After losing her re-election bid in 2022, DA Andrea Harrington – who ran on a progressive, reform platform in 2018 – is framing the report released in late December as something of a referendum on her efforts in office.
“We know approximately 95% of all criminal cases are disposed of by a plea. But we really know shockingly little about that process- about the fairness of that process, about the results," Harrington told WAMC. “There was a study that was commissioned by the late, great Chief Justice Ralph Gants of the Massachusetts Supreme Judicial Court that found that there were pretty big racial disparities in Massachusetts in the length of sentences for Black and Brown people. And the report noted that what was really lacking was an investigation of a plea process, because it's clear that the way cases are disposed of by plea drive a lot of the sentences here in Massachusetts and across the country. So, we were very interested in gathering data to show transparency and accountability here in the Berkshire District Attorney's office so that the community could have a better understanding of how the office is serving the public.”
To that end, Harrington turned to the Wilson Center for Science and Justice at Duke University.
“What we do is engaged work designed to bring new things to the criminal justice system to try to improve the quality of criminal justice," said Brandon Garrett, a law professor at Duke and the founder of the Wilson Center. “Early in my career, I've represented people who've been wrongfully convicted and worked with the Innocence Project founders and did work studying wrongful convictions. But the work at the Wilson Center is broader. We do work on bail reform, we do work on sentencing. And one of our biggest undertakings is trying to rethinking to try to rethink how plea-bargaining works in this country.”
He says that given the weight of plea-bargaining in the American legal system, the kind of access Harrington offered to the Center was unprecedented.
“No one in the country had done this kind of work tracking what happens during the plea negotiation process," Garrett told WAMC. "Law professors like me have talked about it for years as a black box. And so, for years, we've been saying, lawyers- We write things down, we're writers, we're used to documenting our time, especially at the big law firms, you have to document every six minutes of your work. Why is it that prosecutors and criminal defense lawyers really don't keep many records about the plea negotiation process? And part of it is, it’s sort of where the sausage gets made. It’s negotiations, it's informal.”
The only other district attorney’s office to participate in the study was Duke’s home of Durham County in North Carolina.
“Berkshire also did something that no one has done, which is they documented the process in district court, which has a lot of misdemeanor, lower-level cases," Garrett continued. "The volume there was tremendous. And they showed that you can do this not just with several dozen, 100, 200 serious felony cases, but they did it in over a thousand lower-level cases. But what the work also showed was that there are a lot of patterns that emerge once you start looking at hundreds and then over a thousands cases you otherwise wouldn't have known about.”
With hundreds of plea-bargained cases in hand, Garrett says that the data both confirmed and challenged assumptions about how the behind the scenes push and pull impacts outcomes in the criminal legal system.
“We expected to see the cases involving firearms will be treated more seriously, and we saw that firearms cases tend not to move so much," he said. "We saw that victim involvement mattered, but it mattered in cases often where you'd expect it to matter the most- In domestic violence cases, for example. There were also some surprises. We especially saw in the lower-level cases in district court that there were racial disparities, particularly in who pleaded guilty as opposed to who got the benefit of some of the more alternative dispositions where you don't get a criminal record, you don't get a conviction. Some of that may have been affected by real differences based on race or reflecting race in the type of criminal defense lawyer that people have. So, we saw that more white defendants in the lower-level cases have private attorneys who may have had more connections, or they may have been more able to negotiate a treatment option, or they may have had more resources to say, look, we can pay for some for some restitution for some treatment- You know, my client doesn't need a conviction here.”
Garrett says the major takeaway from the study is simply that plea-bargaining doesn’t need to remain secretive, and that more transparent documentation of the practice will create more equitable outcomes.
“Step two is to do more than track, and start to use this to inform practices to really make sure that the prosecutors are pursuing justice," he said. "And that's the next step, once we have more offices actually tracking, is to work with those offices to actually make sure that prosecutors are following the right policies- And that may differ based on the jurisdiction and based on the priorities of an elected prosecutor. They're elected for a reason, they're supposed to have policies and their own preferences, but they can't even know whether their policies are being carried out unless they're doing this.”
Harrington says the findings have validated her efforts to bring a lens of equity to the DA office’s functions while carrying out its prosecutorial role.
“In superior court, we actually found that white people were getting longer sentences than Black people," she told WAMC. "And I do think that that's a reflection of the work that we've done here in Berkshire County around racial justice, we've done some deep [Diversity, Equity, Inclusion] work. I think that that has to do with our focus, potentially, and I'm kind of guessing here, but that we really focus more on more punitive sentences in violent crime – homicides, sexual assault, child abuse cases – and less so in narcotics cases where we've significantly cut the number of cases, drug cases that we prosecute in superior court and try to keep those in the district court so that people can have more rehabilitative dispositions in district court where that is appropriate.”
Harrington says that her experience heading the Berkshire DA’s office has deepened her belief that fairness and equity can go hand in hand with public safety.
“One of the big challenges that we have in addressing violent crime is that when we have community that are fearful of law enforcement and are hesitant to report crimes or to share information, it makes it really challenging for us to really be able to prosecute people that have committed really violent offenses and create dangers in our community," said Harrington. "And it's important for us to build faith in the system, and the way that we do that is by really interrogating the injustices that are occurring, and racial disparities are huge. And there's other kinds of socio-economic disparities that happen in the in the criminal legal system. And I just feel very strongly that we better protect the public, we better protect public safety, when we can show people that we are being fair and we are being just, and this kind of information, I think, helps us both to build that trust with the community to show that yes, we are interested in figuring out what it is that we're really doing. And we're interested in improving on that. And it actually gives us the tools and information that we need to be able to do that.”
Harrington’s successor, Pittsfield attorney Timothy Shugrue, has not indicated to Duke whether he will continue collecting plea agreement data.
You can read the full report from Duke University on plea agreements in the Berkshire District Attorney’s office here.
