Connecticut rightfully ended its death penalty in 2012. But not before people who both opposed and supported it had admitted to a disturbing, egregious fact: in our state, the biggest factor in determining whether someone would face the death penalty came down not to seriousness of the crime, but to whether their case landed in the judicial district of the Waterbury State’s Attorney. And the evidence showed that people of color who were accused of killing white people were also much more likely to face the death penalty.
“The single best explainer … is that the sentencing occurs in Waterbury. It is undeniable that the prosecutor in Waterbury is more willing to pursue the death penalty at a sentencing hearing, when it is available, than prosecutors in other jurisdictions,” wrote the state’s own witness, who supported the death penalty.
An expert from Stamford University, who reached the same conclusion, issued a stark warning:
“Geographic disparity is nearly inevitable in the administration of the Connecticut death penalty as long as the decision of whether to seek a death sentence rests with thirteen State’s Attorneys with no centrally administered process to ensure that gross disparities do not become the norm,” they wrote.
Prosecutors’ discretion and unchecked power, in other words, led to huge racial and geographic disparities even in one of the most high-profile parts of the criminal legal system.
And while the Waterbury State’s Attorney was eventually forced to resign due to unrelated issues and the state death penalty ended, the prosecutorial system that enabled those huge racial and geographic disparities is still mostly the same.
There is no accountability mechanism in place today to ensure “gross disparities” driven by prosecution aren’t, or don’t become, the norm. There is no system in place to catch those disparities early. And there is too much room for state’s attorneys’ biases, whether conscious or subconscious, to go unchecked.
In fact, the latest evidence suggests that treatment in Connecticut’s criminal legal system still largely depends on one’s zip code. Data from Connecticut’s new prosecutorial transparency law, Public Act 19-59, suggests that prosecutorial treatment in the criminal legal system is still creating 13 different standards of justice across our state. For example, in some parts of the state, nonviolent felony cases carry prison sentences more than 80 percent of the time, compared to 55 percent in other areas. Similarly, people convicted of drug offenses are 2.4 times more likely to get prison sentences in certain parts of the state. The facts tell the story: outcomes for people caught up in the justice system today still largely depend on where they are prosecuted.
Under Connecticut’s current system, state’s attorneys do not undergo any data-driven performance evaluations, so our state is flying blind when deciding whether a state’s attorney is doing a good job. State’s attorneys also do not have sufficient standard statewide policies for parts of the case where prosecutors have discretion, including life-altering areas like plea agreements, meaning there are 13 different standards of justice spread out across the state’s 13 judicial districts. The entity that appoints, evaluates, and reappoints state’s attorneys, the Criminal Justice Commission, does not have sufficient independence, because it is housed within the very agency (the Division of Criminal Justice) that it is supposed to oversee. And state’s attorneys go for eight years without external, public oversight in the form of reappointment hearings, which, as the backlog of police violence cases from the previous Hartford State’s Attorney recently showed, can lead to problems going undetected and unchecked for years.
The good news is that this could start to change. S.B. 1018, An Act Concerning Prosecutorial Accountability, would start taking basic, commonsense steps to begin creating statewide standards for prosecutors, to catch any problems such as racial disparities or over-harsh sentencing patterns early, and to start holding state’s attorneys accountable to basic checks and balances we expect in a democracy. The bill would:
- Shorten the term for state’s attorneys from 8 years to 5, bringing them more in line with other positions in the Division of Criminal Justice and with national standards;
- Mandate that state’s attorneys create statewide uniform policies for all stages of a case where a prosecutor has discretion (the bill specifies those stages but allows the state’s attorneys to actually create the policies);
- Require the Office of Policy and Management (OPM) to create publicly available biennial reports summarizing each state’s attorney’s performance, based upon data already being collected by OPM;
- Require the CJC to evaluate state’s attorneys every two years based on the OPM reports, with opportunities for the state’s attorneys to explain data in the report (the CJC could then consider those the data when reappointing state’s attorneys);
- Require additional training for prosecutors on regarding racial bias, collateral consequences, sentencing alternatives, mental illness, trauma, and reentry;
- Give the CJC more independence by restoring it to a stand-alone body within the executive branch, rather within the very division (Division of Criminal Justice) which it oversees; and
- Require data collection and reporting from the newly created Office of Inspector General, similar to what is already required from state’s attorneys.
“The pattern of arbitrary, capricious, and discriminatory decisions is not surprising to those who understand how Connecticut’s death penalty works. Leaving so much discretion in the hands of thirteen different State’s Attorneys invites this arbitrariness,” wrote the Stamford researcher about Connecticut’s death penalty.
If history is to avoid repeating itself in other parts of the criminal legal system today, we need ways to ensure fairness, to make sure people are getting an equal standard based on justice and not uneven standards based on individual prosecutors’ whims. And we need accountability if state’s attorneys are driving incarceration or disparities in their decisions.
We believe that everyone has a role to play in ending the pervasive, systemically racist problem of mass incarceration. That is especially true of people operating within the criminal legal system, like state’s attorneys, whose decisions can either perpetuate mass incarceration or begin to work towards a different model of justice. The bill currently before the legislature is an opportunity for state’s attorneys to embrace that role.
