Republicans in Congress Move to Block Washington, D.C.'s Local Criminal Code Rewrite

Although crime and homicides are up by nearly a fourth in Washington, D.C. so far this year, the district’s City Council is reducing sentences for violent crimes, including lowering the maximum penalty for carjacking from 40 years to between eight and 12.

The change is getting praise from advocates of putting fewer people behind bars and is in line with moves that officials in Democratic states have already taken or are proposing. But at a time when states are taking widely divergent paths on sentencing—including increasing sentences for dealing fentanyl in some cases—Washington, D.C.’s move is being condemned by the new Republican majority in the U.S. House.

And in a rebuke that infuriated district officials, including those opposed to the city’s changes, the House, along party lines on Thursday, voted 250-173 to block D.C.’s new policy.

The House also approved a separate resolution disapproving of a Washington, D.C. law allowing noncitizens to vote in local elections.

The measures are unlikely to pass the Democratic Senate or be signed by President Biden. 

But the fact that some in Congress want to intervene in matters that Washington officials say should be left to them to decide, drew condemnation from the city’s only representative on Capitol Hill, Rep. Eleanor Holmes Norton.

“Keep your hands off of D.C.,” Norton, a Democrat, said on the House floor.

“I can only conclude that the Republican leadership believes that D.C. residents, a majority of whom are black and brown, are either unworthy or incapable of governing themselves,” said Norton, who called the move “paternalistic” and has introduced a bill to make the district a state.

Rep. Jamie Raskin, a Maryland Democrat, predicted during a debate on the House floor that House Republicans would attempt to undo other policies passed by the district’s Democratic local government, including stringent gun restrictions.

Democratic Mayor Muriel Bowser had vetoed the changes to the criminal code, but was overridden by Council. Her office did not return press inquiries. But according to The Washington Post, Bowser at a press conference last week also opposed attempts by Congress to intervene.  

“We don’t want any interference on our local laws,” she said.

The U.S. Conference of Mayors also opposed the move, the group’s CEO and executive director, Tom Cochran, said in a statement to Route Fifty.

That Congress can overrule a law passed by the district is a testament to the unique situation in the nation’s capitol, in which Norton does not have the power to vote in Congress, leading to bumper stickers and license plates in the city deploring, “taxation without representation.”

But despite the objections by local officials, Rep. Andrew Clyde, a Georgia Republican who sponsored the measure to overturn Washington’s legislation, noted that a provision in the Constitution gives Congress the responsibility of overseeing the nation’s capital city, and that this includes the power to undo the local laws.

“We also have a moral obligation to protect American safety and security in our nation's capital city,” Clyde said, calling the changes in the city’s criminal laws “radical”.

In an interview, conservative Republican Rep. Marjorie Taylor Greene, of Georgia, took the idea of reducing the city’s ability to govern itself a step further. “I think we need to repeal Home Rule,” she said, referring to a 1973 law that allowed D.C. to have a mayor and a city council.

Beyond the controversy around Congress trying to encroach on local decisions, the debate illustrates the divergent views around the country over reducing criminal penalties, said Nicole Porter, senior director of advocacy for The Sentencing Project.

The national organization has supported reducing mandatory sentences nationwide. The country has “very punitive policies” that contribute to high incarceration rates and long prison terms, Porter said.

Some states have taken action in recent years to reduce incarceration, she noted. 

New Jersey’s Democratic Gov. Phil Murphy in 2020 signed into law three measures, including one to allow courts to consider a convict’s youth as a mitigating factor and reduce their sentences. Murphy also signed a law requiring the state’s Treasury Department and Parole Board to annually report the amount of money the state would save if it reduced mandatory sentences or allowed more people to be released because of factors like having grave illnesses.

Advocates in New York, meanwhile, are pushing for changes this legislative session to eliminate mandatory minimum sentences and allow judges to review and reduce sentences if they are deemed to have been excessive.

House Republicans on Thursday also criticized New York’s elimination of cash bail in 2020 for misdemeanors and non-violent offenses. 

“D.C.’s not an outlier,” Porter said.

However, she said, other states are taking a different approach and toughening sentences.

Kentucky, for instance, passed a measure last year requiring those convicted of trafficking fentanyl to serve at least 85% of their sentence, up from 50%.

In Tennessee, a Republican lawmaker is proposing to require the death penalty for fentanyl dealers if they cause someone’s death.

In Washington, D.C., proponents of the sentencing changes dispute Republican characterizations that the policies are soft on crime. Instead, the changes, due to take effect in 2025, stem from a 16-year effort to clean up a criminal code that was written by Congress in 1901 and has not been revamped since, leading to a number of problems.

For instance, the criminal code does not define crimes like assault or manslaughter, which leads to appeals and uncertainty over what exactly constitutes those offenses, said Patrice Sulton, who worked as an attorney on a city commission that came up with the changes and is now executive director of the DC Justice Lab, a group that advocates for criminal justice reforms.  

The wording of other laws have become outdated, she said in an interview. Under the letter of the city’s obscenity laws, dancing can be considered a violation, she said. 

“This is really about making sure that our criminal statutes are legible, are consistent, are clear, and that they're constitutionally sound,” she said, adding that 29 states have taken similar steps to modernize their criminal codes.

Among the changes was an attempt to make maximum sentences adhere more closely to sentences actually getting handed down. But while he acknowledged that was the motivation in a letter to the City Council last October, Matthew Graves, the U.S. Attorney for the District of Columbia, said he opposed reducing the maximum sentences that could be used for some violent crimes.

For instance, Graves wrote that the maximum sentence for an armed robbery was reduced from 45 years to between four to eight years. The maximum sentence for an armed carjacking was reduced from 40 years to between eight and 12. 

Washington City Council President Phil Mendelson, at a press conference this week, opposed Congress intervening in the district’s affairs. Rejecting the changes to local sentencing laws, he said, would mean keeping in place the outdated code.

“What we passed was a well-thought-out, deliberated and debated legislation. It doesn't mean people can't disagree with it,” he said. “But simply overturning it leaves us with nothing.”