Later today the D.C. Council is set to cast a final vote on a monumental piece of legislation, a 450-page bill that would completely overhaul the city’s criminal laws. The full rewrite has been more than a decade in the making, spurred by the simple reality that D.C.’s criminal code was first written by Congress 120 years ago and only updated in piecemeal fashion since.

For a project of this magnitude, there’s some surprising consensus. Just about everyone involved says the overhaul needed to happen, and people and groups on opposite sides of the criminal justice system say they generally agree with 95% of it.

But the disagreements over the remaining 5% have burst into public view over the past month, with police and prosecutors saying the rewrite dangerously decreases penalties for some violent offenses and unwisely expands the right to a jury trial and ability for convicts to request sentence reductions. Defense attorneys and criminal justice reformers, though, say those changes stem from extensive research as well as a practical understanding of how judges are currently sentencing people.

Last-minute changes are expected to be debated ahead of Tuesday’s final vote, though it remains likely that lawmakers will ultimately approve the overhaul. (They unanimously did so during an initial vote earlier this month.) Still, Mayor Muriel Bowser has been particularly critical of certain provisions and says she’ll consider wielding her veto pen, and the entire measure will then have to survive a 60-day congressional review period — under a likely GOP-led House.

Here’s everything you need to know about the overhaul and the debate around it.

Why is D.C. rewriting its criminal code?

In short, it’s very old. Originally drafted by Congress in 1901, experts say the city’s criminal is outdated, confusing, inconsistent, and has fallen out of touch with current sensibilities around crime and punishment. (In 2000 three law professors ranked the District’s criminal code one of the worst in the country based on whether it was clear, well-defined, and consistent.) Additionally, D.C. is behind the curve on such a wholesale update; many states have already completed their own overhauls of their criminal codes.

“Our criminal laws are a mess,” said D.C. Councilmember Charles Allen (D-Ward 6), who chairs the council’s judiciary committee, last month. “We have overlapping charges with inconsistent or missing definitions and elements, and we have outdated terminology. The punishments often don’t fit the crime. They’re unclear to everyone from the defendants to the lawyers who represent them, to even the judges who sentence them or they’re extreme and they’re out of touch with our modern values.”

The overhaul process wasn’t left to the council, though. More than a decade ago lawmakers created the D.C. Criminal Code Reform Commission, an independent agency charged with assessing the criminal code from top to bottom, researching best practices, and proposing changes. Those changes were all presented to and voted on by an advisory committee that included representatives from the office of the U.S. Attorney for D.C. (which prosecutes all serious and violent crimes in the city), the Public Defender Service for the District of Columbia, the city’s attorney general, the mayor’s office, and the council.

All told, the process stretched 16 years and included more than 4,700 pages of research and commentary outlining what the commission wanted to change and why it wanted to change it.

What changes did the reform commission propose?

Very little of what the commission proposed changing in D.C.’s criminal code amounted to tinkering; outdated terms and definitions were tossed out, crimes were redefined, new gradated sentences were drawn up to match the severity of specific offenses, and new criminal justice policies were proposed.

At the most basic level, advocates and experts say the proposed changes clearly specify what different crimes are,  something the current code does poorly, if at all. (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.)

“One of the most important things that the revised code does is it makes obvious to the reader what constitutes a criminal offense,” says Patrice Sulton, who worked as an attorney on the commission and now leads the D.C. Justice Lab, which advocates for criminal justice reforms. “You don’t have to sit around and wait for the D.C. Court of Appeals to explain to you what conduct is required, what result is required, what circumstances are required, or what intent is required. You can look at the statute and understand it for yourself.”

Sulton says the commission also overhauled the sentences attached to particular penalties. The revisions, she says, create tiers of penalties that match the severity of the offenses. “It also does a really good job of separating the degrees of offenses so that we don’t just have one general offense with one penalty, but we have gradations that account for different kinds of culpability and different kinds of harm,” she says.

The commission also proposes doing away with all mandatory minimum sentences, restoring the right to jury trials for people charged with misdemeanors (the right was curtailed in the mid-1990s because of budget and staffing shortages at D.C. Superior Court), and expanding the ability of people serving prison time to petition a judge for a sentence reduction.

Not all of the commission’s proposals made it to the final bill, though. Allen made his own changes, like restoring carjacking as a stand-alone offense (the commission recommended the crime be treated as robbery, like many states do) and maintaining a mandatory minimum sentence for first-degree murder. He also worked with the U.S. Attorney for D.C. to adjust some penalties upwards.

What was the reaction to the commission’s proposed changes?

Just about every stakeholder — from prosecutors to defense attorneys –hailed the final product, calling it a much-needed and long-overdue modernization of the criminal code. Many of them, though, said they still had some fundamental disagreements around the final text. The Public Defender Service, for example, said that even with all the changes to the definitions of offenses and the related penalties, the revised code would still look to prison as the main means of punishment.

“Prison sentences remain too long, and the District continues to rely too heavily on incarceration and punitive criminal system responses where more empathy, compassion, and prevention through meaningful investment in our communities is needed,” the group said in a letter to the council.

Similarly, the Council Office of Racial Equity, which conducts racial equity impact assessments on bills lawmakers vote on, had a mixed view of the revisions, saying that while some changes would benefit Black residents (who are disproportionately impacted by the criminal justice system), the overall package would still maintain the racially disparate status quo.

On the other side, the U.S. Attorney for D.C., along with D.C. Police Chief Robert Contee and Mayor Bowser, argued that expanding the right to a jury trial would overwhelm an already busy court system with new cases. They also pushed back against giving more prisoners the ability to petition for a sentence reduction. (Currently, it’s limited to those who committed a crime before they turned 25; the commission proposes expanding it to all offenders.) Bowser has asked that those policy provisions be split off into their own separate bills.

But the most spirited pushback has come on the issue of lower penalties for certain offenses, ranging from robbery and burglary to carjacking and illegal possession of a handgun. “[It] sends the wrong message to our residents when we are using every resource in our government to drive down crime,” said Bowser late last month.

In a late-October letter to the council, U.S. Attorney for D.C. Matthew Graves raised particular concern over certain maximum penalties being decreased, especially for violent offenses. “To be sure, the certainty of being caught for a crime is a more powerful deterrent than the maximum punishment for a crime,” he wrote. “But the maximum penalty for a crime does have some deterrent value and, even more importantly, the maximum penalty must be sufficiently high to hold a person who has already committed a serious, violent crime proportionately accountable… and ensure that a person who is a danger to the community is incarcerated for an appropriate length of time.”

The argument has attracted some high-profile supporters. “Carjackings have soared the past two years — up 23% in 2022 so far. So the D.C. Council has decided to lower the penalty,” tweeted well-known D.C.-based commentator Andrew Sullivan earlier this month, referencing a lowering of the maximum penalty to 24 years from the current 40 years. “They really do want to send a signal that carjacking is no big deal.”

“Serious crime is increasing in the District of Columbia. So the city council has decided to reduce sentences for those who commit serious crime,” echoed political commentator Byron York.

On Monday, Bowser again reiterated her concerns with the proposed revisions in a letter to Council Chairman Phil Mendelson.

What do proponents of the changes say about these lower penalties for crimes?

Councilmember Allen says that some of the criticism against the commission’s proposed penalties is misplaced.

First, he says, crimes are being more specifically defined in the revised code, and people can be charged with multiple offenses and be hit with penalty enhancements for things like using a gun, all of which could add up to significant prison sentences. Second, he says that a majority of the penalties the commission proposed line up with what judge and juries have actually been handing down over the years. While armed carjacking does currently have a maximum possible penalty of 40 years in prison, data from the D.C. Sentencing Commission shows that the median penalty handed down was 15 years. Finally, Allen contests whether the code’s current penalties are having an impact on crime rates.

“I think it would pretty hard to argue that the current code’s extreme sentences are acting as a deterrent,” he told DCist/WAMU. “How can you make that argument, as we’ve seen an increase in these crimes, that somehow the status quo with these extreme outlier sentences that are never used are actually acting as a deterrent? They’re not. It’s also why a [revised criminal code] is so important. It steps back from the daily headlines.”

Sulton, who worked with the commission, also challenges the idea that the revised code lowers penalties across the board. She said that in some cases it increased penalties, and in others it decreased them. But it was all done under the logic of properly lining up offenses with penalties based on how serious they are, which she says the current code does not do. “It was really about putting things in the right order,” she says.

Still, the issue of penalties has caught on with at least one lawmaker.

Late last week Councilmember Brooke Pinto (D-Ward 2) said she would introduce an amendment on Tuesday to increase penalties for specific gun offenses. “We cannot allow guns to continue to inflict physical and emotional trauma on District residents,” she said. “Giving our judges the discretion to impose a higher sentence when the circumstances dictate is one tool we have to combat this scourge.”

But Pinto’s amendment has drawn opposition from Jinwoo Park, the executive director of the D.C. Criminal Code Reform Commission. He says the proposed overhaul includes multiple weapons offenses and penalty enhancements for specific gun crimes, which would ensure significant prison sentences. In a letter to lawmakers, he also argues that the proposed offenses and penalties have been specifically written to be graded based on severity, and Pinto’s amendment would undo that.

“Ad hoc changes to weapons offense penalties could result in disproportionately severe penalties as compared to other offenses,” he wrote, additionally noting that such severe penalties could have disproportionate impact on Black defendants.

Pinto’s amendment has gotten support from The Washington Post’s editorial board, and on Monday Bowser told DCist/WAMU that she also backs it. “Using guns in the District is driving up our homicide rate and fear, and now would be exactly the wrong time to reduce penalties from crimes that are causing so much concern in our city,” she said.

What’s next for the overhaul of the crime code?

On Tuesday the council will cast its final vote on the sweeping proposal, after first considering Pinto’s and any other possible amendments that might be proposed. Should the overhaul pass, it will be sent to Bowser for her signature or veto. Asked Monday what she would do, she remained open to vetoing the measure — but added that she would wait and see whether any last-minute changes are made. Should it pass the council and get past Bowser (the council could override any veto), it would next head to Capitol Hill for a 60-day congressional review period.

But even then, none of the changes in the 450 pages of legislative text would be immediate. The entire overhaul’s implementation is delayed until Oct. 1, 2025, with the expansion of the right to jury trial being stretched out as far as 2030 to allow the Superior Court to adjust to the new workload. Bowser, though, is asking for the implementation to be slower than that, starting in 2027 at the earliest.

“The modernization of the District’s Criminal Code will impact our city’s justice system for decades. It is critically important we get it right and that it not only improves the safety of our residents, our businesses, and our city, but that our residents believe that these revisions will improve their safety,” wrote Bowser to Mendelson on Monday.

The overhaul will also have to be paid for. The price tag is expected to be just over $50 million, largely for training of D.C. police officers on the new offenses and policies.