An effort will be made during the 2020 Legislature to quantify how implicit racial biases may be contributing to Utah’s high rate of minority incarceration.
“We all have bias,” said state Rep. Marsha Judkins, R-Provo. “I have bias.”
Judkins is working on a prosecution transparency bill that would require collection of data about how arrest, charging, sentencing and parole decisions may be influencing racial disparities.
According to the Utah Sentencing Commission, 43.2% of people receiving new prison sentences in fiscal year 2017 were racial or ethnic minorities. U.S. Census data that year showed minorities made up 20.7% of Utah’s population.
“Prosecutors have incredible power and an almost complete lack of transparency, checks and balances and oversight over their decisions,” Judkins told the Legislature’s Judiciary Interim Committee in a recent meeting.
Those decisions include who to prosecute, what to charge, when to plea bargain or dismiss cases and what lengths of incarceration are recommended.
The issue is also vital to examine because Utah’s prison population is rising faster that any other state but Idaho’s, Judkins said.
There is indisputable overall statistical evidence of racial disparities in arrests, bail, charges and plea deals, Judkins said.
“But we don’t know many of the drivers of this,” she said. “This blind spot is due to our lack of specific data on the intermediate steps in the criminal justice system.”
She said her bill, still being developed, would list data points to be collected by county prosecutors so analysis of disparity trends would be possible.
Judkins said she will request that the Utah Commission on Criminal and Juvenile Justice add a full-time staff position to help the counties get up to speed on data collection.
“Maybe everything is fine” with prosecutorial decisions, “but we don’t now what we don’t know,” said Kim Cordova, commission director.
“We’re spending a fantastic amount of money on our prison and that’s just to build it,” said Rep. Steve Waldrip, R-Eden. “That doesn’t include the cost of putting people in there and keeping them there.”
Without better data on how disparities might be occurring, “we’re just left with our hunches,” Waldrip said.
Judkins said she has heard “sad stories” of people who feel they were wronged by prosecutorial misconduct, but it needs to be determined whether such outcomes are outliers.
A PROSECUTOR’S VIEW
Davis County Attorney Troy Rawlings said Wednesday distinctions must be made between discrimination and disparity.
“I have taught classes at the university level on this very topic,” he said. “Often those significantly different concepts get conflated by those wanting to equate outcomes with malicious motivations.”
He said he would not oppose an effort to gather “accurate, meaningful, relevant data” if the state pays for the workload.
“We are so busy with cases we do not have time to adequately address an unfunded mandate if poorly and sloppily imposed by the state of Utah,” Rawlings said in an email.
He said he suspects some may harbor predetermined notions that prosecutors “have implicit racial or ethnic biases against minorities, driving unfair use of prosecutorial discretion and violations of equal protection and due process.”
He added, “I would appreciate the opportunity to rebut that false presumption with respect to Davis County using relevant, accurate data.”
‘THE CONVERSATION IS DIFFICULT’
Jason Groth, a former public defender, said talking about the disparity issue “is not easy, but it’s necessary.”
Groth worked on a 2018 report by the American Civil Liberties Association of Utah that bored into the extent of mass incarceration in Utah and recommended steps to reduce the tide.
By implementing shorter sentences and more alternatives to incarceration, Utah could cut its prison population by almost 3,000 people by 2025, saving the state over $250 million, the report said.
The average daily prison population stood at 6,787 in September, up 169 from the same month in 2018.
The racial disparity component is one factor to tackle toward that end, Groth said.
“The biggest pushback we are seeing is those challenging the idea that there are racial disparities because of implicit bias,” Groth said. “That conversation is difficult.”
He said it requires that prosecutors, defense attorneys, judges and probation and parole personnel be willing to take a hard look at their practices.
“They may have done their jobs for quite some time and don’t notice bias ... and it’s hard to be critical of yourself as an individual and your office as well,” Groth said. “It feels like you’re being called a racist.”
The ACLU did allege in a 2015 lawsuit against Weber County over the Ogden Trece gang injunction that racial animus motivated local authorities. But a federal judge recently ruled that the civil liberties group failed to prove the injunction was driven by anti-Hispanic intent.
In a 2017 report, the ACLU said Hispanics and other people of color in Weber, Davis and Morgan counties are more likely than whites to end up in the juvenile justice system, relative to their share of the population.
RACIAL MITIGATION AT SENTENCING
Groth said meanwhile that he is intrigued by discussions at the Utah Sentencing Commission about potential consideration of racially related mitigating factors at sentencing.
“This would be pretty unique in the United States,” Groth said. “The general idea is that you can discuss race and ethnic mitigating factors at sentencing, especially in the context of disparities, and get a reduced sentence.”
Sentences still ultimately would be up to the judges.
Mitigation at sentencing could be “a fix, not the best, but a necessary one until the root causes of the issues are addressed,” he said.