Why I'm worried about D.C.'s criminal code re-write

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Why I'm worried about D.C.'s criminal code re-write

Matthew Yglesias

14 - 18 minutes

Fresh episode of Bad Takes is out, about incoming Chief of Staff Jeff Zients and his critics.

The D.C. Council recently passed a comprehensive rewrite of the city’s criminal code, the first in a long time, only to have it vetoed by the mayor. The Council then overrode the mayor’s veto.

This process unfolded over an extended period of time, with the final document being both very long (it’s the entire criminal code) and mostly uncontroversial. It has also received surprisingly little media coverage with the honorable exception of DCist’s Martin Austermuhle, who’s sparred with me a bit over it but who has been indispensable on the beat. I really started paying attention to this process when the U.S. Attorney for D.C. raised objections to a small number of the rewrite’s provisions. I assumed that either the Council would address his concerns or else there would be a huge high-profile political fight about it. But neither of those things happened, and the Council proceeded full-steam ahead, even as the mayor and the chief of police joined the U.S. Attorney in raising red flags.

We then got some Fox News outrage-bait around this, a strongly-worded Washington Post editorial backing the mayor’s position, and some drive-by tweets from me, leading Mark Joseph Stern to write in Slate that “The Pundits Are Wrong About D.C.’s Crime Bill.”

I think Stern’s piece offers some useful clarifications. But I also think he’s fundamentally wrong to portray this as a controversy driven by opportunistic right-wing media (that would be Fox) or ignorant dilettantes (that would be me). I do wish there were a journalist covering this who possessed Austermuhle’s depth of local expertise but slightly more “tough on crime” priors and who could have given the concerns voiced by the city’s executive leadership a full and calm explication. But the world is going to have to settle for me. Suffice it to say, though, that I hope rational people can agree that Mayor Muriel Bowser, Police Chief Robert Contee, and U.S. Attorney Matthew Graves are not right-wing media personalities or dilettante pundits. Running through advocates’ side of the argument over this, it seems to me that they can’t decide whether they’re dispelling the myth that this is a soft-on-crime, anti-carceral measure or motivated by the fact that that’s exactly what it is.

One of my biggest concerns, though, is the big time bomb lurking in the bill.

Near the end of his article, Stern glosses over what I think is the biggest issue with this legislation without explaining why it’s controversial: the Revised Criminal Code Act is going to require either a large expansion in the number of jury trials held in the city or else a significant reduction in enforcement of the law against people who commit misdemeanor offenses.

    The RCCA also restores jury trials for misdemeanor offenses, which D.C. only eliminated in the 1990s due to judicial budget cuts. (The current lack of jury trials rests on dubious constitutional ground.) And the bill allows individuals to petition for release after 20 years’ incarceration if they can prove full rehabilitation, expanding a widely hailed “second look” program that currently applies only to young offenders.

I don’t object in principle to restoring jury trials for misdemeanor offenses. I personally am a sicko who enjoys jury duty and would look forward to serving more frequently.

But as Stern notes, the city didn’t move to bench trials out of principled opposition to jury trials — it happened due to a lack of financial resources for actually holding the trials. When I first heard about this, I scolded the Council for moving forward on an action that would make the criminal justice system more resource-intensive without providing the resources. As several more knowledgeable analysts pointed out, the Council actually can’t provide the resources in question due to the unusual constitutional status of the D.C. legal system.

Statehood for the District of Columbia is mostly discussed in the national press in terms of its impact on Senate math. The real consequences of non-statehood for people who live in the District, though, include the fact that D.C. does not have state courts. Instead, all the functions that would normally be performed by a state court system are instead performed by special Article II federal courts with local jurisdiction. That’s also why we have a U.S. Attorney performing most of the functions that would normally be performed by a district attorney. But this all means that we rely on Congress to provide the resources the D.C. court system needs to function. On some level, that’s a gift to the city — we are getting services that we don’t pay for in exchange for paying taxes without representation. But on another level, it’s a huge problem. At the end of the day, courts are just not a huge line item in any state’s budget. And in exchange for saving some money, we lack a major piece of self-government.

Note that even under the current criminal code, lack of judicial resources is a huge problem for D.C.

Currently about a quarter of our trial judge positions are vacant, with more vacancies expected. Two of the nine seats on our appeals court are vacant. This makes it hard to prosecute offenses in a timely manner. D.C. did progressive bail reform a long time ago, which I largely support, but that means it’s a huge problem for law enforcement if you can’t actually prosecute cases — people just end up right back on the street. If you expand the number of offenses that require jury trials without a commensurate increase in resources, you are going to de facto legalize a lot of low-level misconduct.

The Council’s answer to this is that RCCA won’t be implemented until 2025, so they have a couple of years to work something out with Congress. I hope it works! I hope we are sitting here two years from now saying “boy, Yglesias and the mayor look dumb for having worried that we plopped a big unfunded mandate on the court system. It turned out to be easy to convince Kevin McCarthy to send us more cash and to convince Chuck Schumer to take time away from confirming normal federal judges to fill these D.C. vacancies.” But I’m pretty skeptical.

And my suspicion is that we’re moving forward with this plan because the key people driving it don’t actually think it’s a big problem to de facto decriminalize a lot of misconduct.

A major driver of disagreement about criminal justice policy in the District stems from a lack of consensus on how to characterize the status quo.

Stern says, echoing reformers, that “the District has one of the highest incarceration rates in the country.”

But this is one of these areas where comparing D.C. to the fifty states is tricky. If D.C. were a state, it would be by far the densest state in the union. So does that mean zoning reform would be unwarranted or unwise? I would say no. D.C. is a city, and judged as a city, it’s less dense than Boston or San Francisco or Chicago, and of course less dense than New York and only very recently Philadelphia. It’s also less dense than a lot of smaller urban areas like Somerville, West Hollywood, and Newark. By American standards, D.C. is a reasonably dense city, but it’s not even close to being the densest.

So I think a key thing about D.C.’s incarceration rate compared to other American states is that D.C. is a city and it has city problems, including a high level of crime. There unfortunately aren’t great stats on incarceration rate by city, so we have to use the state comparison. But you can see that while D.C.’s incarceration rate is on the high side, our level of violent crime is by far the highest in the country.

“Violent crime” is a fuzzy concept. Not all violent crimes are created equal, either in terms of the severity of the offense or the kind of prison sentences the people who commit them tend to receive. Maybe D.C. is just booking a lot of random fistfights as assaults? Well, no — if you compare D.C. to other states rather than to cities, we have by far the highest homicide rate in the United States.

So while the point that D.C. has a high incarceration rate compared to the 50 states is correct, that is not evidence that D.C. is an unusually punitive legal jurisdiction. The actual situation is the reverse — relative to the number of serious offenses that are committed, we are doling out a relatively low number of person-years of prison sentences.

Now if the Council was proposing to “get tough” by moving to dramatically increase sentence lengths, I would say that’s a poor use of money. A much better approach would be to invest in prevention and in apprehending criminals. In other words, it’s better to catch a larger share of the shooters than to send a minority of shooters away for longer and longer sentences. But the Council isn’t actually doing anything to accomplish that, they’re just impeding the function of the court system out of what I believe to be a misapprehension — either that the current penal regime is unusually harsh or else that law enforcement and prison sentences are entirely ineffective at controlling crime, so we shouldn’t really care if misdemeanor offenses spiral out of control.

A secondary issue, but the one advocates pushed back the most on, is that the RCCA reduces maximum penalties for a range of crimes.

Carjackings are a particular flashpoint. There has been a continuous five-year trend of increased carjackings in D.C., which makes moves to reduce the maximum penalty for carjackers seem politically odd. Mayor Bowser says this “sends the wrong message” given the circumstances, and it’s played a large role in Fox News’ coverage of the bill. Proponents of the law, including Jinwoo Charles Park, who served as executive director of the reform commission, have convinced me that this probably isn’t a huge deal in practice because the new maximum of 24 years is a longer sentence than anyone actually receives. That’s fine and I really am more relaxed about this than I was when I first heard it. But if the best defense is “it doesn’t make a difference,” then I’m not sure I understand why it couldn’t just have been changed on the off-chance that Bowser is right about the message.

Either way, the Council needs to do something about the structural increase in carjackings. This isn’t necessarily their fault. My general understanding is that newer cars have gotten harder to hot-wire, so thieves have more incentive to carjack which is very dangerous. Longer prison sentences don’t have to be the answer to that, but there does need to be an answer — whether it’s more surveillance or reconsidering the Council’s stance that MPD shouldn’t pursue moving vehicles or something else.

While I’m now less concerned about the change around carjackings, defenders have not succeeded in reassuring me about the fact that the bill reduces the penalty for owning an illegal gun. Here’s how Stern describes the provision in question:

    One change that’s drawn outsized attention is a reduction in the maximum penalty for being a “felon in possession”—that is, possessing a gun when you have a prior felony conviction. The RCCA drops the max for the charge from 15 years to four, for several reasons. First, being a felon in possession is not a crime of violence. It applies when an individual merely owns a gun, even if it’s sitting unused in their closet. If they ever carry or use it, the penalties shoot up dramatically.

I’m not super interested in debating what is and isn’t “a crime of violence,” but this measure is disturbing to me because I think it reflects the underlying incoherence of the emerging progressive approach to guns. Having an illegal gun in your closet is not a violent crime in the same way that shooting someone is — that’s common sense. The same is true of carrying a gun in your car, having a gun in your waistband, or bringing a backpack full of guns with you as you walk about your business. As is selling your backpack full of guns or simply distributing them gratis to your friends. But the widespread proliferation of guns lays the groundwork for violence. Murders are a subset of shootings, which are a subset of incidents involving illegal gun-carrying, which are a subset of incidents involving illegal gun possession, and the city needs to move the line across the whole spectrum.

Nazgol Ghandnoosh, co-director of research for the Sentencing Project, writes in defense of the new law that “lengthy sentences also have a disproportionate impact on people of color, perpetuating cycles of discrimination that make the District less equitable, safe and prosperous. We also know that effective solutions to gun violence begin with investing in communities, not prison sentences.”

This is the kind of rhetoric that, whatever the ultimate outcome of this legislation, decreases my trust in the reform community. If you look at a map of where serious violent crime occurs, the crime itself has a wildly disproportionate impact on low-income, overwhelmingly Black neighborhoods in the city.

That makes the “disproportionate impact” analysis fully question-begging — if swamping the court system so that misdemeanor charges can’t be brought makes the city less safe, it’s people of color who will suffer. It’s a Black mayor and a Black police chief who are raising these concerns.

Here’s a version of this story that I would truly like to believe:

    The police union is mad at the Council over unrelated actions so they’re criticizing this measure even though it won’t really make a difference.

    The police chief and the mayor are just aligning themselves with the rank-and-file for political reasons.

    Conservative media is fanning the flames of hysteria for opportunistic reasons.

    The reduced mandatory minimums won’t change anything in practice.

    The issue with court resources will get worked out over the next two years, and everyone will enjoy the fairness of their day in court with the guilty receiving appropriate sentences.

But arguments like the one put forward by Ghandnoosh make it hard for me to believe that story. The Sentencing Project, as an organization, seems institutionally committed to the view that D.C.’s relatively high incarceration rate is unrelated to our very high levels of violent crime and murder. But I think, especially if we believe in the importance of investing in communities, we need to take seriously the fact that people do not want to invest in places where shootings, carjackings, and home invasions are on the rise.

The law has cleared the Council, so it doesn’t really matter what I think, and the good news is that most of it genuinely is uncontroversial. Hopefully, advocates of these reforms have a secret plan to get Congress to unlock additional judicial resources, plus another secret plan to deter carjacking, and are also plotting reforms that will make it easier to secure convictions of people caught with illegal guns. I truly hope I’m proven wrong. But I’m worried.