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Study: Fewer Prosecutions Resulting from FBI Work


A new report says federal prosecutors have refused to pursue almost nine out of 10 international terrorism cases referred to them by the FBI.

Here's NPR's Ari Shapiro.


ARI SHAPIRO: If you've ever watched an episode of Law and Order...

(Soundbite of music, Law & Order intro)

SHAPIRO: Right. You basically understand the relationship between the FBI and federal prosecutors. As the TV announcer puts it: In the criminal justice system, the people are represented by two separate yet equally important groups.

(Soundbite of TV show "Law & Order")

Mr. STEVEN ZIRNKILTON (Narrator): The police who investigate crime and the district attorneys who prosecute the offenders.


SHAPIRO: For federal crimes, the FBI investigates and U.S. attorneys prosecute the offenders. Lots of FBI investigations don't lead to anything worth prosecuting. But when the bureau thinks its agents have found something with a potential, they flag the case and pass it along the prosecutors.

David Burnham directs the nonpartisan Transactional Records Access Clearinghouse, or TRAC, which wrote this new report.

Mr. DAVID BURNHAM (Co-Director, TRAC): Under the law and custom, the prosecutors have the final judgment on which matters are going to be actually prosecuted.

SHAPIRO: Burnham's analysis shows that historically, U.S. attorneys have prosecuted about half the cases that the FBI refers to them. But when you look at the numbers for international terrorism cases in the last year...

Mr. BURNHAM: Essentially, nine out of ten of the recommendations for prosecution of international terrorists are being declined, are being turned down.

SHAPIRO: In fact, Burnham's study shows that since 2001, prosecutors have pursued a steadily decreasing percentage of the international terrorism cases that the FBI has referred to them.

Justice Department's spokesman Brian Roehrkasse says the report relies on a faulty assumption that every referral should result in a criminal prosecution. In a written statement, he said the reality of the referral does not mean that criminal charges should be filed. Often, matters are referred to prosecutors to assist in the process such as a subpoena or a surveillance order. Roehrkasse also criticizes the report's numbers. He says the statistics aren't accurate. But Burnham, the report's author, says the numbers are put out by the Executive Office of U.S. attorneys, which oversees federal prosecutors.

Mr. BURNHAM: Here, we see this very curious thing of a lot of referrals, very few convictions, and it does seem to raise questions about the rhetoric of the attorney general, of the terrorism white paper, of, I guess, the White House.

SHAPIRO: The white paper is a government policy document that says terrorism is Justice Department's top priority. Bobby Chesney teaches national security law at Wake Forest University. He says that if prosecutors are pursuing a smaller percentage of FBI referrals than they used to, it could just mean that the bureau isn't filtering out as much as it used to, which is not necessarily a bad thing.

Professor BOBBY CHESNEY (National Security Law, Wake Forest University): In other words, let's defer to the prosecutors to make the decision, but let's make sure that they have the option in all these cases rather that us making the call at the referral stage. So the idea is that the referral process is not serving as much as a buffer as it perhaps used to.

SHAPIRO: But if that's true, you'd expect the total number of FBI referrals to be increasing. Instead, the number is dropping. The study says federal prosecutions from FBI referrals have dropped in a wide range of areas: organized crime, white-collar crime, drug offenses and so on.

The Justice Department says its white-collar crime prosecutions should be measured by their quality, not their quantity. And they point out that the drug enforcement agency refers plenty of drug cases for prosecution. According to this report, one area has seen a significant jump in prosecutions: obscenity and pornography cases.

Ari Shapiro, NPR News, Washington. Transcript provided by NPR, Copyright NPR.