There are many lessons to be learned from the demise of the attempted revision of the Washington, D.C., criminal code, which President Biden promised to let die (by not vetoing the Senate vote of disapproval) and the D.C. Council attempted at the last minute to withdraw.

To start, we can now dispense with the pretense that Joe Biden is any kind of criminal justice reformer. The president once cracked jokes on the floor of the Senate about expanding the federal death penalty to everything short of jaywalking. Support for increased criminal penalties has been a hallmark of his career. Why anyone is surprised by this turn of events is unclear.

But there are deeper lessons for my friends on the left (and some on the right) about the importance of public sentiment and the need for deliberate, prudent decision making when it comes to criminal justice reform advocacy. Not all things can be done; and not all things that can be done should be done at once. Reducing the penalties for carjacking at a time when carjacking has increased dramatically in D.C. is a good example of a thing that should not have been done.

On the policy merits, the matter has always been more complicated than the revised code’s critics claim. The District’s criminal code was first written in 1901 and has grown by accretion, amendment, and judicial decision ever since. Most states went through a period of updating and modernizing their criminal codes starting in the 1960s and 1970s, driven by publication of the Model Penal Code in 1962. In those codifications, states would generally define key mens rea terms, such as “reckless” or “knowing,” and would also separate out offense levels for certain types of crimes whose seriousness can change dramatically based on the specific conduct at issue.

D.C. missed this modernization process, and so its criminal code remains an artifact of an earlier time. “Affrays”—an undefined common law term roughly meaning fights, and not one used much in modern criminal codes—remain a crime in D.C. It was not until 2003, for example, that a limited overhaul bill repealed the section on “duelling challenges.” The D.C. code is one of the few criminal codes in the country that has no general definitions section, and it frequently doesn’t even define key terms in specific sections, either. Key terms have been left to judicial gloss. For example, the current code has three “assault” criminal offenses—a simple assault without bodily injury, an intermediate assault crime, and an aggravated assault crime. The dividing line between the latter two is whether the assault caused “serious bodily injury.” But as the D.C. Court of Appeals said, “‘[s]erious bodily injury’ was not defined in the statute, leaving the courts to define the term.” That’s a serious due process issue, as clear definitions are a key component of the assumption that every person is charged with knowing the law.

Though this kind of workaday codification and revision accounts for the vast majority of the 300+ page code revision the Senate has now rejected, just a few provisions have sparked controversy. Chief among them is the reduction in the maximum penalty for carjacking. Currently, in D.C., unarmed carjacking carries a mandatory minimum sentence of seven years and maximum of 21 years. Armed carjacking penalties range from 15 and 40 years, respectively. The proposed code revision would create three carjacking crimes depending on severity: an unarmed offense with a four to 18-year penalty, and the highest penalties for an armed offense ranging from 12 to 24 years.

Now, a 40-year maximum sentence is a seriously tough penalty; it’s 10 years longer than D.C.’s current 30-year maximum for manslaughter. It is so tough, in fact, that it is never actually given. Those revising the D.C. code spent months compiling data about the actual sentences handed down for various crimes in D.C. What they found is that in the 34 armed carjacking counts alleged in a D.C. court between 2016 and 2020 (out of more than 9,000 total felony counts), the average and median sentences were about 15 years. No one—absolutely no one—has ever been given a 40-year sentence in D.C. for a straight armed carjacking without other counts adding additional criminal penalties.

The maximum penalty for carjacking in the D.C. code revision thus remains about nine years longer than what most armed carjackers actually receive. And even under the proposed code revision, judges retain the power to “stack” sentences in cases with multiple criminal counts where it is determined that conduct requires a longer sentence. Criticism that the new code would “reduce” criminal penalties for carjacking is thus true only in the bare academic sense. When considered in light of actual criminal sentencing practice in the city, it isn’t true at all.

What the controversy reveals, however is a certain tone-deafness among criminal justice reform advocates. In a recent article, I questioned whether conservative commitment to criminal justice reform—a movement that has resulted in substantial policy achievements over the past two decades in such unlikely places as Texas, South Carolina, and Oklahoma—could survive an increase in the crime rate and the return of crime as a highly salient political issue. I argued that conservative criminal justice reform efforts need a more solid philosophical grounding (one based on inherent human dignity) than some of the libertarian-inflected rhetoric in vogue in the 2000s and through the present day.

But the question—can criminal justice reform survive a rise in crime?—is not relevant solely to self-described conservatives. The public at large, even in an overwhelmingly blue city like D.C., is evidently concerned with the increases in certain violent crimes that happened in the wake of the pandemic. Reformers counter that there’s evidence that the eye-popping increases in violent crime that occurred in 2020 through 2021 have peaked and may be in decline, hopefully reverting back to the three-decade historical trend of steady deceleration in the crime rate. Let’s hope that is true.

But data relating to crime rates always lag perceptions. As one example, the American public largely believed that crime rates were rising throughout the 1990s and 2000s, long after they began a historic, sustained decline. And in any event, in a democracy, perceptions matter. So do moral intuitions. My sense is that the public understands carjacking to be a uniquely heinous crime, since it targets people when they are vulnerable and distracted by navigating through traffic. Every parent has had the nightmare scenario of a carjacking occurring with kids strapped in the back seat flit through their mind. And the potential for serious injury in a carjacking is extremely high, given the context and the fact that a massive instrumentality—a car—is involved. The high penalties for this crime reflect a rough public consensus about its seriousness. The public is, in a somewhat inchoate way, communicating its sense that this crime reflects a particularly depraved mental state on the part of perpetrators.

I know many criminal justice reformers who would dismiss these moral intuitions as illegitimate, driven by faux outrage and yellow journalism, and little more than a symptom of America’s love affair with sending people to prison. All of that doubtless plays a part.

But as Lincoln noted, public sentiment is everything. Reformers cannot ignore the public’s moral intuitions about the relative heinousness of certain crimes. Doing so repeatedly will cause the entire project of criminal justice reform, one I generally support, to come to a crashing halt. If the public’s instincts about the seriousness of certain crimes or the need for harsh penalties are wrong—and they very often are—then reformers’ task must be to change the public’s mind before pushing for counter-intuitive changes in the law. This was a reform that could and should have waited.

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