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September 29, 2005

Have Blakely and Booker depressed federal prosecutions?

I have been speculating since last June that the legal disruptions caused by Blakely and Booker might impact federal prosecutions.  My theory was that, with extra time consumed with re-writing indictments and dealing with new legal issues, federal prosecutors might not be able to initiate as many prosecutions as they tried to assess an uncertain criminal justice landscape.  An interesting new report from the Transactional Records Access Clearinghouse (TRAC) on federal prosecutions seems to provide some empirical support for my theory.

The TRAC report actually carries the headline "New Justice Department Data Show Prosecutions Climb During Bush Years."  However, this table of data shows that, while immigration and weapons prosecutions have grown considerably during the Bush Administration, the number of drug and white-collar prosecutions have remained fairly steady.  And, critically for my Blakely/Booker theory, these numbers show a significant dip in drug and white-collar prosecutions in 2004 and a dip in all four of these major crime categories for the first-half of 2005.  (These trends are all detailed in this effective chart.)

Of course, a lot of factors may account for these trends, and a bigger story might just be the overall growth in federal prosecutions over the last two decades (detailed in data here and this chart), although most of this growth clearly comes from a massive increase in immigration prosecutions in border districts.  Nevertheless, the potential ripple effect of Blakely and Booker on the federal caseload is an important story, especially as policy-makers and others consider how to assess and respond to post-Booker developments.

September 29, 2005 at 09:50 AM | Permalink


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Doc, I think you may be reading too much into the numbers. Virtually all the increase in immigration cases came from Texas' southern district (Houston) increasing immigration prosecutions on the Texas border by 14,000 cases in one year. (Most of these are economic refugees or people rejoining family members, not criminals or terrorist suspects, incidentally.) Maybe we're seeing a Blakely effect, but I suspect that's not what's driving trends you're seeing, or maybe just at the margins. I wrote a little more about the Texas border angle on Grits at:


Terrific blogging lately from SL&P, as always, BTW. Keep up the good work.


Posted by: Scott | Sep 29, 2005 12:17:56 PM

Scott, you are exactly right to note that the changes in immigration numbers is key to recent changes in the overall prosecution rate AND that this is really a story about one district.

Nevertheless, the TRAC data suggests a 10% decline in drug prosecutions and a 25% decline in white-collar prosecutions from 2003 to 2005. I do not see how the immigration data impact these other distinct trends, and thus my speculation that this is a Blakely/Booker aftershock.

Posted by: Doug B. | Sep 29, 2005 1:33:39 PM

See, Doc, that's why they're paying you the big bucks. I just viewed those numbers as evidence that focus had shifted generally toward chasing Mexicans and away from more traditional public-safety oriented prosecutions. ;-) Plus, a cynic might speculate other reasons why Bush's Justice Department saw a 25% drop in prosecuting white collar crimes. But you're right a multi-year decline in drug prosecutions is a fascinating trend whose cause is well worth hypothesizing, and a Booker lag may well be the reason. If that's right, though, I'd think it'd be a short-term effect. Best,

Posted by: Scott | Sep 29, 2005 7:08:16 PM

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