Sandusky’s Law

In the wake of the Penn State child-abuse scandal, authorities in several states have considered toughened and broader mandatory-reporting laws. These laws impose criminal penalties on certain adults, such as teachers and social workers, who fail to report known or suspected child abuse to the police.

I don’t have data on the number of prosecutions under existing mandatory-reporting laws, but others have written that these cases are relatively rare.   (And, if anything, toughening the laws by converting what are now misdemeanors into felonies will make prosecutions even less common.)  I’ve discussed elsewhere why prosecutors are often apathetic about new crimes. Here, I’ll simply point out that crimes like the mandatory-reporting offenses are quite peripheral to the everyday work of the criminal justice system.

Indeed, you might be surprised by how small a portion of any criminal code drives a very large percentage of the overall criminal docket.  To illustrate this point, a while back, in connection with some other research I am pursuing, I performed a back-of-the-envelope exercise using charging data collected from the Executive Office for United States Attorneys (EOUSA) Central Charge file for federal criminal cases that terminated in Fiscal Year 2009 (October 1, 2008 to September 30, 2009). I wanted to see (1) how many different crimes were encompassed within this dataset and (2) the number of crimes that accounted for 50,75, 90, 95 and 99 percent of these charges. (Here, keep in mind that, at least according to one source, as of 2008 there were an estimated 4,450 crimes across the federal criminal “code.” Though, in truth, no one really knows for sure, and much depends on how you go about identifying distinct “crimes.”)

Overall, the EOUSA data for federal criminal cases terminating in FY 2009 identify 1,547 distinct crimes as having been alleged in these cases.  This sounds like a lot, but keep in mind the 4,450-crime figure cited earlier; even acknowledging the apples-to-oranges comparison issue, it’s obvious that many—almost certainly most—federal crimes were not alleged in even a single one of these cases.

Of the crimes that were charged, just 14 accounted for 50.6 percent of the 191,884 counts in the FY 2009 dataset. They are, in descending order of frequency, 21 U.S.C. § 841(a)(1); 21 U.S.C. § 846; 8 U.S.C. § 1326; 18 U.S.C. § 922(g)(1); 8 U.S.C. § 1326(a); 18 U.S.C. § 1343; 18 U.S.C. § 1341; 21 U.S.C. § 841; 18 U.S.C. § 1344; 18 U.S.C. § 371; 8 U.S.C. § 1324(a)(1)(A)(ii); 18 U.S.C. § 924(c); 8 U.S.C. § 1324(a)(1)(A)(iv); and 18 U.S.C. § 1347. Few surprises here; drug crimes, felony re-entry, gun crimes, and fraud offenses represent federal prosecutors’ bread and butter.  (The fraud crimes are over-represented in this dataset relative to the number of defendants charged with these offenses, since a given case many involve dozens of fraud counts.) Meanwhile, just 61 crimes accounted for 75 percent of all counts; 164 crimes, 90 percent of all counts; 291 crimes, 95 percent of all counts, and 699 crimes, 99 percent of all counts.

I appreciate that this is a very rough exercise, to be viewed with a hefty pinch of salt.  To repeat, what may represent a single crime to one observer may constitute multiple offenses to another, and I did not review the dataset carefully to grasp the logic behind its crime-coding system (thus, for example, I don’t know why the EOUSA database distinguishes between 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841), or the accuracy of the data presented.

Nevertheless, even this simplistic inquiry underscores an important, and I believe incontestable, point: Vast portions of any criminal code are effectively inert.  My guess is that any new Sandusky’s Laws will join this moribund lot.

(This exercise used the following dataset: United States Department of Justice, Office of Justice Statistics, Bureau of Justice Statistics, Federal Justice Statistics Program: Charges Filed Against Defendants in Criminal Cases in District Court – 2009 (Study 30789).)

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