Jurisprudence

The Racist Justice Department Policy That Shows Why D.C. Needs Statehood

Demonstrators hold signs that say "Statehood for the People of D.C." The Capitol dome can be seen behind them.
A rally in support of D.C. statehood near the U.S. Capitol on Monday. Mandel Ngan/Getty Images

On Monday, the House of Representatives’ Oversight and Reform Committee held a hearing on H.R. 51, a bill that would grant statehood to the District of Columbia. The House already passed the measure in 2020, the first time a D.C. statehood bill passed either chamber of Congress, but it died in the Republican-controlled Senate. Now that Democrats control the Senate—and Joe Biden, a statehood supporter, sits in the White House—they hope they can finally grant D.C.’s 712,000 residents full representation, voting rights, and control over their own criminal justice system.

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That last goal is often left out of the statehood debate, and received little attention at Monday’s hearing. On Friday, however, Biden’s Department of Justice underscored D.C.’s lack of authority over criminal prosecutions, a direct consequence of its lack of state sovereignty. In a court filing, the DOJ confirmed that it would continue the Trump administration’s policy of charging certain firearm offenses in federal court instead of D.C. court—exposing defendants to far lengthier prison sentences. This initiative is a painful reminder of the discrimination and inequities that district residents face even when a Democrat occupies the White House.

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Like all 50 states, the District of Columbia has elected representatives who pass laws regulating conduct within its borders. Unlike a state, though, D.C. does not have its own prosecutors who are empowered to charge felony offenses under those laws. Instead, the U.S. Attorney’s Office for the District of Columbia prosecutes felonies under the D.C. code and charges felonies under federal criminal law. The D.C. Council may pass criminal laws, but it must rely on federal prosecutors to enforce them. And D.C. residents have essentially no say in who that person is; the District’s U.S. attorney is nominated by the president and confirmed by the Senate, in which D.C. residents have no voting representation.

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This arrangement regularly wreaks havoc on the limited amount of home rule that Congress has already granted D.C. The District can pass its own criminal laws, but federal prosecutors get to decide how they’re implemented. For instance, U.S. Attorney Jessie Liu, a Donald Trump nominee, routinely declined to charge acts of bias-motivated violence as hate crimes under the D.C. code, even as such violence surged. These prosecutors can also interfere with the lawmaking process itself: In 2019, for example, Liu—who did not even live in the District—lobbied against a criminal justice reform bill up for consideration by the D.C. Council’s democratically elected leaders.

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That perverse crusade ultimately failed. But that same year, Liu successfully implemented a far worse assault on D.C.’s criminal justice system. In February 2019, her office announced that it would begin to charge many “felon in possession” cases in federal court rather than D.C. Superior Court. (These cases involved people convicted of felony offenses who were found with a firearm.) It is illegal under both federal and D.C. law to possess a gun if you were previously convicted of a felony. But the penalties for the federal offense are much harsher: The defendant’s sentence may be twice as long if they are prosecuted under federal law instead of D.C. law, thanks in part to different sentencing guidelines in the two jurisdictions. Shortly before Liu introduced the program, the D.C. Sentencing Commission had reduced the range of sentences for felons in possession—over the opposition of the U.S. attorney. Rather than accept defeat, federal prosecutors engaged in an end-run around democracy by shunting these cases into federal court.

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Liu initially defended her initiative on the grounds that it would allow the District to use federal resources when investigating gun crimes. When the Impact Defense Initiative at Harvard Law School contested this reasoning, her office admitted that its actual goal was simply to secure longer sentences for firearm offenders. Although Liu initially won support from D.C. Mayor Muriel Bowser, D.C. Attorney General Karl Racine strongly opposed the policy, even arguing against it in court. So did the D.C. Council, which noted that Liu had undermined home rule as well as the council’s efforts to reduce incarceration rates and racial disparities in the District’s criminal justice system.

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Actually, the initiative didn’t just produce racial disparities; it was, in itself, racist. Prosecutors were not enforcing the initiative District-wide, as they claimed, but only in predominantly Black neighborhoods, the Washington Post revealed in September 2020. CNN also reported that Black prosecutors within the U.S. Attorney’s Office had protested the enforcement of the program almost exclusively against Black people, to no avail. Following these revelations, Bowser distanced herself from the policy, describing it as “yet another example” of why “D.C. needs local control of the judicial system,” including the ability to “hold its prosecutors accountable.”

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Without statehood, though, D.C. could not hold anyone accountable. The best the District could do was hope that Biden would appoint a U.S. attorney for the District of Columbia who would abandon the program. Civil rights advocates were heartened when Biden named Channing Phillips, a proponent of home rule, as acting U.S. attorney for D.C. Their hopes were dashed on Friday, when Phillips informed a federal judge that he would maintain the program. Phillips suggested that his office had solved the racism problem by applying the policy District-wide, but there is no doubt that it will still reflect the broader racial disparities that infect D.C. policing. After all, Black people make up around 47 percent of the District’s population and 97 percent of those charged with being a felon in possession.

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Andrew Crespo, a Harvard Law professor and head of the school’s Impact Defense Initiative, speculated on Monday that Phillips’ position might be “a mistake,” pointing out that several key Biden nominees to the DOJ still haven’t won Senate confirmation. Crespo highlighted Vanita Gupta and Kristen Clarke, two civil rights luminaries, are awaiting a vote; once they’re confirmed, they may reassess a broad range of criminal justice policies, including this one. A Justice Department fully staffed with Biden appointees may overrule Phillips and demand an end to this holdover policy from the Trump years.

Of course, District residents should not have to just hope that federal officials let them exercise control over their own criminal justice system. Monday’s congressional hearing on H.R. 51 largely focused on the disenfranchisement of hundreds of thousands of racial minorities, but there are so many other indignities and injustices that flow from the lack of statehood. By denying self-determination to the people of D.C., Republicans do not just preserve taxation without representation; they subject 712,000 people to the whims of unelected federal prosecutors, spurning the right of citizens to determine the appropriate punishment for local crimes.

When other countries subvert basic democratic principles to jack up punishments against disfavored minorities, we call it tyranny. When it happens in the District of Columbia, we call it business as usual.

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