While prosecutors around the country are making daily decisions affecting people's liberty, few are compiling data that would show how criminal cases are resolved and whether those outcomes are harsher for minorities.
Connecticut, officials say, is set to become the first state to begin collecting prosecutorial data statewide, under legislation that received rare unanimous votes in both the state Senate and House of Representatives within the past week.
"It is part of an effort to try to understand what disparities may or may not exist," said state Sen. Gary Winfield, a New Haven Democrat who co-chairs the legislature's Judiciary Committee. "If we're going to take away people's liberty, we have to make sure there's nothing untoward in what we're doing."
Similar efforts to increase prosecutor accountability are under way across the country, with the goal of reducing the nation's high incarceration rate and the disproportionate numbers of minorities behind bars.
Although the imprisonment rate for black people has declined in recent years, the rate for sentenced black men in 2017 was more than twice the rate of sentenced Hispanic men and nearly six times the rate of sentenced white men, according to a recent report by the U.S. Bureau of Justice Statistics. Of the 1.4 million sentenced prisoners in the country in 2017, a third of them were black and nearly a quarter were Hispanic, far outpacing their percentages in the general population.
About 13% of the U.S. population is black and about 18% is Hispanic, according to the U.S. Census Bureau.
The Connecticut legislation, expected to be signed by Democratic Gov. Ned Lamont, will require prosecutors to compile a variety of data, including how many defendants received prison time, plea bargains or diversionary programs. That data must be broken down by race, ethnicity, sex and age.
The state Division of Criminal Justice, which oversees prosecutors, must provide annual data to the Office of Policy and Management beginning in February 2021, and the OPM must analyze the information and issue reports yearly to the Judiciary Committee. Prosecutors are expected to begin collecting the data next year, when electronic case management systems are in place.
"These new requirements will be an important step toward increasing the confidence that communities have in the criminal justice system by helping to ensure that justice is attained in the fairest ways possible," Lamont said in a statement.
The lack of prosecutorial data around the country is remarkable given the important role prosecutors play in the justice system, researchers for the Urban Institute, a think tank that conducts social and economic research, wrote in a report last year. In a survey of more than 150 prosecutors' offices, almost all said they collected at least one measure of case flow including case volume and case outcomes, but fewer than half tracked all key measures.
A few studies that have looked at prosecutorial decisions and race suggest there is bias. A review of more than 48,000 criminal cases and plea bargains in Wisconsin found that white defendants were 25% more likely than black defendants to have their charges dropped or reduced to lesser crimes, according to a study published last year by Loyola Law School professor Carlos Berdejô. The racial gap was wider in plea bargains involving misdemeanors and low-level felonies, he found.
In Manhattan, the Vera Institute of Justice reviewed more than 200,000 cases and reported in 2014 that blacks were 13% more likely than whites to receive plea bargain offers that included jail time.
Connecticut is in a better position than most states to collect statewide data, because it is one of only three states — along with Alaska and New Jersey — that have unified statewide prosecution systems, said Marc Pelka, Lamont's top criminal justice aide. Connecticut prosecutors are appointed. Top prosecutors in most other states are elected county district attorneys who make their own decisions on what data to collect and report, and their computer systems often aren't linked with those of other district attorneys.
The American Civil Liberties Union is one of several groups calling for greater prosecutor transparency and accountability.
"Prosecutors hold people's lives and fates in their hands, yet Connecticut residents have very little information about prosecutors' decisions," said Gus Marks-Hamilton, Smart Justice field organizer for the ACLU of Connecticut. "This bill's passage is a step forward for transparency about prosecutors' actions, and the information it will unveil is vital for ending inequities and injustices in Connecticut's justice system."