16 to 85 percent of federal suspects in criminal matters concluded are declined from federal prosecution.
80.8 percent of the 631 civil rights violation suspects were declined from federal prosecution.
85.8 percent of 197 threats against the president suspects were declined from federal prosecution.
Federal prosecutors have options beyond bringing charges in federal court.
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.
I wrote a previous article on the “Percent of Arrests Not Prosecuted.” We said that 16 to 50 percent of federal crimes are declined from prosecution (per federal agency), and 34 percent of state felony cases are not convicted (approximately nine percent involve a deferred adjudication or diversion outcome), see Prosecutions.
There’s not much in the way of data on the percentages of crimes or suspects not prosecuted at either the federal or state levels, which is why I wrote this and the previous article based on new data from the Bureau of Justice Statistics.
But what about data for suspects not prosecuted regardless of agency affiliation?
There is data on suspects not prosecuted from “Federal Justice Statistics, Statistical Tables” (link below) from the Bureau of Justice Statistics.
Federal Suspects Not Prosecuted
16.6 percent of suspects in federal matters concluded were not prosecuted.
80.8 percent of the 631 civil rights violation suspects were declined from prosecution.
85.8 percent of 197 threats against the president suspects were declined from prosecution.
67.9 percent of 1,459 escape charge suspects were declined from prosecution.
66.3 percent of 282 bribery suspects were declined from prosecution.
60.6 percent of 33 antitrust charges were declined from prosecution.
59.5 percent of 376 murders were declined from prosecution.
The leading categories are drug (31,714) and immigration offenses (81,305) where the percentage of suspects not prosecuted are much lower (less than 1 percent for immigration suspects). The examples above are small in number and are extremes; remember that the average declined in is 16.6 percent.
See chart below:
Reasons for Declines in Prosecutions
A declination is a prosecutor’s decision not to file a case in a matter received for investigation. Excluded are immediate declinations where a prosecutor spent less than one hour on the case.
You can see from the chart below, the most common reason for the lack of prosecutions is “insufficient evidence.”
Federal Prosecutions By Agency (from the previous article)
Source: Federal Justice Statistics (link 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 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. Intakes will provide a different perspective.
But the above charts are one of the few data sets providing a glimpse into the percentage of crimes and arrests not prosecuted.
Explanations Lack of Prosecutions
Please note that there are a wide array of explanations for declines from prosecution. Prosecutors 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 or other crimes. See notes below.
But in most instances, prosecutors feel that there is insufficient evidence to gain a conviction.
Because it’s the prosecution’s job to weed out weak cases before they get to trial judges, most non-prosecutions are based on a perceived lack of evidence.
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Background-Bureau of Justice Statistics
Suspects in matters concluded. 46% of suspects in matters concluded in 2014 were prosecuted by U.S. attorneys. Suspects charged with weapons (72%) and drug (71%) offenses had the highest prosecution rates in 2014, followed by sex (64%), violent (60%), property (52%), and public order (42%) offenses . 4 in 10 matters concluded in 2014 were disposed by U.S. magistrates U.S. magistrates have the authority to adjudicate misdemeanor offenses (18 U.S.C. § 3401).
Thirty-eight percent of matters concluded by U.S. attorneys in 2014 were disposed by U.S. magistrates. Offenses that were most likely to be disposed by U.S. magistrates included immigration (69%), other public order (19%), and other property (18%) offenses. Other public order offenses include an array of offenses, such as tax law violations, bribery, perjury, national defense, racketeering, and extortion (see Methodology).
In the five U.S.-Mexico border districts, nearly two-thirds (65%) of matters concluded by U.S. attorneys were disposed by U.S. magistrates, compared to less than a tenth (6%) of matters in other districts. This was the result of immigration enforcement along the southwest border. Generally, first-time illegal entry defendants who agreed to plead guilty to a petty misdemeanor charge were sentenced to 30 days or less of confinement by U.S. magistrate and were subsequently removed from the United States upon completion of the sentence. Seventeen percent of matters were declined for prosecution in 2014. Suspects involved in regulatory offenses were most likely to be declined for prosecution (49%), followed by fraud (42%), other public order (38%), and sex (35%) offenses.
Background-Reasons for Declining Prosecutions, from the Bureau of Justice Statistics
U.S. attorneys may decline to file charges for reasons such as weak or insufficient evidence, minimal federal interest, lack of resources, and lack of criminal intent. Matters that are declined may also be referred to other authorities for prosecution or be settled through alternative resolution procedures. U.S. attorneys may file charges and prosecute defendants in U.S. district court or before a U.S. magistrate. U.S. magistrates have the authority to adjudicate misdemeanor offenses (18 U.S.C. § 3401). With the exception of misdemeanor offenses or when suspects waive their right to a grand jury indictment, the U.S. attorney presents evidence to a grand jury. The grand jury deliberates and decides whether the suspect should be indicted for committing a crime. If the grand jury returns an indictment, the U.S. attorney may file criminal charges in U.S. district court.
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.