The “felon-in-possession” initiative, announced in 2019, allows prosecutors to move gun cases from D.C. Superior Court to federal court, where defendants face stiffer penalties. The measure has the support of D.C. Police Chief Robert J. Contee III but is opposed by D.C. Attorney General Karl A. Racine. The D.C. Council has also criticized the policy for undermining local gun laws and the District’s “work to focus on reducing racial disparities in policing and criminal justice.”
In a letter this week, 87 former prosecutors say the initiative is at odds with the Biden administration’s concerns about mass incarceration and interest in overhauling the criminal justice system.
“We share the administration’s desire to combat gun violence in the District and across the country. But we also know that excessive terms of incarceration are the wrong way to achieve that goal,” according to the letter, organized by former D.C. federal prosecutors Jami Hodge, Akhi Johnson, Bianca M. Forde and Nicole Battle.
Harsh sentences, they say, exacerbate “mass incarceration without increasing public safety and it continues to disproportionately impact Black men.”
A Justice Department spokesperson did not immediately respond to a request for comment on the letter.
The debate played out Wednesday at a hearing in the case of John Victor Reed, who is challenging the policy after his arrest in 2019 on charges of possessing a stolen handgun.
The initiative began by targeting three police districts with a high number of homicides and illegal guns, primarily in Wards 5, 7 and 8. U.S. District Judge Emmet G. Sullivan asked why the policy targeted only certain areas of the city and not, for instance, Georgetown.
“People in Georgetown use drugs, they deal drugs, they carry guns,” Sullivan said.
Justice Department lawyer David Goodhand said the initial approach was driven by statistics and targeted the areas of the city with the highest rates of crime. The government, he said, has shifted to a citywide approach and to making charging decisions based on prior gun offenses or violent crimes.
Acting U.S. attorney Channing D. Phillips said in court filings that the office will “review and monitor” the policy and consider modifications.
Reed, 63, was arrested on the morning of March 11, 2019, for possession of a stolen handgun. Police found the gun after officers said Reed allowed them to search his Jeep during an investigation into suspected drug sales, according to a statement submitted by the police department.
The black handgun, which was loaded, was stowed in a backpack in the back passenger seat of the car near the 1500 block of Gales Street NE. Police said they found drug paraphernalia in Reed’s car and had observed an apparent drug sale outside his car before the search.
Reed’s lawyers said in court filings that the search of the car was illegal and unjustified, and that “any consent give” to search the car was “compelled and involuntary.”
His only previous conviction was in 1996 for a nonviolent offense.
Reed faces a substantially stiffer punishment in federal court than he would in D.C. Superior Court. On average, prison sentences are twice as high in federal court.
Unlike other cities with local or state prosecutors, D.C.’s governance structure means the U.S. attorney handles serious local crimes. Mark Wigley, a lawyer representing Racine’s office, said the policy undermines D.C.’s own laws and authority.
Between Feb. 1, 2020, and Feb. 28, 2021, the U.S. attorney’s office charged 87 “felon-in-possession” cases federally and 217 locally.
Sullivan said that he was sympathetic to the argument as a lifelong D.C. resident but that the court is constrained by past Supreme Court decisions that caution judges against second guessing prosecutorial decisions.
“If I could rule from my heart, you would win in a heartbeat, but I can’t rule from my heart,” Sullivan said. He noted that because D.C. is not a state, city officials do not have exclusive authority when it comes to prosecuting crimes in the city.
Sullivan said he would rule soon on Reed’s request to dismiss the case.
Before the hearing, the Justice Department tried unsuccessfully to make a deal with Reed to end the case. Reed rejected the government’s offer to charge him under D.C. — not federal — law, in exchange for pleading guilty.
Sullivan alluded to the underlying issue of reducing gun violence in D.C. and mentioned the shooting Tuesday night of a young child and his mother near the Shaw and Logan Circle areas of the city.
He asked: “Why can’t the federal government and D.C. government team up and more forcefully work together in an effort to get the guns off the street?”