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All politics, the saying goes, is local. But as far as criminal justice policy goes, well — it depends. In a number of localities over the past month, state and federal officials have channeled anxiety about crime into efforts to bypass local governance.
This trend is clearest in Washington, D.C., where on Wednesday the U.S. Senate overwhelmingly passed a bill blocking a new criminal code for the city. The district’s city council had approved the code, but critics attacked it in part because it would have reduced penalties for some crimes (on paper, though likely not in practice). President Joe Biden signaled earlier this month that he would sign the Senate’s bill, meaning that for the first time in more than 30 years, Congress will use its authority to overpower the D.C. city government.
Some Democrats criticized Biden on the substance of the bill, and on principle, because the president had previously argued in favor of D.C.’s right to govern itself — sometimes called “home rule.” Indeed, the whole affair has invigorated the campaign for D.C. statehood.
Commentators from across the political spectrum concluded that Biden’s pivot appears to be a calculated political decision to head off criticism of being “soft on crime.” As Branko Marcetic put it in Jacobin Magazine: “Biden, with an eye on reelection, chose political expediency and to cover his right flank.” The president wasn’t alone: 33 Senate Democrats voted to block the D.C. code.
Others went down swinging. Sen. Cory Booker, a New Jersey Democrat, said in a party meeting that it was “stunning” how the new criminal code had been distorted. Take House Speaker Kevin McCarthy’s inaccurate claim that the new D.C. code “decriminalized everything,” including carjacking.
Patrice Sulton, one of the legal scholars who wrote the revised code, said in March that the most misunderstood aspect of it was the perception that it would usher in a new era of lenient sentencing. “This was not a decarceration agenda, it was not a racial-justice agenda. It’s been difficult for me seeing it treated as this very radical project,” Sulton told The Washingtonian. The goal of the rewrite was to modernize a century-old code that lawyers said was confusing and inconsistent.
The new code would have lowered some sentencing ranges — for example, reducing the maximum penalty for armed carjacking from 40 to 24 years. But D.C. judges never actually use the 40-year maximum. Mark Joseph Stern writes in Slate: “No one — not a single person — is sentenced to 40 years for armed carjacking in D.C., or anything close to it. The absolute harshest penalties for the offense today run about 15 years.”
For perspective, a 24-year maximum for carjacking would also be much longer than maximums in conservative states like Georgia and Louisiana (both set it at 20 years). The D.C. code would have lowered the minimum sentence for unarmed carjacking from seven to four years — still higher than in many places, including McCarthy’s home state of California.
Sulton also noted that while the D.C. law lowered some penalties, others were adjusted up. The code increased the punishment for attempted murder from 5 to 20 years, for example. Despite all the politicking on this question, it’s worth recalling that in May 2016, when Biden was still vice president, the Department of Justice released guidance summing up the consensus in criminology that “increasing the severity of punishment does little to deter crime.”
Beyond D.C., crime concerns remain a potent political force and are driving other efforts to strip away local control, mostly led by Republicans. In Jackson, Mississippi, both houses of the state Legislature passed bills this week to expand the scope of the state-run Capitol Police in the city — a move that lawmakers tied to crime.
The bill was a dramatically pared-back version of a House bill that got national attention last month for the racial dynamics at play in the country’s Blackest state. Some community leaders in Jackson described it as “a hostile state takeover of governance” of a majority Black city by a majority White state Legislature, according to Mississippi Today.
The proposal would have singled out about one-fifth of Jackson, where most of the city’s White residents live, into a district with its own state-appointed judiciary. A number of critics expressed doubts that the plan could pass constitutional muster, and several, including Jackson Mayor Chokwe Lumumba, likened the proposal to apartheid or Jim Crow.
Meanwhile, in Missouri this week, the state House passed a plan that would remove local control of the St. Louis Police Department, and place it under a state-appointed board of police commissioners. The state Senate has yet to vote on the measure. If approved, the bill would end a short 10 years of city rule for the police department, which was state-run from the Civil War through 2013. “This bill is an attempt to restore order,” said bill sponsor Brad Christ, a St. Louis County Republican. Local officials have said the proposed bill contradicts the will of city voters, who in 2012 approved restoring local control of the police.
It’s not the only effort to wrest away local control of the city’s justice system. The state House passed another bill that challenges the authority of St. Louis Circuit Attorney Kim Gardner. It allows the governor “to appoint a special prosecutor in any county where statistics show high crime rates.”
Such bills are gaining traction in other states. As Akela Lacy documented for The Intercept last week, at least 17 states have seen bills introduced that seek to strip authority from locally-elected, reform-minded prosecutors and give some of their power to state officials.
