Seventh Judicial District Attorney
Disparities at Points of
Prosecutorial Discretion

Seventh 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 7th 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 Hispanic 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 7th Judicial District Attorney’s Office between January 2019 and June 2022, we see the following with regard to disproportionality:

With regard to Hispanic individuals:

  • If only considering ethnicity, 15.5% of individuals in Montrose, San Miguel, Ouray, Delta, Hinsdale, and Gunnison counties identify as Hispanic. This compares with 21.7% of individuals referred to the DA’s Office.
  • When considering race and ethnicity together, data suggests that 10% of individuals in Montrose, San Miguel, Ouray, Delta, Hinsdale, and Gunnison counties identify primarily as Hispanic (whereas 4.8% identify as Hispanic + multiracial and 0.7% identify as Hispanic + Black, Native American, or Asian; therefore, are represented in those categories). This compares with 18.8% of individuals referred to the DA’s Office.
10%
Hispanic Population
18.8%
Hispanic 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, 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 2019 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 offenses; 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
    While our office has minimal disparities at certain points of prosecutorial discretion (such as felony no file and charge reduction decisions), there are opportunities to improve in regards to dispositions and sentencing recommendations.
  • Felony declination rates were similar between our Hispanic and White citizens.
  • Charge reduction rates were similar between our Hispanic and White citizens.
  • Case dismissal rates were similar between our Hispanic and White citizens.
  • White citizens’ predicted probability of receiving a deferred judgment was 2.3% higher than that of our Hispanic citizens.
  • Hispanic citizens’ predicted probability of taking a plea was 4.1% higher than that of our White citizens. The largest disparity occurred for felony charges, with the predicted probability of our Hispanic citizens 10% higher – more likely to take a plea disposition – than our White citizens.
  • Hispanic citizens’ predicted probability of receiving an incarceration as part of their sentence was 2.3% higher than that of our White citizens. The largest disparity occurred for felony charges, with our Hispanic citizens’ predicted probability 6.8% higher than that of White citizens to receive incarceration as part of their sentence. For misdemeanors, incarceration rates were similar between our Hispanic and White citizens.
Actionability
  • In December of 2022, the Racial/Ethnic Disparities analysis contained in this report was shared with all members of our staff to generate ideas for improvement. We discussed how cultural differences have a significant impact on our Hispanic citizens’ decision to take plea agreements. These differences include, language barriers, immigration consequences, deferral to authority, and a desire to resolve a case quickly without additional involvement with the criminal justice system.
  • Immigration is a complex area of law to which criminal attorneys, including both prosecutors and defense counsel, have misconceptions. We will host an all-staff training on immigration law basics in order to understand how it influences and impacts these disparities, particularly in deferral and incarceration rates.
  • Language barriers, deferral to authority, and the desire to resolve cases quickly poses a significant cultural difference between our Hispanic and White citizens. This can cause implicit bias in the judicial system as prosecutors are motivated to resolve cases quickly. We will host an all-staff training on Hispanic cultural awareness in order to learn how to recognize when cultural differences are influencing our decisions and how we can adjust our thinking to minimize disparities in deferrals and incarceration rates.
  • Generally speaking, our employees identified the necessity of slowing the proceedings down when we believe that cultural differences are expediting the case to the detriment of just and equitable outcomes. This includes, expeditiously making plea offers and minimizing the disparity in pre-plea incarceration between similarly situated persons.
  • The Prosecutorial Dashboard Project has given us unprecedented access to relevant and timely data regarding racial and ethnic disparities. This allows us to continue monitoring whether our efforts are successful in minimizing these and other disparities, identify whether new disparities arise, to take appropriate and timely action, and to set new goals and benchmarks to address inequities.
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 7th Judicial District, 3,970 felony referrals were made for White and Hispanic individuals between January 1, 2019 and June 30, 2022. The DA’s Office declined to file charges for 18.0% of these (716). The Office declined to file charges in 18.5% (572) of felony referrals involving White individuals and 16.4% (144) involving Hispanic individuals. These represent raw rates: any differences we see could be due to differences in individuals or case characteristics.

Outcome: Felony Declination

The results account for differences in individual characteristics.

16.1%

White Individuals

14.6%

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 16.1% for White individuals and 14.6% for Hispanic individuals. These estimates aim to take into account potential differences in individual or case characteristics. 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, 2019 and June 30, 2022 for individuals identified as White or Hispanic. Our sample includes 12,535 cases that were disposed of during that time frame. The racial/ethnic breakdown of defendants in our sample was: 79.7% White (9,994) and 20.3% Hispanic (2,541).

Case outcomes. Of the cases in our sample, 58.8% were resolved through plea agreements, 23.1% through dismissal, 8.0% through deferred judgments, 9.0% through a global plea, and 1.1% through a trial. Systematic data on other outcomes, such as diversion, are not available.

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

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 2,900 cases that were dismissed. Dismissals accounted for 23.1% of case dispositions in the sample. Overall, 23.5% (2,352) of cases involving White individuals and 21.6% (548) 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.

23.2%

White Individuals

22.8%

Hispanic Individuals

After controlling for defendant age, gender, criminal history, case length, disposition quarter, charge class, and charge type, the predicted probability of a case resulting in dismissal was 23.2% for White individuals and 22.8% 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 (misdemeanor and felony) and dismissals by the charges and charge types most frequently dismissed.

Dismissals by Charge Level: Cases involving a misdemeanor charge were more likely to result in a dismissal (25.4%) than cases involving a felony charge (12.9%). For misdemeanors, after controlling for individual and case characteristics, the predicted probability of dismissal was 25.5% for White individuals and 25.4% for Hispanic individuals. A similar pattern was seen for felony charges.

Dismissals by Charge Type: Cases involving person or sex charges were more likely to result in a dismissal: 28.1% of these cases were dismissed across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of dismissal was 28.8% for White individuals and 27.6% for Hispanic individuals. A similar pattern was seen for cases involving traffic charges.

Dismissals by Top Charge: Cases involving the most frequent charge, “Driving Under Restraint/ Revoked License”, were likely to result in a dismissal: 25.1% of these cases were dismissed across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of dismissal was 25.8% for White individuals and 22.6% for Hispanic individuals.

For cases involving the second most frequent charge, “Driving without Insurance”, the predicted probability of dismissal was 39.2% for White individuals and 34.2% for Hispanic 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 1,000 cases that were deferred. Deferrals accounted for 8.0% of case dispositions in the sample. Overall, 8.6% (857) of cases involving White individuals and 5.6% (143) 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.

Outcome: Dismissal (All)

The results account for differences in individual and case characteristics.

17.8%

White 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 8.4% for White individuals and 6.1% 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 deferrals by charge level (misdemeanors) and by charge type.

Deferrals by Charge Level: Cases involving a felony charge were more likely to result in a deferral (12.5%) than cases involving a misdemeanor charge (7.0%). However, since there are more misdemeanor cases, a greater number of misdemeanors were deferred. For misdemeanors, after controlling for individual and case characteristics, the predicted probability of deferral was 7.2% for White individuals and 5.7% for Hispanic individuals.

Deferrals by Charge Type: Cases involving person or sex charges were likely to result in a deferral: 13.3% of these cases were deferred across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of deferral was 13.9% for White individuals and 11.0% 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 7,372 cases that resulted in a guilty plea. Guilty pleas accounted for 58.8% of case dispositions in the sample. Overall, 62.8% (1,595) of cases involving Hispanic individuals and 57.8% (5,777) 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.

58%

White Individuals

62.1%

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 62.1% for Hispanic individuals and 58.0% 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 guilty pleas by charge level (misdemeanors and felonies) and guilty pleas by the charge types most frequently plead to.

Plead Guilty by Charge Level: Cases involving a felony charge were more likely to result in a guilty plea (64.6%) than cases involving a misdemeanor charge (57.5%). For felonies, after controlling for individual and case characteristics, the predicted probability of a case resulting in a guilty plea was 72.4% for Hispanic individuals and 62.4% for White individuals. A similar pattern was seen for cases involving misdemeanor charges.

Plead Guilty by Charge Type: Cases involving Driving Under the Influence (DUI) charges were more likely to result in a guilty plea: 69.0% of these cases resulted in a guilty plea across races/ethnicities. After controlling for individual and case characteristics, the predicted probability of these cases resulting in a guilty plea was 69.4% for Hispanic individuals and 68.5% for White individuals

Cases involving traffic charges were also more likely to result in a guilty plea: 65.0% 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 66.0% for Hispanic individuals and 64.7% for White individuals.

After cases involving traffic charges, cases involving person or sex charges were likely to result in a guilty plea. After controlling for individual and case characteristics, the predicted probability of these cases resulting in a guilty plea was 47.1% for Hispanic individuals and 42.1% for White individuals.

Plead Guilty by Top Charge: Cases involving the most frequent charge, “Driving Under Restraint/Revoked License”, were likely to result in a guilty plea: 61.2% 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 63.6% for Hispanic individuals and 60.5% for White individuals.

For cases involving the second most frequent charge, “Driving without Insurance”, after controlling for individual and case characteristics, the predicted probability of resulting in a guilty plea was 61.0% for Hispanic individuals and 55.4% for 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 plead or were found guilty.

Total Charge Reduction: Of the 7,372 cases that resulted in a guilty plea, 42.3% had no charge reduction, 19.4% 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 38.4% 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: 42.4% HIspanic (676) and 42.2% White (2,440).
  • Within charge level reduction: 21.0% Hispanic (335) and 18.9% White (1,094).
  • Across charge level reduction: 38.8% White (2,243) and 36.6% Hispanic (584).
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.

41.9%

White Individuals

43.6%

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 referred charge was reduced at filing, the predicted probability of no charge reduction was 43.6% for Hispanic individuals and 41.9% for White individuals.

The predicted probability for within charge level reduction was 19.4% for White individuals and 19.3% for Hispanic individuals.

The predicted probability of across charge level reduction was 38.7% for White individuals and 37.1% 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 7,372 cases that resulted in a guilty plea, 17.1% had an incarcerative sentence. Overall, 19.9% (318) of cases involving Hispanic individuals and 16.3% (943) 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.

16.6%

White 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 incarceration was 18.9% for Hispanic individuals and 16.6% 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 (40.4%) than cases involving a conviction for a misdemeanor charge (11.2%). For felonies, after controlling for individual and case characteristics, the predicted probability of an incarcerative sentence was 45.4% for Hispanic individuals and 38.6% for White individuals.

For misdemeanors, after controlling for individual and case characteristics, the predicted probability of an incarcerative sentence was 12.0% for Hispanic individuals and 11.0% 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.