Open Prosecution.

• Author: Garrett, Brandon L.

Introduction I. The Lack of Prosecutorial Transparency A. Prosecutors as Enforcement Outliers B. The Rise of Plea Bargaining C. Prosecution Policies Concerning Plea Bargaining D. Efforts to Open the Black Box of Prosecution Data 1. The Vera Prosecution and Racial Justice Program. 2. The MacArthur Prosecutorial Performance Indicators project II. Opening the Black Box of Plea Negotiations A. Tracking Plea Negotiations in Durham County, North Carolina 1. The Durham County District Attorney's Office 2. Studying plea transcripts in Durham County, North Carolina 3. Implementing plea tracking in Durham County, North Carolina 4. Plea tracking results in Durham County, North Carolina B. Tracking Plea Negotiations in Berkshire County, Massachusetts 1. The Berkshire District Attorney's Office 2. Implementing plea tracking in Berkshire County, Massachusetts 3. Plea tracking results in Berkshire County, Massachusetts a. The plea negotiation process b. Sentencing and the role of judges III. The Implications of Open Prosecution for Plea Negotiations and the Criminal System A. Prosecutorial Accountability and Quality. B. Defense Data C. Judicial Review D. Open Prosecution and Progressive Prosecution E. Public Reason, Ethics, and Prosecutors Conclusion Appendix A: Durham County Plea Tracking Appendix B: Berkshire County Plea Tracking Appendix C: Berkshire County, Massachusetts Plea Tracker Introduction

Where the vast majority of criminal cases in the United States are resolved without a trial, "criminal justice today is for the most part a system of pleas, not a system of trials." (1) While a plea and the resulting judgment and sentence entered in court are public, the negotiation itself remains almost entirely nonpublic. (2) Prosecutors may resolve cases for reasons that are benign, well-calibrated, and just--or for reasons that are discriminatory, self-interested, and arbitrary--with very little oversight or sunlight. (3) Plea bargaining is thus a "black box," within which prosecutors have free reign absent strong evidence of discrimination. (4) In a handful of areas, researchers have been able to document racial disparities in charging. (5) In some high-profile cases, DNA tests have exonerated innocent people who pled guilty. (6) Yet despite the known errors and unfairness resulting from the plea process, "little is known" about the process itself and how prosecutors exercise discretion. (7)

Regardless of whether a case goes to trial, very little is documented, communicated, or known about the bulk of decisionmaking in criminal cases, even within prosecutors' offices. With respect to plea bargaining specifically, prosecutors rarely document negotiations, and they are not required to do so systematically. (8) As a result, prosecutors, defense lawyers, judges, and the public are left to rely on anecdotal evidence to surmise what factors drive negotiated criminal outcomes. (9) Given the significance of the plea process--which affects constitutional rights, public policy, and legal ethics--we argue that it implicates the core Rawlsian democratic commitment to public reason-giving. (10)

In this Article, we describe how we have opened the "black box" of prosecutorial discretion by collaborating with prosecutors in two jurisdictions to document detailed case-level information concerning plea bargaining. This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation by an interdisciplinary team. For years, academics and policymakers have called for data to fill the crucial void in our understanding of plea bargaining. (11) Existing pilot projects have, however, only collected limited data concerning pleas, focusing instead on initial screening and charging decisions or sentencing data. (12) Efforts by prosecutors to create data dashboards have not resulted in the documentation of plea negotiations. (13)

In this Article, we describe the feasibility and implementation of plea tracking. We have collected systematic data from two prosecutors' offices. (14) Prosecutors in Durham County, North Carolina, and Berkshire County, Massachusetts, piloted and implemented plea tracking for over one year. (15) This Article discusses the development of these systems and our findings. (16)

The feedback we received from line prosecutors and leadership was positive. It takes less than fifteen minutes to document a typical case. The tracker allows prosecutors to record information about not only plea offers and subsequent negotiations, but also their reasons supporting plea offers. At the heart of the work, prosecutors use a set of factors--including aggravating, mitigating, and collateral-consequence-related factors--to justify a more serious or more lenient plea. In short, the system requires prosecutors to articulate and record their reasoning regarding plea offers. No such structure has existed in the past, although sentencing guidelines may note relevant considerations to guide lawyers and judges in sentencing. (17) We were able to observe and study the reasoning behind plea offers. This system can be readily adopted by other jurisdictions: An open-prosecution approach is feasible and, for the first time, operational.

In Part I, we begin by describing the perennial "black box" problem. This is the result of judicial deference to the "special province" of prosecutorial discretion, which is largely unfettered by constitutional criminal procedure or statutory rules, during plea bargaining. (18) While there have been efforts to produce more open data concerning traffic stops, police use of force, officer misconduct, prison populations, and criminal sentencing, (19) the charging and plea-bargaining processes have largely remained closed to public review. We focus on two of the primary efforts to improve data collection in prosecutors' offices: the Vera Institute of Justice's Prosecution and Racial Justice Program and the John D. and Catherine T. MacArthur Foundation's Prosecutorial Performance Indicators. (20) These efforts set the stage for rethinking prosecutorial data collection and policy, but neither included plea tracking. (21)

In Part II, we first describe how we developed and piloted data collection at two prosecutors' offices. As part of piloting, we collected qualitative data about approaches to plea bargaining and quantitative data coded from written records of pleas. (22) Second, we describe results from our first year of data collection. We explore what considerations informed plea offers, the roles of judges and defense counsel, and what factors impacted pleas and sentences during the process. (23) Third, we describe how these data can be used to inform prosecution data collection and policy.

In Part III, we describe how our plea-tracking platform and results can inform the practices of prosecutors, including by structuring the pleabargaining process. Although a full discussion of an analogous open-defense approach is beyond the scope of this project, we explain why plea tracking provides a powerful tool for defense lawyers as well. (24) We then turn to how this work can inform judges and judicial review. (25) Finally, we describe its larger implications for public awareness and policymaking. Asking prosecutors to take time to document their holistic thought processes has the potential to introduce "friction" into the plea negotiation process, which can serve as a check against racial and other invidious biases. (26)

This Article reflects the larger goal of promoting the documentation of plea negotiations as a standard criminal law practice. Members of the public cannot assess how prosecutors are performing without meaningful, detailed, and interpretable information about what occurs during the plea negotiation process. We agree with critics that there are real reasons to be concerned about the central role that plea bargaining plays in our criminal system. (27) So long as plea bargaining remains central to how lawyers resolve criminal cases, however, requiring documentation offers a crucial safeguard of the fundamental values of public reason and democratic legitimacy. (28)

1. The Lack of Prosecutorial Transparency

   Despite data collection's ability to promote transparency and internal accountability, data relevant to prosecution and plea-bargaining outcomes are often not collected, making prosecutors' offices outliers among executive agencies generally, and within the criminal system specifically. Unlike a decision to arrest, prosecutorial discretion to pursue or dismiss charges, negotiate outcomes for the charges that are pursued, and proceed to trial can be made over an extended period of time. Prosecutorial discretion reflects a perceived need for flexibility to adjust to evolving considerations in cases. (29) The rise of plea bargaining as a means to resolve cases more efficiently has heightened the importance of prosecutors' largely undocumented and nonpublic discretionary decisionmaking. (30)

   Over the past two decades, a slowly growing movement has promoted internal data collection by prosecutors. Traditionally, prosecutors have been evaluated based on measures, such as conviction rates, that may provide a skewed perspective of their work. For prosecutors to develop newer measures with which to evaluate their work, they need to collect new data. As this Part describes, most data-related efforts have focused on documenting charging and disparities in sentencing outcomes. These existing efforts have demonstrated that it is feasible for offices to collect and share prosecution data. In recent years, however, prosecutors--particularly in larger jurisdictions and with outside grant support--have embraced more systematic efforts to collect data and share it with the public using dashboards. This Part concludes by discussing the strengths and limitations of pilot efforts to collect internal prosecution data, as well as the insights these efforts have generated.

   1. Prosecutors...