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Report: Racial Disparities Stem from Police Charges

by Seth Hemmelgarn

Leslie Elliott, left, who her attorneys said was overcharged at the time of her booking, described the negative consequences that followed as Deputy Public Defender Elizabeth Camacho looks on at a June 27 news conference
Leslie Elliott, left, who her attorneys said was overcharged at the time of her booking, described the negative consequences that followed as Deputy Public Defender Elizabeth Camacho looks on at a June 27 news conference  (Source:Rick Geharter)

Racial disparities in San Francisco's criminal justice system stem largely from the charges police book people on, according to a report the city's top defense attorney has released.

Citing issues raised in the report, "Examining Racial Disparities in Criminal Case Outcomes among Indigent Defendants in San Francisco," Public Defender Jeff Adachi announced the formation of the Pretrial Release Unit, which will scrutinize people's initial charges for bias.

"The disparities that later manifest themselves in every area," from arrest to conviction, come from booking charges, said Adachi at a news conference June 27.

The study shows that people of color receive more severe charges when they're first booked. Those charges reflect decisions made by police and other booking agencies. Public defenders aren't assigned to cases until defendants are arraigned. By that point, they've already spent up to five days in custody, according to the public defender's office.

The new unit, which will launch in October, will have two deputy public defenders and an investigator. The team will step in after someone's arrested and before they're arraigned to review police reports and conduct a preliminary investigation to make sure that the defendant hasn't been overcharged.

The unit's formation was prompted by findings of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, which did the study based on a review of 10,753 case records from 2011 to 2014 provided by the public defender's office. The center and the law school funded the study.

Researchers found that "Black defendants are held in pretrial custody for an average of 30 days, 62 percent longer than whites."

"Black defendants are convicted of 60 percent more felony charges than white defendants," the report says.

Much of the study is devoted to trying to find factors other than race that may explain the outcomes researchers found.

"The black/white differences in booked charges cannot be explained by factors such as age, homelessness or poverty, or crime rates in the neighborhoods in which black citizens reside or routinely encounter police," the report says.

However, it says, "There may be unobserved, legally relevant factors other than bias (e.g., actual criminal conduct, or how particular individuals interact with officers) that are unaccounted for in the analysis and explain the observed disparities."

Researchers also said in the report that while raw data "shows a disparity in the number and severity of felonies charges against blacks versus whites," when they adjust for "various contextual factors, we see no statistically significant differences in the number or severity of charges added by prosecutors for either black or Latinx as compared to whites. This suggests that the discretion of the booking (police) officer is more impactful than that of the district attorney in terms of the disparities and seriousness of charges filed."

At last week's news conference, though, Adachi said that prosecutors are supposed to investigate cases independently.

"The district attorney is merely accepting what the police are saying," said Adachi, who repeatedly pointed to race as a factor in what happens to defendants throughout the criminal justice process, since it has such an apparent weight on booking charges.

Adachi predicted other officials would react to the report by saying, "Oh, we don't consider race in deciding what happens," but he said, "That's not a satisfactory answer to the study."

Asked in an email about the idea that race is a factor in charging decisions, San Francisco Police Department spokesman David Stevenson said, "Our officers charge individuals based on the elements of the crime(s) present. The standard for an arrest is based upon probable cause. Whether a case moves forward or not depends on the district attorney's office ability to prove the case beyond a reasonable doubt."

Max Szabo, a spokesman for the district attorney's office, said in an email, "Nobody disputes that there is bias in the criminal justice system, but the public defender's allegations suggest he failed to read his own report, wherein three individuals with doctorates found no statistically significant difference in the number or severity of charges added by prosecutors for black and Latino defendants compared to whites."

Szabo pointed to initiatives such as the Blue Ribbon Panel on Transparency, Accountability and Fairness in Policing, which District Attorney George Gasc-n created in 2015 after local law enforcement scandals emerged, including police officers allegedly exchanging racist and homophobic text messages.

Gasc-n's initiatives show "the DA takes his role in ensuring bias does not affect the fair administration of justice incredibly seriously," said Szabo.

Mayhem Case

At the news conference, Leslie Elliott, a 65-year-old black transgender woman, spoke about her case. Jurors recently acquitted Elliott of mayhem, assault with great bodily injury, and other charges, but convicted her of a misdemeanor count of resisting arrest.

Elliott said that she'd been leaving a coffee shop trying to get the victim's dog to leave her alone. The victim, who's white, shook her, and Elliott's coffee spilled, she said.

Deputy Public Defender Elizabeth Camacho said, "An officer decided that a spilled cup of coffee was mayhem, and it was not. This was an accident."

Camacho said that when she first heard what the charges were, she'd expected to learn that the victim had lost an eye or been otherwise seriously injured. She also said prosecutors stuck with the mayhem charge even after a judge found there wasn't enough evidence to hold Elliott for trial on it.

Elliott, who spent almost four months in custody on $300,000 bail, could have been sentenced to 27 years if she'd been convicted on the charges. She was released just days before she spoke to reporters, telling them she still feels "fear and anxiety" because of what happened.

San Francisco supervisors have approved funding $335,557 for the first fiscal year of the public defender's Pretrial Release Unit, which is based on a similar effort by the Miami Dade Public Defender's office in Florida.


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