In my immediate previous post, I highlighted some of the motivating inspirations for creating a particular platform in 2007: the Milwaukee County Community Justice Council. The desire was to examine our criminal justice system and to invite external partnerships to help us identify efforts from different systems that might help inform our desire to improve the Milwaukee “product” of justice.

Hidden in the request for help was a perhaps naive presumption that some system somewhere was “doing justice the right way”—such that our need was to discover it, adopt or adapt it, and make it our own. The reality in 2007 (and today) is that there are approximately 2,330 state-level criminal justice systems representing diverse populations and operating in myriad legal and cultural systems sometimes very different from Milwaukee. All are presumably trying in good faith to justly serve their particular communities. And while many of the dynamics of “the criminal justice system” are similar everywhere in the United States, you will find important nuances just by traveling outside your home county.

In all events, given the complexity and deeply structural challenges of the American legal system, how do you objectively identify a problem in your ecosystem, assess what might fix the problem, implement a reform, measure the impact of the effort, and then demonstrate a narrative of progress? Such a process comes with abundant loaded assumptions, each one challenging enough to derail any effort at reform (which helps explain why so few jurisdictions even try).

But perhaps the biggest issue confronting reform-minded practitioners can be distilled to this essence: the challenge of adequately and accurately capturing meaningful data.

Unifying all criminal justice systems in the past and no less in the present are grossly inadequate information management systems combined with sparse analytical capacity. One of the guiding principles adopted early in the Milwaukee reform process is captured by the phrase “You can’t effectively change what you don’t effectively measure,” and while the information collection process has been revolutionized in a short time, effective analysis remains a challenge to most systems.

The Milwaukee County justice ecosystem circa 2006 was predominately an analog, paper-based system. If you practiced criminal law in the 1960s and returned for a day as late as 2010, you would still recognize all the processes and procedures required to represent a client or prosecute a case. Data and information processing systems (including software at the later date) were a hodgepodge of commercial and proprietary products, with the police departments, sheriff’s office, prosecutors, courts, and corrections system all using different means to capture and store the information needed in their respective sphere, but rarely with any interoperability with other agencies. In a pre-Cloud, pre-AI world, a researcher needed to physically enter the space where the work unfolded to even attempt to capture data, and nonetheless he or she would be disappointed in the quality of the information.

Despite the obstacles, in 2005 the Milwaukee County District Attorney’s Office opened itself to outside, independent researchers. This occurred when the Vera Institute of Justice reached out and asked to be allowed to enter the complicated and risk-averse space of the elected prosecutor. It did so on a topic that was and is considered a third rail of police and prosecution controversy: race.

Vera’s Director Nick Turner approached three long-serving prosecutors: Mike McCann from Milwaukee, Bonnie Dumanis from San Diego, and Peter Gilchrist from Mecklenburg County, N.C. Both McCann and Gilchrist had over 35 years in office at the time; Dumanis was an experienced prosecutor, too, and San Diego had a state-of-the-art information management system for a DA’s office, a rarity at the time. The explicit pitch—to allow research on how charging decisions implicated race—acknowledged the political risk of the “ask,” but reasoned that both McCann and Gilchrist were presumed to be politically secure enough (or close enough to retirement) to be willing to risk the venture.

In 2007, under what was now my administration, Vera was given unrestricted access to the Milwaukee County District Attorney’s office data to assess whether individual charging decisions were, in aggregate, proportional and fair.

One critical aspect of the project needs to be highlighted—and that is the significance and importance of explaining and supporting the study both internally (the practitioners) and externally (the community stakeholders). Line prosecutors might understandably be reluctant to participate if they thought the aim of the study was to question their integrity or to presume bias. Community members might question whether the study was truly independent.

It took a remarkable person with a unique resume to lead the project in a way that answered both sets of concerns emphatically: That person was Wayne McKenzie, the Director of Vera’s Prosecution & Racial Justice program. Wayne was a senior, experienced prosecutor on leave from the Brooklyn DA’s Office, so he knew what it meant to work in the stressful, sometimes chaotic universe of a criminal line prosecutor with urgent case demands and victims seeking justice.

But he also had a unique ability to talk to the people in the community who had been most adversely impacted by the justice system. Over a period of months, with in-person visits to Milwaukee, Wayne and his team developed the trust that ultimately led to a successful study.

One of the major research constraints was to determine basic demographic data such as race; this required looking in both the DA’s data and the data of the various arresting agencies. Even thereupon, it was soon discovered that the universe of identification was often limited to Black and white, and that was often based on the arresting officer’s perception.

Despite limitations, the Vera effort demonstrated that meaningful information could be collected, analyzed, and examined in a way that allowed policymakers to make reasonably informed decisions. While hardly a shock, the data revealed significant racial disparities in the prosecution of lower-level drug possession offenses and public order offenses.

The greatest surprise came in the finding of reverse disparity in property-offense charges. Below is a slide prepared by researcher Don Stemen from Loyola University of Chicago (he was with Vera when the study started); it was first presented to my executive team in 2007 at the conclusion of the first analysis of our charging data and later publicly presented by me on July 15, 2008, at the National Black Prosecutors Association conference:

What this shows is that, controlling for all other factors, more drug cases were not charged for white suspects than for Black, while the opposite was true for property crimes. In retrospect this may seem like a primitive analysis, but keep in mind that no other DA’s office in the country had ever done this before.

I remember remarking at the time that the drug disparity did not surprise me, but I wondered if the property crime disparity “evened things out.” Deputy DA Jim Martin read it differently. His insight was that perhaps we devalued Black property-crime victims unconsciously, and didn’t investigate and prosecute those crimes as vigorously.

And so began a process of looking at data and asking questions about what it meant and if it could point us in a direction to do better.

In the context of drug prosecution disparity, the impetus for the development of diversions and the Milwaukee County Drug Treatment Court dramatically reduced the disparity within a relatively short period of time. Other system partners were also responsible for the decline: for example, the Milwaukee Police Department deemphasized low-level marijuana enforcement and supported drug-treatment approaches.

The resulting change was not an immediate “cascade,” but certainly in the area of drug-charge race disparity, there was measurable change. One can see this in a 2014 assessment by Anthony Streveler, director of research and policy for the Wisconsin Department of Corrections, presented on October 17, 2014, at a Milwaukee County Community Justice Council meeting titled “The Impact of Race Within the Criminal Justice System.” The assessment showed dramatic improvement in closing the gap in a relatively consistent downslope, as seen below:

The Milwaukee Vera effort also gained some attention from the admittedly small but focused group of legal scholars engaging with the topic of prosecutorial discretion. See, e.g., Marc L. Miller & Ronald F. Wright, The Black Box, 98 Iowa L. Rev. 125 (2009).

The Vera experience served as a launching point for the Milwaukee Community Justice Council to discuss means of developing alternatives to deeper system involvement for lower-level offenses. We learned that while we were one of the few such forward-looking jurisdictions in the country, we were not alone. The National Institute of Corrections Evidence-Based Decision Making solicitation provided the framework for mapping our system and applying social science principles to our reform efforts. In time, Milwaukee’s and other jurisdictions’ efforts attracted the attention of larger systems’ criminal justice leaders, who discovered the unique challenges in their jurisdictions (for example, when the Manhattan District Attorney’s Office engaged in the same process several years later).

The model pioneered by Milwaukee did not fade into obscurity and has in fact gained some slow acceptance nationwide, as reflected by efforts in several diverse prosecutorial jurisdictions and tracked by the Prosecutorial Performance Indicators site hosted by Florida International University and Loyola University.

I don’t want to exaggerate one example of an intervention to imply that dramatic and systemic change can be easily accomplished and replicated elsewhere. I am also mindful of the recent excellent, thought-provoking, and professionally skeptical research of Professor Megan T. Stevenson, who questions the efficacy of criminal justice reforms as measured by randomized control trials. Stevenson asserts that large scale “cascade” events precipitated by criminal justice system reform are rare, hard to replicate, and subject to regressive social forces. (I will also address this cautionary note in a future post.)

In all events, one accomplishment of the Milwaukee County DA’s office’s partnership with Vera and the focus on data was to serve as both a foundation and a bridge for future Community Justice Council collaborations. The most significant is the ongoing MacArthur Foundation Safety Justice Challenge. This will be the subject of my next post.