Some criminal justice reform advocates are criticizing a Biden appointee’s backing of a Trump-era initiative to shift some Washington, D.C., gun possession cases into federal court — a move they call a disappointing deviation from the new administration’s stated goal of reducing mass incarceration.
At the center of the controversy: Washington, D.C., residents with existing felony convictions who are arrested for illegally possessing firearms will continue to be tried in federal court, the district’s acting U.S. Attorney Channing Phillips, who assumed office on March 3, said in a court filing late last month. Some local officials — including Mayor Muriel Bowser and then-police Chief Peter Newsham — backed the policy at its launch in 2019, saying it would help curb the illegal guns that fueled a spike in homicides that disproportionately affected Black residents.
Other local leaders, including members of the City Council and D.C. Attorney General Karl Racine, opposed it. Over time, more people, including Bowser, distanced themselves from the policy, with some saying it unfairly subverted local authority, and, at one point, targeted predominantly Black neighborhoods.
“It’s been two years of people explaining in so many different ways why the policy is wrongheaded, unjust, and illegal,” said Andrew Crespo, the head of Harvard Law School’s Impact Defense Initiative, which is challenging the initiative, along with public defenders, in court. “There was a lot of hope that a new administration would mean a different approach.”
The court where a gun possession case is prosecuted might seem inconsequential — but that change in venue means that defendants, on average, face harsher sentencing than they would in local court. From July 2017 to July 2018, the median felon-in-possession sentence in local D.C. Superior Court was 24 months, but as a result of local reforms, the median fell to 14 months in the second half of 2018, according to the district’s sentencing commission. By contrast, in federal court, the average sentence is 64 months, according to the latest data from the U.S. Sentencing Commission. Defendants in federal cases are also more likely to be detained before their trials, compared to local courts, according to court filings, and there are far fewer federal public defenders for defendants who can’t afford their own attorneys.
As Biden’s appointees took over, opponents of the policy hoped it would be rescinded. Jumi Olowofoyeku, a resident of Ward 8 in Southeast D.C. who works with a local mutual aid organization, said the Biden appointee’s decision to continue the policy didn’t surprise him. He said it is another example of criminal justice policies that negatively impact Black communities — in a city with one of the highest incarceration rates in the country — without making them safer: “It does not create a good relationship between the political apparatus and the people that they’re supposedly supposed to represent. It creates more tension, it creates more violence, and it creates more distrust.”
The District of Columbia is unique in that it has just one chief prosecutor, appointed by the president, who oversees prosecutions in both local and federal court. Nominees for the post are confirmed in the Senate, where D.C. has no voting representation. The city’s residents also have no say in nominating judges to the federal District Court. As Congress debates a push for statehood, elected opponents of the policy, including Racine and the City Council, have said it highlights how the city’s elected officials and its residents don’t have the same rights, opportunities, and authority as other Americans to control their own government and determine criminal justice policies.
When then-U.S. Attorney Jessie Liu and Bowser announced the policy in February 2019, the district was reeling from a 38 percent spike in homicides in 2018. Bowser, a Democrat, said the policy of routing people with felony convictions arrested with illegal firearms to federal court would send a “clear message that violence will not be tolerated.” Liu downplayed concerns that the initiative would lead to harsher punishment. Instead, she said the initiative would allow federal law enforcement to be more involved in investigating illegal firearms and tracing their origins.
The D.C. Prosecutor’s Office has since argued in court that the federal system’s longer sentences and swifter adjudication deters crime. “Federal prosecutions serve a deterrence purpose because, generally speaking, the federal system produces higher conviction rates and longer sentences than the Superior Court system,” the U.S. Attorney’s Office wrote in a July 2020 court filing.
According to the Justice Department’s own research at the National Institute of Justice, it’s the “certainty of being caught” and not the length of a sentence that can have a strong deterrent effect. The NIJ found that prison sentences, particularly long ones, are unlikely to deter crime and in some cases may have an opposite effect. Other researchers have shown that long prison sentences and elevated incarceration rates have little effect on violent crime rates. Analyses of similar efforts in cities like St. Louis and Richmond, Virginia, were inconclusive or showed showed the initiatives to be ineffective.
Since the policy’s launch, though, homicides continued to increase, albeit at a slower rate. In 2019, D.C.’s homicides rose another 4 percent despite the new initiative, according to Washington Metropolitan Police statistics, surpassing a recent high in 2015. By 2020, as cities nationwide experienced surges in violence, homicides rose 19 percent, marking the third straight year of increases and making it the city’s deadliest year since 2004.
In July 2020, federal prosecutors disclosed in court that the policy was not being enforced citywide, as officials initially said, but that it targeted three police districts in predominantly Black wards in the east. After that revelation, Bowser backed away from the policy, saying she wouldn’t have supported it if she’d known. She has since cited it as an example of why D.C. needs statehood and local control of the justice system. Newsham has also said he was unaware of the policy’s scope. The U.S. Attorney’s Office has said they targeted those districts because they had the highest rates of gun violence.
The policy faced opposition within the U.S. Attorney’s Office, too, when a “working group” of Black assistant U.S. attorneys asked that it be terminated last year. In his court filing last month, Phillips said that in August 2020, his predecessor removed the geographic focus. But by expanding it citywide, opponents said more Black defendants could be subject to harsher sentences because Black residents were already disproportionately represented in D.C.’s justice system.
Although Black people comprise 47 percent of Washington’s population, 97 percent of people charged from 2013 to 2018 for being a felon in possession of a firearm were Black, according to the Vera Institute for Justice, a nonprofit focused on improving the justice system. That’s in part because Black residents are more likely to have prior felony convictions, particularly for drug charges. “There are a lot of societal and historical reasons — and ways that Black people across the country and in D.C. have been oppressed and marginalized — that produce the conditions that lead to these kinds of crimes,” said Akhi Johnson, a former D.C. assistant U.S. attorney who’s now a deputy director focusing on decarceration at Vera.
The policy runs counter to the elected City Council’s recent efforts to address punitive sentencing and over-policing of Black neighborhoods. Those efforts include sentencing alternatives and other initiatives to moderate punishment for defendants prosecuted in local court, but those reforms aren’t available to defendants in federal court. “You’re really just treating the symptom and not addressing the underlying issue,” Johnson said.
Opponents’ hopes that the Department of Justice would rescind the policy when the president appointed Phillips, who had the support of Delegate Eleanor Holmes Norton, the city’s nonvoting representative in Congress. An advocate of statehood, Norton introduced legislation last year to give D.C. authority to prosecute local crimes. Optimism rose, too, when Biden wrote in a January executive order that there is a “broad consensus that our current system of mass incarceration imposes significant costs and hardships” and doesn’t make people safer.
Scott Michelman, the legal director of the ACLU of D.C., said Biden ran a campaign that promised serious criminal justice and civil rights reforms. “The intersection of those two areas is right here in the District of Columbia,” he said. “I would have expected a Biden appointee to disavow this policy, to come out strongly against it as racist and an affront to the political self-determination of the people of the district.”
Norton is leading a federal nominations commission that recommended a candidate for Biden to nominate as permanent U.S. attorney.