Inside The Fight To Update DC's Criminal Code

By Katie Buehler | February 24, 2023, 7:02 PM EST ·

police chief Robert Contee II and Mayor Muriel Bowser

D.C. Police Chief Robert Contee II and Mayor Muriel Bowser have opposed portions of a wholly revised criminal code passed to replace the district's current set of criminal statutes dating back more than a century. (Amanda Andrade-Rhoades/For The Washington Post via Getty Images)

Under the District of Columbia's current criminal code, a set of statutory provisions cobbled together over 122 years, courts are left to define what constitutes offenses such as simple assault, and defendants face up to twice as much prison time for threatening to damage someone's property as for actually doing it.

The code has been described as an unclear jumble of provisions enacted by local and federal lawmakers since 1901, but a group of lawyers, scholars and other experts have been toiling for a decade and a half on a wholesale upgrade. The reforms, known as the Revised Criminal Code Act of 2022, are to go into effect in October 2025 and provide definitions and elements of each crime, update sentencing guidelines and generally modernize the code.

But Republicans in Congress — which holds ultimate legislative authority over the district — are casting the measure as a radical piece of legislation that would embolden criminals by eliminating mandatory minimum sentences and reducing sentencing guidelines for certain violent crimes.

The Republican-led U.S. House voted earlier this month 250-173 to block the code from taking effect. The issue is now up for consideration in the Democratic-controlled Senate.

The D.C. Council, Mayor Muriel Bowser and Attorney General Brian Schwalb have all urged the Senate to vote against attempts to block the revised code from taking effect, and President Joe Biden has denounced the vote and suggested he would veto any legislation that reaches his desk.

Supporters of the revised code say the criticism is misguided and focuses only on a handful of provisions while ignoring the other 95% of the code everyone agrees should take effect.

"It's disappointing," said Jinwoo Park, executive director of the Criminal Code Reform Commission, the group responsible for developing the revised code. "Everyone agrees that this modernization is a huge improvement and sorely needed. The consensus is where the real meat of the bill is, but all the discussion has been focused on maybe four lines. The real important aspects of it are getting brushed to the side."

Park said he understands why people may object to new sentencing guidelines that, for example, reduce the penalty for first-degree murder from a range of 30 years to life in prison without parole down to 24 to 40 years, plus penalty enhancements.

But, he said, the changes make sense in context because they are based on the typical sentences handed down by D.C. Superior Court judges over the past 10 years to defendants convicted of current equivalents to the newly defined crimes.

Penalties for other crimes have actually been increased in the revised code, Park said.

Patrice Sulton, who served as a senior attorney adviser on the reform commission, said those who claim the revised code will harm public safety are "fear-mongering."

"This is something the district should have done, at minimum, 50 years ago," she said. "It's hard for me to see this characterized as some radical justice reform. This is the floor."

Revising a Century-Old Code

D.C.'s government established the Criminal Code Reform Commission, or CCRC, in 2016 to continue a top-to-bottom revision of the district's criminal statutes first started a decade earlier by a predecessor group.

The commission comprised a team of attorneys overseen by an advisory panel composed of two law professors and one representative each from the D.C. Public Defender Service, the U.S. attorney's office in D.C., which prosecutes adult felony and most misdemeanor cases in the district, and the D.C. Attorney General's Office, which prosecutes mostly juvenile crime.

Revising the code one offense at a time, Park said, proved to be an "incredibly meticulous and incredibly time-consuming process" given that the current code includes almost no language defining the elements of individual crimes and instead relies heavily on court decisions.

For example, while the current code states that "whoever unlawfully assaults, or threatens another in a menacing manner" commits simple assault, it doesn't explain what specific actions that includes. The code's vagueness meant it took a December 2022 decision by the full D.C. Court of Appeals to add offensive touching — including poking and shoving — to the list of actions that could warrant an assault charge.

Such rulings, along with a review of the American Legal Institute's Model Penal Code and criminal codes from other states, helped the commission define assault in the revised code as recklessly causing bodily injury to another, and establish four levels distinguished by the amount of harm done to the victim.

Along with clearly defining crimes, the CCRC aimed to make all crimes and punishments proportional.

Under the current code, someone who threatens to damage someone's property faces up to 20 years in prison, while actually damaging property valued at $1,000 or more faces only up to 10 years of imprisonment, and up to six months if the property is valued at less than that.

The revised code makes a threat to damage property a third-degree criminal threat, punishable by up to two months in prison, and sentences for actual property damage range from two months to eight years depending on the dollar amount of the damage.

Other offenses, like the existing misdemeanor sexual abuse charge, are upgraded to felonies to allow for longer sentences. The offense is currently punishable by up to six months imprisonment; the revised code increases the possible punishment to two years in prison.

The revised code also creates new offenses and adds new elements to existing ones.

The new endangerment with a firearm offense makes it illegal for someone to fire a gun in public even if no one gets hurt, and is punishable by up to two years in prison. Ghost guns — guns without serial numbers that are notoriously untraceable — have been added to the list of prohibited weapons, with possession drawing up to four years in prison.

The revised code also eliminates almost all minimum mandatory sentences, includes a jury trial requirement for nearly all misdemeanors, and expands eligibility for the district's early release program. It doesn't change drug-related or traffic offenses.

In March 2021, the CCRC's advisory group unanimously agreed to send the revised code to D.C. Council.

Donald Braman, a George Washington University Law School professor who served on the commission's advisory group, said while he and his colleagues all had additional tweaks they would've liked to make, the general sense was that the revised code was a good one.

"For the first time, it actually reveals what the law is in plain language and what the penalties are in plain language," he said.

After public hearings and subsequent adjustments to the code over the course of 2021, the council approved the bill in November 2022.

Mayor Bowser vetoed the revised code in early January, saying sentencing guidelines were too lenient and the implementation timeline unrealistic, but the D.C. Council unanimously overrode the veto 13 days later.

Bowser, whose office didn't respond to Law360's interview requests, urged the council in a letter posted on Twitter following her veto to split up the bill so most of the changes could go into effect while the areas of concern are debated.

"I support modernizing and standardizing the district's criminal code," Bowser wrote. "However, given the broad scope of legislation, and remaining divisions of the criminal justice community, I urge the council to take more time to consider it, a sentiment I have heard echoed in the community."

Bowser has already proposed changes through the Revised Criminal Code Amendment Act of 2023, including increasing penalties for robbery and the most common form of carjacking — third-degree, or when non-life-threatening injuries occur — which is currently punishable by up to 21 years but under the revised code comes with a maximum penalty of four years without enhancements. The proposal also calls for repealing the misdemeanor jury trial requirement.

D.C. Ward 6 Councilmember Charles Allen, former chairman of the council's Committee on the Judiciary and Public Safety, said he and other council members are open to holding hearings on and debating suggested amendments like the mayor's before the code takes effect. The revised code, he said, isn't set in stone.

New Sentencing Guidelines

Criticisms of the revised code have focused in particular on the new sentencing guidelines' lower maximum penalties and elimination of mandatory minimum sentences for all crimes except first-degree murder.

Even as the revised code discards mandatory minimums, it contains multiple possibilities for sentence enhancements in cases, for example, involving repeat offenders, hate crimes or violations of pretrial release. It also includes offense-specific enhancements.

Overall, the revised code's nine-level felony and five-level misdemeanor classification system lists a range of penalties from no imprisonment and a $250 fine for the lowest-level misdemeanor, such as public urination, to 45 years and a $1 million fine for the highest level felony, which includes acts of terrorism and enhanced first-degree murder.

Advocacy groups including The Sentencing Project and Families Against Mandatory Minimums have supported the changes, saying they will improve public safety and implement research-based approaches to crime and punishment. The American Civil Liberties Union of the District of Columbia and D.C.'s attorney general have championed the changes as long overdue.

But some claim, despite a steady 45% decrease in violent crime and 8% decrease in property crime since 2012, the district is having a crime crisis and the changes will make it worse. This year, violent crime in the district has dropped 15% compared to the same time last year but property crime is up 32%, according to reports published by the Metropolitan Police Department. The number of shootings, though, have been an average of 30% higher for each of the past three years compared to pre-COVID-19 pandemic levels. 

MPD Chief Robert Contee III, who declined an interview request from Law360, has called the new guidelines a "non-starter" because they lower some penalties and eliminate a five-year minimum mandatory sentence for committing a crime with a gun.

Park, however, said court data reviewed by the commission showed the gun enhancement charge was often dismissed or didn't result in convictions. He added the revised code allows charges to be stacked to increase the length of a possible sentence — currently an uncommon practice — including with a number of weapons-related offenses that have been upgraded to felonies.

Contee has also said that shorter jail sentences would harm victims, but at least one victim advocacy group sees it differently.

Naida Henao of the Network for Victim Recovery of DC countered that the elimination of mandatory minimums would free judges to issue sentences in line with how individual victims view justice, instead of being hamstrung by the law.

"Everyone assumes harsh penalties are what victims are going to want," Henao said. "But they all are so unique and want different things."

Misdemeanor Jury Trial Requirement

Some have also objected to the revised code's mandate that nearly all misdemeanor cases be tried by a jury, arguing this would overburden the district's already strained court system.

Under the current code, jury trials are only required for defendants facing over six months imprisonment or a fine over $1,000. Otherwise, cases are resolved through bench trials.

The revised code would extend the right to a jury trial to defendants facing any imprisonment or a fine more than $250, or in cases that would result in deportation.

Only the lowest class of misdemeanors — offenses like second-degree public nuisance, public urination, and fourth-degree parental kidnapping, in which a relative detains a child to prevent a custodian from exercising their rights — wouldn't require a jury trial under the new rule.

But as the court system prepares for the mandate, which is to be implemented in three phases through 2030, it will have 10 vacancies on its 62-seat bench by the end of February, with more departures expected this year. Filling vacancies, meanwhile, requires congressional approval, a process that took an average of more than nine months for the latest group of confirmed judges.

While the courts have taken no official position on the revised code, D.C. Superior Court Chief Judge Anita Josey-Herring and D.C. Court of Appeals Chief Judge Anna Blackburne-Rigsby have expressed concern over the adequacy of their resources to handle the increase in trials.

"Thrusting additional legislative mandates on the court at this time, without appropriate resources, is neither feasible nor advisable," the chief judges wrote in a November letter to the D.C. Council.

The new rule would increase the number of annual misdemeanor jury trails from an average of nine to more than 200 and require an additional 71,000 jury summonses, according to a separate letter Judge Josey-Herring sent to Mayor Bowser in November.

D.C. Police Union Chairman Greg Pemberton said the courthouse simply doesn't have enough courtrooms with jury boxes to handle that many trials. Judges, he noted, would also have to spend about a week trying each case instead of resolving several cases a day as they do with bench trials.

"While it sounds like something that adds due process, it actually kind of stymies the process because it's going to take so long to get to trial," he said.

Pemberton said he's also worried the jury trial requirement will lead overburdened prosecutors to decide not to pursue some misdemeanor charges altogether.

Representatives from the U.S. attorney's office declined to comment but have said publicly that there's been no analysis of how the mandate would affect the courts or prosecutorial resources.

Park said that the CCRC took such concerns into consideration as they drafted the revised code, and weighed them against expanding due process rights for defendants.

"It's a principled change," he said. "We recognize the inherent importance of jury trials. Even when you're facing only a few months in prison, that's still immensely disruptive to your life."

Expanded Eligibility for Early Release

Additionally, the revised code's detractors have contended an expansion of the district's early release program would allow violent criminals to go free and commit more crimes.

Under the new rule, any defendant who was 25 or older at the time of their crime would be allowed to petition for early release after 20 years in prison. Currently, only defendants who were younger than 25 at the time of their crime and have served 15 years in prison can file petitions.

According to a letter from the district's chief judges to the D.C. Council in November, about 1,200 current inmates would qualify for the program under the new rule, double the 600 inmates who qualify under the current rule.

K. Denise Rucker Krepp, a lawyer and former Advisory Neighborhood Commission member in D.C. who has urged Congress to block the revised code, vehemently opposes the expansion, especially when it comes to convicted rapists.

While advocates say the program recognizes that defendants can age out of crime and that rehabilitation and reentry are more favorable than long prison terms, Krepp argued the program ignores victims who never age out of their pain and suffering.

"Rape is an irreversible act of violence, and I'm frustrated that the D.C. Council put their fingers on the scales of justice and are tipping it toward the rapist," Krepp said.

Henao, of the Network for Victim Recovery, pointed out again that expanding the program would provide the same additional flexibility as the elimination of minimum mandatory sentences. Victims, she said, can change their minds about sentences they once advocated for.

Advisory group member Braman said the expansion was based on research showing violent crime arrest rates peak among people aged 18 to 24 and taper off as people age. Experts have also discovered serial offenders tend to only commit crime during a five- to 10-year period, which can be deterred by similar-length prison sentences.

"No rational person looking at all the empirical evidence on incarceration and recidivism or the racially disparate sentences imposed would oppose the provision," Braman said. "At some point, political point-taking and fear-mongering have to give way to reality."

--Editing by Brian Baresch.

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