After months of great stuff from President Joe Biden, this kind of misstep is annoying as hell. He’s reversing course from a promised veto of legislation overturning of a new criminal code adopted by the District of Columbia.
The background: After years of work, last fall the D.C. Council passed a new criminal code, the first major overhaul of the code since 1901. It eliminates most mandatory minimum sentences, reduces the maximum penalties for some felonies, and allows for jury trial in misdemeanor cases. It would go into effect in 2025, if Congress and Biden don’t stop it.
Congress remains in control of what happens in D.C. because D.C. is not a state. The D.C. Home Rule Act passed in 1973 gives Congress the right to deny home rule to the city when it feels like it. The revising of the city’s ancient criminal was a 16-year, exhaustive process to “modernize the law by defining elements of each crime, eliminating overlap between offenses, establishing proportionate penalties, and removing archaic or unconstitutional provisions.”
It’s the product of the Criminal Code Reform Commission (CCRC), which was established in 2016 and included staff attorney and expert advisers including “representatives from the U.S. attorney’s office and the D.C. attorney general’s office, separate entities that prosecute all crimes and misdemeanors committed in the District.”
The bill overturning all that wasn’t supposed to even make it to the Senate floor. But 31 House Democrats didn’t bother to read the new code, the thousands of pages of reports backing up the changes, or talk to the city council or Mayor Muriel Bowser who has pleaded with Democrats to stop using her in this fight. They caved into the fear that they’d be painted as soft on crime and voted with Republicans, and now—with Biden’s support—it looks like some Senate Democrats are going to do the same.
Bowser had vetoed the new code, but was overridden. Democrats—and Biden—are using her opposition to the bill as their justification for ignoring Home Rule, over her objections. She asked Congress to allow her and the Council to work it out and revise the bill. “The insult of limited Home Rule is that the 700,000 DC residents and taxpaying Americans, and their duly elected officials, must endure the review and oversight of our laws by officials not elected to represent our interests or values,” Bowser wrote in a letter to Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell. “I call on all senators who share a commitment to the basic democratic principles of self-determination and local control to vote ‘NO’ on any disapproval resolutions involving duly elected laws of the District of Columbia.”
This is a slap in the face to D.C. and to the people who’ve worked for years to craft a new criminal code that is, in fact, not soft on crime. The part that’s left out when lawmakers point to the elimination of mandatory minimums and reduction in the maximum penalties is that it gives prosecutors and judges the ability to enhance penalties. Take the example of carjacking, since that’s the one Biden called out. Under the old code, the maximum sentence for armed carjacking is 40 years—that’s the same as second-degree murders. It’s twice the maximum for second-degree sexual assault. By contrast, in most jurisdiction the charge results in 15-year sentences.
The new code would let judges and prosecutors combine, or “stack” sentences for particularly egregious or violent crimes. “A felon who commits armed carjacking can be charged not only with armed carjacking but also with possession of a firearm by an unauthorized person and carrying a dangerous weapon,” Slate’s Mark Joseph Stern explains. “And their sentence can be enhanced due to the prior convictions. Under the new code, a carjacker’s sentence can easily stretch beyond 30 years.”
One of the attorneys who spent so much time developing this Revised Criminal Code is furious. Patrice Sulton told the Washington Post that Biden’s and Congress’s interference is “the most dramatic illustration of D.C. voter disenfranchisement seen in a long time” and warned senators that overturning it would be a “disservice” to crime victims.
Those would-be “tough-on-crime lawmakers from other states” would be voting to “continue to have one of the worst criminal codes in the United States,” she wrote. “They should understand that the offense definitions and penalties in our current code—the code they are voting to keep—are absolutely absurd.”
Some of the 173 House Democrats who voted with D.C. last month are livid at what they see as Biden abandoning D.C. and blindsiding them by breaking the White House’s original statement that he would veto the bill, calling on Congress to “respect the District of Columbia’s autonomy to govern its own local affairs.”
“So a lot of us who are allies voted no in order to support what the White House wanted. And now we are being hung out to dry,” one Democratic lawmaker told The Hill. “F****** AMATEUR HOUR. HEADS SHOULD ROLL OVER AT THE WHITE HOUSE OVER THIS.”
D.C.’s non-voting representative in the House, Del. Eleanor Holmes Norton, was taken aback. “Today has been a sad day for D.C. home rule and D.C. residents’ right to self-governance,” she said in a statement. “We had hoped that with more Senate support, we would have been able to ensure that neither disapproval resolution pending before the Senate would reach the president’s desk, but with the nationwide increase in crime, most senators do not want to be seen as supporting criminal justice reform.”
Holmes Norton will try to meet with Biden and push him to veto the bill, saying that anything less “would empower the paternalistic, anti-democratic Republican opposition to the principle of local control over local affairs.”