Though U.S. prosecutors said in court records that the program focused on the highest crime areas of the District as it struggled to stem spiking homicides, critics of the “felon-in-possession” program say the revelation confirms earlier fears that the anti-crime initiative would exacerbate problems of mass incarceration and overpolicing in Black communities.
The initiative “exclusively and — now we know, by design — targets District residents of color via specific police districts,” Council member Charles Allen (D-Ward 6), who chairs the council’s judiciary committee and has opposed the program, said in a statement. “It is one more policy defaulting to harsh penalties on Black residents whose neighborhoods have historically been underinvested in and overpoliced. We must end this policy. It is taking us in the wrong direction.”
D.C. Attorney General Karl A. Racine (D) also condemned what he called the “discriminatory application” against defendants of federal charges, which carry harsher penalties compared with similar convictions in local court.
D.C. Police Chief Peter Newsham said Thursday he was unaware the initiative was being implemented in only certain parts of the District. He said it was his understanding that federal prosecutors would take all felon-in-possession cases from across the District, with the possible exception of some that may not have met federal standards.
The office of the mayor — who championed the program with D.C. police when it was rolled out as the city faced a 40 percent jump in homicides — said Bowser did not know of the targeting and would not have supported it.
“The mayor feels felons in possession across the city, no matter where they live, should be held accountable,” Bowser spokeswoman LaToya Foster said. She also wants to make sure those who are returning home have everything they need to succeed.”
The disclosure marks the latest controversy involving Bowser and the U.S. attorney’s office, which clashed this week over the Democratic mayor’s accusations that prosecutors were failing to support police and residents affected by unrest in the liberal city.
“This is yet another example just this week of why DC needs local control of the judicial system,” Foster said in a statement. “The whiplash — from leadership changes in the top spot in the US Attorney’s Office to a lack of veracity and focus in their administration of justice — can understandably undermine residents’ confidence in the Office. It is time residents can hold its prosecutors accountable.”
In an interview, acting U.S. attorney Michael R. Sherwin criticized the program as implemented, saying he began a review when he took over the office in May and ended the program’s geographic focus last week.
Sherwin said that the program was not racially discriminatory but that the “most equitable” way to proceed was to base charging decisions on suspects’ criminal history and whether they had previous gun charges. Other factors include prior relevant conduct — including their age at the time and commission of any violent offenses — and not simply the place of arrest.
Sherwin said he wanted the program “improved to ensure it worked as designed to charge the most violent offenders with the most significant federal charges. I want the main metric driving our FIP program to be charging the most violent offenders, regardless of geographic location or residence of that defendant.”
Prosecutors consulted with the FBI, D.C. police and others in July about ending the geographic targeting, after it was disclosed in a court filing. A spokesman for the office said the change was not related to the case in question or external criticism.
The initiative’s original scope was disclosed by prosecutors in litigation with defendant John Victor Reed, who moved this March to dismiss his one-count indictment from March 2019 of unlawful possession of a firearm by a felon. Represented by federal defenders and Harvard law professor Andrew Crespo, Reed argues the program unlawfully nullifies the authority of local gun statutes and courts, is arbitrary and capricious and retaliates against defendants who seek pretrial release in D.C. Superior Court.
In a July 3 declaration in Reed’s case, criminal division chief John Crabb said the U.S. attorney’s office intended to apply the program citywide, but limited resources made that “not . . . feasible.” Prosecutors instead focused on cases arising from D.C. police Districts 5, 6 and 7, which overlap with most of council Wards 5 and 7 and all of Ward 8, the District’s three easternmost sections.
The three districts have the highest rates of homicides, violent crime and gun recoveries citywide — accounting for 80 percent, 56 percent and 65 percent of the total, Crabb said. He said exceptions to the policy could be made on an ad hoc basis.
Prosecutors say the U.S. attorney has sole discretion on whether to charge defendants in local or federal court and that the policy’s public safety goals are consistent with the Home Rule Act and Congress’s organization of the courts.
“It was ultimately determined that the greatest impact would result from focusing on the MPD districts that had the highest rates of violent crime,” Crabb said, and that policy remained unchanged since taking effect Feb. 1, 2019.
The disclosure, Reed’s attorneys assert, contradicted claims by then-U.S. attorney Jessie K. Liu at a Feb. 5, 2019, news conference announcing the program, backed by Bowser and Newsham, the police chief.
Liu had declared that the program would be phased in so that by later 2019, authorities would be “bringing essentially all of these in [U.S.] District Court.”
If the targeting had been made public at the time, Reed’s attorneys said in court documents, Bowser, Newsham and Liu would have had to justify a policy that ran counter to the public and the D.C. Council’s intensifying focus on reducing racial disparities in policing and criminal justice.
Crabb acknowledged in the declaration that even within the office, a previously unknown “Working Group of Black AUSAs” — assistant U.S. attorneys — had formed to oppose the gun program and asked Sherwin in June to terminate it.
“It’s bad enough that D.C. is the only city in the country without any control over its local prosecutor,” Crespo said. “At a minimum, it deserves honesty and transparency from its U.S. attorney.”
Crespo declined to comment on the U.S. attorney’s office’s reported modification of the program, saying the change has not been reported to the court.
Liu declined to comment, citing active litigation, referring questions to the U.S. attorney’s office.
In court filings, the office called the “potentially disproportionate impact” of the policy on Black males or the perception of such an impact an important and “serious claim” to consider.
President Trump has accused Democratic mayors in D.C. and elsewhere of being soft on crime, but Bowser through her tenure has consistently agitated left-wing activists by increasing funding for police and working with the current administration’s Justice Department on the broadly announced gun crime policy.
Council Chair Phil Mendelson (D) was unavailable for comment, a spokeswoman said. Council members Kenyan R. McDuffie (D-Ward 5) and Trayon White Sr. (D-Ward 8) declined to comment, and the office of Ward 7 council member Vincent C. Gray (D) did not respond.
At the time the program was announced, 10 of 13 council members — including Mendelson and Gray but not McDuffie and White — signed a censure resolution opposing the initiative. The resolution called the program speculative, harsh and inconsistent with local lawmakers’ own efforts to modify local sentencing and reentry policies, especially for offenders younger than 25.
Opposing legislators said the measure would be unlikely to succeed and would be undemocratic. They were joined by groups such as the Urban Institute and American Civil Liberties Union, the latter calling the measure a “slap in the face to D.C. residents.”
Racine announced in April that his office will oppose the policy of prosecuting local gun crimes in federal court.
“Our office was not consulted on this policy before it was rolled out and did not learn about its discriminatory application until the USAO’s public court filing [July 3],” Racine said in a statement, adding, “OAG remains opposed to this policy.”
Over 18 months, evidence that the program has reduced crime has been mixed at best.
The District has reported a 45 percent jump in shootings as of Aug. 10 — a total of 570 shootings — compared with the same year-to-date period last year. The increase is reminiscent of a 40 percent climb in homicides in 2018 that prompted the program.
However, the number of homicides has been little changed since its launch — 161 for the 12 months ending February 2020, compared with 168 the year before the project began — although they are on pace this year again to climb 20 percent.
Assaults with a dangerous weapon also have increased each period, from 640 the year before the program was launched to 719 for the year after, and are on track to surpass 840.
According to Crabb’s declaration, 100 of 105 “stand-alone” federal felon-in-possession gun prosecutions were brought pursuant to the new policy in U.S. District Court in 2019 after the program’s launch, and 134 such cases were brought under District statute in D.C. Superior Court.
By comparison, comparable breakdowns of the case split between the courts were 22 and 175 in 2017; and 45 and 249 in 2018. The increased focus on federal gun charges was consistent with Justice Department policy and priorities set by then-attorney general Jeff Sessions.
The program, “which leverages significant FBI resources by a commitment to federal prosecutions, directly serves the attorney general’s overall enforcement plan of ‘identifying the leading violent offenders in our communities and employing all available tools to hold them accountable,’ ” prosecutors told the court, citing a 2017 department memo.
Peter Hermann contributed to this report.