless. All documents will be created, filed, stored and retrieved electronically. Exhibits will be imaged. The benefits of this paperless trend are many: dramatically lower costs, time savings, and improvements in storage, retrieval, portability and access, to name a few. Despite these benefits, however, the participants in criminal justice cling to their paper products.
Technology in criminal justice is better used sooner than later, and integrated rather than haphazard. To achieve this better use, the leaders and policymakers in criminal justice must be convinced of technology's utility and cost-effectiveness and cooperate in its adoption.
Generally, the computer literate need not be convinced of the value of technology and its potential benefit to criminal justice. However, we live in a day in which most of the more experienced participants in criminal justice, those who have earned positions of leadership and policy making, learned to perform their basic functions the old way.
Many less experienced participants in the system have only limited influence while, at the same time, they have a better understanding of technology. This mix of low-end technological expertise without authority but high-end technological ignorance with authority has prevented optimal implementation.
Much like the arrival of the automobile as a modern form of transportation, the use of technology in criminal justice has prompted fear in many of those accustomed to the antiquated ways of performing various functions. When they see a minor glitch involving technology, they are quick to cry, "Get a horse!"
But as technology has matured, it has become more dependable and transparent. Just as we need not be familiar with the science of internal combustion -- or even know that internal combustion happens under the hood -- to benefit from an automobile, we need not be familiar with the inner workings of technology to benefit from it.
Also contributing to the failure of policymakers to embrace technology whole heartedly are the foibles of the past. Instances in which the government has spent large sums of money on a technology project with great expectations, only to be disappointed and embarrassed by partial or complete failure of the system to live up to its advance billing are well known. Many factors contributed to these failures, including the infancy of the technology, inexperience of the managers and technicians, and the failure to provide for integration and compatibility with other systems.
The picture of current timidity and lack of technical knowledge may be overdrawn, but it provides a possible and, indeed, the probable explanation for the current chaotic state of technology in criminal justice.
COOPERATION IN INTEGRATION
The integration of criminal justice will not happen without cooperation from its participants. No single participant can force this integration on the remaining participants. Indeed, any attempt to do so may be met by firm resistance and seen as an infringement on the right of the participant to perform its own function independently.
Presently, there is no effective mechanism to recognize the need for and encourage cooperation. Since criminal justice involves private parties and three branches of government -- at local, state and federal levels -- among which may exist self-interested and adversarial relationships, substantial inertia in the system discourages efforts to change it. Each participant tends to view narrowly its own role and how it can fulfill that role. Nevertheless, what is best for the individual participant may not be best for the system. A narrow view of criminal justice can be counterproductive when the individual participants make decisions that favor themselves but burden the system.
Without a coordination council or some similar catalyst organized at a state level, criminal justice can be expected to languish as an inefficient anachronism. Public perception of the system will continue to decline. And, most importantly, the safety and civil liberties of the public will continue to wane. All the while, technology will invade the process. The invasion will be chaotic, and there will be no effective forum to resolve resulting conflicts. That criminal justice has never been effectively integrated does not justify the continuation of old ways. If it is not already, criminal justice will be perceived as sluggish and unreliable, an institution slowly heading toward collapse.
The Information Age has brought with it not only the prospect but the expectation of better systems. Criminal justice cannot escape this expectation. Setting aside misapprehension concerning technology and unnecessary isolation, criminal justice participants can "integrate the dispersed powers into a workable government."
George Nicholson is an associate justice in California's Third Appellate District. Jeffery A. Hogge is a judicial attorney for the same court.