Figure 1. Under Obama, Non-Immigration Felony Prosecutions Fall Despite Staffing Increase.

With federal enforcement increasingly focused on immigration matters, other kinds of felony prosecutions — particularly those brought in districts outside the southwest — have declined, according to a comparison of the first two years under President Obama with the last two years of the Bush administration.

Over this period, the prosecution of all kinds of non-immigration felonies for most parts of the country went down by 6 percent. When these prosecutions are considered in relation to the growing number of people living in the non-border districts, the drop is even sharper — 8 percent. See Figure 1 and Table 1.

These and other significant shifts in how the government has enforced the law during the last few years have been documented through the analysis of extensive Justice Department records and other federal data by the Transactional Records Access Clearinghouse (TRAC). Most of the underlying information was obtained by TRAC under the Freedom of Information Act.

The decline in non-immigration felony prosecutions in the 89 federal districts not located on the border with Mexico has occurred even while the government on a national basis has been pouring more and more tax dollars into its enforcement effort — steadily increasing the size of each of the major law enforcement agencies as well as that of the separate U.S. Attorneys' offices. Nationally, the overall staffing for the U.S. Attorneys grew by 9 percent, while the Federal Bureau of Investigation (FBI) increased by 15 percent, the Drug Enforcement Administration (DEA) by 3 percent and Alcohol, Tobacco, Firearms and Explosives (ATF) by 6 percent. See Table 2 and earlier Figure 1.

This combination of more investigators and prosecutors but fewer felony prosecutions is a puzzle. In the past, law enforcement agencies faced with this combination have often argued that the conflicting trends can be explained because they are bringing more serious cases. In this case, however, that possible explanation is weakened by the fact that the actual sentences imposed in the 89 districts under review have changed very little. For all those convicted of non-immigration felonies in FY 2010, for example, the average sentence was 2 percent less than it was in FY 2007. The median sentence for these cases was unchanged.

Following are some of the details that have emerged from TRAC's in depth analysis of more than 500,000 Justice Department records as well as federal staffing information from the agencies.

What's Up and What's Down

During the four-year period spanning the last two years of the Bush administration and the first two of Obama's, the overall number of all kinds of prosecutions in the nation sharply increased — from 88,152 during FY 2007 to 104,671 in FY 2010. However, the overall counts obscure exactly what the government is doing and where it is doing it. The reality is that because of changing government policies that were rarely explained in an open way, there have been clear winners and losers in the enforcement priority sweepstakes.

A key moment came in 2007 when Congress failed to pass an immigration reform law. The data show that from that time on — with the political debate over immigration issues becoming more heated — federal prosecutors increasingly focused on getting tougher on immigration. In the five federal districts along the Mexican border — Arizona, the Southern District of California (San Diego), New Mexico, the Western District of Texas (San Antonio) and the Southern District of Texas (Houston) — felony immigration prosecutions went up 77 percent between FY 2007 and FY 2010, growing from 20,545 to 36,321. Non-felony immigration prosecutions in the same districts — typically for what the law classifies as petty offenses — increased at a far faster pace, jumping by 259 percent. See Table 3.

While in the past individuals attempting to enter the country were simply deported, now more and more of them are criminally prosecuted for illegal entry. This jump in prosecutions under the laws concerning illegal entry and re-entry occurred despite the fact that southwest border apprehensions actually had been declining for some years and continued to fall throughout this period. See Table 4.

Similarly, in the remaining 89 federal districts not on the border, a growing enforcement effort by ICE and sometimes others resulted in expanding numbers of felony immigration prosecutions. During FY 2007 these prosecutions numbered 7,474; by FY 2010 they reached 9,769 — up 31 percent. See earlier Table 3.

These unusually sharp increases in federal immigration prosecutions — for both the districts in the southwest and those in the rest of the country — directly challenge the repeated claims by members of Congress, scores of other politicians and government officials throughout the nation that the Obama administration was not actively enforcing the immigration laws.

(The incorrect and passionate claims that the Obama government was not enforcing the immigration laws are further undermined by the steady growth in deportations reported by Immigration and Customs Enforcement (ICE). On a year-by-year basis, these have increased steadily, up 35 percent over the last four years — from 291,060 in FY 2007, 369,221 in FY 2008, 389,834 in FY 2009 and 392,862 in FY 2010.)

Immigration, however, is by no means the only area where the federal government has been assigned important law enforcement functions. In fact, the federal agencies and prosecutors are responsible for enforcing many thousands of other kinds of statutes. A key priority of course is the prosecution of terrorists. Other kinds of matters that mostly fall to federal enforcers include unlawful drug and gun trafficking; serious financial, mortgage, security and other kinds of frauds; illegal billing for health care services and fraudulent activities by defense contractors. But federal enforcement responsibilities don't end there, extending as they do to curbing human trafficking, enforcing the nation's civil rights and employment discrimination laws, assuring the availability of safe foods and drugs, dealing with a host of occupational and mine safety issues and cracking down on serious environmental polluters. And the list continues.

About the Data This analysis uses defendant-by-defendant data from the U.S. Department of Justice obtained under the Freedom of Information Act. These data are kept by each of the assistant U.S. attorneys in the 94 U.S. Attorneys' Offices around the United States and its territories. The Executive Office for United States Attorneys requires prosecutors to record information about their handling of every matter they receive from investigative agencies such as the FBI, DEA, ATF, and the DHS's Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). Over 500,000 cases covering FY 2007 through FY 2010 were analyzed. Additional data on full-time federal employees came from the Office of Personnel Management. Bureau of Census population figures were also used in the analysis to adjust for population differences among federal districts. See more...

At first, the large increases in immigration prosecutions were coupled with a concomitant slump in the prosecution of other types of federal crimes. In the five districts along the border, for example, non-immigration felony prosecutions declined by 8 percent during the last year of the Bush administration. Outside the southwest border districts, the remainder of the country experienced a similar but smaller decline of 1 percent between 2007 and 2008. Table 3 contains the year-by-year numbers.

During the first and second years of the Obama administration, however, important regional differences occurred. In the five southwest border districts not only were federal immigration efforts ramped up, but non-immigration offenses also got increased attention. Thus, after the decline in FY 2008, federal criminal prosecutions for felonies apart from those for immigration offenses began to climb. During FY 2009, in the southwest border districts these types of felony prosecutions jumped by 17 percent from their low point the previous year, and continued to climb higher during FY 2010.

For the rest of the country outside the southwest border, however, the decline in non-immigration felony prosecutions that had begun under President Bush continued under President Obama. As we noted earlier, by the end of FY 2010, there were only 46,188 felony prosecutions in these 89 districts, down 6 percent from the 49,220 that had occurred during FY 2007. And if the general growth in population in that area is taken into account, these prosecutions fell by 8 percent.

The broad meaning of these offsetting trends is clear: with almost no notice to Congress, the American people, various public interest and local law enforcement groups, the Obama administration has implemented a very substantial shift in how it is enforcing federal laws. Four short years ago, slightly more than one-third (36 percent) of federal felony prosecutions were in the five federal districts along the southwest border, while almost two-thirds (64 percent) took place in the rest of the country. Now, while still less than 10 percent of the population lives in those border districts, almost half (47 percent) of all federal felony prosecutions occur there. See Figure 2 and Table 5.

Figure 2. Southwest Border Districts Account for Nine Percent of Population

Table 5. Southwest Border Districts Absorb Nearly Half of Nation's Felony Prosecutions in U.S. Courts   Bush Obama FY 2007 FY 2008 FY 2009 FY 2010 Population southwest border 8% 9% 9% 9% rest of nation 92% 91% 91% 91% Felony Prosecutions southwest border 36% 37% 43% 47% rest of nation 64% 63% 57% 53% * Southwest border judicial districts are: Arizona, Southern District of California (San Diego), New Mexico, Western District of Texas (San Antonio), Southern District of Texas (Houston).

That left all 89 remaining federal districts — despite having more than 90 percent of the federal population — with only slightly more than half of the federal felony prosecution pie. And because a growing proportion of this declining enforcement effort is focused on immigration matters, there is less and less left over for prosecuting those who are committing all the other types of serious federal crimes.

(It is relatively easy to document the prosecutions of federal crime — where the cases are filed and what the alleged violations were. Because of the special nature of criminal activities that underlie them, however, it is impossible to reliably chart whether the incidence of crime itself — such as stock fraud, environmental violations, health care fraud — is going up or down. This reality is why annual changes in murder rates that are usually based on an actual body are generally valid, while the trends in the nation's environmental problems are much more problematic. A key corollary of this reality is that while more prosecutions in an area often are understood by the public to mean more crime they mostly reflect only a decision to hire more enforcers or adopt new policies.)

Increases in Federal Prosecutors and Enforcement Personnel

Even more difficult to understand than the mystery of why only a bit more than half of federal prosecutions are now being filed in the districts with 90 percent of the population is another one. Why have felony prosecutions of non-immigration crimes for most of the country slumped when there have been substantial increases nationally in the number of prosecutors and investigators?

Attempts by TRAC to obtain breakdowns of how many federal employees were deployed to the five border districts versus the rest of the country have been rebuffed. For example, the Justice Department very recently refused to provide TRAC with simple counts of the number of assistant U.S. attorneys available to prosecute federal cases in each of the 94 federal judicial districts. According to the Department's public affairs office this information has been ruled "law enforcement sensitive" and therefore would no longer be made available. This practice marks a sharp shift from the Bush years when names and district assignments for each assistant U.S. attorney were freely made publicly available.

However, some connections between changes in prosecution levels and in enforcement personnel can be seen. During the last two years of the Bush administration, for example, there was a major build-up in federal law enforcement personnel traditionally charged with enforcing federal immigration laws. Customs and Border Protection grew 21 percent in that two-year period, while Immigration and Customs Enforcement personnel grew by 22 percent.

However, the growth rates in the number of staffers in the federal prosecutor offices, as well as those in the federal investigative agencies with a broader enforcement mandate — the FBI, DEA, and ATF — were considerably less. See earlier Table 2 for actual staffing numbers. Indeed, DEA personnel declined by 5 percent during the last two years of the Bush administration. Thus, it is not too surprising that the big jump in immigration prosecutions may have caused some initial declines in other enforcement areas.

In contrast, during the Obama administration there was an across-the-board buildup in federal law enforcement personnel as well as federal prosecutors. As shown earlier in Table 2, the number of full-time FBI employees grew from 30,700 to 34,574 or 13 percent, DEA grew 8 percent (from 8,989 to 9,748) rather than declined, ATF continued to grow an additional 3 percent (4,701 to 4,846), and federal prosecutor offices grew by 7 percent (10,043 to 10,755). Thus the question of why these increases did not stem the declines in the non-immigration felony prosecutions remains a puzzle. See earlier Table 2 for year-by-year staffing figures.

District by District

Because of the withholding of regional information by both administrations, it is now impossible to compare the actual enforcement staffing levels in each of the federal districts and how they have changed in the last few years. But with the data TRAC obtains from the Executive Office for United States Attorneys (EOUSA) such comparisons are possible when it comes to criminal enforcement.

Which districts, for example, experienced the greatest growth in non-immigration felony prosecutions from the FY 2007-2008 to the FY 2009-2010 periods? Which experienced the greatest declines? Partly because the U.S. attorney in each district usually is nominated by the president such changes sometime can have a political significance. It should be recalled, however, that a U.S. attorney — while nominally the head of federal enforcement in that district — has little direct influence over such variables as the regional staffing changes made by the FBI or other investigative agencies. Neither does the U.S. attorney have a strong voice when it comes to the setting of significant national enforcement priorities such as the decision of the FBI in the last few years to increase the number of agents assigned to terrorism enforcement by reducing those who previously had been assigned to white collar crime.

An example of confounding forces that may influence a district's criminal enforcement activities was offered by Donald J. Cazayoux, the United States Attorney for the Middle District of Louisiana (Baton Rouge). It was this district that experienced the sharpest decrease — 44.6 percent down — in the nation for non-immigration felony prosecutions.

Cazayoux agreed with the Justice Department data that documented a dramatic slump in the prosecutions brought in his district. But he said that two factors had contributed to the drop that were not directly under his control. One involved a national decision to deal with a growing proportion of migratory bird violations with administrative rather than criminal sanctions. The second involved the sharp surge in criminal charges relating to Hurricane Katrina that hit Louisiana in the fall of 2005. Cazayoux said the immediate Katrina-related prosecutions had now been dealt with.

According to the data, the five districts experiencing the greatest increase in non-immigration felony prosecutions were located in different parts of the country. There also was considerable variation in terms of the total number of prosecutions in each. Because changes in federal prosecutions can go up and down for many different reasons — such as unannounced increases in the number of investigators — it cannot be assumed that more prosecutions means more crime or fewer prosecutions means less. At the top of the nation for increases in non-immigration felony prosecutions was Rhode Island (Providence), which experienced a 65 percent increase between the two periods. Arizona (Phoenix) was second in line with a 61.7 percent jump. Then came New Hampshire (Concord) that increased by 41.7 percent, New York North (Syracuse) with 40.9 percent and Nevada (Las Vegas) with 39.3 percent.

The five districts at the other end of the scale with the greatest declines tended to be relatively small. The data showed that Louisiana Middle (Baton Rouge) won this distinction by slumping by 44.6 percent. Second was Guam with a 40.8 percent decline. It was followed by Georgia Middle (Macon) down by 39.1 percent, Pennsylvania West (Pittsburgh) down by 29 percent, and Alabama North (Birmingham) down by 28.9 percent. See Table 6a for the districts with the greatest increases and declines in non-immigration felony prosecutions, and supporting table for details on each federal district.

The district-by-district rankings for changes in immigration felonies was very different from those with the sharpest increases in all other kinds of felonies, with the sharpest increases located in small districts far from the border with Mexico. The district with the sharpest jump was the Northern Mariana Islands, up 350 percent. Next in the ranking of immigration felony prosecutions was Oklahoma West (Oklahoma City) with a 304.3 percent jump. Then came Tennessee West (Memphis) that increased by with 258.8 percent. Ohio South (Cincinnati) was up 188.7 percent, while Georgia Middle (Macon) with a 133.3 percent jump was fifth.

According to the Justice Department, the districts with the largest declines in the prosecution of felony immigration cases included Alabama South (Mobile), down by 65.8 percent; Iowa North (Cedar Rapids), down by 65.6 percent; Guam decreased by 59.3 percent. The Virgin Islands was down by 59.2 percent, and Missouri West (Kansas City) by 54.5 percent. See Table 6b for the districts with the greatest increases and declines in immigration-related felony prosecutions, and supporting table for details on each district.

Conclusion

When politicians in Washington, DC and other parts of the country think about helping their constituents, their thoughts usually focus on the dollars flowing to their supporters — defense contracts awarded to the manufacturer in City Y, the development of a new national park in State X, support for a multi-year research grant to a state university in County Z.

What the politicians don't tend to think about are the sometimes extra federal enforcement services that a few more investigators or prosecutors may provide an area. One reason the politicians don't ponder the very important service component flowing to the voters from Washington is that it often is hard to measure.

What should be very easy to measure, however, is the number of federal prosecutors working in Boston, St. Louis or San Diego and the number of investigators looking into unlawful situations that may do real harm to voters in these and hundreds of other communities.

This is strictly theoretical, however, because the federal government has decided the public should be kept in the dark about where a growing proportion of the nation's federal investigators and prosecutors are located. This movement began with the FBI. Then, a few years after 9/11/01, the curtain was drawn by the Bush administration over almost half of all federal employees. In the latest development, this already broad withholding was expanded at the outset of the Obama administration to cover where assistant U.S. attorneys are assigned — individuals who represent the federal government in our public courts. Though the withholding of information by the agencies is hardly surprising, it is a curious position for the Obama administration that for the last two years has been promising more transparency. It is also curious why the members of the Senate and House of Representatives seeking to service their constituents should put up with this quiet form of censorship.