Filing Legal Advice in State: A Case Study of Indicators and Organizational Development Todd Foglesong

Introduction Synopsis The paper starts by describing the relationship This paper describes how Adeola Ipaye, the between the Program in Criminal Justice at Harvard attorney general in Lagos State, Nigeria, and the attorney general of Lagos, as well as the new changed the practice of filing “legal advice” upon understanding of the justice system that came from the completion of an investigation of a homicide, studying and then trying to expedite the filing of legal armed robbery, fatal motor vehicle accident, or advice. It then analyzes the “governance work” of other grave offense.1 It also describes the justice indicators — changes in the relationships of contribution to that change made by the design authority within government, and changes in the and use of “indicators” of the pace of nature of knowledge about systems. The paper prosecution. investigates the operating principles of these indicators, focusing on their dependence on the The indicators themselves were the result of an collective identity of state counselors in the extended collaboration between the Lagos State Directorate of Public Prosecution and the Attorney General’s Office and the Program in organizational authority of its leaders. Criminal Justice Policy and Management at the Harvard Kennedy School (John F. Kennedy School of Government at Harvard University). Building Relationships Over Baselines

Adeola was appointed attorney general of Lagos State The change in practice, I believe, was the result in the fall of 2011. He had served as a special adviser of the careful cultivation of new relationships — on taxation and revenue for the governor between first, between line staff and supervisors at the 2007 and 2011. When he became attorney general, he Lagos State Ministry of Justice and then between inherited a relationship with the Program in prosecutors, police, and the courts. Criminal Justice Policy and

This material has been funded by UK aid from 1 the UK Government Although the Constitution of the Federal Republic of Nigeria gives the attorney general of each state the authority to “institute and undertake, take over and continue or discontinue

criminal proceedings against any person before any court of law in Nigeria,” article 23 of the Police Act of 1990 empowers the police to conduct “all prosecutions in any court.” In practice, the police charge and prosecute the overwhelming majority of all offenses in the magistrates’ courts. In Lagos, the attorney general decides whether to charge and prosecute in police investigations of murder, armed robbery, fatal motor vehicle accidents, serious fraud, and a few other infrequent offenses. The decision whether to charge and, if so, for what offense is called “filing legal advice.” http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 1 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development

Management at Harvard Kennedy School that his released inmates they considered to have spent too predecessor, Olasupo Sasore, had begun in earnest in much time in detention.5 the fall of 2009. That relationship may have seemed Scholars, prosecutors, and police acknowledged that natural by the time Adeola assumed his position. It there was a deep, structural problem in the justice all started when Yemi Osinbajo, Lagos State’s system, even if they disagreed on its sources and attorney general from 1999 to 2007, shared the solutions. Sasore convened an interagency justice results of his research on delay and corruption in the forum in May of that year to encourage joint efforts civil courts at a Harvard workshop funded by the UK to mitigate the problem. All that was needed, I Department for International Development, and thought, were more precise, reliable, and valid pledged his agency’s interest in collaborating on measures. 2 “indicators.” I spent a few weeks in the summer of 2009 with a I wrote to Olasupo Sasore in June 2009, shortly after researcher from CLEEN and Akeem Bello, the Yemi Osinbajo had left office, asking whether the attorney general’s senior special adviser, trying to new attorney general would like to work with the generate a shared understanding of the problem. We program, too. Sasore agreed, and he suggested that visited the Prison, the most overcrowded we start by working together on pretrial detention. I facility in the state; rummaged through files in the was thrilled. I fancied myself an expert on the office of the director of public prosecution (DPP); subject, having run an experiment to reduce chatted with the director of police investigations; and overcrowding in a pretrial detention facility in Russia canvassed a new “case tracking system” that a private a decade earlier. I also believed that there was a good software company had set up with funding from the opportunity to improve on the indicator of detention Department for International Development to most commonly used in the world—the proportion of facilitate the “monitoring and evaluation” of prison inmates on any given day who await defendants’ criminal proceedings. But none of these sentencing. In fact, I was convinced that Sasore and sources yielded a measure of the detention problem his staff could generate a much more discerning and that was reliable, believable across government actionable indicator — the average duration of departments, and able to inspire individual agencies detention — by sampling the files of people leaving to take action on their own. prison each month. I also knew that we could work with the CLEEN Foundation, a well-regarded human rights organization in Lagos that had steadily built a working rapport with the federal and state police, the commissioner of state prisons, and the former 2 3 See Harvard Kennedy School (2008) for an account of this attorney general. research and the workshop at which the project on indicators began.

There were plenty of reasons to focus on pretrial 3 detention in 2009. A national initiative to CLEEN was established in 1998 by Innocent Chukwuma and worked loyally but critically with successive governments in “decongest” prisons, announced by the president in Nigeria. Its experience with foreign development organizations 2006, was yielding uneven effects across the country and capable research unit made it a particularly attractive partner for us and the attorney general. and was having a limited impact in Lagos, the state 4 4 with the greatest number of inmates. Every lawyer, In 2010, the federal Ministry of Justice estimated, through a one-day “survey” of all prisons, that there were approximately public servant, and casual reader of the Nigerian 45,000 inmates in Nigeria’s prisons. In June of that year, the press knew that Lagos’s prisons were severely state controller of prisons for Lagos State told me that the facilities held 5,808 inmates—13% of the total. For press overcrowded — primarily with suspects and accounts of the number of inmates at the time, see “Plight of defendants awaiting trial. Judges occasionally Awaiting Trial Inmates” (2010).

5 See, for example, Adesomoju (2012). http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 2 Over the next eighteen months, with help from We agreed with Sasore’s staff that we should students on summer internships and the assistance measure two things: the duration of custody for of my colleagues during breaks in their calendar, remanded defendants and the length of proceedings I worked fitfully with senior staff from the Attorney before and after the completion of police General’s Office and researchers from CLEEN to investigations. The attorney general somehow build a new system-level understanding of the persuaded the warden of Ikoyi Prison, home to one- dynamics of pretrial detention, along with a baseline third of the state’s inmates, to permit us to conduct from which to chart improvements. One reason for an “exit sample” of those leaving the prison each the fitfulness was that the attorney general and his month. Using the remand warrants that staff were often busy solving more urgent problems accompanied every inmate to and from prison, we — crumbling cases, staffing crises, fuel shortages, learned that more than half of all inmates spent less and the drafting and defending of new legislation. than a month in detention. Only a tiny fraction of all Their day job — running a government ministry — prisoners — fewer than 5% — remained in detention left little time to pursue the public interest outside for a year or more. But as figure 7.1 shows, the small the normal channels of public administration. group of inmates who stayed more than a year Another reason was that neither the Program in accounted for almost half of the prison spaces Criminal Justice nor CLEEN wanted to develop this occupied by pretrial detainees.6 understanding without the Attorney General. We knew that the sense of obligation or duty that can come from new knowledge stems primarily from its 6 production. Real ownership is not received. For a detailed account of the research methods and findings, see Foglesong and Stone (2011).

Figure 7.1. Detainees and Prison Space Used by Length of Stay in Detention, Ikoyi Prison, Lagos, 2011

50% Percentage of All Detainees 45% Percentage of Prison Days Used 40% 35% 30% 25% 20% 15% 10% 5% 0% One Day or Less > One Day to > One Week to > One Month to > One Quarter > One Year One Week One Month One Quarter to One Year

Length of Stay in Pretrial Detention Source: CLEEN Foundation and Harvard Kennedy School, prison exit samples from January, March, and June 2011

To us the findings were exhilarating. They upset the distribution of “length of stay” implied two clear conventional wisdom about delay as a source of organizational conclusions: first, that the courts prison crowding. In addition, the bimodal responsible for the hundreds of remand prisoners

http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 3 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development spending short periods in detention should reduce attorney general’s ability to reduce crowding was the number of individuals detained in the first place minimal. and, second, that the courts responsible for the small number of remand prisoners still in detention after a Fortunately, our inquiry had a parallel track. In year should focus on completing those cases soon. September 2009 and again in March 2010, we spent But justice systems are rarely so purposive and a lot of time trying to understand two practices that single-minded. Judges are also not teleological: like were under the control of the DPP, who reported to other legal actors, they face multiple demands and the attorney general: making a decision about the often struggle to reconcile competing obligations.7 charge (“filing legal advice”) and preparing cases for In order for this insight to affect the operation of the trial (“filing information”). Our research was flimsy. justice system, the attorney general would have to We were unable to develop a random sample of cases persuade the courts not only that reducing the from which to measure the duration and outcomes of amount and duration of detention was the right thing prosecution. An archive of completed cases was to do but also that it was more important than other inaccessible, we were told, and the registry could not things. generate a list of cases that had come to the DPP from the Criminal Investigations Division (CID) of The portrait of detention that we developed, in other the state police for any finite period of time. I still do words, was diagnostically powerful but politically not understand why it was impossible to apply a impotent. To put it another way, the data on the tourniquet to the flow of cases coming into the office duration of detention lacked the kind of independent of the DPP. There were two dedicated couriers from and comprehensive political power that most CID. indicators seek. This should not have been a surprise. Data become an agent of change only when they find One day, though, Akeem corralled the files of fifty a genuine principal, and a system of pretrial cases that had been tried in 2009. Using a simple detention lacks a single governor. A broken system of tracking sheet that he had devised for measuring the pretrial detention, moreover, is over-determined the number of days that elapse between key events (such result of decisions and actions taken by individuals as arrest and arraignment and receipt of the file by who are motivated by different and often conflicting the DPP), we calculated that it took an average of 128 ideas, impulses, incentives, and imperatives. This days for prosecutors to file legal advice and another state of affairs has a powerful and insidious political 261 days to file information. The combined time logic, like the “tragedy of the commons.” A good exceeded a year. And yet that was still a small system of pretrial detention, conversely, is a bit like a fraction of the total time it took for a case to move collective good, a minor miracle in constant need of a from arrest to verdict: the trials in these cases alone benevolent invisible hand. In this respect, it may took, on average, 1,043 days. even resemble the rule of law.

There was, we learned, little the attorney general could do on his own to fix the problem with pretrial detention. There was nothing he could do directly about the large number of defendants placed in detention for short periods of time, as most of these cases were prosecuted by the police. His monopoly over prosecution was limited to a tiny fraction of the cases involving detention. Nor could he single- 7 handedly expedite the trials of inmates who had been Richard Posner (2013), a judge for the United States Court of remanded into custody by the courts. In other words, Appeals for the Seventh Circuit Court of Appeals of the United without the cooperation of other agencies, the States, defends the opposite view. http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 4 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development

If the goal of the attorney general was to reduce 16%. Even a dramatic acceleration of these two prison crowding, it would make little sense to focus processes would have only marginal effects on prison on prosecution. As figure 7.2 shows, filing legal population dynamics. But both Akeem and the advice took only 7% of the total time to complete a attorney general were shocked by the delay in case by trial; and filing information took another prosecution and decided to do something about it.

Figure 7.2. Proportion of Days Consumed at Each Stage of Criminal Proceedings, Lagos, 2009

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Arrest to Arraignment Arraignment to Receipt of Duplicate File by DPP Filing Legal Advice Filing Information Trial Sentence

Source: Lagos State Attorney General’s sample of fifty completed cases, April 2010

Over the summer and fall of 2010, Akeem used this Better Legal Advice? tracking sheet to remind state counselors of the Measure Speed and Quality attorney general’s concern regarding delays in Soon after Adeola was appointed attorney general, prosecution. The attorney general circulated a I sent him a memo outlining three strategies by “recommendation” to file advice within a month of a which he might continue the work of his predecessor case’s receipt from CID. At a seminar at Harvard in and “demonstrate ” of the justice sector as October, Akeem reported that the time used to file a whole. I recommended that he renew the effort to legal advice had decreased to forty-four days, a quicken the pace of prosecution. I also advised that contraction of nearly 300%. It was a remarkable he find a way to supervise police charging practices accomplishment. But I was distracted by the effort to (many defendants left prison months after their routinize the production of the prison exit samples, arrival when their cases were “struck out” by a court). which I thought were the only reliable source of Finally, I suggested that he work with the courts to knowledge about the justice system as a whole. I change the practice of calendaring bail hearings at spent more time working with CLEEN on prison exit three-week intervals, which, according to our samples than the staff of the attorney general on research, was contributing substantially to prison filing legal advice. crowding.

As a result, the effort to measure and expedite the But Adeola came to the office with a different set of process of charging defendants was never concerns. He was particularly interested in institutionalized. By the time Akeem returned to improving the treatment of victims and witnesses. teaching at the in the summer of He also did not want the preoccupation with speed 2011, the effects of the campaign to expedite legal and efficiency in the filing of legal advice to advice had waned. compromise other important objectives. Accelerating

the process of filing legal advice was a fine idea, he

said, but it was “not the only goal.” At a meeting at

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Harvard in November, 2011 he commented: “I dare Instead of waiting for the emergence of better say that once we have achieved that shortening of conditions for interagency cooperation, the attorney the period of time it takes [to file legal advice], the general redirected his attention to the pace of question that would need to be asked again is about prosecution. He knew from our research with his the quality of the advice, to be sure that in trying to predecessor that the number of days it took speed it up we haven’t compromised on quality.”8 prosecutors to file legal advice constituted a small I was moved by this statement. With two colleagues, fraction of the total time it took to investigate, I spent a week in Lagos in March 2012 working with prosecute, and try defendants. But he also knew that the attorney general’s senior advisers and a fleet of the amount of time it took prosecutors to file legal interns and junior staff to develop a method for advice was unnecessarily long. More importantly, he measuring victims’ experiences with justice. knew that it could be improved. He assigned Together, we designed an interview protocol that the Akingbolahan Adeniran, Akeem’s successor as the interns could use to solicit the views and experiences senior special adviser to the attorney general, to work of victims at pretrial conferences, court hearings, and with us to generate a way to measure the speed and immediately after the trial. The process of developing quality of legal advice. the instrument and selecting a sampling frame was riveting. And the exercise yielded a better Akingbolahan, who told us to call him Boye, and his understanding of victims’ experiences, which the colleague Yinka Ademuyiwa struggled to find the attorney general then used to design a new “witness kind of information with which to measure the speed support unit.” But since we were unable to schedule and quality of legal advice. They were both new in enough interviews to generate a reliable indicator on their roles and had no formal authority over the a routine basis, we turned our attention back to forty-two state counselors who filed legal advice. pretrial detention. Indeed, they had few direct relationships with the counselors, all of whom were civil servants rather The following week, I joined a meeting of the leaders than political appointees. Some of the counselors of most justice agencies in Lagos to discuss how treated the files in a proprietary manner, which made pretrial detention might be redressed jointly by the them difficult to review. The DPP actively cooperated police, prosecutors, and courts. No agency wanted to in the enterprise, but her registry still recorded only reduce the number of defendants remanded into the date that cases arrived from police detention, so I proposed a simple indicator at the investigators—not what happened afterwards. Boye margins of the problem that my colleagues and I and Yinka had to improvise, hunting down the files thought would upset no one’s sense of safety or from individual prosecutors who were often in court justice and could be shared by all agencies: the or other locations with their files in hand. number of inmates who had already spent more Sometimes, the files simply could not be found. than twelve months in detention in the state’s two main prisons. On the day of our meeting, that For another three months, we struggled to help Boye particular measure was small—twenty-three and Yinka generate a measure of the duration of this defendants. The number was generated by the Crime phase of prosecution, even for a small sample of Data Registrar, an information system shared completed cases. The registry was, in our view, in between agencies and which we accessed that day during a break in the meeting. The value of reducing this number was undisputed. But as participants started discussing potential solutions for individual 8 cases, disagreements about specific facts grew into Comments made at the annual workshop on indicators of ideological debates about the law and then justice and safety at the Harvard Kennedy School, September 30, 2011 (transcript on file with the author). insinuations of incompetence and interagency meddling. The indicator was shelved. http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 6 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development disarray; the files meandered across the office completed investigation from the police — a target between counselors who charged and counselors who the attorney general wished to meet. prosecuted cases in court. There were multiple layers of internal review and vetting for each decision. The The initial trend, as figure 7.3 shows, was confusing. dates of draft decisions and other events in the life of On the one hand, the proportion of cases in which a case were irregularly recorded on the inside leaf of counselors were meeting the recommended deadline file covers. Only after several intra-office circulars (thirty days) increased from 0% in March, when we and personal reminders from the attorney general began counting, to 17% in June. On the other hand, was it possible for Boye and Yinka to devise a the average number of days required to file advice rudimentary yet reliable method for measuring the also increased, from fifty to eighty days. The number of days that elapsed between the arrival of a explanation, we later discovered, lay in the fact that case from the CID of the police and a final decision some counselors were focusing on old cases, clearing on legal advice by a state counselor. Nevertheless, by out the “backlog” in response to the attorney June 2012, they were reporting this figure to the general’s instructions, while others attended to new attorney general on a monthly basis, along with an cases, achieving, in some instances, a swift analysis of the proportion of cases in which advice turnaround time. was filed within one month of the receipt of a

Figure 7.3 Time Required to File Legal Advice Lagos State Ministry of Justice, 2012

100

80

60

40 days/percent 20

0 Jan Feb Mar Apr May June

Average number of days required to issue legal advice Percentage of cases in which legal advice was issued within 30 days

Source: Lagos State Ministry of Justice

We advised the attorney general to focus on only one It was more than just a symbol of the malaise in indicator in order to eliminate ambiguity about prosecution; it was an injustice by itself — a kind of whether progress was being made and to send a “double jeopardy” for victims, he said. Thus, against single message to his staff. But the reduction of our advice, he insisted on both measures. Later, he backlog also mattered greatly to him. added a third: an indicator of the “productivity” of prosecutors.

http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 7 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development

Organization and Authority adjustment and innovation. Second, it spawned new In June 2012, the attorney general reorganized the forms of accountability in the justice system. Directorate of Public Prosecutions, dividing its staff 9 into two separate groups of state counselors. One Knowledge and Governance Effects group, the Legal Advisory Unit, would now focus The first formal use of the indicators took place in exclusively on filing legal advice. The other, the Court October 2012, nearly four months after a method for Group, would prosecute cases in court. The attorney generating the measure was established. The general hoped that the creation of the Legal Advisory attorney general convened a meeting with all of the Unit would improve both the speed and consistency counselors in the Legal Advisory Unit and discussed of decisions. It might also allow the Court Group, the charts (reproduced in figure 7.4) depicting the which assumed responsibility for the subsequent two measures of speed that Boye and Yinka had management of all cases that were charged, to circulated in advance. There was some anxiety about improve the quality of prosecution at trial, as well as the likely effects of the indicators, in light of lingering the attentiveness of state counselors to the complex doubts about the accuracy of the data (“What if the needs of victims and witnesses. measures turn out to be wrong?” Boye kept asking). There was also some concern that counselors might The reorganization was not intended solely to take offense at having their work represented in such facilitate the work of the indicators, but it was an an instrumental manner. essential condition for the indicators to have a positive effect on performance. In order to align their The results, finally, were mixed. The average number efforts toward a common goal, prosecutors had to see of days to file legal advice had increased from eighty themselves as having a specific and shared objective: in June to ninety-two in September before falling to swift prosecution. By themselves, the indicators seventy-five in October. The proportion of cases filed could not cause such an effect. Indeed, indicators within thirty days of receipt from the police had that aggregate the results of individual outcomes fallen from 8.5% to 4.5%. (such as the average amount of time it takes prosecutors to file legal advice) require a prior collective conscience in order to take effect. But there was another consideration and motive for the reorganization. The attorney general wanted to avoid an ugly trade-off between speed and quality, recognizing that counselors might focus more attention on the objective for which there was a clear indicator and neglect others. He hoped that separating the Legal Advisory Unit from the Court Group would mitigate that potential bind.

Organization, of course, is not the only way to produce collective identity, and the performance effects of the indicators were not immediate, as described below. But the combination of the indicators and organizational innovation conspired to produce two effects on knowledge and governance that facilitated the exercise of authority in a discrete 9 See Merry (2011) for a description of the effects of global and transparent manner. First, it triggered a cycle of indicators in terms of knowledge and governance.

http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 8 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development

Figure 7.4. Time Required to File Legal Advice, Lagos State Ministry of Justice, 2012 100

80

60

40

20

0 Jan-12 Feb-12 Mar-12 Apr-12 May-12 Jun-12 Jul-12 Aug-12 Sep-12 Oct-12

Average number of days required to issue legal advice Percentage of cases in which legal advice was issued within 30 days

Source: Lagos State Ministry of Justice

Nevertheless, the confrontation with the indicators obligation to make court appearances, some sparked a lively conversation between the attorney prosecutors were still obliged to go to court: general and counselors in the Legal Advisory Unit magistrate court cases were still assigned to them and yielded an agreement about three things: (i) the personally. These structural obstacles to desired strategic significance of issuing timely legal advice; outcomes could not be ignored if the attorney general (ii) possible solutions to the obstacles to that goal; wished to see progress. The attorney general, and (iii) the need for better reporting practices. accordingly, had to use his authority to renegotiate Counselors, for their part, acknowledged the rules for assigning cases with the magistrates’ shortcomings in their performance alongside frailties courts. He also had to make available new resources in the data. They then offered to help improve the to his staff. Specifically, he decided to transfer these reliability of the information by promptly and cases to the Court Group and to dedicate two consistently reporting the status of their cases. counselors to the caseload, pushing a little further Counselors also noticed that it was in their interest to the functional specialization of responsibility he had better document their productivity so that it could be initiated in June of that year. reflected in charts. In the end, counselors agreed on a set of steps by which to increase the speed at which A second governance effect resulted from the they issue legal advice. Their action created the first disaggregation of data by type of offense. As figures step in a cycle of feedback and accountability for 7.5 and 7.6 show, productivity — the third indicator performance. of interest to the attorney general — was particularly low for the group filing legal advice in homicide The indicators did more than just force a discussion cases. In comparison, the group filing legal advice in that illuminated organizational processes that robbery cases was filing more than double the required change. They helped diffuse knowledge and number of cases each month, despite a higher power about prosecution, making frontline caseload and equal number of counselors. It was experience equal to external advice. They also made unclear why this variation persisted. Its discussion the attorney general partly responsible for the prompted a conversation about the reasons for success of the operation. For example, despite the shortcomings and involved staff in the hunt for establishment of a specialized unit for legal advice, solutions, some of which were simple. For example, which in theory had freed the counselors from an asked why legal advice had been issued in only a few http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 9 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development cases over the past months, the head of the homicide counselors in her group who were upset that the group said that many drafts of advice were still on charts had failed to capture their good work. her desk, awaiting action. She then apologized to

Figures 7.5 and 7.6. Measures of Productivity in the Filing of Legal Advice, Lagos, 2012 Productivity in Legal Advice Productivity in Legal Advice, Robbery Cases Homicide Cases 50 25

40 20

30 15

20 10

10 5

0 0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Jan Feb Mar Apr May Jun Jul Aug Sep Oct

New cases received this month New cases received this month

Cases where legal advice was issued this month Cases where legal advice was issued this month (including (including cases received prior to 2012) cases received prior to 2012)

Source: Lagos State Ministry of Justice

The use of the productivity indicator in disaggregated which legal advice is filed each month now exceeds form exposed different management practices in the number of new cases from the police. each department within the Legal Advisory Unit, as well as the need for improvements in counselors’ Accountability Effects: Internal & External skill sets. The head of the robbery unit had been The use of indicators to drive performance has vigilantly monitoring conduct, and some prosecutors changed the structure of accountability within the had developed more efficient ways to analyze case Lagos State Ministry of Justice. The constituent files and draft legal advice in complex cases. Taking groups of the Legal Advisory Unit are now expected note of this, the attorney general instructed the heads to achieve progress and contribute to the overall goal of each group in the Legal Advisory Unit to emulate of a swift and nimble prosecution service. the practices of the robbery unit—closely monitoring Prosecutors are also now held individually performance and discussing cases in pairs. He responsible for results: each counselor writes his or advised them of his intention to follow the work of her name on every instance of legal advice drafted. each individual counselor in the future. The attorney This new accountability has come with additional general also organized trainings in which he, Boye, authority. Not only do line prosecutors now play a and experienced prosecutors created guidance for central role in the collection of the data underlying cases with multiple defendants. The attorney general the indicators by which they are evaluated, but they eliminated layers of internal review that he deemed are also expected to propose solutions to problems superfluous, including the DPP’s review of most revealed by the indicators. In short, the use of the advice to prosecute. These changes appear to have indicators has done more than simply increase had a large effect: the number of homicide cases in communication between line counselors and senior

http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 10 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development management—it has created a system of reciprocal taken notice of the possibility of and pressure around responsibility. making small-scale yet meaningful change.

The use of these indicators has also begun to make Side Effects prosecution more publicly accountable, although this One unexpected yet beneficial side effect of the particular effect lies at some distance from its attorney general’s effort to accelerate the pace of originating cause. In response to a request made by prosecution is that the judiciary appears more the governor of Lagos State to some of his ministers measured in its own approach to resolving delays in in late 2012, the attorney general started reporting pretrial detention. In March 2013, in advance of on his activities during monthly press conferences, scheduled visits to the Kirikiri Medium Prison and even sharing the monthly figure on productivity. This Kirikiri Female Prison, the chief judge of the Lagos unexpected “off license” use of the productivity State Judiciary sent the attorney general a list of the indicator has made the attorney general more 573 inmates who had been awaiting trial in these two accountable to actors outside the justice system, who prisons for more than three months. The chief judge are now able to scrutinize at least one aspect of the informed the attorney general that she was ministry’s work. considering releasing those prisoners whose cases had not been issued legal advice by the Directorate of In late 2012 the press began to report the monthly Public Prosecutions and whose continued figures on productivity in prosecution, quoting detainment could not be justified.11 promises of better performance from the attorney general. An article in , for example, quoted This time, the judge also communicated her the attorney general as saying: intention at a meeting of the Criminal Justice Sector

Reform Committee, a forum recently established to [A] lot of cases are prosecuted daily by the discuss and resolve problems common to several Police at the Magistrate courts. agencies, including the Ministry of Justice, the 753 reports of various investigations judiciary, the police force, and the prison system. reached us for legal advice in 2012 and we

exceeded the 70 percent mark in dealing The judiciary’s announcement was unsettling to the with them. In 2013, we shall be stepping up attorney general, especially since the profile of the our prosecution to ensure Lagosians that charges for defendants who might be released criminals will not go unpunished. (Abdulah 10 indicated that prosecutors in the Ministry of Justice 2013) were responsible for 423 (87%) of the defendants held in Kirikiri Medium for more than three months. Such media coverage of prosecution efforts may end The other 150 had been charged with offenses that up broadening the accountability structure for the are prosecuted independently by the police. administration of criminal justice as a whole. The media may become accustomed to receiving corroborated claims of improved results on a regular basis. It may also ratchet up pressure for continuous progress. During the attorney general’s February 10 For other accounts of the attorney’s general statements, see 2013 press conference, one journalist asked whether Onanuga (2012); “Lagos Prosecuting 1,204 Cases in Court” the Legal Advisory Unit would be able to sustain its (2013). pace of improvement, especially if more cases were 11 brought to the attention of prosecutors by police Earlier, in August and September of 2012, the new chief judge of Lagos had publicly threatened to release from custody investigators. While it is too early to tell how durable all inmates whose length of pretrial detention exceeded twelve the demand is for continuous improvements within months and whose further confinement could not be justified by specific circumstances. In October, the chief judge released 233 the ministry, other justice agencies in Lagos have such inmates. http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 11 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development

A deeper inspection of the list by the attorney prisoners awaiting trial whose cases had never been general’s staff, however, revealed a more complicated brought to the DPP, inquiring about the status of and disturbing picture of the relationships between these cases. The police promptly forwarded 115 of police, prosecutors, and courts. In approximately these cases, soliciting legal advice. The influx of cases 200 of the cases on the list, prosecutors had not yet was inconvenient for the DPP, for it taxed staff offered legal advice to police investigators, lending resources and compromised forward movement on credence to the suspicion that prosecution was a the indicators regarding the speed of prosecution. source of prison crowding. But in another 200 cases, Nevertheless, as figure 7.7 shows, a temporary the DPP had not yet received the case file from the mobilization of a task force on backlog combined police. This meant that the police had not submitted with persistent attention to deadlines helped the the file to the DPP even after a magistrate had Legal Advisory Unit sustain progress. From May to authorized the suspect’s remand.12 July 2013, prosecutors took an average of sixty-six days to file legal advice. Between August and Instead of accusing the police of the unlawful December, this average dropped to fewer than sixty practice of deliberate delay, the attorney general days. simply forwarded to the police the list of 200

Figure 7.7. Time Required to File Legal Advice, Lagos State Ministry of Justice, 2012–2013 140 120

100 80 60

Days/Percent 40 20

0

Jul-12 Jul-13

Jan-13

Jun-12 Jun-13

Oct-12 Oct-13

Apr-12 Apr-13

Sep-12 Feb-13 Sep-13

Dec-12 Dec-13

Aug-12 Aug-13

Nov-12 Nov-13

Mar-12 Mar-13

May-13 May-12 Average number of days required to issue legal advice Percentage of cases where legal advice was issued within 30 days

Source: Lagos State Ministry of Justice

Boye and his colleagues were pleased and also responsible— and is sometimes, treated so by the surprised by the resilient manner in which the justice governor. system in Lagos responded to the judiciary’s destabilizing initiative. For them the prospect of a rupture in relationships across the sector seemed 12 considerable. After all, the possibility of an arbitrary In another 123 cases, prosecutors had already filed legal release of inmates charged with serious offenses advice but defendants were either awaiting the issuance of a could have been perceived as a threat to public formal indictment (a separate phase of criminal proceedings that takes place after legal advice to charge has been filed), the safety, for which the attorney general feels personally assignment of their case to a judge, or the commencement of a trial at three other post-charge stages of legal processing.

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But instead of responding antagonistically to the Understanding and Politics in Justice judiciary, the attorney general used the opportunity Justice and safety are intangible and ineffable to strengthen the system of interagency governance. concepts. Only the crudest materialist would reduce He dropped charges in the cases of those inmates justice and safety to the bureaucratic operations that who had been released by the chief judge, thereby agency leaders measure and manipulate on a daily demonstrating respect for the judiciary’s initiative basis. Justice systems are also sprawling and unruly, and also reinforcing the message that swift even in developing countries where the number of prosecution matters. Boye then asked the prisons to victims and offenders, suspects and inmates, police share, on a monthly basis, the figures on prisoners officers and prison guards—not to mention judges, awaiting trial; this would allow the attorney general prosecutors, and defense attorneys—seems small to indirectly keep tabs on the incidence of remand, when compared to countries such as the UK and one of the drivers of prison crowding. The attorney United States. One needs conceptual aids to imagine general also requested that, in the future, he be justice as a system, to see the whole behind the sum involved sooner in the judiciary’s review of the list. of the parts, and to see the lasting value of a simple He then convened a joint training with judges act taken today. concerning section 264 of the Administration of Criminal Justice Law of Lagos State, which enjoins Indicators are, above all, conceptual aids. By magistrates to release defendants after sixty days of counting and connecting the results of remand and yet is rarely applied. That training not organizationally and temporally dispersed decisions, only reiterated an important formal norm in criminal they can help people notice the collective effects of justice but also suggested that prosecutors and courts individual action. Indicators can also help people must agree on what the law really requires and seeks whose actions are modest, whose perch is low, and to achieve. whose sphere of influence seems small find a relationship between their work and the larger Indicators in Development mission for which they labor. Of course, indicators It is easy to exaggerate the role of the indicators in do not do this work alone. Their interpretation—the these developments. Without the attorney general’s effort to ascribe meaning to the measure—is what savoir faire, no amount of knowledge and generates a governance effect. Interpretation measurement in such circumstances would have requires a conversation in a collaborative setting, made the delays in prosecution susceptible to whether in a board room, a management meeting, or intervention and improvement. The indicators an international seminar. As the police inspector themselves, moreover, did not moderate the general in Bangladesh recently told me, the relationships within the Directorate of Public discussion of indicators in public can make you Prosecution or between the leaders of different “conscious and cautious” in the exercise of political agencies. The attorney general did. Prudent authority.13 leadership by a gifted individual may explain most of the movement in this story.

But it is also easy to underestimate the role of indicators. In this case, both the indicators themselves and the process of their generation made possible the kind of understanding and politics required for a leader to exercise influence on a 13 Comments made by Hassan Khandker, inspector general of system that is, by design, difficult—if not the police, at the annual workshop on indicators of justice and impossible—to govern. safety at the Harvard Kennedy School, October 2, 2013 (transcript on file with the author).

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Not all indicators have these properties and effects, The millenarian mood in law and development is and few are designed with a discursive purpose. Most thick these days. Every international organization indicators of justice and safety used in the world appears to be in a hurry to cause “transformational” today are designed to expose shortcomings in the change across the globe, as if a day of judgment were operation of someone else’s system. Many convert fast approaching. The rush to influence the content complex problems of justice and its governance into of the United Nations’ post-2015 development a question of compliance with a new and alien norm. agenda may be adding to such haste. But the urgency Some indicators abbreviate conversations about the may have deeper sources. Behind the fascination purposes of justice rather than fostering with “big data,” the feverish focus on “delivery” and deliberations about competing beliefs in society and “results,” and the ever-closer calibration of the “costs facilitating choices about how to improve and benefits” of development assistance can be government operations in inauspicious conditions. discerned a sense of despair about the state of the Only some kinds of indicators help people solve a world and a nervous desire to see and experience problem on their own terms at their own pace. transcendence now.

Indicators that are small and designed locally for The impulse to telescope development—the desire to idiosyncratic and even fleeting purposes may be bring an attractive horizon closer to home—is ideally suited for justice reform. Justice systems all understandable, especially for individuals and over the world are loosely coupled sets of practices organizations spending money on problems that and institutions with no single principal, or principle, seem far away. Many of us feel responsibility for the in charge. In no country is there a minister with welfare of others; some of us have a big dose of guilt. control over and responsibility for all operations and But raising the stakes and ratcheting up pressure to outcomes in justice and safety, nor is there a super- deliver now on some future promise rarely helps norm with which all behavior must comply. Any people manage their present challenges in careful change within an individual agency has knock-on ways. It can privilege the ends over the means in effects for others, upsetting not only the routines to justice, which some scholars believe causes the which line officials are attached and reasonably neglect of individual rights (Easterly 2013). It may expected to be devoted but also the appearance of also confuse “global justice”—relief repair, and other control that often symbolizes the authority and remedies for structural inequality between states— power of their leaders. Big changes can be a political with “local justice,” the search for solutions to menace, especially in systems that are imbalanced in conflicts between people and “unending arguments” favor of one institution, such as the police. In other about what is a good thing and what is the right way words, structural adjustments within this sector can to be (Walzer 2011). be politically destabilizing: they tend to cause decoupling rather than recoupling. Still other considerations, I think, oblige development and justice reform in particular to start Small Impact, Big Value and stay local and small. The encouragement of But what is the value of such modest changes in modest adjustments in existing operations is simply justice and an indicator that works on such a small a better bet in “fragile states” with “weak scale? What good are new practices and institutional governments”—the terms conventionally used to innovations that do not cause systemic change? What depict the systems of order and rule in many if improvements in justice remain small islands of developing countries. This is not just because the excellence (or mediocrity) within a broken system of legitimacy of innovation within an individual law, public safety, and governance? Why on earth institution is less likely to be contested when it builds would anyone support that kind of development? on a current practice rather than new routines. It is because of the relatively small size of justice systems in developing countries, which is their greatest http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 14 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development comparative advantage. In small systems, minor understanding, no program documents, and no changes do not have to be “scaled up” before their contracts. Our program was the party that really effects become visible to others and start to inspire needed the relationship: we required results in order complementary or even countervailing action. to demonstrate our value and acquit ourselves of an System-level effects are inevitable in justice, even if obligation to our funder. This general condition gave they are difficult for outsiders to discern and not our colleagues in Lagos the freedom to reject our always the ones most desired. The value is in the advice, follow their own intuitions, and determine movement, not the end result. the rhythm of the collaboration. True, working with an elite institution of higher learning in the United Friendly Help vs Technical Assistance States may have been a draw, but there was no training, no certification, and no financial carrot or What was the role of the Program in Criminal Justice political stick. It also may have mattered greatly that at Harvard? And what kind of development practice we were not alone. Although no one at the CLEEN did the project represent? It certainly was not any Foundation had prior experience in prosecution or type of technical assistance. No one on our team policing, the director had a strong public reputation knows how to run a government agency in a foreign and its researchers were known to be skilled. country. Our default response to questions such as CLEEN’s political credibility opened the door for the “Is vertical prosecution better than horizontal project in 2009, gave us confidence in times of prosecution?” or “What should we do about doubt, and lent consistency to our communications witnesses?” was always “I don’t know; what do you coming from across the Atlantic. But it was personal think?” Instead of offering advice, we shared our rapport and professional respect that made the work skills, which were fairly rudimentary—for example, continue. No one wishes to be judged or monitored how to populate a spreadsheet and compile a chart in and evaluated by their peers. But watching and excel, how to avoid jumping to conclusions when the learning together with friends is an attractive data are unreliable and the findings are ambiguous, proposition, especially when it is a consensual and how to scavenge files for insight about the threesome. operation of justice systems.

We provided help rather than assistance—and, like Indicators, Measures, and the Rule of Law the help one receives from a friend, it sometimes There are many kinds of indicators in the world of involved unwelcome questions, such as “Why are you justice and safety, and most serve a wide range of trying to do that right now?” and “Are you sure you purposes — mobilizing resources, communicating want to focus on witnesses, even if they are not success, denouncing failure, crediting victims?” We were patient most of the time, and accomplishments, or drawing attention to certain often pursued ideas that we suspected would be dead topics and pushing it away from others. The ends. Weeks elapsed between conversations. Data indicators that my program developed with the sometimes got lost. The project zigzagged. We abided attorney general of Lagos State served a narrower by the changing interests and priorities, irregular and fairly immediate purpose in governance: helping work patterns, and different customs of collaboration a person with formal legal authority acquire in Lagos. influence over a range of loosely coordinated activities. The indicators, in this sense, were It probably mattered greatly that our help was assertions of power, but not power itself.14 subsidized by a third party, the UK Department for International Development. No money exchanged hands between Harvard and the government in Lagos. Not only, though, were there no financial transactions—there were no memorandums of 14 For an earlier statement of this view, see Stone (2011). http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 15 How to Improve Filing Legal Advice in Lagos State: A Case Study of Indicators and Organizational Development

They might be called indicators of achievement or References performance. Their main function was to measure Abdulah, Abdulwahab. 2013. “Lagos Has Zero Tolerance for the relationship between two complex operations Crimes and Criminals—Ipaye.” Vanguard, February 14. http://www.vanguardngr.com/2013/02/lagos-has-zero- that someone sought to change. tolerance-for-crimes-and-criminals-ipaye.

Adesomoju, Ade. 2012. “Decongesting Lagos Prisons.” To me, the manner in which justice officials in Lagos Bestnaira, September 24. have gone about quickening the pace of prosecution, http://news.bestnaira.com/posts/view/decongesting-lagos- prisons. improving the quality of police investigations, and mitigating problems in pretrial detention is as Easterly, William. 2013. The Tyranny of Experts: Economists, Dictators, and the Forgotten Rights of the Poor. New York: important as the results. To me, it exemplifies the Basic Books. rule of law. They have developed partial and Foglesong, Todd, and Christopher E. Stone. 2011. “Prison Exit temporary solutions to recurring and probably Samples as Tools of Development.” Harvard Kennedy School eternal conflicts between ideas about justice and Indicators in Development: Safety and Justice, April. safety and also between the individuals, institutions, Harvard Kennedy School. 2008. “Indicators of Safety and and interests that revolve around them. They have Justice: Their Design, Implementation and Use in Developing reconciled conflicts between what is and what should Countries.” Accessed March 14, 2014. be the norm in criminal justice without moving only http://www.hks.harvard.edu/programs/criminaljustice/research in one direction. They have imposed constraints on -publications/measuring-the-performance-of-criminal-justice- systems/indicators-in-development-safety-and-justice/annual- their own power by developing and then regularly workshops/2008. “Lagos Prosecuting 1,204 Cases in Court— reviewing indicators that measure the pace of a Ipaye.” 2013. Naij, February 11. http://news.naij.com/23530.html. routine operation in the justice system and that register change in small increments. They did not Merry, Sally Engle. 2011. “Measuring the World: Indicators, Human Rights, and Global Governance.” Current Anthropology panic when the results were inglorious. They simply 52(S3):S83–S95. tried again. Onanuga, Adebisi. 2012. “Lagos to Enforce Rule of Law, Says Ipaye.” , December 11. Acknowledgement http://thenationonlineng.net/new/law/lagos-to-enforce-rule-of- law-says-ipaye. The work to produce the indicators of the pace of prosecution described in this chapter was led by a “Plight of Awaiting Trial Inmates.” 2010. Tribune, October 16. team that included Innocent Chukwuma, former Posner, Richard. 2013. Reflections on Judging. Cambridge, MA: director of the CLEEN Foundation in Lagos and now Harvard University Press. representative of the Ford Foundation’s office in West Africa; Raphael Mbaegbu, researcher at the Stone, Christopher. 2011. “Problems of Power in the Design of Indicators of Safety and Justice in the Global South.” Harvard CLEEN Foundation; and Julien Savoye, research Kennedy School Indicators in Development: Safety and Justice, fellow and colleague at the Harvard Kennedy April. School Program in Criminal Justice. None of this work would have been possible without the Thompson, E. P. 1975. Whigs and Hunters: The Origins of the Black Act. New York: Pantheon Books. agreeable collaboration of the attorney general of Lagos State, Adeola Ipaye; his senior special Walzer, Michael. 2011. “Global and Local Justice.” Strauss adviser, Akingbolahan Adeniran; the director of Institute Working Paper 8/11, New York University. public prosecution, Bisi Ogungbesan; and many of their colleagues in the Lagos State Ministry of Justice. Program in Criminal Justice Policy and Management Harvard Kennedy School Todd Foglesong is a Senior Research Associate at 79 JFK Street the Program in Criminal Justice Policy and Cambridge, MA 02138 Management, Harvard Kennedy School (John F. Kennedy School of Government at Harvard +1 617 495 5188

University). He would like to thank DFID advisors www.hks.harvard.edu/criminaljustice in many countries for their helpful comments and insights. http://www.hks.harvard.edu/criminaljustice/indicators-of-safety-and-justice 16