More prosecutor transparency will improve the justice system

ACLU of Connecticut Smart Justice supporters gather at the Capitol to support criminal justice reform bills.

Transparency is critical for our democracy, and no part of the government should be exempt from sunlight. If our state is going to create a smarter justice system, all of us need numbers on what prosecutors are doing.

Prosecutors, known as “state’s attorneys” in Connecticut, are government employees who hold people’s lives in their hands. But in Connecticut, there is very little public information available about prosecutors’ actions.

On March 25, the Connecticut General Assembly’s judiciary committee held a hearing on a bill that could help change that. Senate Bill 880, “An Act Increasing Fairness and Transparency in the Criminal Justice System,” introduced by Gov. Ned Lamont, would take critical steps toward bringing prosecutors’ decisions out from behind closed doors.

Every Connecticut resident is affected by prosecutors’ decisions: people who are accused or convicted of a crime and their families, victims of crime and their families, taxpayers who pay the costs of incarceration and prosecutors’ paychecks, and more.

As some of the most powerful people in the criminal justice system, prosecutors decide whether to keep, change, or drop a charge against someone; whether to offer a plea bargain; whether to recommend bail; how a case is investigated; and whether to offer someone who is accused of a crime the chance to participate in a diversionary program, like drug treatment, instead of trying to send them to prison. When police in Connecticut shoot and kill someone, prosecutors investigate and decide whether to press charges.

Nationwide, 95 percent of criminal cases end in plea bargains, meaning most of the time, prosecutors, not judges or juries, decide how a case is resolved.

Yet despite the enormous power that prosecutors wield and the astronomical human and financial costs of their decisions, Connecticut residents have very little information about what prosecutors do. The state does not collect or publish any statistics about prosecutors’ actions. Connecticut’s Division of Criminal Justice, which oversees prosecutors, is generally exempt from the state Freedom of Information Act, making it almost impossible for people to get information about prosecutors’ decisions.

So if you want the government to save money, you currently do not have the data to spot potential inefficiencies in prosecutors’ work. If you want to compare how prosecutors in different districts charge people, you will not be able to do so. While data from inside Connecticut’s prisons and jails clearly shows our state disproportionately incarcerates black and Latino people, the lack of transparency makes it almost impossible to pinpoint if these racial disparities are driven by prosecutors’ actions or something else.

S.B. 880 is an important first step toward meaningful transparency from a powerful arm of the government that currently operates in the shadows. The bill would require the state to collect, report, and publish information about prosecutors’ decisions on a public website each year. That information would include statistics about case outcomes, bail, plea deals, diversionary programs, sentencing, and demographic information about who prosecutors decline or decide to prosecute (including information about race, geography, and income). There would be safeguards to protect the identities of victims and people accused or convicted of a crime. If the legislature passes the bill, this information would be public in 2020.

It is a common sense proposal. Officials from Connecticut’s Justice Information System (CJIS) have said that if empowered by the legislature, they could collect 80 percent of the data this bill requires from information the Judicial Branch, Department of Correction, and Court Support Services Division are already providing. Prosecutors themselves would only be responsible for collecting about 20 percent of the information this bill would require, and they have the money to do it. The state has already granted Connecticut prosecutors – who currently use an archaic paper filing system – funding to create a digital case management system. That digital case management system is being built right now and could easily be tailored to include the information this bill requires.

From a financial standpoint, prosecutorial transparency could also save Connecticut money. Prosecutors are currently spending state resources to feed people into the expensive incarceration machine. Having a clearer picture of prosecutors’ actions would allow prosecutors themselves, the public, and policymakers to find opportunities to prevent the state from being bogged down with unnecessary cases and ensure more responsible use of taxpayers’ money. Done right, this could result in fewer people in prison, saving the state additional resources.

What Connecticut truly cannot afford is to let prosecutors continue to have their cake and eat it, too. It is inconceivable that prosecutors received a total budget of more than $49 million in 2018 without having to show the public information about what they were doing with those resources. As gatekeepers to the justice system, prosecutors are also sending people to prison and jail without having to account for their own actions.

Creating transparency about prosecutors’ work will not fix the justice system, but it is an important step toward progress. No government agency should operate in the dark, including and especially when that agency holds people’s lives in its hands.

Gus Marks-Hamilton and David McGuire are, respectively, the Smart Justice field organizer and executive director of the ACLU of Connecticut.

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