Prosecutors and the ‘Moral Imperative’ for Transparency

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Photo by Claire Bastien via Flickr

The combination of COVID-19 pandemic and a nationwide movement to address police violence is drastically changed how the American criminal legal system operates.

Many jurisdictions are re-assessing policing, limiting the size of prison and jail populations to reduce the spread of disease, and conducting criminal court hearings and trials via Zoom. And voters in major cities like Philadelphia, Chicago, Austin, and San Francisco have elected a wave of reform-minded prosecutors committed to rethinking approaches to criminal justice.

Prosecutors have a moral imperative to respond to communities’ demands for a system that not only keeps them safe from crime but also protects against disease, responds to police misconduct and abuse, and addresses the disproportionate representation of Black and Brown people in the system.

They can start to meet this obligation through greater data collection and transparency.

The scheduled release of more than seven years’ worth of data by the Manhattan District Attorney’s Office offers a useful example. The statistics about charging decisions, plea-deal offers, bail amounts and sentencing, and will be updated weekly.

Importantly, it is possible to view the case data by race, which allows the public to see whether certain decision-points are driving racially disparate outcomes.

Lucy Lang

By collecting and publicly sharing data on their caseloads, prosecutors demystify the opaque nature of their decision-making and empower community members to hold them accountable.

This change is long overdue.

Statistical and demographic information (e.g., race data) about an office’s cases could reveal or support important lessons about how the criminal justice system affects communities, yet many offices either do not collect sufficient information or do not make it available to the public.

A 2018 study by the Urban Institute found that many prosecutors’ offices collect very limited data on day to day operations, such as the number of cases prosecuted or that go to trial. Only about 24 percent of prosecutors’ offices make the data they collect publicly available.

Addressing this issue is not only important for public accountability but will enable new, progressive prosecutors to track the impact of ambitious reforms.

bond

Erica Bond

The Cook County State’s Attorney’s Office offers another innovative example of the trend towards transparency. Cook County has released millions of points of raw, anonymized case data about the office’s felony caseload, covering felony prosecutions between 2011 and 2020,

Moreover, a new tool released by an independent research organization, the Data Collaborative for Justice (DCJ) at John Jay College allows the public to manipulate the data to understand how outcomes at different stages of a criminal cases vary based on the type of charge as well as race, age and gender.

Cook County’s data demonstrates that State’s Attorney Kim Foxx’s office is declining to move forward with many cases that her predecessors would have pursued.

Foxx’s administration approved approximately 32 percent of felony retail theft charges for Black people, while the previous administration approved 78 percent of those charges. The  DCJ’s tool shows that, for driving with a suspended or revoked license charge, the Foxx administration approved nearly 50 percent fewer cases than the prior administration (93 percent compared to 44 percent).

The data released by State’s Attorney Kim Foxx’s office not only shows that her office is taking a different approach to prosecution but that this approach is proving effective.

recent report showed a 20 percent decrease in incarceration rates in Chicago in 2018, and FBI data points to an 8 percent decrease in local crime rates during the same timeframe.

The public release of prosecutor data also allows the public to see racial disparities that leave room for improvement.

For example, the Cook County data shows that stark racial differences still remain in a number of areas.  For instance, during the Foxx Administration, 62 percent of Black people who take a plea of driving with a suspended or revoked license are given an incarceration sentence (e.g., prison, jail) compared to 52 percent of white people who plead to the same offense.

Providing information on disparities in decision-making helps establish the trust that is vital to improving public safety and equity and underscores the values and goals for which prosecutors were elected.

In order to make this possible, prosecutors’ offices should take the following three steps:

    •  Leverage technology to automate the collection of key data (e.g., bail amounts requested by line level prosecutors in each case);
    •  Integrate key prosecutor data with other criminal justice agency data, such as police departments, courts, and jails, to better understand how prosecutor decisions impact people as they move through the criminal justice system (e.g., how many cases where prosecutors request bail result in pretrial detention), and
    • Publish the data so that the public may easily access and understand it (and protects the privacy of individuals). This work will require time and resources but the process should start now to build the necessary infrastructure to collect and share this information.

Cook County has provided a positive example of how it can be done.

In the wake of months of nationwide demands for racial justice, prosecutors should begin using data to show, in a sustained and transparent way, that they are addressing the legitimate concerns that the criminal legal system is operating to the detriment of communities of color, particularly Black communities.

It is an impediment to accountability, reform, and public safety that most prosecutors’ offices are not yet equipped to do so.

The modernization and reimagining of the criminal legal system is one of few benefits of this harrowing period in American history.

Prosecutors should take advantage of this moment to better communicate with and serve their communities.

Lucy Lang is the former Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, and a candidate in the current Manhattan DA election race. Erica Bond is Policy Director of the Data Collaborative for Justice at John Jay College.

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