Jurisprudence

A Trump-Appointed Prosecutor Is Lobbying Against D.C.’s Modest Criminal Justice Reform

U.S. Attorney Jessie Liu issued an alarmist press release Friday.

U.S. Attorney Jessie Kong Liu speaks during a news conference at the Department of Justice.
U.S. Attorney Jessie Kong Liu speaks during a news conference at the Department of Justice on Dec. 15, 2017.
Chip Somodevilla/Getty Images

Neuroscientists, courts, and lawmakers are coming to the consensus that young people have enormous capacity for change. That’s why D.C. is now considering offering some people who have spent the bulk of their adult lives in prison the chance for freedom.

On Friday, the U.S. attorney for the District of Columbia, Jessie K. Liu, issued a press release suggesting that the reform D.C. is now considering would let loose hundreds of “violent criminals” on the streets of D.C. The press release encouraged district residents to contact the bill’s sponsor and oppose it.

The bill that Liu, a Donald Trump appointee, attacked is the Second Look Act of 2019. This legislation marks another effort by the D.C. Council to address the district’s mass incarceration crisis. If D.C. were a state, it would have the highest incarceration rate in the nation. The district’s prisoners, who are disproportionately black, are mostly transferred to federal facilities, some far across the country.

In the past few years, the D.C. Council has passed two laws aimed at young offenders. The Incarceration Reduction Amendment Act of 2016, or IRAA, gave relief to juveniles tried as adults: Those who had served at least 20 years and who were not yet eligible for parole could petition the Superior Court to have their sentences reduced. In 2019, the council revised the law to allow juveniles who’d served 15 years, and those who’d been denied parole, to request a sentence reduction. Now the council is considering the Second Look Act, which would allow individuals who committed their offenses before the age of 25 to petition for release after 15 years’ incarceration.

These measures make good sense. An immense amount of research had proved that criminal violence is closely tied to youth. Scientists now know that the part of the brain that inhibits impulse and risky behavior does not fully develop until age 25. The Supreme Court has noted this fact in prohibiting the execution of juvenile offenders and curtailing juvenile sentences of life without parole. It has explained that “parts of the brain involved in behavior control continue to mature through late adolescence”—that is, the early 20s. Young individuals are therefore “less culpable” due to their “immaturity, recklessness, and impetuosity”; “less likely” to be deterred by “possible punishment”; and more likely to have “potential for rehabilitation.” D.C. lawmakers are not going rogue; they are taking a page from the Supreme Court.

As John Pfaff, author of Locked In and professor at Fordham Law School, has demonstrated, violence is a phase, not a state. Individuals in their mid- to late-teenage years are far more likely to commit a crime, but that propensity declines after their mid-20s and plummets once they reach 30. Those over the age of 40 are even more unlikely to commit a violent offense. Lengthy sentences for young offenders simply make no sense, as these individuals are all but certain to age out of violent behavior. The council’s reforms are a rational response to this evidence.

In its press release, the U.S. Attorney’s Office suggested that its outrage stemmed from the possibility of “adult offenders” obtaining early release. The truth, however, is that the USAO opposes sentence reductions for any offender, including those who committed crimes as minors. Liu’s office has opposed every juvenile offender’s request for early release under the IRAA. It did not matter if the offender was a model inmate; the USAO has insisted that he should stay behind bars. (Not one of the nearly 20 people released under the IRAA have reoffended.)

Moreover, the office’s Friday press release complained that the new law would reduce individuals’ sentences “after only serving 15 years in prison.” (Only 15 years!) But Liu opposed sentence reductions after 20 years, too, citing a variety of pretexts. James Zeigler, a criminal defense attorney who specializes in litigating cases under the IRAA, told me that Liu’s office has claimed that a juvenile offender did not take responsibility for his actions because he filed an insufficient assistance of counsel claim, as if seeking to vindicate a constitutional right showed a lack of remorse. It has asserted that an offender was not rehabilitated because he did not apologize for alleged crimes for which charges were dismissed. And it has repeatedly said that the “seriousness” of an offender’s crime justified his original sentence—directly contradicting the intent of the law.

Liu is engaging in the kind of fearmongering employed by opponents of the federal First Step Act, which Trump signed in 2018. Yes, criminal justice reform releases inmates “early.” Yes, some of these individuals committed violent acts. But prolonged incarceration does not reduce crime or contribute to a prisoner’s rehabilitation. A 15-year prison term is astoundingly long by international standards, and the Second Look Act would provide no guarantee of release after a decade-and-a-half. It would merely ensure that individuals with virtually no chance of recidivism have an opportunity to tell a judge why they have earned their freedom.

The USAO’s most pernicious claim, one amplified by an inflammatory Washington Post editorial, is that the new legislation would bar judges from considering “the nature of the offense” when deciding whether to grant a sentence reduction. It is true that the 2019 revision removed language that described “the nature of the offense” as one of 11 factors that the law requires judges to consider. But Zeigler told me that this change does not mean judges can no longer consider this factor. The language was removed “after the USAO used that language in every single case to argue that the nature of the original offense should preclude relief,” he said. “This was inconsistent with the original law’s purpose, which focused on the possibility of growth and rehabilitation for people given extreme sentences as children.”

To counter this tactic, the council took out that language. But the statute explicitly allows judges to consider “any information the court deems relevant to its decision.” Zeigler noted that the law also “requires that judges consider the role played by the petitioner in the original offense, and the input of victims and their families.” He added that it is “disingenuous of the USAO to present this as something having to do with the pending legislation when it is already part of the current law.”

There are plenty of reasons why such legislation is a good idea, but the truth is that the city council should not have to defend itself to Liu. She was not elected by the residents of the district but selected by a president who won 4 percent of the vote there. U.S. attorneys rarely meddle in the affairs of a state legislature. But because Liu serves as both a federal and local prosecutor due to D.C.’s unusual status, she apparently feels she can intrude into the council’s business. She is wrong. A majority of the council, the mayor, and the attorney general—all elected by the people of the district—already support the bill. Those who actually represent D.C. have no obligation to countenance Liu’s carceral zealotry.