The case for screening

Published July 27, 2022

***UPDATE 2/24/2023: Some sentencing statistics in the Findings section of this report were updated based on improved sentencing data and selection of a more appropriate subset of data for sentencing analyses. These edits are described in the relevant sections of the report and do not alter any of the original report recommendations.

Introduction

No matter how equally prosecutors treat people, racial disproportionalities in policing will lead to disproportionalities in who is charged, convicted, and incarcerated. Data analysis shows disproportionate rates of arrest for Black individuals in Charleston and Berkeley Counties, South Carolina, that cannot be explained by different rates of criminal conduct alone, particularly with regard to drug charges.

Data exploration also reveals that at least some of this racial disproportionality is driven by arrests on cases with insufficient evidence or that otherwise fail to meet evidentiary standards. High volumes of lower-severity charges without sufficient supporting evidence are a burden on prosecutors' time and divert resources from the prevention and prosecution of more serious crimes. Furthermore, prosecutors are often inundated with review of lower-level crimes charged with enhancements for repeat offenses that greatly increase punishment. Such crimes require significant review time from prosecutors to assess an individual's criminal history and the circumstances around repeated arrests. Prosecutors have the power to alleviate these issues through a process of upfront evidentiary reviews and assessments of the value of prosecution to the community.

A case screening process, where charges referred for prosecution receive a preliminary review, can be used to identify cases for quicker disposition and improve outcomes for arrestees, victims, and the local community. Case screening enables prosecutors to quickly dismiss charges that fail to meet evidentiary standards of proof and identify cases that could be better resolved with alternatives to prosecution, such as pretrial diversion. Timely dismissals reduce the negative impact of prolonged disposition times on arrestees and can improve public safety by allowing prosecutors to prioritize the most serious charges. Case screening is particularly urgent given significant backlogs exacerbated by the COVID-19 pandemic. As of June 2022, there were 13,592 total undisposed General Sessions Court cases under the purview of the Ninth Circuit Solicitor's Office (SOL9),

Without intervention, it is predicted to take over 6 years to clear the current case backlog.

In addition to screening cases for evidentiary issues, setting standards for review and charging of lower-level repeat offenses will help guide prosecutors in quicker decision-making and resolution of such cases. These standards will give greater certainty to prosecutors and defense attorneys in any plea negotiations, which will reduce the time to resolve such cases.

Over the last year, Justice Innovation Lab (JIL) and SOL9 worked together to analyze case trends and develop a data-informed approach to improving outcomes through prosecutorial screening. This report summarizes major findings from these analyses and discusses results from a pilot screening unit with Charleston Police Department. Based on this work, Justice Innovation Lab devised a number of recommendations for screening cases to reduce case backlogs and the time to resolve cases and to provide timely feedback to police.

Findings

The Disparity and Prosecution in Charleston, SC report published in 2021 by JIL, SOL9, and Prosecutorial Performance Indicators (PPI) found that, overall, prosecutors treat “similarly situated” defendants similarly, and there are few racial disparities in outcome probabilities once cases are referred to SOL9. However, the large, raw racial disproportionalities in the number of people arrested, charged, and prosecuted create large disproportionalities in the number of people sentenced to incarceration.

JIL and SOL9 subsequently worked together to identify prosecutorial opportunities to reduce the impact of disproportionate arrest rates through analyses of SOL9 General Sessions cases (Charleston and Berkeley Counties) from 2015-2021 involving those identified by the arresting agency as Black or white and male or female.

Arrests

Black people are disproportionately arrested relative to white people.

• On average, there were 36.1 cases involving a Black arrestee per 1,000 Black residents and 11.1 cases involving a white arrestee per 1,000 white residents in Charleston and Berkeley Counties combined between 2015 and 2020, indicating that Black adults are 3.3 times more likely to have a criminal case in General Sessions Court compared to white adults.
• This difference is even greater for males, with 69.5 cases involving a Black male arrestee per 1,000 Black male residents compared to 16.2 cases involving a white male arrestee per 1,000 white male residents, indicating that Black male adults are 4.3 times more likely to have a criminal case in General Sessions Court compared to white male adults.
• Despite Black residents
  comprising only ~26% of the population in Charleston and Berkeley Counties combined
  , Black people make up 54.2% of referred cases.

Dismissals

Black arrestees are more likely to have their charges dismissed relative to white arrestees, indicating racial disparity in arrest quality. The 2021 report on Disparity and Prosecution in Charleston, SC analyzing data for Black and white men in Charleston County, SC showed the following:

• There is a statistically significant difference in dismissals by race
  , with Black men having a 21.4% likelihood of having their case dismissed, compared to 18.6% for white men.
• Black men have nearly twice as many cases dismissed as white men.
• On average, it takes over 6 weeks (44 days) longer for Black men to have their case dismissed relative to white men.

Insufficient evidence

The most common reason for charge dismissal is lack of sufficient evidence. JIL and SOL9 analyzed data from hundreds of Charleston and North Charleston Police Department cases

• Possession of contraband (guns or drugs) is sometimes impossible to prove where multiple people are arrested for possession of the same contraband, such as when people in the same car are all arrested for possession of drugs found in the car. In such instances, cases against most of the arrestees will be dismissed for insufficient evidence.
• Gun charges
  are more likely to be dismissed due to insufficient evidence than to result in a guilty disposition. This can be partially explained by gun charges having a positive correlation
  with the presence of multiple defendants.
• Searches by law enforcement officers based on a warrant are correlated with insufficient evidence dismissals. These situations tend to involve searching a building and multiple arrestees.

Sentencing

The 2021 report on Disparity and Prosecution in Charleston, SC found that Black and white men have similar likelihoods of being incarcerated after controlling for personal and case characteristics. However, given the larger number of Black men arrested, charged, and prosecuted in Charleston County, over twice as many Black men than white men receive custodial sentences.

• Black men accounted for 63.8% of cases but 67.6% of carceral sentences among Black and white men in Charleston County from 2015-2019.
• On average, Black men receive sentences that are about twice as long as those of white men. This difference is accounted for, though, by differences in the individuals’ criminal history and the number and type of charges for which the individual is prosecuted.

Escalating punishment

Escalating punishment for repeat convictions, which often carries mandatory minimum sentences, significantly increases sentence lengths. This disproportionately affects Black people since they are arrested far more frequently. Charge escalation, or "enhancement," is particularly relevant for drug and property charges in Charleston and Berkeley Counties. Case screening can be used to help reduce the disparate impact of escalating punishment. Through screening, weaker cases are less likely to be prosecuted, providing prosecutors with additional time to focus on more serious crimes. Furthermore, by setting standards for charging these crimes, prosecutors can act more quickly when initially reviewing these crimes - separating the serious from the less serious and resolving cases faster.

Drug charges

Drug charge prosecution disproportionately impacts Black communities, despite data indicating that Black people are no more likely to use drugs than white people.

• In small metro areas, 8.9% of white survey respondents indicate recent non-marijuana drug use, compared to 6.5% of Black respondents. For illegal drug sales in small metro areas, 1.4% of white respondents and 1.7% of Black respondents indicate this activity within the past year.
• However, the Disparity and Prosecution in Charleston, SC report found that Black men are roughly 6 times more likely overall than white men to be arrested on a drug charge. When combined with the sheer volume of drug cases, this means that drug arrests significantly influence all downstream trends in the prosecution process.
• Nearly three times as many Black men convicted of a drug crime in Charleston County receive a custodial sentence compared to white men.

The following analyses consider the carceral impact of subsequent offense drug charges (charges that occur subsequent to a prior drug charge conviction) for 1) possession and 2) manufacturing, distribution, or possession with the intent to distribute (MDP). To best isolate the impact of subsequent offense charging, only cases without any other type of charge (gun, property, etc.) are included in the analyses. Additionally, only the top (most severe) charge in these drugs-only cases is analyzed to avoid potential double-counting of concurrent sentences for charges within the same case. In the original version of this report, cases that included non-drug charges were included, which could have led to drug sentencing statistics being influenced by non-drug charges.

• The majority of cases involving drug possession or MDP charges do not include any type of non-drug charge. Of these closed cases between 2015 and 2021, 66.9% involve only possession or MDP charges.
• Overall, 16.7% of drugs-only cases involve a 2nd or 3rd offense charge. However, these subsequent offense charges account for 43.0% of sentenced time in drugs-only cases as a result of escalating punishment.
• As shown in the chart below, substantially more sentenced time stems from subsequent offense drug charges for Black people compared to white people. For white people, 13.3% of cases and 24.8% of sentenced time stems from subsequent offense charges, whereas for Black people, 20.3% of cases and 58.4% of sentenced time stems from subsequent offense charges.

• Race was not found to be a significant predictor of drug sentencing differences when controlling for characteristics such as charge category, race, gender, number of charges / prior convictions / victims / defendants, and defense counsel type.
• However, disproportionate arrest rates combined with escalating punishment for subsequent drug offenses contribute to Black people accounting for 54.2% of time sentenced in these drug cases, despite making up only ~26% of the local population.
• The chart below provides information on median and mean sentence length, as well as total cases and days sentenced, for MDP and possession charges. Note that there are few cases for some categories, more often for white people than for Black people. Statistics are less reliable with fewer data points; therefore, mean and median sentence calculations are only shown where there are at least 30 cases. The error bars shown for mean sentence length represent the 95% confidence interval. A larger error bar indicates more uncertainty in the mean sentence value, and vice versa.

• The majority (82.4%) of guilty, drugs-only cases where a person is incarcerated involve only incarceration that occurs prior to case disposition. This pre-disposition incarceration amounts to 21.3% of the total sentenced time in these cases. The overall median length of pre-disposition incarceration is 18.0 days, while the overall mean is 42.8 days.

Property charges

Enhanced property charge convictions have a major impact on incarceration. Certain lower-level property charges are eligible for felony enhancement

• Property charges are involved in 21.2% of General Sessions Court cases, representing the second-largest portion of SOL9 caseloads (after drug charges).
• The two most common property arrest charges, low-value shoplifting with enhancement (which would be a misdemeanor without enhancement) and breaking into motor vehicles, contribute greatly to SOL9 property caseloads. These two charges account for 27.5% of property arrest charges (14.9% and 12.6%, respectively).

• The felony property enhancement was charged at arrest for 29.6% of property charges processed by SOL9.
• Shoplifting (value ≤ $2,000) is by far the most common charge with the property enhancement, accounting for approximately half of all property charge enhancements at arrest (50.3%).

• Despite many of the most common property charges involving relatively low property values, most people convicted of such crimes are detained or incarcerated for 5 or more days.

• When a charge includes the felony property enhancement, the median and mean sentence lengths increase significantly. For the top charge in cases with only property charges, the chart below shows the median and mean sentence lengths for charges with and without the property enhancement, for charges involving both lower-value property (less than $2,000) and higher value property (over $2,000). Charges where the property value is less than $2,000 are misdemeanors unless the case is charged with the property enhancement.

Costs of the status quo

Prolonged incarceration for non-violent offenses imposes significant costs to the jurisdiction, both monetarily and societally. A case screening process that includes alternatives to prosecution should ultimately lead to reduced incarceration for lower-level, non-violent offenses. Decreasing use of incarceration will reduce costs which would allow more jurisdiction resources to be spent addressing root causes impacting crime rates, such as poverty and inadequate mental health treatment.

Monetary costs:

• The maximum potential property value for all convictions for enhanced shoplifting under $2,000
  is $2.1 million.
  The cost to South Carolina for the incarceration associated with these charges is much greater: $24 million at an estimated ~$21,000/year.
• Without escalating punishment for possession and MDP drug charges, there would be 946 fewer years of incarceration sentenced, saving South Carolina approximately $20 million, based on the estimated incarceration cost of $21,000/year.
• People are unable to earn income while incarcerated and have drastically reduced employment prospects once released, which impacts individuals, their families, and communities. They may also bear the burden of significant fines and fees associated with their incarceration.

The above costs do not include non-monetary societal costs, such as:

• Exposure to physical danger, emotional trauma, and poor health care while incarcerated.
• Severed family ties, including loss of caregivers for vulnerable populations.
• Issues after release:
  • Obtaining housing
  • Obtaining employment
  • Loss of voting rights
  • Loss of public benefits

Benefits of screening

Case screening is a tool that helps prosecutors make just decisions while reducing case disposition times, allowing more resources to be focused on cases with the greatest impact to public safety. Faster removal of cases with insufficient evidence from the system reduces the significant burdens on arrestees of having a pending case. Having clear standards for reviewing and charging lower-level enhanced offenses also saves prosecutor time and provides greater certainty.

• Quickly removing weak cases from the system allows prosecutors and the courts to focus on higher priority cases with greater impact to public safety.
• Reducing the number of days awaiting disposition could significantly impact many people touched by the criminal legal system. For example, if all charges disposed of for reasons that could be identified at charge referral were disposed within 100 days, the average person would save ~4 months (121 days) awaiting disposition. This reduction would provide the largest benefit to Black people, who would save ~5 months (155 days) awaiting disposition, reducing racial inequality. Overall, disposition delays have a greater impact on Black arrestees.
• Continuous analysis of case data to identify elements commonly associated with dismissals can help screeners decrease case disposition times and reduce prosecutor workload. This will also allow prosecutors to provide feedback to the police on better, more effective policing practices.
• Screening and applying charging standards can be used to help reduce the disparate impact of escalating punishment for subsequent drug and property offenses.
• Experienced screening attorneys can provide helpful feedback to police to improve in their collection of evidence.
• A screening process that includes alternatives to prosecution can help the office more quickly direct arrestees to appropriate services that are more likely than incarceration to alleviate root causes of crime.
• Ultimately, case screening should lead to reduced incarceration for lower-level, non-violent offenses, which will benefit society as a whole.

Early disposition opportunities

A large proportion of dispositions are for reasons that could be identified at charge referral; these are referred to herein as "early opportunity codes", or EOCs.

• Approximately 23% of defendants had at least one case closed using EOCs exclusively.
• Currently, the median time to EOC charge disposition is 221 days.
• The median time to EOC disposition is longer for Black arrestees relative to white arrestees for every crime category.
• The percentage of total charges disposed of using an EOC is slightly higher for Black people (16.0% vs 14.6%).
• Black arrestees already have more charges dismissed using EOCs than white arrestees overall; the biggest difference is for the most common EOC, insufficient evidence, where Black arrestees have over twice as many dismissals as white arrestees (2,480 vs 1,139 charges).
• Drug charges are the most likely charges to be dismissed using an EOC.
• For arrestees with no prior pending arrests or subsequent arrests while awaiting disposition, Black people wait an average of 67 days longer than white people for EOC dismissal of a drug charge (262 vs 195 days).

Preliminary screening results

SOL9 began a pilot screening program with Charleston Police Department in May 2021 and initial data indicate that screening can identify cases that should be removed from the criminal legal system. Screening resulted in increased identification of charges that should be dismissed or receive an alternative to prosecution, particularly for drug charges. Analysis of screening survey results for 344 warrants among Black and white males and females, spanning 31 commonly-dismissed arrest charge codes, found that:

• Rates of dismissal recommendation for screened charges were 32.6% for Black people and 20.8% for white people, compared to dismissal rates for comparable unscreened charges of 21.5% and 18.7%, respectively.
• The dismissal recommendation rate for screened drug charges increased dramatically for Black people (47.6%) relative to the unscreened drug charge dismissal rate (18.2%), whereas these rates remained similar for white people (19.3% unscreened vs 20.0% screened). This indicates that Black people are more often arrested on weaker evidence.
• For white males, the dismissal recommendation rate for screened charges (13.9%) actually decreases relative to unscreened charges (17.9%).
• Preliminary screening results indicate that many charges would be dismissed were it not for an arrestee having other pending charges. It may be appropriate for future screeners to limit consideration of pending arrests on dismissal decisions.

Justice Innovation Lab recommendations

Based on the findings of this report and further interviews with SOL9 staff, Justice Innovation Lab devised the following recommendations.

Police

• Provide police reports to prosecutors as quickly as possible so that prosecutors can swiftly dispose of weak cases and identify those appropriate for diversion programs.
• Establish collaborative feedback sessions with prosecutors to gain more understanding of why certain cases are dismissed and work to reduce those types of arrests.
• Provide victim information to prosecutors as soon as possible.
• Reduce arrests stemming from pretextual stops for contraband. Such arrests rarely result in prosecutable cases due to evidentiary issues.
• Establish guidelines for the use of property charge enhancements for low-value thefts such as shoplifting to ensure that punishment is proportionate to the crime.

Prosecutors

• Use a screening attorney to review non-violent charges for legal sufficiency and diversion opportunities. Non-violent offenders make up a large proportion of prosecutors' caseloads and often involve evidentiary issues. Review of those cases by a devoted attorney can help alleviate caseloads and provide prosecutors with additional time to focus on more serious crimes.
• Collaborate within the office to ensure consistent data recording, such as defining scenarios for which certain dismissal codes are applicable (or not applicable).
• Contact victims as soon as possible to receive input on desired outcomes of criminal cases.
• For defendants who have multiple arrests, focus on the most serious charges and consider whether the non-serious charges have any impact on community safety or the results in the most serious case.
• Continue diverting or remanding low-value property thefts.
• Limit use of charge enhancements whenever the impact is disproportionate to the crime.
• Evaluate the impact of case screening by working with Justice Innovation Lab to analyze case statistics, such as dismissal rates.