Hispanic defendants in Colorado are more likely to be incarcerated than defendants of other races.
That’s according to eight recently published disparity analyses that look at how race impacts outcomes for defendants in the 1st, 2nd, 5th, 6th, 7th, 8th, 18th and 20th Judicial Districts. The reports are a tool for Colorado district attorneys to better understand how race can impact prosecutorial discretion and racial disparities in the criminal justice system.
Published Feb. 15 by the Loyola Center for Criminal Justice Policy and the University of Denver’s Colorado Evaluation and Action Lab, the disparity analysis reports were based on data from eight judicial districts across the state that are participating in prosecution performance dashboards launched last year. The reports are based on each district’s reported dispositions and charge reductions for felony and misdemeanor cases from January 2017 through June 2022.
The PPIs cover eight of Colorado’s 22 judicial districts that account for over 70% of the state’s total population and range from urban to rural settings led by both Democrat and Republican DAs. The latest reports using data from the PPIs offer a look at systematic bias and give a chance for DA’s offices to address disparities.
“So what the disparities analyses do is they attempt to dig a little bit deeper and simultaneously consider a few of these individual case factors and say, ‘Okay, after we, [look] for those potential differences, do we still see evidence of disparity of prosecutorial discretion?’” explained Lauren Gase, a senior researcher and project director with DU’s Colorado Evaluation and Action Lab.
Unlike the raw data available to the public through the dashboards, Gase said the disparity analyses controlled for variables other than race — such as an individual’s criminal history, age and gender — that can impact the outcomes of criminal cases. That analysis could offer a better understanding of if someone’s race impacted prosecutorial discretion.
“We presented the results as predicted probability, which is an estimate of the outcome based on the data after considering other factors,” said Gase. “So, how likely is our estimate that cases would be dismissed for Black, white or Hispanic individuals after accounting for these factors?”
Gase said the reports will allow DA’s offices across Colorado to create policies and training to reduce racial disparities in the criminal justice system.
While findings across judicial districts varied, several trends stuck out in two categories: disproportionality and disparity.
In the context of the reports, disproportionality was when more people of a particular race or ethnicity were referred to the DA’s office by law enforcement than would be predicted based on a judicial district’s population.
Since referrals are the first step in a criminal case process, the analyses noted disproportionate numbers at the referral state “flow throughout the prosecution process.” The reports also noted referral disproportionality can be explained by factors other than criminal behavior, including law enforcement practices, resource allocation or crime and policing responses in different neighborhoods.
Overall, Black, Hispanic and Native American individuals were disproportionately referred to DA’s offices from law enforcement.
In all six judicial districts with data on referrals for Black individuals, Black individuals were disproportionately referred to prosecutors.
The 1st Judicial District, covering Jefferson and Gilpin counties west of Denver, saw 22.2% of its referrals for Black individuals who represent only 8.5% of the area. In the 2nd Judicial District covering Denver County, 24.6% of referrals were for Black individuals despite only representing 9% of the area’s population.
The 5th Judicial District, which represents Clear Creek, Summit, Eagle and Lake counties along the western slope, saw Black individuals make up 4.2% of referrals compared to 1% of the population. The 8th Judicial District, based out of Fort Collins and covering Jackson and Larimer counties, reported Black individuals account for 4.7% of referrals relative to 1% of the population.
For the 18th Judicial District, Colorado’s largest judicial district covering Arapahoe, Douglas, Elbert and Lincoln counties on the eastern plains and east of metro Denver, Black individuals accounted for 17.3% of all referrals despite representing only 7% of the population. And in Boulder County, which makes up the 20th Judicial District, Black individuals accounted for 5.3% of referrals and just 1% of the overall population. The analyses for the 6th and 7th Judicial Districts didn’t look at disproportionality for Black individuals.
In seven of the eight districts, Hispanic individuals were also more likely to be referred for prosecution. The only DA’s office where Hispanic individuals were not disproportionately referred was the 5th Judicial District where 21% of referrals were for Hispanic people who made up 24% of the area’s total population.
The largest disproportionalities were in the 1st Judicial District where Hispanic individuals made up 22.2% of all referrals despite representing only 8.5% of the population and in the 20th Judicial District where Hispanic individuals made up 20.5% of all referrals and only 8.5% of the total population. The smallest disproportionalities were in the 18th Judicial District where Hispanic individuals made up 16.8% of referrals compared to 16.5% of the overall population and the 6th Judicial District, covering Archuleta, La Plata and San Juan counties in southwest Colorado, where 14.8% of referrals were for Hispanic individuals relative to 13.3% of the area’s population.
In the 5th Judicial District, Native American individuals were also disproportionately referred to the DA’s office. Despite accounting for just 5% of the area’s population, Native American individuals made up 11.5% of the office’s referrals.
The second area of analysis was disparity. Unlike referral rates, data on disparity could show places where systematic biases or inequities impact defendants in the criminal justice system.
Gase said the analysis doesn’t explain why the data shows disparities, but allows DA offices to consider potential trends that could explain disparate outcomes.
According to the reports, Black defendants are more likely to have charges reduced or their case dismissed, Hispanic defendants are more likely to enter into plea deals and Native American and Hispanic defendants are more likely to be incarcerated after sentencing.
In all six districts with data on dismissals for Black defendants, they were most likely to have their charges dismissed compared to white and Hispanic defendants. They were also more likely than white or Hispanic defendants to have an across-charge reduction in the 1st, 8th and 20th Judicial Districts and more likely to have a within-charge reduction in the 2nd Judicial District.
Since the PPIs launched, Gase said all participating DA offices have met regularly to discuss data results and think about potential explanations. During one conference, participants floated a theory that the higher rates of dismissal and charge reductions for Black defendants could be tied to case referrals, Gase said. “Maybe cases being referred to the DA by law enforcement, were weaker for Black defendants. So then they want to have the charges reduced.”
In all seven districts with data on incarceration sentences, Hispanic defendants were more likely than white or Black defendants to be sentenced to jail time. Data from the 6th Judicial District found Native American defendants were most likely to receive an incarceration sentence compared to other races.
Hispanic defendants were also the most likely to enter into a plea deal compared white and Black defendants across the state. The only district where they were not the most likely to enter a plea deal was in the 6th Judicial District where Native American defendants were more likely to enter into a plea deal than defendants of other races.
Gase noted that while researchers controlled for as many variables as possible, the disparity analyses have limitations.
While the reports controlled for a defendant’s criminal history, Gase said researchers were only able to account for records in the eight participating districts rather than a full criminal history. She also said the collection and definition of someone’s race or ethnicity was based on law enforcement referral, which was subjective, and while researchers used census data to account for potential inaccuracies, readers should keep that potential limitation in mind.
Disparity analysis isn’t new and one of Colorado’s PPI partners, national group Prosecutorial Performance Indicators Project, has conducted similar studies in other states, Gase said. But unlike other states which tend to focus on data from just one DA’s office, the eight participating districts mean Colorado’s disparity analyses are a relatively large snapshot of criminal justice in the state.
In January, five other DA’s offices in Colorado agreed to join the PPI dashboards according to Gase. She added that data from the 3rd, 10th, 12th, 17th and 21st Judicial Districts will be publicly available as a dashboard sometime this summer.