Loose Lips can only imagine the reaction from his parents if he proudly displayed a 44 percent test score back in his school days. But for United States Attorney for the District of Columbia Matthew Graves, that otherwise paltry mark counts as progress.

Specifically, Graves announced Thursday that his office prosecuted 44 percent of cases police brought to them in fiscal year 2023, which ended Oct. 1. That might seem low, but when you consider that the USAO only charged 33 percent and declined to pursue 67 percent of all cases in 2022, suddenly that improvement looks pretty good. 

Now, they’re only declining 56 percent, an increase that Graves attributes largely to a newfound ability to test drug evidence over just the past few months. With new lab resources at his disposal, Graves says he was able to prosecute just over 58 percent of all cases between July and October, a figure that he expects his office will be able to match consistently going forward. In essence, prosecutors argue that some of the worst problems are behind them and that the public should have confidence that the real blame for rising crime lies elsewhere.

At least, that’s the narrative Graves was selling hard as he gathered the press to unveil these statistics Thursday. The USAO has rarely discussed these statistics publicly during its decades of prosecuting most crimes in the District, so the fact that Graves convened such a gaggle with reporters tells you all you need to know about the political pressure he’s been feeling recently. The declination rate, as it’s commonly referred to in legal circles, has suddenly gotten more attention as observers cast about for reasons why the District has struggled to contain violent crime.

“It’s understandable that there are questions out there,” Graves told reporters. “But we think the conversation has been going in the wrong direction.”

Graves is trying to pull off a rare feat in public communication about crime: getting the public to understand a bit of nuance around a highly complex subject matter. LL’s readers surely possess this level of intelligence and sophistication, but Graves is hoping to get through to a wider audience. He might as well be speaking to anyone who listens to Mayor Muriel Bowser’s rhetoric blaming prosecutors for failing to take on enough cases and letting crime spiral.

“The number [of cases prosecuted] is never going to be 100 percent,” Graves says. “And there’s no specific, magical number that represents our definition of success.”

In some sense, Graves has a pretty compelling case to make. Over the course of a generally productive hourlong session with reporters, he outlined the myriad reasons why anyone concerned about crime probably shouldn’t be looking solely at the percentages describing how many arrests his office carries forward to prosecute. He argues that there are some factors at play that the general public simply doesn’t have much visibility into that fundamentally limit how many cases his office pursues. 

LL will note that prosecutors from Manhattan to Chicago and San Diego all have higher prosecution rates than D.C. and they deal with many of the same factors Graves describes. But the District’s unusual structure (and its unique problems) do still present hurdles, Graves says.

Consider that, according to data provided by the USAO covering the past three months, roughly 18 percent of all the arrests that did not result in charges stemmed from the victim being either unavailable or not wanting the incident prosecuted. That represents roughly half of all cases where prosecutors don’t pursue charges. Graves says this generally applies to domestic violence cases, where people ask police not to charge their romantic partners (sometimes out of fear of retaliation). And he notes that the District “has one of the strictest, if not the strictest” mandatory arrest laws on the books covering such cases, meaning that police officers responding to a domestic incident don’t have any discretion to avoid arresting the parties involved, even if everyone on the scene doesn’t want police involved.

“We charge hundreds of cases every year where the victim does not want to go forward,” Graves says. “But there are a lot of cases where we listen to the victim.”

These cases represent a huge reason why Graves says viewing his office’s prosecution rate as a number out of 100 is a fool’s errand. But LL and the other reporters present still wondered: These mandatory arrest laws have been on the books for decades, so why has the USAO’s prosecution rate only slid downward since 2015?

Graves chalks that up to some of his colleagues deciding in 2019 to start more proactively identifying cases that are “fatally flawed” before they move further in the process. That includes finding such cases where victims don’t want to see cases prosecuted, but also finding instances where prosecutors feel they have “insufficient evidence” to go forward. Of the arrests Graves didn’t prosecute over the past three months (the only time period USAO made such detailed data available) he says concerns about evidence was the cause 13.4 percent of the time.

“When people talk about us choosing or not choosing to prosecute, it’s a false choice in these cases,” Graves says. “As prosecutors, that is not a choice: we have to comply with the Constitution.”

This 13 percent is the number Graves wants people to really focus on. And he estimates only 3 or 4 percent of those cases involve violent crimes, while the rest are misdemeanors. 

Of course, that doesn’t mean this figure should be ignored. “Insufficient evidence” is a broad category that can include all manner of factors, including things prosecutors are less eager to discuss: Maybe a cop with misconduct allegations is the only witness prosecutors can bring to court, or they find that police used search tactics likely to get tossed out of court, or an officer’s body-camera footage doesn’t match their testimony (one of the problems the USAO originally identified when reporters started asking questions about the declination rate).

Graves says many of these problems come down to a need for more police training. For instance, he says the body camera issue can be alleviated by teaching officers that their cameras may not always capture everything they see (though LL would hasten to add that Graves is also busy investigating 19 officers for allegedly turning off their body cameras in key moments of gun seizures). 

And, as he has in the past, Graves blames some recent rulings by the D.C. Court of Appeals for changing the rules for how cops can search people for guns. When LL pointed out that those judges aren’t going anywhere and that MPD probably needs to change its tactics to match those rulings, he conceded that he has raised the same point with department leaders. But Graves lamented that the court has given cops “an ever-moving target” to try and hit when it comes to conducting constitutional searches.

“[MPD] has over 3,000 officers, so every time one of these opinions come out, you’re talking about having to retrain over 3,000 officers on a new rule,” Graves says. “And you have to tell them that something that they’ve been trained on at the academy, something they’ve been doing for decades, they can no longer do that. And it’s something, by the way, that their colleagues across the river in Virginia, and across Eastern Avenue in Maryland can probably still do. And that takes time.”

LL will play a sad song on the world’s smallest violin for all those who need to spend time learning to respect constitutional rights. But, on a serious note, Graves is probably right that he has taken too much heat on some of this stuff.

Undoubtedly, it matters that his prosecutors can’t bring cases against some people because of investigative failures. His office didn’t share the exact number of arrests MPD made in fiscal year 2023, but it’s reasonable to expect that “insufficient evidence” affected hundreds of cases. Even if only some of those involved violent crimes, it’s fair to ask what needs to change that people using guns on D.C. streets face some consequences, and how prosecutors can put pressure on cops to change.

But Graves also rightly points out that a lot of these problems are out of his control. He says the biggest reason his office could try so many more cases this year is because Bowser inked a new contract with a private lab in May to help USAO handle more drug cases—he was previously forced to outsource much of that work to the Drug Enforcement Agency because the city’s own crime lab remains unable to do that testing as it deals with the fallout of a 2021 scandal.

And who has responsibility for getting that lab back into shape? Who oversees the police department bringing these cases to Graves? The very same mayor busy blaming prosecutors for her city’s crime problems.