How Is Covid-19 Impacting Federal Criminal Enforcement?
Law enforcement agencies across the country have been referring fewer criminal cases to federal prosecutors since the coronavirus pandemic began. While weekly referrals for federal prosecution during February and the first half of March averaged around 4,500 per week, referrals fell to only 1,800 during the last week of March. The Trump administration issued new guidance on Sunday evening, March 15, allowing some federal employees to work from home. Previously, only those at high risk of health problems could telework[1].
Figure 1 plots the number of referrals recorded as received by these federal prosecutors day-by-day during the first six months of FY 2020 (October 2019 - March 2020). Starting in mid-March the numbers decline sharply. (As the plot shows, normally few referrals are recorded during Saturday or Sunday producing a predicable weekly cycle in the plot. A decline during the holidays over Christmas is also evident.)
Each weekday, U.S. Attorney offices from around the country typically receive hundreds of referrals. Most of these came from federal investigative agencies. Some originate from local and state law enforcement. Each referral is typically assigned to an assistant U.S. attorney who determines whether or not to charge the suspect with committing one or more federal crimes.
According to comparisons of case-by-case Department of Justice records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University after litigation under the Freedom of Information Act, five federal law enforcement agencies were the source of over four out of every five referrals (81%) to federal prosecutors thus far in FY 2020. These agencies, in descending order of referrals were: Customs and Border Protection (CBP), the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA), and Immigration and Customs Enforcement (ICE). See Table 1.
| Agency | Number* |
|---|---|
| CBP | 40,769 |
| FBI | 13,039 |
| ATF | 7,883 |
| DEA | 7,796 |
| ICE | 7,564 |
| Other | 18,043 |
| All Referrals | 95,094 |
Trends by Key Federal Enforcement Agencies
Differences in how specific law enforcement agencies adjusted their activities in response to the COVID-19 pandemic could be masked in Figure 1. To examine if this is true, trends for each of the top five federal law enforcement agencies referring criminal cases for prosecution are examined in the following sections. Most resembled overall trends, showing a pronounced drop off in March.
Immigration Enforcement. Referrals of immigration matters account for the majority of all federal criminal referrals during the first six months of FY 2020[2]. Figures 2 and 3 show daily referrals respectively for CBP and ICE. Each agency shows a sharp drop off in March. Indeed, the number of referrals from CBP and ICE declined more sharply than the overall trends across federal law enforcement agencies generally.
While the reported drop in illegal border crossing could help explain the drop in CBP's referrals, it would not appear to account for the drop for ICE which is responsible for enforcement in the interior of the country. While ICE waited until March 18 to announce it would halt arrests during the pandemic, except for those necessary to "maintain public safety and national security,"[3] actual declines in ICE's referrals appear to have begun in early March. In contrast, declines in criminal referrals from CBP waited until mid-March to appear.
Federal Bureau of Investigation. The FBI's current website's banner headline states: "During this ongoing pandemic, the FBI's national security and criminal investigative work continues". However, the figures on FBI's daily referrals for criminal prosecution indicate that the agency's referrals began declining in mid-March. Unlike the pattern seen in immigration enforcement, however, relative declines were not as large.
FBI investigations can take months to develop before a criminal referral is made. Thus, it would seem likely that the full impact of the pandemic on FBI enforcement activities may not be evident for some time. The FBI plays the lead role in investigating a wide range of federal crimes. Unfortunately, it is not possible to determine which offense areas experienced these declines because the Department of Justice is currently withholding information on the types of offenses involved in these referrals.
Drug Enforcement. The DEA investigates federal drug-related crimes. Figure 5 displays the DEA's daily criminal referrals from October 1, 2019 to March 31, 2020. Like other agencies, DEA referrals declined—particularly evident during the last ten days of March. In fact, the number of referrals at the end of March were similar to referrals during the week of Christmas 2019-typically one of the slowest weeks of the year.
Weapons Enforcement. In contrast, the ATF, which investigates federal weapons-related crimes, did not see an unusual decline in referrals. While ATF referrals declined during the last days of March, the decline does not appear to materially depart from the typical ups and downs evident during the rest of the year. Thus, additional time will be needed to discern COVID-19's impact on the level of ATF's criminal enforcement activities.
(Click for larger image)
Footnotes
[1] See March 16, 2020 New York Times article, "After Days of Anxiety and Confusion, Government Workers Told to Stay Home.".
[2] CBP and ICE alone accounted for 51 percent, while other DHS agencies including the United States Citizenship and Immigration Services (USCIS) and the Secret Service pushed the total for DHS to 55 percent.
[3] See March 18, 2020 article in Politico, "ICE to scale back arrests during coronavirus pandemic.".
TRAC offers free monthly reports on program categories such as white collar crime, immigration, drugs, weapons and terrorism and on selected government agencies such as the IRS, FBI, ATF and DHS. For the latest information on prosecutions and convictions, go to https://trac.syr.edu/tracreports/bulletins/. In addition, subscribers to the TRACFed data service can generate custom reports for a specific agency, judicial district, program category, lead charge or judge via the TRAC Data Interpreter.