Arrested but Not Prosecuted: Racial Disparities, Geographic Variation, and Statistical Evidence under California's Racial Justice Act

In virtually every California county, arrests of Black and Hispanic individuals proceed to court in lower proportions than those of white individuals—a pattern that might seem like good news but is not. The most plausible interpretation is that police disproportionately arrest Black and Hispanic individuals on weaker evidence, producing cases that prosecutors more frequently decline. The disparity at the charging stage is a downstream signature of over-policing, not a corrective to it. This Article makes three contributions to the emerging jurisprudence of statistical evidence under California's Racial Justice Act. First, using hierarchical statistical methods applied to statewide administrative data, we provide the first systematic county-level analysis of racial disparities at the arrest-to-court transition, documenting that while the direction of these disparities is nearly universal, their magnitude varies by almost two orders of magnitude across the state—a "county lottery" in which geography predicts outcomes far more strongly for Black and Hispanic individuals than for white individuals. Second, we find effectively zero variation in disparities across District Attorneys within the same county, suggesting that racial gaps are structural features of local criminal justice systems rather than attributes of individual officeholders—a finding that counsels caution about reforms focused solely on electing different prosecutors. Third, we offer a doctrinal reframing: we explain why evidence of lower prosecution rates for arrests of Black individuals constitutes evidence of racial harm under the RJA's totality-of-the-evidence standard, rather than evidence of leniency that would undercut a defendant's claim.