The outcome in the U.S. Senate last week couldn’t have been more clear: 81 senators, 33 of them Democrats, voted to block a D.C. bill that revised and modernized the city’s century-old criminal laws.

The vote — along with a parallel vote held in the House last month — was a stunning and biting rebuke of D.C., the first time in three decades the city’s congressional minders had stepped in to wield their most powerful tool: the ability to overturn local bills.

And that it came on a bipartisan basis — and with President Biden’s support — was salt in the wounds for many D.C. lawmakers and advocates. Democrats who had professed to support the city’s quest to become a state, Biden included, opted instead to forcefully remind the city what it means not to be a state.

But how did this unravel so badly — and so quickly — for the District? And who’s to blame?

The attorneys who spent more than a decade revising the city’s criminal laws say their work was at best misunderstood, at worst purposefully mischaracterized. Critics, including Mayor Muriel Bowser, say the D.C. Council failed to read growing public concern over crime when it passed the bill, and committed a strategic blunder when it sent it to Congress just as Republicans were set to regain a majority in the House.

But some lawmakers and activists say the fault actually rests with Bowser, whom they accuse of having sold out the broader cause of statehood and self-governance for the short-term political gain of getting a revised criminal code bill that she didn’t like overturned.

Amidst the finger-pointing and soul-searching, only one thing is clear: the years-long effort to update a criminal code that dates back to 1901 is likely dead for now.

‘They shouldn’t have sent the bill up there’

The effort to revise D.C.’s criminal code took time, but it was partially timing that ultimately doomed it.

Following the lead of 29 states that had already modernized their own criminal laws, in 2006 the D.C. Council kicked off an effort that would stretch over 16 years; produce thousands of pages of research, legal analysis, and debate over criminal offenses and penalties; and result in a draft bill of 7,500 lines of reforms over more than 300 pages that was delivered to the city’s lawmakers in March 2021.

But it took some 18 months before the council actually proceeded with the massive bill, voting unanimously last November to approve the Revised Criminal Code Act of 2021. The bill’s final passage came as the political picture in Congress became clear: Republicans were set to narrowly reclaim the House of Representatives, prompting warnings from some local officials that D.C. would face “special danger” in the form of aggressive congressional interference in its local affairs. (Democrats did end up holding the Senate, though.)

Some sources inside the Wilson Building say the delay on moving the bill was at best “legislative mistiming,” at worst “naivety” on the part of local lawmakers who had gotten used to having Democrats in the majority in the House and may have assumed that the largely technical reforms would escape GOP scrutiny. (These sources requested anonymity to speak candidly about the situation.)

Others say it was a significant political misstep.

“They shouldn’t have sent the bill up there. That’s what happened. It’s wrong for Congress to interfere with us. But for 200 years we’ve been dealing with this. They sent [the bill] up to conservative people who are using crime as an attack on Democrats,” said D.C. Shadow Senator Michael Brown, whose comparison of the council to a “petulant child” to an Axios reporter in February raised eyebrows. “You could not have screwed this up any more if you tried.”

Council Chairman Phil Mendelson says he doesn’t think timing alone did in the revised criminal code, though he concedes that moving it through the council earlier could have improved its chances of surviving. “Earlier could have been helpful,” he said. “We could have messaged the bill better. We’ve been playing catch up and trying to frame what the bill does. If you’re doing catch up, that’s a problem.”

But Councilmember Charles Allen (D-Ward 6), who chaired the judiciary committee at the time and shepherded the revised code through the legislative process, says that speeding up the bill’s consideration wouldn’t have been possible. Beyond the sheer scope of the bill, the council would have had to consider the 60-day congressional review period that every D.C. bill touching criminal law has to go through. Those 60 days are only counted when either the House or Senate is in session, leading to review periods that can extend to more than six months.

“The Criminal Code Reform Commission introduced the bill in March 2021. We had to read the bill, do our research, and hold hearings, which took place in December [2021]. This is not a normal bill, it’s an entire chapter of the code. To pass this before the end of 2022 because of the 60 days, we would have to pass the bill somewhere in the springtime [of 2022]. And that is an unrealistic time frame for the sheer mountain of work it took to get the code passed,” he said.

Allen contends that had he moved the revised criminal code that quickly, he would have been accused of rushing it. Still, Bowser herself says timing was critical; speaking recently on WAMU 88.5’s “The Politics Hour,” she said that the council needs to better appreciate what it means to live with a Republican-led House means.

“We would all be foolish to just approach this work in the same way that we were approaching it with a whole different set of players and a different dynamic,” she said.

Sources close to the mayor also say another consideration was at play when it came to her decision to oppose the revised code: the state of public safety in D.C.

With certain crimes (like homicides, gun offenses, and carjackings) on the rise, police staffing at a two-decade low, and the council having passed a number of bills seen as impacting policing (such as a 2020 bill imposing new accountability reforms and another measure that gradually pulls police out of D.C. schools), Bowser saw the revised criminal code as a step too far. She also pushed for more public hearings on the measure; three had been held at the end of 2021, one of which had public witnesses, though almost all of the 34 speakers came from advocacy or non-profit organizations.

The mayor didn’t think lawmakers were accurately reading the room, and that lowering some penalties would just “send the wrong message” at the worst possible time.

“What has been irresponsible is the legislative approach to public safety for the last six years — decriminalizing fare evasion, defunding the police, removing police from schools, allowing short-circuited sentences for convicted murderers and rapists, and now the so called update to the RCCA that reduces gun penalties and will hamper our ability to, in the words of the [U.S. Attorney for D.C.], ‘adequately penalize those who use firearms.’ These policy changes have made our city less safe, despite the objections of my administration and our public safety partners,” said Bowser in a statement to DCist/WAMU.

‘The mayor’s the problem here’

While timing may have played a role, Mendelson says the more significant wound to the revised criminal code was that D.C.’s elected leadership itself was divided on the merits of the measure.

While the council unanimously approved the bill on two separate votes, lawmakers say Bowser caught them by surprise in January of this year when she vetoed it. The council was quick to override her veto on a 12-1 vote, but the veto became grist not only for congressional Republicans, but also Biden himself, who cited it in his March tweet, in which he said he would not stand in the way of Congress blocking the revised criminal code.

Bowser says her objections to the bill were well documented and communicated to the council, but the veto still rankled lawmakers and advocates alike. Mendelson says it fueled Republican talking points and put advocates of the revised criminal code on the defensive, especially on the provisions that attracted most controversy: the decrease in maximum penalties for some offenses. (Bowser also raised concerns with a provision to reinstate the right to a jury trial for people charged with misdemeanors. Forty-one states guarantee that right whenever any jail time is possible.)

“It’s factually wrong to say that a bill that deals with sentencing and doesn’t become effective for two years actually undermines public safety today. It’s just not true, but it’s a great headline. It was irresponsible,” said Mendelson of Bowser’s comments on the revised code. “The idea that sentencing has a deterrent effect on crime is just not supported by the research, and yet that’s the game she’s been playing.”

“The mayor’s the biggest problem here,” added Mendelson.

Attorneys and advocates involved in the years-long process to rewrite the criminal code were additionally stung by Bowser’s late objections to the proposal, largely because they say her administration largely chose not to take part in the debates and drafting — even though they were a member of the advisory group (composed of law professors, the U.S. Attorney for D.C., the Public Defender Service for D.C., and D.C. Attorney General) that considered any and all proposed changes to the code. The advisory group first met in late 2016, and met regularly through March 2021 when the draft bill was handed to the council.

“This failure falls squarely at the feet of the mayor, who despite funding the Criminal Code Reform Commission, year after year, failed to engage with its process,” said the Public Defender Service in a statement provided to DCist/WAMU. “As other members of the advisory group submitted hundreds of pages of comments, the mayor’s office failed to even attend commission meetings. The mayor raised her objections to the [Revised Criminal Code] at the last possible moment and created a misleading narrative about criminal penalties instead of using the three years before the start of the RCC’s staggered implementation to work to amend the law. As a result, the District has been set back in its efforts to fix what many experts consider one of the worst criminal codes in the country.”

During her recent appearance on “The Politics Hour,” Bowser said her administration only has a non-voting seat on the advisory group. The U.S. Attorney for D.C., which did participate extensively in the advisory group, declined to comment for this story.

Council sources say that some concerns raised by the U.S. Attorney for D.C. were addressed before the council voted on the revised criminal code, as were some issues Bowser pointed out. The council delayed the full implementation of the new code until October 2025, increased some penalties, and slowed implementation of the proposed reinstatement of jury trials for people charged with misdemeanors to give the city’s courts time to prepare.

But her decision to veto still caught many lawmakers off guard — especially since Bowser said she agreed with 95% of the proposed revisions — and prompted frustration that she was trying to derail a years-long effort her administration had not fully engaged in. Additionally, while the revised code was making its way through the council, two of Bowser’s key aides — her deputy mayor for public safety and director of her Office of Legislative and Policy Affairs — were both absent, the former having been charged with assault in Virginia and the latter having been fired over ethical concerns.

Democrats in disarray

Once the council’s bill was sent to Congress in January, many lawmakers and advocates assumed Bowser would set aside her disagreements with the measure and argue, as she had many times before, that local matters should be decided by local officials without congressional interference. In 2017, for example, Bowser joined a rally on Capitol Hill opposing a Republican move to block a D.C. bill that legalized physician assisted suicide — a bill Bowser herself had had concerns with.

But although Bowser had pushed more aggressively than any of her predecessors to make D.C. a state, critics say she remained far more muted than the council or Attorney General Brian Schwalb in demanding that Congress not block the revised criminal code.

While Bowser did ultimately say that Congress should “never interfere” in D.C.’s local affairs and wrote a letter to the Senate asking them to reject the GOP effort, sources tell DCist/WAMU that her administration did little else to marshal the forces of Democrats in Congress to fight the Republican plan to block the bill.

“It is not up to the mayor to lobby for something she doesn’t believe in,” a source additionally told Axios.

But a source close to Bowser says that it wasn’t that her administration didn’t try and fight the interference, but rather that Republicans moved faster than D.C. could respond. “It was like a moving train. We’d meet and say, ‘This is what we’re going to do,’ and it was too late. The ground shifted so fast,” said the source. Additionally, they added, Bowser introduced a bill to increase some penalties in the revised code, a last-minute attempt to show Congress that D.C. was handling the issue.

“My objection to congressional interference has been made plain — in pressers, news articles, and letters. I also made clear what changes needed to be made to the bill, which in my view would have given the Democrats something to work with despite the problematic bill,” said Bowser in her statement to DCist/WAMU.

On the council side, Mendelson says that lawmakers and advocates were left struggling to articulate their own message to Democrats on Capitol Hill about what the revised criminal code actually did and why they should stand up for it. (“The messaging got out of our control,” said Mendelson last week.) But he says that he thinks the more significant damage came from Bowser.

“The mayor would not convey to the House that she did not want the override. This made it very difficult for us to be able to argue more persuasively that the Democrats needed to hold together,” he said. “The mayor, even to this day, has been unable to say, simply, ‘I oppose the override.’ She has to criticize the bill.”

The perception of Bowser’s muted defense of the city’s ability to govern itself has rankled lawmakers and advocates. “Supporting statehood and autonomy is not a sometimes, a maybe, an only-when-you-agree,” said Allen. “It’s every day.”

Another council source was more direct in their criticism of the mayor: “Democracy did not go the mayor’s way. That should have been the end of the discussion. You win some, you lose some, but you have to go with the process. But she couldn’t let this go,” they said.

Bowser, though, tells DCist/WAMU that she’s “not interested in fighting councilmembers, but fighting the crime that plagues too many D.C. neighborhoods.”

The disarray wasn’t only evident locally, but also amongst Democrats in Congress and in the White House.

Ahead of the February House of Representatives vote to block the revised criminal code, the White House issued a formal Statement of Administration Policy against the GOP effort, saying that “taxation without representation and denial of self-governance [in D.C.] is an affront to the democratic values on which our nation was founded.” While it did not explicitly include a veto pledge, Democrats in Congress saw the statement as an indication that Biden would be the ultimate backstop for the city if Congress did block the revised criminal code bill.

In early March, however, Biden explicitly said that wasn’t the case — he agreed with the congressional push to block the revised criminal code. His position only prompted confusion and frustration, largely because Biden said he supported statehood while saying he wouldn’t step in to protect the city’s right to govern itself.

“The president is making a principled statement that he supports a city self-governing, and then he’s trying to overturn their governing?” asked a reporter at a White House press briefing the day of Biden’s statement.

“Those two things could exist at the same time, right?” responded Press Secretary Karine Jean-Pierre.

D.C. officials and advocates didn’t think so, and neither did a spokesman for Sen. John Fetterman (D-Pennsylvania), who accused the White House of “blindsiding [Democrats] with a bait and switch.” But the damage was done: word started circulating that Biden’s statement had given Senate Democrats the opening to join Republicans in blocking D.C.’s bill, even as most of the Democrats who eventually did had also signed on to a bill to make D.C. the 51st state.

Still, Shadow Senator Michael Brown also thinks that D.C. lawmakers are somewhat at fault for putting congressional Democrats in the uncomfortable position of having to even discuss the city’s revised criminal code at a time when Republicans made it clear that crime was a political issue. “We lost 33 United States senators,” he said. “Every damn one of them is on our statehood bill.”

The politics of ‘soft on crime’

All of the local and congressional machinations around D.C.’s revised criminal code came amidst the broader political reality that Republicans’ message that the bill was “soft on crime” was simply more timely and effective than what little city lawmakers, advocates, and a smattering of congressional Democrats could muster in response.

With crime is up in many parts of the country since the COVID-19 pandemic hit, Republicans have made their “law and order” pitch a mainstay of their political campaigns. And that some crimes have increased in D.C. in recent years — including homicides and carjackings, though overall violent crime is down — only gave Republicans more fuel to declare that D.C.’s revised criminal code would imperil residents and visitors alike.

During the Senate debate last week, more than a dozen Republicans spoke against the revised criminal code, describing D.C. as lawless and run by criminals, and pointing derisively at provisions that would decrease maximum penalties for crimes like carjacking.

“In the midst of ongoing crime, the D.C. Council thought that now was an appropriate time to rewrite the criminal code,” said Sen. Shelley Moore Capito (R-West Virginia). “Instead of enforcing law and order… and supporting our police officers and making residents and visitors of the District feel safe, the D.C. Council found it fitting to lessen the punishment for violent criminal offenses — hard to believe, isn’t it? — and embolden those who dare to break the law instead of heeding local calls for increased safety and policing from their residents. It really doesn’t get any more tone-deaf than that.”

The bill would have dropped the maximum penalty for armed carjacking from 40 to 24 years. Proponents said that was above the average sentence of 15 years that D.C. judges were handing out for the crime, and also more than what many states have on the books, including Georgia, Kansas, North Dakota, and Kentucky. (In briefings with congressional staffers, proponents of the revised code handed out a document comparing the proposed penalties in the new code to what states charge for the same offenses.)

There was also broader misinformation and disinformation about the revised code.  In a TV interview, Speaker of the House Kevin McCarthy falsely said the D.C. bill would decriminalize carjacking. And during the Senate debate, Sen. Bill Hagerty (R-Tennessee) said things had “gotten so bad” that the city had started giving out free steering wheel locks to owners of frequently stolen cars. He wasn’t wrong, but he didn’t mention that police departments across the country —including in his own state — have done the same to stem to tide of social media-fueled thefts of Hyundai and Kia cars that lack a specific anti-theft mechanism.

It was only late in the four-hour Senate debate that the only Democrats to defend D.C.’s bill rose to speak. They pointed out that the changes in the revised code wouldn’t take effect until late 2025, that many penalties were actually increasing, and that even the new lower penalties for some offenses were stiffer than they are in many states represented by Republicans who voted to block the revised code.

“D.C.’s criminal code [bill] actually modernizes and creates new categories of offenses that aren’t currently crimes. It creates new offenses for negligent homicide. It creates new offenses for reckless endangerment with a firearm. It creates new offenses by expanding liability for sexual assault, including for the sexual abuse of a minor. It expands liability for the possession of sexual images of children,” said Sen. Cory Booker (D-New Jersey).

“This is a city that came together and said, ‘We want to protect our children. We want to protect sexual assault victims. We want to better protect our police officers. We want to better protect people from murder.’ But no. This body now, in a rush of politics, is going to prevent a city from protecting itself,” he added.

The details almost didn’t matter — the question was simply whether you were “soft on crime” or not. And it wouldn’t be the first time that question tanked an effort to revise a criminal code: In 2018, a push to modernize Delaware’s code died after the state’s attorney general objected to provisions that lowered certain maximum penalties and eliminated many mandatory minimum sentences.

“It’s disappointing and misleading how this bill has been called soft on crime,” said Jinwoo Park, the director of the D.C. Criminal Code Reform Commission. “If this is soft on crime, then almost every place in the country is soft on crime.”

‘They will control the narrative’

Now that Congress has successfully blocked D.C.’s revised criminal code, many people involved in the years-long process are asking, “What next?” For now, there’s no clear answer.

Mendelson concedes that a pause may be necessary to consider how best to approach revising the criminal code, which everyone from prosecutors to defense attorneys say is necessary. But he still doesn’t know what that approach would be: Divide up the package into smaller pieces that may be less objectionable in Congress? Wait for Democrats to eventually reclaim the House? Merely leave the existing penalties in place, even though critics say they’re not currently proportionate or logical?

Councilmember Brooke Pinto (D-Ward 2), who took over the judiciary committee in January, says she’s still trying to determine the best path forward.

“I continue to believe that a modernized criminal code is important to promoting public safety and ensuring the effective operation of our criminal justice system. I am working with stakeholders, including the mayor, my council colleagues, and Congresswoman Norton to determine a plan for moving forward that accomplishes our goals while recognizing the reality of the political situation we are in. I believe pausing to assess the situation and craft a long-term strategy with allies is in our best interest,” she wrote in an email.

Pinto says she will focus on other criminal justice issues, like addressing gun violence in D.C. And Bowser has said she will introduce her own package of proposed public safety measures in the coming weeks.

But for the attorneys who spent years toiling in virtual anonymity to review the city’s century-old code and draft a more modern one, the impact of the congressional effort to block the revised code could have a broader chilling effect on any push for criminal justice reforms, including in other states that have old criminal codes that still need to be updated.

“I think the [Revised Criminal Code Act] is best understood as an achievement of modern technocratic governance. And that’s why it’s so disheartening how Democrats have dealt with this,” said Michael Serota, an associate law professor at Loyola Law School and a former staff attorney on the D.C. commission that spearheaded the effort to revise the code. “The RCCA was developed by an agency that was expert-driven, evidence-focused, deliberative, and involved key stakeholders, including both of the District’s prosecutorial agencies and its public defender. As far as the creation of criminal policy is concerned, the D.C. Criminal Code Reform Commission’s process is a gold standard.”

Richard Schmechel, another attorney who worked on revising D.C.’s code for a decade and ultimately led the D.C. Criminal Code Reform Commission until last year, worries that political fights over criminal justice gloss over what are actually complex issues that need to be resolved — something that isn’t easy.

“The question is, what is ‘hard on crime’? What is the right [sentence]? What’s your argument for it? And that’s really hard,” he said. “It’s always easier to say, ‘It’s too soft [on crime],’ than to say what’s appropriate.”

And that, say some D.C. lawmakers and advocates, is why anything they propose to Republicans in Congress isn’t likely to fly. It’s not about whether something has been well-researched or makes sense, but rather whether it aligns with the politics of being perceived as being “soft on crime.”

“They will control the narrative and they will make extreme something that isn’t,” said Councilmember Janeese Lewis George (D-Ward 4), a former prosecutor for the city’s attorney general. “I don’t see any parts of the legislation, no matter how many changes we make, being acceptable to a Republican Congress, and I don’t know how to get Democrats to not give in to fear-mongering.”

In an interview with The Washington Post this week, Rep. Andrew Clyde (R-Georgia), who spearheaded the House effort to block D.C.’s revised criminal code, demurred on whether any revisions made by city lawmakers would be acceptable to him and the GOP. “I don’t know that it needs reform right now — you know, I don’t know that it does or doesn’t,” he said. (Clyde has also moved on to his next target: a D.C. police reform bill.)

For Park, the path forward on the sweeping legislative project is murky. He says is still trying to wrap his head around the way a bill so long in the making was so quickly undone in Congress.

“I was in third or fourth grade the last time Congress passed a disapproval resolution,” he said. “Given all the provisions in the bill are similar to the rest of the country, it’s a surprise it came to this.”