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President Barack Obama, surrounded by uniformed law enforcement officers, outlined pitfalls of a budgetary sequester during a speech on Feb. 19, 2013. President Barack Obama, surrounded by uniformed law enforcement officers, outlined pitfalls of a budgetary sequester during a speech on Feb. 19, 2013.

President Barack Obama, surrounded by uniformed law enforcement officers, outlined pitfalls of a budgetary sequester during a speech on Feb. 19, 2013.

Louis Jacobson
By Louis Jacobson February 22, 2013

Barack Obama says sequester could force prosecutors to 'let criminals go'

To pressure Congress to prevent the across-the-board cuts known as sequestration by the March 1, 2013, deadline, President Barack Obama gave a speech on Feb. 19 warning of dire consequences if it takes effect.

"Emergency responders like the ones who are here today -- their ability to help communities respond to and recover from disasters will be degraded," Obama said. "Border Patrol agents will see their hours reduced. FBI agents will be furloughed. Federal prosecutors will have to close cases and let criminals go."

As we’ve noted, dire warnings about budget cuts are a popular tactic in the nation's capital. They’re sometimes known as the "Washington Monument strategy" because federal agencies threaten to close popular things, such as the monument, as a way of building public opposition.

Still, the idea of letting criminals go is particularly scary, so we wondered whether it’s accurate for Obama to say that under a sequester, "federal prosecutors will have to close cases and let criminals go."

First, let’s recap how the sequester works. Unless a deal is struck, most types of federal spending must be cut by a uniform amount -- tentatively 7.9 percent for most types of defense discretionary funding and 5.3 percent for non-defense discretionary funding. (Certain programs are shielded from sequestration cuts entirely, including Social Security, federal retirement payments, veterans compensation, Medicaid, Pell Grants, food stamps, Supplemental Security Income, and veteran's health programs. Medicare would be cut by 2 percent.)

The uniform cuts must be applied to any "program, project or activity" that isn’t otherwise exempted.

The most obvious way the sequester could produce cutbacks in prosecutions is through the Department of Justice’s budgetary line, "Salaries and Expenses, United States Attorneys." According to the Office of Management and Budget, the amount in that category that is subject to the sequester is $1.9 billion. Assuming a 5.3 percent cut, that works out to about a $101 million reduction.

The sequester would affect "every district, reducing the number of cases they can prosecute," the Justice Department said in a statement to PolitiFact. "The Justice Department anticipates U.S. Attorneys’ Offices will handle 1,600 fewer civil cases and 1,000 fewer criminal cases. Fewer affirmative civil and criminal cases will affect our ability to ensure that justice is served and impact funds owed to the government."

Outside experts agree the cuts will be real. "It’s certainly a fair statement that budgetary constraints affect who gets prosecuted and what gets prosecuted," said Mary Graw Leary, a Catholic University of America law professor. "It’s fair to think there will be an effect on what cases will be pursued if there is a drastic contraction in budgets."

That said, there are reasons to be cautious in jumping to conclusions:

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Officials will have some discretion about how to make the cuts. Within a given program, officials don’t have to cut every line item equally. They can move money around within a program.

In fact, Obama’s deputy director of the Office of Management and Budget, Jeffrey Zients, wrote a memo on Jan. 14, 2013, offering "guiding principles" for federal managers to use as they make cuts such as minimizing impacts on the agency’s core mission, life, safety and health. To limit the most severe impacts, Zients urged managers to consider hiring freezes, releasing temporary employees, not renewing contract hires, and authorizing early buyouts.

So officials at the Justice Department will have flexibility about how to meet that $101 million target. They could focus their resources on, say, criminal cases rather than civil cases, or violent crimes as opposed to property crimes. They could focus dollars on locations where crime is growing and trim in places where it is declining. They could allocate less money to complicated, expensive, long-term cases as a way of getting more bang for the buck.

Obama is exaggerating. Saying the sequester would mean letting criminals go is a stretch.

For starters, Obama’s comment conjures images of prison gates being thrown open and inmates flooding out. That’s not the case. When the New York Times asked the Justice Department about the sequester’s impact on prisons, a spokeswoman said that the Bureau of Prisons "does not intend to let anyone go on March 1 because of the cuts." The spokeswoman said that instead, personnel could be furloughed and that vocational education programs and others might be curtailed to meet sequester requirements.

Meanwhile, there are plenty of ways to cut back prosecutions without letting criminals go. A U.S. attorney’s office could save money by slowing its uptake of new cases and focusing instead on clearing its backlog of existing cases. Or it could scale back investigations that haven’t even produced any "criminals" yet.

Finally, we shouldn’t gloss over the reality that, by framing it as he did, Obama ignored the bedrock of America’s criminal justice system -- that people are innocent until proven guilty. The cuts Obama is talking about would affect the investigatory and trial stage, when an individual’s criminality hasn’t yet been proven. At most, the sequester would force prosecutors to let "suspects" or "targets" go.

Budgetary factors have always shaped prosecutorial priorities. "It is not unusual for budgetary concerns to influence federal prosecutors' case selection," said Josh Bowers, a law professor at the University of Virginia. "It strikes me that limited resources are typically a significant -- if not the principal -- determinant of how prosecutors exercise charging discretion."

In other words, the scope of the cuts may be somewhat bigger under a sequester, but living within budgetary limits isn't anything new for a seasoned prosecutor.

Our ruling

Obama said that, if the sequester hits, "federal prosecutors will have to close cases and let criminals go."

It’s clear that U.S. Attorney’s offices are looking at a potential cut of $101 million, and a reduction of that size would almost certainly cut back on prosecutions in some fashion. However, the impacts are not as clear-cut as Obama’s bold language suggests. Officials will have a fair amount of discretion in prioritizing what types of cases prosecutors will pursue, possibly cutting back on civil cases rather than criminal ones. And the cuts taking place in U.S. Attorney's offices wouldn't directly affect "criminals" at all, but rather suspects and targets of prosecution who haven't had their guilt determined yet. These represent significant exaggerations, so we rate the claim Mostly False.

Our Sources

Barack Obama remarks in Washington, D.C., Feb. 19, 2013
Office of Management and Budget, "OMB Report Pursuant to the Sequestration Transparency Act of 2012 (P. L. 112–155)," accessed Feb. 19, 2013
Office of Management and Budget, "Memorandum for the Heads of Executive Departments and Agencies, from Jeffrey D. Zients," Jan. 14, 2013
Congressional Budget Office, "The Budget and Economic Outlook: Fiscal Years 2013 to 2023," February 2013

John F. Cooney, "Implementing Sequestration," Nov. 12, 2012
New York Times, "Obama’s Forecast on Cuts Is Dire, but Timing Is Disputed," Feb. 19, 2013
Washington Post, "The Sequester: Absolutely everything you could possibly need to know, in one FAQ," Feb. 20, 2013

PolitiFact, "Barack Obama says sequestration cuts will be indiscriminate," Feb. 21, 2013

Email interview with Shoba Sivaprasad Wadhia, clinical professor at Pennsylvania State University, Feb. 22, 2013

Email interview with Josh Bowers, law professor at the University of Virginia, Feb. 20, 2013

Interview with Mary Graw Leary, a Catholic University of America law professor, Feb. 22, 2013

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Barack Obama says sequester could force prosecutors to 'let criminals go'

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