Denver Attorney’s Office study rejects claims of bias despite racial disparities in judgments

Black people are more likely to have their cases dismissed and rarely ever get deferments, but the district attorney maintains the study proves the underlying decision-making process is unbiased.
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District Attorney Beth McCann attends a press conference announcing the new RAVEN law enforcement program, June 12, 2019. (Kevin J. Beaty/Denverite)

A follow-up study released by the Denver Attorney's Office Wednesday drills into differing outcomes in felony cases across Black, Hispanic and white defendants, and optimistically concludes that the office shows no pattern of bias in prosecution. The report aims to address racial discrepancies revealed in an earlier study that dismissals are more common amongst Black defendants, while deferrals are more common for white defendants.

"We are not seeing any pattern of bias or implicit bias in the outcomes of our cases," District Attorney Beth McCann said. "That's what I take away, but I also take away that we've got to continue to be vigilant."

The study claims the difference in outcomes don't signify a bias because the reasons for the judgments are consistent across different groups. For example, most cases were dismissed because prosecutors weren't able to prove guilt beyond a reasonable doubt. This category represented around 65% of all dismissals -- regardless of race.

Angela Campbell, a Colorado criminal defense attorney with her own law firm, said the DA's Office report is a commendable effort towards transparency. Still, she believes the conclusions drawn, and the pat on the back the office has given itself, might be premature.

Campbell points out that the study doesn't attempt to explain why, overall, a larger percentage of Black defendants are initially accepted for prosecution but later have their charges dismissed. For these defendants, the damage may have already been done.

"Losing their job, having to pay bail, losing their housing, maybe losing their children," Campbell said. "How long did it take in some of those instances to dismiss the case?"

Deferrals also represent an important category because they offer defendants an opportunity to avoid a permanent criminal record. A deferred judgment is similar to a plea bargain in that the defendant pleads guilty, but instead of charges or sentencing they are able to have their case completely dismissed after a probation period. This means a defendant's record remains clean and they technically haven't been convicted of a crime.

Only around 3.9% of all cases end in deferred judgments. For Black defendants, this outcome is so rare that the study's sample size, only 10 individuals, made it hard to draw concrete conclusions. Even white defendants with prior criminal histories were given the option of deferred judgment more often than Black defendants.

"The reasons for this are unclear. The intent here is not what's important; the outcome is," Tristan Gorman, the policy coordinator at the Colorado Criminal Defense Bar, wrote in an email. "Regardless of the reasons for it, this is precisely the type of systemic racism that should be recognized for what it is, and the people with the power in the system should change it."

This latest study also builds on the work of the report published in April that first identified differences in dismissals and deferrals.

The District Attorney's Office put a positive spin on the initial report's analysis of plea bargains, in which a defendant pleads guilty in exchange for lower charges or more lenient sentencing. The study showed similar numbers across Black, Hispanic and white defendants, and because most cases get settled through plea deals, McCann argued the report proved there was little to no bias based on defendant's ethnicity or background.

However, the study didn't record important details often included in plea bargains, like whether a defendant would be assigned to live at a halfway house rather than probation, or whether their time behind bars had a cap. These details make a massive difference in outcomes for defendants.

The original study also reported that prosecutors, around 79% of whom are white, often felt they were "unable to correct for social inequalities that may serve as the underlying causes of offending." Prosecutors are only in control of defendants already in their custody, regardless of systemic problems like over-policing, harsh sentences for first offenders or juvenile records. Parsing which issues are under the control of the DA's Office is nearly impossible, according to Campbell.

"There may be some systemic drivers to these pieces," Senior Researcher Lauren Gase said. "It's worth looking at, for example, what types of defendants are likely to have criminal history and why. How is that driven by by structural issues such as policing practices? I think it's more complicated than just the issue of implicit bias."

But "the DA's Office hasn't traditionally been the best collector of data," McCann said.

To make up for the limited data recorded at the time of the study, which looked at the year between the summer of 2017 and the summer of 2018, researchers often had to read case notes or look at mugshots to infer a defendant's ethnicity. Sometimes they interviewed deputies to figure out why a deferment took place.

Data collection continues to be one of the biggest obstacles to getting a view in the office's work -- but also one with a seemingly straightforward answer that the office is already tackling.

The DA's office is in the process of launching a dashboard to publicly display the data it's begun to collect, akin to what the Sheriff's Department has done with COVID numbers and what Vision Zero has done with traffic fatalities. Eight other statewide district attorney's offices have said they're interested in creating their own dashboards through a pilot program with Colorado's Evaluation and Action Lab.

This story was updated to include quotes from Tristan Gorman, policy coordinator for the Colorado Criminal Defense Bar. 

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