A cadre of Republican and Democratic state’s attorneys have launched efforts to share case metrics not typically available to the public, and they’re doing so despite the prosecutors’ own professional organization opposing the idea.
The projects already underway in Baltimore City and Charles, Frederick and Montgomery counties are done in consultation with criminal justice researchers from top universities and are backed by grant funding.
Elected prosecutors carry immense power to ultimately decide a defendant’s criminal charges and negotiate life-altering plea bargains. They also play a key role in a criminal justice system where people of color are historically overrepresented. Without aggregated metrics by race, age and gender on plea deals, charging decisions, case outcomes, and victims’ services, constituents — and lawmakers — are left to to rely on prosecutors’ self-reporting and anecdotes.
Researcher Brian Johnson called the willingness of Maryland prosecutors to welcome academics like him into their records an “incredible sea change” for a government sector unaccustomed to exposing their decisions to public scrutiny.
“The culture of the criminal legal system has changed in recent years, where there’s greater emphasis on, and greater concern for, issues of racial justice and fairness in the system,” Johnson said.
Johnson was part of the team led by Prosecutorial Performance Indicators, or PPI, a nonprofit that works with jurisdictions across the country to improve fairness and efficiency in prosecutors’ offices through data analysis.
As part of the collaborative agreements, the state’s attorneys have committed to publish their findings regardless of what the data reveals, address any racial injustices and ensure more fairness and equity, said Melba Pearson, who co-manages PPI. In exchange, the state’s attorneys receive expert help setting up their systems and data analysis provided by top criminal justice experts for free.
Welcoming accountability
Montgomery County State’s Attorney John McCarthy was the first in the state to launch an online dashboard in October. The website shows five years of metrics on guilty pleas rates by race, case types and resolutions, and breaks down demographics of defendants and victims by race and gender.
”I am not afraid for the community to see how we arrive at our decisions and how we evaluate our cases,” McCarthy said. “I think we are accountable to them.”
The dashboard’s presentation is limited and still a work in progress, but it marks the changing tide. McCarthy said the data analysis exposed him to different ways of looking at cases. For example, he said he started to question the efficiency of making multiple charges when most convictions end with a defendant pleading guilty to only one or two offenses. He also became curious whether the number of charges varied by race.
“You’re beginning to analyze your data differently than you did before in terms of overall efficiency,” he said.
McCarthy’s move spurred Charles County State’s Attorney Tony Covington into action. Still in the early phases and months away from completion, Covington said he’s looking forward to seeing “what this data can tell us about how we’re doing our job and making sure we’re doing it as fairly as possible.”
“We have a duty to uphold public trust and ensure that our actions are visible and accountable to the communities we serve,” said James Bentley, spokesperson for Baltimore State’s Attorney Ivan Bates. Bates’ office is in the process of reworking a legacy dashboard with PPI.
In addition to providing the community a window into her office’s work, Joyce King, chief counsel for the Frederick County State’s Attorney’s Office, sees case data as a powerful management tool. Keeping an eye on attorney work loads could help make a case for more positions, prevent staff burnout and retain experienced attorneys.
Another critical component will be giving constituents accurate statistics so they can know what’s happening in their communities rather than what they’re absorbing on the news or on social media, King said.
“I think in general, there has been a lot of negativity surrounding law enforcement and prosecution, and we want to instill confidence in public safety and the need for rule of law,” she said.
Montgomery County’s data revealed little evidence of racial disparities in prosecutorial treatment, Johnson, the criminal justice professor, said. However, data did show people of color were disproportionately arrested and charged, but some charges could have come directly from police.
Data could create a ‘scoreboard’
But not all Maryland jurisdictions are on board, even if the initial startup work is done for free. The Maryland State’s Attorneys Association, a professional organization that represents the interests of elected state prosecutors, has vocally opposed publishing data that shows how they make key decisions.
Doing so could promote competitiveness across jurisdictions, or create a “scoreboard” among attorneys at the expense of delivering justice, association President and Howard County State’s Attorney Rich Gibson said.
Gibson explained prosecutors should make decisions based on “what’s right” and how to best carry out justice, not because the counts of how many cases they dismiss or bring to trial each year are being measured.
“You don’t want the metric to cloud the judgment,” Gibson said, adding that he’s speaking not just for himself but on behalf of the majority of Maryland prosecutors.
Researchers and those seeking to change the system say it’s typical to meet this pushback and there are still cultural hurdles in law enforcement to overcome.
But PPI’s Pearson said such arguments “don’t hold water.”
Communities are demanding transparency from law enforcement and getting it in the form of police data dashboards, she said, and prosecutors around the country are losing elections for not joining them.
Prosecutors should not fear their own data, Pearson said, “Even if it tells a negative story, you can still own the narrative” by addressing what issues surface.
Transparency conversation: to be continued
Gibson shared his concerns during a series of state task force meetings studying prosecutor transparency in Maryland last year. He was one of a team of appointees from government agencies, academia and prosecutors’ offices that recommended standardizing how and which records state’s attorneys should track. The state’s attorneys association Gibson heads opposed a bill extending the life of the task force and the recommendations didn’t advance beyond the task force’s report.
DeRay Mckesson, executive director of Campaign Zero, said he would have liked to see the task force put “real stakes in the ground” when it comes to what prosecutors should publicly report.
“There has never been a real focus on the data that comes out of those offices,” he said. Mckesson’s social justice organization examines structural inequities in the criminal justice system.
Dayvon Love serves as the public policy director for Leaders of a Beautiful Struggle. The grassroots think tank advocates for policy advancements that benefit Black people.
Love said he accepted his appointment because he wanted to gain a better understanding of prosecutors’ plea bargaining practices and how those negotiations could be shared with the public. How can the public gain a better understanding of this process? What happens behind the scenes when prosecutors start with multiple charges and winnow them down?
The majority of convictions don’t happen during a trial by a jury of one’s peers, but by plea bargain, a process over which prosecutors have tremendous control. To him, “That’s a process that is not about justice,” he said.
He said his concerns were not resolved.
The prosecutors association’s resistance is “disappointing” and puts Maryland behind jurisdictions around the country, said Heather Warnken, executive director of the Center for Criminal Justice Reform at The University of Baltimore School of Law.
“Our communities, who fund state’s attorneys offices, and especially those who bear the brunt of our public safety challenges and systemic inequities, deserve more,” she said.
Years of research show the criminal justice system disparately impacts communities of color. Fixing that means collecting data to analyze where the problems are, and prosecutors hold a piece of the larger system, said Mona Sahaf, director of the Reshaping Prosecution Initiative at the Vera Institute of Justice.
“You [prosecutors] can’t know how you’re doing unless you measure,” she said.
A former prosecutor, Sahaf also served on the state task force.
“Prosecutors have enormous discretion in who to charge, what to charge, what sentences to seek,” she said. “And those decisions have huge impacts on individuals, families and larger communities.”
The task force was co-chaired by Democratic state lawmakers Sen. Charles Sydnor and Del. David Moon. The team found few consistencies among prosecutors’ data collection methods and software systems. At least two jurisdictions kept only paper records.
“We have to crawl before we can walk,” Sydnor said.
So, when the task force made their recommendations, they kept it simple: All jurisdictions should first have a case management system, for a start. Then making sure the data collection methods meet a statewide standard.
Then there’s the cost.
To maintain his system and produce meaningful analytics and data updates, McCarthy said his office hired an IT specialist. Covington said he’s received county approval to hire one, too. System upgrades will be another cost, which could mean thousands each year. Lawmakers did manage to earmark a modest amount for tech upgrades, Sydnor said.
The Baltimore County lawmaker has for years advocated for more prosecutor transparency, and said he hasn’t given up on the issue as he considers how to proceed. Sydnor sits on the powerful Senate Judicial Proceedings Committee that reviews Maryland’s criminal justice laws. He has consistently asked prosecutors that appear before his committee for data justifying their support of tougher criminal laws and has received, in his opinion, lackluster responses.
“When you have a better understanding — with data — of what’s happening in your justice system,” he said. “I think it can’t help but make you a better lawmaker.”
