A Vote is Scheduled on Recommendations from Independent D.C. Commission to Modernize, Organize, and Clarify DC’s Criminal Code for First Time Since 1901
Please be advised the planned vote by the Committee on the Judiciary and Public Safety on the Revised Criminal Code Act of 2022 will now take place Wednesday, October 26 at 3 pm to allow supporting documents required for the vote to be completed by the Office of the Chief Financial Officer. This will not impact the substance of the bill itself. Below is the press release shared on Friday, October 14.
Members of the press and public should check the Council’s calendar on Monday afternoon or Tuesday morning for the specific time of the meeting, which will be streamed on the Council’s website and Councilmember Allen’s Facebook page.
On Friday, October 21, at 2pm, the DC Council’s Committee on the Judiciary and Public Safety will meet to vote on the Revised Criminal Code Act of 2022 (RCCA), legislation to advance a long overdue modernization, organization, and revision of the District’s entire criminal code. The legislation was introduced at the Council by the District’s independent Criminal Code Reform Commission (CCRC) after years of work by its staff and five-member Advisory Group, including the Office of the Attorney General, the United States Attorney’s Office, the Public Defender Service, and local law school professors. The vote follows more than a year of Council consideration of the proposal and nearly 20 hours of Council public hearings.
The announcement was made at a press event held today by Councilmember Charles Allen (Ward 6), Chair of the Council’s Committee on the Judiciary and Public Safety. Councilmember Allen was joined at the press event by Council Chairman Phil Mendelson and several voting members from the CCRC’s Advisory Group, who had voted unanimously to advance the recommendations to the Council in March of 2021.
“To put it bluntly, DC’s criminal laws are a mess and literally decades and decades overdue for reform. This legislation is the result of years of hard work and negotiation by the Criminal Code Reform Commission and our criminal justice agencies, from prosecution to defense. The final product, now moving forward at the Council, will provide much needed clarity to attorneys, judges, and juries, and create greater trust in the system for defendants, victims, and the public.” said Councilmember Allen. “Our criminal code is more than just words on paper – the code needs to ensure that people who commit harm in our city are held accountable, that our criminal justice system is constitutional, safe, and truly just, and that our laws reflect our modern values, not those of the Congress of 120 years ago.
Councilmember Allen continued, “I can't overemphasize how important this project is for the District, and I thank the leadership and staff of the Criminal Code Reform Commission, the Office of the Attorney General, the United States Attorney’s Office, the Public Defender Service, and our legal experts for their many years of tireless work. I want to also thank the prior Chairs of the Judiciary Committee for their engagement over the years. Without their collaboration and compromise, we wouldn’t be able to move this bill forward. That’s a testament to its importance for our criminal justice system, and I’m grateful for everyone coming to the table.”
The Code Reform Process
Revising a criminal code is a process undertaken by many states and considered a best practice to ensure criminal laws reflect current values and understandings, as well as ensure laws use clear, concise, and consistent language. It has never been undertaken in the District since Congress first created the District’s criminal code in 1901.
This has resulted in a body of law that is outdated and archaic, but more importantly, does not reflect the values of District residents, the operations of our courts, or the basic principles of criminal law, such as the necessary requirements and definitions for criminal offenses.
In practice, the District's criminal justice system relies heavily on case precedent and inconsistent charging and sentencing decisions by mostly federal prosecutors and judges, rather than clear laws passed by its elected representatives. One analysis found that in comparing clarity, consistency, and completeness of all 52 state and federal criminal codes, the District ranked 45th in the nation.
In his testimony before the Committee on the Judiciary and Public Safety at the Committee’s hearings on the proposed recommendations, former Executive Director of the Criminal Code Reform Commission, Richard Schmechel, said, “In sum, the District’s current criminal code fails to meet the basic legislative function in fully and specifically articulating what the laws are. This failure requires prosecutors and judges to decide which, of many, overlapping charges to bring, what elements establish criminal liability, and which of the wide-ranging penalties are merited. Even with the best of intentions, such vast discretion is subject to errors, arbitrariness, and bias. This failure undermines the legitimacy of the criminal law and erodes public trust and confidence in the criminal justice system.”
The process to begin a revision of the criminal code initially began in 2006 with Council legislation and continued in different iterations until the current Criminal Code Reform Commission was formed in 2016. The CCRC proceeded to painstakingly analyze every element of every crime in the District, comparing the language to other states’ approaches, national uniform and model laws, best practices, and current operations in the District. After many years of feedback and negotiations and thousands of pages of commentary from the Advisory Group members, the CCRC's five-member Advisory Group then approved the narrative recommendations unanimously and transmitted them to the Mayor and Council on March 31, 2021. On October 1, 2021, the CCRC’s recommendations were officially submitted to the Council as proposed legislation. The bill, as proposed, is available here.
Over three separate public hearings lasting nearly twenty hours, the Council’s Committee on the Judiciary and Public Safety heard testimony from the CCRC, all its Advisory Group members, independent subject matter and legal experts, members of the public, crime victims and people with lived experience of the justice system, and government leaders on the recommendations, and some recommended further changes for the Council to consider. The bill that will come before the Committee for a vote on October 21 reflects many of those recommendations and changes.
Public Council Hearings:
- November 4, 2021: Testimony of the Criminal Code Reform Commission, Independent Subject Matter Experts
- December 2, 2021: Public Witness Testimony
- December 16, 2021: Advisory Group Members, Government Witness Testimony
Major Proposals in the Bill
Universal Definitions, Modern Terms, and Clear and Consistent Organization: The Revised Criminal Code Act of 2022 revises the elements that determine criminal liability, codifies common defenses into law for the first time and exceptions to liability for crimes, creates a uniform, proportionate classification system for penalties, and codifies general definitions and other legal requirements applicable to all revised offenses.
Expanded Rights to Jury Trials for Misdemeanors: The bill phases in a three-tiered expansion of the right to a jury trial for all misdemeanors with a penalty of incarceration, echoing the broader right to jury trials that District residents had until the 1990s. The right to a jury of one's peers is guaranteed under the Constitution for some criminal charges, but not all.
However, almost all states have much more expansive jury trial rights than the District, which limits these rights to the constitutional floor. As a result, for many common offenses which come with jail time, including cases which could result in deportation, defendants and victims have their cases heard before federally appointed judges, rather than juries that represent the diverse perspectives of District residents.
This contributes to a criminal justice system based on the decisions of prosecutors to offer plea deals, and potentially coerce innocent defendants to accept lesser charges, rather than have the government make its case in court. The Committee's proposal reflects feedback from the Superior Court and the United States Attorney’s Office on the best ways to implement this change over time to ensure a smooth expansion that accounts for potential impacts on court operations.
The resulting proposal phases in the rights through 2030, from more serious misdemeanor charges to less serious, and requires the independent Criminal Justice Coordinating Council to analyze the impacts of each phase during its implementation.
Adds New Penalty Classes for All Crimes, Raises Proposed Penalties for Certain Serious Crimes like Carjacking, Robbery, and Burglary: A major shortcoming in the current criminal code is broad, vague language and penalties that leave the application of the law by prosecutors, defense attorneys, judges, and juries vulnerable to bias and inconsistency.
The reorganization into nine new felony and five new misdemeanor penalty classes proposed in the RCCA, and endorsed by the Committee, will now clearly define and sort crimes into different levels of penalties based on the seriousness of the conduct, the facts of the case, and whether vulnerable persons, repeat offenders, or weapons were involved. The penalty classes – of felonies from 2 to 45 years (not including additional penalties for enhancements) and misdemeanors from no imprisonment to one year – more closely reflect actual sentences given in Superior Court. The Committee's version of the bill will also enhance penalties for three serious crimes – carjacking, robbery, and burglary – beyond what was proposed by the CCRC.
Carjacking as a Stand-Alone Offense: The introduced bill proposed making the crime of carjacking part of the District’s robbery offense. The Committee’s proposal instead recognizes the unique harm, trauma, and danger posed by carjacking and opts to keep the offense separate, instead creating degrees of the crime like other offenses to help judges evaluate the facts of each case to determine the appropriate charge and sentence. The Committee’s proposal will also increase penalties beyond what was proposed to cover almost all sentences for carjacking currently given in Superior Court. Similarly, the Committee will also continue to preserve the crime of Assault on a Police Officer as a standalone offense in recognition of the particular harm it poses.
“Second Look for All” Sentencing Reform: The bill builds upon the District’s current law – the Incarceration Reduction Amendment Act (IRAA) – which allows people convicted of crimes as children and young adults to later petition independent Superior Court judges for sentence review. Today, those convicted of D.C. crimes under age 25 who have served at least 15 years in prison have the ability to file a motion with a judge to review their case based on their rehabilitation during their incarceration, similar to other states’ functioning parole and clemency processes, which the District does not have.
The CCRC proposed expanding the IRAA to allow those convicted of DC crimes at any age, and who have served at least 15 years in prison, to be able to apply for review. The Committee will advance this proposal but distinguish between crimes committed by children and young adults and those committed by older adults by requiring a longer term of incarceration before petitioning for older adults – 20 years, instead of 15. This is similar to the District’s current compassionate release law for older incarcerated defendants.
The proposal will not change the law for those under age 25. Studies from other states with similar sentence review mechanisms (Maryland, Pennsylvania, California) show extremely low recidivism rates, generally between 1-5%, for these now-older residents upon release, well below national re-offense rates of nearly 30% or more. This follows the extensive data showing most people age out of criminal behavior over time.
The District’s current resentencing process has also proven to be a powerful motivator for those incarcerated and potentially eligible to participate in rehabilitative programming and avoid discipline during their incarceration. As with the IRAA, the Second Look for All proposal is not automatic, requires extensive judicial review, and includes a right for victims of crime and their families to participate in cases, regardless of their support or opposition for the motions. Successful petitioners released since 2016 – now almost all in their 40s to 70s – have gone on to raise families, start small businesses, pursue higher education, and work for the District government in violence interruption and youth mentoring positions.
Eliminates Most Mandatory Minimum Sentences: Mandatory minimum sentences impose one-size-fits-all sentences that do not leave room for judges to evaluate the facts of each case or for defendants and victims to meaningfully engage in the sentencing process. The RCCA proposal would eliminate the District’s mandatory minimum sentences for all crimes the CCRC reviewed. The Committee will advance a form of this proposal, but maintain a mandatory minimum sentence for first degree homicide at 24 years.
This decision recognizes homicide as the most serious crime on the books, while providing consistency and empowering judges to determine other lesser sentences. A key goal of the RCCA is to base penalties on the seriousness of the offense, rather than cookie cutter sentencing, which promotes proportionality between crimes of similar seriousness. For this reason, the proposed code creates new standard and clearly defined crimes, degrees within each crime, and groups crimes by penalty classes.
Current mandatory minimum sentences are generally not based on the seriousness of the crime – for example, second-degree murder, most sex offenses, and human trafficking offenses do not have mandatory minimum sentences today, while lower-level theft does. Research has repeatedly demonstrated mandatory minimum sentences do not deter crime, but they do tie the hands of criminal justice agencies, judges, juries, victims, and defendants.
Implementation: The bill will have an overall applicability date of October 1, 2025, while its expanded jury trial rights proposal will phase in over time through 2030. This delayed implementation will provide time for criminal justice system agencies, attorneys, and public safety staff to receive training on the new laws and update any necessary systems. The Committee has also pre-funded staff for the District’s Sentencing Commission to begin developing new Sentencing Guidelines after the law passes.