A Snapshot of the Audit Report on the Resource Management of USAOs and a Brief Analysis of the Report’s Findings
By Tiffany Joslyn, Research Counsel
White Collar Crime Project
National Association of Criminal Defense Lawyers
Data released this month, if accurate, suggests that prosecutors decline to file charges by a two-to-one ratio in white collar criminal matters when compared to all other criminal matters. The United States Department of Justice Office of the Inspector General Audit Division issued an Audit Report titled Resource Management of United States Attorneys’ Offices, dated November 2008. Before looking at the data, it is important to acknowledge the warning offered by the authors of the Report – the data may not be accurate and reliable. However, if good, at least two observations can be gleaned from the numbers: (1) prosecutors decline prosecution of white collar criminal matters twice as often as all other matters, and (2) the speed at which a white-collar criminal matter is filed or declined varies dramatically by district.
Among other things, the Report sets forth the total number of criminal matters “referred” to USAOs for Fiscal Years 2003 through 2007. The Report uses the term “referred” to mean any time a “law enforcement agency presents information about an investigation to a USAO [and] the USAO records this information in LIONS as a ‘matter referred.’” LIONS is a system utilized by USAOs to track all matters and cases which are presented to and/or pursued by USAOs. Because a “referred matter” does not become an actual case until the USAO files an indictment or information in court, “referred matters” remain in a “pending status” until a decision is made to either prosecute or decline the matter. Part of this Report seeks to analyze the status of all “referred matters” for Fiscal Years 2003-2007. A chart on page 37 (pdf page 61) separates the total amount of “referred matters” into categories of “filed,” “declined,” and “pending,” based on the matter’s status as reported by LIONS.
At first glance, the chart seems to demonstrate a downward trend in the total number of matters “filed.” However, the matters that were referred in Fiscal Year 2003 have had the benefit of almost five years with a USAO at the time of this survey, whereas the Fiscal Year 2007 referrals have spent significantly less time with a USAO. Thus, any comparison between the total number of matters “filed” in Fiscal Year 2003 with the number of matters “filed” in 2007 is essentially meaningless; such a comparison would be equivalent to comparing the ultimate height of a father and son without waiting until the son has reached his growth potential.
The Report then categorizes the statistics by the “type” of criminal matter – i.e., terrorism, narcotics, violent crime, white collar, immigration, public corruption, organized crime, civil rights, and all other criminal matters. Here, an interesting trend actually does emerge when the total percentage of all criminal matters that were “declined” is compared with the total percentage of white collar criminal matters that were “declined.” Each year the “declined” rate for white collar criminal matters is approximately twice the declined rate of all criminal matters:
- FY 2003: Total Matters Declined – 21%; White Collar Matters Declined – 37%
- FY 2004: Total Matters Declined – 17%; White Collar Matters Declined – 37%
- FY 2005: Total Matters Declined – 14%; White Collar Matters Declined – 30%
- FY 2006: Total Matters Declined – 10%; White Collar Matters Declined – 21%
- FY 2007: Total Matters Declined – 4%; White Collar Matters Declined – 7%
In an appendix to the Report, the statistics are broken down once more by District. Specifically, pages 101-04 (pdf pages 123-26) set forth data on white collar criminal matters for Fiscal Years 2003-2007, by district. This breakdown might answer one interesting question: Which districts are the quickest at filing/declining white collar criminal matters and which are the slowest?
- Fastest – the District with the lowest percentage of pending white collar criminal matters:
- (1) District of South Dakota has 15.47% pending
- (2) Northern District of Alabama has 15.72% pending
- (3) District of Guam has 18.75% pending
- Slowest – the Districts with the highest percentage of pending white collar criminal matters:
- (1) Southern District of Mississippi has 61.97% pending
- (2) District of the Virgin Islands has 50.00% pending
- (3) Western District of Missouri has 45.04% pending
While these district by district comparisons may provide practitioners with an interesting, yet superficial, portal into the activities of USAOs across the country, anyone using this report to reach broad conclusions about prosecutorial trends should proceed with caution. As discussed above, not enough time has passed to draw meaningful conclusions about the data. In addition, as this excerpt from page xvi (pdf page 17) demonstrates, the authors of the Report actually cast doubt on the accuracy of their own findings:
When we presented this information to EOUSA officials, they were surprised at the large number of pending matters, particularly the large number of cases in pending status for such long periods of time, and said they were unable to fully explain this data without reviewing individual district files. We therefore judgmentally selected a limited number of 50 pending matters from several different USAOs and requested that these USAOs notify us whether the matters were, in fact, pending. According to the USAOs’ responses, 44 percent of the matters we tested were accurately reflected as awaiting a decision to prosecute as of September 30, 2007 – half of which were referred to USAOs between FYs 2003 and 2005. However, the remaining 56 percent of matters in our sample were not actually in pending status. Instead, the USAOs explained that many matters had been prosecuted and the defendants sentenced prior to September 30, 2007.
The Report explains that the cause of this discrepancy may be a lack of coordination between the individual districts’ LIONS databases and the national LIONS database. Nonetheless, before relying on the Report’s data, carefully consider this warning set out by the Report’s authors: “We believe that this analysis has revealed significant concerns over the accuracy and reliability of LIONS data.
The Report in its entirety is available here.