Congress’s rejection of the D.C. criminal code overhaul comes on the heels of public discontent and valid concerns over violent crime rates, which are declining in most cities but remain well above 2019 levels. While it lost this beltway battle, the District was right to tackle its outdated sentencing laws and should go back to work. In doing so, city leaders still have a chance to satisfy congressional concerns and, most importantly, do more to reduce community violence and recidivism among people returning home from prison.
The District’s code dates back more than a century and has been ranked by law professors as one of the nation’s worst on objective metrics such as clarity. Laudably, D.C.’s revision process provided many opportunities for robust public input on how to streamline and improve the code. Comprehensively reviewing criminal statutes to ensure they reflect decades of research and current consensus is warranted, and indeed many red states — from Arkansas to Kansas and Utah — have sentencing commissions that help perform this function.
The failed proposal would have raised the maximum penalties on some serious crimes and lowered penalties on others, while also making changes to criminal procedure and many other non-controversial technical updates.
Though there is room for improvement, many aspects of the code rewrite are either misunderstood or grounded in solid research. For example, there is a large body of research that finds diminishing public safety benefits of longer prison terms. Most recently, an analysis for the Council on Criminal Justice Task Force on Long Sentences found no substantial difference in total new arrests connected to whether someone served another year, two years, or three years beyond 10 years. This is unsurprising given longstanding knowledge about the negative correlation between aging and crime.
Nonetheless, as the D.C. Council seeks to account for congressional feedback in its worthwhile, though complex, undertaking, it should make at least three adjustments.
First and most importantly, D.C. should add a transitional portion to the sentence for those convicted of serious crimes such as carjacking and armed robbery. Under this approach, after being granted parole or completing the prison portion of their sentence, most people, absent an exigent circumstance such as medical limitations, would be placed in a work release program while staying at a facility in the district. These facilities could be modeled after correctional facilities in Germany where most residents leave the grounds during the day to work. The length of stay in such settings could depend in part on progress. In Minnesota, the final eight months of many prison sentences can be spent on work release.
Adding such a presumptive transitional period would not just be a sop to critics of the new sentence ranges, but also would buttress public safety by addressing a structural weakness of our corrections system — the housing of incarcerated people far from their homes — that is more acute in D.C. than any other jurisdiction. Because the District has no equivalent of state prisons and only two local jails, a few thousand of its people are serving their time in federal prison, and two-thirds of them are in federal lockups outside of D.C., Maryland, and Virginia. This makes family and legal visitation, as well as successful reentry, much more difficult.
Unsurprisingly, research has found that those in prisons at greater distances from their home, as well as those from areas of concentrated economic disadvantage, receive less frequent visitation. Yet more frequent visitation is correlated with reduced recidivism.
In fact, the D.C. city government is pursuing plans to build one or more facilities designed to focus on rehabilitation rather than punishment, which would allow for the incarceration of some D.C. residents close to home, rather than as far away as California. The need to bring the incarceration experience closer to home was among the findings of a February 2021 D.C. report on jails and justice.
But while it is arguably ideal for D.C. to eventually house its incarcerated residents locally, the immediate priority should be to create transitional programs and processes to smooth reentry. Given that the proposed penalty changes would be prospective, there is sufficient time to ramp this up.
There is promising evidence on this strategy from Florida. Both public and privately-run work release programs have cut recidivism in that state, though the private programs have been more effective at promoting employment. Key components include job training, housing assistance, assistance with obtaining photo identification, and other services tailored to an individualized reentry plan. Though the U.S. currently has 10.8 million unfilled jobs, those who do not find work in the private sector could be assigned to positions in city government that correspond to available opportunities in the private sector, or spend their day in a vocational program.
The federal Bureau of Prisons could also play a role by expanding access to programs behind bars. Too many D.C. residents serving time in federal facilities, like so many other incarcerated people across the country, are not receiving adequate preparation for reentry. A 2021 survey of D.C. prisoners found that only 11 people out of 1,024 who were nearing their release date had completed at least one parenting, technology, or vocational education program. This is unacceptable, given our extensive knowledge about effective prison programs and the positive impact they have on reentry and recidivism
Second, although D.C. has conducted six years of study and produced more than 2,000 pages of appendices, officials should complete a projection of code revision’s impact on future prison admissions and annual bed-days. In turn, Congress should remit at least some of the money saved by the federal government to D.C. to support the transitional capacity needed for the work release and other reentry programs. This would mirror the success of justice reinvestment in dozens of states. Notably, D.C. residents pay more federal income taxes than those in 22 states.
Finally, while the rewrite provision that allows people in prison to petition a judge for a second look review after serving 20 years is welcome, it should be adjusted. Rather than providing an entitlement to a fresh review every three years, the code should allow judges to specify a longer gap after denying the first review for the most serious offenses. This would reduce the workload on backlogged courts, lessen the frequency with which victims and families face this process, and enable courts to focus on cases where there is a real possibility of release. Texas has a set-off period of up to ten years.
Following the resounding rejection of its original proposed rewrite, D.C. now has a chance to sharpen its vision and build a transitional model that reduces recidivism and promotes positive outcomes such as employment and family reintegration. This approach responds to calls for increasing time served for some individuals, but more importantly, it will make part of that time more productive in our common pursuit of safer communities.
Marc A. Levin, Esq. is chief policy counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twitter @marcalevin. Khalil A. Cumberbatch is director of strategic partnerships at the Council and can be reached at khalil@counciloncj.org and on Twitter @KhaCumberbatch.