Most criminal justice in Colorado comes through plea deals, but DAs don’t track whether the process is racially biased

As the nation reckoned with George Floyd’s death and protesters demonstrated against racism across Colorado this summer, Denver attorney Mike Root filed a motion in court that claimed the 18th Judicial District Attorney’s office made a racist decision in his client’s case.

Root claimed prosecutors offered plea agreements to two non-Black defendants, but not to his client, who is Black and Hispanic, even though all three co-defendants were accused of taking similar action during an attempted robbery that turned into a homicide. The district attorney’s office called Root’s allegation of racism “utterly unsubstantiated” and “entirely without merit” in a reply filed in court, and a judge has yet to rule on the motion.

But the accusation that the criminal justice system is inherently racist has been leveled repeatedly by activists and protesters since Floyd’s death — at times this summer it was literally shouted from Denver’s streets — and a major part of that system is plea agreements.

Only about 1% of criminal cases in Colorado in 2019 ended in trial, according to state data. The vast majority of cases instead ended in negotiated settlements between prosecutors and defendants. But while nearly all justice is doled out through plea bargaining, none of the district attorney’s offices in the Denver area track the data necessary to know if there are racial disparities in the way prosecutors offer plea agreements.

Two offices — in Boulder and Denver — have efforts underway to examine their practices for racial inequities.

“Criminal justice is not a silo,” Boulder County District Attorney Michael Dougherty said. “The criminal justice system reflects who we are as a people. To the extent we have poverty, that flows into the justice system…and to the point we have racism, you see that exist in the justice system. We need to do more in the justice system to address it head on.”

His office is working with the Vera Institute of Justice, a national nonprofit research center, to look for racial disparities in arrests, jail bookings, plea offers, charging decisions and sentencing during an 18-month span.

A similar effort is underway in Denver, where District Attorney Beth McCann has partnered with a former University of Colorado-Denver professor to examine charging and plea offers in felony cases over the course of a year.

Both district attorneys see the research, which they expect to be finished in early 2021, as a starting point, rather than a comprehensive analysis, because the complex and subjective process of crafting a plea agreement is difficult to quantify in statistics.

Prosecutors consider a wide range of factors when they’re deciding whether to propose a plea offer, including the strength of the evidence in the case, what the victim wants to do, the defendant’s criminal history, the seriousness of the charges and mitigating factors, like a defendant’s upbringing or drug addiction.

“It’s not as though, generally speaking, these negotiations happen in the courtroom where anyone can watch,” said Akhi Johnson, a deputy director at the Vera Institute. “Typically they’re done in one-on-one conversations between a prosecutor and a defense attorney. And generally speaking, there is no requirement to document those conversations on the court record, and indeed, many offices– if not almost all — don’t systemically keep track of those negotiations in a way that makes them easy to analyze.”