February 19, 2021

New prosecutorial tool promises better outcomes for racial justice, fairness

Some prosecutors around the country are starting to use reams of data to track their performance and to ensure that justice is being equally served in all communities, with the aim of providing a clearer picture of their work and easing tensions in their communities.

At a CLE held at the 2021 American Bar Association Midyear Meeting, panelists examined the pioneering Prosecutorial Performance Indicators, a program developed by Florida International University, Loyola University and the MacArthur Foundation’s Safety and Justice Challenge. 

“So much bad policy has been delivered by anecdote as opposed to data and facts,” said panelist Kimberly Foxx, who leads the Cook County State’s Attorney’s Office in Chicago, the country’s second-largest prosecutor’s office and one of four pilot projects for the PPIs.

Development of the PPIs started in 2017 and launched in October 2020 with the four pilot sites, said panelist Besiki Kutateladze, an associate professor in the Department of Criminology and Criminal Justice at Florida International University and associate director for prosecution and courts at the Center for the Administration of Justice, who specializes in performance indictors and prosecutorial discretion. Twenty-eight jurisdictions have since expressed interest, he said.

Prosecutorial performance has historically been measured by such metrics as number of cases filed, conviction rates and sentence length, which can foster tough-on-crime policies and mass incarceration. But the PPIs use objective data to shift toward priorities of safety, community well-being, justice and fairness. They track a wide variety of indicators, such as speedy contact with victims, racial and ethnic differences in prosecution, violent crime prevention and caseloads. The information is publicly available in real time.

Aside from Cook County, pilot projects are also taking place in Milwaukee County as well as Florida’s 13th (Hillsborough County) and 4th Judicial Circuits (Jacksonville).

But the new approach has faced concern among some prosecutors and their staffs, said Kutateladze.

“Prosecutors and data don’t get along,” he said. “And when you talk to the prosecutors about the data, you hear typical things like, ‘Hey, I didn’t go to law school to be become a statistician.’”

“It’s about a culture change and a culture shift,” added Aisha Edwards, a senior program officer with the Criminal Justice Reform team at the John D. and Catherine T. MacArthur Foundation. 

Andrew Warren, State Attorney of Florida’s 13th Judicial Circuit, praised the approach. When prosecutors are able take to their cases “outside of the siloes,” then they get a “much more holistic look at what we’re actually doing.”

He said a transparent, data-driven approach can build trust in communities, especially at a time when levels of trust – particularly among communities of color -- toward prosecutors’ offices are strained.

“This is also an exercise in innovation,” said Foxx. “How to think differently and how to look at solutions – how to come at solutions – from different angles.”

“Data and Racial Change: Using Data to Drive Change” was sponsored by the ABA Criminal Justice Section and was moderated by Melba Pearson, who specializes in civil rights and criminal law and serves as director of policy and programs for Florida International University’s Center for the Administration of Justice