“The Obama Justice Department has decreased the prosecution of violent gun crimes by 30 percent.”

--Sen. Ted Cruz (R-Tex.), in an interview with Capital New York , published May 30, 2013

Sen. Ted Cruz (R-Tex.) offered this statistic as one of the reasons why he pushed an alternative to the Manchin-Toomey legislation to tighten background checks. (Both failed to get enough votes to emerge from the Senate.) As he put it, “the Obama administration has not made it a priority to prosecute felons and fugitives who try to illegally buy guns.”

We had previously examined one of Cruz’s other reasons, which we found worthy of a Pinocchio because he placed a partisan frame on the data. But we hadn’t seen this statistic before. How does this hold up?

The Facts

Cruz drew this statistic from a report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC), which documented how prosecutions of weapons violations have shifted up and down, sometimes in dramatic fashion, since 1986. The report showed that prosecutions had fallen from a high of 11,015 in 2004 to 7,774 in 2012, for a decline of 29 percent.

So that’s where Cruz gets his figure. But note that once again he places it in a highly partisan frame — that the Obama Justice Department “has decreased” the prosecutions. But Cruz is comparing the last year of Obama’s first term with the high point of Bush’s presidency, which was reached in his first term. It turns out that weapons prosecutions started to tumble in Bush’s second term.

Comparing 2012 to 2008, Bush’s last year, the decline is just 8 percent. If you compare an average of Bush’s eight years with an average of Obama’s four years, that shows a decline of 15 percent. In other words, Cruz is stacking the deck.

But the TRAC report raises serious questions about whether the data are even relevant as a measure of presidential performance. That’s because many weapons crimes can be prosecuted either under state/local laws or under federal laws. Far more weapons cases are handled by state and local prosecutors, and “sometimes the decision of which jurisdiction — state or federal — will prosecute a gun offense depends upon the specifics of the laws, including which one calls for a longer prison sentence,” the report says.

In other words, the number of federal cases depends a lot on the interaction with state and local prosecutions, which may have little to do with an administration’s priorities.

One possible test of an administration’s priorities is the percentage of cases it chooses not to prosecute. Here, Obama does slightly better than Bush, according to data on the TRAC Web site. Over Obama’s first term, federal prosecutors declined to prosecute an annual average of 34.1 percent, compared to 37.6 percent for Bush. Bush managed to get the number down over the course of his presidency, but comparing 2004 to 2012 — as Cruz does — the difference is even greater. Prosecutors declined 38.2 percent of cases in 2004, compared to 32.5 percent in 2012.

TRAC shows virtually no difference in the length of a median prison term given under either president.

“This isn’t about comparing the two administrations to make a political argument,” said Cruz spokeswoman Catherine Frazier. “The senator’s goal in any guns legislation is to focus on increasing prosecutions of those who have violated the law in order to keep guns out of the hands of criminals. The point is that we know this administration can do more, but they aren’t.” She added that “the comparison of state versus federal cases is a different argument and doesn’t have anything to do with the statistic we cited.”

The Pinocchio Test

If Cruz were not trying to make a political argument, we’d imagine he could have used the TRAC data to make this point: “The prosecution of violent gun crimes by the Justice Department is down from its peak by 30 percent.”

But instead he said: “The Obama Justice Department has decreased the prosecution of violent gun crimes by 30 percent.” That certainly sounds like a political argument, since he is specifically saying this is something Obama has done — “has decreased” — when in fact Cruz is comparing Obama’s performance against a high that even the Bush administration achieved only once.

Moreover, this figure appears to say little about administration priorities, given that the numbers depend in part on decisions by non-federal prosecutors. In cases when federal prosecutors have decided whether to act on a referral, the data show that Obama’s record actually is better than Bush’s.

Three Pinocchios

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