In Washington DC, the law prohibits the playing of bandy and “shindy” in the streets, the arson of one’s own steamboat and potentially even being a “common scold” – a common law offense levied against those who quarreled with their neighbors.
Aware of the need to clean up this 120-year-old criminal code, lawyers in America’s capital city have spent more than a decade and a half going through the law books in a modernization campaign described by those involved as long overdue, only to see the effort stymied this week at the hands of Joe Biden and an unlikely alliance of Republicans and Democrats.
“Many residents are worried about taking their kids to school or going to the grocery store. But rather than attempt to fix this problem, the DC city council wants to go even easier on criminals,” Republican House speaker Kevin McCarthy said in February, when the chamber’s lawmakers approved a resolution blocking the city council’s passage of the new code.
Weeks later, Biden surprised his allies by announcing he would sign the House bill, and last Wednesday, the Senate passed it overwhelmingly – even though the president and many Democratic lawmakers support making Washington DC, the country’s only federal district, a full-fledged state.
That Republicans would meddle in Washington DC’s politics is no surprise: they have few friends among the leadership of the overwhelmingly Democratic city. But for Democrats, their willingness to go along with the GOP effort is a sign of just how nervous the party has become to accusations of being weak against crime, which played a role in their loss of the House in last November’s elections. Residents’ frustrations with violence are also seen as a reason why Democrat Lori Lightfoot failed in her bid for a second term as mayor of Chicago.
No city in America has political dynamics quite like Washington’s, where Congress has the power to overturn the city council’s will – which it did, for the first time in 30 years, over what local officials say was merely an update that would bring its criminal code in line with national standards.
“We are an easy mark,” said Charles Allen, a city councilman who chaired its judiciary committee as the body was considering the revisions. “We don’t have representation in Congress, we have no senators out there that are arguing for us. We don’t have any full members of Congress in the House.”
Sandwiched between Virginia and Maryland, Washington DC’s population of nearly 700,000 is greater than Vermont or Wyoming, but unlike those two states, the capital city’s only representation in Congress is a House delegate who can’t cast votes. The city government officially backs Washington DC becoming America’s 51st state, which Republicans universally oppose.
In 2006, the council started reviewing the city’s criminal laws, which date back to 1901, and sought out the thoughts of the public defenders office, local prosecutors and criminal justice reform advocates across the city. The outcome of the 16-year process was a new code that removed mandatory minimum sentences for nearly all crimes, aligned sentences with what judges were actually handing down, added new offenses and raised the potential penalties for others, while also stripping out common law penalties that lingered in the turn-of-the-century document.
But after the council unanimously passed the revised code last November, the city’s Democratic mayor Muriel Bowser announced she would veto it, citing its reduction in maximum sentences for gun offenses, among other issues. Republicans pounced after the council overrode her veto in January, and the following month, Biden unexpectedly signed on to the GOP effort.
“I support DC statehood and home-rule – but I don’t support some of the changes DC council put forward over the mayor’s objections – such as lowering penalties for carjackings,” the Democratic president tweeted.
Although police department data indicates overall crime in the city fell by about 4% last year, carjackings have jumped dramatically since the pandemic. Under the current code, armed carjackers could face jail sentences of between 15 and 40 years, but the new code sets the highest penalty at 24 years, in line with what judges were actually giving defendants and comparable to similar penalties nationwide, said Jinwoo Park, executive director of the DC Criminal Code Reform Commission.
“I do think this has been completely inaccurately and unfairly painted as some kind of bizarrely radical bill, when really it’s just not the case when you compare it to the norms across the country,” Park said.
Studies have repeatedly shown that long prison sentences don’t act as deterrents for criminals. And for Washington’s current batch of carjackers, the code’s revisions would not have made much difference: it was only supposed to come into effect in 2025.
“Every crime people are talking about, from yesterday to today to tomorrow, happens under our current criminal code,” said Allen.
There’s little evidence that message was received by Congress, particularly not by Republicans, who cast the code revision as consequence of left-wing government run amok – even though they held no hearings on the code before voting to overturn it.
“It seems to me that DC is trying to compete with other liberal-led cities to see just how woke they can be. So, just imagine if Congress didn’t have this authority and the DC council was left to its own devices, and this dangerous bill would’ve become law,” said Bill Hagerty, Tennessee’s Republican senator, after almost all the chamber’s Republicans and most Democrats voted for the disapproval resolution.
Yet the new code doesn’t address progressive concerns such as mass incarceration or racial equity, which Park said weren’t included in the commission’s mandate.
“There’s an enormous amount of compromise built into the bill,” said Patrice Sulton, executive director of the DC Justice Lab, which advocates for reforms of the city’s system of crime and punishment.
Local leaders scrambled to react to Congress’s renewed meddling in the city’s affairs, with city council president Phil Mendelson withdrawing the revised code from the legislature’s consideration, and Bowser proposing another round of revisions to the code.
“What’s important for this issue is to try to put Democrats in the light of being soft on crime,” Mendelson said as he announced his ill-fated attempt to stop the Senate from blocking the code. “But citizens don’t understand that because [of] the way this has been demagogued, and that’s the challenge we have to overcome.”
The GOP has signaled it’s not done yet: House Republicans now want to override a city council bill that would change, among other procedures, how the police department uses force.
While he believes there’s still momentum for reform in many cities nationwide, Nick Turner, president of the Vera Institute of Justice, warned that the episode in the capital underscores how rising crime presents a headwind to the calls for change in policing and punishment that George Floyd’s death sparked nearly three years ago.
Biden’s veto tells “opponents of good, evidence-based criminal justice policy that scare tactics work. And the risk is that what it signals to other responsible government leaders is that it will chill efforts to make sure that we have both safety and justice,” Turner warned.
To Sulton, the revised code’s downfall also represents a setback in the city’s desire to take full control of its affairs.
“Until we have a new code, we continue to live under laws that are vague, overlapping gaps in law, and just a penal code that the district didn’t make itself,” she said. “And I don’t think you can talk about local control if we don’t have control over our most fundamental freedoms. And I can’t think of anywhere that the stakes are higher than when we’re talking about whether to put a person in a cage.”
