4 things we learned from the first-ever release of data that shows how Colorado DAs prosecute cases

Kevin J. Beaty/Denverite
Westminster Police officers arrest a young man who was stopped and found to have an open warrant for shoplifting, Jan. 30, 2020.

Prosecutors representing more than half the state’s population unveiled new data on Thursday that showed racial biases in how they offer plea deals, who gets jail time pre-trial and who gets offered probation versus a jail or prison sentence.

Eight district attorneys across the state — some representing rural areas, some from suburban districts and two representing Denver and Aurora — voluntarily participated in a year-long data project to shed some light on the secrecy behind prosecutions across the state in hopes of seeing how their offices could improve how they operate.

The data, linked on eight different prosecutor websites, reveals some differences in how prosecutors treat white defendants and defendants of color, including Black and Hispanic. 

For example, in Denver, more white defendants pleaded to a lesser charge than either Black or Hispanic defendants. In Jefferson County, more white defendants got deferred judgments, which is a form of probation, than Black defendants, according to the data. In Boulder, more white defendants get deferred judgments than Hispanic defendants.

It’s the largest prosecutorial data project in the country. It began last September when eight prosecutors decided they needed to be more transparent on who gets plea deals, felony and misdemeanor cases, racial disparities in case filings based on socioeconomic elements and other demographics.

The move was sparked by public demand for greater accountability and impartiality, along with a focus on community wellbeing and fairness, officials said. 

The data shows broad trends, but the full datasets used for the analysis have not been made public. Only five years of data were included, and each office released different data. For example, only two district attorneys published data comparing the proportion of Black, Hispanic, and white defendants in felony cases who were sent to jail or prison. And that data only shows incarceration rates, not the total number of Black, Hispanic and white felony defendants each year.

Prosecutors say they believe the public access to data can help to increase trust between prosecutors and communities. They’re also hoping the data will help them understand what’s working and where improvements are needed. 

Denver DA Beth McCann says district attorney offices have been swimming upstream against a fundamental distrust of government — namely among people of color. 

“The mistrust became acute after the George Floyd murder and people took to the streets,” McCann said Thursday. “For the public to trust us, I believe it's essential for DA offices to be open about our work. This has never been a strong suit for our offices; we tend to be very insular and guarded with our data.” 

Here are four key takeaways from the data released Thursday.

1. The data shows that despite rising crime rates across the state, criminal cases filed by prosecutors have actually gone down.

The FBI reports that Colorado is one of only eight states nationally whose total crime rose in the one-year period between 2019 and 2020. In that same timeframe, the number of cars stolen went up by 86 percent in Colorado. Violent crime is also up almost 18 percent from 2019 to 2021.

Yet, in most offices, case filings have gone down. In Jefferson County, for example, there were 17 percent fewer felonies filed. In Boulder, there were 22 percent fewer felonies filed in 2021 compared to 2020. In Larimer County, there were 19 percent fewer felonies filed.

“We are seeing fewer cases coming to our office while they feel like they’re drowning,” said Jefferson County District Attorney Alexis King. “Where is the disconnect? And what can we do to support that? Knowing where my law enforcement is, that many of them are so far from being fully staffed, it must have an impact.”

Arapahoe County District Attorney John Kellner said changes in how they classify some crimes by lawmakers is one reason there are fewer felony filings. He also said he’s seeing fewer traffic cases coming through, which means, likely, law enforcement is busy solving more serious crimes.

 “We’re seeing an increase in violent crime felony filings, which I think is consistent in what we’re seeing in the trends,” he said. “Police are understaffed and under-resourced … and a difficulty of hiring, recruiting, training replacements. We’re not getting as many cases sent to us as we used to.”

2. More Black and Hispanic defendants are being incarcerated before their trials than white defendants.

In Denver, for example, in the first quarter of 2022, 27 percent of white defendants were detained pre-trial versus 35 percent of Hispanic defendants.

In the 5th Judicial District, which includes Clear Creek, Eagle, Lake and Summit counties, 77 percent of Hispanic defendants were incarcerated overall versus 60 percent of white defendants. That district didn’t have any pre-trial data broken down by race or ethnicity.

In Jefferson and Gilpin counties, 42 percent of Black defendants were jailed pre-trial compared with 31 percent of white defendants.

“The communities that feel the greatest impact of the criminal justice system are often left out of the conversation,” said Melba Pearson, the director of policy programs at the Center for the Administration of Justice at Florida International University. “Oftentimes, they’re being marginalized or interactions have become much more of talking at the community as opposed to talking with the community … The importance of data takes us out of that realm of this being just a unique situation but takes us to the place of having facts.”

3. Most recently, defendants represented by public defenders are more likely to be incarcerated than defendants with private attorneys.

In Delta County and Arapahoe County, defendants in felony cases who were represented by a public defender were generally incarcerated at higher rates than defendants with private attorneys between 2019 and this year, according to the data released Thursday. In 2017 and 2018, defendants represented by public defenders were incarcerated at lower rates than those with private attorneys.

Data for Denver is limited to the last quarter of 2021 through the first two quarters of this year, and public defenders are leading with more incarcerations than private attorneys.

Public defenders have recently announced an effort to unionize, in part, because caseloads are so big.

The data does not include the total number of defendants represented by private attorneys and public defenders in each district. 

4. Felony cases are taking longer to resolve in judicial districts across the state.

Felony cases in Denver are taking nearly eight months to resolve. In Fort Collins, the median case length is over six months, but prosecutors say that’s still too long. In Jefferson County, it’s over five months. Some of those delays are attributed to COVID-19 – jury trials were halted statewide for several months during the height of the delta and omicron COVID variant surges. But other delays are inexplicable. 

“It asks more questions than it answers,” said Gordon McLaughlin, the district attorney in Larimer County. “But those are important questions that we all plan to continue to pursue in our communities.”

Colorado is the first state in the nation to take such steps to be more transparent. 

“Today we take a very significant step in building a bridge between the justice system and those in the community who have doubts or valid concerns about how the justice system operates,” said Boulder District Attorney Michael Dougherty. “But it takes more than just words to build a bridge, it takes work.”

The goal is for all 22 state district attorney offices to participate ultimately, officials said. The project is funded by the Microsoft Justice Reform Initiative. 

DAs say they are using the data to evaluate what they’re doing wrong. Jefferson County District Attorney Alexis King said she was surprised at some of her incarceration numbers and the racial differences between Hispanics and whites. 

She is going to require all of her assistant district attorneys go through diversity equity and inclusion training to learn how to perhaps be more racially sensitive when handling cases. 

Researchers on Thursday said they are requiring all eight district attorneys who participated in the process to complete more data pulling on racial and ethnic differences. 

In Larimer County, McLaughlin is also requiring his whole staff to go through implicit bias training and look at dismissal rates.

Community members and criminal justice reform advocates haven’t yet fully absorbed all the details in the data yet. 

Candice Bailey, a longtime community activist in Aurora and executive director of the nonprofit organization Light Carrier, said Thursday’s data confirmed what she knows about how people of color are treated by the criminal justice system. 

She said more information, though, may help advocates understand recidivism.

“If we never know what you’ve done that has been detrimental for our community, then we can never know what it is that you’ve done that is good for our community either,” she said. “Recidivism happens because of untreated trauma and unmet needs.”