Disparities at Points of Prosecutorial Discretion

A collaboration of the Colorado Evaluation and Action Lab, the 18th Judicial District Attorney's Office, and the Loyola Chicago Center for Criminal Justice — a project of the Prosecutorial Performance Indicators.

The fair and just treatment of all communities at each stage of the criminal justice process is of significant importance. Central to this discourse is a recognition of the discretionary power that prosecutors wield in shaping the outcomes of criminal cases. This includes, among other things, the decision to prosecute or decline to file charges, adjust the severity of charges, dispose of cases through dismissal, deferral, or plea negotiations, and make sentencing recommendations. It is valuable to examine such points of discretion to understand whether there are differences in outcomes across individuals of different races/ethnicities.

Colorado's 18th District Attorney's (DA) Office data dashboard, released in September 2022, provides a diagnostic tool to identify what is happening. However, if we see differences, for example, between White and Black individuals, what does that tell us?

Digging Deeper. What do Differences Mean?

To support actionability, it is important to dig deeper, distinguishing between two important concepts — disproportionality and disparity — and considering system drivers of potential differences.

Disproportionality. The DA's Office receives cases after law enforcement agencies make an arrest. Disproportionality exists when more people of a certain race/ethnicity are arrested than we would expect given the population. Race and ethnicity are captured separately in the census and the DA's case management system. The DA's case management system is limited in that individuals cannot be identified as multiracial, and it is rare that both the race and ethnicity for an individual are recorded. To help address this limitation and support an equitable approach, which aims to review and present data in ways that align with how individuals identify (Pew Research Center, Schusterman Family Philanthropies), we have combined the race and ethnicity fields.

When looking at cases referred to the 18th Judicial District Attorney's Office between January 2018 and June 2022, we see the following with regard to disproportionality:

With regard to Hispanic individuals:

• If only considering ethnicity, 16.5% of individuals in Arapahoe, Douglas, Lincoln and Elbert counties identify as Hispanic. This compares with 16.8% of individuals referred to the DA's Office.
• When considering race and ethnicity together, data suggest that 9% of individuals in Arapahoe, Douglas, Lincoln and Elbert counties identify primarily as Hispanic (whereas 6.4% identify as Hispanic + multiracial and 0.9% identify as Hispanic + Black, Native American, or Asian; therefore, are represented in those categories). This compares with 16.7% of individuals referred to the DA's Office.

With regard to Black individuals:

• When considering race and ethnicity together, 7% of individuals in Arapahoe, Douglas, Lincoln and Elbert counties identify as Black. This compares with 17.3% of individuals referred to the DA's Office.

Any decisions made by the DA's Office are downstream from the first decision in criminal case processing: who is arrested. Where there are racial disproportionalities in the raw number of people arrested, it follows that those disproportionate numbers flow throughout the prosecution process.

Disproportionality may not necessarily be explained by differences in criminal behavior. It can also be due to the behavior of criminal justice actors, like law enforcement practices and resource allocation that result in more people of color being stopped and arrested, or crime trends and enforcement responses in certain neighborhoods.

Disparity. Disparity exists when people who should be treated the same are treated differently. As noted, the current data dashboard presents raw differences. Any differences we see could be the result of differences in cases (e.g., severity of charges), defendants (e.g., criminal history), and/or prosecutorial practices. To support understanding and actionability, it is important to compare similarly situated defendants and similar types of cases. This will help us understand the extent of, and potential reasons for, any disparities.

Systemic Drivers of Disparities. Appropriately, prosecutors evaluate each case on its own merits. While decisions and criteria used to make decisions may seem unrelated to race on a case-by-case basis, they may be influenced by systemic drivers that are correlated with a defendant's race/ethnicity (Figure 1, below). For example, Black and Hispanic defendants, due to historical inequities, may have unequal access to resources such as educational opportunities, formal medical diagnoses, and steady employment. These circumstances could influence factors that prosecutors consider in their decision-making, such as previous criminal history, ability to pay restitution, or engagement in drug treatment.

Figure 1. Examples of Systemic Drivers of Racial/Ethnic Disparities

Likewise, prosecutors may have different interpretations of defendants' life circumstances and experiences. Defendants may have diverse expressions of concepts such as remorse, respect, or compliance, which may or may not align with prosecutors' expectations. Likewise, prosecutors may differ in their interpretation of a defendant's life circumstances, attitudes, or behaviors. Importantly, our methodology cannot be used to support or refute possible implicit or explicit bias.

We hope this analysis will prompt a conversation about what systemic drivers of racial/ethnic disparities exist and how a DA's Office might work to address them. In reviewing the results we encourage you to take a systemic perspective, considering the variety of potential drivers noted above.

Analysis Focus

This analysis focused on the outcomes of prosecutorial decision making in the DA's Office from January 2018 through the end of June 2022. We assessed the extent of racial and ethnic disparities across the following four decision points: (1) declination of felony referrals; (2) dispositions (dismissal, deferred judgment, and plea agreement) for felony and misdemeanor offenses; (3) charge reduction from filing to disposition for felony and misdemeanor cases; and (4) imposition of an incarceration sentence (Figure 2, below). We prioritized the areas where the DA's Office has the greatest direct influence and where we had accurate and reliable data.

Figure 2. Decision Points Analyzed

A more comprehensive overview of how a case moves through the system can be found here.

As noted above, for this analysis, we combined the race and ethnicity fields. Due to known challenges in accurately collecting Hispanic ethnicity, we used defendants' last name, linked with census data, to help us better identify Hispanic individuals. See Terms, Methods, and Limitations for more information.

This analysis aims to prompt discussion and raise questions, rather than provide definitive answers. To support this aim, we present results as predicted probabilities: an estimate of the likelihood of the outcome, based on the defendant's race/ethnicity, while taking into account individual and case factors. Information on statistical significance, which is heavily influenced by sample size, can be found in the technical appendix.

Key Takeaways

• Our data shows that Black defendants have a slightly higher dismissal rate than Hispanic or White defendants. Unfortunately, we don't currently capture data to identify the reason why the case was dismissed.

• This research indicates that White defendants have a slightly higher rate of having their case declined than Black or Hispanic defendants. While a case might be declined for a variety of different reasons, our office has not historically captured data on the reason or type of cases where we declined to file charges.

• Our analysis shows that Hispanic defendants are more likely to plead guilty, and more likely to face incarceration than Black and White defendants. At this time, the data does not tell us why that is the case.

Actionability

• Our office will begin tracking broad categories to identify the reason a case is dismissed. We have already begun work with our technical team to build the capacity to capture and analyze this information. This will help us better understand if dismissals are occurring because of issues like lack of witness cooperation, lack of evidence, evidence being suppressed, or some other issue.

• Our office currently doesn't track the reason a case is not filed, nor do we track the charges that law enforcement had recommended. We will implement process changes and technology improvements to allow us to capture both the highest charge recommended by law enforcement, and the reason a reviewing prosecutor declined to file the case so we can better evaluate the reasons behind this data.

• Hispanic defendants may face additional challenges in accessing the justice system due to language or cultural barriers. Our office will engage with community partners and institute internal training to ensure that language barriers are not a barrier to equal justice.

• We will continue to provide and require our prosecutors and staff to participate in training on the disparities reflected in this report as well as implicit bias training.

Felony Declination

The DA's Office decides whether or not to prosecute felony referrals — formal accusations that a specific person has committed a specific crime. In this section, we consider instances where the DA's Office has declined to file charges following a felony referral.

In the 18th Judicial District, 22,896 felony referrals were made for White, Black, and Hispanic individuals from January 1, 2018 to June 30, 2022. The DA's Office declined to file charges for 8.1% (1,857) of these. The Office declined to file charges in 8.5% (1,097) of felony referrals involving White individuals, 8.1% (447) involving Black individuals, and 6.9% (313) involving Hispanic individuals. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Disposition

The rest of the analysis considers felonies and misdemeanors filed between January 1, 2018 to June 30, 2022 for individuals identified as White, Black, or Hispanic. Our sample includes 88,841 cases that were disposed of during that time frame. The racial/ethnic breakdown of defendants in our sample was: 64.3% White (57,146), 18.3% Black (16,263), and 17.4% Hispanic (15,432).

Case outcomes. Of the cases in our sample, 68.5% were resolved through plea agreements, 19.8% through dismissal, 6.8% through deferred judgments, 3.8% through a global plea, and 1.0% through a trial. Systematic data on other outcomes, such as diversion, are not available.

Differences Among Defendants. There were some differences among defendants. Hispanic and Black individuals were younger than White individuals. White individuals were less likely to have a criminal history. Black individuals had slightly higher rates of having cases involving a felony charge (vs. misdemeanor) filed. It took longer to resolve cases for Black individuals.

More on differences among defendants

• Age and gender: In general, Hispanic and Black individuals were younger than White individuals. For example, 38.6% of Hispanic individuals and 36.4% of Black individuals were under the age of 26, compared to 30.5% of White individuals. Black individuals (74.6%) and Hispanic individuals (73.2%) were more likely to be male, compared to White individuals (70.3%).
• Criminal history: White individuals were less likely to have a criminal history. 72.2% of White individuals had no prior convictions, compared to 69.4% of Hispanic individuals and 61.8% of Black individuals. A greater proportion of Black individuals (20.5%) had prior misdemeanor convictions only, compared to Hispanic (18.4%) and White (18.1%) individuals. A greater proportion of Black individuals (17.7%) had prior felony convictions, compared to Hispanic (12.2%) and White (9.7%) individuals.
• Charge level and charge type: Cases involving Black individuals were more likely to include a felony charge (23.6%), compared to those involving Hispanic (18.8%) and White (15.1%) individuals. In looking at charge type, cases involving Black individuals had a higher percentage of person or sex charges. Cases involving White individuals had a higher percentage of DUI charges. Cases involving Hispanic individuals had a higher percentage of traffic charges.
• Case length: It took longer to resolve cases for Black individuals, with a mean of 5.7 months (standard deviation [SD]: 6.3), compared to 4.8 months for Hispanic individuals (SD: 5.7) and 4.3 months for White individuals (SD: 5.2).

Dismissal

A case is dismissed when the criminal charges are terminated, either by the court or by the prosecutor. There can be several reasons why a case is dismissed, including: a lack of evidence or unavailability of a witness. Cases may also be noted as dismissed if they are referred to, or successfully complete, a diversion program.

Total Dismissed. Our sample included 17,619 cases that were dismissed. Dismissals accounted for 19.8% of case dispositions in the sample. Overall, 22.7% (3,688) of cases involving Black individuals, 19.6% (11,212) involving White individuals, and 17.6% (2,719) involving Hispanic individuals were dismissed. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Deferred Judgment

A deferred judgment is an alternative to traditional prosecution that attempts to address individuals' needs and to offer alternatives such as useful public service, probation, payment of restitution, or counseling or treatment related to their case. The defendant enters a temporary guilty plea, and, if they comply with the terms, their guilty plea is withdrawn and the case is dismissed.

Total Deferred. Deferrals accounted for 6.8% of case dispositions in the sample. Overall, a higher share of cases involving White individuals were deferred compared to Black and Hispanic individuals. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Plead Guilty

An individual pleads guilty when they admit a factual basis for the plea and acknowledge guilt for a charge, sometimes in exchange for a more lenient sentence.

Total Plead Guilty: Our sample included 60,483 cases that resulted in a guilty plea. Guilty pleas accounted for 68.5% of case dispositions in the sample. Overall, 73.1% (11,284) of cases involving Hispanic individuals, 68.4% (39,062) of cases involving White individuals, and 64.9% (10,546) of cases involving Black individuals resulted in a guilty plea. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.