Jurisprudence

D.C. Residents Aren’t Buying a Trump-Appointed Prosecutor’s Campaign Against Criminal Justice Reform

It’s highly unusual for a U.S. attorney to interfere so heavily in local reform. That convention is changing under Trump.

U.S. Attorney for the District of Columbia Jessie Liu
U.S. Attorney for the District of Columbia Jessie Liu at a news conference on Oct. 15, 2018.
Zach Gibson/Getty Images

The crowd waiting in line outside the U.S. Attorney’s Office for the District of Columbia on Thursday evening was getting agitated. In August, the office had put out a flyer advertising an event about the Second Look Amendment Act, a criminal justice reform bill introduced in the D.C. City Council. The flyer “welcome[d] community leaders, agency representatives, and local residents” to attend. On Thursday, however, many D.C. residents who sought access learned that the audience was more limited: The USAO had invited advisory neighborhood commissioners—elected officials who represent D.C.’s communities—and was turning most others away. This was not, as the flyer claimed, an opportunity for “Community Leaders [to] Learn More” about the SLAA. It was an attempt to lobby elected representatives to block the possibility of early release for fully rehabilitated prisoners.

The bill that so perturbs Liu, the SLAA, builds on earlier efforts to address the district’s mass incarceration problem. Previously, the City Council allowed juvenile offenders to petition for a sentence reduction after 15 years’ imprisonment. Not one of the 18 people released under this reform has reoffended, though the USAO opposed a sentence reduction in each case. Several of them, including Tyrone Walker, showed up on Thursday to support the SLAA. As a 17-year-old surrounded by gun violence, Walker was convicted of murder and spent nearly 25 years of imprisonment reflecting on his actions and his own trauma. Since his release, he has graduated from the Georgetown Pivot Program and obtained a full-time job.

If passed, the SLAA would expand the pool of prisoners who qualify for a sentence reduction, allowing individuals who committed an offense before the age of 25 to request early release. Prisoners would be obligated to prove their full rehabilitation to the satisfaction of a judge. The proposal constitutes a response to the growing consensus among neuroscientists, courts, and legislators that young offenders are less culpable due to their immaturity. The part of the brain that inhibits risky and reckless behavior does not fully develop until age 25, and an individual’s propensity for crime plummets after his mid-20s. Responding to this science, the SLAA would give young offenders who’ve served 15 years a chance to prove to a judge that they deserve to rejoin their community.

But Thursday’s speakers dismissed this data. Instead, they attempted to frighten advisory neighborhood commissioners into opposition to the bill through horror stories. Peter Newsham, the chief of D.C.’s Metropolitan Police Department, described a series of murders and rapes committed by individuals who could be released under the SLAA. “They call this the Second Chance Act,” Newsham said. (That is not its title.) But, he said, “many of the folks that are involved in this behavior have had more than one other opportunity to behave. And they’ve chosen not to.” Newsham also summarily dismissed the vast body of research indicating that a youthful offense is not proof of incorrigible criminality. “You will also hear some supposed ‘experts’ that will suggest that these were youthful indiscretions or mistakes,” he told the audience. “Murder and rape are not mistakes.”

What Newsham didn’t mention is that long prison sentences do not decrease recidivism. Forcing violent criminals to spend decades behind bars does not make the public any safer. Violence is a phase that individuals age out of, not a state that lasts indefinitely. It is easy to fearmonger about gruesome crimes, as Newsham did. But incarceration is, in theory, intended to rehabilitate prisoners. The police chief’s vision of justice jettisons rehabilitation in favor of retribution, no matter how much an inmate matures behind bars.

Newsham did not even pretend that Thursday’s event was meant to inform the community rather than whip up opposition to the SLAA. Neither did John Hill, a prosecutor who serves as deputy chief of the Superior Court Division. Hill noted dismissively that “there’s a lot of talk about the brain science and the concern for people who are 16 to 24 years old.” But, he said, “when you look at who’s been murdered in the district, over a quarter of our homicide victims are between 16 and 24 years old. … Let’s not forget that these 16- to 24-year-old brains were never developing because they’re being prematurely snuffed out by violence that we need to be doing more to stop.”

Perhaps the most astonishing moment of the night came when Hill argued that further reforms may not be necessary because “the District of Columbia has the lowest incarceration rate in the country.” In fact, the opposite is true: If the district were a state, it would have the highest incarceration rate in the country. When Nazgol Ghandnoosh, a senior research analyst at the Sentencing Project, pointed this out, Hill stood by his claim. The next day, he acknowledged to Ghandnoosh via email that he relied on data that exclusively counted the population of the D.C. Jail. But most of D.C.’s felons are transferred to federal facilities—Hill simply did not count these thousands of individuals.

Later, Wendy Pohlhaus, executive assistant U.S. attorney for external affairs, moderated a “Q&A Session.” Pohlhaus began by explaining that she did not want to hear from individuals representing “nonprofits,” like the ACLU of D.C. or the Sentencing Project. Rather, Pohlhaus sought to “give the people in the hood time to talk,” the “people in the trenches.” Most of those allowed to ask questions were advisory neighborhood commissioners, who appeared skeptical of Liu’s intervention in local government. (A majority of the City Council, as well as the D.C. mayor and attorney general, have indicated their support for the measure.) One audience member asked if the USAO had “suggestions for improving the bill.” Pohlhaus responded: “It’s really not the U.S. Attorney’s Office’s business to do that. We don’t advise on legislation.” The room erupted in laughter.

Toward the end of the night, Advisory Neighborhood Commissioner Mike Silverstein asked why Liu is not prosecuting hate crimes. Even as bias-motivated violence has soared in the district, Silverstein noted, hate crime prosecutions have plummeted under Liu, according to a recent Washington Post report. Liu contested the Post article as “not correct” and turned the conversation back to the SLAA because “I don’t want to take any more time away from this discussion.”

Due to D.C.’s unusual status, Liu serves as both a federal and local prosecutor. But the City Council is elected by the citizens of D.C., whereas Liu was appointed by a president who received 4 percent of the vote in the district. It is highly unusual for federal prosecutors to intervene so dramatically in the affairs of local government. In the Trump era, however, that convention seems to be disappearing. Liu’s brazen lobbying against the Second Look Amendment Act is reminiscent of U.S. Attorney William M. McSwain’s repeated attacks on prosecution choices by Philadelphia District Attorney Larry Krasner, a committed reformer. It also echoes Attorney General William Barr’s August speech condemning progressive prosecutors as “anti–law enforcement.”

More broadly, the theme of Thursday evening was Trumpian in its divisiveness: an effort to pit civil rights advocates against “people in the hood,” to set elite “nonprofits” against those “in the trenches.” It is unclear whether this tactic will work; advisory neighborhood commissioners have no power over the City Council and cannot block a bill. They may urge the council to abandon the SLAA. But councilmembers guard D.C.’s autonomy against federal interference. Liu’s heavy-handed intrusion into self-governance could backfire.

After the event, I spoke with Walker, the juvenile offender who benefited from the council’s reforms. I asked him why he continues to advocate for incarcerated people now that he’s out of prison.

“Those people in cages?” he said. “Those are human beings. A lot of those people were tutors to me. And they’re still holding onto their dignity, because that’s resilience. And knowing that people are advocating for their lives right now—knowing there’s an opportunity that waits the corner for me—that gives them hope. And that’s why I’m here.”

Walker had hoped to explain all this to Liu and her colleagues on Thursday. But he couldn’t. He wasn’t allowed in.