Black and Latino people face harsher outcomes in Denver’s criminal justice system, with some prosecutors expressing concern about questionable police tactics, according to a report released Wednesday from the Denver District Attorney’s Office.
Researchers funded by the University of Denver’s Colorado Evaluation and Action Lab examined 6,839 adult felony cases that the city accepted for prosecution between July 2017 and June 2018, finding white defendants were more likely to have their drug cases referred to problem-solving court and to receive plea agreements that could ultimately end with the dismissal of their case in exchange for staying out of trouble.
The report’s author, Stacey J. Bosick of Sonoma University, also found Black defendants were 31% more likely, on the other hand, to have their cases dismissed.
Although there was no immediate explanation for that trend, anonymous interviews with 20 prosecutors in Denver suggested the police’s handling of some defendants might play a role in their outcome. Attorneys spoke about problematic police conduct, including what they characterized as a small number of officers bringing “problematic” cases.
“While prosecutors reported an overall positive relationship with the police, they also described questionable, and sometimes inappropriate, police behavior or weak evidence that undermined the prosecution of a case,” the report noted.
“Interviewees described feeling frustrated when the evidence for a police stop, especially stops for mechanical violations, were not recorded in the officer’s body-worn camera footage.”
The prosecutors tended to rely on police narratives initially, but they might eventually find the body-worn camera footage did not corroborate the charges to a sufficient degree.
“We can force them to change,” one person said. “Start filing charges against cops ... refusing cases from cops who have a history of bad acts or acts of dishonesty. If you watch a guy’s body-worn, it’s like these reports never match up. We have the power to say, you know what, we’re not going to take cases from” the officer.
Another attorney described dismissing a jaywalking case against a Black man, where the encounter with police was “very suspect.” A researcher asked if the lawyer took their concerns to the police officer.
“Ah, no, actually I should do that,” they responded. “That’s actually something I should do. And I will do that. I'm going to add it to my to-do list.”
In a news conference Wednesday, District Attorney Beth McCann said she does not believe that racist policing affects cases that come to prosecutors on a systemic level, saying she believes instances of "inappropriate police contact" are more an issue of individual situations. She said she works closely with Denver Police Chief Paul Pazen to address situations of potential inappropriate police contacts.
Dr. Robert Davis, the head of Denver's policing reform task force and executive director of Seasoned With Grace UnBoxed, pushed back on McCann's statements, saying "volumes and volumes" of studies have shown that communities of color are over-policed, which in turn affects the cases that land on prosecutors' desks. He said people tend to have specific images in their minds about what bigotry looks like, but it shouldn't be a "dirty word" for people to acknowledge their own implicit biases.
"Everyone that is watching this has our own implicit biases; has our own beliefs and and misunderstandings about other races and other cultures, and that does inform how policing is done; that does inform how prosecution is done," Davis said. "And we need to be conscious of that to be realistic and to move past it."
District Attorney Beth McCann, first elected in 2016, said she welcomed the report and pointed to areas for improvement within her office.
“I am pleased, but not surprised, that the study found no racial or ethnic disparities in general plea bargaining by our office, let alone any prevalent issues of racism, bias, or implicit bias,” McCann wrote in the foreword to the report.
Among the specific findings, white criminal defendants were twice as likely to receive a deferred judgment as Blacks and Hispanics.
A deferred judgment is a guilty plea that gives the defendant a period of supervision in lieu of harsher criminal penalties.
If the person successfully completes the conditions, the court can dismiss some or all of the charges.
Also twice as likely for whites was the chance of drug charges moving to a specialty drug court — a type of problem-solving court that Colorado has set up to divert people from prison.
Not everyone with a drug offense is eligible to participate in drug court, but if Black and Hispanic residents are more likely to have criminal histories, researchers noted, that could bias the opportunity to participate in drug court against them.
Overall, of the 3,000 cases for which there was not a drug charge as the primary offense, 39% of defendants were white, 27% were black, and one-third were Hispanic. In Denver on the whole, 54% of residents are white, 10% are black and 30% are Hispanic.
The study doesn't specifically look at demographics of participation in other types of specialty courts -- designed as alternatives to purely punitive sentencing -- such as the district's veterans' treatment court. But McCann said she tracks statistics of Denver's other specialty courts to make sure people of color are not underrepresented.
"It's important to me that we do that and we are monitoring," she said. "Now that we're collecting better data, that's a requirement for those specialty courts -- that we do collect that kind of data so that we can watch it carefully and make sure that we're not favoring one race versus another proportionately."
Among the 20 prosecutors interviewed, they commonly pointed to the justice system as contributing to racial disparities. At the same time, they described the Denver District Attorney’s Office as “progressive.”
“I obviously hope I don't contribute to systemic racism. I feel like I don't, and I feel that the people I work with — we all think we don't. So, I don't know what's going on in other DA offices and other states because you see stuff on the news. Maybe Colorado's different,” one person told researchers.
In McCann’s office, nearly 8 in 10 prosecutors are white. Hispanic people constitute 9%, and Black people 4%.
The people selected for anonymous interviews roughly mirrored those demographics. Black and Hispanic prosecutors who were interviewed showed concern that their white colleagues would view them as overly sympathetic toward defendants of color.
In other findings, the data showed no difference in the ability of Black, white or Hispanic defendants to receive reduced charges for guilty pleas.
Women were slightly more likely to receive a less serious charge in exchange for a plea agreement than men, and older defendants were more likely to have their cases dismissed.
At Wednesday's press conference, the speakers agreed the report is just a starting point for looking at equity in prosecution decisions. McCann said decisions about case dismissals, data about defendants turning down offers of deferred judgment and whether someone having a private attorney versus a public defender seems to affect prosecution are some aspects worth exploring more.
The Rev. Dr. Jose Silva, CEO of the Colorado Association for Infant Mental Health and former Chair of Denver Latino Commission, said studying equity in prosecution should be looked at as one piece of the larger need to dismantle institutional racism.
I see this as a great opportunity for not just what Denver is doing, but for [what] other systems and DA offices around the country can do when when we're talking about dismantling those systems," he said. "You need this first step in order to say, this is the system in which we want to dismantle or reappropriate."
This article has been updated to clarify the source of funding for the report.