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U.S. attorneys' priorities differ depending on region

| Saturday, April 23, 2016, 10:50 p.m.

If you're caught trafficking drugs in Toledo, the U.S. attorney for Northern Ohio is less likely to bring federal charges than if you crossed city and state lines on Interstate 75 into southeastern Michigan.

Counterfeiting suspects have lower odds of being charged with a federal crime in eastern North Carolina than those caught down the road in South Carolina.

More health care fraud suspects have been prosecuted in southern Florida than in any other federal district, but government lawyers in the Middle Florida district have declined more than 60 percent of such complaints there.

A Tribune-Review investigation of about 1.8 million criminal matters opened by federal prosecutors from 2005 through 2015 found wide disparities like these among the justice system's 94 federal districts.

It's unfair to victims, defendants and the public for prosecutors to treat similar cases differently, said Bruce Frederick, senior research fellow with the Vera Institute of Justice, a criminal justice nonprofit based in New York City.

“It shouldn't matter which prosecutor you happen to draw, which jurisdiction you're in or which unit prosecuted your case — but it does matter,” Frederick said.

The attorney general sets national priorities, but U.S. attorneys have near-complete autonomy in deciding how much effort to put into those national goals and what crimes to concentrate on prosecuting in their districts. Unlike most county prosecutors, U.S. attorneys handle criminal and civil cases and do not stand for public election.

“Every district is unique, and each U.S. attorney has an appropriate degree of discretion in pursuing cases based on both the specific public safety challenges in his or her district and the national priorities set by the attorney general,” said Justice Department spokesman Wyn Hornbuckle.

The attorney general is appointed by the president, with Senate confirmation, and oversees U.S. attorneys, but he or she cannot fire them. The president appoints U.S. attorneys to four-year terms with the Senate's approval, and the president can remove them.

The result is that a crime that federal prosecutors handle in one district might be declined or left for state or county prosecutors elsewhere. While some districts focus on intensely local issues — such as illegal immigration along the Southwest border or wildlife protection in Western Louisiana — others pursue national or even international crimes such as telemarketing fraud and cybertheft, the Trib found.

Choices to make

The disparities mean some people have gotten away with federal crimes without being charged by U.S. attorneys, experts said.

“It has to be true,” said James Eisenstein, a Penn State University professor emeritus of political science and criminology.

“There are lots of crimes around, and a small proportion of them come to the attention of the authorities. Of those cases, you can't prosecute all of them,” he said.

The top federal prosecutor for Western Pennsylvania said tough choices must be made.

“We are judicious and selective in implementing our resources to enforce the federal law in an appropriate, sensible way,” said David Hickton, the U.S. attorney based in Pittsburgh. “So we don't enforce every statute against every miscreant every time. That is not possible, and that is not what the system is designed to do.”

U.S. attorneys in Toledo and the rest of the Northern Ohio district declined three-fourths, or 75.5 percent, of the drug trafficking complaints presented there during the past decade — the highest rate of any of the 94 federal districts, the Trib's investigation revealed. Just across the state line in the Eastern Michigan district, the Detroit-based U.S. attorney's office declined just 16.6 percent of such cases.

In southern California, the declination rate on drug trafficking complaints was 1 in 50, or 1.9 percent.

Federal prosecutors in Northern Ohio have made major drug cases a priority, focusing largely on heroin, said spokesman Mike Tobin. Postal Service incidents might account for the high declination rate, he said, noting that about 20 times a week, the office seizes mailed marijuana without charging anyone.

“We don't generally decline big cases from the DEA, FBI or whoever,” Tobin said. “We're doing heroin cases nonstop.”

Eastern Michigan faces “significant large-scale drug trafficking organizations that are also engaged in gun violence,” spokeswoman Gina Balaya said. The district is a source for heroin, prescription pills and other dangerous drugs, providing a pipeline to other states, she said.

Uneven prosecution

Statistics alone do not tell the full story, Hickton said. Prosecutorial decisions vary based on criminal threats and the level of interaction with local prosecutors, he said.

Federal prosecutors in South Carolina, for example, declined 11 percent of counterfeiting and forgery complaints — compared with a declination rate of 64 percent in eastern North Carolina. While state prosecutors in South Carolina have long backlogs and fewer resources for taking counterfeiting cases, North Carolina has a state law that overlaps with the federal one and a higher rate of local enforcement, a Justice Department spokesman said.

Nevada has the most firearms complaints in the nation and the highest declination rate at 75.6 percent. Every complaint gets entered into the system, and federal prosecutors work with local district attorneys to decide which cases each will take based on federal interest, severity of the offense and the defendant's criminal history, said Daniel Bogden, the U.S. attorney for Nevada.

“We jointly decide with our task force partners who can get the best bang for the prosecution buck,” Bogden said. “Our numbers are going to look a bit skewed, but each of those firearm cases is being given attention.”

Prosecutors in the Middle Florida district prosecute civil cases of health care fraud as well as criminal cases, which is one reason their declination rate on criminal cases is higher than southern Florida, spokesman William C. Daniels explained.

“The types of health care fraud cases prosecuted in (Middle Florida) are often complex, labor intensive and time-consuming to pursue. Despite these variables, the (district) remains committed to working with its partners to investigate and prosecute these types of cases,” Daniels said.

U.S. attorneys need the freedom to assign resources where they are most needed based on regional priorities, Eisenstein and other legal experts said.

The top prosecutor in each district sets guidelines for what types of cases to pursue and thresholds — such as the amount of money stolen or drugs discovered — that must be met before bringing charges. Those decisions affect the types of matters the FBI, Drug Enforcement Administration and other federal law enforcement agencies present to prosecutors.

“On the one hand, you can say, ‘It's one country and we should have uniform justice,'” Eisenstein said. “On the other hand, you say, ‘It's a diverse country and you ought to take into account local culture and local conditions.' ”

But uneven prosecution undermines public trust in the justice system, said Anthony C. Thompson, clinical law professor at New York University School of Law.

“The predictability of justice is very important for our democracy,” Thompson said. “That people can understand that they will be charged and treated similarly for similar conduct is very important. When you begin to change that based on a political party in the White House or ... the policies of a unique, individual U.S. attorney — and maybe that person's political ambition — it gets worse.”

The public has few ways of judging how U.S. attorneys make their decisions. The Justice Department withholds the names, ages and addresses of victims and suspects from its National Caseload Data, citing a Freedom of Information Act exemption for unwarranted invasion of privacy.

Federal prosecutors must state why they declined to pursue charges in each complaint. Documents the Trib reviewed showed that during the past decade, the reason most often cited was weak or insufficient evidence. The second most common reason was “prioritization of federal resources and interests.”

Beyond that, prosecutors provide few details.

All of that means the public has little ability to judge whether prosecutors are acting judiciously or following personal biases and whims, said Cassia Spohn, a criminal justice professor at Arizona State University.

“Sort of the ‘black box' or the great void in our knowledge is prosecutorial decisions and how they make those decisions,” Spohn said. “We know that they're motivated by convictions, by the likelihood of getting a conviction, and they don't want to lose. But beyond that, it's kind of a giant black hole. ... We can't hold them accountable for the decisions that they make.”

Coming Monday: Prosecution priorities in Western Pennsylvania.

Andrew Conte is a member of the Tribune-Review investigations team. Reach him at 412-320-7835 or andrewconte@tribweb.com. Brian Bowling is a Tribune-Review staff writer. Reach him at 412-325-4301 or bbowling@tribweb.com.

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