Anthony Thompson

Miriam Krinsky

As the field of prosecution has increasingly recognized the failure of approaches of previous decades that aim to be tough on crime, a number of reform-minded prosecutors[1] have come into office asking critical questions: What works best to keep my community safe and healthy? How do I serve my community and avoid overfilling our jails and prisons? How can I ensure we are treating people from marginalized communities fairly and with compassion?

Like those in medicine, baseball and business before them, prosecutors are increasingly turning to data and research to find answers.

Measuring prosecutorial performance is not new, but to date it has been done poorly. Offices have traditionally evaluated attorneys on caseload, conviction rates and number of trials.

These metrics were not selected because they reflect justice — indeed, any prosecutor can tell you that winning cases is not the essence of the job — but because so few cases go to trial, these metrics became what was easy to track. For too long, these measurements have perpetuated a prosecutorial culture at odds with justice. But as tools and thinking around using data have evolved, we are finally seeing smarter approaches for aligning metrics with justice.

In 2017, a handful of elected prosecutors partnered with Florida International University and Loyola University at Chicago to develop a new set of metrics aimed at better reflecting the values and goals of the modern prosecutor's office. The recently released tool — called Prosecutorial Performance Indicators — track offices' progress over time toward the goals of efficiency, fairness and community well-being.

For example, using the performance indicators, offices can now track new and different measures of the impact and efficacy of their work, such as the extent of their community engagement, the timeliness of contact with victims of crimes, and the percentage of individuals who remain in jail awaiting trial because they cannot make bail set at small amounts of $500 or less.

The tool, and the metrics therein, allow elected prosecutors to start asking and answering some of the most difficult and important questions facing their offices — questions previously not posed and, even if asked, that prosecutors previously had no ability to assess.

Among the most concerning problems in the justice system are the pervasive racial disparities, spanning from arrest to sentencing to reentry. Over 100 studies show[3] that racial disparities infect every aspect of the criminal system. People of color are systematically treated more harshly at every discretionary point.

Communities are rightfully demanding that we address systemic racism, but these disparities are often challenging to reduce. If we are to tackle these issues, elected prosecutors must continuously monitor and be willing to openly tackle the impact of prosecutorial decisions on racial disproportionality. And we must ask the right questions in the face of this data.

We know some patterns. For example, disparities often arise in the context of diversion programs where white defendants are often overrepresented. Collecting and displaying annual data on use of diversion by race and ethnicity can bring those disparities to light — and also track how they change over time.

This data enables prosecutors to ask important questions and probe further in an effort to uncover why these disparities exist and ultimately address the underlying issues and problems.

Are Black defendants offered diversion less often? Do charging decisions make them ineligible for diversion? Do they reject diversion because of associated costs? These are the kinds of questions that prosecutors must raise when examining their own actions and decisions, and performance indicators are a powerful tool for ensuring that they identify these issues and craft targeted solutions.

The performance indicators also help prosecutors run their offices more efficiently and effectively. From caseload distribution to staff diversity, and from resource prioritization to timely case handling, the indicators encourage offices to measure capacity and improve their ability to promptly dispense justice. These efficiency indicators pave the way for more effective prosecution, helping offices promote timely, fair and equitable results, thereby advancing community safety as well as fortifying trust in the system.

These issues, however, cannot get the attention they deserve without the engagement of the community. The new indicators offer a route to greater transparency, accountability and community oversight. Elected prosecutors working with researchers to create the performance indicators have already taken strides toward this transparency.

In 2017, the Cook County State's Attorney's Office launched its data dashboard[4] and released an unprecedented amount of prosecutorial data. Their dashboard lets the community see data including, for example, what fraction of cases are retail thefts, weapons charges or DUIs, and how those cases are resolved, among other metrics.

The Milwaukee County District Attorney's Office also just released the first iteration of their new dashboard,[5] which shows the use of diversion by race and ethnicity, how many cases result in a jail sentence, and changes in the length of time it takes the office to contact a victim. And the state attorney's offices for the 4th and 13th Judicial Circuits of Florida will be releasing their dashboards before the year's end. Now, not only can communities judge how well their prosecutors are fulfilling their promises, but prosecutors can also show the impact of their actions.

Transparency and accountability threaten the old way of doing things, which is why some status quo forces have escalated attacks against reform-minded prosecutors. Some state leaders have attempted to strip authority from local prosecutors working toward racial justice.[6] Meanwhile, federal officials have inaccurately accused prosecutors fighting mass incarceration of threatening public safety.[7] Thoughtful use of data can provide a path away from intractable debates and validate policies that can deliver both public safety and community wellbeing.

For too long, prosecutor's offices have been reluctant to use data to identify problems and improve their work. By using the Prosecutorial Performance Indicators, prosecutors can begin to understand the impact of their decisions, measure their own success, and ensure that their work truly promotes a just system for all.

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Anthony Thompson is a professor of Clinical Law at the New York University School of Law and co-author of the forthcoming book on prosecution and race, "Choosing Right Over Easy" (NYU Press).

Miriam Aroni Krinsky is a former federal prosecutor and the executive director of Fair and Just Prosecution.

Disclosure: Thompson and Krinsky were advisers on the research and data project, supported by the John D. and Catherine T. MacArthur Foundation's Safety & Justice Challenge, that resulted in the Prosecutorial Performance Indicators.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organizations, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.nytimes.com/2018/12/11/opinion/how-local-prosecutors-can-reform-their-justice-systems.html.

[2] http://www.prosecutorialperformanceindicators.org/ .

[3] https://www.washingtonpost.com/news/opinions/wp/2018/09/18/theres-overwhelming-evidence-that-the-criminaljustice-system-is-racist-heres-the-proof/.

[4] https://www.cookcountystatesattorney.org/about/data-dashboard.

[5] https://data.mkedao.com/.

[6] https://www.nytimes.com/2020/06/11/opinion/george-floyd-prosecutors.html.

[7] https://www.washingtonpost.com/national-security/2020/02/13/attorney-general-barr-prosecutors/.