Can A United States Attorney Decline to Prosecute A Case?

Can A Federal Prosecutor Decline A Case?

The United States Attorney, the chief federal prosecutor for a district, has nearly unlimited resources to investigate and prosecute federal criminal offenses. However, he or she also has broad discretion to exercise judgment regarding which cases to prosecute or decline.

Given that federal conviction rates are well above 90 percent, this means that approximately 10 percent of the cases prosecuted conclude with a not guilty verdict or dismissal of charges. While the numbers would initially lead you to believe that the United States Attorney is nearly flawless in court, they actually show something different.  What they demonstrate is that federal prosecutors are very selective about the cases they prosecute thereby ensuring a higher “win” record.  Keep in mind, a federal prosecutor has the luxury of spending years investigating a case before bringing charges.   

The Difference Between An Arrest And A Prosecution

Most federal arrests are conducted with a warrant.  Regardless of whether a warrant is issued or not, federal law enforcement agencies arrest individuals only when there is enough “probable cause” to do so. If there isn’t sufficient probable cause, a federal judge may decline to issue the warrant.

If you’re arrested without probable cause, it’s a violation of your rights. When that’s the case, a skilled federal criminal defense lawyer can challenge “probable cause” at a hearing and get your case dismissed.

Principles of federal prosecution require a United States Attorney to possess enough evidence to support  a “reasonable belief that the defendant committed a crime.” While federal prosecutors have very few limits on their prosecutorial authority there are certain things they simply cannot do.  They cannot prosecute a defendant on the basis of race, religion, sex or some other similar classification.  Additionally, a United States Attorney cannot bring a vindictive prosecution as a means of punishing a defendant for simply defending his or her rights. 

Federal prosecution often leads to plea bargains or guilty pleas. However, an experienced criminal defense lawyer can challenge the evidence against you, negotiate with the United States Attorney’s Office, seek non-prosecutorial consequences, or have the charges dropped altogether.

How Federal Prosecutors Decide To Prosecute

Unlike state-level prosecutors, the United States Attorney has nearly unlimited resources at his or her disposal.  He or she decides the cases to prosecute based on the evidence presented by one or more federal agencies (i.e., FBI, DEA, ATF, IRS etc.) and many other factors. These factors include:

  • Federal Law Enforcement Priorities
  • Nature and Seriousness of the Offense
  • Deterrence of Future Crimes
  • Culpability and Criminal History
  • Defendant’s Cooperation
  • The Circumstance of the Case
  • The Interest of Victims
  • Political Pressure

According to the U.S. Department of Justice, the decision to prosecute is: “A policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances—recognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not a conviction ultimately results.”

Generally, if there is insufficient evidence for the federal prosecutor to believe that the defendant committed the crime beyond a reasonable doubt, then he or she is likely to decline prosecution. However, it should be noted that most cases brought to the United States Attorney have been thoroughly investigated, though this is not always true.

Notable Times The United States Attorney Declined Prosecution

Overall, federal prosecution numbers have declined tremendously in the last decade. Though the United States Attorneys’ Offices are in the news a lot, they routinely decline to prosecute many cases. Some of them you may hear about on the local news, and others are never discussed.

Recent Protests

To say that 2020 has been a tumultuous year for the United States would be an understatement.  There were hundreds of protests around the country.  Many of them involved looting, violence, private property destruction, and the desecration of federal property.

While many of the worst offenders are being prosecuted, hundreds (if not thousands) of other cases are not, due to many factors like public opinion, political pressure, and the inability to produce evidence “beyond a reasonable doubt” of alleged crimes committed.

FBI Director James Comey

In 2016, most major news outlets reported the DOJ investigation into James Comey.  While there was ample evidence that proved he leaked information to the media, federal authorities declined to prosecute him. Their refusal could be due to many reasons such as political pressure, national security concerns, or a lack of ample evidence to obtain a conviction.

Federal And State Marijuana Laws

Marijuana Trafficking Prosecutions

Once upon a time, federal marijuana drug trafficking prosecutions were a regular occurrence. However, since states began legalizing marijuana, the United States Attorney in every district of the United States has significantly decreased the number of marijuana drug trafficking prosecutions. A likely reason for the decline in numbers is a change in public opinion and state laws changes.

Contact The Federal Defenders

If you’ve currently under federal investigation or facing prosecution, you should consult with a skilled criminal defense lawyer. The lawyers at The Federal Defenders can review your case and give you a “second opinion” about the viability of the government’s case against you.

We can also inform you of the consequences of pleading guilty, accepting a plea bargain, or going to trial. If you already have a lawyer but are not confident in their abilities, we can step in and help them or take over the case entirely.

Though the United States Attorney can decline to prosecute your case without prompting, it’s not always that easy. That’s especially true if you don’t have an experienced federal criminal defense lawyer in your corner.

Don’t risk your future.  Work with the best. Contact us today at (800) 712-0000 for your free initial consultation. 


Michael Humphreys has spent more than 25 years with the United States Department of Justice as a federal prosecutor, including approximately 10 years in Washington, D.C., handling cases all over the United States. Up until the end of 2018, he was a federal prosecutor with the United States Attorney’s Office in Las Vegas. An attorney with a very broad range of criminal and civil experience, Michael is no stranger to the courtroom having been involved with high-stakes federal litigation. If you need powerhouse lawyers for your federal case, get Michael on your side. Michael handles federal criminal and civil matters across the United States.