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.”
Still, a handful of scattered studies across the nation over the last two decades have shown people of color are treated more harshly in the plea bargaining process, a September report from the Vera Institute found. A study in Wisconsin found that between 1999 and 2006, among defendants with no criminal history, white defendants were 25% more likely than Black defendants to have their charges reduced. A 2014 study in New York City found that prosecutors were 70% more likely to offer misdemeanor plea agreements that included jail time to Black defendants than to white defendants. Another study in the 1990s in Chicago found no racial disparities when it looked at the number of charges dropped in plea agreements, according to the Vera Institute.
In Colorado, annual statistics compiled under the Community Law Enforcement Action Reporting Act shows that Black and Hispanic people are arrested at disproportionately higher rates than their white counterparts, and are more likely to be sentenced to jail or prison. The state data doesn’t directly examine plea offers or plea agreements.
If the study of the Denver district attorney’s practices finds racial disparities, McCann said she’ll use the data to figure out where those inequities exist and then try to resolve them.
“We’d want to drill down into individual cases, and we’d want to see if there is a pattern in a particular courtroom or a pattern by particular deputies, and then figure out what is happening and why,” McCann said. “And then do either re-education, or education, or we may have to move people. We have to drill down into specific situations.”
The racial disparities that have been found in plea bargaining nationally are typically tied to both individual bias and systemic racism, Johnson said. At the individual level, a white prosecutor might perceive a Black defendant as more dangerous than a white defendant, even unconsciously, and offer the Black defendant a more harsh deal, he said.
The systemic issues, on the other hand, begin well before cases wind up on a prosecutor’s desk, he said, with people of color facing disadvantages outside of the justice system that are carried into the justice system. Criminal histories, for example, which prosecutors rely on when making plea offers, can be impacted by a person’s race, he said.
“Black people, due to this country’s history of discrimination, tend to live in communities that have higher reported crime rates, and a higher police presence as well, and then thus become more likely to have an arrest record or criminal history for things other people might not have histories for,” Johnson said. “Black and white people tend to use drugs at about the same rate in the United States, but Black people are much more likely to arrested, prosecuted and go to jail for crimes related to drugs.”
Prosecutors have wide discretion when making plea offers, and there are no federal or state rules on what offers should be made under what circumstances, Johnson said. Individual district attorneys may set policies for their offices, but aside from that, there’s very little oversight as to what offers are made and to whom.
McCann said she has some general guidelines for her staff when they’re offering plea offers for low-level offenses, but no written matrix or set formula.
“They’re not hard and fast, but they give the young, new deputies a framework for looking at cases and determining appropriate plea bargains,” she said. “I believe in allowing the deputies to have discretion.”
18th Judicial District Attorney George Brauchler also said discretion is critical. His office purposely has no set formula for determining plea offers, he said.
“By design,” he said. “If you had a system that said, ‘If this, then this,’ it’s not a search for justice. You don’t need a person to make that decision, you don’t need an elected district attorney, you can just get a bureaucrat to come in and say, ‘Oh this charge, this factor, that factor, here’s your outcome.’ That is no way to achieve justice in my opinion.”
But, it’s that prosecutorial discretion that Root — the attorney who claims his client was not given a plea agreement because of his race — says prosecutors in the 18th Judicial District abused.
Root’s client, Kenneth Gallegos, 18, is charged with first-degree murder in the 2019 killing of Lloyd Chavez IV, 18. Gallegos, who was 17 at the time of the fatal shooting, was one of four teenagers accused of meeting Chavez in order to rob him. One teenager shot Chavez; Gallegos is not suspected of being the shooter.
Rather, he’s “similarly situated” to the two other involved teenagers who went to the robbery but didn’t wield the gun, Root said. The other defendants, who are white and Hispanic, received favorable plea agreements, Root said, but the district attorney’s office has made no offers to Gallegos, who is Black and Hispanic.
“We’ve been given nothing,” he said. “No offer. No an adult offer, not a juvenile offer, not an offer that involves some sort of prison sentence but not life, or a huge chunk of the rest of his life. So I’m looking at it and saying, ‘Why is he being treated differently?’ I cannot get into the head of the prosecutors, and I’m not calling [the prosecutors] racist, but I’m saying the effect of their decision making — it appears to have some basis in race.”
In a reply to Root’s allegation, the office said in a court filing that Gallegos played a bigger role in the crime than the teenagers who were offered plea deals. Gallegos came up with the idea of the robbery, recruited the others to join the plan and asked the fourth teenager to bring a gun, according to the reply.
“Such conduct clearly defines this defendant, absent any consideration of race or gender as the prime mover of the criminal actions which gave rise to the felony murder in this case, and culpable, (in the estimation of the People) on the level associated with the actual shooter, (who, himself, currently faces direct filed murder charges),” the filing reads.
Root and his co-counsel, Katherine Hartigan, disputed that account, but said even if Gallegos did take a leadership role, that shouldn’t entirely exclude him from a plea offer.
“There is such a stark difference between being offered a juvenile plea to probation versus not being offered anything in a felony murder case as an adult,” she said. “They haven’t even offered Kenny 16 years in adult prison, or 8 years in adult prison….It’s hard to say that is anything else but race-motivated when the facts place him in similar places.”
Brauchler declined to discuss the specifics of Gallegos’ case, but said his prosecutors do not consider race when making plea offers.
“Sweet Jesus, not a single time,” he said. “With this exception: if it is a hate crime. If it is crime predicated on a white supremacist going after an African American, that’s baked into the facts. But what the race of the victim is or the offender, never ever, ever comes up.”