The Federal Conviction Rate in These Cases and What It Should Change.

Roughly 90% of all federal criminal defendants plead guilty. Only about 2% of federal criminal cases actually go to trial. That makes for an overall federal conviction rate of roughly 92%. This is far lower than the 99.6% federal conviction rate that media reports commonly quote when discussing federal crime cases.

The reason for this is that the federal conviction rate statistics are mostly measurements of how many guilty pleas were entered in federal criminal cases. They are not measurements of how many federal criminal cases the federal government has won at trial.

In federal criminal cases, filing for a post-trial motion after a defendant is convicted is quite common. This can be to seek a new trial or even to seek to have the conviction itself vacated. Filing post-trial motions is a routine part of the federal criminal defense process and is very important.

When a federal conviction is upheld after a post-trial motion, the next step is for the defendant to file for an appeal. In these cases, federal appeals are handled by the regional U.S. Court of Appeals, which are known as the “intermediate appellate courts,” and which are one step removed from the U.S. District Court.

Sentencing in a federal criminal case often follows a conviction, rather than occurring immediately. As a result, sentencing will depend on the judge’s reading of and decisions based upon a Presentence Report (PSR). This report is filed by the Probation Department, and it is another very important area of the federal criminal defense process. PSRs provide information to the judge to use when deciding the sentencing of a defendant who has been convicted.

Do Federal Prosecutors Really Have a 99.6 Percent Conviction Rate?

In FY2022 alone, there were 71,954 defendants charged in federal criminal cases, according to Pew Research Center. Only 290 federal defendants were acquitted at trial during the same period.

In FY2022, federal juries or judges convicted 1,379 defendants. The federal conviction rate for those federal cases that reached trial was approximately 83%.

The fact that about 0.4 percent of all federal defendants go on to be acquitted at trial does not mean federal prosecutors have a 99.6 percent conviction rate. It simply means that those who are acquitted at trial represent about 0.4 percent of the total federal caseload. Confusing this figure with a federal conviction rate is a significant misunderstanding of statistics.

How Many Federal Criminal Cases End in Acquittal?

Of the 71,954 federal defendants charged in FY2022, 290 cases ended in acquittals. This represents approximately 0.4% of all federal cases. However, it is important to note that the majority of these defendants entered guilty pleas.

How Many Federal Criminal Cases End in Trials?

Out of 71,954 federal defendants charged in FY2022, only 1,669 reached the trial stage. This represents about 2.3% of all federal cases. Of the federal cases that went to trial, the government won approximately 83%. The acquitted defendants represent about 17% of the total trial outcomes.

What Are the Actual Federal Prosecution Statistics?

If you look at the federal criminal cases that ended in trial, the prosecution statistics show the following:

The Federal Conviction Rate in Federal Cases That Go to Trial:

Out of 1,669 federal criminal cases that went to trial in FY2022, federal prosecutors obtained a conviction in 1,379 of these cases. This means that the federal conviction rate in cases that go to trial is approximately 83%.

The Federal Acquittal Rate in Federal Cases That Go to Trial:

Of the 1,669 federal criminal cases that went to trial in FY2022, 290 defendants were acquitted. This means that the federal acquittal rate in cases that go to trial is approximately 17%.

The Overall Federal Conviction Rate Including Dismissed Cases:

If you count the about 8 percent of cases dismissed before trial, the overall federal conviction rate drops significantly. Including these dismissed cases in the denominator, the rate falls sharply: the 1,379 trial convictions represent about 83% of the 1,669 defendants who went to trial, but only about 18% of the roughly 7,600 defendants whose cases were either tried or dismissed.

Why Does the Federal Conviction Rate Depend on the Denominator?

Why do we discuss denominators? In a fraction, the denominator represents the “whole.” When calculating the federal conviction rate, how do analysts define the whole? Different sources and analysts make different choices. Some use charged defendants, while others use terminated defendants. Some use the number of federal cases, while others count total counts or the number of counts that resulted in a conviction or acquittal.

You can also calculate federal conviction rates by using the number of defendants who go to trial, the total number of pleas, or individuals who are ultimately sentenced. Each choice impacts the final percentage. For instance, if you use defendants convicted at trial as the numerator and the total number of federal cases that go to trial as the denominator, the result will be much lower. Conversely, if you use the number of defendants convicted at trial, guilty pleas, and sentences in federal cases that go to trial as the numerator, and use the number of defendants convicted at trial as the denominator, the result will naturally be higher.

What Are the Different Outcomes of Federal Criminal Cases?

To understand how calculations based on the federal conviction rate can be skewed, it is important to first understand the different outcomes defendants can face in federal criminal cases. There are six primary outcomes:

• Convicted as a result of a guilty plea
• Convicted in court
• Acquitted in court
• Had the case dismissed or not prosecuted
• Had the case diverted
• Had deferred prosecution

How Can You Verify a Prosecution Rate?

Whenever you read about a specific prosecution rate, you should make an effort to verify how the rate was determined. If you are not provided the year the statistics were gathered, the source of the statistics, and the methodology used to calculate the figure, it is practically impossible to determine the accuracy of the prosecution rate.

Why Is the Distinction Between Guilty Pleas and Trial Convictions Important?

When discussing federal conviction rates and prosecution statistics, it is important to understand the difference between guilty pleas and trial convictions.

These are two separate categories. While they both result in a conviction, the distinction is important. When evaluating the performance of federal prosecutors and the effectiveness of the federal criminal justice system, there is a clear difference between a defendant who is persuaded to plead guilty versus one whose case goes to trial and is then convicted.

What Is the Difference Between a Guilty Plea Rate and a Trial Conviction Rate?

The guilty plea rate and trial conviction rate measure very different defendant outcomes. The guilty plea rate measures the probability of a defendant being convicted by plea. The trial conviction rate excludes cases that end in plea deals, cases that are dismissed, and cases that are diverted to non-prosecutorial options.

What Are the Major Sources of Federal Crime Statistics?

Some of the most cited sources for federal crime statistics are Pew Research Center, the Administrative Office of the United States Courts, the Department of Justice (DOJ), the United States Sentencing Commission (USSC), and TRAC. All of these sources rely on data provided by the DOJ and the Administrative Office, but they all use different methodologies for determining their statistics. Consequently, these sources often have different reported federal conviction rates.

Why Do So Many Federal Defendants Plead Guilty?

Federal prosecutors and journalists often cite the federal conviction rate as proof of their trial strength. However, this is highly misleading. Plea bargains account for the vast majority of convictions in federal criminal cases.

As a result, most federal criminal defendants never go to trial. Thus, the high federal conviction rate is indicative of the quantity of plea bargains that are offered. While prosecutors have selected their easiest cases for prosecution, their conviction statistics are not an indication of their trial strength.

Why Does the Federal Conviction Rate Reflect Prosecutorial Selection?

Federal prosecutors are very careful to avoid indicting defendants unless their conviction rates are assured. Federal prosecutors spend significant time vetting cases before filing charges and ensuring the strongest cases against their opponents. As a result, prosecutors’ success in federal criminal cases is not a reflection of their success in court. The conviction statistics in federal criminal cases are not a reflection of prosecutorial strength. Instead, the conviction rate is reflective of prosecutorial selection.

Why Do Federal Defendants Prefer to Plead Guilty?

Federal defendants often prefer to plead guilty rather than go to trial because they do not have much of a choice. With federal mandatory minimum sentencing and a huge discrepancy between the sentencing exposure for a plea versus the sentencing exposure in a trial, defendants who are not willing to enter a plea will have no choice but to go to trial.

Because federal defendants know that trials can end poorly, they will take whatever deals they can get. If the trial is a risky proposition, then they are much more likely to be willing to plead guilty. As a result, defendants often choose to plead guilty even though it will result in their conviction.

What Is the Trial Penalty?

The trial penalty is a term that describes how judges are more likely to sentence federal defendants to a longer term of imprisonment following a guilty verdict at trial. According to the National Association of Criminal Defense Lawyers' 2018 report The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, there is a marked difference between the sentence that is handed out after a defendant pleads guilty, versus a defendant whose case goes to trial and then is convicted. This difference can be referred to as the trial penalty.

Due to the trial penalty, federal defendants who go to trial often end up receiving longer sentences than they would have if they had entered a plea deal. The trial penalty is a very influential factor that pushes defendants to enter guilty pleas and is one that defendants must be aware of.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What Is Charge Stacking in Federal Criminal Cases?

Charge stacking is common practice for prosecutors. Prosecutors have the ability to charge defendants with multiple offenses before the plea bargaining process begins. This increases the defendant’s exposure and allows prosecutors to bargain more flexibly.

Often, prosecutors will charge defendants with several counts and then offer to drop one of the counts if the defendant agrees to enter a guilty plea. By doing so, they can make the deal look much better and increase the likelihood of obtaining the defendant’s guilt by pleading.

Is Pretrial Detention common in Federal Criminal Cases?

In many cases, federal prosecutors will argue that the defendant should be detained pre trial. According to various sources, prosecutors will argue that the defendant is a flight risk, a danger to the public, or both. This can result in the defendant spending time in federal custody before their case is even tried. This adds to the pressure, as a defendant may not want to spend more time in jail while waiting for their trial. This scenario can lead to the defendant accepting a guilty plea, to avoid staying in federal custody.

Can Early Defense Change a Federal Case Before Indictment?

In many cases, federal agencies will spend several years investigating a target prior to filing charges. For example, in an insider trading case, federal agents might spend a year or more reviewing trade data and coordinating witness lists. By the time the indictment is filed, the agent or team of agents likely already has all of the evidence needed to prove the target’s guilt.

As a result, many defendants are arrested immediately after the indictment is filed. While early defense can occasionally prevent federal charges before indictment, in most cases this is not the case.

Wait, how is that possible?

Why Can Defense Not Intervene?

Grand jury proceedings occur without the presence of the target. As a result, the evidence against the target can be developed. While targets have the right to consult an attorney, Federal Rule of Criminal Procedure 6(d) bars defense counsel from the grand jury room entirely, so the target's attorney cannot be present to hear or challenge the evidence and a witness must leave the room to confer with counsel. In fact, this is rarely the case. Federal grand jury proceedings are not adversarial, and the purpose of a federal grand jury is not to determine guilt or innocence, but to decide whether there is probable cause to believe a crime was committed and to return an indictment on that basis. Consequently, the role of the target’s attorney in the grand jury process is extremely limited.

Why Does This Change a Defendant’s Plea Decision?

Once the defendant is indicted, the government will either file for the evidence to be made available or the defendant will ask for a motion for discovery. Once the prosecutors share the evidence that they have, the defendant can then decide how to proceed with the case. This may result in the decision to either go to trial or to plead.

Is a Defendant Able to Challenge Evidence During a Grand Jury Proceeding?

Generally no, a defendant is not able to challenge evidence during a grand jury proceeding.

Additionally, a defendant is not allowed to question any witness and has no rights related to cross-examination. This makes it incredibly difficult for defendants to prove that the evidence against them is not valid. The defense can then pursue challenging the evidence and to obtain the admission of new evidence through the federal court during pretrial motions. This occurs before the actual trial of the federal case.

How Do Federal Defenders Challenge Evidence?

Federal defenders have various methods to challenge the admissibility of evidence. There are several common motions for federal criminal defendants that defense attorneys can use. This involves the use of evidence during pretrial motions and before trial. The defense can challenge evidence that was obtained through illegal or unconstitutional actions or evidence that does not prove the charge at hand. If successful, this will prevent the government from using certain evidence at trial.

Why Do Conviction Rates Differ by Charge and District?

Conviction rates can differ by charge (e.g., drug, firearm, immigration, fraud, corruption, sex offenses, violent crime) and by federal district.

In state cases, these differences are often very small. However, in federal criminal cases, there are differences when comparing federal cases to state cases. This means you have to take federal agents’ screening and federal prosecutors’ case selection into account. For instance, prosecutors might not file charges unless they are extremely certain of their conviction in court.

But, there is a difference between a high conviction rate due to strong evidence, selective charging, or the effect of sentencing pressure. This is especially important when evaluating plea pressure in federal criminal cases. This is important because a conviction rate that is driven by plea pressure may have different implications than one driven by strong evidence at trial.

We need to look at other indicators of coercive plea pressure as well. For example, the federal judge’s decision about the adequacy of a defendant’s legal representation can tell us something about the federal conviction rate. This is an important part of federal sentencing reform.

Is There a Difference Between Selective Charging and Sentencing Pressure?

Selective charging refers to a prosecutor only choosing to charge a defendant if it is easy to prove, while sentencing pressure refers to the high penalties a defendant will face if they lose at trial.

Both are important for calculating the federal conviction rate, but the extent of each varies from case to case. Understanding the differences between these two is a major part of calculating accurate federal conviction rates and pursuing informed federal sentencing reform.

Is There a Difference Between Conviction Rates Across Federal Districts?

Yes, conviction rates can differ between federal districts. The amount of federal crimes varies across districts, and the local district’s U.S. Attorney’s Office may focus on different types of cases. Thus, in a district that focuses on firearms, the outcome will differ from one that focuses on drug offenses.

For example, in the PSN, the types of crimes targeted are often felon-in-possession of a firearm, shootings and violent attacks, various drug offenses, and robberies. The sentencing for these offenses is often severe, especially when federal prosecutors pursue charges. This results in sentencing rates far beyond the sentencing ranges of similar offenses at the state level.

What Reforms Would Change Plea, Sentence, or Fair Outcome in Federal Court?

The federal sentencing process begins with the federal judge calculating the applicable guideline range. Here, the Sentencing Guidelines play a critical role. However, the federal judge may vary after the judge has done the guideline calculation.

In United States v. Booker (2005), the U.S. Supreme Court found the mandatory sentencing guidelines unconstitutional. At this time, federal appellate judges’ review is’ a de novo review, meaning federal appellate judges are entitled to do what they please. Since this time, sentencing guidelines have remained advisory, as they now generally do not bind federal judges.

But there are federal mandatory minimums. These apply in cases where there is a federal statute that mandates a minimum sentence. For example, in some drug crimes, federal law mandates a minimum of five years. These minimums are binding unless Congress grants judges discretion in specific circumstances. With a 90% guilty plea rate, the extent to which courts are bound by mandatory minimums is very important for calculating the federal conviction rate.

How Are Relevant Conduct calculations Done under Federal Sentencing Guidelines?

According to the Sentencing Guidelines Manual, a defendant’s relevant conduct includes “past criminal conduct not at issue in the sentencing proceeding but relevant to determining the defendant’s culpability.” As a result, federal judges can rely on acquitted conduct to calculate the appropriate sentencing range. While the U.S. Sentencing Commission tried to bar judges’ use of acquitted conduct in relevant-conduct calculations, the issue was left vague and unclear, and most federal judges continue to use a defendant’s acquitted conduct for sentence calculations.

However, the Sentencing Guidelines are advisory. This means federal judges may still be able to consider acquitted conduct when varying in a separate step that comes after they have done the relevant-conduct calculations under the sentencing guidelines.

What Makes Mandatory Minimum Sentences Binding for Federal Judges?

Since federal mandatory minimum sentences are statutory, they bind the federal judges that apply them. Federal judges can only lower mandatory minimum sentences when a federal statute authorizes a federal judge to do so. This can make the conviction rate in trials and the rate at which federal defendants enter pleas higher than it would be without mandatory minimum sentencing.

Mandatory-minimum reform addresses this coercion most directly, and judges’ sentencing options are often considered alongside mandatory minimum issues when thinking about justice system reform. This means that this issue should be a central part of any federal sentencing reform discussions.

Do Acquittal Rates and Mandatory Minimum Reform Address Conviction Rates?

Mandatory-minimum reform is likely to be more effective at lowering the federal conviction rate because acquittal rates are dependent on the evidence gathered by federal prosecutors. Sentencing exposure is much more of a coercion factor for federal defendants in plea bargaining. As a result, sentencing reform is more relevant to making federal cases more fair.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.