or the first two years of his presidency, Joe Biden positioned himself as a champion of statehood and home rule in the District of Columbia. The president urged Congress to make D.C. the 51st state—even as the Senate filibuster stood in the way—and vowed to defend District residents’ right to govern themselves through their limited local democracy. Any “denial of self-governance” in D.C., he proclaimed, is “an affront to the democratic values on which our Nation was founded.”
Then, on Thursday, he stabbed D.C. in the back. In a single tweet, the president reversed more than two years of staunch support for home rule—abandoning his principles the moment they became politically inexpedient. Biden announced that he would sign legislation nullifying the modernization of D.C.’s criminal code. His action will, perversely, make the District less safe, preserving an outdated 122-year-old criminal code whose ambiguities actually make it harder for prosecutors to charge violent crimes.
Just as importantly, Biden’s decision will empower congressional Republicans to continue overriding D.C.’s democratically enacted legislation, including progressive laws expanding the rights of immigrants, abortion providers, LGBTQ people, and other vulnerable groups. The president has, in effect, declared open season on the District’s democracy.
Republicans, abetted by conservative media, have spread so many lies about the “D.C. crime bill” that rebutting all their misrepresentations would require an Infinite Jest–length treatise. Rather than tackle distortions one-by-one, I will simply explain what the measure truly does and how it came to be. The bill sought to address a problem that has roiled the District’s criminal legal system: Our criminal code was authored by Congress in 1901, and it is rife with vague and archaic provisions that create uncertainty about what constitutes a crime and how various offenses can be punished. The code ranks as one of the worst in the country in terms of clarity and consistency. For decades, many states faced similar problems. And so, starting in the 1960s, states began modernizing their criminal codes.
That is precisely what D.C. did, as well. To lead the effort, the D.C. Council created a commission staffed with attorneys and an advisory group of experts. This expert group included representatives from the D.C. attorney general’s office and the U.S. attorney’s office—which, together, prosecute all crimes committed in the District. The commission also invited a representative of the mayor’s office to take part in the overhaul, though Mayor Muriel Bowser showed little interest in the process and rarely sent a representative to participate. As I wrote in January, the commission’s work was comprehensive and extensively documented.
In the end, the advisory group—including representatives from both prosecutors’ offices—voted unanimously to send the commission’s recommendations to the council. After making small changes, the D.C. Council unanimously passed the bill twice. After refusing to participate in the process for years, Bowser abruptly vetoed the measure, citing misunderstandings that I will address shortly. The council easily overrode her veto.
By that point, however, Republicans had seized control of the House of Representatives. Congress has the power to nullify any D.C. law, though it has not done so for 30 years. Emboldened by the partial success of crime fearmongering in the midterms, House Republicans decided to target the criminal code revision for nullification. In the end, 31 Democrats joined every Republican in voting to override the measure (none of whom represent states close to D.C.). After Democratic Sen. Joe Manchin joined Senate Republicans in supporting nullification, the override was one vote—and one presidential signature—away from success. (The filibuster doesn’t apply to bills that override D.C.’s laws.)
Biden had previously announced his opposition to the nullification effort, and he might have staved off further defections in the Senate by promising a veto. Instead, he abruptly changed course on Thursday, promising the sign the bill if it reached his desk. His support guarantees that it’ll pass the Senate with multiple Democratic votes.
What’s so frustrating about Biden’s heel turn is that alleged concerns about the criminal code overhaul are not remotely rooted in reality. The chief complaint about the measure is that it would “lower penalties” for violent crimes. That is, in every meaningful sense, just not true. What the bill really did was align penalties with the sentences that judges are already handing down. The Criminal Code Reform Commission obtained data from the D.C. Superior Court covering every adult case from 2010 to 2019; crunched the numbers to identify what sentences D.C. defendants really faced; then based its revisions on these figures.
Take carjacking, which Biden cited as an excuse to nullify the measure. Under the current code, the maximum sentence for armed carjacking is 40 years, the same as second-degree murder. No one—not a single person—is sentenced to 40 years for armed carjacking in D.C., or anything close to it. The absolute harshest penalties for the offense today run about 15 years. So the new code reduced the maximum penalty from 40 years to 24 years. That’s still nine years longer than the lengthiest sentences handed down today. If the new code took effect, then, there’s no reason to believe that actual sentences for armed carjacking would go down. Judges would be free to continue imposing the exact same penalties that they have for decades.
Or take robbery, which Fox News seized upon as an example of the revision’s putative flaws, claiming the penalty for this crime would become “a slap on the wrist.” D.C.’s current code has just one robbery statute with a maximum penalty of 15 years. It covers everything from nonviolent pickpocketing to beating a victim to the point of near-death. The new code, by contrast, would divide the crime into armed and unarmed robbery, then split each category into first, second, and third-degree offenses. A minor crime, like unarmed pickpocketing, would incur a two-year max, while a major crime, like violent, armed robbery, would incur a 20-year max—higher than the current max. Moreover, the bill would let judges “stack” offenses by running them consecutively. By stacking both robbery and weapons offenses, a judge could send an offender to prison for several decades. Add homicide or kidnapping charges and the offender would effectively face a life sentence.
As these examples illustrate, a key goal of the bill is to make prosecution easier by clearly defining crimes that are currently ambiguous. It also facilitates prosecution by increasing various penalties. The bill would jack up max sentences for various sex crimes and gun offenses while boosting the max for attempting murder from five years to 22.5 years. It even introduces a new crime, endangerment with a firearm, to cover any individual who fires a gun in public, helping prosecutors charge shootings when they cannot prove intent to injure or kill (a problem that currently bedevils D.C. law enforcement).
All of these features would make the District safer. Nullifying them will make the District more dangerous. By killing the bill, Biden and Congress are telling D.C. residents that we are not allowed to protect our communities by enacting a criminal code that is coherent and consistent enough to work in the real world.
But set all that aside. If Democrats really believed in D.C. home rule, they would not be debating the merits of this bill at all, leaving such decisions to the people of D.C. and our elected officials. For cynical political reasons, many party members—including the president—have decided instead to side with the bad faith efforts of Republicans to meddle in the District’s affairs. This sets an extraordinarily dangerous precedent; it is no coincidence that the sponsor of the nullification bill, Rep. Andrew Clyde, is also pushing legislation that would abolish D.C. home rule entirely.
Republicans saw this as a test vote, an experiment in reviving the dark days of perpetual congressional interference in District government. They will only be emboldened by its success. Already, Republicans include riders in each budget bill that block D.C. from opening recreational marijuana dispensaries and subsidizing abortion for low-income patients. With this victory against home rule, they will surely aim much higher, attempting to block all manner of local laws that conflict with their agenda. Potential targets including health care for trans youth, school vaccine mandates, non-citizen voting (already the subject of a separate nullification bill), and other aspects of D.C.’s liberal abortion laws. What’s extraordinary is that ostensibly progressive senators like Mazie Hirono and Richard Blumenthal are open to voting for the current nullification bill—and apparently oblivious to its dire ramifications for other items on the progressive agenda.
D.C.’s 700,000 residents have no senator to lobby against the bill. We can only plead, like subjects of a colony, for Congress to let us govern ourselves. For a moment, we believed that we finally had an ally in the White House who would defend the District’s autonomy. Biden’s betrayal painfully demonstrates that until D.C. achieves statehood, its democracy will never be secure.
END
Be the first to comment