Federal Criminal Referrals and Prosecutions Begin Slow Recovery in June
The latest case-by-case data show that federal criminal referrals and prosecutions increased modestly from their abnormally depressed levels since 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].
Overall referrals for criminal prosecutions to federal prosecutors from investigative agencies were 9,666 in June, up slightly from 8,490 during May[2]. However, June levels were still 45 percent below referrals levels in February before COVID-19 impacts were generally felt. The least overall declines were registered by the Federal Bureau of Investigation (FBI). A total of 2,272 referrals occurred during June. This was only 6.3 percent below the levels from last February. See Figure 1.
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The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) experienced the second smallest declines. Its referrals in June were down 12.4 percent from levels last February. The Drug Enforcement Administration (DEA) had an intermediate decline, ranking third out of the top five federal investigative agencies. Its referrals dropped 19.2 percent.
The two immigration enforcement agencies—Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)—experienced the largest declines. CBP criminal referrals for prosecution dropped by 82.2 percent in June as compared with February levels. Its referrals were even lower than they had been in May, although slightly larger than its April referrals. This drop, however, was no doubt driven by the change in the Trump Administration's policies of immediately turning back most individuals seeking to enter the country at the border, even those seeking asylum[3].
These comparisons were based upon case-by-case Department of Justice records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University after successful litigation under the Freedom of Information Act. Table 1 (below) provides month-by-month criminal referral numbers for these five lead investigative agencies.
Federal Criminal Prosecutions
Once a referral is received, prosecutions aren't automatic. Each referral is typically assigned to an assistant U.S. attorney who determines whether or not to charge the suspect with committing federal crimes. June prosecution numbers (6,176) rebounded considerably from May levels (3,652). June figures, however, still represented a 55.4 percent drop from February 2020 levels[4].
The large drop in CBP prosecutions, however, accounted for the lion's share of the overall drop and closely paralleled the CBP drop in referrals. In February 2020 the number of federal prosecutions of CBP referrals totaled 7,688. In June they were 1,277. However, June prosecution numbers were still higher than they had been in May when they had fallen to just 899, and in April were only 794.
The smallest drop was shown by the ATF. June prosecutions were just 2.6 percent lower than February totals, and were in fact slightly higher than they had been in January 2020. See Table 1 below. Table 1 displays relative agency-by-agency percentage declines from February to June 2020.
| Referrals for Prosecution by Investigative Agency | Jun-20 | May-20 | Apr-20 | Mar-20 | Feb-20 | Jan-20 | % Change (Jun vs Feb) |
|---|---|---|---|---|---|---|---|
| Total - All Agencies Combined | 9,666 | 8,490 | 7,890 | 14,990 | 17,571 | 16,599 | -45.0% |
| Justice - Federal Bureau of Investigation | 2,272 | 1,750 | 1,851 | 2,038 | 2,424 | 2,194 | -6.3% |
| Homeland Security - Customs and Border Protection | 1,295 | 1,649 | 1,200 | 6,464 | 7,716 | 7,324 | -83.2% |
| Justice - Bureau of Alcohol, Tobacco, Firearms, and Explosives | 1,224 | 883 | 859 | 1,419 | 1,398 | 1,387 | -12.4% |
| Justice - Drug Enforcement Administration | 1,146 | 923 | 762 | 1,228 | 1,419 | 1,269 | -19.2% |
| Homeland Security - Immigration and Customs Enforcement | 1,077 | 738 | 743 | 979 | 1,412 | 1,275 | -23.7% |
| All Other Agencies | 2,652 | 2,547 | 2,475 | 2,862 | 3,202 | 3,150 | -17.2% |
| Prosecutions Filed Referred by Investigative Agency | Jun-20 | May-20 | Apr-20 | Mar-20 | Feb-20 | Jan-20 | % Change (Jun vs Feb) |
| Total - All Agencies Combined | 6,176 | 3,652 | 2,811 | 11,206 | 13,836 | 12,736 | -55.4% |
| Homeland Security - Customs and Border Protection | 1,277 | 899 | 794 | 6,361 | 7,688 | 7,271 | -83.4% |
| Justice - Federal Bureau of Investigation | 972 | 475 | 312 | 865 | 1,151 | 899 | -15.6% |
| Justice - Drug Enforcement Administration | 880 | 418 | 293 | 913 | 979 | 849 | -10.1% |
| Homeland Security - Immigration and Customs Enforcement | 865 | 523 | 522 | 844 | 1,214 | 1,098 | -28.7% |
| Justice - Bureau of Alcohol, Tobacco, Firearms, and Explosives | 847 | 363 | 191 | 683 | 870 | 820 | -2.6% |
| All Other Agencies | 1,335 | 974 | 699 | 1,540 | 1,934 | 1,799 | -31.0% |
Footnotes
[1] See March 16, 2020 New York Times article, "After Days of Anxiety and Confusion, Government Workers Told to Stay Home."
[2] For TRACs earlier report covering changes in federal criminal referrals through May see: https://trac.syr.edu/tracreports/crim/608/.
3] CBP expulsions began in March, following a CDC March 20, 2020 policy change published in the Federal Register on March 26 at: https://www.govinfo.gov/content/pkg/FR-2020-03-26/pdf/2020-06327.pdf.
[4] For TRACs earlier report covering changes in federal criminal prosecutions through May see: https://trac.syr.edu/tracreports/crim/609/.
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.