BERKSHIRE DISTRICT ATTORNEY Andrea Harrington is participating in a unique national pilot program to track what goes into negotiating plea deals by prosecutors in her office. If she discovers race plays a role, she won’t be surprised.
“I know that we’re going to see racial disparities. There’s no way we cannot. I mean, they exist throughout the entire system,” Harrington said. “What I’m really asking people is to recognize that, and we need to work together as a system to address the racial disparities that I know are going to be there.”
Ninety to 95 percent of criminal cases nationwide are resolved through a negotiated agreement, or plea deal, rather than trial. Harrington, a progressive Democrat, is one of three district attorneys nationwide participating in the Plea Tracker project run by the Wilson Center for Science and Justice at Duke Law School. After any deal is reached, prosecutors in her office must go online and fill out details about the plea and the parties involved. Researchers at the Wilson Center will then analyze the data to learn more about how pleas are negotiated, and whether they are done in a just manner. Harrington appeared on The Codcast this week to discuss the Plea Tracker project.
Harrington said one goal of the project is to ensure that pleas are entered into consistently, without racial bias. Prior studies have identified racial disparities throughout the criminal justice system, and Harrington said racism is a system-wide issue. Race likely affects how victims report conduct, how police write about it in arrest reports, how prosecutors interpret the reports, and how judges perceive the facts.
“My approach to racial justice and ending the scourge of racial disparities in the justice system is to lead by example,” Harrington said. “So I am making a statement that we are going to track our decision making and we’re going to include demographic information like race, and we’re going to take a hard look at ourselves to see what we are doing to perpetuate these disparities.”
There are also other areas Harrington will be looking at. She has gotten some preliminary results from the study, in advance of a six-month report that will be given to her office in January. That data found that her office has a strong record of contacting victims to discuss a plea deal. It also found a high correlation between offering a sentence of probation and requiring someone to participate in a therapeutic intervention, and it found that most of these offers were made to people with past involvement in the criminal justice system.
Harrington said the latter finding tends to confirm her office’s approach of not prosecuting low-level offenses, and seeking not just to punish but to give people opportunities to address the underlying issues that got them involved with the court system, like substance use disorders.
So far, Harrington said her decision not to prosecute low-level offenses, things like non-violent traffic violations or drug possession, has gotten a positive response. She said judges are happy not to see their courts clogged up with minor issues, and defendants avoid major disruptions to their lives.
“The court system is just very harmful for people that are dealing with mental illness and substance use disorder and struggling with the impacts of poverty,” she said. “Part of what we’re trying to do is get policing and prosecution out of the way and get those people that need public health assistance into that system and people that don’t necessarily need anything just to be left alone and not have to deal with the hassle that a court process presents.”
Harrington was also asked about a controversial incident last summer in which she (unsuccessfully) asked the chief justice of the district courts to remove a sitting judge from the bench. Harrington defended her request as a way of sticking up for crime victims and her employees, who she felt were being mistreated.
“If I see a pattern of conduct from a judge that I’m concerned about and I think undermines public safety and I think is not fair and just to the people that I serve, I really have a few options,” Harrington said. “The option that I selected was really, I think, the softest option, which was to raise my concerns with the Chief Justice so that they were aware and could act on them how they wished to act on them.”