Federal prosecutors along the Southwest border with Mexico — many already strained by the rise in their immigration caseloads — are facing a new challenge: how to handle a sharp jump in drug cases. Justice Department data analyzed by the Transactional Records Access Clearinghouse (TRAC) show that during the first four months of FY 2010 drug cases in this region had surged by almost a third (30 percent) from what they were just 16 months ago and were up by 7 percent over levels at the end of FY 2009.

This sharp regional increase is in stark contrast with the national pattern where drug prosecutions for the rest of the country have been steadily declining for a number of years, with the first four months of FY 2010 down by 17 percent since FY 2008 and down 12 percent from last year.

Counts for the prosecution of drug offenses along the border, as well as detailed numbers for each of the five federal judicial districts involved, are given in Table 1.

The data also show that the volume of recommendations for the prosecution of drug cases from the investigative agencies — what the Justice Department calls referrals — have been increasing faster than the actual prosecutions. This difference has occurred because the U.S. Attorneys have been declining a growing number of the referrals coming to them from the investigative agencies. The case-by-case information further shows that many of these matters were turned away as a result of what the prosecutors said was a lack of adequate prosecutorial or investigative resources in the border districts.

The large number of drug cases being turned away suggests that there are serious stresses on some federal prosecutor offices. A likely major source for these strains is the powerful flood of immigration cases that has washed over the region and that at its peak in FY 2009 was two and a half times the level it was in FY 2007 (see earlier TRAC report).

Here is the bottom line shown by the data. Federal criminal referrals for drug prosecutions that were received by federal prosecutors but then were turned down shot up by 58 percent since FY 2008. The turndowns have been steadily increasing since 2007. That year 580 drug referrals were declined. The number of rejections in FY 2008 was 998, in FY 2009 it climbed to 1,787. So far during the first four months of FY 2010 there have been 524 cases turned away — a pace somewhat below the peak levels during FY 2009 for a comparable four month period (see Table 2).

Different Patterns Along the Border:
Arizona the Current Hot Spot

Among the five border districts, the highest growth rate has occurred in Arizona, recently in the news when a rancher allegedly was killed by drug smugglers. In the federal district courts in Arizona the pace of criminal prosecutions for drug offenses has jumped by 36 percent this year over last year, and is up 202 percent since FY 2008 (see earlier Table 1).

Figure 1. Percent of Border Drug Prosecutions in Arizona.

Reflecting this greater growth rate, Arizona's caseload has also come to represent an increasing percentage of all drug prosecutions along the southwest border. Sixteen months ago — as of the end of FY 2008 — Arizona prosecuted 11 percent of all federal drug cases among the five border districts. Last year it jumped to 19 percent. During the first four months of FY 2010 it has risen to 24 percent (see Figure 1).

But there was also a jump in the number of drug referrals that investigative agencies recommended for prosecution that were turned away by the U.S. attorney's offices in Arizona. Indeed, Arizona accounts for most of the drug prosecution referrals that are turned away and not accepted in the five-district border area (see Figure 2).

Figure 2. Requests for Drug Prosecutions Turned Down by Federal Prosecutors.

While federal prosecutors under law and custom have for many years independently reviewed all referrals to decide whether they warranted prosecution, and turned down cases where they believed the evidence was inadequate, the reasons cited by federal prosecutors in Arizona tell a very different story. Figure 3 displays the reasons cited by Arizona prosecutors for declining to prosecute the 1,368 suspects during FY 2009 — the most recent year for which 12 months of data are available.

The most common reason federal prosecutors cite is the lack of prosecutorial or investigative resources available to their office for handling the matter. This was the reason given for 43 percent of the turndowns. (All but 10 of the 589 cases turned away cited lack of prosecutorial resources; the remaining 10 cited lack of investigative resources.) An additional 14 percent were turned down because of department or office policy. Together these explain the majority of all turndowns. In contrast, only in one third (34 percent) was "weak or insufficient admissible evidence" cited as the rationale.

Figure 3. Arizona Drug Referrals Not Prosecuted, FY 2009

The situation in Arizona has occurred despite the fact that budget increases allowed the U.S. attorney in this district to hire additional attorneys. Indeed, the number of federal prosecutors shot up from 110 on the payroll at the start of FY 2008 to 145 at the end of FY 2009. Four additional attorneys brought staff levels to 149 at the end of the first three months of FY 2010, the most recent time period available from the Office of Personnel Management.

Patterns in the Other Border Districts

Right next door to Arizona in the Southern District of California (San Diego), quite a different trend is seen. There the number of federal drug prosecutions has been falling since FY 2007. During the first four months of FY 2010 the pace of federal drug prosecutions was down by 38 percent over the levels of just last year.

The Justice Department data show that over the last five years federal prosecutions of drug cases in New Mexico have been considerably fewer than in Arizona over the same period. The New Mexico data further show that, while its drug prosecutions were fairly stable between FY 2007 and FY 2009, the pace of these prosecutions increased by 15 percent during the first four months of FY 2010.

The Western District of Texas (San Antonio) tops the border districts in the volume of drug prosecutions throughout the last five years. During the first four months of FY 2010, the pace of these prosecutions increased by 12 percent. However, the pace thus far in FY 2010 is still running slightly below the levels it experienced during FY 2008.

The Southern District of Texas (Houston) had the second largest number of federal drug prosecutions during the first four months of FY 2010, right below the numbers in the Western district. The rate at which these prosecutions increased however — up 20 percent over FY 2009 and up 53 percent over FY 2008 — topped the Western district. It thus posted the second highest growth rates for the border districts (see Table 1). Unlike the pattern in Arizona, federal prosecutors turn down very few cases relative to those that the district prosecutes, and turndowns have been falling (see earlier Table 2 for details).

Variation in Drug Cases by Border Community

Each federal judicial district along the southwest border and other parts of the United States is subdivided into two or more divisional offices based on the locations of the federal courts in each district. Attorney offices are similarly divided into branch offices that generally correspond to these separate court locations. Tables 3 and 4 break down these same numbers according to the border community that was the base for the assistant U.S. attorney responsible for each case. Table 3 gives the number of federal prosecutions for drug offenses, while Table 4 presents drug cases where referrals were turned down and not prosecuted.

Even within the same federal district, there can be considerable variation among the different offices. Arizona, for example, has four branch offices. While its main office is located in Phoenix, it has branches in Tucson, Yuma and Flagstaff. In terms of volume of drug cases, Tucson leads the list not only for all of Arizona but for all locations along the five districts which border Mexico. It also leads the list on cases turned down. In contrast, Phoenix has seen fewer drug cases and they have not grown as rapidly. However, the Phoenix office still comes in second for all border offices in the number of drug cases that its federal prosecutors turn away.

El Paso, Texas and Del Rio, Texas come in second and third in the volume of cases prosecuted during the first four months of FY 2010. However, federal drug prosecutions in El Paso have been declining — down 37 percent since FY 2008. In contrast, Del Rio's drug prosecutions, while smaller in number, have been climbing — up 52 percent since FY 2008.

Details for each of the other border communities on drug prosecutions and those federal prosecutors turned down and didn't prosecute are given in Tables 3 and 4.