Black and Hispanic felony defendants face a “persistent set of disadvantages” in the criminal justice system, compared to white defendants, according to a report released Tuesday.
The Denver District Attorney’s Office announced that, through research of prosecutorial outcomes in the jurisdiction, there are racial differences in outcomes for Black and Hispanic defendants, compared to white defendants, but not “prevalent issues of racism, bias or implicit bias,” according to Denver District Attorney Beth McCann. The report includes guidance for how to further improve outcomes, and while prosecutors interviewed as part of the research noted systemic racism in the justice system, the criminal defense bar suggests prosecutors should take more responsibility for their role.
The report, published by Colorado Evaluation and Action Lab and conducted by a Sonoma State University researcher with cooperation from the DA’s office, examined adult felony cases between July 2017 to June 2018. McCann wrote in the report’s introduction that, when she was elected DA, she set a goal of determining “how the DA’s office could focus [its] efforts to ensure fair justice for all — including the community, victims, and those accused of criminal offenses.” Her office worked with report author, Stacey Bosick, interim associate vice president of academic programs and dean of undergraduate and graduate studies at Sonoma State University.
Bosick noted in the report that cooperation from McCann’s office was key: “Criminological research has identified numerous examples of systemic bias in the criminal justice system, including higher rates of police presence in Black and Hispanic communities and harsher sentencing guidelines. … Yet, the prosecutor’s office is rarely studied in criminology and criminal justice, largely because District Attorneys tend to be unable or unwilling to make their data available.”
The report examined differences in outcomes for defendants across four points of prosecutorial discretion: dismissals, deferred judgments, referrals to drug court and plea offers. While the results indicated there were racial differences within three of the four, there was no evidence of “racial and ethnic differences” in plea offers.
Cases involving Black defendants were found to have a 31% higher probability of being dismissed — and cases involving Hispanic defendants were equally likely to be dismissed — than those involving white defendants. While that might stand out as favorable to Black and Hispanic defendants, the report notes that the cases were all initially accepted for prosecution, indicating that prosecutorial decisions to file charges in the first place might factor in. Data regarding prosecutors’ initial case acceptance was not available for research.
Deferred judgments and referrals to drug court more clearly favored white defendants. Drug felony cases involving white defendants were found to be twice as likely to be sent to drug court than handled in district court. White defendants were also twice as likely to receive a deferral than Black or Hispanic defendants. On the flip side, cases involving Black or Hispanic defendants were more likely to be resolved through a trial or plea agreement. While prosecutors might not directly be responsible for those outcomes, the report does recommend they play a more direct role in examining and changing the factors that determine eligibility requirements for deferrals.
In order to have a case sent to drug court, defendants, at the time of the report, were required to meet eligibility requirements such as not having a prior criminal history. Because of this, some defendants are disqualified. The report recommends stakeholders consider if and how to structure criteria to promote equitable outcomes.
Likewise, difficulty in meeting sentencing alternatives might factor in to the decision for deferral to drug court as well, since defendants with mental health issues or who are indigent might be less likely to be able to meet the requirements of graduating out of the specialty court. The report recommends the DA’s office “continue to explore whether there are social services or supports to accompany a disposition and help set defendants up for success.” Specifically, the report recommends:
- Reviewing cases and deciding which will be accepted—and taking steps to ensure that cases that will eventually be dismissed are refused from the start.
- Collaborating with Denver criminal justice system stakeholders to ensure eligibility requirements for deferred judgments, specialty courts, and diversion programs support equitable outcomes.
- Supporting further racial and ethnic diversity among their staff and new ways of supporting greater cultural awareness and understanding.
- Continuing to collect and review data to better understand the dynamic role of prosecution over time.
As part of the research methodology, the study included interviews with felony prosecutors from the 2nd Judicial District. A major theme in prosecutors’ responses was an acknowledgment of systemic racism within the criminal justice system, beginning with police interactions. As prosecutors, though, they viewed cases in isolation and reported feeling largely helpless when it comes to the social or justice system issues that determine who winds up in their office.
“Yes, there is systemic racism from top to bottom. And law enforcement is equally complicit in all of that,” one prosecutor was quoted saying. “I just hope that by the time a case reaches us, we are treating defendants individually fairly.”
“I know it’s a problem, I just don’t know — like everyone else, I don’t know what the solution is. I would like to think that the solution occurs before it hits our table,” another was quoted in the report. “I think the institutional racism happens because of the situations people are placed in from a much earlier stage than when officers get there.”
Tristan Gorman, a criminal defense attorney and legislative policy coordinator for the
Colorado Criminal Defense Bar, said she applauded the district attorney’s office’s transparency and participation in the study, but she disagreed with the assessment that there was no evidence of pervasive racism. “I simply don’t agree with that,” she said. “It has been anecdotally known to us for decades that, of course, there is systemic racism in policing and prosecution. They work hand-in-glove with each other, and both need to be addressed if we’re ever going to address racial disparity in the criminal justice system. I hope this will start conversations about that.”
Gorman also disagreed with the sentiment that prosecutors had no control over systemic racism in the justice system, noting that prosecutors have a significant amount of control over whether to file charges, what charges to file, how to argue bond assessments and whether to pursue certain sentences — such as enforcing a habitual offender sentence enhancer that might turn a relatively short prison sentence into a lengthy one — which affect a defendant’s willingness to plead guilty ahead of a trial.
She said she thought the DA’s office’s participation in the study should be lauded and the recommendations included in the report were an encouraging first step, but she recommended that prosecutors also consider the larger interaction of police practices on prior convictions and how those prior convictions in turn affect prosecutors’ decisions involving restitution or sentencing.
“This study is an important and encouraging first step,” Gorman said. “But it’s just important to recognize the immense power and responsibility that prosecutors have and the role they play in the systemic racism that’s being examined.”
McCann said at the press conference that next steps are to drill down on the reasons for the results in any of these categories. “We really want to continue to research and look at these individual cases to see what were the reasons … because we want to make sure that these decisions are not being made on a racial basis, or that bias is not impacting those decisions.”