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Fox News and pundits’ “soft on crime” smears are bogus.

Fox News and pundits’ “soft on crime” smears are bogus.

Fox News and pundits’ “soft on crime” smears are bogus.

If you only read conservative and centrist pundits, you’d think the District of Columbia is about to embark upon a frightening experiment to weaken or abolish criminal penalties for violent crime. Fox News has devoted frenzied coverage to the claim that D.C. is “softening” its criminal laws. Republican politicians like Sen. Tom Cotton have seized on the story, as have conservative commentators like Erick Erickson, who cited it as evidence that Congress should abolish self-governance in the District. The Washington Post editorial board opined that a new “crime bill could make the city more dangerous,” claiming it would “tie the hands of police and prosecutors while overwhelming courts.” This coverage all repeats the same two claims: that D.C. is poised to slash prison sentences for violent offenses, and that these reforms will lead to more crime.

Neither of these claims is true.

The legislation that D.C. passed in January is not a traditional reform bill, but the result of a 16-year process to overhaul a badly outdated, confusing, and often arbitrary criminal code. The revision’s goal was to modernize the law by defining elements of each crime, eliminating overlap between offenses, establishing proportionate penalties, and removing archaic or unconstitutional provisions. Every single change is justified in meticulous reports that span thousands of pages. Each one was crafted with extensive public input and support from both D.C. and federal prosecutors. Eleventh-hour criticisms of the bill rest on misunderstandings, willful or otherwise, about its purpose and effect. They malign complex, technocratic updates as radical concessions to criminals. In many cases, criticisms rest on sheer legal illiteracy about how criminal sentencing actually works.

The D.C. bill is not a liberal wishlist of soft-on-crime policies. It is an exhaustive and entirely mainstream blueprint for a more coherent and consistent legal system.

Efforts to revise the District’s criminal code began in 2006. Lawmakers recognized that D.C.’s criminal laws were a mess—the product of legislation enacted by Congress in 1901 and tweaked in piecemeal fashion ever since. Countless jurisdictions across the country overhauled their criminal codes beginning in the 1960s, and the city council acknowledged that D.C.’s was overdue for a fresh look. In 2016, the council finally commenced the project in earnest by creating the Criminal Code Reform Commission (CCRC). Councilmembers directed the commission to pore over the books, identify existing problems, and recommend comprehensive solutions.

The CCRC consisted of staff attorneys and an advisory group of experts. The latter included representatives from the U.S. attorney’s office and the D.C. attorney general’s office, separate entities that prosecute all crimes and misdemeanors committed in the District. The commission held dozens of public meetings over four years, then published minutes and audio recordings from each one. In 2021, it published hundreds of pages of recommendations accompanied by thousands of pages of commentary. It also published well over 2,000 pages of appendices containing every draft document, study, chart, table, and data compilation used in its work. This massive array of materials allows an interested reader to learn exactly how the commission carried out its mandate in painstaking detail.

At the end of the process, the advisory group voted unanimously to submit its recommendations to the council. To reiterate, that group included representatives from the two offices that prosecute crimes in D.C. The D.C. Council unanimously passed the bill—known as the Revised Criminal Code Act, or RCCA—after making relatively small changes. The U.S. attorney’s office did not oppose final passage and the D.C. attorney general affirmatively supported it. Yet Mayor Muriel Bowser vetoed the bill, expressing the spurious concerns echoed on Fox News. The council easily overrode her veto. It will take effect in 2025.

What problems did the RCCA address? Where to start: One of the biggest issues is that the old code fails to identify the elements of countless offenses. These omissions force the D.C. Court of Appeals to fill in the blanks, creating ongoing uncertainty about what the law requires. Some offenses are, on the page, incredibly broad; a kidnapping statute that carries a 30-year maximum sentence, for instance, could encompass giving someone an unforeseen hug. Others are vague, like simple assault—a commonly charged offense whose elements are not defined in the current code. This confusion makes it more difficult to combat crime: Prosecutors are less likely to bring charges when they aren’t sure what they’ll need to prove to secure a conviction. The RCCA ensures that each offense is defined so that courts, prosecutors, and defendants know what is (and what isn’t) criminal conduct.

Vague crimes also lead to inconsistent and arbitrary sentences. Consider the example of robbery. In the current code, there’s a single robbery statute with a maximum penalty of 15 years. It covers everything from nonviolent pickpocketing to beating someone up so badly that they’re hospitalized. Even snatching a pizza from a delivery driver and refusing to pay qualifies as robbery under the current code. And the penalty for the offense doesn’t change if the offender was armed (though other gun offenses may apply). The RCCA, by contrast, divides the crime into armed robbery and unarmed robbery, then breaks each category into first-degree, second-degree, and third-degree offenses.

Third-degree unarmed robbery covers conduct that involves verbal threats or minor injuries like a bruise; the maximum sentence is two years. Second-degree unarmed robbery covers more serious injuries like a broken arm; the maximum sentence is four years. First-degree unarmed robbery covers life-threatening injuries; the maximum sentence is 14 years. These sentences are much higher if the person has a weapon, imposing a maximum penalty of 20 years on top of the sentence for additional weapons offenses.

This nuance is not reflected in the discourse. A critic of the RCCA could claim that the maximum sentence for robbery has dropped. In a misleading sense, that’s true: A pickpocket who would’ve faced a max of 15 years now faces a max of two. But in reality, the RCCA has brought the penalty in proportion to the severity of the crime by creating gradations. It reserves longer sentences for people who commit worse crimes. First-degree armed robbery is punishable by 20 years in prison, a sentence Fox News recently characterized as “a slap on the wrist.” That person is also subject to punishment under a separate chapter that covers weapons offenses. A thief who grabs a woman’s wrist then runs away with her purse deserves to be punished. They do not deserve the same punishment as a thief who beats that woman half to death.

The panel at The Five
Screengrab via Fox News

These changes are not driven by any kind of philosophy about decarceration; they are driven by data. Judges have immense discretion in sentencing and rarely if ever impose maximum statutory penalties. To see which sentences judges are actually imposing, the commission looked at average sentences in other jurisdictions, and acquired data from the D.C. Superior Court covering every adult case from 2010 to 2019. It crunched the numbers to identify what sentences D.C. defendants faced in the real world, then based its revisions on these figures. So, for example, the median sentence handed down for robbery in D.C. was 33 months. The harshest sentences reached about nine years. That’s well below the maximum penalty under the current code and the revised code. The revision brings the statutory penalties closer to real-world sentences, but still gives judges ample discretion for extreme sentences.

Consider a crime that’s currently spiking in the District: carjacking. Under the current code, the maximum sentence for armed carjacking is 40 years. That’s the same penalty as second-degree murder, and more than double the penalty for second-degree sexual assault. It is wildly disproportionate to the offense by any standard. No one—not even the most violent and incorrigible offenders—is sentenced to 40 years for carjacking in D.C. The most conservative, tough-on-crime judge would never dream of handing down anywhere close to a 40-year sentence for a single carjacking. Rather, the harshest penalties handed down today run about 15 years. In recognition that some rare cases may warrant even longer sentences, the RCCA authorizes a 24-year maximum sentence for carjacking. That’s nine years longer than the lengthiest sentences today.

But even the 24-year figure misrepresents how harsh carjacking and other sentences can still be. The RCCA allows judges to “stack” sentences in some instances by running them consecutively. It also includes sentence enhancements for offenders who are armed or who have a criminal record (to give just two examples). A felon who commits armed carjacking can be charged not only with armed carjacking but also with possession of a firearm by an unauthorized person and carrying a dangerous weapon. And their sentence can be enhanced due to the prior convictions. Under the new code, a carjacker’s sentence can easily stretch beyond 30 years.

That’s if the carjacker does not kidnap or kill the victim. Tack on kidnapping or homicide, and the carjacker effectively faces a life sentence.

Thus, when pundit Matt Yglesias tweeted that it was “odd” for D.C. to “reduce the penalties for carjacking,” his claim was technically accurate—but, in every important sense, profoundly wrong. Judges can impose the same sentences they are handing down today. Violent carjackers can still be condemned to die behind bars. Their sentences will simply align more closely with the penalties on the books.

You might ask, then: Why bother to change these sentences in the first place? In addition to the problems with vague and unconstitutional provisions, the new code puts crimes and punishments in a more logical order. Stealing a car should not have the same penalty as taking a human life. And that’s just one of many baffling examples. For instance, the existing code imposes a higher penalty for threatening to destroy someone’s property than for actually destroying it. This kind of disproportionality erodes faith in the system, creating a situation where lesser crimes can carry higher penalties.

As these examples illustrate, the notion that the RCCA “softens” penalties for violent crime—especially carjacking and gun offenses—is false in every way that matters. To the contrary, the law increases penalties for a variety of crimes in ways designed to make their prosecution easier. The max penalty for several sex offenses is significantly higher under the RCCA. So is the max penalty for possessing an assault rifle, ghost gun, large capacity magazine, or bomb. And the max for attempted murder surges from five years to 22.5 years.

The RCCA even introduces a new crime, endangerment with a firearm, to solve a problem that bedevils police and prosecutors: When an individual fires a gun in public, it can be difficult to prove that they were trying to injure or kill someone. Charges for attempted assault or murder come apart when prosecutors cannot prove intent. So the new offense makes firing a gun in public a standalone felony—imposing tougher penalties on gun crimes, not lighter ones.

One change that’s drawn outsized attention is a reduction in the maximum penalty for being a “felon in possession”—that is, possessing a gun when you have a prior felony conviction. The RCCA drops the max for the charge from 15 years to four, for several reasons. First, being a felon in possession is not a crime of violence. It applies when an individual merely owns a gun, even if it’s sitting unused in their closet. If they ever carry or use it, the penalties shoot up dramatically. Second, no court hands down a 15-year sentence for possession alone, because it’s wildly disproportionate to the offense; the vast majority of people are sentenced to far less than four years. In the decade covered by the commission’s study, the minuscule number of people who did receive a sentence over four years were all convicted of an additional offense, like robbery, and had a prior conviction. And remember, under the RCCA, judges can stack sentences for these other crimes.

Finally, the new code includes separate offenses based on what the felon does with their gun. If they carry it outside, for instance, they face up to four more years in prison, on top of the four years for possessing it in the first place.

Possessing a firearm with a prior conviction is bad. Carrying it in public is worse. Using it to commit a crime is a different category altogether—a violent crime. The RCCA recognizes these differences and scales sentences accordingly. That should not be controversial. Critics of the bill have tried to make this particular revision sound radical by claiming—as Pete Hegseth said on Fox News—that the four-year max applies to “someone who commits a violent crime, a felony, even with a handgun.” But that is flatly false.

What’s so frustrating about the spigot of misinformation about the new law is that the RCCA is not, and has never been, designed to reduce incarceration in D.C. The District has one of the highest incarceration rates in the country, yet the commission was not instructed to consider mass incarceration when revising the code. Its revisions are thus in line with uncontroversial moves conducted in red and blue jurisdictions alike since the 1960s. Other changes are just plain-vanilla criminal justice reforms espoused by mainstream Democrats like President Joe Biden. For instance, the bill abolishes most mandatory minimum sentences, relics of the 1980s that create extreme racial disparities. (It retains several, including for first-degree murder.) Mandatory minimums are opposed by Biden himself and strongly discouraged by Attorney General Merrick Garland’s Justice Department. The U.S. Attorney for D.C. agreed with eliminating almost all mandatory minimums in the D.C. code, including for carjacking.

The RCCA also restores jury trials for misdemeanor offenses, which D.C. only eliminated in the 1990s due to judicial budget cuts. (The current lack of jury trials rests on dubious constitutional ground.) And the bill allows individuals to petition for release after 20 years’ incarceration if they can prove full rehabilitation, expanding a widely hailed “second look” program that currently applies only to young offenders.

The notion that these or any other reforms in the RCCA could increase violent crime is not borne out by data. It is abundantly clear that ultralong prison sentences do not deter criminal behavior. To the contrary, there is evidence that shortening sentences can reduce crime, since longer sentences appear to increase the odds of recidivism. Perhaps the RCCA should reduce penalties across the board, but that’s a debate for another day.

The new code will not make D.C. more dangerous. It will make D.C.’s criminal legal system more coherent and consistent. The smears against it by politicians and media figures do not withstand any serious scrutiny. Those attacking the RCCA are either too ignorant to learn what it really does or too dishonest to care.