Crime is up. But prosecutions fell 4% in July.

The USAO is still charging less than half as many cases as they were pre-COVID

Since the United States Attorney’s Office (USAO) received harsh Congressional criticism for declining to press charges in 2/3 of MPD’s arrests, they have begun posting monthly updates on prosecutions. These reports notably do not include the number or % of cases they decline to prosecute (which was the cause of the initial outrage) but they do let the public see high-level prosecution volumes. For his part, US Attorney Matthew Graves has raised expectations of more prosecutions in recent media appearances: “There were issues that had built up over years that we are addressing — and we are addressing it in terms of increasing the number of cases that we’re bringing.” So it was a surprise to see that prosecutions in July were actually down 4% and still less than half what the USAO was charging just a few years ago pre-COVID:

Note that the USAO released combined January-May’s data in a single report so we don’t know anything about the variation within those months. These USAO reports use the common tactic of citing large numbers without context in order to look impressive. DC’s crime lab also used this trick quite a bit in their concerning annual report. Note that unless one compares each month’s change in the year-to-date numbers and looks up historic trends there is no way the reader will know what these numbers mean. In general they are selectively providing the numerators for prosecution metrics without providing the denominators:

This deliberate vagueness may be why these reports have so far attracted almost no media attention despite showing that prosecution in DC remains extremely limited relative to past years. While we can’t know for sure how many cases the USAO is declining to prosecute, we can compare to past year’s arrest volumes (MPD unfortunately doesn’t release arrest data in a timely manner either) & estimate:

• The USAO pressed charges in 594 cases in July 2023

• MPD made 1,388 adult arrests in July 2022. If MPD made the same number of arrests this year (and arrests volumes have been relatively stable since 2020), that would mean the USAO pressed charges in 43% of arrests and declined to prosecute in 57% of arrests. This would still be a national outlier and is likely the “best case” for the USAO.

• However, crime is up 31% so far this year, so if MPD has increased its arrest volumes proportionally (to 1,818) it would imply that the USAO has pressed charges in 33% of arrests and declined to prosecute in 67% of arrests. Note that this would be the exact same proportion that caused public and Congressional outrage in the first place.

  • The only way for the USAO’s low prosecution volumes to coincide with a lower declination rate (more comparable to other cities) is if MPD is making fewer arrests than in past years despite the increase in crime. If MPD is in fact making fewer arrests this year, that suggests that clearance rates have fallen significantly and is equally concerning.

While Graves “said residents should expect to see higher prosecution rates when the office releases more data this fall” it’s highly unlikely his audience thought that meant “only” declining 57% (or more) of cases. For context, the USAO’s FY 2022 declination rate (67% overall) was 5X as high as New York City prosecutors for felonies and 4X as high for misdemeanors. A 57% declination rate would still be massively higher than any New York City prosecutor (or any of the cities cited by the Post):

Graves made these very optimistic public comments on August 1st so he was definitely aware of the low January-June prosecution volumes and likely had some sense of how July was trending. Instead of bringing prosecution rates in line with every other major city in America; it appears that the USAO’s strategy is to cite improvement relative to FY 2022’s rock-bottom levels and claim victory. The USAO has also been able to cite cherry-picked data to present the appearance of major improvements that we now see are not representative. Graves shared much higher prosecution rates from the USAO’s Chinatown Pilot Program at CM Brooke Pinto’s August 3rd public safety meeting. Notably this increase in prosecutions was attributed to decreasing “prosecutorial discretion” to decline “viable” cases rather than any fixes to the problems at MPD or the crime lab that the USAO usually blamed for the high declination rate:

When I saw these Chinatown figures I mostly expected the district-wide July prosecution data to show an increase over June since the USAO was demonstrating an ability to rapidly scale up prosecutions. But instead overall prosecutions fell in July. This suggests that the USAO’s special focus on Chinatown may have actually resulted in the USAO declining more cases in the rest of DC. It’s also possible the USAO selected an unrepresentative sample of cases to mislead the audience at the meeting.

The fact that the USAO is still a national outlier in declining to prosecute an incredibly high share of cases in DC is important because it undermines Mayor Bowser’s entire crime-fighting strategy:

• A lack of prosecution undermines the deterrent power of visible police presence or closing cases via arrest. Criminals simply don’t fear getting caught if they think they won’t be prosecuted (and mathematically the odds are in their favor).

• A lack of prosecution means that efforts to expand pretrial detention or sentence lengths have no impact on suspects who are never charged in the first place

• A lack of prosecution means there are fewer cooperating witnesses to build cases against other (usually more serious) criminals

• A lack of prosecution undermines efforts by ONSE, Cure The Streets and private organizations to convince young people (mostly men) to choose legitimate jobs over crime. “Focused Deterrence” requires carrots AND sticks and the USAO has undermined the “stick” in DC during the same time that DC tried to ramp up violence prevention programs.

There is simply no theory of policing that works if criminals aren’t prosecuted when they commit crimes and are arrested. There’s legitimate debate about diversion, plea bargaining and sentencing but declining to prosecute huge numbers of viable cases (which the USAO has basically admitted to with this Chinatown Pilot) undermines the rest of the criminal justice system and almost certainly encourages more crime. There is a reason that no other cities (who control their prosecutors) seem to have declination rates even close to DC’s. The USAO’s off-the-charts declination rate is probably the most important reason why crime in DC is up this year even as it is falling in most other American cities. The USAO’s abnormally low prosecution rate also confounds any attempt to accurately evaluate any of DC’s crime-fighting strategies (policing or preventative) since they were being undermined every year:

Given the USAO’s importance and extreme outlier performance it’s amazing how little criticism they’ve faced over the years even as crime as been the top issue in DC politics. Mayor Bowser, City Administrator Kevin Donahue, at least some members of the DC Council and a number of executive branch and Council staff have seen reports as far back as 2017 that showed the USAO wasn’t pressing charges in a large share of arrests. Below is an except from “A Report on Felony Crime in the District of Columbia” (the report starts on page 95 of the Council oversight responses document) which is mandated by the NEAR Act (highlighting in red by me):

The analysts that prepare this report (seemingly annually) update the figures in the highlighted paragraph but the line “This suggests that a high percentage of arrests are never prosecuted” is in every single version of this report. This thread links to each year’s report if you want to see the progression. Since not every report is online I can only say that there are at least 4 unique reports over 6 years that warned DC's leaders that prosecution was falling apart long before this issue got significant media attention in 2023. Despite DC’s leaders being told clearly and consistently by their own analysts that the USAO was failing they were relatively quiet. It’s amazing that DC’s Democratic elected officials were being handed hard evidence that Trump appointees at the USAO were “soft on crime” in a way that was undermining safety in DC and they didn’t (or couldn’t?) get any media or Congressional attention on this issue. Likewise, neither Mayor Bowser nor Congresswoman Eleanor Holmes Norton were able to use their connections or influence with the Biden White House to pressure the USAO to meaningfully increase prosecutions after Biden’s inauguration in 2021.

Why didn’t this story break with the first NEAR Act report in 2017? Or any year between then and 2023? How did we go through an entire Mayoral election where crime was a top issue without the fact that DC was a national outlier in low prosecution rates being on the agenda?

One reason is that the Mayor’s opponents failed to make this an issue and possibly weren’t aware the USAO was declining so many prosecutions. But Mayor Bowser definitely knew and has been unusually tolerant of the USAO undermining public safety in her city. We all know that the Mayor isn’t subtle about blaming her political enemies for crime and her media team is incredibly skilled at generating headlines with the Mayor’s preferred framing. But to my knowledge the USAO has never been on the receiving end of a coordinated attack from Mayor Bowser’s team and that is puzzling. It may be that they simply view the USAO as on their “team”. The USAO as an institution tends to favor the Mayor’s legislative proposals for expanding pretrial detention/sentences, and there may be some residual warmth towards the USAO for damaging then-Mayor Vincent Gray during Muriel Bowser’s first mayoral campaign. It’s also possible that the Mayor thinks public pressure is unlikely to improve the USAO’s prosecution rate. However if the administration has been instead relying on private pressure it failed entirely when prosecution rates fell from 2017 to 2022 and in 2023 it has mostly failed.

So far the USAO has been able to evade any lasting political/professional consequences for incredibly low prosecution rates (Graves’ Wikipedia page doesn’t even mention this issue for example). For years DC’s leaders seem to have ignored this problem and even now that there is some public awareness, the USAO is mostly able to avoid negative headlines. It’s very likely that when the USAO releases the FY 2023 data (sometime this Fall) it will be framed only in terms of “improvement” relative to FY 2022 and they will continue to blame everyone else in DC for low prosecution volumes and crime in general.

For anyone that wants DC’s crime-fighting efforts to succeed it’s imperative that the USAO actually prosecute “viable” cases like every other major city prosecutor. The USAO is THE bottleneck and the key difference between DC and other cities with similar challenges but MUCH lower (and falling) crime rates like New York City (NYC):

• NYC and DC have very similar per-capita arrest rates. There is no evidence that police in DC are making vastly more “non-viable” arrests than other police departments (though those issue do exist) to justify the USAO’s outlier declination rate.

• NYC and DC have both seen decreases in police staffing as attrition outpaces recruitment

• NYC and DC both have above-average case closure rates (though NYC is a bit higher, which may be due to DC’s crime lab problems)

• NYC and DC have similar conviction rates (of the cases where prosecutors do bring charges) and both have similarly Democratic/Progressive jury pools

• NYC and DC both have contentious relations between more-conservative police unions and more-progressive city councils

• NYC and DC both have concentrated poverty, inequality and other social challenges that correlate with crime

However NYC controls its prosecutors and they are 4X-5X more likely to press charges than the USAO in DC. In NYC most arrests result in criminal charges. In DC most arrests do not. THAT is the key difference. I can’t prove that it is the cause of NYC having much lower crime rates than DC but it goes against all logic to think this isn’t a major factor.

DC’s leaders need to understand that the USAO is the key bottleneck for enforcing our laws and orient their strategy around breaking that bottleneck. Effectively pressuring the USAO, real changes to MPD-USAO collaboration, offloading more prosecutions to the OAG and/or advocating for more federal prosecutors to be assigned to DC are just some possibilities. Right now 99% of DC’s crime debate is focused on everything but the key bottleneck in our political Forever War between the Mayor and the Council. We desperately need more focus and attention (and maybe even some corny old-fashioned unity) on getting our prosecutors to enforce our laws.