Few things are bipartisan these days. If there is consensus on an issue, it is usually accompanied by a general propensity for moral panic, that is, the consensus has more to do with politics than politics.
For a recent example, we can turn to an announcement President Joe Biden made on Twitter yesterday regarding legislation in Washington, DC that would have enshrined some changes to the district’s criminal code. “I support DC Statehood and home-rule — but I don’t support some of the changes the DC Council has proposed over the mayor’s objections — such as lowering penalties for carjackings,” he said. said. “If the Senate votes to overturn what the DC Council did, I will sign it.”
This is a strange message for several reasons, the first being that it doesn’t make logical sense. It roughly translates to: “I support DC statehood and home rule, but because they did something I disapprove of, I will act like a king, rescinding the rule of DC origin.” The concept of principle no longer has any meaning if it is only applied in times of convenience and opportunity.
The other, perhaps more glaring problem is that by rebuking the legislation, Biden showed that he basically didn’t know what it was saying. It looks like he’s considering overturning the bill not because of what’s in the legislation itself – a years-long effort to make DC’s criminal code clearer, which many States across the country did — but because of what was in newspaper editorials and Twitter chatter in regards to The law project. Much of it was just plain wrong. It responds to a panic caused in part by Mayor Muriel Bowser, a Democrat, who vetoed the legislation after it passed in November last year. The city council overruled that veto in January, which then caught the attention of Congress. Crime is a real problem, with real effects, and it must be taken seriously. Biden’s announcement demonstrates that he hasn’t seriously tackled this issue.
That his administration knows more about the experts around the bill than the bill itself is evident in the example he used: penalties for carjacking. DC’s review would “make it easier for carjackers to escape any kind of punishment.” writing John Feehery in The hill, a publication with millions of readers. Feehery’s line nicely encapsulates the alarming rhetoric that characterized the discussion, which saw inordinate focus given to the carjacking provisions of the bill. Blogger Matthew Yglesias, who has over half a million Twitter followers, has zeroed on this part, as did The Washington Post.
The problem is that Feehery’s claim is, quite literally, fake news. The bill reduces penalties for carjacking from a maximum of 40 years to a maximum of 24 years. It divides the crime into three levels of seriousness, prescribing up to 18 years imprisonment for offenders who acted unarmed, and up to 24 years imprisonment if the accused was armed (including with an imitation weapon ). The idea that it qualifies as “the escape[ing] any kind of punishment” might be funny if it weren’t for a good example of how incredibly confusing this conversation got. Politics lives and dies, ideally, by objective measures – the text of a bill, for example. But this political debate has become a debate about the culture wars, which allows people to make things up as they go, including in the mainstream media.
Crime denial is a popular trend among some these days. You won’t find that here. Carjacking East to DC, and that’s a problem. This bill would not have given the green light to its continued rise. DC’s criminal code review is “a carefully calibrated plan, grounded in evidence and empirical data, to ensure sentences are commensurate with culpability,” says University of New York law professor Rachel Barkow. York who worked for former US Supreme Court Justice Antonin Scalia in an email to Raison. “Is there really a would-be car thief who thinks, ‘I’ll only spend two and a half decades [in prison] if I do that, let’s go. Of course not.”
What is important in this debate is that the 40-year maximum for carjacking was not something the judges actually imposed anyway. But even under DC’s new code, an alleged carjacker could still receive a sentence that is well over 24 years. “If a carjacker injured someone or killed them, then there would be a charge of assault or homicide, and you would have longer sentences anyway,” Barkow adds. In other words, residents can be reassured that a car thief who attacks or kills a victim would also face penalties for those crimes. Murder is already illegal, and it should and will remain so.
Most of the criticism around the bill seems to be based on questions not about its content but about its timing. Lost for many is that this process started in 2006 and it’s something that many states – reds, blues and purples – have committed to over the years. DC’s criminal code hasn’t been comprehensively updated since its inception in 1901, leaving it with murky rules that make it harder for prosecutors to prosecute. (Many people also lost sight of the fact that DC prosecutors, as well as the federal government, worked with lawmakers to craft the new bill.) The aging DC code gives the government a very nebulous roadmap to deal with. offenses of a specific nature, making it difficult for prosecutors to secure convictions. Ironically, the carjacking is a good example here – with no gradations in the sentence based on the aggravation of the offense, prosecutors had to somehow get away with it. Fixing this shouldn’t be outrageous.
While the backlash to the carjacking provision provides a good microcosm for this debate, it’s not the only part that has sparked anger that doesn’t match reality. The bill “would also extend the right to a jury trial for those charged with misdemeanors but facing jail time,” writing Mayor Bowser. She meant that as a bad thing, which in itself is an incredible admission. The foundation of this country, as envisioned by the founders, was the right to a jury trial. Ensuring that everyone has access to this constitutional right, and is not punished for using it, is something that, in theory, would unite people. And yet, it is controversial.
The conversation here is, in many ways, bizarre. That doesn’t make it surprising. “This is consistent with [Biden’s] overall record on criminal justice reform since taking office, which has been abysmal,” Barkow adds. “He has not supported any significant legislative reform, his clemency record is embarrassing” – she mentions marijuana pardons, which released a total of zero people from prison – “and his DOJ opposes reasonable and compassionate release policies before the Sentencing Commission.”
Before running for president, Biden had a reputation as a tough warrior on crime, with his infamous Crime Bill 1994 which destroyed many lives. “He didn’t just follow these trends in the 1980s and 1990s – he was a leader,” Barkow says. “And this statement about the carjacking provision shows that in many ways it still is.”