Prosecution is still broken in DC

Despite the positive spin, prosecutions actually fell last quarter

Matthew Graves, the United States Attorney for DC, has been on a media winning streak recently. He got national media attention for a briefing on the January 6th investigations, helped delay (if not stop) an appointment to the DC Sentencing Commission and has gotten mostly uncritical coverage for his commentary passing the blame for DC’s crime problems on to other branches of government. But despite these media successes, his office actually charged fewer cases last quarter (October-December 2023) and prosecutions remain significantly below the pre-COVID average. This strongly suggests that the United States Attorney’s Office (USAO) is still declining to prosecute a significant share of the adult arrests presented to them by the Metropolitan Police Department (MPD) and other law enforcement agencies in DC. This low prosecution rate is without any known precedent in other major American cities or even DC’s recent past:

The fact that prosecutions decreased in Q4 2023 goes against the optimistic narrative that USA Graves spun at his October 2023 press conference:

“Graves said the biggest challenge was the lack of forensic labs to process evidence. He said that has been rectified with of federal labs and outside contractors.”

“In the last three months of the fiscal year that ended Sept. 30, Graves said, his office prosecuted 53 percent of arrests, and he said he believes that prosecutions will continue to rise in the current fiscal year.”

While the official narrative boiled down to “prosecutions increased because we solved longstanding problems;” the actual prosecution volumes correspond much more with the media schedule:

• Prosecutions rose 45% over the last months of FY 2023; which conveniently gave the USAO one “good” quarter to prioritize in their October press conference reviewing the FY 2023 data. The slides and talking points for that presentation overwhelmingly focused on the last quarter of FY 2023 (with a 53% prosecution rate), not the lower 44% prosecution rate over the entire year.

• Immediately after FY 2023 closed (and there was no near-term pressure to show higher prosecution rates), the volume of prosecutions fell 22% in October (relative to September), with smaller decreases in November (down 14%) and December (down 15%) relative to the September peak.

The USAO still does not publish prosecution or declination rates but we can make an educated guess that they chose to prosecute about 52 of the arrests they reviewed in the last quarter:

• In Q4 of FY 2023 (July-September 2023) the USAO chose to prosecute 53% of the arrests they reviewed

  • This corresponded with 2,197 new cases

• In Q1 of FY 2024 (October-December 2023) the USAO charged 2,144 new cases. This was a 2.4% decrease from the previous quarter, despite the stated belief that “prosecutions will continue to rise.”

• If arrest volumes were constant, this would suggest a prosecution rate of 52%. Unfortunately we don’t have timely arrest data, but historically arrest volumes have been generally stable. Any reasonable variation would be unlikely to change the estimated prosecution rate by more than a few % in either direction. For comparison the prosecution rate is over 80% in Manhattan, Chicago and Philadelphia.

Unlike any other American city (to my knowledge), in Washington DC when someone is arrested it is almost a 50/50 coin toss whether they will face any criminal charges. No other police force or violence prevention agencies have to work in an “ecosystem” where basic deterrence is so undermined by a lack of prosecution. The DC Council’s Committee on Judiciary and Public Safety referenced this in their report on the “Omnibus” bill:

“It seems clear that a lacking sense of accountability has contributed to the current circumstances in the District. The Committee has repeatedly heard complaints about the “revolving door” in the District’s criminal justice system, wherein certain individuals repeatedly engage in dangerous conduct but often are not prosecuted or suffer few consequences for their action even when they are.”

”Violence interruption workers appear to agree with this. Dwayne Falwell, a highly-regarded violence interrupter in the District, was quoted recently on this point: ““When you get [a few of these people] that’s part of this population and then they make an arrest, but then they’re back on the street within 24 hours, it doesn’t help the cause, right? These young guys see this and realize, ‘man, we can do what we want to do — ain’t nothing gonna happen to us.’”

What it means when the USAO declines to prosecute ~47% of arrests is that every month hundreds of people are being arrested, released without charges and in a number of cases going on to commit new crimes. Or their example of “getting away with it” helps encourage others to engage in (more) crimes. We’ve seen suspects that the USAO previously “no papered” (i.e. declined to prosecute) go on to be accused of the entire spectrum of crimes from homicides, to robberies all the way down to petty theft; and in many of these cases the declinations were pretty recent. Here are some real examples to help people understand what this looks like in practice.

• Cory Heard allegedly shot and killed Rodney Snead in November 2023. He had been previously arrested by MPD with an illegal “ghost gun” in July 2023 but the USAO did not press charges in DC Superior Court.

  • In other cities like Detroit and Baltimore that had decreases in homicide in 2023 (unlike DC’s 35% increase last year) they credited proactive prosecution of illegal firearm possession with helping to deter and incapacitate shooters.

  • In DC however, the USAO only presses charges in 63.6% of firearms arrests and wins a conviction on 68.3% of “papered” cases. As a result, only 43.4% of MPD’s firearms arrests ever result in a conviction.

• Ricardo Washington allegedly committed four carjackings between September and October 2023. He had previously been arrested by MPD for Unauthorized Use of a Vehicle (usually this means driving a stolen car) in August 2023 but the USAO did not press charges in DC Superior Court.

  • Motor vehicle theft was up 82% in DC last year. It’s far more common for MPD to make an arrest of someone using a stolen car (Unauthorized Use of a Vehicle or UUV) than an arrest for the actual theft of the car since thieves will often pass stolen cars to their colleagues. When manually reviewing the UUV arrests that MPD announces it appears that adults only get charged with UUV about 38% of the time. In some cases the USAO will press lesser traffic or minor drug charges but even when counting those cases the “prosecution rate” in this sample was only 56%. It’s unclear why the USAO isn’t pressing charges in these cases but hopefully DC policymakers can force some kind of productive cooperation on this issue between MPD and the USAO.

  

• Tony Walker allegedly committed an armed carjacking and also stole another car in January 2024. He had previously been arrested by MPD on four separate occasions for UUV. Two of the arrests happened within 2 weeks of each other in January 2023 and the USAO didn’t press charges in either case:

  

  • Carjacking rose 98% in DC last year. A large majority of the arrested carjacking suspects are juveniles who are prosecuted by DC’s Attorney General (OAG) who according to NBC4 only pressed charges in 57% of juvenile carjacking arrests as of October 2023.

• On January 10th, 2024 MPD stopped a car that matched the description of a vehicle that had previously fled a traffic stop. During the stop the driver attempted to put the car into drive (to flee) and when the MPD officer attempted to stop/handcuff the driver he and another occupant broke free and ran from the vehicle before being eventually detained. While searching the car and its occupants MPD found two illegal firearms as well as cocaine and Oxycodone in quantities that police alleged indicated intent to distribute. MPD arrested four of the five occupants of the car but as of today the USAO has only pressed charges against one of them; who notably had a strong unrelated-to-this-traffic-stop robbery case. One of the “no-papered” suspects was already convicted of carrying an illegal gun in 2019. We only know any of these details because of the Gerstein Affidavit for the one suspect they did charge (Deon Buckner, case 2024 CF3 000342). It’s noticeable that this carload fit the general description of the “Drivers of Gun Violence” (carrying illegal guns, involved in drug trade, prior arrests) that MPD and the USAO say are the focus of their investigative/prosecution efforts but there seems to have been only a minimal effort to make a case here despite all of the physical evidence. It’s possible that the USAO thinks there was a problem with the search but then why would they include evidence from it in the one case that they did charge?

• On December 28th, 2023 MPD arrested 11 adults for various firearms, drug and “Maintaining a Crack House” charges when a search yielded three different firearms. As of January 6th, 2024 (when I reviewed it) the USAO had not pressed charges against any of the named adults that MPD arrested. This may be a case where the USAO felt they couldn’t tie the illegal items to any one person but it’s still surprising that across 11 individuals they didn’t press any charges.

• On January 12th, 2024 officers from MPD’s 3rd District made 4 different arrests for theft/shoplifting/receiving stolen goods and the USAO declined to prosecute any of them. One of these suspects has an open December 2023 shoplifting case from when she allegedly stole $359 from the DSW in Columbia Heights. In the same neighborhood, on January 3rd, 2024 Officer Canahuate arrested three people for theft at the DC USA shopping mall and the USAO again declined to prosecute any of them.

  • While the USAO refused to share their FY 2023 prosecution rate specifically for misdemeanors vs. felonies; in recent years the misdemeanor rate has been ~4% lower than the overall prosecution rate. This suggests that with today’s estimated 52% prosecution rate that the USAO is prosecuting ~48% of misdemeanors. This is worth remembering when thinking about crimes like retail theft where most of the offenses are misdemeanors.

To address one of the USAO’s favorite strawmen arguments, no one seriously expects a prosecutor to press charges in 100% of arrests. There will always be some gap between the probable cause for a police officer to make an arrest and the standard for a prosecutor to bring charges. But in most American cities (and DC in past years) that “gap” is present in the 5%-25% of cases that the prosecutor declines to prosecute. The USAO’s ~48% declination rate is off-the-charts and these examples illustrate how it means suspects are free and undeterred to go commit new crimes.

It’s also notable how the USAO’s media campaign and legislative push may reinforce a “why bother?” attitude among DC prosecutors. Across multiple media appearances USA Graves has argued for more pretrial detention and longer prison sentences. For some suspects (higher risk ones accused of more serious crimes) he has a stronger argument but that slice of the criminal population is a very small share of his office’s total caseload (or at least MPD’s arrests). Most arrests are misdemeanors that will rarely meet the criteria for pretrial detention or a long sentence of any kind. Even many firearms offenses and violent crimes end up with plea deals (negotiated by the USAO) where long sentences are off the table.

The rhetoric and reality of DC's prosecutors

The rhetoric that frames the only good outcome as one where the suspect is detained pretrial before being sentenced to a long prison term devalues most of the work the USAO actually has to do on a daily basis. Most of the numerous, minor cases are about ensuring that some punishment is imposed to uphold the certainty of punishment (hopefully deterring future crimes) or to begin building an offender’s criminal history score to support more severe punishments in the future if they reoffend. The USAO’s low prosecution rate undermines both of those objectives. Likewise the obsessive focus on secure detention misses the fact that a prosecution without jailtime is still likely more of a deterrent than no prosecution at all. 92% of suspects on pretrial detention are not arrested for a new crime while they are supervised. 88% of offenders on parole, probation or supervised release are likewise not arrested for a new crime while under supervision. We don’t know the “base rate” at which these people would have been arrested in a hypothetical situation where they weren’t under supervision but it seems pretty likely that these programs (or the simple deterrence factor of being charged) do have some benefit in keeping people from committing new crimes. But that “benefit” only occurs when the USAO presses charges. By focusing almost all of his rhetoric on increasing the severity of punishment (while downplaying any concerns about the prosecution rate), it minimizes the importance of the certainty of punishment. One could easily see how a prosecutor might hear these comments and decide that prosecuting most retail theft, unauthorized use of a vehicle or even carrying a pistol without a license cases (which tend to get probation) just “isn’t worth it.” Especially if the organization is more focused on the rate at which they win the subset of cases they prosecute, not the overall prosecution rate.

The USAO’s abnormally low prosecution rate and plea bargaining practices are THE bottleneck for any “tough on crime” approaches in DC. Mountains of criminology research on the certainty of punishment, feedback from police officers and violence interrupters and basic common sense all tell us that we need criminals to think they’ll be caught and prosecuted if they commit crimes. With MPD unfortunately solving a smaller share of crimes, it’s even more important for deterrence that the USAO is prosecuting viable cases. We’ve seen the USAO increase its prosecution volumes dramatically (+45% in 3 months) when they were faced with a high-profile accountability moment. It’s up to DC’s local and Federal policymakers and journalists to help ensure that we get more than single moment of accountability for this critical aspect of DC’s criminal justice system.