The D.C. Council on Thursday will start working its way through a sweeping rewrite of the city’s criminal code, a deep-in-the-weeds and yet potentially consequential effort to better define crimes, clarify terms and penalties, and repeal outdated offenses — some dating back more than a century.
The proposal could also have a more immediate impact on the city’s criminal justice system. It recommends that the right to a a jury trial be restored for most misdemeanor offenses, scraps mandatory minimum sentences, and gives anyone who has served 15 years in prison a chance to petition a judge for early release.
The push to review and suggest revisions to the hundreds of pages of law that make up the city’s criminal code started in 2016, spearheaded by the independent D.C. Criminal Code Revision Commission. Last month the commission submitted a 325-page bill to the council encompassing its proposed changes; Thursday’s public hearing will be the first of a series on the commission’s bill.
Many states have already undertaken such reviews, often drawing on the Model Penal Code — a 1962 recommended draft of changes to criminal codes produced by the American Legal Institute — as a guide. But D.C. hasn’t, and in 2000 three law professors ranked its criminal code as one of the worst in the country based on how clear, well-defined, and consistent it was. (Regionally, Maryland fared even worse, Virginia only slightly better.)
Advocates say that the holistic revision isn’t only timely — much of the city’s criminal code still dates back to the original version passed by Congress in 1901, and still includes references to stables and steamboats — but could make changes big and small that will impact who gets charged with what crimes and what sentences they could face.
“We’ve done the legwork to draw up a blueprint, a redesigning not only of an offense here that’s bad or an offense there that’s poorly drafted, but to systematically try to redesign the system so that it is clearer, more fair, more proportionate,” says Richard Schmechel, the executive director of the commission.
Other advocates say the process of revising D.C.’s criminal code would also build on more recent efforts to address disparate impacts of the criminal justice system.
“Racism in the U.S. and in our criminal justice system is a systemic issue. You can’t fix systemic issues with ad hoc changes, you need a systemic revision, and that’s what these changes will do,” says Casey Anderson of the Council on Court Excellence.
On a the lighter end of things, the commission has recommended repealing outdated laws that prohibit the playing of ball games in the street (specifically bandy and shinty, British variations on hockey) and another requiring that livestock being transported through the city be given at least five hours of “rest, water, and feeding” if confined in a railroad car for more than 24 hours. The commission also says D.C. should do away with common law offenses like the one dating back to the 1800s that outlaws “common scolds” — at the time, the term for a troublesome woman who disturbs the peace.
On the more serious side, the commission also suggests clarifying the statute that makes rioting a crime by better defining how many people engaging in specific acts would constitute a riot. The existing rioting charge has been used extensively against anti-Trump and racial justice protesters, much to the chagrin of civil libertarians who say it’s broad, ill-defined, and punitive. It also tackles better definitions for crimes like robbery, kidnapping, and assault, the latter of which is the most-charged offense on an annual basis in D.C.
Advocates and attorneys say that current vague definitions of specific crimes and limited range of suggested punishments gives more power to prosecutors and judges to determine when someone should be charged with a crime.
“One of the core problems with the District’s current code is that it relies very heavily on judicial decisions to not only figure out how to apply the law, but fundamentally what the law is,” says Schmechel. “Go back to the Schoolhouse Rock version of what a law is, and it’s fundamentally a legislative responsibility to state what the law is, particularly in criminal law, where the stakes are so high. And unfortunately, the model of drafting criminal statutes back in the 19th century, it’s the structure that we continue to have in the District that continues to rely on judicial opinions to supply the basic elements of the offense and what the defenses are.”
That was on display earlier this summer, when an associate judge on the D.C. Court of Appeals lambasted the city’s kidnapping law as vague and over-broad — and said past court interpretations of the law could lead to “absurd” applications of the law, which can carry up to 30 years in prison for a conviction. (The case involved a D.C. man who in 2016 briefly grabbed and sexually assaulted a woman on a D.C. sidewalk; he was charged with and convicted of kidnapping and and sexual abuse.)
“Our precedents instruct that all contacts obstructing or forcing the movement of another without their consent are kidnappings,” wrote Associate Judge Joshua Deahl in a late July opinion. “Holding somebody back from a fight, surprising an old friend with an unforeseen hug, grasping another to alert them to a dropped wallet — kidnapping, kidnapping, kidnapping. Kidnappings abound in our daily lives in the District. As if marauders in a dystopian hellscape, our past kidnappings are too many to count, and our future transgressions are inevitable.”
The commission proposes better defining what kidnapping is, adding various degrees of the offense, listing affirmative defenses, and specifying increasing punishments based on the severity of the offense.
The commission’s bill also proposes some consequential changes to the city’s criminal justice system, including restoring and expanding the right to a jury trial for people accused of committing misdemeanors (that right was restricted in 1992 amidst a spike in violent crime) and also giving anyone who has served 15 years in prison a chance to petition a judge for a reduced sentence or early release. (Under current law, that’s limited to people who committed an offense prior to turning 25.) It would also do away with mandatory minimum sentences.
“There is not a jurisdiction in this country that wouldn’t benefit from this type of comprehensive review of its criminal statutes, and that includes Congress,” said Kevin Ring, president of FAMM, which advocates for changes to the criminal justice system, in a statement. “Criminal codes across the country are seemingly ever-expanding, and it’s rare to see any jurisdiction take the time and effort to review its code from top to bottom.
Schmechel says he understands that not everything the commission proposes will become law, and that political disagreements over certain provisions may certainly arise. That could especially be the case with the U.S. Attorney for D.C., who prosecutes violent crime in the city and has in the past weighed in when local lawmakers have made changes to criminal statutes.
“Now that we’ve handed it off, it is a bill and it’s up to the council what to do with it,” he says.
