No Racial Bias in Decisions of Milwaukee County District Attorney

This morning Wayne McKenzie of the VERA Institute presented the results of a large-scale study of decision-making in the Milwaukee County District Attorney’s office at the Marquette Law School. A small crowd including several Marquette Law School students, a few “community activists,” a couple of Marquette faculty and District Attorney John Chisholm was present.

The study included 52,784 felony and misdemeanor accusations brought to the District Attorney’s office in calendar year 2006.

There are many points in the criminal justice process at which racial discrimination might show itself, including the decision to prosecute (the DA’s office simply declines to prosecute some cases), the decision as to what charges are appropriate, the decision as to what plea bargain to offer (over 90% of cases are plea bargained), and what sentence to recommend for a guilty offender.

The VERA institute studied one of these: “declination,” the decision not to prosecute a particular person accused by the cops of a crime.

The results were virtually identical by race. 40% of the misdemeanor charges against whites were not prosecuted, and 40% of such charges against non-whites were likewise declined. Where felonies were concerned, the declination rate was 32% for whites, and 33% for non-whites. That’s about as equal as you can get.

Of course, equality in the aggregate can mask fairly serious disparities in specific cases, so the VERA Institute “drilled down” to see whether specific categories of crime showed a pattern of racial inequality.

There was one, although it was a fairly minor one.

VERA found that in cases of possession of drug paraphernalia (a misdemeanor) 41% of the time whites were not prosecuted for the crime, but in only 27% of the cases was prosecution of cases against non-whites declined.

Does this suggest racism at work? It would be odd if prosecutors who are fair in dealing with the vast majority of offenses put on their white sheets and turn into Klansmen for this one kind of offense.

District Attorney Chisholm investigated, and found that the very junior and inexperienced prosecutors in the misdemeanor unit were looking at cases where black drug offenders had large numbers of prior offenses, and deciding to go ahead with prosecution.

It wasn’t racism, it was a racially neutral process operating to the detriment of (mostly) black offenders.

So that means there isn’t a problem, right?

Even a racially fair process has to pass a cost-benefit test, and Chisholm argued convincingly that prosecution of this particular offense doesn’t meet it (except in unusual cases, such as when the person charged is a known gang leader). Not only is this charge difficult to prove in court, the typical sentence is only a month in jail, if it involves incarceration at all.

These offenders, for the most part, are addicts (drug dealing is a felony), and aren’t going to be helped by the sentence.

Chisholm has responded to this situation by merging the felony and misdemeanor units, such that more experienced prosecutors get to look at these cases.

As the debate over the supposed “disproportionate” incarceration of blacks in Wisconsin continues, we can point to this case as an example of doing things right. Former District Attorney E. Michael McCann initiated a study that was clearly a bit politically risky. The study mostly vindicated his office (since occupied by Chisholm), but when one area of questionable practice was found, the DA moved decisively to fix it.

Things are supposed to work like that, although they rarely seem to.