Federal Criminal Prosecutions Plummet in Wake of COVID-19

New criminal prosecutions dropped by 80 percent between February and April—from 13,843 during February 2020, before federal shutdowns to control the spread of COVID-19 began, to just 2,824 in April 2020. This means that only one-fifth the usual prosecutions took place. See Figure 1.

Figure 1. Federal Criminal Prosecutions, FY 2020 (October 2019-April 2020)
(Click for larger image)

According to the analysis of federal data, two major factors contributed to this steep decline. First, as reported previously, referrals to federal prosecutors from all the major investigative agencies fell sharply. In February 2020 federal prosecutors recorded receiving roughly 17,600 criminal referrals. These dropped to just under 8,000 during April.

But this alone does not explain the extent of the collapse. Prosecutors also filed suit on relatively few of the referrals they did receive. During February, prosecution numbers were close to 80 percent of referral numbers[1]. In April, this fell to 37.5 percent with 8,000 referrals but fewer than 3,000 actual prosecutions.

Convictions fell less precipitously. Federal attorneys handling prosecutions already underway were able to strike many plea agreements and thus procured 6,638 new convictions. That was more than twice the number of new prosecutions (2,824) recorded in April. And as one might expect (not all prosecutions result in convictions), convictions generally run fewer than prosecutions. See Table 1.

Regardless of the kinds of cases involved, there was a marked decline in prosecutions during April compared with the average of the first five months of FY 2020 (October 2019 through February 2020)[2]. As shown in Table 2, declines were higher than average among cases involving civil rights (down 92%) and immigration (down 86%)[3], while terrorism cases—always few in number—declined the least (29%). But many types of offenses—including those involving weapons, white-collar crime, the environment and government regulation—experienced declines in prosecutions roughly similar to the general level.

These results are based upon referral-by-referral government records received by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University after lengthy litigation under the Freedom of Information Act (FOIA).

Were Particular Federal Investigative Agencies' Referrals More Likely To Be Prosecuted?

TRAC also found that some investigative agencies appeared to be more successful in getting their referrals prosecuted than others. Results compare month-by-month the ratio of referrals the agency made relative to the number of prosecutions filed during each month.

Immigration and Customs Enforcement (ICE) was the most successful. The April ratio between referrals and prosecutions was 0.70[4]—the highest among the five federal investigative agencies making the most referrals. This was only slightly less than the ratio that previously prevailed. See Table 3-ICE.

Customs and Border Protection (CBP) was the next most successful. Historically almost all CBP referrals (99%+) have been prosecuted. This high ratio is unusual compared with other types of cases. Not only are these cases generally simpler to prosecute than many other kinds of federal offenses, but federal prosecutors have had the ability to appoint special assistant U.S. attorneys (actual CBP personnel) to handle many cases, so they added little to their regular attorneys' workload. For April this ratio between referrals and prosecutions fell to 0.66. See Table 3-CBP. This ratio still placed it above other major federal investigative agencies, apart from ICE.

The Federal Bureau of Investigation was least successful in turning referrals into prosecutions: only 317, compared to 1,868 April referrals, a ratio of just 0.17. See Table 3-FBI. Historically the FBI has usually had the smallest proportion of its referrals result in criminal prosecutions, but the relative drop for April was also the largest among investigative agencies.

The record for Alcohol, Tobacco, Firearms and Explosives (ATF) was also relatively poor. Only 196 prosecutions occurred in April, compared with its 873 referrals—a ratio of 0.22, only slightly better than that for the FBI. See Table 3-ATF. Historically, ATF also ranks poorly in getting its referrals prosecuted, but slightly better than the FBI.

The record for the Drug Enforcement Administration (DEA) was intermediate. With a ratio of prosecutions to referrals in April of 0.38, it ranked lower than the two immigration enforcement agencies, but above ATF and the FBI. See Table 3-DEA.

Footnotes

^[1] Because it may take time for prosecutors to decide whether or not to file suit, in general prosecutions filed in a given month may reflect referrals that arrived in a previous month.

^[2] Some types of offenses even in normal times had relatively few prosecutions each month. For these, there usually were significant month-to-month variations since a relatively small difference in filings during a given month could represent a sizable relative change. To even out these fluctuations, percentages in this table are not based on the April to February comparison used in Table 1, but compare April with the monthly average for the October 2019 - February 2020 period.

^[3] Among immigration cases, prosecutions for illegal re-entry (08 USC 1326) dropped from 3,911 in February to only 324 in April, while those for illegal entry (08 USC 1325) dropped from 3,961 in February to 657.

^[4] This is strictly peaking a ratio, not a percentage, since prosecutions filed in any month may reflect referrals received in previous months. The ratio is calculated by dividing the number of prosecutions filed by the number of referrals received in a given month. A ratio of 1.0 would mean that the number of case referrals and the number of prosecutions were the same. A ratio of 0.70 would mean, for instance, that for every 10 referrals received, seven prosecutions were filed during the same month.

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.