The elected DA in Colorado’s 18th Judicial District (Arapahoe County) recently announced she was dropping charges against a group of four individuals protesting at an ICE field office in Centennial.
The case is a good one to consider, because it highlights prosecutorial discretion and the claims progressive DAs make about disparities in Colorado’s criminal justice system.
The ability for a prosecutor to decide on bringing charges–or not–is one of the important inflection points in our justice system. While police have some discretion in making arrests, whether you end up charged, and with what, is ultimately at the DA’s discretion.
Like any other decision made by a human, there is naturally the potential for abuse. What pulled me into this story was curiosity about the dropped charges against ICE protestors, but I ended up stumbling into something more interesting: the 18th Judicial District’s “racial and ethnic” disparity analysis, built from data gathered between January 2018 and June 2022.
Parsing the disparity data
Poking around in there shows some interesting patterns. After controlling for “…defendant age, gender, criminal history, case length, disposition quarter, charge type, and charge class,” the researchers claim that whites and Hispanics were both about 5% less likely than blacks to have their charges dismissed, a disparity favoring blacks.
Whites were about 3% more likely to get a deferred judgement (an alternative to traditional sentencing where you enter a temporary guilty plea which then turns into ‘case dismissed’ upon completing things like rehab, etc.) than blacks or Hispanics, a disparity favoring whites.
Hispanics were about 3% less likely to have their charges reduced than either blacks or whites, both which had about the same chance of reduction, a disparity favoring blacks and whites over Hispanics.
Some disparities don’t show up until you scratch a little below the surface. With the same controls mentioned above, the study found that whites, blacks, and Hispanics overall had about the same chance of being incarcerated, at 12.5%, 11.8%, and 13.1% respectively. Break this down a touch and a pattern emerges. Look at incarceration chances for felonies and property offenses specifically and gaps of about 2 to 3 percent open back up between races.
I’m not sure I fully buy these percentages, especially down to the nearest tenth. At the bottom of the disparity analysis is a list of bullet points longer than my arm under the heading of “limitations.” This doesn’t exactly inspire confidence, but for now let’s put aside the validity of the numbers for a minute to focus on what they mean.
The meaningless disparity narrative
Advocates love to play around with disparities. In particular (again, omitting any mention of validity), they love to blur the line between discrimination and disparity. If you see a pattern in the numbers, say one group gets charged more or ends up incarcerated more often, it’s because there has to be discrimination hiding in there. This would naturally occur only where humans make a decision; e.g. prosecutors must be abusing their discretion by discriminating against one race or another. Thing is, this disparity-as-discrimination only applies to some.
The 18th’s look at prosecutorial disparities isn’t unique. Eight other Colorado judicial districts ran such studies as well, with results released back in 2022.
The accounts include numerous mentions of disparities involving blacks and Hispanics, but none about whites. You’ll also note much hand-wringing by officials, lots of promises of change. Mentions of implicit bias, equity, George Floyd, and trust in the justice system are painted broadly all over these analyses.
A quote from Jefferson County DA Alexis King offers a telling signal:
“In an interview last week, [District Attorney for the 1st Judicial District Alexis] King acknowledged that her office ‘has some work to do with implicit bias and bond.’ She also noted that researchers found Hispanic defendants were frequently misidentified as white in the collected data, which means Hispanic defendants were likely undercounted and underrepresented in the data.”
I wonder if we finally have enough post-analysis years under our belt to acknowledge what is painfully obvious (except to those trying to sell us either consultant services or racism): these numbers have no meaning whatsoever. They didn’t then. They don’t now.
They have no meaning because the numbers hop around like rabbits. They have no meaning because no one calls out disparities where whites are on the wrong side of the equation.
Performative transparency
I applaud the effort at some sunshine here, but I prefer my transparency to be factual, not performative. Transparency looks like what I started this column with, the DA’s press release about the ICE protestors’ dismissal. The letter lays out the reasons in plain language. You may not agree with the decision, but it’s right there.
Elected DAs should be ready and willing to justify their decisions if asked. As a matter of fact, they often do without needing to be asked. To DA King’s point, prosecutors make their bond case in open court, justifying their number to the judge. It’s a matter of public record. Counter to what some of the DA’s said when the disparity analysis results were made public, this is hardly a “black box”.
Efforts at aggregating data like disparity dashboards do not offer us actually meaningful insight into prosecutorial decisions; the percentages are enough to make any number of claims. Rather, these dashboards, and efforts like them, are a form of confirmation bias, reflecting back what we already thought about the system. For unscrupulous advocates selling a racist narrative, and for the people selling diversity training, they provide a shortcut to bolster their claims or justify their fees.
I did try to see if there were any ongoing efforts about these analyses, but I couldn’t find any, nor any official who would share with me. This actually made me relieved, seeing that nothing seems to have continued past 2022.
We have better uses for the criminal justice system’s time and resources.
Cory Gaines teaches college physics and is a regular contributor to Complete Colorado. He lives in Sterling on Colorado’s Eastern Plains. He also writes at the Colorado Accountability Project substack.
