In DA races, commitment to transparency is crucial

Voters should demand regular release of data to gauge fairness of system

MASSACHUSETTS WILL HOLD primary elections for district attorney on Tuesday, and general elections in November. In the past, candidates have almost always run unopposed, and voter interest in the races has been low. This year, however, in many counties, challengers are taking on incumbents. In Suffolk County, where Dan Conley has decided not to run, five candidates are vying for the Democratic nomination for district attorney in the September primary.

Increasingly, people have become aware of just how key district attorneys are in the functioning of our criminal justice system. John Pfaff, a law professor at Fordham University, has documented that during the 1990s and 2000s, while violent crime and arrests for violent crime went down, the number of felony cases filed in state courts went up. “In the end,” he wrote, “the probability that a prosecutor would file felony charges against an arrestee basically doubled, and that change pushed the prison population up even as crime dropped.”

Prosecutorial powers contribute to overincarceration in a variety of ways.  For example, as 90 percent of cases end in plea bargains, it is often prosecutors rather than judges who determine the seriousness of charges brought. Threats of long mandatory minimum sentences can induce even innocent people to plead guilty to lesser charges. Similarly, the inability to pay bail requested by prosecutors can compel people not convicted of any crime to accept a plea rather than remain in jail until their cases are heard.

Although we think of ourselves as a liberal state, Massachusetts has not been immune to the problems of overincarceration and racial bias. While Massachusetts’s incarceration rate is low compared to other states, it is three to five times higher than its European peers. It also has high rates of racial disparities in sentencing. In 2014, blacks in the state were incarcerated at almost eight times and Hispanics at almost five times the rate of whites. In 2013, blacks and Hispanics had lower rates of convictions for crimes but higher rates of incarceration than whites, while they were less likely to receive fines or probation.

During his tenure, Dan Conley consistently opposed reforms that would have alleviated some of the problems of overincarceration and racially disparate sentencing – for example, he opposed eliminating mandatory minimum sentences for all drug offenses as well as raising the juvenile court’s jurisdiction to age 19 for most offenses.

In the upcoming district attorney races, some candidates are proposing policies aimed at addressing overincarceration and racial disparities – for example by diverting non-violent drug offenders to rehabilitation programs and ending monetary bail in most cases. But a question arises: How will we know if these policies are working? In the past, prosecutors have provided little data to back up claims about their criminal justice practices. Most prosecutors’ offices remain black boxes when it comes to the release of relevant data.

I have experienced this problem directly. In May of last year, I spoke to the Suffolk County District Attorney’s office about racial disparities in incarceration at the state level, such as those cited above.  I was assured that these disparities were not reflected at the county level. I asked for county level data to verify this. After a delay, I received an email describing programs implemented by the district attorney, but no data specific to the county. A month after that, I sent an email to an assistant district attorney I met at a conference describing the data I requested. In July, I received a response from the Record Access Officer in the district attorney’s office saying I should have data by the end of the month, but informing me that it might cost $200 or more.

After several more emails inquiring about the status of my request, I received files of 1,000 pages each with two years of data – but in a format that was static and not analyzable. I was told this was to preserve the integrity of the data. I pointed out that this was an obstructionist tactic that prevented me from using the data in a meaningful way. Finally, after five months, I received the files in a spreadsheet format that could be analyzed. The Suffolk County District Attorney’s website says, “Under the leadership of District Attorney Conley, the Suffolk County District Attorney’s office operates with the highest level of transparency and openness.” The process I went through did not conform to this standard.

The data have not been completely analyzed, but they point to racial disparities in charging. In 2016, blacks and Hispanics comprised about 47 percent of the county residents. Of the 2014 Suffolk County cases with race data, blacks and Hispanics comprised almost 63 percent of those charged and whites only 34 percent.

The upcoming district attorney races are an opportunity for the public to consider what kind of criminal justice system it wants. And for the first time in quite a while, at least in Suffolk County, it has a range of candidates and approaches to choose among. Whichever candidates are elected, however, it is important that they be held accountable for their policies, both to policy makers and to the public at large. To understand trends in incarceration and in racial bias, district attorneys must provide data that show how their practices and policies have impacted these issues, and they must be able to make data available to the public in a timely manner without undue cost.

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District attorneys maintain that their data systems are outdated and inefficient. If so, legislators need to appropriate adequate funding to upgrade them. But most important, the district attorneys themselves must become strong advocates for data transparency, and candidates for the office must be specific about how and what kinds of data they will make available. Only when we have access to relevant data can we assess the results of the policies they are implementing, decide if we are moving in the right direction, and make changes to policies when that proves necessary.

Carol Pryor is a Jamaica Plain resident who has been active in criminal justice reform efforts. She has donated to the campaign of Suffolk district attorney candidate Rachael Rollins.