James Forman Jr., a former staff attorney at the Public Defender Service of Washington, is the Pulitzer Prize-winning author of “Locking Up Our Own: Crime and Punishment in Black America.”
The movement for a more humane criminal-justice system has been gaining ground in cities, states and even the federal government. From Sen. Cory Booker (D-N.J.) to Suffolk County, Mass., District Attorney Rachael Rollins (D) to D.C. Attorney General Karl A. Racine (D), African American activists and elected officials have been at the vanguard. So why is D.C. Mayor Muriel E. Bowser (D) going in the opposite direction and doubling down on the destructive prison-first policies of the past?
This month, Bowser stood between D.C. Police Chief Peter Newsham and U.S. Attorney Jessie K. Liu and embraced a plan to funnel “felon-in-possession” gun crimes into federal court. Most people probably paid little attention — after all, the question of which court to file cases in is the sort of minutiae that most non-lawyers greet with a shrug. But this seemingly small change has important implications, all of them bad.
First, it will undermine recent efforts to offer second chances to young adults convicted of crimes. Last year, the D.C. Council wisely expanded the scope of the city’s Youth Rehabilitation Act. Under the new law, those who commit crimes before their 25th birthday have a chance to clear their records and start fresh. If they do everything the judge told them to do — for example, participating in counseling and other programs, getting a job and not committing another crime — they have a shot at asking the judge to “set aside” the conviction. Once the conviction is set aside, it will no longer haunt them every time they apply for a job, seek housing or attempt to serve on a jury. As the D.C. Council committee report endorsing the legislation said, the act “was designed to provide a fresh start to young adults, an age group highly susceptible to emotional and behavioral growth and development.”
These set-asides won’t be easily earned. But at least in D.C. Superior Court, they will be possible. Once young people in the District are forced into the federal system, however, they will permanently lose the chance to clear their records. The unforgiving federal law provides no such second chances.
Pushing cases into federal court also deprives District leaders of the chance to reexamine harsh sentences. An encouraging trend in criminal law has been the increasingly bipartisan move to reevaluate draconian laws of the 1980s and 1990s, from the notoriously racist 100-to-1 crack cocaine distinction to mandatory minimums to felon disenfranchisement. I hope and expect that this process will accelerate and that, one day, severe punishments that we take for granted today, including those for felon-in-possession, will be rolled back by lawmakers with bolder visions and broader imaginations.
But no such reexamination will ever be possible for D.C. residents shunted into federal courts. Once somebody has been prosecuted in federal court, they are lost forever to local officials, who have no jurisdiction over the laws under which federal defendants are sentenced. Any retroactive justice will have to come from the federal government.
Which brings me to a feature of the new policy that everybody should find objectionable: It is thoroughly undemocratic. The criminal laws that govern D.C. Superior Court are written by the D.C. Council, whereas the criminal laws that govern federal courts are written by Congress. As a result, in a city with no congressional representation, taking cases to federal court means moving them to a place where local citizens have no say in the law.
And here the end run around democracy is especially egregious. Last summer, the D.C. Sentencing Commission voted to change how it calculated felon-in-possession cases to resolve the long-standing problem of unfairly double-counting a prior conviction. The change resulted in a modest reduction in the guidelines’ sentencing range. The commission voted 9-to-1 in support of the change. Three D.C. Superior Court judges, representatives from the Attorney General’s Office and Public Defender Service, and two local citizen members were all in favor. The only dissenting vote? The U.S. Attorney’s Office.
Faced with this defeat, the U.S. Attorney’s Office could have lived with the new law. (It might even have thought, “Hey, if we are the lone dissenter, maybe we should reconsider our position.”) Or it could have taken its case to the D.C. Council and pressed for longer sentences for gun-possession crimes. But instead, it did what the feds have done for decades: circumvent city officials by removing cases from local court. The message is clear: If you don’t narrow your vision of justice to match ours, we’ll just go to federal court.
Local officials should protest this antidemocratic move. They should be standing up for home rule in deed, not just word. They should most certainly not, as Bowser has, capitulate to or collaborate with a federal law enforcement apparatus that has helped create and sustain mass incarceration.