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Last week, under the leadership of Councilmember Brooke Pinto, the Council’s Judiciary Committee approved legislation that includes proposals from Mayor Bowser, the Police Chief, the United States Attorney, and ten bills proposed by colleagues. The first of two Council votes will happen February 6th.
Changes to the criminal law include:
- Establishing a rebuttable presumption in favor of pretrail detention for violent crimes
- Expanding/clarifying the definition of carjacking to facilitate prosecution
- Establishing a new felony offense for endangerment with a firearm
- Permitting DNA collection earlier in the process for serious offenses
- Permitting GPS records to be admissible in court
- Establishing a new crime for “directing organized retail theft”
- Clarifying the law to allow police chases when there is an imminent threat
- Enabling better enforcement of civil penalties for fare evasion
While these changes (and others in the bill) will undoubtedly help law enforcement, I continue to insist that the greatest deterrent to crime is arresting the perpetrators. This seems obvious, but it is not happening.
Last year there were 274 homicides in the District – up from 203 in 2022. And yet less than half of homicides are closed with an arrest within 12 months. Less than half.
Last year there were 958 reported carjackings (77% of them involved guns), and yet only 260 (27%) were closed with an arrest. 73% of carjackings went unpunished!
The Council can, and will, change and toughen the criminal law through upcoming legislation. But when people don’t get caught, it doesn’t matter what we do to the law. Most criminologists believe that the best approach to crime is swift and certain justice. That needs to happen here.
Many believe that for those who get caught there should be tougher sentences. But in order to sentence, there first needs to be successful prosecution. Let’s look at that.
All felony prosecutions are handled by the United States Attorney. The USAO does not publish prosecution or declination rates. However, the Washington Post reported in October that the USAO declined to prosecute 67% of cases in Fiscal Year 2022, and declined to prosecute 56% of cases in Fiscal Year 2023 (ending September 30th). We know, though, that the prosecution rate is higher, around 88%, for violent crimes committed with a gun.
Despite these confusing numbers – confusing because data is not made available – it is clear that even if one is arrested (and the chance of that is below half), there is a chance that they will not be prosecuted. Or to put it simply (and depending on the crime): there is a 50% chance of getting caught, and if you are caught, a 50% chance you’ll not be prosecuted.
According to the blog post Prosecution is still broken in DC : “What it means when the USAO declines to prosecute ~47% of arrests is that every month hundreds of people are being arrested, released without charges and in a number of cases going on to commit new crimes. Or their example of ‘getting away with it’ helps encourage others to engage in (more) crimes.” Hardly swift and certain justice.
So far neither the Council nor the courts has had a role: we don’t solve crimes, make arrests, or decide whether to prosecute.
Yes, the Council does prescribe sentences in the law. For instance, first degree homicide carries a 30-year mandatory sentence – mandatory. No discretion to the courts. (Not much of a deterrent, since last year DC suffered the highest number of homicides in 30 years.) But despite all the killing, in 2022 there was not even one conviction for first degree homicide. Zero.
This is because the primary driver of sentences is the plea bargaining conducted by the U.S. Attorney’s Office. In 2022, 96.8% of all felony convictions were plea bargained. To be clear, I support plea bargaining. But the pleas are negotiated by the prosecutor, and the prosecutor should not then turn around and blame the Council or the courts for his own work.
Of all the violent crime that occurred in 2022 – it was over 4,300 – there were only about 50 sentences of 10 or more years. I agree with the U.S. Attorney that this is shockingly low. But when less that half of felonies are closed with an arrest, less than half of arrests are actually prosecuted, and virtually all of the prosecutions are settled with a plea bargain, it is not correct to blame either the Council or the Courts.
For example: Nathaniel Bates shot a man six times during an alleged robbery in 2020. The homicide occurred while he was on pre-trial release. The initial top charge was first degree murder while armed, which carries a maximum penalty greater than 30 years. He was additionally charged with other felonies. But the USAO offered a plea deal with a sentence of 7 years incarceration and 5 years supervised release. The judge was uncomfortable with the plea deal but ultimately accepted it since both the prosecution and defense agreed to it.
The “Secure DC” crime bill will help, but the real focus should be on increasing arrests and more aggressive prosecution.
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