Highlights
Prosecutors defer and drop cases all the time. The Jussie Smollett decision is not unusual.
16 to 50 percent of federal crimes are declined from prosecution.
34 percent of state felony cases are not convicted (approximately nine percent involve a deferred adjudication or diversion outcome).
Author
Leonard Adam Sipes, Jr.
Retired federal senior spokesperson. Thirty-five years of award-winning public relations for national and state criminal justice agencies. Interviewed multiple times by every national news outlet. Former Senior Specialist for Crime Prevention for the Department of Justice’s clearinghouse. Former Director of Information Services, National Crime Prevention Council. Former Adjunct Associate Professor of criminology and public affairs-University of Maryland, University College. Former advisor to presidential and gubernatorial campaigns. Former advisor to the “McGruff-Take a Bite Out of Crime” national media campaign. Certificate of Advanced Study-Johns Hopkins University. Aspiring drummer.
Article
Anyone who has been a police officer knows that criminal cases are dropped or deferred by prosecutors all the time. Some are dismissed (usually due to the difficulty of prosecution due to witness problems), and some are deferred; the defendant agrees to pay a fine or attend classes or does community service, which seems to apply to the Smollett decision. We don’t know because the judge sealed the case.
The criminal justice system is overwhelmed by the number of cases at our disposal. We have to find alternatives because we have no choice.
It’s the job of prosecutors to move cases quickly which means that dropped and deferred charges are a daily reality. But prosecutors are not the only ones offering leniency.
Cops detain and release numerous people. My first exposure to the criminal justice system is when I refrained from drinking and drove while my friends imbibed. The only problem was I didn’t have a driver’s license. I was 15 at the time. That and the fact that we stole gas when we ran out of fuel. Officers took me home and my parents promised that they would do far worse than the justice system. I remembered their discretion when I became a cop.
The point is that at every stage of the justice system, people are given breaks. I understand that the stereotype; a justice system that is heavy-handed. It can be at times, but in most cases, offenders are given numerous and significant breaks.
If in doubt, look at a defendant’s history of criminal charges and convictions before he gets prison time. And even when sentenced, it usually involves a short period where he serves 50 percent or less.
The Numbers
The great majority of crimes are not reported to the police, Bureau Of Justice Statistics. The vast majority of reported crimes do not end in arrest, Crimes Solved. The overwhelming percentage of charged offenders are plea bargained. Most felonies do not get prison time, Prosecution Statistics.
The average violent offender serves less than three years in prison, Violent Offenders. The great majority of parole and probation cases have an endless number of technical violations or new crimes yet offenders “successfully” complete supervision, Parole and Probation.
Good numbers do not exist for deferred prosecutions and dropped cases; the best I can offer is:
Federal Data: 16 to 50 percent of federal crimes are declined from prosecution, per “Federal Justice Statistics” (source below).
State Data: 34 percent of state felony cases are not convicted (approximately nine percent involve a deferred adjudication or diversion outcome), per Felony Defendants in Large Urban Counties, Cases Not Prosecuted.
Smollett
Mainstream media is extensively covering the case so there’s no point of replicating what they offer beyond pointing out the fact that he forfeited part of his bond ($10,000) and agreed to do community service.
Articles point out that he has no history of violence.
“Meanwhile, there is still one case open involving Smollett. Before he reported the attack, Smollett said he got a letter that threatened him at the Chicago studio where “Empire” is filmed. Chicago police asserted that Smollett sent himself the letter. The FBI is investigating, but has declined to comment,” USA Today.
I’m in no way trying to justify his actions, but cases are deferred or dropped all the time, Dropped and Deferred Cases.
Conclusions
What happened with Smollett is sad in the extreme. The exaggerated and stereotypical features of the case caused many of us within the system to pause and doubt.
But Smollett’s case isn’t unusual. To understand the justice system is to acknowledge that defendants are routinely given massive and numerous breaks because we don’t have the capacity to do otherwise.
We provide leniency because we have no choice or because discretion is in society’s best interest.
Contact
Contact us at leonardsipes@gmail.com.
Update
CNN offered new information hours after this story was published confirming that Smollett’s case was a deferred prosecution:
In a surprise hearing Tuesday, Joe Magats, the first assistant state’s attorney in Cook County, Illinois, announced he decided to drop charges against Smollett. The stunning reversal 18 days after a grand jury indicted the “Empire” actor on felony disorderly conduct outraged the Chicago mayor and police department.
The decision to drop the charges does not mean the actor was innocent or any new evidence was presented, Magats told CNN affiliate WLS.
“We believe he did what he was charged with doing,” he said. “This was not an exoneration. To say he was exonerated by us or anyone else is not true.”
He said charges are dropped in thousands of cases, but Smollett’s case is getting scrutinized because he is a celebrity.
“There are plenty of other cases … over 5,700 that have gotten some type of alternative or deferred type of prosecution involving a dismissal at the end of the case,” he said. “To think that there is some type of infirmity or something that we learned about the case or something that we don’t want aired is not true.”
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Previous Article From Crime in America On Dropped and Deferred Cases
There’s not much in the way of data on the percentages of crimes not prosecuted, which is why I wrote this article.
There is data on arrests or crimes not prosecuted from “Federal Justice Statistics,” (link below) from the Bureau of Justice Statistics of the US Department of Justice.
The data tracks numbers from the Department of Homeland Security and Department of Justice, and state that 16.6 percent of all cases were declined from prosecution. A declination is a decision by a U.S. attorney not to pursue criminal prosecution of a referral from a law enforcement agency.
When taking a look at individual agencies, however, the percentage of declined prosecutions are much higher, ranging from 18 to over 50 percent (see chart below).
Federal Prosecutions
Do These Numbers Offer Insight as to State Prosecutions?
To my knowledge, there are no comparable numbers for state and local prosecutions, thus I offer this data with the caveat that federal numbers will take some explaining (see below), and that the federal experience may not be applicable to understanding state and local criminal justice systems.
The federal criminal justice system is considerably different from state justice efforts with a focus on immigration and drug cases. For example, a tiny percentage of federal crimes are violent (i.e., with federal court defendants, 2.4 percent are violent, 4.1 percent are sex offenses, 7.9 percent are weapons offenses).
Most state incarcerations are for violent crimes.
But the above chart is one of the few data sets providing a glimpse into the percentage of crimes and arrests not prosecuted.
There is additional data below regarding state felony charges dismissed (or not prosecuted), compiled by the Bureau of Justice Statistics and other sources.
Explanations Lack of Prosecutions
Please note that there are a wide array of explanations for declines from prosecution. Prosecutors at the federal and state levels can place the defendant in a diversion program, or federal prosecutors could refer those arrested to local or state authorities. The defendant could be charged with lesser crimes. See notes below.
But it’s my guess that, in most instances, prosecutors feel that there is insufficient evidence to gain a conviction, based on observations from, “Felony Convictions in Large Urban Counties,” (below).
Felony Convictions in Large Urban Counties-State Felonies
From the Bureau of Justice Statistics, we get a glimpse of outcomes for state felonies. The report does not deal directly with prosecutions, only convictions. It’s my guess that most dismissals were based on prosecutors declining to proceed based on lack of evidence.
Among cases that were adjudicated within the 1-year study period, 66% resulted in a conviction.
Just over half (54%) of defendants were convicted of a felony and 12% were convicted of a misdemeanor.
Nearly all convictions were the result of a guilty plea rather than a trial.
In most cases when a defendant was not convicted, it was because the charges against the defendant were dismissed. The report does not identify the source of the dismissal. It’s the prosecution’s job to weed out weak cases.
About a quarter of all cases ended in this manner. An estimated 9% of cases resulted in a deferred adjudication or diversion outcome.
Source: Felony Defendants in Large Urban Counties.
Local Example: Defendants Walk Free In Nearly Two-Thirds of Violent Crimes
The verbiage below from the Philadelphia Inquirer (2009) is an example of how justice can get bogged down to such a degree as to have an impact on an entire metropolitan area.
The Inquirer cites a considerable number of data sources indicating, “Philadelphia defendants walk free on all charges in nearly two-thirds of violent-crime cases. Among large urban counties, Philadelphia has the nation’s lowest felony-conviction rate.”
Only one in 10 people charged with gun assaults is convicted of that charge, the newspaper found.
Only two in 10 accused armed robbers are found guilty of armed robbery.
Only one in four accused rapists is found guilty of rape.
Source: Philadelphia Inquirer (source expired).
Additional Example
Examples from RAINN (Rape, Abuse and Incest National Network) provide what could be the best graph data as to prosecutions and felony convictions.
Out of 1,000 robberies, there are 167 arrests, 37 get referred to prosecutors and 22 lead to a felony conviction.
Out of 1,000 Assault and Battery’s, there are 255 arrests, 105 are referred to prosecutors and 41 lead to felony convictions.
Out of 1,000 rapes, 57 result in arrests, 11 are referred to prosecutors and 7 lead to a felony conviction.
Source: RAINN
Background
We know that the vast majority of crime in the United States is not reported (most property crimes are not reported, less than half of violent crimes are), and that two in five reported crimes end in an arrest.
Few have been able to get a clear picture of prosecution rates. Many arrests are not prosecuted.
How many? No one knows for sure, but from time-to-time, a newspaper like the Inquirer takes on the task and the results are usually dismal.
My guess is that prosecutors in many large jurisdictions routinely throw out twenty to thirty percent of cases for a wide variety of reasons. In some cities, the percentages will be higher. It’s my assumption that a high number of misdemeanors are dismissed by prosecutors.
Ninety percent of the remaining cases are plea-bargained. The prosecutor offers reduced charges and the defendant pleads guilty. Few criminal cases actually go to trial.
Most who plead guilty to felonies do not get prison time.
All of the above is well documented via US Department of Justice data except for the rate of prosecutions. See Crime in America.
Conclusions
From the above, we can surmise that:
- 16 to 50 percent of federal crimes are deferred from prosecution, per “Federal Justice Statistics.”
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Based on data from “Felony Defendants in Large Urban Counties,” 34 percent of state felonies are not convicted (approximately nine percent involve a deferred adjudication or diversion outcome).
-
Because it’s the prosecution’s job to weed out weak cases before they get to trial judges, I’m guessing that most non-convictions for felonies are based the prosecutor’s office declining to proceed.
Updated Information-October, 2017
Of the 36,080 suspects with a CSEC (Federal Commercial Sexual Exploitation of Children) charge in matters that were concluded by U.S. attorneys, 60% were prosecuted in U.S. district court, 36% were declined for prosecution, and 4% were disposed by U.S. magistrates.
The percentage of CSEC suspects prosecuted was higher than the percentage of suspects prosecuted for violent (58%), property (53%), and public order (42%) offenses, Bureau of Justice Statistics.
Sources
Felony Defendants in Large Urban Counties