Twentieth Judicial District Attorney
Disparities at Points of
Prosecutorial Discretion

Twentieth Judicial District Attorney
Disparities at Points of Prosecutorial Discretion
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 20th 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 mutiracial, 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 20th Judicial District Attorney’s Office between March 2020 and June 2022, we see the following with regard to disproportionality:

With regard to Hispanic individuals:

  • If only considering ethnicity, 14.6% of individuals in Boulder county identify as Hispanic. This compares with 20.6% of individuals referred to the DA’s Office.
  • When considering race and ethnicity together, data suggest that 8.5% of individuals in Boulder county identify primarily as Hispanic (whereas 5.5% identify as Hispanic + multiracial and 0.5% identify as Hispanic + Black, Native American, or Asian; therefore, are represented in those categories). This compares with 20.5% of individuals referred to the DA’s Office.
8.5%
Hispanic Population
20.5%
Hispanic DA Referrals

With regard to Black individuals:

  • When considering race and ethnicity together, 1% of individuals in Boulder county identify as Black. This compares with 5.3% of individuals referred to the DA’s Office.
1%
Black Population
5.3%
Black DA Referrals
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 March 2020 through the end of June 2022. We assessed the extent of racial and ethnic disparities across the following three decision points: (1) dispositions (dismissal, deferred judgment, and plea agreement) for felony and misdemeanor offenses; (2) charge reduction from filing to disposition for felony and misdemeanor cases; and (3) 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

​​This study, which includes data as recent as June 2022, shows positive trends of low disparity. While disproportionality exists in terms of who is referred to the DA’s Office, once cases hit our office, they are largely treated similarly. We will continue to monitor these numbers and continue to take steps as an office and as leaders in the state to improve disparities and disproportionality. The analysis highlighted four data points that we will explore:

The analysis highlighted four data points that we will explore:

  • Black defendants receive deferred judgments at a lower rate and have an increased dismissal rate.
  • Hispanic defendants show smaller rates of charge reductions in plea bargaining and have a higher rate of incarceration.
  • These data points appear consistent with trends at other DA’s Offices, which require us to look at systemic drivers of any disparities.

This data will continue to improve as more of the 22 Judicial Districts in Colorado participate in and are added to the dashboard project. For this analysis, criminal history was run only across the eight participating jurisdictions. Those eight jurisdictions do not include our neighboring counties of Weld and Broomfield. Given that areas in our community, such as Longmont, are split between two counties, we are curious to see how adding more jurisdictions might give us more accurate information on controlling for criminal history. While criminal history can exacerbate racial and ethnic disproportionality and disparities (such as certain neighborhoods being policed more heavily, research that shows Black children are often assumed to be older than they are, etc.), we must consider criminal history in resolving cases as a defendant with no history and one with six prior felonies should be and are differentiated and treated differently. Similarly, in charges like Driving Under the Influence (DUI), the law requires us to treat defendants with history differently than those without a history, such as requiring mandatory jail sentences on a second or subsequent DUI, and by classifying a fourth DUI as a felony.

Actionability
  • In 2023, the DA’s Office will train on systemic drivers of disproportionality and disparities and how our prosecutors should consider these when exercising their discretion.
  • We are increasing adult diversion screening of cases, improving screening processes, and plan to capture diversion data better. We have seen through our juvenile diversion screening process that broader screening of cases results in more equitable outcomes in referrals for diversion.
  • We hope to hire an in-house data analyst and launch a crime strategies unit. Having a data analyst and launching a crime strategies unit will allow us to better monitor trends over time and to continue digging into disparities and disproportionalities.
  • We will continue our efforts to improve data collection and data entry accuracy, such as better collection of race and ethnicity data and entry of reasons for dismissal. Tracking reasons for dismissals will allow us to track trends to understand how and why prosecutors are exercising their discretion.
Disposition

This analysis considers felonies and misdemeanors filed between March 1, 2020 and June 30, 2022 for individuals identified as White, Black, or Hispanic. Our sample includes 11,301 cases that were disposed of during that time frame. The racial/ethnic breakdown of defendants in our sample was: 72.5% White (8,190), 22.2% Hispanic (2,504), and 5.4% Black (607).

Case outcomes. Of the cases in our sample, 55.8% were resolved through plea agreements, 17.0% through dismissal, 14.0% through deferred judgments, 12.4% through a global plea, and 0.8% 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 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
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 1,917 cases that were dismissed. Dismissals accounted for 17.0% of case dispositions in the sample. Overall, 20.3% (123) of cases involving Black individuals, 16.8% (1,376) of cases involving White individuals, and 16.7% (418) of cases involving Hispanic individuals were dismissed. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Outcome: Dismissal (All)

The results account for differences in individual and case characteristics.

16.8%

White Individuals

20.6%

Black Individuals

16.5%

Hispanic Individuals

Predicted Probability of Dismissal: After controlling for defendant age, gender, criminal history, case length, disposition quarter, charge type, and charge class, the predicted probability of a case resulting in a dismissal was 20.6% for Black individuals, 16.8% for White individuals, and 16.5% for Hispanic individuals. These estimates aim to take into account potential differences in individual or case characteristics.

Dismissals and Case Length: The longer a case took, the higher the likelihood of dismissal. Recall that it took longer to resolve cases for Black individuals.

To further explore potential differences across races/ethnicities we zoomed in on dismissals by charge level (misdemeanors) and dismissals by the charge type most frequently dismissed: traffic.

Dismissals by Charge Level: Cases involving a misdemeanor charge were more likely to result in a dismissal (20.2%) than cases involving a felony charge (6.7%). For misdemeanors, after controlling for individual and case characteristics, the predicted probability of dismissal was 24.8% for Black individuals, 20.0%for White individuals and 20.0% Hispanic individuals.

Dismissals for Traffic Offenses: Cases involving traffic charges were more likely to result in a dismissal: 25.4% of these cases were dismissed across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of dismissal was 32.6% for Black individuals, 26.7% for Hispanic individuals, and 24.5% for White individuals.

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. If an individual does not comply with the terms of their deferred judgment, the temporary guilty plea becomes permanent, and they are then sentenced.

Total Deferred. Our sample included 1,586 cases that were deferred. Deferrals accounted for 14.0% of case dispositions in the sample. Overall, 14.2% (1,162) of cases involving White individuals, 14.1% (353) of cases involving Hispanic individuals, and 11.7% (71) of cases involving Black individuals were deferred. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Outcome: Dismissal (All)

The results account for differences in individual and case characteristics.

17.8%

White Individuals

19.3%

Black Individuals

16.3%

Hispanic Individuals

Predicted Probability of Deferral: After controlling for defendant age, gender, criminal history, charge class, charge type, case length, and disposition quarter, the predicted probability of a case resulting in deferral was 14.4% for White individuals, 14.2% for Hispanic individuals, and 9.5% for Black individuals. These estimates aim to take into account potential differences in individual or case characteristics.

To further explore potential differences across races/ethnicities we zoomed in on deferrals by charge level (misdemeanors).

Deferrals by Charge Level: A similar percent of cases involving either a misdemeanor or a felony charge resulted in deferral, 15.4% and 13.6% respectively. For misdemeanors, after controlling for individual and case characteristics, the predicted probability of deferral was 13.9% for Hispanic individuals, 13.8% for White individuals, and 9.7% for Black individuals.

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 6,310 cases that resulted in a guilty plea. Guilty pleas for 55.8% of case dispositions in the sample. Overall, 56.4% (1,411) of cases involving Hispanic individuals, 56.0% (4,584) of cases involving White individuals, and 51.9% (315) 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.

Outcome: Dismissal (All)

The results account for differences in individual and case characteristics.

55.6%

White Individuals

56%

Black Individuals

56.6%

Hispanic Individuals

Predicted Probability of Pleading Guilty. After controlling for defendant age, gender, criminal history, charge class, charge type, case length, and disposition quarter, the predicted probability of a case resulting in a guilty plea was 56.6% for Hispanic individuals, 56.0% for Black individuals, and 55.6% White individuals. These estimates aim to take into account potential differences in individual or case characteristics.

Plead Guilty and Case Length: The longer a case took, the lower the likelihood of a case resulting in a guilty plea. Recall that it took longer to resolve cases for Black individuals.

To further explore potential differences across races/ethnicities we zoomed in on guilty pleas by charge level (misdemeanors and felonies) and guilty pleas for a charge type likely to be plead to: traffic offenses.

Plead Guilty by Charge Level: Cases involving a felony charge were more likely to result in a guilty plea (65.1%) than cases involving a misdemeanor charge (52.9%). For felonies, after controlling for individual and case characteristics, the predicted probability of a case resulting in a guilty plea was 68.2% for Black individuals, 68.1% for Hispanic individuals, and 64.0% for White individuals.

For misdemeanors, after controlling for individual and case characteristics, the predicted probability of a case resulting in a guilty plea was 53.2% for Hispanic individuals, 52.9% for White individuals, and 51.7% for Black individuals.

Plead Guilty for Traffic Offenses: Cases involving traffic charges were likely to result in a guilty plea: 61.3% of these cases resulted in a guilty plea across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of a guilty plea was 62.2% for White individuals, 59.4% for Hispanic individuals, and 56.9% for Black individuals.

Charge Reduction

After a prosecutor files a case, the top charge in the case may change over time as some charges are dismissed or amended between filing and disposition. In this section, we considered reductions in the severity of charges from initial filing to disposition for cases that plead or were found guilty.

Total Charge Reduction: Of the 6,310 cases that resulted in a guilty plea, 34.3% had no charge reduction, 23.5% had a within charge level reduction (either from a more severe felony to a less severe felony, or from a more severe misdemeanor to a less severe misdemeanor), and 42.2% were reduced across charge levels (from a misdemeanor to a petty offense/infraction or from a felony to misdemeanor or petty offense/infraction). Overall, the breakdown across racial/ethnic groups was:

  • No reduction: 34.9% White (1,599), 34.2% Hispanic (482), and 27.3% Black (86).
  • Within charge level reduction: 27.1% Hispanic (383), 24.1% Black (76), and 22.3% White (1,022).
  • Across charge level reduction: 48.6% Black (153), 42.8% White (1,963), and 38.7% Hispanic (546).
These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Outcome: No Charge Reduction (All)

The results account for differences in individual and case characteristics.

34.1%

White Individuals

32.5%

Black Individuals

35.9%

Hispanic Individuals

Predicted Probability of Charge Reduction: After controlling for defendant age, gender, criminal history, charge class, charge type, case length, and whether the referred charge was reduced at filing, the predicted probability of no charge reduction was 35.9% for Hispanic individuals, 34.1% for White individuals, and 32.5% for Black individuals.

The predicted probability of a within charge level reduction was 26% for Hispanic individuals, 22.8% for White individuals, and 20.7% for Black individuals.

The predicted probability of across charge level reduction was 46.8% for Black individuals, 43.1% for White individuals, and 38.1% for Hispanic individuals. These estimates aim to take into account potential differences in individual or case characteristics.

Sentenced to Incarceration

After an individual is found guilty of a crime, a judge imposes a sentence which may include fees, fines, community service, probation, jail, community corrections, or prison. Prosecutors and defense attorneys can negotiate plea bargains or make sentencing recommendations to the judge, who decides on the ultimate sentence. Incarceration includes any jail sentence (with or without probation), community corrections, or prison.

Total Incarceration: Of the 6,310 cases that resulted in a guilty plea, 18.8% had an incarcerative sentence. Overall, 21.9% (69) of cases involving Black individuals, 21.6% (305) of cases involving Hispanic individuals, and 17.8% (815) of cases involving White individuals resulted in an incarcerative sentence. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

No Charge Reduction

The results account for differences in individual and case characteristics.

18%

White Individuals

18.8%

Black Individuals

21.4%

Hispanic Individuals

Predicted Probability of Incarceration: After controlling for defendant age, gender, criminal history, charge class, charge type, case length, and disposition quarter, the predicted probability of incarceration was 21.4% for Hispanic individuals, 18.8% for Black individuals, and 18.0% for White individuals. These estimates aim to take into account potential differences in individual or case characteristics.

Conclusion

The fair and just treatment of all individuals at each stage of the criminal justice process is of significant importance. 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. We welcome your reflections on the findings and potential next steps.