What would Mayor Bowser's crime bill actually do?
What would Mayor Bowser's crime bill actually do?
Some good ideas, some really bad ones and mostly ignoring DC's largest crime issues
On Tuesday, June 27th the DC Council will have its first hearing on Mayor Bowser’s “Safer Stronger Amendment Act of 2023.” This bill was announced the day before the Mayor’s testimony in front of the House Oversight Committee and has been the centerpiece of the Mayor’s efforts to convey to voters, businesses and Congress that she is taking crime seriously. Unsurprisingly, the Mayor’s team executed a brilliant media rollout that generated positive-to-fawning headlines from local media outlets:
The crown jewel of this impressive media offensive was an op-ed from the Mayor’s allies at the Washington Post Editorial Board that is featured on the Mayor’s website promoting this legislation:
While there are some good ideas in this legislation, a majority of its provisions don’t even attempt to increase the certainty of punishment for breaking the law by solving more crimes or wining more convictions. As I lamented in last week’s post, there’s been an enormous decrease in how DC’s written laws are enforced and that is likely contributing more to current crime rates than some of the sentencing minutiae that is the focus of this bill:
We’ll go through each provision in detail but there’s a lot more focus in the bill on longer sentences (for the few cases that secure a conviction) than on solving more crimes:
Again, there are aspects of this bill that are worth passing; but this cannot be all that DC does to address its crime problems. In the Mayor/MPD/USAO’s defense they are doing other things like a new cash reward for tips in gun cases. However a lot of people seem to have expectations that this bill by itself would lead to an immediate and significant decrease in crime and that is incredibly unlikely. For this analysis I will be referencing a combination of the Mayor’s language at https://together.dc.gov/saferstronger, the bill text itself, the Washington Post op-ed in favor of the bill, Blaine Stum’s thread on the op-ed/bill and DC Justice Lab’s “Explainer” document in opposition to the bill.
The first provision is “Enhance penalties for violent crimes that victimize or target vulnerable residents with physical or mental impairments as well as expanded protections for transit and for-hire vehicle employees, transit passengers, and people at rec centers.” These enhancements (pages 9-12) add “may be imprisoned for a term of up to one and 1/2 times the maximum term of imprisonment otherwise authorized for the offense.” As a result, maximum sentences could be longer for defendants convicted of violent crimes against these specific types of people. Obviously this wouldn’t impact most defendants and like all of these “sentencing enhancements” these would only apply where police have made an arrest, the USAO decides to press charges and they secure a conviction. I think the Mayor’s/Op-Ed’s hope that such enhancements would deter these crimes is pretty unlikely to work. Most readers probably have some familiarity with the research that criminals aren’t forward-thinking enough to react to changes in prison sentence length but here’s researcher Jennifer Doleac explaining the research consensus on Matt Yglesias’ podcast:
“So [criminals are] rational in some way, and so if they're thinking about what the expected cost of committing a crime is — including that punishment — then making the punishment worse and worse, longer and longer prison sentences, should deter people from committing a crime. And so we now have a lot of evidence that’s like, that doesn't work very well. That’s partly because the type of person who's on the margin of committing a crime is not that forward-looking. And so I'd say at this point we know long sentences are not effective at deterring criminal behavior, either in general or for these specific people. But changing the probability of getting caught — which also changes the expected cost of committing a crime — that seems super effective.”
I think that she is accurately summarizing what a mountain of research has shown and this is why so much of my writing focuses on how to increase the probability that criminals are caught (and prosecuted) when they do commit crimes. While longer sentences don’t deter crimes; they can help reduce crime in some cases by keeping high-volume criminals behind bars as described here by former Chief Contee:
It’s unclear if people committing violent crimes against “vulnerable residents with physical or mental impairments… transit and for-hire vehicle employees, transit passengers, and people at rec centers” are more likely to be the repeat violent offenders where longer sentences may be worth the costs. It’s also unclear why mandating the option of a longer maximum sentence for these specific cases is better than the already existing “Criminal History Score” in the sentencing guidelines that imposes longer sentences for defendants with more/worse prior convictions.
The second provision is “Increase penalties for illegal gun possession” and this is more in line with Chief Contee’s call to “keep bad guys with guns in jail.” Of course less than 40% of MPD’s arrests for illegal guns ever get to a conviction and this provision only applies to sentencing. Here’s DC Justice Lab’s explanation of the various changes (note they oppose the bill but this description appears to be accurate):
“Creates 2 year mandatory minimum-5 year max penalty for having a ghost gun or any gun or ammo that a person knows or has reasonable cause to believe was stolen
Changes penalty for unlawful discharge of firearm to 2 year mandatory minimum-5 year max penalty
Increases max for possession of machine gun, sawed off, or ghost gun to 5 years
Increases “felon in possession” (FIP) of dangerous weapon max to 10 years
Creates 2 year mandatory minimum-10 year max penalty for PWID firearm
FIP ammo offense, 1 year max”
While I doubt that these longer sentences will actually deter someone who was interested in carrying/using an illegal gun, these could keep some “bad guys with guns” in prison. People who are already convicted felons and then found guilty of having a gun/ammo illegally is a pretty small population and has a lot of overlap with the the 200-500 people that drive 60-70% of DC’s shootings. However it’s unclear exactly how many cases these changes would even impact. Mandatory minimums can often be a tough-sounding solution in search of a problem and in 2022 97.3% of felony sentences were compliant with DC’s sentencing guidelines…rogue judges are not handing out below-guideline sentences. Since DC already imposes stricter penalties on those with previous criminal records it’s unclear how often the “mandatory minimums” would even impact sentencing. Hopefully the hearing can shed light on this.
The third provision is “Make strangulation a type of felony assault (strangulation is a key indicator that domestic violence will become deadly).” This would bring DC in line with many other states: “Nearly 30 states have made strangulation and choking (or “knowingly impeding someone’s breathing”) a felony over the last 10 years.” The rationale is that people who strangle their partners often escalate to even more deadly violence over time. DC Justice Lab’s explainer says this would mean “Easier to prove significant bodily injury in felony assault or attempted assault cases involved strangulation or suffocation, leading to more convictions for these offenses.” This provision makes sense to me and it is one of the few parts of the bill that would probably lead to more convictions (if suspects are arrested and charged in the first place).
The fourth provision is “Strengthen provisions that allow individuals to petition for early release to ensure the voices of victims and community receive proper consideration.” I believe this corresponds to Title XI (page 18) of the bill which amends the “Incarceration Reduction Amendment Act (IRAA)” to tilt the factors a judge should consider to be less favorable to petitioners. This applies to an incredibly small population of prisoners because they had to 1. Commit their crimes before turning 18 (the vast majority of crimes are committed by adults) and 2. Serve at least 15 years of their sentence (very few crimes carry sentences that long). This provision will likely not do much because judges will continue to exercise their discretion and they are likely already considering the factors this provision is asking them to weigh. Given the incredibly small number of petitioners this provision applies to; this has essentially no crime-fighting impact.
The fifth provision is “Provide greater discretion for the Courts to determine who should be held pre-trial, including defendants previously convicted of a violent crime while they await trial for a new violent crime.” I’ve been using the Mayor’s framing of these provisions because while they are politically-framed, they are mostly accurate. However, this provision as written is VASTLY broader than the example of “defendants previously convicted of a violent crime while they await trial for a new violent crime.” This provision relates to two different parts of the bill.
The first parts of this provision relate to Title II “Safe Schools and Safe Students” (page 5). First there is “Subtitle B: Criteria for Detaining Children”. Currently, a child can be detained pre-trial if they pose a significant harm to the person or property of others or if they are a risk of non-appearance at their next court hearing. Mayor Bowser’s bill changes the justification for pre-trial detention to protect “the person or property of others or of the child from significant harm.” In isolation this sounds perfectly reasonable. But many people are terrified of this concept of detention to protect “the child” instead being used to lock kids up who clearly are not threats to the “person or property of others.” Given that current law already gives judges the authority to detain children who are a threat to the public; this provision seems like it would only result in locking up kids who are not a threat or flight risk.
There’s also “a rebuttable presumption that detention is required to protect the person or property of others or of the child if the judicial officer finds by a substantial probability that the child:
Committed a dangerous crime or a crime of violence; or
Committed CPWL, carrying a pistol without a license.”
A “rebuttable presumption” means “A particular rule of law that may be inferred from the existence of a given set of facts and that is conclusive absent contrary evidence.” In current law it is already the pre-trial default to lock up kids charged (not convicted) with these crimes unless they can demonstrate “contrary evidence” to disprove this “presumption.” The addition of the “or of the child” language to lock up kids who are not a threat to others would mean expanding pre-trial detention for accused kids when convicted adults often only serve probation for the exact same crimes. I sincerely hope that this subtitle is either stricken or heavily edited by CM Pinto and the Council.
Locking kids up is sometimes the least-bad choice. These are serious crimes; and even being charged should prompt swift action by the government and the child’s family. That is why the current laws allowing detention when the child IS a threat to others are absolutely necessary. But detention is traumatizing and it should surprise no one that kids who are locked up tend commit future crimes at higher rates than demographically similar peers that weren’t detained when charged with similar crimes:
Lest one get the impression that “We should only lock up kids as a last resort” is a niche left-wing/academic position, here is moderate-to-conservative State Board of Education Representative Eric Goulet making a similar point in a discussion about GPS monitoring:
While I don’t know Mr. Goulet’s position on this specific part of the bill, the principle he’s stating is a good reminder to the Council to be very careful about how and when we detain children; especially ones that have not been convicted of a crime.
The bill’s other expansion of pre-trial detention is in Title V “Rebuttable Presumption; GPS Data for Prosecution” (page 13). Here it adds to an existing rebuttable presumption to detain someone who has “Committed a crime of violence, as that term is defined in § 23-1331(4), and has previously been convicted of a crime of violence.” As Blaine Stum pointed out on Twitter:
Hopefully the hearing can help shed light on if this part of the bill actually does anything or just “sounds tough.”
*Programming note: Provisions 6-10 are much simpler and will not take as long as 1-5 have*
The sixth provision is “Increase the reimbursement for the District’s popular Private Security Camera System Incentive Program which strengthens public safety by increasing the network of cameras available to assist MPD in solving crimes and closing cases. “ This is great! Cameras are essential in providing evidence in many crimes and more importantly deterring crimes in the first place. I do wonder why the Mayor proposed cutting the “Private Security Camera Program” by 50% in her FY 2024 budget but I’m glad her team seems to have changed their minds about this program.
The seventh provision is “Require the Criminal Justice Coordinating Council (CJCC) to report more data on process and outcomes.” The CJCC does excellent work and I cite them often like in this piece:
Instead of focusing on some of the massive breakdowns in law enforcement like plunging clearance and prosecution rates, the bill text only asks the CJCC to look at “diversion” and “alternative dispositions and sentencing agreements.” When paired with the Mayor’s executive order that demanded a review of violence prevention efforts but nothing about MPD’s operations; it appears that the Mayor wants maximal scrutiny of “left-leaning” parts of the criminal justice system without digging into the well-known issues within the “right-leaning” parts like MPD, the Crime Lab or the USAO. This helps politically in keeping the blame for crime away from her but we should apply CJCC’s wonderful analytic skills more broadly.
The eighth provision is “Propose collecting DNA earlier in the process for First Degree sexual offenses after the probable cause hearing.” This could definitely help solve some crimes at the expense of more government “surveillance” of people later found innocent of any crime. Most states seem to require some DNA testing before conviction and DC is one of 18 states that do not. The DC Justice Lab raises the concern that this provision would increase the backlog for DNA testing (recall that 770 DNA samples from violent crime scenes weren’t tested due to capacity constraints). I generally think that DC needs to solve its DNA-processing problem regardless and that this provision likely helps more than hurts.
The ninth provision is “Require supervisory agencies to provide MPD with location and identification data collected from any detection device necessary in conducting a criminal law enforcement investigation.” There’s some real confusion if this is actually solving a problem. Opponents of the bill have pointed out that “all listed agencies already provide this information to MPD.” While sharing GPS data absolutely can help solve crimes, I coded this as “maybe” in the table at the top since it’s unclear if this provision would actually do anything new. Note also that only 7% of released offenders are on GPS monitoring per CSOSA policy.
The tenth provision is “Expand the District’s representation on the DC Sentencing Commission.” It’s not clear what problem this is supposed to solve but changing the MPD chief from a non-voting to voting member and adding 2 DC residents as voting members (growing the Commission from 12 votes to 15) seems fine. It’s odd that this relatively inconsequential bid to increase the number of the Mayor’s appointees is Title I of the overall bill.
Changing the law to expand pre-trial detention of kids who are explicitly not a threat to others is reason enough to not pass this bill as-is without amendments. Given how little this bill would actually do to prevent crime; this massive, recidivism-causing flaw more than outweighs the rest of the bill’s benefits. The Washington Post Op-Ed page did not do its homework before giving its fulsome blessing to this legislation and hopefully CM Pinto and the Council can amend this into something that helps more than it hurts. Three of this bill’s provisions (making strangulation a felony, security camera rebates and DNA collection) really are good and will hopefully move forward as part of an amended bill or separate legislation. I also hope there is a robust review of just what some of these sentencing/detention proposals will actually do relative to current law.
More importantly I hope the Mayor, Council, MPD, USAO, the rest of government and the media don’t lose sight of the bigger problems in enforcement and prevention while we have a political debate that is mostly about sentencing. So far in 2023 the USAO is only on pace to charge ~5,832 cases this year while pre-COVID they averaged over 14,000 a year. Arrests-per-MPD officer is down 44% relative to pre-COVID (higher in wards 7 and 8) and MPD is both shrinking and not allocating its officers proportionally to where violent crime is highest. We still don’t have an accredited crime lab and a lack of sufficient vendor support is causing evidence to sit untested. DC has much bigger crime problems than this flawed bill even attempts to solve.
Incredibly thoughtful and nuanced take on a problem that is often portrayed in egregiously oversimplified terms. Thank you for doing this.
This is fantastic information. Thanks again.
I’m still shaking my head that we didn’t pass our revised criminal code and the mayor has presented very little in terms of solving this.