Study finds disparities for Black, Hispanic and homeless people in Boulder County criminal cases

Jul. 29—An independent study of Boulder County District Attorney's Office cases between 2013 and 2019 found that Black and Hispanic people were more likely to be charged, convicted and incarcerated than white people and that people experiencing homelessness made up a disproportionate amount of cases.

The study by the Vera Institute, a national organization focused on criminal justice reform, examined almost 60,000 criminal cases prosecuted by the Boulder County District Attorney's Office between 2013 and 2019.

"We recognize that because of systemic racism and the history in our country, racial disparities exist within the criminal justice system, and I think that's probably true in most if not all jurisdictions in the U.S.," Boulder County District Attorney Michael Dougherty said. "Rather than just accept that though, our office wanted to identify where those racial inequities flow from and what we could to to address them."

According to the study, Black people made up about 1% of Boulder County's population in 2018 and 2019 but accounted for 5% of criminal defendants, while Hispanic people made up about 13% of the county's population but 25% of criminal defendants. Whereas white people made up 68% of criminal defendants, despite accounting for almost 80% of the population.

Additionally, in 2018 and 2019, 34% of people in Boulder County sentenced to prison were Hispanic and 7% were Black.

"In short, we see that the disparities start at the beginning of the system and, in the most serious of sentences ending in prison, the disparities actually increase," Seleeke Flingai, a senior research associate at Vera said during a July 7 presentation on the research.

The study also found that despite only about 0.5% of Boulder County's population being homeless, 10% of felony cases between 2018 and 2019 were brought against people experiencing homelessness.

The findings of the study were not a surprise to some local advocacy groups.

"The Vera Institute's report on the disparate charging, prosecution, and sentencing of Black and Brown community members in Boulder County blows the lid off of any beliefs Boulder may have had about its equitable treatment of these community members," the Boulder County Branch of the NAACP said in a statement. "When the NAACP Boulder County Branch speaks of this disparate treatment publicly, people in Boulder County now have the context to inform them why this issue warrants their attention."

Added Taylor Pendergrass, director of advocacy for the ACLU of Colorado, "To me this data reaffirms and crystallizes what we already knew in terms of a lot of the worst harms of mass incarceration on people of color, people who are unhoused.

"It's always shocking to see that, but not surprising."

'It was the right thing to do'

The Boulder County District Attorney's Office was one of three offices nationwide to apply and be selected for the study as part of the Vera Institute's "Reshaping Prosecution" project.

"Our goal was to have an independent review identifying where the disparities exist and to what extent so we can target them," said Dougherty, who took office in 2018. "We chose to do this because it was the right thing to do."

Chief Deputy District Attorney Christian Gardner-Wood, who also heads the office's Community Protection Division, said the DA's Office was working with Vera during the study, providing case data, background on Colorado statutes and court process, and getting updates on information.

"We really were proactive in engaging them and wanting to do this work around racial inequity and data transparency," Gardner-Wood said.

Gardner-Wood said by getting updates on the study even as it was ongoing, the DA's Office could already begin to implement new policy or lobby for legislation.

For instance, the top felony charge filed against those experiencing homelessness — possession of a controlled substance — is now a misdemeanor as a result of work done by Colorado's Sentencing Reform Task Force, which Dougherty co-chairs.

"It was always an ongoing discussion," Gardner-Wood said. "We didn't have to wait to two and half years to take action."

As a result, the numbers in the study were not a surprise to the staff when the final presentation was given on July 7.

"We didn't want to see high rates of disparities, but we were not expecting to be immune from historical and systemic issues," Garnder-Wood said. "We wanted to hope to see those minimal or as minimal as possible, but obviously we recognize that what we see is there are disparities that exist within the system and we want to immediately take action around that."

Because of increasing COVID numbers, Dougherty said a planned larger community event to unveil the study had to be scrapped in favor of a virtual presentation that was sparsely attended. But his office has posted the presentation and data from the study online for the public.

"We only had 20 people show for the presentation," Dougherty said. "But I know this issue matters to people a lot more than that."

Pendergrass did applaud Dougherty for taking the first step by submitting his office for the study, but said what's important is what happens next.

"I think District Attorney Dougherty deserves credit for allowing Vera to do that study," Pendergrass said. "Now the question is what are they going to do about it?"

'The DA is the gatekeeper'

One area that the Vera study highlighted was juvenile cases, where the study found the DA's juvenile diversion program was actually closing the disparity gap. The improvement, the study noted, was proof that changes and programs within a DA's office could improve racial equity.

But the study found Boulder County did not close the disparity when it came to its adult diversion programs, which allow defendants to resolve cases outside of the justice system.

Dougherty said whether an adult case gets referred to a diversion program is up to the individual prosecutor, while most juvenile cases are run through a group that screens cases for candidates. While Dougherty has held implicit bias training for his staff, he said leaving diversion decisions up to individual prosecutors is going to result in a wider variety of outcomes.

"We have 100 people in our office, and 100 people could have 100 different reactions to criminal cases," Dougherty said.

Dougherty said in light of the findings, the office is trying to involve diversion staff in more charging discussions and implement a more consistent screening method to get more cases into diversion programs.

"We've definitely changed screening methods with that in mind and modeled it after the success with the juvenile program," Dougherty said.

Pendergrass said even beyond diversion programs, more district attorneys should make the decision to simply not prosecute non-violent "quality of life" offenses.

"The DA is the gatekeeper in many important respects," Pendergrass said. "They should be more aggressive in keeping people out of that system at all."

Some of the issues noted in the study, Dougherty believes, are issues that go beyond the District Attorney's Office. He noted that many of the top felonies charged against the unhoused are serious crimes like felony menacing.

"To me this list reflects not a law enforcement problem, but a community problem Boulder County and other jurisdictions are currently struggling with," Dougherty said. "That to me is not a reflection that the police are discriminating against homeless, but they're responding to felony menacing calls.

"The data is helpful in that it highlights disparity that exists, but also some of the drivers of community concern, and what we need to address as a community."

But Pendergrass said that justice reform movements in recent years have focused on prosecutors because they do have the ability to force change through lobbying for new laws and charging decisions, and should not just blame historical inequities in the legal system.

"They are the biggest part of the system, they are the most powerful actor in the legal system," Pendergrass said. "Prosecutors and prosecutors alone make the decision to take an arrest and say, 'Nope, we're not going any further,' or to continue."

For instance, Pendergrass noted that while some might point to police discrimination leading to a disparity in cases entering the system, strong action by a district attorney's office could in theory change such behavior.

"Police should stop arresting people for these crimes if they aren't going to be prosecuted," Pendergrass said. "I think the prosecutors have unparalleled responsibility and unparalleled power to fix racial disparities in the criminal justice system."

Data transparency

Dougherty said that while the study helped to shine a light on some areas the office can improve, he did also note some data points that the study did not take into account that impact case outcomes.

For instance, Dougherty noted the study did not take into account criminal histories of defendants, which have a large impact on sentencing and plea offers.

"Quite frankly, I believe criminal history is quite relevant," Dougherty said. "There's a significant difference between someone who has a criminal history dating back 20 years and someone arrested for the first time."

Former Boulder County District Attorney Stan Garnett, Dougherty's predecessor from 2009 to 2018, also said that in his experience the city of Boulder in particular sees many arrests of people who do not live in the jurisdiction.

"So if you are making comparisons between cases and the permanent population, it may or may not be comparing apples and oranges," Garnett said.

Garnett said he had several similar studies and analyses done in his time in office, and that they can serve a purpose. But he also said that needed to be balanced with a prosecutors job on any individual case.

"Prosecutors under the rule of ethics have to approach each case individually based on the facts of that particular case," Garnett said. "Therefore, how the facts play out in what the ethnic and racial status of a defendant is, is not a factor that a prosecutor can ethically consider. So doing these statistical analyses can be on the one hand helpful in getting the big picture, but also not something useful to use."

But Gardner-Wood said he thinks prosecutors in recent years have better come to understand how data can be useful.

Gardner-Wood said prosecution as a profession has not been data-driven in the past, so this new development is "exciting."

"I think were doing a better job of coming into the 21st century around data and numbers and being data informed when we're talking about our practice and policies," Garnder-Wood said. "Certainly in terms of racial disparity, but just in terms of, 'What is happening in our community and what actions do we need to take?' That's where we want to be and where we are making significant strides.

"The number one issue moving forward is making sure were using the data and making sure we're seeing the disparities decreased."

Vera Institute will issue a final written report later this summer, while Dougherty is commissioning additional research to look at data from 2020 and forward, and said the new research will give a more up-to-date picture.

"There have been a lot of changes since 2019," Dougherty said. "I'm glad that a lot of it has been addressed, but there is still more work to be done."

Starting in the fall, the Boulder County District Attorney's Office will also be one of eight Colorado jurisdictions to partner with Prosecutor Performance Indicators on an online dashboard that will provide the public with case data and information.

"We have 11,000 cases per year, so it's hard to take a step back and look at the data," Dougherty said. "This will allow us to do it every day."

The NAACP in its statement said ongoing data analysis was not enough.

"We know from the Boulder Police Department taking just such steps, which has not achieved any measurable change in the disparate arrests of Black people in Boulder, that this is insufficient," the statement read. "Such racially biased outcomes necessitate bold action that we call on DA Dougherty to take, and the Vera Institute has provided concrete and specific steps our DA can and must pursue."

But Gardner-Wood said data analysis is a key tool that will help the office and the community to evaluate the impact of new policies or laws designed to narrow discrepancies.

"It provides data transparency to the public and allows the public to see the numbers themselves and hold us accountable, and allows us to hold ourselves accountable," Gardner-Wood said. "We can start to track how our policies are impacting that data and see if were able to reform that moving forward and minimize those disparities moving forward. If not, then we can reassess those policies and look at additional policies."

Pendergrass agreed that more data and quicker access to that data is something that should be "a matter of course" for all DA offices if they are to make strides in equity.

"At the end of the day, the most important way of holding elected DA's accountable is is through elections," Pendergrass said. "I think a public dashboard is really important for something like that. The public can say, 'Hey, this is great, we're making real progress,' or 'We're stagnant, and were going backwards.'"