In most cases, a lack of funding and difficulties implementing new technologies were at the root of their problems, prosecutors said.
The measure, which took effect Jan. 1 , mandates a practice known as "race-blind" charging. District attorneys' offices must now redact information that could identify a person's race from police reports before making a charging decision, through either autonomous technology or an employee who isn't otherwise involved in the case.
The law seeks to eliminate both overt and subconscious bias in a system that historically has yielded disproportionate impacts for defendants of color through harsh punishments, such as lengthy prison sentences.
As part of the race-blind process, redactions include not only the suspect's name and race, but other potential tip-offs, including the name and races of victims, the neighborhood in which the crime was committed, and the suspect's criminal history.
The adjustment was relatively painless for the dozens of offices that already use a case management system that offers the race redaction technology. For others, including the San Francisco District Attorney's Office , the shift requires finding hundreds of thousands of dollars in already cash-strapped budgets — and remaining out of compliance with the law until they do.
"Right now we are in a holding pattern," said District Attorney Brooke Jenkins . "We've not been able to kick this off of the ground because we just simply don't have the tools that we need in order to do it."
Jenkins said the policy will require a roughly $1.4 million annual boost to the office's budget, which would include $200,000 for new software and the hiring of six paralegals and one additional attorney. Her office's request for the funding didn't make it through last year's budget cycle, but Jenkins said she presented the issue again in a recent preliminary discussion with newly elected Mayor Daniel Lurie .
"He is, of course, trying to balance everything ... with an $867 million deficit," Jenkins said.
San Francisco does, however, have experience with race-blind charging. Former District Attorney George Gascón in 2019 launched the Stanford Computational Policy Lab's redaction technology, which has served as a model for other counties.
Cristine Soto DeBerry , Gascón's chief of staff in San Francisco , said the program was paused while the office focused on the technology demands of the pandemic.
A spokesperson for the California Attorney General's Office , which issued guidance on the new law to prosecutors, said the office does not know how many district attorneys' offices had not yet implemented the policies. There is no penalty for failing to comply.
In Alameda County , the Board of Supervisors declined the district attorney's request for additional funding for the current fiscal year to fully implement race-blind charging, said Chief Assistant District Attorney Royl Roberts , who took charge of the office after the recall of Pamela Price .
Upgrades to the office's in-house case management system were underway to integrate redaction features, but it remains uncertain whether the office will get the money for a second phase of upgrades that will allow prosecutors to document their charging decisions, a step required under the law. The office estimated the technology upgrades will cost about $100,000.
Alameda County Public Defender Brendon Woods said he believed gaps in funding and technology hurdles were poor excuses for not complying with the law.
Yet he does not completely back race-blind charging, in part because it could allow prosecutors to "hide behind" the process, falsely claiming that it eliminates biases in the criminal justice system. Prosecutors could still seek harsher sentences for defendants of color, Woods said.
"Race-blind charging does not prevent racist results" in the criminal justice system, he said. "It has its value, but ... it's not what it's cracked up to be."
Under the new law, prosecutors must review redacted reports first, then the original versions, documenting any changes to their charging decisions. The law exempts some crimes from the race-blind evaluation process, including homicide, hate crimes, domestic violence and sex crimes.
Yolo County prosecutors were among the first in California to embrace race-blind charging, in 2021. District Attorney Jeff Reisig had implemented implicit bias training for prosecutors and other staffers but said he wanted to do more to mitigate biases in the criminal justice system, so the office partnered with a group of researchers to design and integrate an algorithm into its case management system to redact information from police reports.
"We all have implicit biases that we need to address," said Michael Works, chief of innovation and transparency at the Yolo County District Attorney's Office .
The results are not yet clear. The office and researchers at the Harvard University -based Computational Policy Lab plan to analyze data on charging decisions in the coming months to review the impacts of race-blind charging.
Required to follow suit under the new law, multiple counties gained access to redaction technology through their case management system provider, ProsecutorByKarpel, at no cost thanks to a partnership with the Harvard researchers, who developed the software. Others contracted with other providers for as much as about $500,000.
Counties such as San Joaquin and Contra Costa emerged as early adopters of race-blind charging under the new law. Prosecutors in both jurisdictions integrated redaction software into their case management systems in December.
In San Joaquin County , the district attorney's office contracted with Sicuro Data Analytics at a cost of $455,000 for five years, including $52,500 for the implementation of the technology.
San Joaquin County District Attorney Ron Freitas welcomed the state-mandated process as an opportunity to show the public that prosecutors pursue criminal charges based on evidence, not suspects' race. "We want the facts to decide the case," Freitas said.
The power to put defendants behind bars comes with "a very high responsibility" to avoid racial biases, especially in a diverse community like San Joaquin County , Freitas said.
Contra Costa District Attorney Diana Becton described the race-blind process as a tool that allows prosecutors to keep racial biases in check. "There's a possibility that our biases can creep into our decision-making," Becton said.
Her office tapped its case management software provider, ProsecutorByKarpel, to integrate the redaction features into the county's system at no cost.
The office also trained staff and reassigned prosecutors to manage what Becton described as an increased workload under the new process. "It's been a tremendous, tremendous lift for our office — and I'm sure other offices around the state," Becton said.
San Mateo County District Attorney Stephen Wagstaffe , whose office has used the ProsecutorByKarpel software since 2015 and began implementing its race-blind charging policies Jan. 1 , described a much smoother transition.
"Within two weeks it's become, 'OK, this is the new way of life,'" Wagstaffe said, describing the sentiment of charging attorneys. "My lead in it, my assistant DA who runs the project, said, 'Yeah, no problem at all.'"
Counties such as Contra Costa plan to analyze data to measure the law's impact on charging decisions across racial groups. The goal is to look at whether disparities decreased, increased or remained consistent under the race-blind process. The takeaways could reinforce robust ethical standards or prompt procedural changes to safeguard against racial biases, Chief Assistant District Attorney Simon O'Connell said.
Several jurisdictions — including San Francisco , Alameda , Santa Clara and Yolo counties — plan to share data with the Computational Policy Lab . Alex Chohlas-Wood, co-director of the lab, described the collaboration as groundbreaking.
"It's quite unusual for prosecutors to participate with researchers like this," Chohlas-Wood said.
Plans to go beyond the current redaction features are also underway. The Harvard-based researchers and staff at the Yolo County District Attorney's Office plan to explore options to redact references to cultural events that could tip prosecutors off to the race of suspects and victims, such as quinceañeras.
"We're trying to eliminate race from the equation whenever we can," Works said.
This story was first published in San Fransico Chronicle. Read the originalhere.
