National Center for Access to Justice

Access to Justice Indicators, Recommended by Experts to US Government Officials, New Resource, Now On-Line

This post jointly authored by: Risa Kaufman, Columbia Human Rights Institute, and David Udell, National Center for Access to Justice

On September 15, 2016, access to justice experts from the academic and nonprofit communities gathered for a Consultation with U.S. government officials to recommend “access to justice indicators” to guide data collection for tracking and promoting access to justice in the United States.

The Consultation, the first held between U.S. government officials and civil society experts on access to justice indicators, is a step towards U.S. implementation of Goal 16 of the 2030 Sustainable Development Goals, or SDGs. It was organized jointly by the Columbia Law School Human Rights Institute and the National Center for Access to Justice at Fordham Law School, and hosted by the Open Society Foundations in Washington, D.C.

Participating in the Consultation were thirty officials from fifteen agencies in the White House Legal Aid Interagency Roundtable (WH-LAIR), as well as thirty access to justice experts from the academic and nonprofit communities. The event is described in the Justice Blog:  The White House Legal Aid Interagency Roundtable and Goal 16 – One Year On.

The recommended indicators contributed by the civil society experts are downloadable here. These indicators are a new resource for all who are interested in developing ideas for tracking data on access to justice. 

The adoption of the SDGs, the inclusion of Goal 16 calling on all countries to assure access to justice, and these initial steps by civil society to build access to justice indicators in dialogue with the federal government, are significant developments in the effort to harness the power of data to expand access to justice for all.

I.  Background

Adopted by the United Nations in 2015 as part of the 2030 Sustainable Development Agenda, the seventeen SDGs call on all countries to address diverse social, economic, and environmental challenges and are intended to end extreme poverty around the world by 2030.

Goal 16 of the SDGs calls on all countries to ensure access to justice. In particular, Goal 16 calls on countries to: “[p]romote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable and inclusive institutions at all levels.” One of Goal 16’s designated “targets”, intended to guide implementation of the goal, is: “[p]romote the rule of law at the national and international levels and ensure equal access to justice for all.”

Goal 16 reflects increasing recognition by the global community that access to justice is an essential component in the fight against extreme poverty.

II.  Global Indicators for Goal 16

The United Nations member states have developed an initial set of “Global Indicators” that begin to set global benchmarks for the practical implementation of the SDGs in all countries. The Global Indicators are intended both to promote progress within countries and to facilitate comparisons of the progress made by countries relative to one another.

To date, the Goal 16 Global Indicators, created by the United Nations Interagency Expert Group on Sustainable Development Goals, or IAEG-SDG, focus on criminal justice. Although civil access to justice is also understood to be important in assuring fair resolution of many types of vitally important disputes (for example, concerning shelter, food, personal security, work, proof of national identity, child custody), IAEG-SDG has not yet created civil access to justice indicators, in part due to concern over the near-term availability and cost of data collection. The global indicators will be revisited over time.

The UN has also developed a system for countries to report data voluntarily on their progress, and to allow comparisons of their respective progress, toward meeting the seventeen Goals. The voluntary reporting and review system is overseen by the United Nations High Level Political Forum.

III.      U.S. National Indicators

In light of the differences that distinguish countries from one another, all countries, including the United States, are also expected to establish their own “national indicators” for measuring progress toward achieving each of the Goals, including Goal 16.

In the United States, on the eve of the UN’s adoption of the SDGs, President Obama issued a Presidential Memorandum formally establishing the White House Legal Aid Interagency Roundtable (WH-LAIR), and charging it with responsibility for assisting the United States in implementing Goal 16. As part of this effort, the federal agencies in WH-LAIR are collaborating to identify U.S. national indicators for Goal 16.

As recognized in the Presidential Memorandum, the broader focus of WH-LAIR is to “increase the availability of meaningful access to justice for individuals and families and thereby improve the outcomes of an array of Federal programs.” Co-chaired by the Attorney General and the Director of the White House Domestic Policy Council and staffed by DOJ’s Office for Access to Justice, WH-LAIR currently has twenty-two participating agencies, including Health and Human Services, Housing and Urban Development, Homeland Security, Legal Services Corporation and Veterans Affairs.

On November 30, 2016, the U.S. Government issued the First Annual Report of the White House Legal Aid Interagency Roundtable:  Expanding Access to Justice, Strengthening Federal Programs.  The Report documents the many steps taken by the WH-LAIR agencies to ensure that agency goals are advanced where possible by reliance on civil legal aid.

With respect to WH-LAIR’s efforts to implement Goal 16, the Report notes that a WH-LAIR Working Group on Access to Justice Indicators and Data Collection is expected to release an overview of its activities on national indicators soon.

IV.  The Importance of Goal 16 and Access to Justice Indicators in the United States

In the United States, Goal 16 is creating opportunities for policy advocates, government officials, leaders in philanthropy, community based reformers, and many other stakeholders to improve the quality of the justice system in the United States.

Goal 16 helps to reinforce the broad understanding that access to justice is valuable in reducing poverty. More specifically, it highlights the essential dispute resolution functions of courts, legal aid programs, the pro bono bar, law schools, and their social services partners in communities across the country. And it draws attention to the need to support the growing field of research on access to justice.

In jump-starting the process of defining access to justice indicators and collecting access to justice data, Goal 16 is likely to create additional opportunities by:

  • Prioritizing “access to justice” as a societal goal, and establishing the relationship between access to justice and poverty reduction
  • Creating incentives for federal, state, and local officials to expand access to justice
  • Producing data and findings that empower reformers to expand access to justice in public institutions and in areas of law and policy in which they possess expertise
  • Building a field of research (and researchers) on access to justice
  • Expanding sources of funding for civil legal aid, indigent defense services, and courts
  • Implementing the “100% access to effective legal assistance” resolution adopted in 2015 by Chief Justices and Chief Court Administrators, and
  • Strengthening human rights treaty reviews and the Universal Periodic Review with respect to barriers to access to justice in the United States.

V.  Developing U.S. National Indicators for Goal 16: the 2016 Civil Society Consultation with WH-LAIR on Access to Justice Indicators

The SDGs anticipate that countries will involve diverse stakeholders in forming national indicators and tracking national data. To that end, on September 15, 2016, thirty representatives from fifteen WH-LAIR agencies met with thirty access to justice experts from the academic and nonprofit communities, to receive recommendations for how the United States can measure progress towards meeting Goal 16.

The experts, working across a diverse set of civil and criminal justice issues, including housing, healthcare, gender-based violence, rights of indigenous peoples, veterans’ issues, disability, immigration, and problems at the intersection of criminal and civil justice, presented ideas for “access to justice indicators” to track data and promote access to justice in the United States as a step towards implementing Goal 16.

The United States is among the first countries to move forward with Goal 16 in the way anticipated in the SDGs: that is, by consulting with civil society leaders on the formation of national indicators. The Civil Society Consultation followed an earlier meeting of members of a civil society Expert Working Group on Access to Justice Indicators that took place on January 12, 2016, in New York City. Both meetings were organized by the National Center for Access to Justice at Fordham Law School and the Columbia Law School Human Rights Institute.

The Consultation was notable not only for its value in illuminating access to justice indicators and data sets for consideration by the WH-LAIR officials, but also for its deep engagement of civil society leaders in the task of determining how government should best develop and track data to expand access to justice within their own respective areas of expertise.

VI.  The Recommended Indicators

Indicators, and the data-collection initiatives and policy advocacy they inevitably drive, can help to increase access to justice by making progress (and its absence) instantly transparent and obvious to a wide audience that includes not only the lay public, the press, the academy, and the nonprofit sector, but also public officials in all three branches of government, in federal, state, and local systems.

In recent years, new access to justice indicator systems have come online that track key elements of civil justice systems. The World Justice Project’s Rule of Law Index directs survey questions to experts and lay people to gauge people’s experiences of access to justice in countries around the world as part of a more comprehensive examination of the rule of law. The Justice Index, created by the National Center for Access to Justice at Fordham Law School, ranks the 50 states, Washington, D.C. and Puerto Rico on their adoption of best policies for access to justice in four categories: the ratio of civil legal aid lawyers to the poor (tracking an actual count of civil legal aid lawyers), and systems for helping people without lawyers, people with disabilities, and people with limited proficiency in English (tracking policies and practices).

As part of the Civil Society Consultation with WH-LAIR on September 15, 2016, the academic and nonprofit experts provided government officials with recommended indicators in the following categories:

  • Criminal Justice Indicators, focusing on indigent defense, the intersection of the civil & criminal justice systems, and reentry
  • Civil Justice Indicators, focusing on:
    • disability
    • disaster response
    • education
    • employment/labor
    • family law and matrimonial matters
    • finance and consumer protection (including credit card debt and home foreclosure)
    • gender-based violence
    • healthcare
    • housing
    • immigration
    • public benefits
    • tribes and tribal members
    • veterans and service members

The recommended indicators take a broad range of forms, rely on a broad range of data types, and take into account data sets that currently exist as well as those that do not yet exist but that experts believe could and should be collected in the future, both in and outside of government.

With respect to their form, some indicators track primarily “inputs,” such as demographic data, laws, structures, mechanisms, and programs. Others emphasize “outputs,” such as numbers of clients served, and numbers and types of cases. Still others focus on “outcomes,” both near and long-term, personal and societal, including impacts of access to justice on individual well-being, and on overall reduction in the numbers of people living in poverty.

With respect to types of data, some indicators track “administrative data,” for example data collected in routine record-keeping carried out by governmental agencies. Others emphasize “experimental data,” for example the results of research studies and evaluations. Still others focus on “survey data,” for example lay people’s opinions and experts’ opinions.

The recommendations also referenced indicators currently being used to guide data collection for the Rule of Law Index and the Justice Index.

With respect to all indicators and data, many experts urged the collection of data that is disaggregated by race, ethnicity, gender, age, disability, and other categories.

VII.      Next Steps

As a new presidential Administration prepares to assume office in 2017, the federal government and nonprofit communities are well-positioned to continue their efforts to track and expand access to justice as a response to poverty in the United States.

However, to ensure the success of these efforts, further work will be needed to establish the concepts that serve as indicators, identify existing and future data sets, put into place the means of gathering the data that is required, and create a system for reviewing progress.

This work can and should be undertaken not just at the federal level, but also at the state and local level. Indeed, the SDGs are intended to be implemented at every level of government, including by state and local governments. A few U.S. cities, including Baltimore and New York City, have already taken up the mantel of local SDG implementation.

More fundamentally, the call for data to track and expand access to justice has implications beyond government. As emerged during the process leading to the Consultation with the federal government, advocacy organizations and philanthropies have an independent interest in determining what data to track, and how best to track it. And they have a learning curve as they draw on the power of the data revolution to increase the impact of their own efforts to assure access to justice for their constituents and stakeholders.

The use of data to identify, establish, and support the implementation of best policies, whether by government or by those in the nonprofit sector, has become the favored practice across the entire political and policy landscape, and in society at large. It is expected to continue to drive the activities both of government and civil society, throughout the United States and around the globe, in the months and in the years ahead.