Fifth Judicial District Attorney
Disparities at Points of
Prosecutorial Discretion

Denver 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 5th Judicial 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 5th 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, 24.6% of individuals in Clear Creek, Summit, Eagle, and Lake counties identify as Hispanic. This compares with 21.0% of individuals referred to the DA’s Office.
  • When considering race and ethnicity together, data suggests that 15% of individuals in Clear Creek, Summit, Eagle, and Lake counties identify primarily as Hispanic (whereas 9.0% identify as Hispanic + multiracial and 0.8% identify as Hispanic + Black, Native American, or Asian; therefore, are represented in those categories). This compares with 20.9% of individuals referred to the DA’s Office.
15%
Hispanic Population
20.9%
Hispanic DA Referrals

With regard to Black individuals:

  • When considering race and ethnicity together, 1% of individuals in Clear Creek, Summit, Eagle, and Lake counties identify as Black. This compares with 4.2% of individuals referred to the DA’s Office.
1%
Black Population
4.2%
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 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 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
  • When controlling for individual and case characteristics, we were pleased to see similarities in outcomes across races/ethnicities for several points of prosecutorial discretion, including: felony declination, dismissal, and deferred judgment.
  • Hispanic individuals are more likely to have a case that results in a plea. This could be due to a variety of factors such as language barriers, income levels resulting in different access to resources, cultural differences, and overall access to resources within the criminal justice process.
  • Hispanic individuals had a higher predicted probability of incarceration than White individuals. This is most apparent in the predicted probability of incarceration for cases including a felony charge (12.4% higher for Hispanic individuals) and for cases including a property-related charge (9.3% higher for Hispanic individuals).
Actionability
  • To better understand what may be driving these results, we plan to discuss results with relevant community groups, namely Mountain Dreamers and the Law Enforcement Immigrant Advisory group. We are looking to engage in an open dialogue with these community partners.
  • To further understand differences in incarceration rates, our Office plans to delve deeper into: the types of plea offers made by prosecutors; the types of crimes that defendants are being sentenced to incarceration; whether a defendant is pro se, has private counsel, or is represented by a public defender; what recommendations are being made from the probation office are regarding the type and length of sentences.
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 5th Judicial District, 3,758 felony referrals were made for White, Black, and Hispanic individuals between January 1, 2018 and June 30, 2022. The DA’s Office declined to file charges for 5.0% (187) of these. The Office declined to file charges in 6.2% (55) of felony referrals involving Hispanic individuals, 4.6% (124) involving White individuals, and 4.2% (8) involving Black individuals. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Outcome: Felony Declination

The results account for differences in individual characteristics.

4.8%

White Individuals

N/A

Black Individuals

5.8%

Hispanic Individuals

Predicted Probability of Felony Declination. After controlling for defendant gender, age, and criminal history, the predicted probability of having a felony referral declination was 5.8% for Hispanic individuals and 4.8% for White individuals. These estimates aim to take into account potential differences in individual characteristics.

  • Due to a low number of felony referrals declined for Black defendants, we have chosen not to include this group in the multivariable analyses.
  • Since charge information was not available for declined cases, we were not able to consider charge type or charge severity.

Disposition

The rest of the report considers felonies and misdemeanors filed between January 1, 2018 to June 30, 2022 for individuals identified as White, Black, or Hispanic. Our sample includes 13,967 cases that were disposed of during that time frame. The racial/ethnic breakdown of defendants in our sample was: 74.4% White (10,392), 22.1% Hispanic (3,088), and 3.5% Black (487).

Case outcomes. Of the cases in our sample, 68.4% were resolved through plea agreements, 13.9% through dismissal, 11.0% through deferred judgments, 3.9% through a global plea, and 2.7% through a trial. Data on other outcomes, such as diversion, are not available.

Differences Among Defendants. Hispanic individuals were younger than Black and White individuals. Hispanic individuals were more likely to have a criminal history. Black individuals had higher rates of having a felony (vs. misdemeanor) case 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 1,938 cases that were dismissed. Dismissals accounted for 13.9% of case dispositions in the sample. Overall, 14.4% (1,496) of cases involving White individuals, 14.4% (70) of cases involving Black individuals, and 12.1% (372) 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.

14.3%

White Individuals

15.1%

Black Individuals

12.1%

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 dismissal was 15.1% for Black individuals, 14.3% for White individuals, and 12.1% for Hispanic 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 dismissals by charge level (misdemeanors) and dismissals by the charge type most frequently dismissed: person or sex offenses.

Dismissals by Charge Level. Cases involving a misdemeanor charge were more likely to result in a dismissal (15.0%) than cases involving a felony charge (9.0%). For misdemeanors, after controlling for individual and case characteristics, The predicted probability of dismissal was 15.8% for Black individuals, 15.5% for White individuals, and 13.3% for Hispanic individuals.

Dismissals for Person or Sex Offenses. Cases involving person or sex charges were more likely to result in a dismissal: 20.9% of these cases were dismissed across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of dismissal was 21.9% for White individuals and 16.7% for Hispanic individuals. Due to a low number of person or sex dismissals for Black defendants, we chose not to include this group in the multivariable analyses.

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. Our sample included 1,540 cases that were deferred. Deferrals accounted for 11.0% of case dispositions in the sample. Overall, 11.6% (1,206) of cases involving White individuals, 9.6% (297) of cases involving Hispanic individuals, and 7.6% (37) 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 11.4% for White individuals and 10.0% for Hispanic individuals. Due to a low number of deferrals for Black defendants, we have chosen not to include this group in this multivariable analyses. 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 for charge level (felonies) and deferrals by the charge type most frequently deferred (person or sex offenses).

Deferrals by Charge Level: Cases involving a felony charge were more likely to result in a deferral (19.1%) than cases involving a misdemeanor charge (9.2%). For felonies, after controlling for individual and case characteristics, the predicted probability of deferral was 20.0% for White individuals and 17.0% for Hispanic individuals. A similar pattern was observed for misdemeanors.

Deferrals for Person or Sex Offenses: Cases involving person or sex charges were likely to result in a deferral: 24.1% of these cases were deferred across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of deferral was 24.2% for White individuals and 24.0% for Hispanic 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 9,559 cases that resulted in a guilty plea. Guilty pleas accounted for 68.4% of case dispositions in the sample. Overall, 71.0% (2,193) of cases involving Hispanic individuals, 70.2% (342) of cases involving Black individuals, and 67.6% (7,024) of cases involving White 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.

67.8%

White Individuals

68.6%

Black Individuals

70.7%

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 70.7% for Hispanic individuals, 68.8% for Black individuals, and 67.8% for White 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 guilty pleas by charge level (misdemeanors and felonies) and guilty pleas by the charge types most frequently plead to: traffic offenses.

Plead Guilty by Charge Level: A similar percent of cases involving either a misdemeanor or felony charge resulted in a guilty plea, 68.8% and 66.8% respectively. For felonies, after controlling for individual and case characteristics, the predicted probabilities of a case resulting in a guilty plea was 71.3% for Hispanic individuals, 68.3% for Black individuals, and 65.4% for White individuals. A similar pattern was seen for misdemeanor charges.

Plead Guilty for Traffic Offenses: Cases involving traffic charges were more likely to result in a guilty plea: 80.0% of these cases resulted in a guilty plea across races/ethnicities. After controlling for individual and case characteristics, the predicted probabilities of a guilty plea was 80.5% for cases involving Black individuals, 80.1% for cases involving Hispanic individuals, and 80.0% for cases involving White 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 resulted in a guilty plea.

Total Charge Reduction. Of the 9,559 cases that resulted in a guilty plea, 39.2% had no charge reduction, 17.9% 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 42.9% 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: 39.9% White (2,801), 38.1% HIspanic (835), and 31.0% Black (106).
  • Within charge level reduction: 21.1% Black (72), 20.1% Hispanic (440), and 17.1% White (1,202).
  • Across charge level reduction: 48.0% Black (164), 43.0% White (3,021), and 41.9% Hispanic (918).
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.

38.6%

White Individuals

38%

Black Individuals

41.1%

Hispanic Individuals

Predicted Probability of Charge Reduction: After controlling for defendant age, gender, criminal history, charge class, charge type, case length, disposition quarter, and whether the charge was reduced at filing, the predicted probability of no charge reduction was 41.1% for Hispanic individuals, 38.6% for White individuals, and 38.0% for Black individuals.

The predicted probability for a within charge level reduction was 19.4% for Hispanic individuals, 18.5% for Black individuals, and 17.3% for White individuals.

The predicted probability of across charge level reduction was 44.1% for White individuals, 43.5% for Black individuals, and 39.6% 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 9,559 cases that resulted in a guilty plea, 16.4% had an incarcerative sentence. Overall, 17.9% (392) of cases involving Hispanic individuals, 16.0% (1,127) of cases involving White individuals, and 13.7% (47) involving Black 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.

15.8%

White Individuals

N/A

Black Individuals

18.9%

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 an incarcerative sentence was 18.9% for Hispanic individuals and 15.8% for White individuals. Due to a low number of cases that plead guilty and were sentenced to incarceration involving Black defendants, we have chosen not to include this group in the multivariable analyses. 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 incarceration by charge level and incarceration by the charge type most frequently incarcerated: property offenses.

Incarceration by Charge Level. Cases involving a conviction for a felony charge were more likely to result in an incarcerative sentence (44.4%) than cases involving a conviction for a misdemeanor charge (10.2%). For felonies, after controlling for individual and case characteristics, the predicted probability of an incarcerative sentence was 53.7% for Hispanic individuals and 41.3% for White individuals.

Incarceration for Property Offenses. Cases involving property charges were more likely to result in an incarcerative sentence: 31.8% of these cases resulted in incarceration across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of an incarcerative sentence was 38.9% for Hispanic individuals and 29.6% for White individuals.

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.