People should have information about prosecutors’ decisions, including important data about how and if prosecutors treat people who are accused of a crime differently according to their race, ethnicity, zip code, or how much money they have. Connecticut’s new prosecutorial transparency law, Public Act 19-59, is designed to shed a light on these and other points of information about prosecutors’ decisions, and it is critical that prosecutors follow it.
So, from July through November, Smart Justice met with 12 of Connecticut’s 13 State’s Attorneys (the Torrington/Litchfield State’s Attorney position was vacant at the time). We wanted to know two things: what were State’s Attorney’s plans for following the new prosecutorial transparency law? And what were policies and procedures like in each of Connecticut’s Judicial Districts?
From Tolland to New London, New Haven to Windham, and everywhere in between, we asked State’s Attorneys 10 questions designed to get at the heart of our concerns. Together, State’s Attorneys’ answers showed something we already knew – the same person, with the same background and charged with the same crime, could face two wildly different standards of justice in Connecticut based solely on their zip code. There is no common standard for justice across Connecticut, because prosecutors’ policies, procedures, and philosophies vary greatly amongst Judicial Districts. In a state where there were clear, standard rules and policies for how prosecutors behave, prosecutors’ answers to our questions would have been the same across the board. Instead, Connecticut’s lack of clear guidelines and rules for prosecutors means that there are essentially 13 different standards for justice across our state, with each Judicial District operating as its own independent fiefdom.
Here are the 10 questions we asked State’s Attorneys, and their responses:
- Does your office have a business plan? Four of the eight State’s Attorneys we asked said “yes.” In the past few years, the Criminal Justice Commission had created a no-cost program for each State’s Attorney to attend a UConn business school course to create a business plan for their Judicial District. Business plans are common tools that government agencies use to articulate their mission, vision, priorities, and goals; establish measurements for tracking progress; and clarify their organization’s decision-making processes. Prosecutors in other places across the country have put their business plans right on their government websites. A prosecutor who wanted to prioritize decarceration, for instance, could use a business plan to put that vision on paper, set a clear percentage by which they hope to reduce incarceration, and create quarterly measurements to see if they were meeting that decarceration goal. A business plan could be one way for all Judicial District staff, including line-level prosecutors, to have clear decarceration and racial justice goals.
- Do you currently collect any data? One of the 12 State’s Attorneys said they collect data through the community court system in their Judicial District. Two State’s Attorneys said they consider court documents to be data collection. The remaining nine State’s Attorneys said they do not actively collect data and are interested to see how the Case Management System will help with that. Connecticut’s new transparency law mandates data collection, and it has been in effect since October 1, 2019. Prosecutors hold people’s lives in their hands, and it is essential that they start collecting data so people will be able to see trends in their decisions.
- Do you have any prosecutor-led diversion programs? Diversionary programs are alternatives to incarceration that are most often offered to someone who is accused of a crime by a prosecutor or a judge. Not all diversionary programs are created equal. Some are positive ways for people to get necessary help that they want, like treatment for addiction. Others come with unnecessary, ineffective punitive or coercive strings attached, like a threat of incarceration if someone relapses after treatment. By asking this question, Smart Justice wanted to get a sense of whether any State’s Attorneys were at least open to the idea of non-incarceration options for people. Five of 12 State’s Attorneys said they currently have a prosecutor-led diversion program. A few stated they wanted more staff to implement them.
- Do you measure the performance of your prosecutors? Performance reviews are a standard part of a professional workplace. In a rare consensus response, all prosecutors said they do have a performance review, but their responses to the following question indicated they are likely using different performance evaluation systems and holding staff to different standards.
- Does the standard prosecutor evaluation form need to be updated? In the only other consensus response, all 12 State’s Attorneys said “yes,” and they stated that the Division of Criminal Justice is updating the standard evaluation document. Until that happens, each State’s Attorney said they implement their own version of an evaluation, from daily check-ins, to reviewing case metrics, to adding additional questions to the evaluation form. Through a Freedom of Information request, Smart Justice obtained the current standard performance evaluation form for prosecutors. It leaves a lot to be desired. In that form, questions only have room for yes or no answers, and none measure prosecutors based on whether they have worked toward decarceration or racial justice goals.
- Would you support changing how charging works? When someone is arrested in Connecticut, police set the initial charges, just like in most other places. But here, those charges typically go straight onto a criminal legal docket without prosecutors reviewing them. This means prosecutors are giving police more power, and people in our state are often not getting a crucial chance for a non-arresting government employee to look at those charges – including typical add-on charges like interfering with a police employee – before they end up in court. By asking this question, Smart Justice wanted to get a sense of whether prosecutors are happy with the status quo. Ten of 12 State’s Attorneys said they would support changing how charging works, with some calling the current system “odd,” “absurd,” or “not done elsewhere.” The remaining two State’s Attorneys said they were satisfied with the current system, as they have determined alternative ways to review charges before proceeding with cases.
- Are you on the board of implementing the Case Management System (CMS)? Right now, Connecticut’s prosecutors are abysmally out of touch with 21st century technology. In a 1950’s-style system, they operate solely on paper. For several years, the state has given prosecutors funding to move to a digital Case Management System, which would also make it easier for the state to analyze trends in prosecutors’ decisions. The Division of Criminal Justice, which oversees prosecutors, has a group of State’s Attorneys and line-level prosecutors tasked with moving prosecutors from their current, paper-only case files to a digital system. Seven of 12 State’s Attorneys said they have a staff member on that board for implementing the digital Case Management System. Yet in 2019, a few still said they prefer a paper-only system.
- Are you on the board of negotiating the prosecutors’ collective bargaining agreement (CBA)? Collective bargaining agreements (CBA’s) are contracts between an employer (in this case, the state) with employees through their designated labor union (in this case, line-level prosecutors, as the 13 appointed State’s Attorneys are not unionized). Collective bargaining agreements can be critical ways to protect workers’ rights, but in some cases, they have also been used by law enforcement agencies like the Connecticut State Police to avoid critical public transparency, including in ways that override Connecticut state law. Three of 12 of State’s Attorneys said they were on the Division of Criminal Justice’s board for negotiating line-level prosecutors’ collective bargaining agreements.
- Are you willing to amend law enforcement priorities in the state to prioritize decarceration? Incarceration is an ineffective, expensive, and cruel response to crime. It hurts people, families, and communities, and it undermines public safety. Every prosecutor should be vocally, actively working to make Connecticut safer by pursuing decarceration and racial justice. Yet State’s Attorneys had no consensus on this simple question. All 12 told Smart Justice they believe their two current priorities – violent crimes and gun charges – are important, but they also told us they want each State’s Attorney to be able to set their own priorities for their individual districts.
- Do you have a community board? The majority of Connecticut residents support decreasing incarceration in our state, and the overwhelming majority want our state to invest more resources in rehabilitation for people instead of incarceration. Prosecutors’ priorities should reflect these community priorities. Five of 12 State’s Attorneys told Smart Justice that they currently have some form of community board. Others said they were working on “building visibility” in their districts, and others said they would not welcome community input because they want their office to be as independent as possible.
State’s Attorneys’ answers to Smart Justice’s questions show a lack of statewide rules to create standard prosecutorial practices across districts. We recently learned through a Freedom of Information request that there is a manual of statewide policies for prosecutors, but based upon the information we’ve gathered so far, it seems mostly focused on personnel and administrative questions, not on criminal legal procedures.
Every prosecutor, in every Judicial District, should be working to decarcerate our state and pursue racial justice. Yet right now, two people accused of the same crime, even with identical background and legal representation, could face wildly different charges, plea offers, and diversionary program prospects based solely on the personal preferences of their local State’s Attorney. When Connecticut had the death penalty, we saw some of the most extreme consequences of this lack of uniform rules for prosecutors. With one prosecutor almost single-handedly pursuing executions, “the location of a crime in Waterbury [was] the single most potent influence on which death-eligible cases will lead to a sentence of death,” and a Black “defendant in Waterbury [was] 160 times more likely to receive a sustained death sentence than the comparable white defendant in the rest of the state.”
This week, we testified before all 13 State’s Attorneys and the Chief State’s Attorney’s office to deliver two messages: first, Connecticut clearly needs standard policies for prosecutors’ decisions across all Judicial Districts; second, Smart Justice will be closely watching and advocating for State’s Attorneys to follow the transparency law, including its deadlines for prosecutors to share data with the state.
