October 24, 2022

D.C. Council
Committee on Judiciary and Public Safety
1350 Pennsylvania Ave NW
Washington, D.C. 20004

Dear Members of the Committee on Judiciary and Public Safety:

Heather N. Pinckney The Public Defender Service again voices its support for the passage of the
Director Revised Criminal Code Act as a package, in the manner that it was delivered
to the Council by the Criminal Code Reform Commission (CCRC), after years
Rudolph Acree, Jr.
Deputy Director of work by the CCRC that built on more than a dozen prior years of work. In
total, the Revised Criminal Code Act package was nearly 20 years in the
making; it represents a significant step forward in improving clarity, reducing
overlapping offenses, and modernizing both crimes and punishments from our
current antiquated criminal code. The Revised Criminal Code is both well-
researched and evidence-based. It was created after significant engagement
with an Advisory Committee that included criminal legal system agencies and
local law professors. Despite this, the Revised Criminal Code does not embody
BOARD OF TRUSTEES every reform for which the Public Defender Service advocated. Prison
Jonathan L. Stern
sentences remain too long, and the District continues to rely too heavily on
Chairperson incarceration and punitive criminal system responses where more empathy,
Vacant compassion, and prevention through meaningful investment in our
Vice Chairperson communities is needed. Nonetheless, PDS supports the package of reforms, as
Barry Caldwell a whole, for the improvements in fairness that it will bring to District residents.
Joseph P. Caleb
Lisa Greenman Recently, the United States Attorney’s Office (USAO) criticized several
Brandi Harden aspects of the Revised Criminal Code package including the expansion of jury
Larry Moon, Jr. trial rights, the reduction of statutory maximum sentences for offenses such as
Bonnie Politz robbery and burglary, and the elimination of most mandatory minimum
Michael Satin sentences. The USAO’s criticisms and requests for amendments to the code
Deborah Shore reform package should be rejected. The USAO and PDS were members of the
Leslie T. Thornton Advisory Committee and took the opportunity in almost monthly meetings
Sylvie Volel
over the course of years to advocate for their respective positions. The USAO
and PDS persuaded the CCRC on many of their respective points and failed to
633 Indiana Avenue, NW persuade the CCRC on many others. PDS is not now seeking piecemeal
Washington, DC 20004 amendments to the committee print because PDS recognizes that unraveling
Tel (202) 628-1200 this package of reforms threatens the overall improvements in fairness and
(800) 341-2582 clarity that the Revised Criminal Code provides. The USAO’s requests would
TTY (202) 824-2531 also undermine a project that has been driven by research and expertise and
Fax (202) 824-2784 imbue it with political considerations the likes of which helped create the
www.pdsdc.org deficiencies and inconsistencies in the current criminal code.
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With respect to jury trials, the District has one of the most restrictive, least democratic systems.
Currently, individuals do not have the right to a jury trial even in cases in which a conviction will
certainly lead to job loss, the loss of housing, and deep personal impacts. District residents lost
the right to a jury trial in the 1990s when the Council concluded that efficiency and moving cases
as quickly as possible through the system was more important than guaranteeing the protection
of individual rights. The CCRC’s recommendation to restore jury trial rights came after careful
consideration of the issue which included listening to the views of all of the Advisory Committee
members, including the Office of the Attorney General, PDS, and USAO and two local law
professors, Donald Braman and Paul Butler, and researching the law of other jurisdictions. As a
result of that research and those inputs, the CCRC decided to restore jury trial rights in stages,
with a lengthy implementation period.

It is not surprising that the United States Attorney’s Office is mounting a late stage effort to
deprive District residents of the right to a trial by jury. The USAO has continuously advocated
and acted to diminish jury trial rights in the District. Under the U.S. Constitution, the right to a
jury trial is guaranteed any time a potential punishment is 6 months or more of incarceration.
Each time a new misdemeanor offense has been proposed by the Council, the USAO has argued
for a 180-day maximum sentence, which is below the 6-month constitutional threshold for jury
trials, precisely to deprive District residents of their right to a jury trial. When the D.C. Council
passed the NEAR Act 1, it included the right to a jury trial in each instance that the USAO
charged the 180-day offense of assault on a police officer. Since the Council guaranteed the right
to a jury trial for the specific offense of assault on a police officer, the USAO began charging
simple assault, the 180-day offense that can be used for assaults on any person, in order to
bypass the Council’s clear intention that District residents serve as the jury of peers for persons
accused of the offense of assault on a police officer.

Given the USAO’s consistent opposition to and thwarting of jury trial rights, the Council should
not be swayed by the USAO’s most recent effort to stall the District’s progress with its claimed
concerns about efficiency and case processing. If real concerns surface about the Court’s ability
to bring jurors to serve, or if there is a need to create smaller juries in misdemeanor cases, the
Criminal Code Reform Commission, now a permanent body, is in the best position to study the
issue with care and provide recommendations to the Council. No changes should be made to the
Revised Criminal Code jury trial provisions in the days before voting on the entire package
begins.

With respect to prison penalties for the offenses of burglary, robbery, and carjacking, the USAO
is again asking the Council to discount the copious evidence reviewed by and lengthy research-
based process undertaken by the CCRC. Sentences in the District remain long under the Revised
Criminal Code. Statutory maxima for offenses in the District’s current code are often very high
because they reflect the political and often emotional judgments of the time and apply to offenses
that cover a broad range of conduct. For example, the current 60-year maximum for armed
burglary of an occupied home includes conduct where the occupant of the home has no

1
Public Law, 21-0125, Effective June 30, 2016. The NEAR Act also separated the offenses of assault on a police
officer and resisting arrest, narrowed both offenses and made both offenses jury demandable.
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interaction with the would-be burglar, learns of the burglary only through video footage, and
where the conduct involves reaching a hand through an open window in order to take a jar of
change from the window ledge all while carrying, but not using, a firearm. The Revised Criminal
Code Act appropriately divides offenses such as burglary and robbery into classes where the
maximum sentence can then be more closely calibrated with the harm inflicted, and leaves the
option for the prosecution to pursue additional charges when, for example, the robbery or
burglary results in an injury. The classes and statutory maxima chosen by the CCRC are data-
driven and reflect the sentences that are currently imposed in Superior Court for the prohibited
conduct at issue. In this respect, the Revised Criminal Code provides more proportionality
between the statutory maximum sentence and the conduct while aligning with current sentencing
practices.

Similarly, the USAO’s request that the Council amend the Revised Criminal Code to
include mandatory minimum sentences for many offenses committed with a firearm should also
be rejected. Mandatory minimum sentences serve essentially one purpose: to transfer power from
judges to prosecutors. Mandatory minimums force judges to impose the sentence that reflects the
criminal charge picked by the USAO. Mandatory minimums prevent judges from looking at an
individual’s personal circumstances, the role that the individual played in the offense, their post-
offense conduct, or the myriad of factors that judges should consider when imposing a sentence
that will forever alter the individual’s life and the lives of their family members. As noted by one
federal appellate judge, mandatory minimums dehumanize people by acting as “sledgehammers
rather than scalpels,” falling with equal force on people whose circumstances are dramatically
different from one another and preventing judges from calibrating punishment to suit the person
or the crime. 2 The power differential created by mandatory minimums also means that the
prosecution can coerce individuals to plead guilty or falsely testify against others, thereby
creating the substantial risk of wrongful convictions. 3 Mandatory minimums have also been
found to drive race-based disparity in sentencing with prosecutors using mandatory minimum
charging against a far greater number of Black individuals as opposed to white individuals. 4 This
proposal, by the USAO, like the others, should be rejected.

2
Judge Stephanos Bibas is an appellate judge on the U.S. Court of Appeals for the Third Circuit. See Alison Seigler,
Analysis: End Mandatory Minimums, The Brennan Center, 2021. Available at: https://www.brennancenter.org/our-
work/analysis-opinion/end-mandatory-minimums
3
To be clear, PDS is not arguing that the USAO seeks guilty pleas or cooperating testimony knowing the pleas or
testimony are false. Rather, the USAO uses charges that carry mandatory minimum sentences to leverage the guilty
pleas or testimony heedless of the fact that the threat of years in prison is as powerful against the innocent as against
the culpable.
4
M. Marit Rehavi and Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, University of University of
Michigan Law School, faculty scholarship, 2014. “In the federal system, more than half of the black-white sentence
disparity that is unexplained by the arrest offense and offenders’ prior traits can be explained by initial charge
decisions, particularly the prosecutors’ decision to file charges that carry “mandatory minimum” sentences. Ceteris
paribus, they do so 65 percent more often against black defendants. These findings highlight the empirical
importance of obtaining measures of criminal conduct that are not themselves the product of the legal process. They
also suggest that recent policy and scholarly debates that have focused heavily on the disparity risks associated with
judicial discretion may have overlooked one of the most important actors: the federal prosecutor.” Available at:
https://repository.law.umich.edu/articles/1414
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Ultimately, the Revised Criminal Code is the product of a thoughtful and deliberate
process by an expert body that benefited from a fully engaged group of stakeholders. It should
not be taken apart now, on the eve of its passage, in a way that listens to one voice, discounts
others and that sets aside the expertise of the CCRC. The Revised Criminal Code will
meaningfully advance the case of democracy, fairness, and criminal system reform. PDS
continues to believe that prison sentences are too long and that the criminal legal system is
overly punitive, but PDS recognizes that this reform is substantial and believes that the package
should pass as it was submitted and as a package. When experience with the new Code evidences
a need for amendments, the CCRC will remain available to the Council to meet those needs.

PDS welcomes the opportunity to meet with Councilmembers and staff in order to further
discuss the Revised Criminal Code.

Sincerely,

Laura E. Hankins
General Counsel
PDS Representative to the Criminal Code Reform Commission Advisory Group

Katerina Semyonova
Special Counsel for Policy and Legislation