Is D.C. really reducing penalties for violent crimes? It's complicated.
Is D.C. really reducing penalties for violent crimes? It's complicated.
D.C. has been called lots of things, but "District of Crime?" That's the moniker Fox News recently used for D.C. in a recent segment on a sweeping overhaul of the city's criminal code passed by the D.C. Council late last year.
At the heart of the controversy that prompted the Fox zinger are claims the revised criminal code reduces penalties for violent crimes, and, as another segment stated, would "make life easier for criminals" in the city. The critiques haven't been limited to conservative media, though: Mayor Muriel Bowser vetoed the overhaul and said it "sends the wrong message" as gun-related crimes have increased, and some Republican members of Congress have started talking about trying to overturn the bill altogether.
But does the revision of the criminal code do the worst of what its critics claim? Will it make D.C. the "District of Crime," reviving the city's early-90s reputation as the nation's "murder capital"? As with most things, it's complicated, but we've tried to wade through the noise to understand what will, and what won't, be happening with penalties for violent offenses.
Why revise D.C.'s criminal code, and why now?
In short, it was showing its age. The city's criminal code was originally written in 1901 and has been updated only in a piecemeal fashion since. On the silly end of things, that meant D.C.'s criminal laws still reference steamboats, prohibit the playing of ball games in the street (specifically bandy and shinty, British variations of hockey), and require that livestock being transported through the city be given at least five hours of "rest, water, and feeding" if confined in a railroad car for more than 24 hours.
On the more serious side, an old criminal code meant specific penalties were poorly defined, often making it harder for prosecutors to charge and pursue cases, and forcing them to rely on judges to figure out how to apply specific laws. Additionally, there weren't clear gradations of offenses to match the severity of a crime and allow for harsher penalties. Lawmakers did make changes to the code along the way, but that they were done in bits and pieces means there can be a lack of logic and proportionality in penalties for some offenses.
Many states went through the process of modernizing their own codes decades ago; D.C. started the ball rolling back in 2006, and later created a stand-alone Criminal Code Reform Commission to lead the process. The commission had an advisory board which included the U.S. Attorney for D.C., Public Defender Service, D.C. Attorney General, two law professors appointed by the D.C. Council, and a representative from Bowser's office.
The council twice passed the revision of the code last year, and earlier this month voted to override Bowser's veto. The bill next heads to Congress for a 60-day review; Bowser has already said she will propose changes to some of the new penalties that were included in the overhaul the council approved.
So, are penalties for violent offenses being reduced?
If you do an apples-to-apples comparisons of the current criminal code and the revised criminal code (which, unless something gets in the way, takes effect in Oct. 2025), then yes, some penalties for a range of crimes will be reduced.
Let's take carjacking, an offense that spiked dramatically in recent years in D.C. and other parts of the country, and which is drawing plenty of concern among residents and grabbing a lot of media attention.
Under current law, unarmed carjacking has a mandatory minimum sentence of seven years and maximum sentence of 21. If armed, that jumps to 15 and 40, respectively. (For context, that 40-year maximum is double the current maximum for second-degree sexual abuse.) Under the revised code, carjacking is divided into three gradations depending on severity, with the lowest penalties for an unarmed offense running from four to 18 years and the highest penalties for an armed offense ranging from 12 to 24 years.
So yes, penalties for carjacking have indeed been reduced. But...
"You have to look at not just penalties on paper, but you have to look at the penalties in practice," says Jinwoo Park, the current executive director of the Criminal Code Reform Commission, which he joined almost a decade ago as an attorney-adviser to the whole process.
Park says that in many cases with violent crimes in D.C., the difference between the maximum sentence that can be meted out and the actual sentences that are handed down are significant. To better understand this, the commission looked at a decade's worth of sentencing data from D.C. Superior Court for pretty much every criminal offense charged — and in many cases, carjacking included, found that actual sentencing was below the maximums allowed by law.
For carjacking, the D.C. Sentencing Commission compiled all the sentences handed down from 2016 to 2020. It found an average sentence for unarmed carjacking of 7.25 years and 15 years for armed carjacking.
It's much the same with robbery. While the highest penalty someone could face for an armed robbery today is 45 years, the highest sentences handed down by judges are closer to 18 years. Consequently, the revised code sets the new penalty for armed robbery at 20 years. (The new code also breaks down robbery into various degrees based on the severity of the offense and whether there was violence; the current code treats all robberies essentially the same.)
"Even if it's true that the max for carjacking has fallen on paper, it's still higher than almost every sentence that we see," says Park. "In virtually every case [of a violent offense], the new max that we provided is as high or higher than even the highest range of sentences that we see."
In a newsletter this week, Councilmember Brooke Pinto (D-Ward 2), who chairs the council's judiciary committee, decried the "misinformation and confusion" about the new penalties coming from both Fox News and Republicans. "For robberies, burglaries, and carjackings, over 97.5% of sentences judges are currently giving out are less than the maximum allowable penalty outlined in the revised criminal code. What will change is that the law will be easier to understand for everyone involved in the justice system – making our system run more efficiently and effectively," she wrote.
Still, Bowser isn't satisfied with this argument. Speaking earlier this month on WAMU 88.5's "The Politics Hour," Bowser addressed the general thrust of Park's explanation about why penalties on paper are being reduced. "If the penalty is high and the usual sentences are somewhat lower, if you take it down then doesn't it stand to reason that the sentences go even lower? Yes it does," she said.
Additionally, Matt Graves, the U.S. Attorney for D.C. (the office which prosecutes violent crimes committed by adults), told the council in a letter late last year that maximum sentences shouldn't be based on the average of what judges are handing down, but rather should stem from "the community and legislature's belief as to what the sentence should be for committing the worst possible version of that offense."
The Public Defender Service, on the other hand, argued that high maximum sentences often have a different purpose: as a tool prosecutors can wield to push people into agreeing to plea deals based on the fear that they may get that top penalty if they go to trial.
Additional charges and sentence enhancements
Park and other advocates for the overhaul say that there's another factor to consider: how charges could be "stacked" on top of each other, which would increase possible penalties, and specific penalty enhancements that were written into the revised code.
"There's entire separate offenses that can often come into play in a lot of cases, especially involving weapons. We have an array of weapons offenses that apply that can all be brought and convicted in addition to the carjacking, the robbery, whatever it is," says Park, noting that the revised code includes newly rewritten offenses that can be stacked on top of an initial offense.
Additionally, many of the new penalties include enhancements, which effectively add years to a prison sentence if, for example, a gun is used or a "protected person" is the victim, meaning anyone under 18 or over 65, a vulnerable adult, police officer or other government worker, etc.
"There's really egregious cases where you're going to be able to stack offenses and enhancements and get decades and decades and an effective life sentence, or at least very close to it, under the [revised criminal code]," he says.
Critics like Graves worry that judges will just run multiple sentences concurrently, thus negating any value of stacking charges on top of each other. But the commission notes that prosecutors can request sentences to run consecutively, so a penalty for a second offense would only kick in once the penalty for the first offense has been completed.
Advocates of the revised code also say it includes new offenses not currently in law, including gun-related offenses (shooting a gun into the air, for example) and increased penalty for a range of sex offenses.
Mandatory minimum and life sentences
In another related change, the commission recommended and the council agreed to eliminate mandatory minimum sentences — which set a floor for how much time someone has to spend in prison for a particular offense — for everything but first-degree murder, which will be set at 24 years. That's down from the current mandatory minimum of 30 years. (Nationally, the mandatory minimum sentences for first-degree murder range from five years in Texas to 10 years in Arkansas to 25 years in California to life in Maryland.)
Critics of mandatory minimum sentences say they force judges to impose one-size-fits-all sentences that do not factor in particular circumstances of a crime or offender; they also point to research showing that mandatory minimums are racially discriminatory and helped fuel the increase in the country's prison population. (U.S. Attorney General Merrick Garland recently ordered federal prosecutors to limit their use of certain drug charges that had mandatory minimum sentences attached.)
"Mandatory minimum sentences serve essentially one purpose: to transfer power from judges to prosecutors. Mandatory minimums force judges to impose the sentence that reflects the criminal charge picked by the [prosecutor]. Mandatory minimums prevent judges from looking at an individual's personal circumstances, the role that the individual played in the offense, their post-offense conduct, or the myriad of factors that judges should consider when imposing a sentence that will forever alter the individual's life and the lives of their family members," wrote the Public Defender Service of the District of Columbia in a letter to the D.C. Council late last year.
But the office of the U.S. Attorney for D.C. recommended keeping the 30-year minimum. "A minimum sentence of 30 years for premeditated first degree murder appropriately signals society's abiding belief in the inherent value of human life and should be maintained," the office wrote in response on the commission's recommendations. The D.C. Police Union, for its part, said that without mandatory minimum sentences, "lenient judges [will] issue slap-on-the-wrist penalties, even for repeat offenders."
The U.S. Attorney also opposed the decision to decrease the penalty for first-degree murder to 40 or 45 years (depending on aggravating circumstances) — it's currently 30 years to life — saying that people who commit homicide are more likely to kill again. In its report outlining the overhaul of the criminal code, though, the council argued that research shows extreme penalties can have a limited deterrence effect, that people age-out of crime after a certain point, and that 45 years in prison is thought to approximate an actual life sentence once you factor in life expectancy for those in prison.
Do harsher penalties deter people from committing crimes?
In all of the debate that has emerged around D.C.'s revised criminal code, even critics say they agree with 95% of what was approved. But the remaining 5% includes what sentences are appropriate for specific crimes, an issue that is hotly fought over in criminal justice debates across the country.
While more progressive criminal-justice reformers broadly say that sentences in the U.S. are overly harsh, punitive, and haven't been shown to actually deter crime, some prosecutors and politicians believe stiffer sentences can offer appropriate justice to victims while also sending a message to people who might engage in crime.
That was the point Bowser made when she vetoed the revised criminal code, arguing the penalty reductions in the midst of a spike in carjackings and gun violence send the "wrong message." U.S. Attorney for D.C. Matthew Graves made a related point in his letter to the council late last year about the revised code.
"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 for that crime and to ensure that a person who is a danger to the community is incarcerated for an appropriate length of time."
Critics counter that the current increase in homicides and gun violence D.C. is seeing comes under the longstanding and harsh penalties written into the current criminal code, and those penalties will remain on the books until late 2025. Additionally, they argue that D.C. already heavily relies on incarceration. They also challenge the idea that the revised criminal code was some type of wishlist of their priorities.
"There wasn't a mandate to decarcerate en masse. There wasn't a mandate to write something that was perfectly racially equitable. This was really about the logic, the functionality, and the overall fairness of the code from the perspective of as many stakeholders as possible," said Patrice Sulton, executive director of the D.C. Justice Lab, which promotes criminal justice reform, and a former advisor to the commission, during a discussion on the changes last December.
What's next for the new criminal code
The timing of the debate over the changes to the criminal code comes as concerns around public safety have been high across D.C. Speaking recently, Bowser said she feels more anxiety now than she did in the 1990s, when there were more than twice as many homicides in some years; former D.C. Attorney General Karl Racine similarly said in a recent interview that he doesn't let his partner get gas for their car.
But the tenor and outcome of the discussions in the council are significantly different than they were in years past, when local lawmakers responded to concerns about crime by ratcheting up penalties. In the early 1980s, D.C. voters approved a ballot initiative spearheaded by a councilmember that imposed mandatory minimum sentences on a number of gun and drug offenses. A decade later, a rash of carjackings prompted the D.C. Council to dramatically increase penalties; those penalties remain on the books today. But when the council voted to override Bowser's veto, they did so on a 12-1 vote, with multiple lawmakers choosing to criticize what they called "fear-mongering" around the changes to the criminal code.
On Capitol Hill, though, Republicans have criticized D.C. officials for the increases in crime since the pandemic started, saying the city's push to "defund the police" are to blame. And this focus on crime isn't new: in the early 1990s, the murder of a congressional aide led Congress to order the city to hold a referendum on whether the death penalty should be used for murder offenses. (Residents voted it down.)
Park, the executive director of the Criminal Code Reform Commission, understands that the public's current feeling about crime and punishment now could fuel calls for changes to the revised code, which as noted earlier has been in the works for more than a decade. But he says he hopes cooler heads prevail.
"To some degree the penalty changes or non-changes that are being implemented, it's an easy target to go after," he says. "You know, changing the law so that a person can be locked up for 30 years instead of 40 years for carjacking, it's not going to change the rate of carjackings. We're not criminologists, but we spoke with criminologists and they're all in agreement that changes at that level are not going to change the rate of robberies, carjackings, etc."
For now, both Bowser and Pinto have said they will introduce specific suggestions for changes to some penalties for violent offenses, primarily those involving guns. And they have time: the revised criminal code doesn't take effect until late 2025.
This story originally appeared on dcist.com.
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