Denver DAs Prosecutorial Discretion Not Influenced by Race Report Says

Denver District Attorney's Office Seal
Prosecutorial discretion on case dismissal and deferred judgements does not explain differences in racial and ethinic case outcomes in Denver, according to a report released today. / Clara Geoghegan for Law Week Colorado

Prosecutorial discretion on case dismissal and deferred judgements does not explain racial and ethnic differences in case outcomes in Denver, according to a report released today. 

The latest report follows up on a study conducted earlier this year by the Denver District Attorney’s office and the Colorado Evaluation and Action Lab that studied how race impacted felony prosecution outcomes. 

The earlier report identified differences in rates of case dismissals, deferred judgements and drug court referrals for Black and Hispanic defendants compared to their white counterparts but found no difference between plea offers extended across racial and ethnic demographics in the Denver District Attorney’s office. However, the report did not dive into the underlying causes for the racial differences — a topic that the latest study hoped to address. 

“We dove deeper into the initial data set to see if we could learn what was behind the reasons for disparities and to be transparent in our work,” said Denver District Attorney Beth McCann in a statement announcing the report’s release. 

Conducted by the Colorado Evaluation and Action Lab between May and August, “Racial Disparities in Prosecutorial Outcomes” singled out two subsets of adult felony cases accepted for prosecution. It looked at 350 dismissed cases and 111 deferred judgement cases between July 1, 2017 and June 30, 2018. Out of the dismissed cases, 78% were incorporated into abstracted data studied by the principal investigator, Lauren Gase, and 84% of deferred judgment cases were included in the study’s data. The report notes that researchers did not look at drug court referrals “because the drug court that existed at the time of the original study is no longer in existence.” 


The study set out to answer several questions: What are the characteristics of defendants in dismissed and deferred cases? Why were cases deferred or dismissed? And did these characteristics or reasons differ by race or ethnicity? 

Like the earlier report, researchers pointed out that the “snapshot” of data from 2017 to 2018 is a limited scope of study. They also noted that data on why prosecutors chose to bring a case for prosecution was not available, meaning they could not compare dismissal rates with the reasons a case was selected for prosecution. That gap in understanding opens a direction for possible future research, the report explains, “gaining a deeper understanding — and distinguishing — the reasons for refusing cases and dismissing cases remains an important future direction.”

The earlier study found Black defendants were 31% more likely than white or Hispanic counterparts to have their cases dismissed. While on its face that data might suggest an advantage for Black defendants, the report notes that the fact the cases were initially accepted for prosecution points to the impact of a prosecutor’s choice to file charges in the first place.

The latest report did not look at a prosecutor’s discretion in initially filing charges, but it did determine that the primary reasons and rates for dismissal were the same across white, Black and Hispanic defendants. Most cases — 65% — were dismissed because prosecutors were unable to prove the charge beyond a reasonable doubt. Out of the cases that could not be proved beyond a reasonable doubt, researchers noted, frequently a victim did not want to testify or proceed with the case. 

According to the earlier report, white defendants were over twice as likely to have a case deferred compared to Black and Hispanic counterparts. Out of the 111 deferred judgement cases identified, 55 had white defendants, 27 had Hispanic defendants and 11 had Black defendants. With only 11 cases with Black defendants, the report noted that fully and accurately answering research questions around ties between race and deferral was limited. 

In most deferred cases the deputy district attorney exercised some level of discretion or interpretation. The most common reasons to defer judgment in a case were that a defendant had no or limited criminal history (54% of cases), the charge was not a violent or serious offense (38%), the defendant’s life circumstances required leniency or flexibility (30%), or the defendant or DA identified a rationale for the offense (23%).

While the researchers didn’t find an underlying reason to explain the racial and ethnic disparities identified in the first study, they called the latest results “a step forward for gaining a deeper understanding” of the different racial outcomes. 

“This study represents another important step forward in improving prosecutorial transparency and has identified opportunities for the Denver DA’s Office to continue to support its commitment to racial equity,” said Gase, the primary investigator, in the announcement. 

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