Photograph by Jordan Gale / Guardian / eyevine / Redux
Nine years ago, two friends got into a fight. Alimamy Tarawallie had invited a group of men to his apartment, in the Fort Totten neighborhood of Washington, D.C., to watch the World Cup semifinals. Tarawallie was rooting for Brazil, his favorite team, which got walloped by Germany, 7–1. He was feeling glum. A friend, Winston Perez Hernandez, who was drinking from a large bottle of Guinness, tried to console Tarawallie—he touched him on the arm and told him to be thankful that he hadn’t placed any bets on the game.
“Stop touching me,” Tarawallie said.
Perez Hernandez—feeling slighted, perhaps—playfully touched Tarawallie’s arm again. Tarawallie shoved him. Then, according to Tarawallie, Perez Hernandez smashed the beer bottle on Tarawallie’s head.
Tarawallie called the police; Perez Hernandez was arrested and charged with assault. When the case went to trial, he denied using the bottle, and a partial cell-phone video of the incident showed the men fighting with no Guinness in sight. It didn’t matter, prosecutors argued—the playful touch was an assault on its own.
In a TV courtroom, Steve Harvey might’ve dispensed justice in a few minutes. But, in the courtrooms of D.C., the case remains, to this day, unresolved. Perez Hernandez was initially found guilty, but last year an appellate court sent the case back to trial. Why? In the nation’s capital, owing to a mix of strange politics and unusual circumstances, there is no statute that defines assault. “Do we have a system that results in swift and certain justice for a relatively low-level assault case? The answer is absolutely not,” Brian Schwalb, the District’s attorney general, told me the other day. “But that’s what happens.”
For more than sixteen years, D.C. has been trying to come up with a solution. A group of legal scholars and advisers, nominated by local lawmakers, have been revising the District’s century-old criminal code. This spring, at the very end of that process, the whole thing fell apart, explosively. “It was shocking to see it play out this way,” Jinwoo Park, the lawyer in charge of the effort, told me recently. As he and his colleagues watched their work get upended by the toxic mythmaking that has come to characterize national politics, they found themselves wondering: How could this happen? And how could we have been so naïve?
In 2013, Park, five years out of law school, was looking for a job. He had hoped to find one in public policy, but he was also fascinated by the nuances of legal language. During a clerkship for a judge on the D.C. Court of Appeals, he had worked on a D.U.I. case that required him to parse the difference between “driving while intoxicated” and “operating while intoxicated.” He realized that these seemingly small distinctions could significantly alter a criminal sentence. When he was offered a position with what is now called the D.C. Criminal Code Reform Commission, it was a chance to do something “really big and important.”
Every workday, Park travelled to a neighborhood of beige, boxy government buildings and courthouses known as Judiciary Square. He’d descend into the basement of one of those buildings and settle in a small, windowless room. There, he and four other staff members pored over every single word in the criminal code, a sort of guidebook for the legal system, which describes what constitutes a crime, defines how that crime should be labelled, and determines the allowable punishment.
No criminal code is a static document—lawmakers modify and add to it over time. But there isn’t much oversight to insure that new rules make sense in relation to the old ones, some of which can be traced back to pre-colonial America. In 1962, scholars with the American Law Institute tried to standardize these guidebooks by publishing the Model Criminal Code. At least thirty-four states refashioned their codes accordingly. The District—which, although not a state, has its own criminal-justice system—didn’t join them. In 2000, the Northwestern University Law Review evaluated the criminal codes of every state in the country, along with D.C. and the federal courts, on the basis of factors such as simplicity of language and specificity about punishment. The District ranked forty-ninth.
Park could see why. The legal definitions of many crimes, from assault to kidnapping to manslaughter, were muddy or entirely absent. Other aspects of the code were laughable, troubling, or often both. Threatening to damage someone’s property could get you twenty years in prison. Actually damaging it would max out at ten. There were still statutes about steamboats and horses. One common-law offense barred people from being a “common scold.” Park’s sense was that it had been historically applied to unusually quarrelsome women. The punishment was to tie them to a ducking stool and toss them in a river.
In all, the commission examined about two hundred statutes. To get a sense of how local judges were interpreting them, it parsed ten years of sentencing data. It studied other states’ codes and looked at academic articles about best practices. It submitted draft updates to an advisory group that included representatives of the public defender’s office, the D.C. attorney general, the U.S. Attorney, and local law professors. “It was a very nerdy group,” Patrice Sulton, a civil-rights attorney who worked on the staff, said.
Some of those involved wanted to lessen the disparities they had seen in D.C.’s courts—poor, mostly Black residents getting caught up in the system for minor crimes. Paul Butler, a professor at Georgetown University Law Center and a member of the commission’s advisory board, had been a local prosecutor in the nineties. Back then, he said, if you went “to a criminal court in D.C., you would think white people don’t commit crime, that Black and brown people are bad and white people don’t steal, they don’t use drugs, they don’t get into fights.”
These inequities—driven by aggressive policing in Black neighborhoods and harsh sentencing laws approved at the height of the war on drugs—persisted. But Butler’s early research had identified some moderating influences. For instance, he found that juries in D.C. were less likely to lock up Black defendants for minor criminal charges than judges doing bench trials. He interpreted this as an act of communal restraint—a group of the defendant’s peers might better understand the real-world drawbacks of imprisonment. The commission proposed to allow defendants at risk of prison time to request a jury trial in most misdemeanor cases. They recommended decriminalizing urinating or defecating in public, making those civil infractions. In the felony statutes that they reviewed, they got rid of all mandatory minimums, except for first-degree murder.
The commission expected some of these propositions to stir debate. But public opinion was also evolving. By 2014, one in ten residents of D.C. had a criminal record. Books such as “The New Jim Crow” and “Locking Up Our Own” were being cited at council meetings. Nationally, even conservatives were adopting more radical stances on criminal-justice reform, questioning the high financial and societal costs of incarceration. In 2018, President Trump signed the First Step Act, which reduced drug penalties and sentences for nonviolent offenders.
And then, in 2020, the commission’s fourteenth year, George Floyd was murdered. States began working to ban choke holds and no-knock warrants, and cities rethought their entire approach to policing. Joe Biden got elected. The following year, the commission submitted its revised criminal code to the D.C. council. “What could go wrong?” Sulton said.
A lot, it turned out. By then, the political winds were shifting. Charles Allen, who was the head of the council’s judiciary committee, was shepherding the new code through a review process. In one meeting, Allen recalled, a fellow council member let out a long sigh when he brought up the bill. “Someone is going to start yelling that we are reducing penalties, that it’s soft on crime,” the lawmaker said. Across the country, Republicans were reclaiming the mantle of law and order—and blaming Democrats for rising crime—as they geared up for the 2022 midterms. In D.C., the local news had a segment almost every day about one specific type of crime that was terrifying many residents: carjacking.
Carjacking? To the commission, it was one of the criminal categories that needed an update. The laws about carjacking stemmed from a gruesome incident that had made national headlines decades ago. In September, 1992, Pamela Basu, a research chemist who lived outside D.C., had been driving her two-year-old daughter to her first day of school. She was at a stop sign when two young men jumped into her BMW. The men threw the baby out of the car, and Basu got tangled in a seat belt and was dragged on the road, for more than a mile, as they sped away. She died from her injuries.
Before Basu, “carjacking” as a legal category didn’t exist—such an incident would just be called a robbery. But a wave of harsh sentencing laws followed. In the District, the council enacted a seven-year minimum for carjacking, fifteen if the perpetrator was armed. It increased the maximum to forty-five years. These changes weren’t out of step with the tough-on-crime attitudes of the era, but the mandatory minimums meant a carjacker could be treated more severely than a murderer. Park and his fellow commission members found that, in reality, judges rarely sentenced carjackers to more than fifteen years. The commission figured that it could cap the penalty at twenty-four years. “Putting it below killing somebody and above just taking their stuff seemed like a reasonable thing to do,” Donald Braman, a law professor at George Washington University who worked on the advisory board, told me. “Turns out it was toxic.”
Fear about carjacking had seized the District anew. There were a hundred and forty-eight carjackings in 2018; in 2022, there were nearly five hundred. And it wasn’t just carjacking. Although crime statistics in D.C. told an uneven tale—violent crimes and robberies were actually going down, but homicides were on the rise—council members did not want to seem as if they were going soft on crime in the midst of a crisis. Suddenly, the reform bill became politically dangerous.
The commission and the council scrambled to rewrite parts of the code, hoping to mitigate concerns. Judges and the U.S. Attorney’s office worried that more jury trials would clog their court dockets, so the commission suggested slowly expanding jury demandability over eight years. The office of Muriel Bowser, the District’s mayor, felt strongly about not easing punishment for public urination, so that remained a criminal offense.
The appeasement campaign worked. By the time the code came up for a vote, in November, 2022, all thirteen council members supported it. Allen felt enormous relief. “Then,” he told me, “as we were spending the holidays with our families, I started hearing things.” On January 3rd, Allen learned that Mayor Bowser had chosen to veto the bill. “This bill does not make us safer,” she wrote, in a letter to the council’s chairman. “The Council has gone far beyond the modernization of our criminal laws to include controversial policy proposals best addressed in stand-alone bills where the public can review them and offer their thoughts.” At a press conference that day, Bowser noted that, “any time there’s a policy that reduces penalties, I think it sends the wrong message.”
Paul Butler, the lawyer from Georgetown who had pushed for the expansion of jury trials, remembered thinking, This is political theatre. The council needed nine votes to overcome Bowser’s veto, and, two weeks later, it did just that. Butler suspected that Bowser knew she could enjoy the benefits of the bill without accepting any of the political fallout. (The mayor declined several requests for an interview about the legislation.)
Phil Mendelson, the council’s chairman, had another worry: the U.S. Congress, which has the ability to strike down the council’s bills. (Self-governance was stripped from the District after Reconstruction, when Dixiecrats feared the power of a voting bloc in a city in which nearly half of registered voters were Black men.) Congress had not formally disapproved of a D.C. bill in more than thirty years, but Mendelson understood that today’s lawmakers were eager to send messages about urban recklessness. Republicans could use Bowser’s veto to paint the council as a group that was so radical, so brazen, that its own mayor wanted to stop them.
Mendelson called Bowser. He told her that he understood she did not like the bill, but that the District still needed to show a united front. He asked her to join him on a letter requesting that Congress stay out of the District’s affairs. Bowser declined. “I thought her actions were just going to fuel Republicans,” Mendelson told me. “I was right.”
The fearmongering began swiftly. Hours after the council overrode the mayor’s veto, Harris Faulkner, on Fox News, said that the nation’s capital was “on the precipice of dangerous change.” Video of flashing police lights and a gas-station carjacking played onscreen. “This is a George Soros dream,” Pete Hegseth, another Fox personality, said, invoking a standard bogeyman in the right-wing imagination. “They wrap it all under the familiar phrase of diversity, equity, and inclusion. . . . They’re going to promise utopia in some new antiracist future, and they will deliver hell to the residents of Washington, D.C.” The framing was set: the D.C. council had run amok, and Republicans had little choice but to intervene.
Bowser took none of the blame. Hegseth commended her for attempting to stop the legislation. On another program, Greg Gutfeld postulated that Bowser must have good insurance—a plan that included “stem-cell treatments, because it sounds like she finally grew a brain. Maybe she could lend it to our President on the weekends.”
Park was slack-jawed. The Fox segments correctly noted that the code would reduce the sentence for carjacking, but no one discussed why the staff thought those reductions made sense, or that the revised code still called for sentences that exceeded those in many conservative states. Even local-news broadcasts glossed over many of the details, focussing instead on the tension between the city council and the mayor. The editorial board at the Washington Postargued that D.C. could become a “more dangerous city” and asked whether sixteen years of work was enough.
The D.C. reform “was a technical reduction of penalties on paper,” Park explained to me. “It was. . . .” He sighed, thinking about what happened next. “All the dominoes started to fall,” he said.
Park hoped that the national intrigue would fade quickly. It didn’t. The Heritage Foundation, a conservative think tank, planned an event called “The District of Disorder,” featuring Senator Bill Hagerty, of Tennessee, where the maximum sentence for carjacking was ten years less than under D.C.’s statute. The D.C. Police Union—which had not submitted testimony during the public-comment period—now kicked into gear, sending text messages to residents that blamed officer shortages on “misguided legislation passed by the D.C. City Council.” The union hired lobbyists to work the Capitol, encouraging lawmakers to strike down the bill.
Memes proliferated, and then came violent threats. On Twitter, someone posted Allen’s address and the names of his children, then called for his car to be hijacked and his kids thrown out of the back seat—so he could see how it feels. Soon, constituents and even acquaintances were calling, asking why he supported legalizing carjacking.
On the Hill, House Republicans introduced a disapproval resolution to strike down the code revisions. It would need to pass both houses of Congress, then be signed by the President. The G.O.P.-controlled House was a lost cause, but Allen and others had hoped that Democrats in the Senate would be able to stop the effort. He lived just six blocks from the Capitol, and his children attended a school full of kids whose parents were congressional staffers. During drop-offs and pickups, he’d try to sidle up to these parents. It didn’t help. No one wanted to look soft on crime—even if it was in someone else’s back yard. Allen kept hearing that the politics were untenable: “When the mayor is telling us that she vetoed it, what do I do?”
Jamie Raskin, the ranking member of the House Oversight Committee, which handles the affairs of the District, tried to persuade his colleagues that this was an issue of self-governance. Democrats have long pushed to make D.C. the fifty-first state. (Its population is larger than those of Wyoming and Vermont, and its two senators would be reliably Democratic.) Shouldn’t the Party endorse the District’s right to make its own laws, Raskin argued, whether or not outsiders agreed with them?
The answer was no. When the House voted on the disapproval resolution, in February, thirty-one Democrats supported it. Following the vote, Bowser did send a letter—on her own—insisting that “Congress should not overturn laws duly enacted by the District of Columbia.” But she could not halt the momentum. In the Senate, thirty-one Democrats and two Independents joined the Republican minority in support of the resolution, with many citing the mayor’s veto as justification. The council’s last hope was Biden. But, when the bill came to his desk, he signed it. On Twitter, he wrote, “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.”
Local Democrats were furious. The whole episode came to symbolize how national narratives could swallow local lawmakers. “I can call a press conference and get a couple of cameras, probably,” Allen said. “Kevin McCarthy can stand on the steps of the Capitol, and there will be a hundred cameras there, and national news. It is asymmetric warfare.”
McCarthy, the House Speaker, did call a press conference. After the Senate passed the disapproval resolution, he gathered his caucus in the Capitol’s Statuary Hall, where he declared that “no longer will Washington be soft on crime. No longer will we be defunding police. No longer will we be softening sentences.” The caucus applauded a staffer who described the incessant fear that he and his girlfriend experienced after recently being robbed at gunpoint. McCarthy noted that a local activist group had recently held an opposing rally at the nearby Union Station. During the rally, McCarthy said, another carjacking occurred in the parking lot behind them.
For decades, Republicans have held up the District—a historically majority-Black city—as a place to be feared. Today, that dynamic has spread, in what Richard Schragger, a professor at the University of Virginia School of Law, calls a “war on cities.” Smaller governments, particularly those of liberal cities and counties in conservative states, have become more aggressive about protecting their bubbles, prompting a response from bigger governments, which warn that they are going too far.
It is hard to ignore the identity politics embedded in these battles. This year, the Black mayor of Jackson, Mississippi, duelled with the state’s legislature, which was seeking to take control of the city’s water supply and parts of the justice system. A transgender lawmaker in Montana was barred from a debate about gender-affirming care. There have been tussles between local and state governments regarding book bans, gun control, bathrooms. “Hot-button issues are now being sparked at all levels,” Schragger said. “When a North Carolina school opens up a bathroom to all sexes, the state comes in and says you can’t do that. States come in to try and override increases in living wages, plastic-bag bans, anti-discrimination laws, a number of employment protections.”
All of this was a sign, Schragger told me, that local debates have been warped by our national preoccupation with the culture wars. It takes only one spicy tweet or provocative cable-news segment for the nuances of a local issue to get obscured in the glare of the national spotlight. “The hyper-politicization and nationalization of these things—it is going to mean that good people who just want to put their hand up and take their turn serving their neighborhood don’t want to do it,” Allen said. “Politics is a contact sport. No one should kid themselves about that. But, at local levels, school-board seats, you kind of expect that you’re really just focussed on ‘Can somebody make good decisions?’ ”
In hindsight, Allen wishes that he had framed the narrative about code reform for a national audience. He could have emphasized the parts of the code in which sentences would have become harsher, such as for assaulting a police officer, possessing a firearm, or committing sexual abuse. “We really argued around the fairness,” Allen said. “Nationally, and to the members of Congress, they didn’t care. That’s not what worked. Give the Republicans credit—they’ve convinced you a quarter of a century of your life in a prison cell is light, it’s soft on crime.”
Park watched helplessly as the primary work of his adult life was swept away by political bluster. Not a single Republican in Congress reached out to him or anyone else on the commission to discuss the code revisions. Meanwhile, the G.O.P. transformed D.C.’s criminal code into a national campaign issue. The National Republican Congressional Committee has already spent tens of thousands of dollars buying ads to malign fifteen Democrats in swing districts who supported the reform. In Albuquerque, more than eighteen hundred miles away from D.C., a billboard in Gabe Vasquez’s district had him standing in front of a foreboding black background bisected by yellow police tape. It read “Voted for reduced sentences for violent crimes. Meanwhile, Albuquerque carjackings rose 11% in 2022.”
“There is a real opportunity from a political perspective,” Jack Pandol, a spokesman for the N.R.C.C., said. “In a political environment where voters already believe Democrats have permissive views on crime, these House Democrats are outside the mainstream even within the Democratic Party. It shows they are extreme.” Vasquez told me, “New Mexicans aren’t worried about D.C. politics.”
Summer Lee, a freshman congresswoman from the Pittsburgh area who was pummelled with soft-on-crime ads during her campaign, understood how labor-intensive it could be to defend against such lines of attack. Still, Lee, who became one of the most ardent supporters of the District on the Oversight Committee, felt that the debate over D.C.’s autonomy exposed her party’s inconsistent willingness to stand up for communities of color. It also reflected its short-term memory for some of the discussions that happened in the aftermath of George Floyd’s death—that investments in education, health care, and jobs are the best ways to lower crime. All that energy seemed to have faded.
“This isn’t new, right?” Lee said. “We’ve seen it, in the ’94 crime bill, in the eighties, and we saw it last year play out in elections all over the country. We have to choose whether or not we are going to play this game with Republicans, or whether we’re going to be honest and organize and put resources into telling the truth that more police and locking more people up won’t help us be safe. But it’s tough. It’s a tough thing to counter.”
A group of D.C. community organizers, whose interests ranged from victims’ rights to prison abolition, began to visit Capitol Hill to try to exert some influence. When James Comer, a Republican congressman from Kentucky who leads the House Oversight Committee, convened a series of hearings about the District, more than two hundred activists marched around the Hill, wearing “Hands Off D.C.” T-shirts. Some community members attended the hearings. One of them, Anthony Davis, who was forty-eight, had been released from prison after being convicted in connection with a murder that he claims he didn’t commit. (He is working with an innocence project to clear his record.) Davis had grown up in D.C., but he had never been to the Capitol before. He marvelled at the beauty of the Rayburn building’s exterior, but was surprised by how run-down things looked when he got inside.
Comer banged his gavel. “D.C. officials have not carried out the responsibility to serve its citizens,” he said. Other representatives spoke about how their constituents were afraid to come to the city. The proceedings quickly went off the rails, though. Gary Palmer, from Alabama, called the District’s schools “inmate factories.” Jared Moskowitz, a Democrat, who represents a district that includes Parkland, Florida, got into a vicious volley with Marjorie Taylor Greene that, in a span of two minutes, covered assault weapons, school violence, transgender identity, hormone therapy, mental health, and book bans. Later, Anna Paulina Luna, of Florida, displayed large photos of aborted fetuses in jars. She asked why the criminal code didn’t do more to save them.
Davis was shocked. Before him were some of the country’s most influential leaders, yelling at one another and talking about issues that seemed tangential at best. “It made me realize why the people of this nation are the way we are,” he said. “All the anger and vitriol—I think it starts with leadership.”
During these meetings, which lasted hours, the “Hands Off D.C.” organizers would try to buttonhole members of Congress as they walked in and out. They approached Nancy Mace, of South Carolina, who stuck her fingers in her ears. They asked Byron Donalds, of Florida, to come to their neighborhoods to understand their needs; he replied that he already did, because he had grown up in New York City. When two female organizers tried to stop Tim Burchett, of Tennessee, he complimented them on their jewelry.
Makia Green, one of the “Hands Off D.C.” community leaders, took video of some of these interactions on her cell phone. On the Hill, Green had learned the importance that lawmakers placed on going viral. Now her hope was to catch a viral moment of her own. When it came to national politics, Green told me, “There’s a lot more performance to this than I thought.”
In April, Congress passed another disapproval resolution, of a D.C. bill that banned choke holds and mandated the use of de-escalation tactics. (Biden did end up vetoing that effort, following the mayor’s lead.) In June, Comer held a meeting aimed at upending a District plan to allow noncitizens to vote in local elections. And, in July, the House went even further, pushing legislation that would prevent the District from collecting revenue on tickets for some minor traffic infractions. Privately, some Republicans admitted that they had not expected to concentrate so much on D.C.’s government. But they felt they had little choice, owing to, as Nick Langworthy, of New York, put it, D.C.’s “asinine policies.”
Bowser began to work harder with lawmakers to defend those policies. She and Mendelson, the council chairman, sent letters “respectfully” asking Congress to reconsider its actions. For the first time, the council chairman hired a staffer to work with federal lawmakers.
Since the pandemic, Park has been working from home. After Congress’s disapproval, Bowser proposed stripping away the commission’s funding. The council decided to keep it, though; this gave Park hope that they might be able to pass a version of the reform, eventually, that could withstand national scrutiny. He told me, “It’s really frustrating to have members of Congress make these votes and pronouncements on a piece of legislation they probably haven’t read.”
Crime in the District has only got worse. This summer, the council voted 12–1 in favor of a bill that would actually put more people in jail while they awaited trial for certain crimes. The D.C. Police Union applauded the move. The bill’s author, Brooke Pinto, told me it was important for the criminal-code revisions to pass, someday. But, for now, the District was in a “state of emergency.” Debates over language and the law, again, would have to wait. ♦