"Call them - they won't do anything"
DC's broken system has devalued arrests & undermined deterrence
This week many Washingtonians were outraged by the report and video of a man attacking preschool teachers in front of their students. The Washington Post’s account is quite chilling:
”He was standing uncomfortably close, the 20-year-old assistant teacher recalled, and the “kids looked scared.” She said she yelled at the man, who then turned and walked toward her, despite her threats to call police.
This quote is a good example of the sense of impunity some offenders get after repeated interactions with DC’s criminal justice system that don’t result in either meaningful rehabilitation or incarceration. In this suspect’s case, neighbors say recent arrests hadn’t been charged by the United States Attorney’s Office (USAO), charges in 2018-2019 had resulted in 2 dismissals by the USAO and he had 1 unenforced bench warrant after failing to appear in court. By repeatedly failing to hold this person accountable, DC’s criminal justice system taught this person that “they won’t do anything” if a victim calls the police. This is one anecdote but a lack of accountability is a common problem across DC’s fragmented local-Federal hybrid system and many Washingtonians are furious about it. It’s no surprise that claiming to address this lack of accountability is the rhetorical heart of Mayor Bowser’s latest legislative push:
”We need to act now, and we need to send the strong message that violence is not acceptable in our city and this perception that people have, that you can commit a brazen crime and get away with it, has got to stop.”
These are excellent talking points and as usual the Mayor’s media team has secured glowing headlines for her latest legislative proposal. But most of the accountability gaps in DC’s criminal justice system are operational, not legislative. I plan to analyze her proposed legislation when it gets closer to a hearing but even its good ideas will do little to fix the “downstream” post-arrest problems that undermine accountability in DC. Broadly speaking, these downstream issues can be divided into 3 categories:
Prosecution and sentencing
Prosecution and sentencing: As we saw last week, it does appear that after intense public, media and Congressional pressure the USAO has increased their prosecution rate from last fiscal year’s record-low 33%. But even their most recent data showed a 53% prosecution rate; below the historic average of 73% and other big cities’ rates. When Mayor Bowser talks about the perception “that you can commit a brazen crime and get away with it” not being charged with a crime even after being arrested definitely reinforces that notion. This also applies to juvenile offenders where the DC Attorney General has reported that prosecutions have increased but doesn’t share timely or detailed data. There’s no way to have an accountability agenda that doesn’t focus on prosecution rates and how to make sure that prosecutors are charging viable cases.
The prosecutor’s responsibility extends beyond the charging decision to how they prosecute the case and decisions like whether they drop the case or accept a plea deal. While the USAO’s public messaging plays up a “tough on crime” image, in 2022 they chose to drop (“Nolle Prosequi”) 282 or 10% of felony cases and over 1,000 misdemeanor cases (29% of the total). Both rates are up significantly since pre-COVID but this has attracted almost no scrutiny from the media or “tough on crime” politicians:
There will always be some cases that fall apart and dropping them avoids wasting time. However these huge increases show there is work to do to get back to pre-COVID “normal” rates.
Even when prosecutors press a case to its conclusion, they can also undermine accountability by offering a plea bargain for a lesser charge with minimal consequences. Just this week the Metropolitan Police Department (MPD) arrested a woman for homicide who had previously been charged with Assault with a Dangerous Weapon (ADW). Despite clear video evidence of her shooting at the victim in the ADW case, the USAO offered a plea bargain for the lesser charge of “Attempted Assault with a Dangerous Weapon”:
Because the defendant was given the chance to plea to this lesser charge she faced no prison time; note that the entire sentence is “SUSPENDED” below:
Now this woman has alleged shot and killed another man. This kind of lenient prosecution of violent crimes like ADW is quite common in DC. The DC Sentencing Commission analyzed ADW outcomes and while 35% of arrests ended in a conviction; only 6% resulted in a conviction for ADW or a more serious charge. This means that 83% of these convictions were for lesser charges and since 90% of all convictions were the result of plea bargains this reflects prosecutors’ choice to seek lesser charges in plea deals:
US Attorney Graves speaks eloquently about how seriously his office takes gun violence but historically his office has not prosecuted ADWs to the fullest extent of the law. This directly undermines the deterrent value of police and the threat of arrest.
Likewise convictions for drug distribution or manufacturing (i.e. “dealing” not just “using”) mostly result in only probation and 96% are the result of plea deals:
With renewed public interest in shutting down open air drug markets, it’s important to remember that currently most convictions for drug dealing result in no prison time. It’s also notable that drug prosecutions collapsed when DC’s crime lab lost its accreditation; with the USAO only pressing charges in the most serious cases. It took over 2 years (and significant media pressure) before the Bowser administration finally signed a contract to secure sufficient lab testing capacity to begin prosecuting more drug cases in May 2023. One reason drug dealers may think they can “get away with it” is that for two years they largely did.
Unfortunately this lack of accountability for offenders has received barely any attention from the media or policymakers. There’s a lot of interest from Mayor Bowser and CM Pinto in various “sentencing enhancements” but these generally don’t apply to the lesser charges that prosecutors often offer in plea bargains. While some DC judges tend to sentence on the low end of the sentencing guidelines (while still complying with them 97% of the time), the biggest reason that judges hand out “light” sentences is that prosecutors agreed to lesser charges in a plea bargain. Prosecutors like to “win” cases quickly and plea bargains are a great way to do that. For policymakers seeking to apply longer sentences (or even just any prison time) to “incapacitate” repeat violent offenders or curb the drug trade, they need to pressure DC’s prosecutors to try and win convictions for serious charges.
Compliance: People on pretrial release or probation/parole/supervised release are expected to obey certain conditions. While most people do comply and stay out of trouble, there is a disturbing lack of accountability for those that do not. The Pretrial Services Agency (PSA) and Court Services and Offender Supervision Agency (CSOSA) officers monitor people under their supervision but can only ask for bench warrants if people do not comply. One recent change is that MPD’s enforcement of bench warrants has decreased significantly:
Due to DC’s unique local-Federal system, the US Marshals Service (USMS) also enforces bench warrants in DC. They do not seem to have any publicly-available data on arrests but currently there are over 1,000 active (i.e. not enforced) bench warrants for DC Courts; with most warrants stemming from cases originally filed in 2018-2019. Despite this shocking number of unenforced bench warrants, there’s been no public pressure on the US Marshals Service to help clear this backlog:
These bench warrants represent a mix of defendants failing to appear in court (like the preschool attacker at the top of this post), skipping their diversion program, violating their release conditions and other causes. This type of lawlessness however has received almost no attention; in stark contrast to less serious but more visible offenses like fare evasion. It’s also pretty disappointing that DC had a crime bill debate heavily focused on pretrial release without any significant discussion of outstanding bench warrants for failing to appear in court or how to better enforce them. Enforcing bench warrants should be a priority for scarce MPD or USMS resources because there has either already been a finding of guilt or at least probable cause. Bringing these people back into compliance is much more targeted than some of the Mayor’s proposed efforts and enough people with bench warrants have committed new crimes that an enforcement effort would likely reduce recidivism. During a recent one-off enforcement push called “Operation Trident” they had to sheepishly admit “Authorities could not on Thursday directly say why they had not been arresting these alleged violators all along, before a task force was launched.” Violating release conditions and simply ignoring court summons is a classic example of how people “get away with it” but this problem has been largely ignored by the Bowser administration and nothing in the recent legislative package would address this problem.
Rehabilitation: Both PSA and CSOSA do try to follow best practices when it comes to identifying needs and getting people treatment. PSA assesses 93% of supervised people for Substance Use Disorders (SUD) and 76% for Mental Health needs. However these services were largely shut down during COVID and only 44% of people actually received treatment for Substance Use Disorders; below the 50% target. This is especially disappointing because 77% of people who did receive treatment reduced their drug use; suggesting that if more were in treatment they would benefit:
Post-sentencing, CSOSA tries to get people into treatment programs and while they generally show a reduction in drug use the vast majority of people don’t complete treatment. Note also that the ~300 people enrolled in treatment programs each year are a small share of the 9,963 people that CSOSA supervised last fiscal year. While 46% of CSOSA’s FY 2022 population tested positive for drugs only ~3% are reported as receiving treatment in the data below (though it is from different years):
The “leakiness” of this court-ordered treatment process for substance use disorders directly impacts of the effectiveness of efforts like drug sweeps or the proposed “drug free zones” in the Mayor’s latest proposal. Arresting a bunch of drug users can be an entry point to treatment but the PSA and CSOSA data show that it is a very ineffective way to do so. It’s also notable that the USAO launched a pilot in Chinatown in June to prosecute even minor drug charges in order to clear out the open drug use by the Gallery Place metro station. We don’t have any official readout of the “success” of that pilot but anecdotally it hasn’t really worked and it isn’t surprising in light of this PSA/CSOSA data.
This failure to get offenders into effective treatment (and keep them engaged) directly drives recidivism:
These are just a few of the ways that DC’s justice system fails to rehabilitate people which in turn drives higher crime rates.
These downstream issues with prosecutions, sentencing, compliance and rehabilitation aren’t new but they got much worse as a result of COVID and the crime lab’s loss of accreditation. Prosecution rates decreased (even as MPD’s arrest rates fell), drug prosecutions absolutely collapsed, more initially-charged cases were dropped across the board, bench warrant enforcement declined and many PSA/CSOSA services were temporarily stopped only to reopen at reduced capacity. During this time period DC racked up an “enforcement debt” that taught a lot of criminals that they could “get away with it.” For a “tough on crime” Mayor, paying down this debt by holding our federal partners accountable and fixing the crime lab to get back to pre-COVID operations should have been a top priority as we emerged from COVID. Instead the Mayor has largely ignored these downstream operational issues (at least publicly) and often defaults to her past as a Councilmember by focusing on new legislation as the solution to most problems. The Mayor doesn’t control these agencies (and their faults are their own) but she has unique political influence and media power to hold them accountable.
The Mayoral team’s unparalleled PR skills could easily get enormous media attention on any and all of these downstream issues if they wanted to. There’s intense media and Congressional interest in DC crime and there’s both hard data and terrible anecdotes to highlight each of these very real problems. The fact that her team hasn’t publicly highlighted these issues, like her years-long silence on the USAO’s declining prosecution rates, is deeply concerning. We saw intense media and Congressional pressure rapidly turn around the USAO’s prosecution rates; so we know the right kind of pressure can influence DC’s federal partners. Amidst a crime crisis, applying some pressure on the USAO’s dropped cases and plea bargaining, the US Marshals’ bench warrant enforcement and PSA/CSOSA’s follow through is certainly worth trying. While the Mayor is best-positioned to do this; Councilmembers, journalists and residents can all help bring much-needed attention to the “downstream” parts of DC’s broken justice system.