A massive overhaul of D.C.’s outdated criminal code is nearing the legislative finish line.
The rework of the city’s criminal code is the result of a decade of efforts from the D.C. Criminal Code Reform Commission, an independent body whose attorneys spent years researching and weighing how to write a clearer and more proportional criminal code. It’s a process that many cities across the country have already undergone – and experts have argued that D.C.’s revision is well overdue. It will advance to a vote in committee next week.
“If I can speak bluntly, our criminal laws are a mess,” said Ward 6 Councilmember Charles Allen, who chairs the Committee on the Judiciary and Public Safety, at a press conference Friday announcing the bill’s advancement to a committee vote.
The D.C. Council’s Committee on the Judiciary and Public Safety will vote on the 450-page-long bill revising the city’s entire criminal code next Friday. After the committee vote, a full council vote, approval by the Mayor, and a 60-day Congressional review period, councilmembers are optimistic that it will become the city’s new law.
There has been no wholesale revision of D.C.’s criminal code since 1901 — a time when D.C. did not have home rule. Some parts of the revision repeal somewhat silly and outdated laws – like one that prohibits people from playing ball games in the city’s streets and alleys — and gets rid of language that’s not really applicable anymore, like references to stables and mules.
But other changes are more significant. The bill eradicates most mandatory minimum sentences, gives more people serving long sentences an opportunity to petition for release, and clarifies the definitions of some of the District’s most commonly charged crimes. For example — simple assault is the most commonly charged crime in the District, but the current code doesn’t clearly define what exactly constitutes an assault. And when the definitions of crimes are unclear, Allen said, that creates room for disparate outcomes in court proceedings.
“Our criminal justice system is inconsistent, arbitrary—and as a result, is open to bias,” Allen said Friday.
The revised code also creates a system of punishments that its authors believe are more proportional. Experts have said that the proposed punishments in D.C.’s criminal code don’t make sense in relation to one another: For example, an article in Northwestern University’s law review pointed out that D.C.’s current criminal code punishes arson of one’s own property more severely than any other kind of arson. The changes to the code, Allen said, will bring proposed maximum punishments better in line with the sentences that are currently being handed down by judges in D.C. Superior Court.
The bill also proposes changes to the way that criminal proceedings will work in the District. For example, the bill restores the right to a jury trial for most misdemeanor offenses — though, in the latest version of the bill, the changes would be phased in slowly over time to account for the extra burden it will put on the city’s court.
Allen, the judiciary committee chair, has made several changes to the original bill since it was first introduced — including upping the maximum penalties for certain crimes, putting a mandatory minimum sentence for murder back into the code, and altering the timeline for pursuing a resentencing for serious crimes.
The changes represent a compromise between the Criminal Code Reform Commission’s recommendations and the feedback of advocates and prosecutors. The resulting bill is one that the major players in the city’s criminal justice system don’t universally agree on — the U.S. Attorney’s Office has some objections, for example, and the Public Defender Service also disagrees with some aspects of the new code. But all of those parties, who were also involved throughout the drafting process of the new code, have agreed that it should move forward to the next step in the process.
“To be clear — and no one would probably be surprised – PDS does not support every reform or aspect of the revised criminal code,” said Heather Pinckney, the Director of the Public Defender Service. Pinckney said the code’s suggested penalties remain too long and the criminal justice system is too punitive and over reliant on incarceration. She said the District still has a long way to go in changing a way of operating that is “most singularly focused on the incarceration of Black residents,” who represent 90% of those sentenced for felonies in the the city
But, Pinckney said, “I think what is important here is that we at least had the parties at the table who were willing to engage in the conversation. That is not something we always have had.”
In a statement Friday, the U.S. Attorney for D.C. wrote that they “still have concerns with multiple aspects of this bill and believe that some provisions, while well-intentioned, could undermine community safety and impede the administration of justice in our courts.”
But despite those concerns, the office wrote that they supported the bill proceeding to mark-up — and appreciated some of the changes that Allen made.
One of those changes was Allen’s choice to keep a mandatory minimum sentence for first-degree murder. Initially, the commission recommended eliminating all mandatory minimums from the code, but the USAO objected, and urged D.C. to keep some mandatory minimums. Allen said Friday that he ultimately decided to keep a mandatory minimum sentence of 24 years.
Allen said he made that decision because “first degree murder is simply the worst possible crime we have on the books.”
On the other hand, authors of the revised code, along with the public defender service, have said they do not agree with Allen’s decision to re-insert the mandatory minimum.
Patrice Sulton, an attorney who authored sections of the revised code and now leads the organization DC Justice Lab, said that giving judges discretion — and scrapping mandatory minimums – is particularly important for the most serious crimes. With a mandatory minimum for first-degree murder, Sulton said, a trafficking victim who killed their abuser would get the same sentence as someone who committed a “much more heinous and aggravated murder.”
“That’s what mandatory minimums do: they take all of the discretion, all of the individuation out of sentencing,” added Sulton.
Allen’s other changes included opting to keep carjacking as a standalone offense. The CCRC recommended that the District eliminate carjacking as a standalone offense and instead categorize it as a serious form of robbery (many states do not have carjacking as a standalone offense in their codes). Allen also raised some of the penalties for armed offenses in the latest draft of the code.
Allen also altered the section of the bill commonly referred to as “universal second look.” Under the CCRC’s initial proposal, the universal second look meant that after serving 15 years in prison, residents would have the opportunity to petition a judge for a reduced sentence. Allen extended that time to 20 years. Under existing D.C. laws, people convicted of crimes when they were under 25 years old can petition for release after 15 years. Those will still apply — meaning the universal second look section of the criminal code revision will only apply to people who were convicted when they were 25 years or older.
Council Chairman Phil Mendelson said he’ll be lending his support to the full bill — a project that the D.C. Council initiated back as far as 2006.
“Over the next few weeks, the council will be looking at individual items, but I will say, a small percentage of the overall bill,” Mendelson said on Friday. “It’s kind of remarkable that we’ve gotten to this point. It’s also kind of remarkable that it’s taken 16 years to get here.”
Sulton, with DC Justice Lab, said despite disagreements about sections of the revision, she’s extremely confident in what the commission produced, and on what the council will vote on. In addition to the rewrite of the code itself, the commission produced thousands of pages of documents justifying each decision it made.
“I can tell you there are things that I think could be better in the revised code … but I have every confidence that every single provision that we wrote is not only better than what’s in current District law but better than every other state in the U.S.,” she said. “I’m just really proud of the project.”
Jenny Gathright