The USAO's partial recovery in prosecution rates

Sifting through the USAO's facts and spin

On Thursday the United States Attorney’s Office (USAO) held a news conference announcing some (not all) DC prosecution data for fiscal year 2023 (October 2022-September 2023). As expected, the prosecution rate (the percent of arrests where the USAO decided to press charges) did increase from FY 2022’s record-low of 33% to 44% in FY 2023. Most of the USAO’s presentation was devoted to framing that number in the most favorable light possible. Spin aside, this is a real increase and there are reasons to expect prosecutions to be more common going forward.

Prosecutions are an incredibly important part of fighting crime. DC’s abnormally low prosecution rates have undermined the deterrent effect of our police and kept repeat criminals out in the community to commit more crimes. The lines on the subsequent graphs represent hundreds of arrests where the police believed they had probable cause to arrest a suspect for a crime and the USAO let them go for various reasons. Prosecution data ought to be especially important to those who prioritize “tough on crime” approaches because pretrial detention and “tougher sentences” only apply to defendants that the USAO chooses to prosecute in the first place.

One major focus of the USAO’s presentation was that last quarter (July-August-September 2023) had a higher prosecution or charging rate than the rest of FY 2023. The graph below helps highlight a few points:

• This year’s increased prosecution rate snapped a 6 year trend of decreasing prosecution rates. That’s a significant change and it only happened after enormous public, media and Congressional pressure on the USAO this Spring. Pressure clearly worked!

• Even the most recent quarter’s prosecution rate of 53% is still 20% lower than the 73% average from 2003-2013 when rates were relatively stable. This suggests that the USAO’s efforts this year have closed about half of the gap to “normal” prosecution rates but there’s still an equal amount of work left.

This historic trend also raises questions about the reasons cited for non-prosecution by the USAO. Note they only provided this breakdown for their most favorable quarter (which was pretty obviously a deliberate choice to minimize criticism):

• The USAO claims that 13% of arrests weren’t able to be prosecuted due to insufficient evidence and another 18% weren’t prosecuted because the victim was unavailable or didn’t want to press charges.

  • The USAO often claims that DC’s Domestic Violence laws require a lot of arrests where the victim doesn’t wish to prosecute. However in previous media appearances they cited that this was “over 1,000” arrests which in the context of MPD’s 15,000+ arrests each year is only ~7% and clearly not all of those arrests are cases where the victim doesn’t want to prosecute.

• This data comes from the USAO classifying their own decisions so they have a political incentive to explain away non-prosecutions. The fact that this same office in the past was able to consistently charge ~73% of all arrests in DC Superior Court under very similar laws casts a lot of doubt on the idea that 53% is as good as they can do.

However it is completely true that they cannot (and should not) prosecute 100% of cases. So even while I am skeptical of this data on “charging decisions” it’s still a step in the right direction that they shared it at all.

While there has been a real increase in prosecution rates, the USAO’s presentation engaged in some pretty misleading spin to make the increase look bigger. First off we have US Attorney Graves himself spinning the 11% year-over-year increase as a “33 percent increase” by using the “% of a %” trick:

This is a common trick to make small changes look bigger. Since FY 2022’s prosecution rate was so low, dividing the 11% year-over-year increase by the base % of 33% has the same effect as multiplying it by 3. Most of the time when someone uses this method they are trying to spin or sell something and it’s disappointing to see the US Attorney engage in such games.

Even worse, the headline-writer at the USAO applied this same trick to the difference between Fiscal Year 2022’s 33% prosecution rate and the last quarter’s 53% prosecution rate. Instead of being proud of a meaningful 20% increase they tried to frame the entire report as a “60 percent increase” which is so misleading that it was clearly intentional:

The USAO’s stated reason for the increase in prosecutions in the last quarter is that it was the “first complete quarter with full drug testing capability.” This explanation helps avoid admitting that any of the previous declinations were the “fault” of the USAO. However, this explanation doesn’t fit very well with the facts. In the most recent 6 months only ~12.5% of MPD’s arrests were for drug or alcohol related charges and some of these were already being charged; the number of drug arrests can’t explain a sudden 9% increase in prosecution rates. What does fit the facts is that USAO prosecutions immediately jumped 10% in the month after USA Graves was scolded by Congress:

It’s a lot more plausible that intense public, media and Congressional pressure prompted the USAO to take this issue more seriously. That can include filling gaps in evidence testing capabilities but also working better with MPD to reduce the number of “insufficient evidence” declinations and simply being less eager to use “prosecutor discretion” to dismiss viable cases. If the USAO’s version of events that focuses on drug testing is true then that is a damning indictment of Mayor Bowser and the Department of Forensic Sciences (DFS). DFS’ crime lab lost its accreditation in April 2021. Everyone has known that DC would be dependent on outside vendors and federal agencies to process evidence since that date over 2 years ago. It appears that from the first media reports on USAO declinations in March 2023 and a Congressional hearing in May 2023 it only took ~2-4 months to reach “full drug testing capability” once there was pressure on this issue. This strongly suggests that failing to close those evidence testing gaps over the past 2 years was a choice or at least a major oversight by the USAO and the Bowser administration.

The USAO was able to reverse a 6 year trend of decreasing prosecution rates in relatively short order once there was sufficient political pressure. That then begs the question why there wasn’t similar political pressure when the USAO was “only” declining to prosecute 40% of MPD’s arrests. As we’ve covered before, the problem of low USAO prosecution rates was reported to Mayor Bowser and at least some members of the DC Council as far back as 2017. Even though it would have been politically-advantageous for a Democratic Mayor to attack a Trump Republican prosecutor as “soft on crime,” there was no major PR effort from Mayor Bowser to pressure the USAO. If there were behind-the-scenes efforts to increase prosecution rates (or at last halt the steady decline) they clearly failed. One wonders what would have happened had Mayor Bowser employed her prodigious PR talents to engineer a media firestorm against the Trump USAO back in 2017. Since we know now that public pressure seems to have increased prosecution rates, it’s very likely that we’d have never seen the incredibly low prosecution rates of 2018-2022 that contributed to our current crime situation:

While the USAO did share some detailed data that they hadn’t previously released, they also withheld important information that is usually part of their annual reports.

• The USAO didn’t provide any information about the differences in prosecution rates for felony vs. misdemeanor offenses. They did provide the 90% prosecution rate for their preferred subset of “most serious violent crimes” which obscures the fact that this doesn’t include robbery or assault with a dangerous weapon which are the most common violent crimes. This “most serious violent crimes” framing had the unfortunate (possibly intended) outcome that media outlets repeated the 90% statistic as applying to “serious violent crimes” or even just “violent crimes.” This narrative gives the public a false sense that the USAO is prosecuting a higher share of violent crimes.

• The USAO didn’t actually share any actual prosecution volumes for DC Superior Court (the vast majority of USAO cases). As a result we don’t actually know how many cases they charged or declined; only the percentages.

• The USAO didn’t include any information on conviction or dismissal rates. This prevents us from having a truly apples-to-apples comparison to other prosecutors who may charge more cases but then dismiss a higher percentage later. With that key caveat aside, the USAO does remain an outlier in declining to prosecute at the arrest phase of the process:

  

These are all data points that are usually included in the USAO’s Annual Reports and hopefully will be forthcoming soon. The lack of this information is yet another example of how fragmented, delayed and outdated DC’s crime data landscape is especially compared to cities like New York and Philadelphia.

The USAO’s media briefing largely secured the headlines they want with most media outlets highlighting the increase in prosecution rates:

While it is somewhat frustrating that only a few outlets pressed at some of the spin within the USAO’s presentation, the fact that prosecution data got any media attention at all is big step in the right direction. If the USAO takes away from this event that “working to improve prosecution rates gets us good headlines” that is a better incentive structure than the previous situation of “no one pays any attention to our prosecution rates.” If USA Graves wants next year’s narrative to be that he was the “hard-charging US Attorney for DC that raised prosecution rates by 40% in 2 years” (back to the 2003-2013 average of 73%) then that would be very good for DC regardless of his motivations. On the other hand if his team takes this as their “Mission Accomplished” moment and don’t continue to improve then that would be a disaster for public safety. So for everyone that has raised the salience of prosecutions and pressed the USAO in public meetings it’s essential to keep up the pressure.

One key implication of the increased prosecution rate is that there is a massive backlog of possibly-chargeable arrests that were previously declined during the low-prosecution environments of the past few years. In the USAO’s presentation they claim to “routinely continue to investigate violent felonies and gun offenses where there is the ability to gather additional evidence” even if they initially declined to prosecute. Using their increased evidence-testing capacity to go back and try to build cases for old arrests of the highest-risk suspects (whom the USAO and MPD both agree should be priorities for investigation) ought to be a priority. From the perspective of incapacitating the 200-500 people responsible for 60-70% of DC’s gun violence, bringing charges on an older offense still serves the public safety goal of getting them off of the streets. The USAO should share data on how they are working through this backlog of evidence and possible cases. Even with increased prosecution rates, the volume of prosecutions is still well below past levels. The USAO should have the bandwidth to “catch up” on these older cases, especially since they have more prosecutors per capita than most cities:

One big reason that prosecution volumes haven’t risen more in 2023 is that MPD’s arrest volumes are flat in 2023. Even though reported crime rose 28.5% from the first half of 2022 to the first half of 2023, arrests-per-officer only rose by 4.7%:

Note that this timeframe was before Chief Smith was appointed. It strongly suggests that in the first half of 2023 MPD was closing a smaller share of cases. Arrests & closures aren’t always 1:1 (1 arrest may close many cases) but with the increase in crime vastly outpacing the increase in arrests it’s very likely that a smaller share of cases are being closed. This undermines deterrence and increases criminals’ sense of impunity. The contrast between this year’s large increase in prosecution rates by the USAO and the minimal increase in arrests by MPD is pretty unfavorable to MPD and hopefully something that Chief Smith’s team is working to correct.

The most recent police stops data (which includes the vast majority of MPD’s arrests) confirms that there has been no change in arrests-per-officer at least through June 2023. While a lot of people rightly worry about MPD’s staffing levels, this huge decrease in how MPD translates its scarce resources into arrests has attracted almost no media attention.

For DC’s crime-fighting “ecosystem” to be effective every part of it needs to be working. The USAO’s low prosecution rates have been a huge problem for years but they have made significant improvements in recent months. Concerned Washingtonians need to keep up the pressure for continued improvement in prosecution rates and downstream outcomes. But increasing prosecution rates from 33% to 53% in a year shows that significant change is possible given enough political pressure. The USAO’s improved prosecution rates now make it even more imperative that MPD close more cases.