by Michael Fortino, Ph.D.

With a global pandemic affecting nearly every aspect of traditional government operations, Syracuse University, in late spring of 2020, set out to evaluate the impact COVID-19 has had on the manpower and operations of our most active law enforcement agencies.

Much of this change seemed to follow the Trump administration’s March 15, 2020, decision to adopt a new “work from home” initiative for most federal agencies. Criminal referrals in the first half of March 2020 averaged about 4,500 per week, prior to the onset of the novel coronavirus and the “work from home” mandate. Shortly thereafter, communities experienced a reduction in both crimes and arrests, according to the data. By the end of March 2020, agency arrest referrals landing on U.S. Attorneys’ desks dropped to 1,800 per week, a dramatic decrease by more than half.

Following a Freedom of Information Act (“FOIA”) request for Department of Justice (“DOJ”) records, Syracuse University utilized the “Transactional Records Access Clearinghouse” (“TRAC”) to obtain agency production numbers, which produced surprising results. The numbers led law enforcement analysts to grow concerned that the virus may have resulted in a paradigm shift in both the quantity of criminal referrals as well as the urgency to arrest suspected perpetrators.

The study evaluated criminal referral reporting for the five top law enforcement agencies, which make up 81% of all case referrals to federal prosecutors. Those five agencies, in descending order of referrals made, are: Customs and Border Patrol (“CBP”), Federal Bureau of Investigation (“FBI”), Alcohol Tobacco Firearms and Explosives (“AFT”), Drug Enforcement Administration (“DEA”), and Immigration and Customs Enforcement (“ICE”).

When comparing the average referral numbers in the first six months of fiscal year 2019 to that same period for fiscal year 2020, which includes the initial onset of COVID-related lockdowns, the number of referrals per agency dropped dramatically, with the most pronounced drop reflected in CBP referrals. 

In the first six months of fiscal year 2019, which would include October 2018 through March, 2019, and prior to the pandemic scare, total arrests and criminal referrals exceeded 95,000 overall. The TRAC report confirmed by Syracuse University provided a summary of this total number of referrals and broke reporting down by each of the top agencies: ICE – 7,564, DEA – 7,796, ATF – 7,883, FBI – 13,039, and CPB with a whopping 40,769.

To evaluate and better understand what may have been the predominant contributor to this sharp decline in referrals, analysts considered a series of COVID-related changes that include: revised arrest protocols, a reduction in the number of active agents on the street, and an obvious decrease in criminal enterprise during a lockdown. A closer examination of the data, however, suggests that there may be additional factors at play.

As a result of the complexities associated with FBI investigations, criminal referrals from this agency naturally lag behind other agency referrals by several months. Under the “work from home” guidelines, one would expect that an FBI reduction in criminal case referrals would simply be delayed further, but not necessarily decline, yet decline is exactly what transpired. Analysts believe that the “work from home” protocols may also have reduced the number of agent/informant interactions on the street, thus resulting in fewer investigations being initiated during the early stages of the pandemic.

The DOJ, however, refuses to report on exactly which criminal enterprises or activities have remained consistent and which have declined dramatically, suggesting an intrinsic “risk vs. return” consideration for agent exposure. The DOJ, in this instance, may have an opportunity to determine from the data that certain crimes are not worth agent risk under a COVID-19 epidemic and possibly not a priority at all.

Other crimes simply cannot wait regardless of COVID risk, but the DOJ is keeping that information “close to the vest.” This insight, analysts believe, could lead to major criminal investigation policies and protocols that shift agency manpower to higher-priority crimes and away from those considered innocuous. 

Consider immigration enforcement, which both CBP and ICE are tasked with and which account for the lion’s share of all immigration-related arrests. By isolating arrest records for immigration offenses (as opposed to immigrants engaged in non-immigration criminal acts), analysts theorize that there existed an obvious sharp decline in border crossings as a result of fewer immigrants consolidating at the border out of fear of COVID-19 exposure. However, after closer analysis, the numbers may have declined not simply because there existed fewer immigrants attempting illegal entry, but simultaneously, fewer agents were positioned on the border. And of those on active duty, fewer yet may have been willing to intervene in a “hands-on” arrest. 

If this is, in fact, true, it may account for a decline in the number of arrests being reported by the CBP, but it would not account for a decline in the data reported by ICE, which focuses predominantly on interior-immigration issues. ICE, it seems, implemented protocols to enact fewer arrests and, in cases involving illegal migrant workers and undocumented food processors, petitioned the Trump administration and called for a nationwide halt to all arrests as food supply chains began to falter and break down.

The pandemic seemed to ravage agricultural harvesting and meat and poultry processing but not because of fear of COVID-19. It seems that migrant workers and undocumented food processors were willing to sacrifice themselves and risk exposure during the outbreak rather than forego this life-sustaining income. As such, many became ill and could no longer work. Interestingly, undocumented workers seemed to show less fear of the coronavirus than fear of federal agencies set out to arrest them. Even the Trump administration had to acquiesce by placing a temporary moratorium on arrests and convictions of undocumented seasonal and food processing workers, suggesting that the economy “needed these valuable workers” during a time of crisis. 

In the wake of COVID-19, this “risk vs. return” reality for investigations and arrests may change the face of criminal justice forever. The data suggest that certain crimes and certain criminals are simply not worth agency risk during a pandemic and possibly not so even after the pandemic subsides. 

Source: https://trac.syr.edu/tracreports/crim/608/

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