The D.C. Crime Bill: What Happens Next?

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In November 2022, the District of Columbia City Council passed the Revised Criminal Code Act of 2022 (RCCA) that significantly reformed the D.C. Criminal Code to “modernize and overhaul” the District’s criminal laws including a reduction in penalties for many violent offenses.


D.C. Mayor Muriel Bowser initially vetoed the bill citing concerns about some of the changes, but the Council overrode her veto in early 2023. Because D.C. government is not autonomous from the federal government, the legislation requires Congressional approval. 


The U.S. House voted to nullify the bill, and the Senate is slated to vote on whether to block the bill this week. Should the Senate vote to block the D.C. bill, it could be the first time in almost 3 decades that Congress has nullified a D.C. law.


If the Senate votes to nullify the law, the bill will go to President Biden to sign or to veto. While many had anticipated he would veto the resolution, President Biden indicated in a March 2 tweet that he would sign the resolution should it pass.


On March 6, D.C. Council Chairman Phil Mendelson wrote a letter to the Senate attempting to withdraw the legislation. Such a withdrawal has not been attempted before. The Senate is still slated to take the issue to a vote later this week.


As the Senate vote approaches, please join us for a webinar featuring an opening address from U.S. Senator Bill Hagerty, followed by a discussion of the bill and what may come next.


Opening Address Featuring:

  •  Hon. Bill Hagerty, United States Senator, Tennessee

Discussion Featuring:

  • Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Nathan Kaczmarek:  Good morning, and welcome to this Federalist Society Practice Groups webinar. Today our topic is “The D.C. Crime Bill.” The crime bill has certainly been in the news of late, and we're expecting another update in the form of a disapproval vote soon from the United States Senate.


      My name is Nate Kaczmarek. I'm Vice President and Director of the Practice Groups and the Article I Initiative. As always, please note that all expressions of opinion are those of our speakers.


      We had expected Senator Bill Hagerty of Tennessee to join us at the beginning of the program. However, he is running a couple minutes behind, so I will introduce him later when he arrives to join us. But we are certainly fortunate to have with us Zack Smith.


      Zack, how are you?


Zack Smith:  I'm doing well, Nate. Thank you.


Nathan Kaczmarek:  Well, we're glad you could be with us. Zack is with The Heritage Foundation. He is a Legal Fellow and Manager of the Supreme Court and Appellate Advocacy Program for the Edwin Meese III Center for Legal and Judicial Studies. He previously served for several years as an AUSA in the northern district of Florida. He clerked for Judge Emmett Cox on the United States Court of Appeals for the Eleventh Circuit. His undergraduate, master's, and law degrees are all from the University of Florida. If you'd like to learn more about both the Senator and Zack, you can visit our website where we have complete bios for them both.


      Once Zack has fully discussed our topic, and we've heard from the Senator, we will go to audience Q&A. So please think about the questions you'd like to ask of Zack at the end. Audience questions can be submitted either by the Zoom raised hand function or the Q&A function at the bottom of your screen on Zoom. If you submit a question or raise your hand, we'll do our best to call on everyone in the order that it's received.


      So with that, Zack, I'll turn it over to you, but I'd note that we were not able to confirm another speaker for balance purposes on today's program, so I would ask you at the outset to be sure to play Devil's advocate as much as possible throughout your presentation and set forth some of the context and basis for the Council's actions and even maybe their rationale for a reduction in penalties for criminal offenses. With that, Zack, the floor is yours.


Zack Smith:  Well, thank you for that introduction, Nate, and thank you so much for hosting today's webinar. I'm very excited to talk about this topic because it is so timely, and it is such an important topic, criminal justice reform, not only in the District of Columbia but around the nation too.


      So I thought I could take today's presentation in, essentially, three parts. As Nate mentioned, at the top I'll play a little bit of Devil's advocate. I'll talk about why those who support D.C.'s Revised Criminal Code believe it's inappropriate for Congress to override this bill, and more importantly, what motivated its supporters to pass this bill in the first place.


      Next, I'll talk about some specific provisions of the Revised Criminal Code and why those provisions are so controversial. And finally, I'll discuss how what's happening in the District of Columbia ties into several national trends we're seeing in the criminal justice space particularly with regards to defunding police departments and with regards to juvenile justice.


      So first up, my turn as the Devil's advocate. Now, obviously, there's a disapproval vote that's going to happen in the Senate likely later today on this Revised Criminal Code. A disapproval vote has already taken place and passed in the House of Representatives. And President Joe Biden has said that he will sign any disapproval legislation that makes its way to his desk.


      And so, it begs the question why is Congress involved in this process at all? And I think from the most basic sense perspective, it's because the District of Columbia's our nation's capital. And while the District has some degree of home rule stemming from a piece of legislation in the 1970s, the Constitution explicitly provides that Congress should have plenary legislative authority over the seat of our nation's government. And it's interesting because if you go back and you study the history of the District of Columbia why the framers wanted to have a separate national capital not subject to any state's jurisdiction, not subject to the final control of any local authorities, it really stems from an event that occurred in 1783 when our nation's capital was in Philadelphia.


      In 1783—the Continental Congress was sitting in Philadelphia—a group of disgruntled continental soldiers essentially threatened the members of Congress to receive certain backpay, and so the members of Congress asked Pennsylvania's governor at that time to send out the militia to protect them, to provide for their safety and security, but he would not do that. And so, because the Pennsylvania governor would not provide militia to protect the members of Congress, they essentially had to flee town in the middle of the night. It was very embarrassing. It was very concerning. And the framers of the Constitution wanted to make sure that nothing like that would ever occur again, that the final say over safety and security of our nation's capital would reside with the federal government.


      And so, because of that—in our Constitution, Article I, Section 8, Clause 17—the framers explicitly provided that the national government has final say over what happens in our national capital. And James Madison talked about the indisputable need for that in Federalist 43. And I've written elsewhere about why D.C. statehood is a bad idea, why it would likely require a constitutional amendment, and so if you're interested in learning more about that, you can certainly go to my page at or follow me on Twitter @zzsmith to learn more about that.


      But more importantly, from a policy perspective, why did the supporters of this Revised Criminal Code think it was a good idea?


      And I see that Nate has rejoined us here. So Nate, would this be a good point to pause before I get into some of the reasons why this bill was passed?


      Well, I think the Senator may not have joined us quite yet, so I'll go ahead and begin why this was passed. And so, the reason the D.C. Council gave was that the D.C. criminal code was outdated. It was based on a 1901 initial code that Congress wrote over time. It's been amended, definitions have changed, and so there is a general need to clean up the code, essentially to change how it's organized, add definitions, essentially modernize it, make it easier to understand, and give fair notice to individuals who may be prosecuted under it. And from that perspective, I think those changes are clearly uncontroversial. Most people who looked at the code, who have talked to the Council, support those types of reforms.


      But unfortunately, as you'll see, as we talked about some of the specific provisions, there was really an underlying ideological agenda behind many of these reforms as well. And the driving force—aside from this need to clean up the code—behind many of these forms were two myths that unfortunately many on the D.C. Council and many on the left have bought into regarding our criminal justice system. And again, as we go through the specific provisions of the code, I think this will become more apparent. Those on the left and the D.C. Council have bought into the myth that our criminal justice system is systemically racist. It's not. And they've also bought into the myth that we have a mass incarceration problem in our country, which again, when you look at who's incarcerated, what they're incarcerated for, and compare that to the level of violent crimes in our country, again, I think you will see that it's just not true. And in fact, a credible case can be made that we're currently under-incarcerating violent criminals in our country.


      So what are some of the specific controversial provisions of the revised D.C. criminal code? Well, there were really three specific provisions. In the D.C. criminal code—the revised code—was about 450 pages, so it's very extensive. But three or four provisions have really gotten the bulk of attention and appropriately so. One of the things that the Revised Criminal Code did, it eliminated mandatory minimums for most crimes. In fact, the only mandatory minimum that the revised D.C. criminal code kept was for first-degree premeditated murder. But even though the Revised Criminal Code kept the mandatory minimum for first-degree murder, it lowered the sentence for that crime, so that was very controversial.


      In addition to eliminating mandatory minimum sentences, the Revised Criminal Code also lowered maximum sentences for most offenses, including violent crimes, like murder, rape, robbery, kidnapping, and carjacking. So it's understandable why that provision to lower the maximum sentences for many of these crimes is so controversial as well. And then it also expanded the ability of violent offenders to be released from prison early. Under current law in the District of Columbia, there's something called a Second Look Act. These are in place in many jurisdictions around the country. They've been growing in popularity around the country.


      But under current law, defendants who were younger than 25 when they committed their crime and who have served at least 15 years in prison can file petitions for early release. Now, under the new rule—under the Revised Criminal Code—it doesn’t expand that. Any defendant who is 25 or older—so basically, anyone—who committed a crime would be allowed to petition for release after serving 20 years in prison. And the estimates by local D.C. authorities are that under this expanded Second Look program, it would about double currently the number of individuals who would potentially be eligible for early release.


      And this early release provision has been particularly controversial among victims' rights groups. Many of the victims' rights groups, they say that crimes, murder, rape, other crimes of violence, those are irrevocable acts. The victims live with the consequences of those crimes for their entire life, and so this idea that, essentially, violent criminals would be getting a break, having an opportunity to get out of prison early is something that many victims' advocates are very upset about right now.


      Now, another provision that is somewhat controversial in the revised D.C. criminal code is expanding jury trials to all misdemeanor offenses. But a lot of the concerns with this expanded jury trial right is really over its implementation, its funding, and practical concerns surrounding it. This was a provision that D.C. Mayor Muriel Bowser raised a lot of concerns about in her veto message when she vetoed the Revised Criminal Code. Now, of course, the D.C. City Council, they overrode her veto and transmitted the law to Congress for its review where it's currently undergoing the disapproval process. But this expanded right to jury trial, while not necessarily objectionable in itself, has a lot of practical concerns about how it's going to be implemented, how the courts are going to be funded to issue summons, provide for appropriate space for these jury trials to take place, that sort of thing, which by and large was left unresolved by the Revised Criminal Code.


      Now, the Revised Criminal Code, some of its provisions were not set to take effect until 2025, and so essentially, the D.C. City Council with this jury trial provision and others took a let's pass it now and we'll work out the kinks later approach, which rightfully concerned many people who reviewed this piece of legislation.


      Now, the other thing that made this Revised Criminal Code so controversial is what's happening right now in the District of Columbia in terms of crime. If you think back to the early 1990s, not only did the District of Columbia have a reputation as our nation's—not only was it our nation's capital, but it also had a reputation as our nation's murder capital. And rightfully so. If you look back at what was happening in the early '90s, all types of violent crimes but particularly violent crimes, were astronomically high in the District of Columbia. And in fact, they comped out in the early 1990s with over 400 murders that year. Now, steps were taken to combat that. They were successful in many instances in being able to push back against that violent crime by prosecuting criminals, by putting more police officers on the street. But over the past several years, when those types of reforms rolled back, crime rates began to creep up slightly more.


      And I see that Nate has rejoined us here. And I suspect we may hear some more from Senator Hagerty about crime in the District.


Nathan Kaczmarek:  Very good. Thanks, Zack. I will just interrupt you for a moment now because Senator Hagerty has joined the program.


      Welcome, Senator. How are you?


Hon. Bill Hagerty:  I'm very good, Nate. Appreciate your understanding. Our Senate Foreign Relations Committee meeting ran over on some very heated discussions about the authorization of use of military force overseas.


Nathan Kaczmarek:  Well, it's totally understandable, and we completely understand. We really appreciate you being willing to squeeze us into your schedule today.


      I will just quickly give an introduction to our audience of you, and then I'll turn it over to you for any remarks you'd like to offer for our audience.


      Senator Hagerty was elected to the U.S. Senate in 2020. His committee assignments include banking, foreign relations, appropriations, and rules and administration. Prior to the Senate, he served as the 30th United States ambassador to Japan from 2017 to 2019. His background is in business. He started with the Boston Consulting Group and later became a venture capital and private equity investor. From 2011 to 2014, he served the state of Tennessee as a member of the governor's cabinet and commissioner of the Tennessee Department of Economic and Community Development.


      Under his leadership, Tennessee went from an unemployment rate higher than the national average to become the number one state in the nation for jobs created. The Senator has recently led the effort in the Senate to reject the District of Columbia City Council's Revised Criminal Code Act of 2022. And again, we're delighted that he could be with us. With that, Senator, I will turn the floor over to you for your remarks.


      Hon. Bill Hagerty:  Nate, thank you for the invitation. Thank you for the introduction, and I first just want to say a big hat's off to The Federalist Society. The impact that you've had over the years has been significant. Just looking at the current Supreme Court makeup, your influence has been absolutely tremendous. I appreciate the input that we received at the state of Tennessee level from The Federalist Society. We have a very strong chapter there, and again, it's an honor to be with you. I think you help our judicial system, in particularly, as we look at nominees, think about their basic duty to interpret what the law is, not what a judge wishes it should be, but what the law actually says.


      On the other hand, it's Congress' duty to determine what the law should be. And in that respect, I think it's particularly timely that we're having an opportunity to talk together today about this unbelievable situation that's resulted from the D.C. City Council, their revised crime code act here that has really, I think, shocked the nation in terms of the level of irresponsibility that the D.C. Council has been willing to demonstrate. But in particular, they've worked a couple of years to reform their criminal justice code, and the result of this reform—if you want to call it—is a hugely soft-on-crime bill. I heard Zack going through some of the details of it. I'm sure he's covered it in more detail than I will do so here. But in essence, what they're doing is reducing the penalties for serious felonies. And you all will appreciate this as well. They're allowing all misdemeanors to have the benefit of a jury trial. The system is already backed up here in the District. The misdemeanor play will completely clog the system. They know this. That means that any good prosecutor is going to, basically, not prosecute misdemeanors if they want to get at the more serious crimes that are underway.


      And talking about serious crimes that are underway here in the District, we've got a literal crime wave, an epidemic of crime here at the District of Columbia. You got carjackings that have trebled over the past three years. They've been on the rise for the past five, but it's, again, just an incredible number of carjackings that are happening here in the District. Homicide rates, it's amazing and so sad that we've had, for the past two years, north of 200 homicides a year here in the District, and it's increased coming into 2023. The pace is up on carjackings and murders and major property crimes.


      In the context of all of this, even Mayor Muriel Bowser, who is no conservative, vetoed the bill from the D.C. Council. And the D.C. Council, in their effort to send some sort of "woke message," I presume, to the rest of the world, decided to override the mayor's veto. They decided to pass this, and they went through the normal process of putting it forward not thinking about what the D.C. Home Rule Act nor what the Constitution implies for the Senate's role in all of this. And under Article I, Section 8 of the Constitution as well as the D.C. Home Rule Act we have not only the right but the responsibility, here in the Congress, to oversee what happens in the District. That's explicitly clear in the Constitution.


      The D.C. Home Rule Act made it clear that certain responsibilities did devolve to the District, that they were going to be overseen, that there's a process that they must go through to pass a revised law as they're trying to pass today. It's a 60-day process that allows us to oppose and basically put forth a resolution of disapproval for any law that the District passes that is unacceptable. This certainly qualifies, this modification, this soft-on-crime policy that they put out certainly qualifies for that. The rule has been put forward. It has ripened, and later today, I will bring it to the floor for a vote. It will be defeated in the Senate. We will issue -- we'll pass an issue of -- we will pass a resolution of disapproval. And this law will not stand. I think that's going to send a very strong message to the District of Columbia. It certainly will send a strong message to the White House.


      Initially, Joe Biden came out saying that he was going to oppose this on the grounds of statehood for D.C. As I spoke to every newscaster that asked me, I told them I thought that Joe Biden, at the end, was going to have a very difficult time doing that. Just look at how the Defund the Police worked for the Democrat Party and for this administration in the last cycle. The American public has had it to here. I think the people in Chicago spoke loud and clear when they ran Lori Lightfoot out of office. And we're at a point now in America where we've had it with crime, and these soft-on-crime far-left messaging types of bills like this should not stand. We're not going to let it stand in the federal District of Columbia. My constituents need to be able to come here and visit me and feel safe that aren't going to be carjacked. They aren't going to be murdered, and they're not going to be robbed. And what this bill would do, if we would allow it to pass, it would absolutely incentivize more of that sort of behavior in the midst of an acceleration that is already underway.


      So D.C.'s trying to send the exact wrong message at the exact wrong time. I think we're going to speak here in the Senate today, and I'm proud to lead it. And we're going to send a message right back that it's not going to be tolerated. The White House has taken its cue as well. Joe Biden has now flipped and said that he's now going to sign this. I'm looking forward to being invited to the signing ceremony. I doubt that will ever happen, but we're in a much better place, I think, in terms of sending a message to the District, and I hope sending a message to the rest of the nation that these soft-on-crime policies are not acceptable in the eyes of the American public.


Nathan Kaczmarek:  Very good. Very much appreciate that, Senator. I know you're tight on time, so I'll just ask just a quick concluding question for you. I mean, obviously, I think the disapproval resolution, this is the first time it's happened in 30 years. We have the unusual circumstance that the chairman of the City Council tried to claw back the bill from the Senate. Given all this and the unexpected turns, do you foresee that the D.C. City Council will work to address the message sent by the Senate? And where do you see them taking it going forward?


Hon. Bill Hagerty:  Well, it's interesting. The Council chairman came up with some stunt to unsubmit this bill after they started the process. They need, again, to read the D.C. Home Rule Act in the Constitution. There's no process to do that. And I'm certainly not going to take a sucker's bet and act like this never happened. Sixty days would pass, then suddenly they get a legal opinion saying they never had the authority to "unsubmit it," and it would become law. We're not going to allow that to happen today. We're going to vote this down today by issuing our disapproval, and we're going to have the D.C. government, I hope, take a very hard look at what they're doing.


      At a time when crime is accelerating, they need to be getting tough on crime. That should be the message that they hear. And the next time they send something our way, I hope it's going to be with a much more deliberate and purposeful end in sight, something that does actually do something to deter crime rather than incentivize it. And I'm not looking to see another woke messaging bill come across my desk, particularly given my responsibility on the Appropriations Committee as the ranking member of the subcommittee that among other things has responsibility for the District of Columbia.


Nathan Kaczmarek:  Very good. Well, thank you very much, Senator, for your time and your leadership. And we hope to have you back again soon.


Hon. Bill Hagerty:  Good to be with you all, and thanks for what all of you do. Thank you so much.


Nathan Kaczmarek:  Appreciate it.


Zack, with that, sorry to have interrupted where we were at. If you can remember where you were in your place, we'll restart the programming, and we'll work from there and take audience Q&A towards the end of the program.


Zack Smith:  That sounds great. Thank you, Nate.


      And look, I by and large agree with many of the things that Senator Hagerty was saying, and particularly, I think where we left off, we were starting to talk about some of the crime statistics and what's happening in the District in terms of crime and why from certainly I think a policy perspective, a practical perspective, but certainly from a messaging perspective, reducing criminal penalties, eliminating mandatory minimums, it's a very bad idea right now.


      So to give you an idea, for many years as I was mentioning, the District of Columbia was known as our nation's murder capital. Murders in the District peaked in the early '90s at 482 murders. That's an astronomical number. It was a very, very high per capita number, and one that, frankly, was completely unacceptable. Now, over the course of many years, including providing more funding for more officers on the street, including prosecuting violent offenders very aggressively, that murder rate started to go down.


      And so, in 2012, the District had a record low year in terms of murders where only—and I say "only," but relatively speaking—88 people were murdered in the District of Columbia. And so, if you compare 88 people murdered in 2012 with 482 people murdered in 1991, that's a gulf of difference in terms of safety in the District of Columbia. Now, unfortunately, that murder rate has been creeping up, particularly over the past several years. And in 2021, for the first time in over 20 years, the District recorded more than 200 murders. And it recorded more than 200 murders again in 2022. And so far this year, in 2023, murders are up 33 percent based at where they were at this same point in 2022. So unfortunately, it looks like the murder rate is again going to be very high in the District of Columbia.


      But it's not only murder that's increasing in the District of Columbia. You also have sex abuse cases that are increasing. Those are up 120 percent compared to this same point last year. Motor vehicle thefts are up 108 percent compared to this time last year. And as the Senator mentioned, carjackings have been increasing in the District over the past five years. But really, over the past two years, the number of carjackings have exploded in the District of Columbia. And at the end of 2022, the District of Columbia had more than 485 carjackings that occurred within its boundaries. That's more than one carjacking per day. And again, so far this year, the District is on pace to match or exceed that number. So these are very troubling trends from a criminal justice perspective.


      Obviously, residents, visitors, diplomats in the District of Columbia don't feel safe, and this has been punctuated by a few high-profile incidents. I mean don't forget on the day that the House of Representatives was going to vote on the disapproval resolution for this Revised Criminal Code, Representative Angie Craig, she was assaulted in the elevator of her apartment building in Washington, D.C. It turned out the individual who assaulted her had been well known to the District's criminal justice system, and yet, really hadn't suffered any consequences for his previous actions. The current District Chief of Police, Robert Contee, in a speech he gave earlier this week, he said the average murder suspect in the District of Columbia has previously been arrested at least 11 times before they ultimately end up murdering someone.


      We've also heard stories about students who are being robbed of their AirPods, tourists and others who are being targeted for their winter jackets. In fact, the George Washington University issued a notice to its students to be careful when wearing their jackets around the District of Columbia, when wearing their winter jackets on their campus in Foggy Bottom, because of a string of coat jackings that had occurred. And then, of course, diplomats are not immune from the crime that occurs in the District of Columbia. And so there have been several high-profile incidents where diplomats have either been robbed or where last year, for instance, a diplomat was carjacked in northwest D.C. And so, these are very, very serious problems that, unfortunately, so far, the D.C. City Council has not been very receptive to.


      Now, one of the common arguments by the D.C. City Council and supporters of the D.C. criminal code's reforms have been that they say longer prison sentences don't make us safe. Well, I have to disagree with that assertion. I suspect they're relying on one study that looks at relatively low-level offenders in Harris County, Houston, Texas, that is ambivalent about the effects of longer sentencing for misdemeanor offenses, but I certainly don't think that stands for the proposition that longer sentences do not affect repeat violent offenders. And in fact, I think there is data out there that points to the exact opposite result. The U.S. Sentencing Commission has done a series of studies. They released the latest installment this past summer where the U.S. Sentencing Commission—the body charged with setting sentencing policy for the federal court system—found that, basically, longer periods of incarceration reduces the rates of recidivism among offenders. And what that basically means is that the longer someone serves in prison, the less likely they are to offend again once they're released.


      And so, look, this was a very radical rewrite by the D.C. City Council of their criminal code. It came at a time when crime was absolutely exploding in the District of Columbia, particularly violent crimes were going up, and the science and data that they used to support many of these changes don't actually say what supporters say it says. And so, from that perspective, these are all very troubling developments.


      But I think it's also important to tie in what's happening in the District of Columbia with two larger national trends we're seeing in criminal justice as well. One is, obviously, defunding the police. And so, while that wasn't explicitly part of what the City Council did with the D.C. Revised Criminal Code, I think it certainly plays a part in why we're seeing an increase in violent crime in the District right now.


      I talked about the high murder rate that occurred in the early '90s in the District and the success the District had in getting that murder rate down to only 88 murders in 2012. Well, an essential part of the District strategy in the '90s and the early 2000s—as was the strategy in many other cities around the country—was a broken-windows approach to policing, enforcing criminal offenses at all levels of the criminal code, putting officers on the street, funding those officers, and empowering them to exercise their authority in responsible and appropriate ways.


      And so, what we saw—not only in the District but in places like New York, Chicago, Los Angeles—where this strategy was implemented crime rates—particularly violent crime rates—began to fall. And so, when you look in the mid-2010s, when the murder rate was relatively low in the District, the staffing level of the Metropolitan Police Department, which is the local police force in Washington, D.C., it hovered around 4,000 officers. Now, unfortunately, in 2020 in response to the murder of George Floyd, the D.C. City Council—having bought into this method that our criminal justice system is systemically racist—they moved to, essentially, defund, in a substantial way, the District's police department. In 2020, they cut about $15 million from the Metropolitan Police Department's budget. Charles Allen, the local D.C. City Council member, who spearheaded that effort, he said, "It's the biggest single reduction in the District's police force." This would lead to the biggest single reduction he's ever seen since his time on the Commission. He admitted he was doing this in the name of "racial justice," but that he would support further cuts to the Metropolitan Police Department as well.


      Now, what's sadly ironic about that statement and other actions taken to defund the police in the name of "racial justice." If you look at who has predominantly been victimized by increases in violent crime—crimes like murder, shootings, robberies—the victims of those crimes are predominantly young black men. And so, the sad irony is that the very individuals these types of supposed reforms are supposed to help actually end up victimizing many of those same individuals at a far higher level than if funding and appropriate staffing had been provided to police departments. And so, what happened after this $15 million budget cut took place—which actually ended up being closer to $30 million because of the way the D.C. budgetary process works—is that staffing levels for the Metropolitan Police Department begin to decline precipitously.


      And so, you saw, at the end of fiscal year 2021, the Metropolitan D.C. Police Department having gone from a staffing level of about 4,000 officers—sworn officers—at about 3,580 officers. And that number dropped later in the year to 3,460. And that number is still falling further today. And Chief Robert Contee—the current D.C. Chief of Police—has called this staffing level a crisis. He said the D.C. police department is at the lowest level of staffing it's been since the 1970s. It's affecting response times. It's affecting the ability of the police department to investigate crimes and to effectively proactively policing communities. And Chief Contee says he suspects it will take at least a decade for D.C. police department staffing levels to return to where they need to be. And some individuals think that that decade estimate may, in fact, be conservative.


      And again, D.C. Mayor Muriel Bowser—who as the Senator mentioned is herself no conservative—even she recognizes this is a dangerously low level of staffing for the D.C. police and supports increasing the number of officers, once again, to be north of 4,000 sworn officers in the District.  But again, we're seeing this not only in the District but in other cities around the country as well where they, too, are moving to defund their police departments and reduce the number of officers on the street, which ultimately leads to increases in violent crime.


      The other issue that's currently happening in the D.C. criminal justice area that we're seeing throughout the nation as well is juvenile justice issues. Right now there's a sense in the District of Columbia that juvenile offenders, many of whom are 16, 17, almost 18 years old who commit violent offenses such as robbery, rape, carjackings, murder are not being held adequately accountable for their actions. In fact, if a juvenile offender commits a crime, essentially anything less than murder, they're ultimately released on the street in very short order and suffer very few consequences for their actions. And you see the number of juvenile offenders who participate in or who are arrested for carjackings in the District, it's more than 50 percent, and it's been hovering closer to 60 to 66 percent of offenders involved in carjackings being juveniles.


      And this lack of accountability for juvenile offenders, it creates perverse incentives, not only for the offenders themselves but also for organized criminal enterprises like gangs. Gangs often go out, recruit very young juveniles to commit violent crimes because they know if these juvenile offenders are caught, they will suffer far fewer consequences, or certainly less severe consequences, than someone who is 18 years or older would suffer for committing the same action.


      And so, this is a revolving door system in the D.C. juvenile justice system. We've seen others around the county buy into this same philosophy, unfortunately. Many rogue prosecutors in our nation's biggest cities like Los Angeles, Chicago, Boston, just to name a few, have bought into this same ideology. And they too are refusing to appropriately prosecute juvenile offenders, which of course has led to a spike in juvenile offenders committing crime. 


      Now, again, not only is this bad for the community but there are studies that show early appropriate intervention of holding juvenile offenders accountable can help cut off the continued criminality of that offender and help them get their life back on track and become successful, productive members of our communities.


      And so, all of that to say these two myths about our criminal justice system—the myth of mass incarceration, the myth that our criminal justice system is systemically racist—not only is it driving bad criminal justice policy decisions in the District of Columbia, but it's driving bad criminal justice policy decisions in other cities around the country too. Fortunately, in this case, in the District of Columbia, Congress stepped in. The House has already overridden this radical rewrite of D.C.'s criminal code. The Senate is expected to do so later today. And President Joe Biden has said he will sign that override bill, which is an encouraging development because citizens in every city deserve to be safe and free from violent crime, but that particularly holds true in our nation's capital where people from around the country and around the world come to conduct our nation's business.


      So with that, that is the 40,000-foot overview of the D.C. criminal code revision. And at this point, Nate, I'm happy to defer to you on the best way to do this, but maybe we can open up the floor for some questions.


Nathan Kaczmarek:  Sure. So happy to have questions from our audience. There's a couple lined up in the queue. I will just kick things off with a similar question that I asked the Senator.


      Zack, given the process, the expectation of a disapproval, and the President signing it, what is your expectation for where things head next with regard to the D.C. Council and their path forward?


Zack Smith:  Yeah. That's a great question. And right now, frankly, I don't think anyone quite knows where this will end up. But what I suspect will happen is the D.C. Council will go back to the drawing board. Some have suggested that the Council essentially piecemeal up the different provisions of this bill, pass some of the noncontroversial portions that we talked about earlier, things like changing the structure of the code, updating some of the definitions of the code so that it reads in a more logical, commonsense way and is easier to understand. Those types of revisions to the code are relatively noncontroversial, and I think would get pretty broad bipartisan support.


      Now, these more controversial provisions, when they are pieced out, if they're passed either as a group or passed separately, I suspect that's where a lot of the time and the energy and focus will take place. And in fact, one of the major criticisms Mayor Muriel Bowser levied against the Council when she vetoed this bill was that they hadn't allowed adequate time for public comment and input into these provisions that would have very real impacts on the D.C.'s different communities.


      Now, the Council said -- they began this revision process back in 2016. They held hearings on the process, but again, the hearings were not well publicized. They were typically held at a time when community members couldn't participate, particularly if they have to work jobs during the day. And so, I suspect you'll see a much more robust debate around these provisions. And I'm hopeful that the D.C. Chief of Police, Chief Contee, the Mayor, and the D.C. U.S. Attorney's Office, who prosecutes many violent crimes in the District, I hope they will continue to renew their concerns with many of these provisions that frankly I think would make the District less safe.


Nathan Kaczmarek:  So why don't I read off a couple of other questions that have been submitted, Zack? This one is from Ted Hirt. He asks, "Do other jurisdictions have jury trials for misdemeanors, and are there any empirical studies reflective of them?


Zack Smith:  Yes, other jurisdictions do have misdemeanors for jury trials. And for instance, in the federal system right now if you are charged with a Class A misdemeanor, which typically means you can be imprisoned for up to a year, federal law gives you the right to a jury trial. If you're charged with a Class B or a Class C misdemeanor, you are only guaranteed a judge trial. I think a lot of the concerns are around the jury trial provision in the District right now.


      As the Senator alluded to, there's a perception that this was not a good faith effort to guarantee a constitutional right to criminal defendants, and instead was designed as a kind of crass political ploy to jam up the system, backlog the system, and essentially have the effect where most misdemeanor crimes wouldn't be prosecuted in the District.


      And again, I think that's something that Mayor Bowser echoed in her veto speech that she talked about was that there are practical concerns around this jury trial provision. The funding for it hadn't been adequately discussed or provided, space—the increased space the courts would need to conduct that local jury trials—that hadn't been considered or provided for. And so, there may be an ability to do that, but I think it would require much more planning, much more participation by all of the stakeholders involved such as the U.S. Attorney's Office, the D.C. Superior Court System, and local police detectives as well.


Nathan Kaczmarek:  The next question comes from Mitchell Keiter. He's asking about minimal sentencing and gang activity. The question is, "Are you aware of any reports showing the minimal sentencing consequences on juveniles and if it has led gangs to use them as the leading gunman in committing crimes thus creating the perverse result of drawing more teens into crime?"


Zack Smith:  There are studies out there addressing this fact, but I mean, look, you have to look at the news and what's happening right now, not only in the District but in other cities. Los Angeles for example is a perfect example. You're seeing the same repeat offenders going through the criminal justice system again and again and again. And again, I would point Mitchell to the statistics on carjackings in the District of Columbia and compare those to the statistics on carjackings in Virginia and Maryland where juvenile offenders will not be prosecuted as aggressively as they probably should be, are still being prosecuted more aggressively than in the District of Columbia. And I think what you'll see from those statistics is that fewer juveniles are involved in committing violent crimes but particularly in committing carjackings in Virginia as compared to the District of Columbia where essentially, again, unfortunately, they suffer very few consequences for their actions.


Nathan Kaczmarek:  So the next question is from Samuel Wright, and it has to do with trying to redefine the shape or size or scope of the District. And the question is, "What do you think of the idea of making the District only include the Capitol, the White House, and certain federal buildings and giving the rest of the District back to Maryland?"


Zack Smith:  Sure. And I appreciate that question from Samuel. It's a very good question. I've written on this issue before, particularly over the last several years when D.C. statehood was a relatively hot topic. You can find what I've written at I also have a law review article up on SSRN that Samuel or others can view if they're interested for a further discussion.


      But essentially, I think there are two things to consider when talking about that. One is what is the appropriate mechanism for that to happen to redefine the boundaries of the District? Does it require constitutional amendments, simple legislation? And in two, whether it's a good idea from a policy perspective? As you'll see from my law review article, my testimony in front of the House Oversight Committee, and elsewhere, I think it requires a constitutional amendment to redefine the boundaries of the current District of Columbia.


      And then from a policy perspective, I also think it's incredibly problematic to essentially leave a very small, non-self-sufficient rump capital that would be the National Mall area. Going back to one of the primary reasons the framers of our Constitution wanted a self-sufficient independent national capital free from the control of any state was to adequately control for the safety and security of that capital. And if you don't have adequate resources where you can, frankly, house offenders who commit crimes, where you don't have adequate resources to provide for a police force to police not only that area but the surrounding areas as well, that safety and security rationale can itself be seriously undermined.


      And so, again, while it's certainly an idea that's been floated, I think it's a bad idea from a policy perspective, but more importantly, if that is going to occur, I don't think it can occur through simple legislation as was proposed over the past several years. It would take a constitutional amendment to do that.


Nathan Kaczmarek:  Very good. The next question comes from Judge Vaden. He's asking about the actual effect of the resolution of this approval if it passes. He says, "Assuming Congress passes a resolution of disapproval, what leeway would the D.C. Council have to pass portions of the bill again?" That's the first part. The next is "Does a resolution of disapproval here have the same effect as one under the Congressional Review Act?" I don't know if you want to take them in pieces. And the third from Judge Vaden is --


Zack Smith:  Yeah.


Nathan Kaczmarek:  -- "Is the effect of the resolution of disapproval to establish a federal law prohibiting the District from taking the disapproval action without further congressional enactment?"


Zack Smith:  Well, those are great questions from Judge Vaden and it's great to hear from Judge Vaden. And again, in a self-serving plug, Judge Vaden and I had a great conversation on my podcast SCOTUS 101. And so, I enjoyed that. Hope folks will check it out.


      But to Judge Vaden's question, it's a great question, and one I've actually thought about before as well. I don't think the vote of disapproval by the House and the Senate would have the same effect under the Congressional Review Act, which it would essentially -- under the Congressional Review Act—as I understand it—if Congress votes to disapprove a certain rule or regulatory action by the executive branch of government, the executive branch of government cannot enact, essentially, that same rule again without explicit congressional authority. I don't believe the same mechanism exists for disapproval resolutions under the D.C. Home Rule Act.


      And so, I suspect the D.C. Council could pass, essentially, the same bill again in total if they wanted to. I think it would be a very bad idea. I suspect the more likely outcome—what I was discussing earlier—is that they will pass pieces of this legislation in a piecemeal fashion. It's unclear what exactly the final contours of that will look like. But I suspect that will be where the city council pivots to with the most likely outcome. They will try to pass, I think, the noncontroversial provisions first likely trying to sneak in, maybe, some more soft-on-crime provisions but maybe not as outrageous as some of the ones that I discussed earlier. And in taking those separate very controversial provisions—the elimination of mandatory minimums, the Second Look Act, the lowering of maximum penalties and try to pass those in a separate piece of legislation.


      I also suspect you'll see a much more aggressive messaging campaign around any future actions. Members of the D.C. City Council, they have effectively been referring to this as a "failure of messaging," which I think is ironic. It's a failure of policy from top to bottom, but they're spinning it as a failure of messaging, and so I suspect before any further action's taken, you'll see a much more aggressive messaging campaign taking place as well.


Nathan Kaczmarek:  Well, so just to—in the vein of playing Devil's advocate a little bit, I know Senator Booker—it's been reported—was trying to argue amongst Senate leadership yesterday that it isn't about messaging, and in fact, so many of the provisions are reflected in states in other jurisdictions already. And I know I kind of get a sense of what your response will be, but your response to that in terms of his attempt to support the D.C. Council's move and the substantive elements. Your response is --


Zack Smith:  Well, look, first of all, I think you have to go back to what Senator Hagerty was saying. Congress not only has the authority. They have the responsibility under our Constitution to oversee what happens in our nation's capital, particularly with regards to safety and security. And so, it's appropriate for Congress to step in and take action regardless of what other states may do.


      I've seen those same types of arguments being made before, and the two responses to that are, one, many of the D.C. Council's proposed revisions are so radical, they provide for more lenient sentences and maximum penalties than even liberal jurisdictions like California for instance. And so, these proposed revisions are very well outside of the mainstream.


      The other thing to consider is that crime is a hyper-localized problem by and large. And so, some states, yes, they may have different penalties for some of the crimes listed. They may have different sentencing schemes, but I doubt many of them are seeing year over year over year increases, particularly surges in crimes like carjackings. I doubt many of them are seeing 20-year highs in murder rates. And one thing I know for certain in essentially no other city can you have the national and international implications of crime that you do in the District of Columbia. For instance, where else would it potentially be an international incident for a carjacking to take place? Well, that's easily the case in the District of Columbia when a foreign diplomat is carjacked very close to their embassy, and that's not a hypothetical situation. It happened in 2021 and was in fact an international incident, I think again highlighting the appropriateness of Congress stepping in and taking action here.


Nathan Kaczmarek:  So Julie Wright from Right on -- or I'm sorry, Julie Warren from Right on Crime asks this question: "What are your thoughts on Governor Perry's and the 2007 Texas legislature's investment into diversion and alternative sentencing for nonviolent offenses and that effort's relation to the reduced crime rate since 2007? Does D.C. have anything to learn from Texas?"


Zack Smith:  Well, I appreciate that question, and it's a good one because one of the things you hear many of the so-called criminal justice reformers touting are that they are investing in diversionary programs instead of incarceration. And one of the things I write a lot about are rogue prosecutors along with my colleague Cully Stimson at Heritage. And you hear this from many of the recently elected so-called progressive DAs.


      Well, the fact is what's incurring in many jurisdictions today—places like Los Angeles, Chicago, New York—isn't in fact diversionary programs as Governor Perry understood them, as you or I understood them, or as any traditional prosecutor would understand them. Look, I'm a big supporter of alternative programs like drug court, domestic violence court, veterans' courts. They do have very high success rates in helping people essentially right their life, get back on the straight and narrow, and become productive members of society. But the key to making those programs successful—and what I suspect helped make Texas's diversionary program successful—is accountability. If someone cannot or will not comply with the terms of their diversionary programs, if they don't completed the necessary steps, if they don't show up to the meetings as required, there's accountability meaning their prosecution can be reinstated, or more likely, they're facing jail time if they don't follow through.


      But what's happening today with simply not prosecuting many offenders, with not following through with that accountability piece actually prosecuting people if they don't follow through with their diversionary terms is there's no accountability for that failure to follow through, and so that's part of what is driving the increased crime rates, particularly among repeat offenders. There's no accountability to break that cycle of criminality, to break that cycle of violence.


      And so, if there's anything for D.C. to learn from Texas and other truly successful diversionary programs it's yes, these programs should be offered. They can have a very positive impact on the community, but accountability is an essential component to making those programs successful.


Nathan Kaczmarek:  So we're running a little short on time. I guess we'll make this the last question. And then, Zack, if you'd like to offer any other concluding remarks, we'd love to have them. But the final question is "There is a lot of D.C. jury nullification. What are the prospects of expanding jury pools beyond D.C.?"


Zack Smith:  Well, I think it's going to be a state-by-state determination. And look, jury nullification, it's nothing new. It's very controversial, frankly. But as Americans, right to a jury trial is something we cherish greatly. It's a fundamental right. It's guaranteed in our Constitution, and so there is an appropriate way to successfully provide jury trials for citizens who are accused of crimes. The problem, again, with the way this was done, it wasn't really a good faith effort to secure that fundamental constitutional right. It was more of a crass political play that would ultimately lead to fewer misdemeanors being prosecuted.


      And so, I hope if this proposal is put forward again by the D.C. City Council that they would effectively engage in those good faith discussions to make sure that the resources, staffing, facilities, those types of practical considerations are taken into account before this is just thrown onto a system that, frankly, could lead to chaos if it's not done in an appropriate way.


      And then, I guess for concluding thoughts, I just want to thank you, Nate, and I want to thank The Federalist Society for hosting this program, thank Senator Hagerty for participating. And I just leave this final thought with everyone. As we see crime rates increasing around the county, particularly violent crime rates, we know what works to combat them. We did it in the early '90s, and we can do it again. It just takes the political will to follow through. The formula for successfully combating violent crimes is putting more officers on the street, empowering them to do their jobs in an appropriate and responsible manner, and in prosecuting offenders who break the law, and in the process, seeking justice for the victims of violent crimes. And so, I'm hopeful if there's a message everyone takes away from today's webinar that is the best way forward to pushing back against this crime wave we're seeing right now.


Nathan Kaczmarek:  Well, very good. Our thanks to Senator Hagerty and his office as well as to Zack for their presentations today. I think this was a very informative session, and we'll have to see what is next for the D.C. Crime Bill.


      For our audience, we welcome your feedback by email at [email protected]. Thank you all. Have a good day.