After 16 years as the top prosecutor in Montgomery County, Maryland, John McCarthy found himself in an unfamiliar position: convincing voters that he was the right choice ahead of the 2022 Democratic Primary election. McCarthy, who had been the State’s Attorney for Montgomery County since 2006, now faced three primary challengers: two former prosecutors and one attorney in private practice.
Tom DeGonia, a previous Assistant State’s Attorney under McCarthy, now challenged his old boss’s record as a “progressive” prosecutor. DeGonia highlighted the lack of publicly-available data about minority defendants in the criminal legal system in Montgomery County, an assertion supported by a report from the Montgomery County Council’s Office of Legislative Oversight. By not tracking data about defendants, DeGonia stated, McCarthy’s office had no ability to determine whether minority defendants were treated differently by the criminal legal system or if McCarthy’s stated progressive reforms were actually making a difference. DeGonia emphasized data as to how minority defendants are charged, how often alternative sentencing options were offered, the types of plea deals offered, and what sentences were imposed on conviction as information that McCarthy’s office should be tracking to measure success but was not at the time. McCarthy’s office had joined the Prosecutorial Performance Index (“PPI”) to share data and develop trend indicators for cases handled by his office, but the data dashboard was not ready for launch when the July primary arrived.
McCarthy won his bid for reelection, but a major question remained: when would McCarthy’s office make demographic data about defendants in the Montgomery County criminal legal system public?
The answer came nearly a full year after McCarthy’s reelection when the Montgomery County State’s Attorney’s Office launched its public data dashboard. The PPI partnered with the University of Maryland and over a dozen offices around the country to compile backlogged data into publicly available information to provide a transparency and engagement tool to prosecutors and the public.
McCarthy’s office is among a growing number of progressive prosecutors making their data publicly available to increase transparency. In 2018, the Philadelphia District Attorney’s Office published its data dashboard as part of District Attorney Larry Krasner’s progressive reforms. The dashboard, which highlights significant changes in the criminal legal system under Krasner, also produces monthly crime reports and detailed, data-driven perspectives on the criminal legal system in Philadelphia. Krasner’s office has used data from the dashboard to highlight how over-policing and over-prosecuting has impacted people of color in Philadelphia, and how his office is responding to that data..
“Progressive prosecution” as a movement appeals to the idea that disparities in the criminal legal system can be remedied in part by elected prosecutors that reject the “tough on crime” approach to prosecution prevalent after the 1994 Crime Bill. The movement has been gaining traction since Krasner’s election in 2017, with major cities continuing to elect or reelect reform-minded prosecutors. For prosecutors like Krasner and McCarthy, being held accountable by public data dashboards is only one method of making sure campaign promises like greater equity for non-white defendants are fulfilled. As more jurisdictions elect progressive prosecutors nationwide, public data dashboards allow voters greater insight into which elected prosecutors are delivering on campaign promises for equity in the criminal legal system and which are using an increasing trend to get elected. Critics of the progressive prosecution movement note that, no matter what the data displays, institutional roadblocks and internal opposition to equity in the criminal legal system cannot be erased by transparency alone.
As progressive prosecution gains a greater foothold across the nation, transparency between the offices charging and prosecuting crime and the citizens that elect them has become a focal point for community relations. Tools like data dashboards produced by groups like the PPI can serve as valuable assets for criminal law attorneys nationwide. Attorneys looking to join the progressive prosecution movement, like Tom DeGonia, should use data or the lack thereof to highlight the insufficiency of current elected officials. On the other side, attorneys defending clients against progressive prosecution offices can use data dashboards as a tool when advising their clients on realistic expectations and outcomes. Public datasets that break down things like how frequently an office offers plea deals and for what crimes can empower a criminal defense attorney with significant leverage when negotiating with the prosecution. Attorneys should continue to pressure prosecution offices to release data about the activities of their offices through data dashboards, to both hold elected prosecutors to their stated promises and to better understand the priorities of the prosecutor in the adversarial criminal legal system.