Rejected D.C. Criminal Code Revision Comes Into Focus at Upcoming Judicial and Bar Conference

The District of Columbia’s current criminal code, established by Congress in 1901, for the most part still relies on 19th-century court opinions defining criminal liability. Among its significant defects? Lack of definition of some basic terms, leading to uncertainty regarding what qualifies as an offense.

“Assault is not defined by the code,” says Jinwoo Park, executive director of the District’s Criminal Code Reform Commission. “So, is it an offense to bump into someone? You would need to wade through case decisions to make that determination.”

Another problem is one of proportionality. Crimes of similar severity should be punished similarly, says Park, but the current criminal code frequently fails to distinguish among different kinds of offenses. “A robbery in which someone is severely beaten is treated the same as a crime committed when a person takes an unattended wallet from a countertop,” he says.

Park is among featured speakers at the 2023 Judicial and Bar Conference on April 28 focused on the 50th anniversary of the District of Columbia Home Rule Act of 1973. In the session “Code ‘Read’: A Comprehensive Review of D.C.’s New Criminal Code,” Park and other panelists were expected to provide insights into the long-awaited modernization of the District’s criminal code, but late-breaking developments may tilt the discussion toward the conference’s theme.

On March 8, the U.S. Senate rejected the District’s proposed Revised Criminal Code Act of 2022 (RCCA) citing concerns about statistical increases in violent crime and carjackings in recent years. Passed by the D.C. Council in November 2022, the RCCA was the culmination of a 16-year effort to update the city’s criminal laws led by the Criminal Code Reform Commission. Park has been involved in the commission’s work for the past decade and says that he has colleagues who have been at it even longer.

Contrary to Congress’s assertions, Park says the proposed revised criminal code is not soft on crime. “The criminal penalties in the revised code are in alignment with standard sentencing guidelines in most jurisdictions today,” he says.

While acknowledging that the District is not a death penalty jurisdiction, Park says that the penalties for most crimes under the revised code would be comparable to the ones issued in the home jurisdictions of Congress members that voted against the bill. According to Park, the Texas Criminal Code was among the models commonly referenced by the commission in drafting the revised code, and that penalties in most instances track with jurisdictions like Alabama and Tennessee.

Furthermore, there are significant instances in which penalties for crimes would actually be increased under the amended code, Park says, such as penalties for assault on a law enforcement officer, possession of dangerous weapons like assault weapons and ghost guns, and what is currently known as “misdemeanor sexual abuse,” which includes nonconsensual sexual intercourse without the use of force or threats.

“The highest carjacking sentences in the data are in the range of 15.5 to 16 years,” Park says. “The RCCA’s 24-year maximum sentence [for armed carjacking] is about 50 percent higher than even those lengthiest sentences. Plus, the RCCA also allows for repeat offender enhancements.”

“This example really illustrates that RCCA penalties are consistent with the current sentencing practices in the District,” adds Park, going on to note that under the proposed code, “penalties in almost all cases are as high, or often higher, than even the longest sentences imposed under current law.”

Opposition to the reforms has come as something of a surprise, Park says, noting the proposed revisions are the product of extensive dialogues with a variety of stakeholders, including representatives from the Public Defender Service for the District of Columbia and the D.C. Office of the Attorney General.

“The result is that the reforms are not revolutionary,” says Park, who adds that the diversity of interests represented in the drafting of the revisions ensured that changes did not benefit or disadvantage state or private interests in a criminal prosecution.

Rather, the reforms would have introduced some much-needed clarity and nuance for all parties. For example, revisions would have introduced mens rea requirements for crimes, a basic element in modern criminal codes that is entirely absent from the District’s antiquated laws. “[Simple] assault, which is currently undefined, would become recklessly causing bodily injury, all defined terms,” Park says. Enhancements for the use of a weapon, or the infliction of a serious bodily injury, would have also brought additional nuance in a defined and predictable fashion, reducing charge and sentence disparities and bringing greater clarity to the justice system.

Congress’s rejection of the revised code means the District will have to conduct a significant amount of additional research, drafting, and consideration before reintroducing reforms. In the interim, the District will continue to operate under the 120-year-old code imposed upon it by Congress, serving as a stark reminder of the city’s lack of autonomy.

“D.C. residents shouldn’t have to wait another 100 years for an updated criminal code,” Park says.

Learn more about the District’s path forward on criminal code reform by signing up for the Judicial and Bar Conference.