The Washington Post
I helped revise the D.C. criminal code. Biden and Bowser are wrong.
Relax, everybody. It is still a crime in D.C. to play “Bandy” and “Shindy” in the public streets. And if you happen to be transporting cattle through the city, make sure you provide your livestock with five hours of rest — or prepare to face police and prosecutors.
So dictates the D.C. criminal code, which was adopted in 1901 and remains good law, despite the existence of an entirely revised code endorsed by the D.C. Council. It is still law because, pursuant to the Home Rule Act, which really should be called the “Lack of Home Rule” Act, the new code went to Congress for review, and both the House and Senate voted to block it from becoming law. President Biden could veto Congress’s resolution of disapproval, but citing concerns raised by Mayor Muriel E. Bowser (D) when she vetoed the bill herself (the council overrode her), he hasn’t.
Full disclosure: I was one of the two criminal law professors appointed by the council to the advisory group of the Criminal Code Reform Commission, which drafted the code. The other members included representatives from the U.S. attorney’s office, the D.C. attorney general’s office and the Public Defender Service. D.C. Superior Court judges and police representatives also attended many sessions, which were open to the public.
Of course, there were some pitched battles, and nobody got everything they wanted. The work took a long time — 51 meetings over almost five years — but we reached a consensus that resulted in the nearly 300-page proposed criminal code, which we unanimously presented to the D.C. Council.
Now, 81 senators and 250 House members, none of whom is answerable to D.C. voters, have rejected the work of that deeply democratic process.
The mayor expressed two main concerns about the proposal, including that it would expand the right to a jury trial to people accused of low-level offenses, who now have their cases decided by a judge. Bowser is worried that jury trials for misdemeanors would overburden our criminal courts — never mind that citizens in virtually every state already have this right.
In a 2018 case, former D.C. Court of Appeals Chief Judge Eric Washington wrote that D.C.’S restricted right to jury trials undermines “the public’s trust and confidence in our courts to resolve criminal cases fairly.” Washington encouraged the council to bring back jury trials for low-level offenses (D.C. residents enjoyed this right between 1924 and 1994), noting that “communities of color” are “openly questioning” the fairness of the legal system.
The mayor’s other concern was with the reduced sentences for some crimes, including carjacking, in the revised code. That sends the wrong message, Bowser argued, during a time when some offenses have increased.
Without this new code, our city will be stuck with one of the most outdated and incoherent criminal codes in the country.
The proposed code reduced the maximum sentence for carjacking from 40 to 24 years. (Carjackers who use a gun could be incarcerated for 30 years, using the sentencing enhancement the code allows for gun crimes.) One of the group’s charges was to harmonize the criminal code with the actual practices of D.C. judges. We looked at sentencing records between 2010 and 2019 and found that for carjacking almost no one gets sentenced to the maximum. The average sentence is 15 years. It didn’t make sense to maintain 40 years for this crime when judges weren’t even locking up people for 30.
Our mandate also included making sure sentences are proportionate to offenses. Forty years meant that people could get the same sentence for carjacking as second-degree murder. The revised code punishes carjacking like most states (and for the record, more harshly than Biden’s home state of Delaware, where the maximum punishment for unarmed carjacking is 11 years).
Despite all the fearmongering over it, this change would not have undermined public safety. If the threat of 30 years in prison does not stop someone from stealing a car, 40 years won’t make a difference either. Criminologists tell us that deterrence depends more on the certainty of getting caught than the severity of the sentence, and the reality is that few people get arrested for carjacking in D.C. Moreover, most of those who do are juveniles, some as young as 11 and 12, who would not be eligible for such long sentences in any case.
What now? Without this new code, our city will be stuck with one of the most outdated and incoherent criminal codes in the country. Under current law, if you threaten to damage someone’s property, you face up to 20 years in prison; but if you actually damage property, the most you could get is 10 years. The revised code takes the common-sense approach of reducing punishment for a threat and increasing it for the actual offense. The proposed code is tougher on gun crimes than the existing one, including by prohibiting “ghost guns” — weapons without serial numbers that are almost impossible to trace — and making it a crime to fire a gun in D.C., even if no one gets hurt.
No good can come from attempts to mollify critics of the code, who would find other things to complain about even if the concerns about jury trials and penalties were addressed. Whack-a-mole is a poor method of designing a criminal code whose parts must work together. For example, amendments proposed by Bowser would punish carjacking more severely than first-degree rape or seconddegree murder. If those punishments were in turn ratcheted up, the result would be a draconian regime keeping D.C. one of the most incarcerated jurisdictions in the world.
The White House says Biden took his stance against D.C. self-government out of concern for public safety, but it has only emboldened congressional Republicans. Now, in full overseer mode, they are pushing to overturn the city’s new police accountability law.
I realize that national Democrats are worried about being depicted as supporting “woke” criminal justice — will of the people be damned. But as the president and Congress use our criminal code to score cheap political points, the District of Columbia is less safe and less free.