Biden fails self-governance test by supporting GOP measure to block DC criminal code revision

Senate Democrats are coming out in favor of a GOP measure to block the District of Columbia from updating its century-old criminal code.


As I am far from an expert on DC criminal law, this section summarizes two comprehensive articles on the subject from Slate and DCist. I highly suggest reading these articles for more detail.

DC’s criminal code was originally written in 1901 and only updated bit-by-bit in the intervening years, resulting in a patchwork of outdated laws and mismatched criminal penalties. Some provisions have no bearing on modern life, like § 22–1308, which prohibits people from playing bandy and shinty in the streets, and § 22–1003, a requirement that cattle transported through the District be given at least 5 hours of “rest, water, and feeding” by the railroad company every 24 hours.

Other parts of the code vaguely define serious crimes, potentially allowing prosecutors to overcharge lesser offenses. For example, pickpocketing falls under the same statute as violently beating and robbing someone. There is no separation of degrees of robbery and an unarmed offense is treated the same as armed robbery under the current law.

To fix this mess, the Council of the District of Columbia created the Criminal Code Reform Commission (CCRC) in 2016. Members of the CCRC’s advisory board included professors of law, a public defender in DC, the Attorney General of DC, and the U.S. Attorney for DC. Together, the group passed a revision of the criminal code twice and voted to override DC Mayor Muriel Bower’s veto in January.

Fact-checking the opposition

Rightwing media outlets and conservative commentators have criticized the CCRC’s revised code—called the Revised Criminal Code Act (RCCA)—for being “too soft” on crime and making the District “more dangerous.”

In reality, the Commission brought nuance to the criminal code. Carjacking, for example, would be sentenced based on the severity of the crime—something that does not exist in the current criminal code.

Under current law, unarmed carjacking has a mandatory minimum sentence of seven years and maximum sentence of 21. If armed, that jumps to 15 and 40, respectively. (For context, that 40-year maximum is double the current maximum for second-degree sexual abuse.) Under the revised code, carjacking is divided into three gradations depending on severity, with the lowest penalties for an unarmed offense running from four to 18 years and the highest penalties for an armed offense ranging from 12 to 24 years.

So yes, penalties for carjacking have indeed been reduced. But…

“You have to look at not just penalties on paper, but you have to look at the penalties in practice,” says Jinwoo Park, the current executive director of the Criminal Code Reform Commission, which he joined almost a decade ago as an attorney-adviser to the whole process.

Park says that in many cases with violent crimes in D.C., the difference between the maximum sentence that can be meted out and the actual sentences that are handed down are significant. To better understand this, the commission looked at a decade’s worth of sentencing data from D.C. Superior Court for pretty much every criminal offense charged — and in many cases, carjacking included, found that actual sentencing was below the maximums allowed by law.

For carjacking, the D.C. Sentencing Commission compiled all the sentences handed down from 2016 to 2020. It found an average sentence for unarmed carjacking of 7.25 years and 15 years for armed carjacking.

So, in summary, the Commission sought to bring the criminal code in line with the actual penalties judges typically impose on defendants.

As Mark Joseph Stern of Slate explains, the revised code also puts criminal penalties in a “logical order”:

Under the current code, the maximum sentence for armed carjacking is 40 years. That’s the same penalty as second-degree murder, and more than double the penalty for second-degree sexual assault. It is wildly disproportionate to the offense by any standard…the new code puts crimes and punishments in a more logical order. Stealing a car should not have the same penalty as taking a human life. And that’s just one of many baffling examples. For instance, the existing code imposes a higher penalty for threatening to destroy someone’s property than for actually destroying it. This kind of disproportionality erodes faith in the system, creating a situation where lesser crimes can carry higher penalties.


The U.S. House of Representatives voted last month on a Republican bill to block the District’s criminal code revision from taking effect. The bill, H.J.Res.26 is sponsored by Rep. Andrew Clyde (R-GA) and co-sponsored by 45 other Republicans including Reps. Dan Crenshaw (TX), Andy Biggs (AZ), Chip Roy (TX), Marjorie Taylor Greene (GA), and Pete Sessions (TX). It passed 250-173 with the assistance of 31 Democrats.

  • House Democrats who voted for the GOP bill blocking the RCCA: Budzinski (IL), Caraveo (CO), Correa (CA), Costa (CA), Craig (MN), Cuellar (TX), Davis (NC), Golden (ME), Gonzalez (TX), Gottheimer (NJ), Harder (CA), Kaptur (OH), Kilmer (WA), Landsman (OH), Lee (NV), Manning (NC), Moskowitz (FL), Nickel (NC), Panetta (CA), Pappas (NH), Perez (WA), Pettersen (CO), Phillips (MN), Ryan (NY), Salinas (OR), Schrier (WA), Sherrill (NJ), Slotkin (MI), Sorensen (IL), Stanton (AZ), and Thompson (CA).

The bill appeared doomed to fail in the Senate, with 51 Democratic senators in control of the chamber. That was until President Joe Biden unexpectedly announced last week that he would not veto the bill blocking the RCCA, signaling his opposition to the criminal code revision. The move took many by surprise, given the president’s professed support for DC self-rule and statehood—something he claims to still believe in: “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,” Biden wrote on Twitter. “If the Senate votes to overturn what D.C. Council did – I’ll sign it.”

This statement is confusing. First, you do not actually support self-governance and democracy if you overrule it when you disagree with the outcome. DC residents vote to elect the DC Council, which voted not once but twice to pass the RCCA. Lacking representation in Congress, the actions of the DC Council are the only way residents of the city can have a voice in their own government. Second, Biden endorses the rightwing media spin of the RCCA, saying it will reduce penalties for carjacking when it only brings the criminal code in line with real-life sentences. This misunderstanding is either accidental, in which case the administration has failed to adequately brief the President of the United States of America, or it is deliberate—a purely political play to portray the Democratic party as tough on crime at the expense of democratic principles.

Furthermore, Biden’s promise to sign the bill gives cover to Senate Democrats, many who face tough re-election races next year, to vote for a bill popular with Republican voters. Sens. Joe Manchin (D-WV), Jon Tester (D-MT), and Jacky Rosen (D-NV) have already expressed support for the GOP measure, all but ensuring it will be sent to Biden’s desk.