Federal Data: 16 to 50 percent of federal crimes are declined from prosecution, per “Federal Justice Statistics.”
State Data: 34 percent of state felony cases are not convicted (approximately nine percent involve a deferred adjudication or diversion outcome), per “Felony Defendants in Large Urban Counties.”
Leonard A. Sipes, Jr.
Thirty-five years of speaking for national and state criminal justice agencies. Former Senior Specialist for Crime Prevention for the Department of Justice’s clearinghouse. Former Director of Information Services, National Crime Prevention Council. Post-Masters’ Certificate of Advanced Study-Johns Hopkins University.
There’s not much in the way of data on the percentages of crimes not prosecuted, which is why I wrote this article. I Googled related terms and discovered little on the topic.
There is data on arrests or crimes not prosecuted from “Federal Justice Statistics,” (link below) from the Bureau of Justice Statistics of the US Department of Justice.
The data tracks numbers from the Department of Homeland Security and Department of Justice, and state that 16.6 percent of all cases were declined from prosecution. A declination is a decision by a U.S. attorney not to pursue criminal prosecution of a referral from a law enforcement agency.
When taking a look at individual agencies, however, the percentage of declined prosecutions are much higher, ranging from 18 to over 50 percent (see chart below).
Do These Numbers Offer Insight as to State Prosecutions?
To my knowledge, there are no comparable numbers for state and local prosecutions, thus I offer this data with the caveat that federal numbers will take some explaining (see below), and that the federal experience may not be applicable to understanding state and local criminal justice systems.
The federal criminal justice system is considerably different from state justice efforts with a focus on immigration and drug cases. For example, a tiny percentage of federal crimes are violent (i.e., with federal court defendants, 2.4 percent are violent, 4.1 percent are sex offenses, 7.9 percent are weapons offenses).
Most state incarcerations are for violent crimes.
But the above chart is one of the few data sets providing a glimpse into the percentage of crimes and arrests not prosecuted.
There is additional data below regarding state felony charges dismissed (or not prosecuted), compiled by the Bureau of Justice Statistics and other sources.
Explanations Lack of Prosecutions
Please note that there are a wide array of explanations for declines from prosecution. Prosecutors at the federal and state levels can place the defendant in a diversion program, or federal prosecutors could refer those arrested to local or state authorities. The defendant could be charged with lesser crimes. See notes below.
But it’s my guess that, in most instances, prosecutors feel that there is insufficient evidence to gain a conviction, based on observations from, “Felony Convictions in Large Urban Counties,” (below).
Felony Convictions in Large Urban Counties-State Felonies
From the Bureau of Justice Statistics, we get a glimpse of outcomes for state felonies. The report does not deal directly with prosecutions, only convictions. It’s my guess that most dismissals were based on prosecutors declining to proceed based on lack of evidence.
Among cases that were adjudicated within the 1-year study period, 66% resulted in a conviction.
Just over half (54%) of defendants were convicted of a felony and 12% were convicted of a misdemeanor.
Nearly all convictions were the result of a guilty plea rather than a trial.
In most cases when a defendant was not convicted, it was because the charges against the defendant were dismissed. The report does not identify the source of the dismissal. It’s the prosecution’s job to weed out weak cases.
About a quarter of all cases ended in this manner. An estimated 9% of cases resulted in a deferred adjudication or diversion outcome.
Local Example: Defendants Walk Free In Nearly Two-Thirds of Violent Crimes
The verbiage below from the Philadelphia Inquirer (2009) is an example of how justice can get bogged down to such a degree as to have an impact on an entire metropolitan area.
The Inquirer cites a considerable number of data sources indicating, “Philadelphia defendants walk free on all charges in nearly two-thirds of violent-crime cases. Among large urban counties, Philadelphia has the nation’s lowest felony-conviction rate.”
Only one in 10 people charged with gun assaults is convicted of that charge, the newspaper found.
Only two in 10 accused armed robbers are found guilty of armed robbery.
Only one in four accused rapists is found guilty of rape.
Examples from RAINN (Rape, Abuse and Incest National Network) provide what could be the best graph data as to prosecutions and felony convictions.
Out of 1,000 robberies, there are 167 arrests, 37 get referred to prosecutors and 22 lead to a felony conviction.
Out of 1,000 Assault and Battery’s, there are 255 arrests, 105 are referred to prosecutors and 41 lead to felony convictions.
Out of 1,000 rapes, 57 result in arrests, 11 are referred to prosecutors and 7 lead to a felony conviction.
We know that the vast majority of crime in the United States is not reported (most property crimes are not reported, less than half of violent crimes are), and that two in five reported crimes end in an arrest.
Few have been able to get a clear picture of prosecution rates. Many arrests are not prosecuted.
How many? No one knows for sure, but from time-to-time, a newspaper like the Inquirer takes on the task and the results are usually dismal.
My guess is that prosecutors in many large jurisdictions routinely throw out twenty to thirty percent of cases for a wide variety of reasons. In some cities, the percentages will be higher. It’s my assumption that a high number of misdemeanors are dismissed by prosecutors.
Ninety percent of the remaining cases are plea-bargained. The prosecutor offers reduced charges and the defendant pleads guilty. Few criminal cases actually go to trial.
Most who plead guilty to felonies do not get prison time.
All of the above is well documented via US Department of Justice data except for the rate of prosecutions. See Crime in America.
From the above, we can surmise that:
1. 16 to 50 percent of federal crimes are deferred from prosecution, per “Federal Justice Statistics.”
2. Based on data from “Felony Defendants in Large Urban Counties,” 34 percent of state felonies are not convicted (approximately nine percent involve a deferred adjudication or diversion outcome).
3. Because it’s the prosecution’s job to weed out weak cases before they get to trial judges, I’m guessing that most non-convictions for felonies are based the prosecutor’s office declining to proceed.
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Additional Background-Declining Prosecutions
One of the most significant aspects of the American legal system is the wide discretion that American prosecutors have in criminal matters. For example, a federal prosecutor may decline to prosecute an offense because he or she finds it not significant enough to merit prosecution in federal court. For instance, the quantity of drugs involved or the loss to a victim may be relatively small. The investigating agents may then present their evidence to a state prosecutor (assuming the offense is one that may be prosecuted in state court), where, again, the state prosecutor has discretion to prosecute the offense or to decline prosecution. Similarly, the federal prosecutor may decline prosecution of a minor offense if he or she considers that there is an acceptable alternative to prosecution, such as an agreement by the defendant to compensate the victim of the offense.
Defendants charged with minor, non-violent crimes may be eligible for pre-trial diversion into a program that usually includes making restitution to the victim. If the defendant completes the program successfully, he or she will not be prosecuted and may avoid a criminal record.
Another instance in which a prosecutor may decline to bring charges or ask the grand jury to return an indictment is where, although there is enough evidence to obtain a persons arrest, (that is, probable cause), the prosecutor knows that enough additional evidence to convict the person at trial will be unavailable. In such circumstances, the prosecutor is not obligated to seek an arrest warrant. In fact, if a prosecutor did bring charges or obtain a grand jury indictment and have a defendant arrested under those circumstances, this could be viewed as an abuse of the prosecutor’s discretion
GUIDE TO CRIMINAL PROSECUTIONS IN THE UNITED STATES
Guidance from the Bureau of Justice Statistics
I would like to thank the Bureau of Justice Statistics for their assistance in clarifying issues. Some of their thoughts are below:
BJS has not published a report on declinations. A couple of thoughts– Offense type may speak to some of the differences among agencies. For example, Immigration offenses are handled quickly. In 2012, U.S. attorneys declined 0.2% of 58,127 immigration matters referred by the U.S. Customs and Border Protection (CBP). U.S. attorneys declined 41% of 3,575 matters referred by the Secret Service in 2012.
As you are aware, the Secret Service investigates complex cyber-crime, counterfeiting, and other offenses. Differences could therefore be a function of the inputs or the complexity of the investigations associated with an agency.
The differences could also be a result of the outputs or manner in which a matter is declined. Some matters are referred for state and local prosecution.
Agencies with relatively higher declination rates may argue that they are being more selective (given limited resources) to reserve federal justice resources for the most serious offenses and referring less serious offenses back to state and local prosecutors.
As you are aware, a declination is a decision by a U.S. attorney not to pursue criminal prosecution of a referral from a law enforcement agency. Tables 2.2 (Federal Justice Statistical Tables, 2013) shows that about 16% of suspects in matters concluded were declined in FY2014.
Several caveats regarding table 2.2 – the table does not include all “immediate declinations.” An immediate declination occurs when the U.S. attorneys’ office does not open a file on a referral and does not pursue prosecution. Table 2.2 includes suspects only for whom an investigation had been opened.
With that said, there are also “later declinations” when a U.S. attorney opens an investigation (spends at least one hour investigating) but for various reason does not pursue prosecution.
Another caveat is the classification for the reason for declination variable (used in Table 2.3). It was changed by the source agency (Executive Office of the U.S. Attorneys) in FY2014 (compare Table 2.3 in the 2013 and 2014 Federal Statistical Tables). The more detailed categories were replaced with broader aggregate categories. Unfortunately, BJS is not provided any more detail on the reasons for declination.
BJS uses the percent of matters concluded that end in prosecution, disposal by magistrate, or declination for further prosecution as a key measure of prosecution outcome.
When looking over time, this percentage can be affected by the change in matters disposed by U.S. magistrates and suspects in cases filed in U.S. district court. That is, declinations can decrease when the number of prosecutions remains flat and the number of suspects in matters disposed by U.S. magistrates (less serious misdemeanors) increases.