June 17, 2020 – Despite growing popular unrest and media attention in recent years over excessive use of force by police officers, the latest available case-by-case data show that federal prosecutors rarely bring relevant criminal charges known as “deprivation of rights under the color of law” (18 U.S.C. 242) against law enforcement. In the first seven months of FY 2020, federal prosecutors filed § 242 charges in just 27 cases. In April 2020, just a month before the death of George Floyd sparked civil unrest, federal prosecutors did not report prosecuting a single case with § 242 as the lead charge.
Altogether in FY 2019, federal prosecutors brought § 242 charges in just 49 cases in the United States. This compares with 184,274 total federal prosecutions last year. Thus, these cases represent just a minute fraction of offenses that are prosecuted—only 27 out of every 100,000 prosecutions or 0.027 percent. In fact, in the twenty-year period between 1990 and 2019, federal prosecutors filed § 242 charges only about 41 times per year on average, with as few as 19 times (2005) and as many as 67 times in one year.
By comparison, federal prosecutors brought 69,536 cases for the petty offense of illegal entry as the country focused on immigration enforcement, often to the detriment of attention given to other types of offenses. But prosecutions for other types of matters also outpaced those under § 242. During FY 2019 there were 467 prosecutions for simple drug possession, and 119 prosecutions for illegally taking fish, wildlife and migratory birds.
Federal prosecutors receive at least ten times more criminal referrals than they prosecute. Nine out of ten are turned down—that is, closed without filing any prosecution. In FY 2019, federal prosecutors pursued just 11 percent of referrals, which is among the very lowest prosecution rates, near the rate of hate crimes prosecutions (10%) and obstruction of criminal investigations (9%). Between 1990 and 2006, the percent of referrals that federal attorneys prosecuted never rose above three percent.
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