Biden Embraces the Fearmongering, Vows To Squash D.C.'s Mild Criminal Justice Reforms

Few things are bipartisan these days. If there's a consensus on any issue, it usually comes with a general proclivity toward moral panic—which is to say the consensus has more to do with politics than policy.

For a recent example, we can look to an announcement that came from President Joe Biden yesterday about legislation in Washington, D.C., which would have made some changes to the District's criminal code. "I support D.C. Statehood and home-rule – but I don't support some of the changes D.C. Council put forward over the Mayor's objections – such as lowering penalties for carjackings," he said. "If the Senate votes to overturn what D.C. Council did – I'll sign it."

That's a strange message for a few reasons, the first being that it doesn't make logical sense. It roughly translates to: "I support D.C. statehood and home rule, but because they did something I disfavor, I will act like a king, countermanding D.C.'s home rule." The concept of a principle is rendered meaningless if only applied in times of convenience and expediency.

The other issue, perhaps more glaring, is that in rebuking the legislation, Biden showed that he fundamentally does not know what it says. It appears he may be moving to nullify the bill not because of what's in the legislation itself—a yearslong effort to make D.C.'s criminal code clearer, something many states across the country have done—but because of what was in newspaper editorials and Twitter chatter about the bill. Much of that was plainly false. He is responding to a panic propelled in part by Mayor Muriel Bowser, a Democrat, who vetoed the legislation after it was passed in November of last year. The City Council overrode that veto in January, which then attracted the attention of Congress. Crime is a real issue, with real effects, and it should be taken seriously. Biden's announcement demonstrates that he has not grappled seriously with this issue.

That his administration is more acquainted with the punditry around the bill as opposed to the actual bill is evident in the example he used: carjacking penalties. The D.C. revision would "make it easier for carjackers to escape any kind of punishment," writes John Feehery in The Hill, a publication with millions of readers. Feehery's line is a good encapsulation of the alarming rhetoric that has come to characterize the discussion, which has seen special outsized attention paid to the bill's carjacking provisions. The blogger Matthew Yglesias, who boasts more than half a million followers on Twitter, has zeroed in on that portion, as did The Washington Post.

The problem is that Feehery's assertion is, quite literally, fake news. The bill does lower carjacking penalties—from a 40-year maximum to a 24-year maximum. It divides the crime into three levels of severity, prescribing up to 18 years' imprisonment for offenders who acted without a weapon, and up to 24 years' imprisonment if the defendant was armed (including with a fake gun). The idea that that qualifies as "escap[ing] any kind of punishment" would maybe be funny if it weren't an apt example of how incredibly muddied this conversation has become. Policy lives and dies, ideally, by objective measures—the text of a bill, for example. But this policy debate has turned into a culture war debate, which entitles people to make things up as they go along, including in major media outlets.

Crime denialism is a popular trend among some these days. You won't find that here. Carjacking is up in D.C., and it's a problem. This bill wouldn't have greenlit its continued rise. D.C.'s criminal code revision is "a carefully calibrated plan, grounded in empirical evidence and data, to make sure sentences are proportionate to culpability," says Rachel Barkow, a law professor at New York University who clerked for former U.S. Supreme Court Justice Antonin Scalia, in an email to Reason. "Is there really a would-be carjacker out there who thinks, 'I'll only spend two and a half decades [in prison] if I do this – let's roll.' Of course not."

Important to this debate is that the 40-year maximum for carjacking was not something judges actually imposed anyway. But even under D.C.'s new code, an alleged carjacker could still receive a punishment that greatly exceeds 24 years. "If a carjacker harmed someone or killed them, then there would be an assault or a homicide charge, and you'd have longer sentences anyhow," adds Barkow. In other words, residents can take comfort in the fact that a carjacker who attacks or kills a victim would still be subject to punishments for those crimes too. Murder is already illegal, and it should and will stay that way.

Most of the criticism around the bill appears to be grounded in questions not about its content but about its timing. Lost on many is that this process began in 2006 and is something that many states—red, blue, and purple—have engaged in over the years. D.C.'s criminal code has not been updated comprehensively since its 1901 inception, leaving it with arcane rules that make it harder for prosecutors to prosecute. (Also lost on many is that D.C. prosecutors, as well as the federal government, collaborated with lawmakers in crafting the new bill.) The aging D.C. code gives the government a very nebulous roadmap for addressing offenses that are specific in nature, thus making it difficult to secure convictions. Ironically, carjacking is a good example here—without gradations for punishment based on the aggravation of the offense, prosecutors in some sense had to wing it. Fixing that should not be scandalous.

Although the reaction to the carjacking provision provides a good microcosm for this debate, it's not the only portion that drew an ire that doesn't comport with reality. The bill "would also expand the right to a jury trial for those charged with misdemeanors but facing jail time," wrote Mayor Bowser. She meant that as a bad thing, which is, on its own, an amazing admission. The bedrock of this country, as envisioned by the Founders, was the right to a trial by jury. Ensuring everyone has access to that constitutional right, and is not punished for using it, is something that, in theory, would unite people. And yet, it is controversial.

The conversation here is bizarre in many ways. That doesn't make it surprising. "This is consistent with [Biden's] overall record on criminal justice reform since taking office, which has been abysmal," adds Barkow. "He hasn't supported any significant legislative reforms, his clemency record is an embarrassment"—she mentions the marijuana pardons, which freed a total of zero people from prison—"and his DOJ is opposing sensible compassionate release policies before the Sentencing Commission."

Prior to running for the presidency, Biden had a reputation as a tough-on-crime warrior, with his infamous 1994 crime bill that destroyed many lives. "He didn't just go along with these trends in the 1980s and 1990s—he was the ringleader," Barkow says. "And that statement about the carjacking provision shows that, in many ways, he still is."