Disparities at Points of Prosecutorial Discretion

A collaboration of the Colorado Evaluation and Action Lab, the Denver 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 Denver District Attorney's (DA) Office data dashboard, released to provide a diagnostic tool to identify what is happening, contextualizes this work. 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 Denver District Attorney's Office between January 2017 and June 2022, we see the following with regard to disproportionality:

With regard to Hispanic individuals:

• If only considering ethnicity, 27.9% of individuals in Denver county identify as Hispanic. This compares with 23.3% of individuals referred to the DA's Office.
• When considering race and ethnicity together, data suggest that 17% of individuals in Denver county identify primarily as Hispanic (whereas 9.3% identify as Hispanic + multiracial and 1.5% identify as Hispanic + Black, Native American, or Asian; therefore, are represented in those categories). This compares with 23.3% of individuals referred to the DA's Office.

With regard to Black individuals:

• When considering race and ethnicity together, 9% of individuals in Denver county identify as Black. This compares with 24.6% 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 2017 through the end of June 2022. We assessed the extent of racial and ethnic disparities across the following two decision points: (1) dispositions (dismissal, deferred judgment, and plead/found guilty) for felony and misdemeanor offenses; and (2) charge reduction from filing to disposition for felony and misdemeanor cases. We prioritized the areas where prosecutors have 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

• The most important takeaway of this study is that more information and more refined case management tools are required to diagnose whether the disparities can be attributed to race or ethnicity.
• Dismissals: Dismissals accounted for almost 20% of case dispositions during the study period. Cases that are filed and later dismissed may represent lost time and effort by Denver DA team members as well as courtroom staff. Exposure to the criminal justice system may lead to long term and unnecessary negative consequences for charged individuals whose cases are later dismissed. Finally, victims who have cases filed and later dismissed may lose trust in the criminal justice system resulting in disillusionment and reluctance to cooperate in future prosecutions. There was a slightly higher rate of dismissal for Black individuals and a slightly lower rate of dismissal for Hispanic individuals.
• Dismissals for Person or Sex Offenses: Person or sex charges were dismissed at a higher rate than other charges. When looking at these specific charges, the gap of predicted probability for dismissal widens: cases involving person or sex charges for Hispanic individuals were less likely to result in dismissal.
• Deferred Judgments: While the predicted probabilities of receiving a deferral were similar across races/ethnicities, overall our Office offers a small percentage of individuals deferred judgements (3.1%).

Actionability

• Disproportionality: Our Office should explore how it can play a role in addressing the systemic drivers that result in a disproportionate number of racial and ethnic minorities entering the criminal justice system in Denver. Such efforts could include publicly advocating for policies that seek to address inequities in access to education and public health.
• Dismissals: In order to address dismissals – including the overall rate of dismissals, disparities in dismissal rates, and the rate of dismissals of person and sex offenses – we must first understand why cases are dismissed. To do so the Office should utilize our case management system to document the reason for a dismissal. Through consistent and disciplined use of these dismissal codes a later review of dismissal rates may reveal why different types of cases are being dismissed and what may be done to address the slightly higher rate of dismissal for Black individuals and slightly lower rate of dismissals for Hispanic individuals.
• Dismissals: An important part of addressing dismissals is avoiding filing unprovable charges in the first place. As a result of past data analyses our Office created a stand-alone Intake Unit to promote more consistent and accurate filing decisions. Filing deputies should utilize our case management system to document reasons for refusals. A later review of that data may reveal why cases are refused and what, if anything, our Office can do to reduce the number of cases that are later dismissed.
• Deferred Judgments: To address differences in rates of deferred judgments across different races and ethnicities, the Denver DAs Office should consider methods of investigation that might reveal why races receive different rates of deferred judgments.

Disposition

This analysis considers felonies and misdemeanors filed between January 1, 2017 and June 30, 2022 for individuals identified as White, Black, or Hispanic. Our sample includes 70,366 cases that were disposed of during that time frame. The racial/ethnic breakdown of defendants in our sample was: 50.7% White (35,677), 25.2% Black (17,728), and 24.1% Hispanic (16,961).

Case outcomes. Of the cases in our sample, 70.0% were resolved through plea agreements or were found guilty (due to data limitations, these cannot be distinguished), 19.0% through dismissal, 3.1% through deferred judgments, 3.3% through a global plea, and 0.3% were acquitted at 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. Cases involving Black individuals were more likely to include a felony charge (vs. misdemeanor). It took longer to resolve cases for Black and Hispanic individuals.

More on differences among defendants

• Age and gender: In general, Hispanic and Black individuals were younger than White individuals. For example, 33.0% of Hispanic individuals and 29.6% of Black individuals were under the age 26, compared to 25.5% of White. Black individuals were more likely to be male (79.3%), compared to White (74.9%) and Hispanic (75.8%) individuals.
• Criminal history: White individuals were less likely to have a criminal history: 61.5% of White individuals had no prior convictions, compared to 49.6% of Hispanic individuals and 44.3% of Black individuals. A greater proportion of Black individuals (26.3%) had prior felony convictions, compared to Hispanic (21.8%) and White (17.1%) individuals.
• Charge level and charge type: Cases involving Black individuals were more likely to include a felony charge (45.7%), compared to those involving White (41.3%) and Hispanic (40.2%) 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 drug charges. Cases involving Hispanic individuals had a higher percentage of traffic charges.
• Case Length: It took longer to resolve cases involving Black and Hispanic individuals. Cases involving Black individuals took a mean of 8.8 months to resolve (standard deviation [SD]: 8.7), cases with Hispanic individuals took 8.5 months to resolve (SD: 8.5), and cases with White individuals took 7.7 months to resolve (SD: 7.9).

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 13,387 cases that were dismissed. Dismissals accounted for 19.0% of case dispositions in the sample. Overall, 22.1% (3,922) of cases involving Black individuals, 18.7% (6,667) of cases involving White, and 16.5% (2,798) 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. 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 2,198 cases that were deferred. Deferrals accounted for a small percent of case dispositions in the sample: 3.1%. Overall, 3.2% (1,145) of cases involving White individuals, 3.0% (524) of cases involving Black individuals, and 3.1% (529) of cases involving Hispanic individuals were deferred. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Plead or Found 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. A defendant is found guilty when found guilty at trial of any charge.

Total Plead or Found Guilty. Our sample included 49,278 cases that resulted in a guilty plea or were found guilty (guilty outcome). Guilty outcomes accounted for 70.0% of case dispositions in the sample. Overall, 73.0% (12,374) of cases involving Hispanic individuals, 71.1% (25,364) of cases involving White individuals, and 65.1% (11,540) of cases involving Black individuals resulted in a guilty outcome. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

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 49,278 cases that resulted in a guilty plea or were found guilty, 39.7% had no charge reduction, 37.3% 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 23.1% 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: 41.5% White (10,513), 40.7% Hispanic (5,034), and 34.7% Black (4,005).
• Within charge level reduction: 42.0% Black (4,842), 38.2% Hispanic (4,732), and 34.7% White (8,790).
• Across charge level reduction: 23.9% White (6,061), 23.3% Black (2,693), and 21.1% Hispanic (2,608).

These represent raw rates: any differences we see could be due to differences in individual or case characteristics.