Sixth 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 6th 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 Native American 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 6th 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, 27.9% of individuals in Denver county identify as Hispanic. This compares with 23.3% of individuals referred to the DA’s Office. With regard to Hispanic individuals If only considering ethnicity, 13.3% of individuals in La Plata, San Juan, and Archuleta counties identify as Hispanic. This compares with 14.8% of individuals referred to the DA’s Office.
  • When considering race and ethnicity together, data suggests that 7% of individuals in La Plata, San Juan, and Archuleta counties identify primarily as Hispanic (whereas 5.1% identify as Hispanic + multiracial and 0.9% identify as Hispanic + Black, Native American, or Asian; therefore, are represented in those categories). This compares with 14.7% of individuals referred to the DA’s office.
7%
Hispanic Population
14.7%
Hispanic DA Referrals

With regard to Native American individuals:

  • When considering race and ethnicity together, 5% of individuals in La Plata, San Juan, and Archuleta counties identify as Native American. This compares with 11.5% of individuals referred to the DA’s Office.
5%
Native American Population
11.5%
Native American 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, Native American 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
  • Deferred Judgments: While the predicted probability of deferred judgments as an overall category appear to be distributed fairly evenly among White individuals (24.7%), Hispanic individuals (22.6%), and Native American individuals (21.2%), we see a much higher level of variation between White and Native American individuals for DUIs (29.3% vs. 22.4%) and Sex Offenses (27% vs. 20.9%).
  • Pleading Guilty: Regarding the predicted probability of defendants pleading guilty to the top charge, Native American individuals (44.2%) are more likely to do so than White individuals (37.5%). We see the same trend when examining the predicted probability of pleading guilty to felony level charges, (Native American individuals -62% vs. White individuals-54.6%), and to DUIs (Native Americans individuals-68.7% vs. White individuals-60.6%).
  • Sentences to Incarceration: We are seeing a clear disparity regarding Hispanic and Native American individuals being more likely than White individuals to receive a sentence to incarceration. For felonies, the predicted probability of incarceration is 57.3% for Hispanic individuals. The predicted probability is 7-8% lower for White individuals (50.0%) and Native American individuals (48.8%). As to misdemeanors, the disparity affects Native American individuals, with the predicted probability of incarceration at 25.9%, while it is lower for Hispanic (21.6%) and White (18.4%) individuals.
Actionability
  • In regards to deferred judgments, we intend to re-examine the eligibility criteria for those who receive deferred judgments for DUIs and sex offenses. Having more clear guidelines will likely reduce the disparity we see in the outcome of these crimes.
  • The disparity in Native American individuals pleading guilty can be addressed by ensuring these cases receive full process available under the law, encouraging these defendants to seek counsel, and making sure that the offers in these situations are the same that a person with counsel would receive.
  • As to the increased likelihood that Hispanic and Native American individuals are sentenced to incarceration, our office will work to offer a broader range of possible sentences to the court and increase the breadth of information we consider prior to making our sentencing recommendations to the court.
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 6th Judicial District, 3,162 felony referrals were made for White, Hispanic, and Native American individuals between January 1, 2018 to June 30, 2022. The DA’s Office declined to file charges for 5.5% (173) of these. The Office declined to file charges in 6.6% (142) of felony referrals involving White individuals, 4.7% (25) involving Hispanic individuals, and 1.3% (6) involving Native American individuals. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.

Predicted Probability of Felony Declination Due to a low number of felony cases declined, we have chosen not to include this prosecutorial decision point in the multivariable analyses.

Disposition

The rest of the report considers felonies and misdemeanors filed between January 1, 2018 and June 30, 2022 for individuals identified as White, Hispanic, or Native American. Our sample includes 11,057 cases that were disposed of during that time frame. The racial/ethnic breakdown of defendants in our sample was: 73.1% White (8,083), 14.9% Hispanic (1,650), and 12.0% Native American (1,324).

Case outcomes. Of the cases in our sample, 38.6% were resolved through plea agreements, 24.5% through dismissal, 23.9% through deferred judgments, 11.6% through a global plea, and 1.3% through a trial. Data on other outcomes, such as diversion, are not available.

Differences Among Defendants. Hispanic individuals and Native American individuals were younger than White individuals. Hispanic individuals were more likely to have a criminal history. It took slightly longer to resolve cases for Hispanic 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 2,713 cases that were dismissed. Dismissals accounted for 24.5% of case dispositions in the sample. Overall, 25.3% (2,044) of cases involving White individuals, 24.4% (403) of cases involving Hispanic individuals, and 20.1% (266) involving Native American individuals were dismissed. These represent raw rates: any differences we see could be due to differences in individual or case characteristics.characteristics.

Outcome: Dismissal (All)

The results account for differences in individual and case characteristics.

24.9%

White Individuals

22.8%

Native American Individuals

24.2%

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 24.9% for White individuals, 24.2% for Hispanic individuals, and 22.8% for Native American 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 types most frequently dismissed (traffic and person or sex offenses).

Dismissals by Charge Level. Cases involving a misdemeanor charge were more likely to result in a dismissal (27.3%) than cases involving a felony charge (12.6%). For misdemeanors, after controlling for individual and case characteristics, the predicted probability of dismissal was 27.8% for White individuals, 26.9% for Hispanic individuals, and 24.2% for Native American individuals.

Dismissals for Traffic Offenses. Cases involving traffic charges were more likely to result in a dismissal: 35.3% of these cases were dismissed across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of dismissal was 35.9% for Hispanic individuals, 35.2% for White individuals, and 34.3% for Native American individuals.

Dismissals for Person or Sex Offenses. Cases involving person or sex charges were likely to result in a dismissal: 24.7% of these cases were dismissed across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of dismissal was 25.6% for White individuals, 23.4% for Hispanic individuals, and 22.0% for Native American 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.

Total Deferred. Our sample included 2,646 cases that were deferred. Deferrals accounted for 23.9% of case dispositions in the sample. Overall, 24.5% (1,977) of cases involving White individuals, 21.8% (359) of cases involving Hispanic individuals, and 23.4% (310) of cases involving Native American 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%

Native American 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 24.7% for White individuals, 22.6% for Hispanic individuals, and 21.2% for Native American individuals. These estimates aim to take into account potential differences in individual or case characteristics.

To further explore potential differences across race/ethnicities we zoomed in on deferrals by charge level (misdemeanors) and charge type most frequently deferred (Driving Under the Influence (DUIs) and person or sex offenses).

Deferrals by Charge Level: Cases involving a misdemeanor charge were more likely to result in a deferral (25.2%) than cases involving a felony charge (18.5%). For misdemeanors, after controlling for individual and case characteristics, the predicted probability of deferral was 25.8% for White individuals, 24.2% for Hispanic individuals, and 22.7% for Native American individuals.

Cases involving a DUI charge were likely to result in a deferral: 28.5% of these cases were deferred across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of deferrals was 31.4% for Hispanic individuals, 29.3% for White individuals, and 22.4% for Native American individuals.

Deferrals for Person or Sex Offenses: Cases involving a person or sex charges were likely to result in a deferral: 25.7% of these cases were deferred across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of deferral was 27.0% for White individuals, 26.4% for Hispanic individuals, and 20.9% for Native American 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 4,271 cases that resulted in a guilty plea. Guilty pleas accounted for 38.6% of case dispositions in the sample. Overall, 44.3% (587) of cases involving Native American individuals, 39.0% (644) of cases involving Hispanic individuals, and 37.6% (3,040) 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.

37.5%

White Individuals

44.2%

Native American Individuals

39.8%

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 44.2% for Native American individuals, 39.8% for Hispanic individuals, and 37.5% 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 type most frequently plead to: Driving Under the Influence (DUIs).

Plead Guilty by Charge Level: Cases involving a felony charge were more likely to result in a guilty plea (56.3%) than cases involving a misdemeanor charge (34.6%). For felonies, after controlling for individual and case characteristics, the predicted probability of a case resulting in a guilty plea was 62.0% for Native American individuals, 58.8% for Hispanic individuals, and 54.6% for White individuals. A similar pattern was seen for misdemeanor charges.

Plead Guilty for Driving Under the Influence (DUI) Offenses. Cases involving DUI charges were more likely to result in a guilty plea: 61.6% of these cases resulted in a guilty plea across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of a case resulting in a guilty plea was 68.7% for cases involving Native American individuals, 60.6% for cases involving White individuals, and 59.1% for cases involving Hispanic 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 4,271 cases that resulted in a guilty plea, 52.2% had no charge reduction, 19.6% 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 28.2% 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: 53.0% White (1,611), 52.1% Native American (306), and 48.5% Hispanic (312).
  • Within charge level reduction: 23.7% Native American (139), 22.5% Hispanic (145), and 18.3% White (555).
  • Across charge level reduction: 29.0% Hispanic (187), 28.8% White (874), and 24.2% Native American (142).
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.

52.4%

White Individuals

51.2%

Native American Individuals

52.5%

Hispanic Individuals

Predicted Probability for 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 52.5% for Hispanic individuals, 52.4% for White individuals, and 51.2% for Native American individuals.

The predicted probability for within charge level reduction was 20.0% for Native American individuals, 19.6% for White individuals, and 19.5% for Hispanic individuals.

The predicted probability of across charge level reduction was 28.9% for Native American individuals 28.1% for White, and 28.0% 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 4,271 cases that resulted in a guilty plea, 27.8% had an incarcerative sentence. Overall, 34.9% (205) of cases involving Native American individuals, 30.0% (193) of cases involving Hispanic individuals, and 25.9% (788) 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.

27%

White Individuals

32.2%

Native American Individuals

31.3%

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 32.2% for Native American individuals, 31.3% for Hispanic individuals, and 27.0% 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 incarceration by charge level (felonies and misdemeanors).

Incarceration by Charge Level. Cases involving a conviction for a felony charge were more likely to result in an incarcerative sentence (50.0%) than cases involving a conviction for a misdemeanor charge (19.5%). For felonies, after controlling for individual and case characteristics, the predicted probability of an incarcerative sentence was 57.3% for Hispanic individuals, 50.0% for White individuals, and 48.8% for Native American individuals.

For misdemeanors, after controlling for individual and case characteristics, the predicted probability of incarceration was 25.9% for Native American individuals, 21.6% for Hispanic individuals, and 18.4% 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.