Colorado data project highlights need to compel information from prosecutors

(Reuters) - A bipartisan group of eight Colorado district attorneys has launched an online resource that provides an unprecedented amount of data about how their offices prosecute cases, part of a nationwide trend to improve transparency spurred by racial justice protests in 2020.

The “data dashboards” unveiled on Sept. 8 cover many of the largest jurisdictions in Colorado, including Denver and Boulder (8 of 22 judicial districts). They include information ranging from whether people were jailed before trial to charging decisions and ultimate outcomes – sentences, diversion of cases to drug court or dismissal entirely.

The goal, broadly speaking, is to respond to some of the public’s questions and demands about race discrimination in the justice system over the past several years, like whether prosecutors offer Black and Latino defendants worse plea deals. The participating offices expect that the data will tell a story that helps them understand line prosecutors’ choices, what’s working and what isn’t.

The project is a commendable, if long overdue, effort to address discrimination from prosecutors' offices – a part of the criminal justice system that often lacks transparency despite those officials’ singular power to shape local law enforcement and courts.

It’s a common-sense example for other states and jurisdictions to follow. Plea deals, for example, are largely inscrutable to the public, even though they are more integral to the justice system than trials. More than 90% of both state and federal convictions are obtained via plea bargaining, according to a 2020 review of existing research into plea deals by the Vera Institute of Justice.

Still, the massive gaps in U.S. criminal justice data, and historical resistance to similar self-reporting efforts by judicial officers themselves, are reason to be cautious even about the prospects of Colorado’s groundbreaking project.

Voluntary reporting is a necessary first step, given that most jurisdictions don’t require prosecutors to collect data and many simply don’t. State legislation, like a 2018 judicial transparency law enacted in Florida, remains necessary to compel prosecutors to provide the public with the basic information necessary to evaluate their functions and performance.

The DAs partnered with groups including the Prosecutorial Performance Indicators project, and the Microsoft Justice Reform Initiative. The project was launched in Colorado in part because its judicial districts use a uniform, statewide data management system -- and there was a large enough group of prosecutors willing to participate, according to Melba Pearson, a Prosecutorial Performance Indicators project member and policy director at Florida International University's Center for the Administration of Justice. Project leaders are hoping to expand into other states, she said.

Don Stemen, chairperson of the criminology department at Loyola University Chicago and also a project participant, said that the project thus far shows what's happening, not why, adding that future analyses will begin to explain racial disparities.

Very few prosecutors have released data dashboards, and few efforts include multiple jurisdictions, Stemen said. The “simultaneous release of data dashboards by eight offices in the same state is really quite unique – and makes these offices more transparent than the very large majority of prosecutors’ offices across the country.”

The data is already revealing racial disparities across the board, as one might expect.

Black, Hispanic and Native American people were more likely to be held in pretrial detention than white defendants in six judicial districts, according to the data. The other two offices didn't provide pretrial demographic information, according to the Colorado dashboards.

Last year, 31% of white defendants who were convicted were held in pretrial detention in Gilpin and Jefferson counties, compared with 43% of Black and 36% of Hispanic defendants.

In other districts, more white defendants had their charges reduced than Black or Hispanic folks and received more deferred judgments (a kind of probation).

Alexis King, the district attorney in Gilpin and Jefferson counties, was not available for comment. A spokesperson noted that race disparities in pretrial detention are pervasive and said there aren't significant disparities in plea offers and sentences in King's district.

Research into prosecutorial decisions is scant but the data from Colorado comports with previous studies in other states.

A 2018 study of felony and misdemeanor cases in Wisconsin from 1999 to 2006 found that white people were 25% more likely than Black folks to have their initial charges reduced, according to the Vera Institute’s 2020 review of plea bargaining studies.

Another research summary by the U.S. Justice Department in 2011 concluded that “the majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas” and that this relationship “between race and receiving a reduced plea has been consistent.”

The Urban Institute undertook the most comprehensive national survey of local DAs offices in 2018. It found that fewer than half collect basic case information, and even fewer make that information public.

Kim Foxx, state’s attorney in Cook County, Illinois, has released the most comprehensive prosecutorial data to date – six years of raw criminal case data, according to a 2019 report by the ACLU on the need for prosecutorial transparency laws.

But even that best-in-class release included glaring gaps regarding misdemeanors and juvenile cases, the ACLU said. (Foxx explained that there were problems extracting some data because different entities used different case management systems.)

The Colorado effort, too, has its own shortcomings: the full data sets have not been made public. Only five years of data was included and some offices didn’t release data that could show racial disparities in various prosecutorial decisions, according to Colorado Public Radio.

At the other end of the spectrum, some prosecutors simply refuse lawful information requests. Massachusetts prosecutors consistently stonewalled requests by journalists for basic information, like a list of cases prosecuted, until the attorney general won a lawsuit against them in 2018 for violating open records laws, according to the ACLU report.

This history demonstrates that voluntary data releases aren’t sufficient to ensure public access to basic information about prosecutorial decisions. The Colorado DAs should be lauded for taking a bold first step past the status quo, but the kind of transparency envisioned by advocates is unlikely without some legal obligation on prosecutors' part.

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