Less than 40% of MPD's arrests for illegal guns result in a conviction

Laws are only as "tough" as their enforcement

The narrative from the United States Attorney’s Office (USAO) in DC has been that while they declined to prosecute 67% of MPD’s arrests, they were still pressing charges in “the vast majority of violent felonies.” However data from the excellent analysts at the DC Sentencing Commission clearly shows that the USAO is not charging arrests for “carrying a firearm illegally” nearly as consistently as violent crimes. Over 60% of MPD’s arrests for Carrying a Pistol Without a License (CPWL) or Unlawful Possession of a Firearm (UPF) resulted in a declination (no charges were filed aka “no papered”) or the case was dismissed without a conviction (either proactively by the USAO or by the defendant being found “not guilty.”) In the cases where the USAO “wins”, it is often a plea bargain with no prison time. This entire process undermines the stated objective of the DC government, MPD and the USAO to keep illegal guns off the streets and possibly emboldens criminals to engage in more serious crimes.

Violent crime with guns is up 10% YTD and guns have been used in 85% of DC’s homicides so far in 2023. Guns, often illegally bought/carried, have again and again turned simple altercations into murders and serious injuries. Just searching for “Altercation” on MPD’s news room pulls up numerous cases where guns (more often than knives) turned an argument into a deadly interaction:

Guns also pose a much larger threat to bystanders than other weapons like knives. The tragic murder of Lasanta McGill is a sad example of this dynamic:

• Suspect Demarcus Barnett was illegally carrying a firearm (while on pre-sentencing release for other charges) when he was robbed at gunpoint by 2 men inside a store

• Barnett followed the 2 robbers outside the store, aimed his firearm, missed and fatally shot Lasanta McGill

MPD’s District 3D Commander James Boteler discussed the situation in the context of DC’s overall gun problem:

"Unfortunately, there are too many people carrying firearms, you know, simple ... verbal disputes leading to gunfire," said Boteler. "It's just unacceptable in any city, especially here in Washington, D.C."

Washington, DC has some of the strictest gun laws in America; but its enforcement seems to be very inconsistent. For these types of crimes, MPD is trying to increase enforcement but the majority of the arrests aren’t leading to convictions. While MPD is making ~44% fewer arrests per officer than pre-COVID; arrests for “weapons violations” specifically are actually up 60% (despite reduced MPD staffing). As we’ll see, the gap in enforcement is mostly happening after the arrest. Most of the data in this post comes from the DC Sentencing Commission’s review of CPWL and UPF arrests which are very common and slightly different gun offenses in DC:

Note that CPWL applies to everyone (even people bringing guns legally-registered in other states into DC) while UPF only applies to a “person [who] has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” As a result, MPD makes about 2-3X as many arrests for CPWL than UPF each year. Like other crimes, the USAO has been “no papering”, or declining to press charges, on a growing share of MPD’s arrests:

The clear upward trend in USAO no papering CPWL arrests (which again are the more common offense) is an enormous change in just a few years. The UPF no paper % may be slightly lower because “The U.S. Attorney’s Office for the District of Columbia has a policy of charging certain UPF arrests in U.S. District Court. These arrests are classified as “no papered” in this analysis.” However, there’s no indication of the number of these District Court UPF cases. Combined, what we see is that in just a few years (and beginning before 2020) enforcement of gun laws in Washington DC has gone from “almost all arrests lead to prosecution” to “barely half of arrests lead to prosecution.” It’s probably impossible to draw a causal connection between this change in prosecution and the increase in gun carrying (which seems to be a national phenomenon). However it’s likely that this USAO trend is increasing gun carrying on the margin and resulting in some criminals (who otherwise might have been prosecuted) being free to commit other crimes.

Deciding to prosecute is just the first step in the USAO securing a conviction and punishment for any crime. A countervailing trend is that there has been a reduction in the % of papered cases that are “dismissed.” Unfortunately the report doesn’t distinguish between where a case was dismissed by the USAO (which is pretty common in cases I’ve manually reviewed) or dismissed because the defendant was found not guilty (which is less common in cases I’ve reviewed). While a reduced dismissal rate partially reflects the USAO “winning” more cases, there are two notes of caution:

• More recent years have a higher % of cases (between 9%-18%) still pending in the courts without a conviction or dismissal. Some % of these “pending” cases will eventually be dismissed, bringing the more recent years (2021 and 2022) dismissal rate closer to 2018-2020.

• Even in 2021 and 2022 around 30% of the shrinking pool of papered arrests are being dismissed without a conviction.

When we account for no papering, dismissals and cases still pending, we see an overall decrease in the conviction rates for these arrests. Since the pending cases skew both conviction and dismissal rates down, I calculated an “estimated conviction rate” by assigning the pending cases proportional to the % of resolved cases that ended in conviction or dismissal. Here we see that the UPF conviction rate is low but relatively steady while the CPWL conviction rate has fallen significantly:

The increasing USAO no paper rate is by far the largest driver of this drop in conviction rates and also likely the biggest indicator of serious problems. One aspect of CPWL and UPF arrests is that in the vast majority of cases there is physical evidence; usually an officer finds a gun on someone or within their home/room. While in some cases it can be difficult to tie a specific gun to a specific person, very often the police have good evidence (even without crime lab support) that the person did in fact have the gun illegally. Because of the physical evidence, CPWL and UPF can sometimes be less difficult to prove than many violent crimes. What often causes these cases to be no papered by the USAO or dismissed is that the initial search that led to the officer finding the gun is deemed to be based on “flimsy probable cause” (by the USAO or a jury). MPD and the USAO give different reasons for no papered cases:

• In some cases “video from the officers’ body cameras did not match what was described in the reports” which puts the blame on the MPD officer making the arrest

• In some cases MPD officers claim the USAO applies an unreasonable standard for a search that is above and beyond the legal requirements

With the CPWL no paper rate skyrocketing from 15% to 46% in just a few years this implies that there have been huge changes. Either MPD has gotten much worse at making Constitutional stops/seizures or the USAO has decided that its standards for charging these offenses as recently as 2018 was flagrantly unconstitutional (or some combination of both). Neither MPD or USAO have announced public actions (to my knowledge) that aim to fix this problem and the USAO’s recent data dump doesn’t provide any transparency into their no paper rate. Hopefully they will begin to take this seriously (or be made to by Mayor Bowser and President Biden) because criminals are keenly aware of just how good their odds are of being no papered; as seen by this defendant taunting his arresting officers:

While the largest gap in enforcement for DC’s gun laws is in the low conviction rate; there are also questions about the severity of the sentencing for the ~37% of arrests that do result in a conviction. It’s important to note that UPF is sentenced very differently. While 94% of UPF sentences involve a full prison term, only 12% of CPWL sentences do so. A 58% majority of CPWL sentences are actually probation-only, with another 30% of sentences being “Short Split.” In a Short Split sentence the offender serves 6 months or less in prison followed by probation:

It is NOT clear cut what the “correct” sentence mix should be for these crimes. Both of these offenses are in “Group 8” of DC’s Master Grid for sentencing. I’ve shown the relevant portion of the grid below (the full grid is available here):

The “light shaded boxes” means that for convictions of these offenses there is discretion to apply “prison, compliant long split, short split or probation” and that offenders with a low “Criminal History Score” should receive sentences between 6-24 months in duration. While both CWPL and UPF are in the same group, UPF defendants definitionally have already served 1 year in prison so they will have a higher Criminal History Score and therefore be more likely to end up in the dark or white shaded boxes where a probation-only sentence is not permissible. This helps explain much of the differences in sentencing between CPWL and UPF. It’s also the case that the USAO will often offer probation-only sentences in CPWL plea deals:

This report did not evaluate what % of sentences are compliant with the sentencing guidelines. However there’s nothing about average sentence lengths (~17 months for those sent to prison) or the Prison/Short Split/Probation distribution that suggests that these sentences are out of compliance with the guidelines. Since many CPWL offenders likely have minimal prior convictions (which again, is partially a product of falling arrest and prosecution rates) it’s not surprising that probation is so common. I do wonder how much probation is seen as a deterrent by this population (especially the higher-risk subset) and how well CSOSA (the federal agency that oversees Washingtonians on probation) is keeping probationers out of trouble. I hope that the researchers at CJCC might look into this topic since the 1,000-2,000 “people arrested for carrying illegal guns” annually overlaps heavily with the 200-500 people that drive 60-70% of DC’s shootings.

My initial emotional reaction upon seeing this data was deep frustration. It feels wrong that so few arrests for carrying guns illegally (which is a serious problem in DC) are even charged, result in a conviction and lead to time in prison. Less than 2% of MPD’s CPWL arrests actually result in a full prison sentence and probation can feel like a “slap on the wrist” (even if the reality is more supervised). While there are serious pros and cons to imposing prison sentences; the fact that almost half of arrests for illegal guns never even lead to charges has to be one of the largest contributors to “lawlessness” in DC. But our political system seems to treat illegal guns as far less of a problem than turnstile jumping.

Mayor Bowser said that “Lawlessness begets lawlessness” when explaining her veto of the DC Council’s decriminalization of fare evasion on Metro. I certainly relate to that sentiment and Metro claims that more fare evasion correlates with more crime. I do intend to write about CM Pinto’s fare evasion bill but aside from its merits I think that the “lawlessness” people see (like fare evasion) has received vastly more attention than the “lawlessness” that happens behind closed doors (like no papering/dismissals and plea bargains) or is only visible by calculating how many arrests aren’t happening. This DC Sentencing Commission Report came out on May 1st, 2023 and I cannot find any media stories or statements from law enforcement or elected officials about it. Meanwhile most local media outlets have covered CM Pinto’s fare evasion bill in addition to running numerous stories over the years about the problem.

What do people think is a bigger driver of feelings of “lawlessness” and “impunity” among criminals? Fare evasion or a 44% drop in per-officer arrest rates, 23% closure rates on carjackings, less than 40% of illegal gun arrests leading to convictions and the USAO no papering 72% of misdemeanor arrests? Many of DC’s leaders are turning to “tougher” laws to address DC’s crime problems. We also need to learn from our experience with gun crime. Our laws are already some of the toughest in the nation. But our enforcement of those laws has degraded rapidly in recent years. New bills that grab headlines cannot crowd out the hard work of getting MPD and the USAO to make Constitutional arrests, build strong cases and prosecute them vigorously.