|Berkshire County DA Participates in Plea Bargain Tracking Project For Judicial Equity|
|By Brittany Polito, iBerkshires Staff|
02:31AM / Friday, July 16, 2021
|Harrington first became connected with Deberry on a Facebook group called "law mamas" back in 2018. They both ran at the same time in Berkshire County and Durham County and were elected as progressive district attorneys.|
PITTSFIELD, Mass. — In an effort to promote equity and fair sentencing within the judicial system, the Berkshire District Attorney's office participated in the making of a digital tool that opens the "black box" of plea bargains.
The project was done in collaboration with the Durham County, NC District Attorney's Office, and Berkshire District Attorney's Office. It was formally announced on Thursday at a virtual press conference.
"Historically, prosecutors have relied on scare tactics instead of facts which has built this system of mass incarceration," Berkshire District Attorney Andrea Harrington said. "And the communities that I serve in western Massachusetts, we live with the consequences of this failed approach. We carry the highest rates of opioid addiction, fatal overdose rates and intimate partner violence in our state, due to a choice to invest in punishment, rather than in public health."
The Plea Tracker Project, created by the Wilson Center for Science and Justice at Duke Law in Durham, NC, is a system that offers expanded access to data on the factors that drive case outcomes and allows prosecutors to check their own practices.
The tool went live in April of this year and is in the midst of a yearlong study to result in aggregated data that shows trends and patterns on how prosecutors judge cases. Offices will then use this information to inform future decision-making.
"Through our novel tracking tool designed to capture what really happened during the plea bargaining process, we are collecting and analyzing data, most of which has never been tracked, to better understand how criminal cases in the US are resolved," Wilson Center Executive Director Yvette Garcia Missri said. "As well as to provide valuable insights to the DA offices themselves about their own practices."
Plea bargaining is the process by which a defendant and prosecutor negotiate a resolution to criminal charges where the defendant agrees to declare guilt in exchange for some leniency from the state.
Plea agreements account for about 90 to 95 percent of all criminal cases yet what actually happens during the process has reportedly not been studied.
Missri said that by pleading guilty, a defendant not only relieves the state of its burden to prove every element of the events, but it also waives several important constitutional rights including the right to not incriminate oneself, the right to trial by jury, and the right to confront one's accusers.
"The current plea bargaining system incentivizes both parties to participate rather than to take their case to trial," she said.
Though the project went live in April, the office of Durham District Attorney Satana Deberry has been submitting transcripts for superior court cases to help inform data collection since 2019. As the data was collected, researchers also conducted qualitative interviews with her staff to get an understanding of how they made decisions during the process.
Data collection includes the prosecutors' opinions about the threat that a particular defendant charged with crimes poses to society, the impact of the victim from the prosecutors' viewpoint, the reasons for any charges, the reasons for the changes to those charges or sentencing recommendations, and why this final sentencing recommendation was decided upon.
"Pleas are a very important area of examination because contrary to what we think about the courts, the vast majority of convictions are via pleas," Deberry said. "It's in pleas that our country now has a system of mass incarceration that has disproportionately ensnare people of color and it's in pleas that we have an opportunity to correct these inequities."
She explained that both DA offices are inviting outside researchers to examine how they are using their discretion, whether offers are consistent across staff, and where the racial disparities are present.
"We expect the data from the Plea Tracker Project will show what we are all beginning to understand clearly and deeply about the criminal legal system: black and brown people are disproportionately pulled into the system and treated more harshly," Deberry said. "We will not reverse the deep-seated inequities in a one-year study period, but we do know that understanding these disparities in our office is a first and important step toward correcting."
Another aspect of this project is to help prosecutors understand the "trial tax" or the gap between the sentence a defendant will see by entering a guilty plea and the sentence the same person would face if they exercise their right to a trial instead and are found guilty.
According to the panelists, the potential sentence at trial could be much higher than a plea offer, which is a concept that prosecutors struggle with as they want to give people as much access to justice as possible.
"Americans tend to think of a trial by jury as the gold standard of the criminal legal system," Deberry explained. "However, we want people to enter a guilty plea because it's because it is a fair opportunity to resolve the case that reflects both their culpability and their humanity. Not because the risk of going to trial is so high that it becomes coercive."
Harrington first became connected with Deberry on a Facebook group called "law mamas" back in 2018. They both ran at the same time in Berkshire County and Durham County and were elected as progressive district attorneys.
Harrington said In 2020, Berkshire County was "severely under-resourced" with fatal overdoses rising 44 percent in Berkshire County whereas they rose 5 percent statewide. Requests for involuntary commitment rose nearly 20 percent in Berkshire County compared to 4 percent statewide. She pointed out that the county has some of the highest rates of intimate partner violence in the state where victims are isolated and have barriers have access to services.
"So one of the questions we have is are we backed into pursuing incarceration because we lack adequate alternatives? Do we lack justice partners that share our vision for non-carceral answers to poverty, addiction, and mental illness? And this play tracker project is designed to measure the impacts of these different factors and how we negotiate our pleas and how pleased are determined by the courts," Harrington said.
Harrington said that opening her office to scrutiny in the name of digging deeper into who the system shows mercy to and who it does not is leading by example. She welcomed the results of the work and understood that it will likely point to necessary reforms from her office and from prosecutors.
"The war on drugs has given us the largest prison system in the world, and communities like mine are struggling with those choices because of a decision to invest in punishment instead of in public
health," she said. "And compounding these issues is a traditional sentencing scheme that doubles down on a failed recipe of escalating punishment, and a failure of our social safety net to provide even basic health care and opportunity. So it means people end up in a cycle of policing, prosecution and incarceration. The public has demanded a new approach to public safety, and that demand continues to grow."
Though the actual data system is owned by the Wilson Center for Science and Justice and the DA offices, the information will be available to both researchers and the public because it will be collected for the first year and presented in a formal report that will be available to the media.
A tool is also in the works that could be used independently by the DA offices once the researchers have completed their initial year of study.