A newly released disparity analysis of the Boulder County District Attorney’s Office found that Hispanic defendants see fewer charge reductions and a higher rate of incarceration than similar Black or white defendants.
On Wednesday, the office released an in-depth disparity analysis of prosecutorial decisions. The work was done in partnership with Prosecutor Performance Indicators and the Colorado Evaluation and Action Lab at the University of Denver along with seven other district attorney offices. It builds off the public data dashboard released last year.
The new analysis looks at cases referred to the Boulder County District Attorney’s Office between March 2020 and June 2022. It analyzes prosecutorial discretion along three main decision-making points in the office — disposition, charge reduction and incarceration.
“We don’t have complete control of what cases come to us,” District Attorney Michael Dougherty said. “We certainly have control over how those cases are treated once they’re here, and then trying to work upstream to also address racial disparities that exist in our community that bring people into the justice system.”
One of the key takeaways from the analysis was the fact that Hispanic defendants were less likely to see their charges reduced in plea bargaining and more likely to be incarcerated when controlling for other factors.
“Interestingly, this is not unique to Boulder County,” Chief Deputy District Attorney Christian Gardner-Wood said. “This is consistent largely among the eight offices that are also going to release this data. So what that tells us is that this is more a systemic problem within the criminal justice system.”
Black defendants received deferred judgements — which allows the defendant to complete a period of probation to avoid more serious consequences — at a lower rate, but saw their cases dismissed at a higher rate.
“(The dismissals) may be a good thing because you’re doing the right result in a case, and that’s always our goal as prosecutors is to make sure we’re getting the right result for the community, for the victim and for the defendants,” Gardner-Wood said. “But then the question would be, is there a concern with the type of cases that are coming into the DA’s office?”
The district attorney’s office is already implementing some changes in response to this data, namely increasing adult diversion screening of cases, improving the screening processes and planning to capture diversion data better. Nearly all juvenile defendants are screened for the office’s diversion process, which has led to more equitable outcomes, so that approach is now being applied to adult defendants.
The office will also be training on systemic drivers of disproportionality and disparities that prosecutors should consider when exercising their discretion.
Dougherty emphasized that this work doesn’t mean that a Black defendant with a similar criminal history to a white defendant who commits a similar crime gets a shorter sentence than the white defendant.
“We need to have a systemwide change to make these improvements and be mindful of disparities and disproportionalities and how they exist in our society and come into the justice system,” he said. “But I don’t think saying to clear off one person just based solely on race (is the solution).”
The example Gardner-Wood used related to a defendant who was able to afford an in-patient treatment for substance abuse, which a prosecutor can and should consider in their sentencing, versus a defendant who might be willing to do that same work but doesn’t have the resources to get that treatment and might see a higher sentence as a result.
“That’s the type of stuff we need to consider as prosecutors,” he said.
Dougherty added that he wants to add an in-house data analyst to his office so they can continue monitoring trends and digging into disparities. He said he plans to request the county funding for that position as soon as this year.
The office’s fourth goal is to improve data collection and data accuracy, including a better collection of race and ethnicity data and entry of reasons for dismissal. As the program grows, the hope is that there will also be better data on criminal history.
The study attempts to control for criminal history, but that is currently limited to the data from the eight districts that initially participated in this project. Criminal history is an important factor in determining outcomes, as prosecutors consider and are often legally required to adjust sentencing if a defendant has a prior criminal history.
That means the analysis cannot account for the criminal history of someone who may have been sentenced for a DUI in Weld County, who was later charged for a different DUI in Boulder County. For a place like Longmont, which is split between the two counties, adding in the data from Weld would be useful to better control for criminal history and improve the data.
Since launching the dashboards, five more judicial districts have joined the project. These 13 districts represent over half the counties in Colorado and 75% of the state’s population.
Remaining districts will have an opportunity to join in the near future. Colorado is the first state in the country to have multiple prosecutor’s offices working together to provide this type of data.
