A University of Denver report found that white people and people of color are sometimes prosecuted differently by city attorneys. But at a press conference Wednesday announcing the report’s findings, District Attorney Beth McCann said there are “no pervasive issues of racism, bias, or implicit bias” in her office.
“I think what the study did is show that in some limited areas, where we need to look further, there is a discrepancy and people of various races and ethnicities do have different outcomes,” McCann said. “But there was no overall indication that that is based on racial bias.”
The study, commissioned by the District Attorney’s office, sought to identify if people of different races and ethnicities were treated differently by prosecutors between the summers of 2017 and 2018. Researchers found that they were in some cases and were not in others.
Black defendants were more likely than Hispanic and white defendants to get some felony cases dismissed, the study found. It also found that white people tended to get more lenient treatment at times. According to the report, plea bargains — agreements in which a defendant pleads guilty in exchange for more lenient charges or sentencing — were equal across the board.
Researchers did not conclude that the DA’s office was free of pervasive issues of racism, bias or implicit bias because they did not seek to prove those things one way or another. Dr. Elysia Clemens, an editor on the paper, said the research is meant to improve equity inside the DA’s office and, ideally, the criminal justice system. It is just the beginning of a data-driven way of improving, she said.
“This is intended to be a first look at the Denver DA’s data and to put the spotlight on areas that are opportunities for improvement and further discussion and conversation,” Clemens said. “It’s not intended to be a stopping point.”
The paper was authored by Dr. Stacey J. Bosick of Sonoma State University through DU’s Colorado Evaluation and Action Lab, which partners with government to solve problems through research. It was funded by the lab, which cheered McCann for making data available — a rarity for prosecutors, Clemens said.
Public defenders challenged the findings.
The study did not consider who prosecutors decided to pursue charges against. Joyce Akhahenda, a public defender who has spent 15 years working in the Denver courts, said that would have been a key data point for understanding the role of race and ethnicity in prosecutions.
“If you’re constantly policed, particularly in regards to drug issues and the over-policing of certain communities — traffic stops and so on — yes, you’re going to end up with a worse criminal record,” Akhahenda said. “A lot of defendants, they end up with a dismissal of their case because they never should have been stopped or searched or charged in the first place.”
While prosecutors now collect racial and ethnic data on people they charge, they were not doing so at the time of the study, officials with the DA’s office said.
Researchers set out to examine all 6,839 felony cases accepted by the DA’s office over the one-year period, between the summers of 2017 and 2018. But researchers excluded 43 percent of those cases, specifically cases in which felony drug charges were the most serious allegation, because of pandemic-related problems.
In that limited data set, Black defendants were 31 percent more likely to have cases that weren’t drug-related dismissed than white and Hispanic defendants.
Hispanic people were equally as likely as white people to have their cases dismissed.
That finding is problematic for Nicole Duncan, a public defender who works in Denver courts. Duncan told Denverite that the DA’s office has the power to charge people — and they are usually people of color, who have the most contact with police. She said some of her clients go through the motions of the court system because of frivolous charges that get dismissed at the last minute.
“But the person’s life has been completely altered by that point,” Duncan said. “You shouldn’t get a pat on the back for dismissing things that shouldn’t have been charged in the first place.”
According to the study, white defendants were twice as likely to have their cases deferred — which can lead to a full dismissal or a reduction in serious charges — than their counterparts of color. Meanwhile, Black and Hispanic defendants were more likely to enter a guilty or not-guilty plea and have their cases go to trial.
“This finding means there’s inequity and that it’s very important to look more closely at the deferred judgment process and what leads up to those decisions and how to promote equity,” Clemens said in an email.
McCann touted the finding that race and ethnicity did not play a role in the quality of plea bargains, which she said are how the “vast majority” of cases end.
Plea bargains are agreements in which a defendant pleads guilty in exchange for more lenient charges or sentencing. Black, Hispanic and white defendants were equally as likely to get their most serious charge reduced or their felonies turned into misdemeanors by pleading guilty, researchers found.
“The study found no discrepancy there in the way people of different backgrounds and ethnicities and races are treated, which is the vast majority of the cases that we deal with,” McCann said.
But Akhahenda, the public defender, called McCann’s line of thinking “disingenuous.” She said that the concessions made by prosecutors — whether someone is assigned to a halfway house or probation, or if there’s a cap put on their prison or jail sentence — are the true barometer of whether plea bargains are fair across race and ethnicity.
“And if you’re not looking at that, you’re not really examining whether or not the plea bargaining is equitable,” she said.
White people were twice as likely to be sent to drug court than people of color, who were more likely to be tried in traditional court or elsewhere. Traditional courts could end in jail time or probation, whereas drug courts sought alternatives.
Denver’s drug court was based in rehabilitation and substance abuse treatment (the court no longer exists). It provided room for relapses, while probation is more punitive, said LaQunya Baker, an attorney who represents people who can’t afford a lawyer.
“With drug court, you will see that people are less likely to get revoked if they are testing positive for substances once, twice, sometimes 10, 20 times, because they factor in the concept that the road to recovery includes relapse,” Baker said. “And so they anticipate that people will relapse. They account for that.”
According to the study, people “without extensive criminal histories” who “are viewed as likely to benefit from treatment” are more likely to be sent to drug court.
That practice inherently disadvantages people of color because they are more likely to have criminal records in the first place, Akhahenda said.
Researchers also interviewed 20 Denver district attorneys. Most worried about systemic racism in the criminal justice system but were unsure if their office could play a role in fixing it.
Seventy-nine percent of DAs in Denver are white.
The study states that, generally, prosecutors said they couldn’t fix the socioeconomic disparities that lead to people ending up in their office. They had mixed feelings about their role in fixing problems caused by policing, the study found, because they have to balance impartiality with the reality of a criminal justice system that doesn’t treat everyone equally.
“In the law enforcement system as a whole racism is, I think, obviously, and clearly apparent…in terms of neighborhoods that are policed more than others, contacts with defendants for less-than-ideal reasons that can, on paper, be written off as legitimate, but just don’t pass the smell test,” a prosecutor told the paper.
During the press conference, McCann denied that racism in policing was the reason that cases end up on the desk of her prosecutors.
“I think there are individual situations where a case may come to our attention where we believe that there could have been some inappropriate police contact,” McCann said, adding that the DA’s office and the Denver Police Department have formed a committee to investigate such situations.
Prosecutors “described using tangible and subjective factors in making plea offers, some of which they acknowledged are connected to race and ethnicity,” the study states.
The study aimed to turn numbers and facts into digestible, actionable ideas.
Here are the next steps, which McCann said she’ll take or has taken already:
- Review cases and decide which will be accepted, taking steps to ensure that cases that will eventually be dismissed for issues related to policing are refused from the start.
- Work with other parts of the criminal justice system, like police, public defenders and advocates, to come up with a system that ensures eligibility requirements for deferred judgments, specialty courts, and diversion programs support equitable outcomes.
- Support racial and ethnic diversity among the DA’s staff.
- Continuing to collect and review data, such as the racial and ethnic makeup of the cases the DA’s office accepts.