There’s been a shift in the way prosecutors operate over the last few years, according to Florida International University Professor of Criminology and Criminal Justice Besiki Luka Kutateladze. More and more of these chief law enforcement officers are looking for data to better understand what is happening in their jurisdictions.
“We are seeing this waking up moment among prosecutors,” Kutateladze said. “They are finally waking up and smelling the coffee.”
Kutateladze is the founder of the Prosecutorial Performance Indicators (PPIs). He and his research team work with prosecutors to publish data analytics and research on how their offices are operating. For each jurisdiction, the PPIs produce indicators that provide insight into how the offices are handling caseloads, how much time a case takes to move through the office, racial disparities, and victim support. The program has grown from four jurisdictions in 2020 to 13 in 2021 located across nine states.
Kutateladze said that when he was working for the Vera Institute of Justice 15 years ago, there was very little attention being paid to prosecutors’ offices and even less demand for data insight into those offices.
“There was no data,” he said. “Building the partnerships with prosecutors seemed impossible. Getting prosecutorial data was impossible.”
However, in the years since, as more attention has been focused on reforming criminal legal systems across the country, prosecutors have come under increasing scrutiny, he said. In July, the PPIs team published a report examining racial disparities in the use of criminal diversion, which allows people charged with crimes to avoid a conviction by completing programs to address the underlying cause of the criminal behavior. The study found that Black people charged with felonies in several jurisdictions were less likely than their white counterparts to be offered diversion and avoid a felony conviction.
This increased attention on prosecutors has led to public pressure from voters to have prosecutors become more transparent and an increase in think tank organizations focusing on these offices like Fair and Just Prosecution and Measures for Justice.
With data, researchers say they are able to highlight entrenched, systemic issues, like over-policing or overly harsh sentences, so that prosecutors may address them.
“There is this underlying assumption of let me prosecute the best possible way I can prosecute, and this will take care of everything else,” Kutateladze said. Instead of thinking about how decisions cumulatively affect the community, “they think as long as they do the right thing on every case, the outcomes should be positive across the board. That’s just not the case,” he said
A number of prosecutors have acknowledged the need to use data to examine systemic trends. When Larry Krasner took office as district attorney in Philadelphia in 2018, he brought on criminologist Oren Gur to be his director of research. Gur’s team examined historical charging data for January and February of 2018, after the city had decriminalized marijuana, and found that people of color still made up the majority of people charged with misdemeanors rather than the city’s summary offense—similar to a traffic ticket.
“It became clear, without a huge analysis, that this was a problem,” Gur said. In February 2018, Krasner issued a policy to stop prosecuting misdemeanor possession of a small amount of marijuana.
Gur and his team also identified 25 low-level charges—ranging from retail theft to prostitution—that historically made up more than half of all cases entering the criminal justice system in the city. Gur said that in most of these cases, people charged were being released without having to pay any bail, but magistrates were still setting low cash bail for some, meaning people were held in jail because they weren’t able to pay.
“We can go to the magistrates and basically say historically they’ve been setting bail at rates that if the person had money, they could get out,” Gur said. “So, these are people who were not seen by magistrates as being major threats to the community.”
In response to this trend, Krasner said in February that his office would no longer ask for cash bail in any case involving the 25 charges identified by Gur’s team. The final bail decision is still up to the magistrate, but without the request from the prosecutor, more people are being released. A 2019 study found that people charged with these offenses were 22 percent more likely to be released pretrial after the policy was implemented and that there was no change in the likelihood that the person would commit a new crime or fail to appear for court hearings.
Kutateladze said there is still a long way to go to incorporate prosecutor data into decision-making nationally. But there is hope that things are moving in the right direction.
“There is this theory that prosecutors don’t want data, they don’t care about data, they don’t pay attention unless it’s in their interests, and I think that theory is fading,” he said. “We get emails from prosecutors who did not want to talk about the data even three or four years ago. We have a growing number of prosecutors who have already bought in that data are needed, and the way to move forward is to be useful partners to those offices.”
Josh Vaughn is an award-winning freelance reporter who has covered criminal justice issues in Pennsylvania for the last decade, most recently with the criminal justice journalism website The Appeal. Readers may follow him on Twitter @Sentinel_Vaughn.