WASHINGTON, D.C. – Attorney General Karl A. Racine today announced that his office filed two friend-of-the-court briefs opposing a policy from the United States Attorney’s Office for the District of Columbia (USAO) to prosecute felon-in-possession (FIP) gun cases in federal court. The amicus briefs argue that the policy undermines home rule authority by taking local cases that have historically been tried in Superior Court and prosecuting them in federal court under much harsher sentencing guidelines and without protections enacted by the Council of the District of Columbia to prevent overincarceration. The briefs further argue that this policy will disproportionately harm African Americans in the District, who are more likely than any other demographic to have a prior felony conviction. For these reasons, the amicus briefs urge the dismissal of two FIP cases brought against defendants in federal court (U.S. v. Reed and U.S. v. Simmons).

“The District has enacted data-driven criminal justice reforms that hold offenders accountable and address problems of overincarceration and racial inequities,” said AG Racine. “The U.S. Attorney’s policy to prosecute local gun crimes in federal court intentionally sidesteps our local courts, thus denying offenders the benefits of these reforms, and reverts to a failed federal tough-on-crime approach. The District has strong laws to punish felons in possession of a gun and must be allowed to enforce them without interference.”

The District of Columbia has a higher per capita rate of incarceration than any U.S. state: 1,153 of every 100,000 people in the District are incarcerated, as compared with the national average of 698 per 100,000 people. In FY 2015, over 90 percent of individuals returning to the District from the D.C. Department of Corrections and federal prison were African American, and a significant proportion were under the age of 30. Concerned about overincarceration and racial inequities, the Council has enacted several criminal justice reforms to remedy these problems. These local laws apply only to defendants tried and sentenced in the Superior Court.

Before USAO’s FIP policy, most individuals charged with possession of a gun as a convicted felon were tried and sentenced in Superior Court under local law. On February 6, 2019, former U.S. Attorney Jessie Liu announced a new policy requiring all FIP cases to be prosecuted under federal law.

In the briefs, OAG argues that USAO’s FIP policy harms the District and its residents by:

• Undermining home rule in the District: Congress created a local court system for the District to try local criminal offenses and granted the Council the authority to enact local criminal laws. The Council has carried out that authority by enacting strict gun laws, which are sufficiently strong to punish felons in possession in the District. By prosecuting FIP cases in federal court, the USAO ignores the will of local policymakers and undermines the District’s interest in governing itself.
   
• Disproportionately harming African Americans: The District has an interest in ensuring that the criminal law is applied equally to all District residents. African Americans in the District are significantly more likely to have a prior felony conviction. Application of the FIP policy will thus lead to much higher sentences for African Americans. Examples from other jurisdictions where similar policies have been implemented confirm that the policy will disproportionately affect African Americans.
   
• Denying young offenders access to sentencing reforms: The District has made significant efforts to reduce incarceration of its residents, in part by providing for sentencing alternatives and the opportunity for sentence reduction for individuals who commit their crimes as young adults. For eligible defendants, Superior Court judges can issue a prison sentence below what would otherwise be a mandatory minimum term, implement a sentence of probation, or grant other sentence reductions. None of these opportunities will be available to defendants tried in federal court under the FIP policy. Studies have demonstrated that longer prison sentences do not reduce crime rates, have limited effects on deterrence and recidivism, and have diminishing returns for public safety as individuals ‘age out’ of the high-crime years.
   
• Straining the limited resources of the federal district court on local matters: The USAO has stated that it is prepared to bring as many as 400 FIP cases a year in federal court. By bringing cases previously brought in Superior Court to federal court, the FIP Policy will divert judicial time and resources from both its growing civil docket and from criminal cases implicating greater federal concerns. This obstructs the ability of all litigants to have their claims heard in a timely manner.     

A copy of the amicus brief in U.S. v. Reed: https://oag.dc.gov/sites/default/files/2020-04/FIP-Amicus-US-v-Reed.pdf

A copy of the amicus brief in U.S. v. Simmons: https://oag.dc.gov/sites/default/files/2020-04/FIP-Amicus-US-v-Simmons.pdf

OAG’s Work on Criminal Justice Reform
OAG continues to advocate for and implement criminal justice reforms that both hold offenders accountable and enhance public safety through rehabilitation. Last year, AG Racine co-authored a Washington Post op-ed with Councilmember Charles Allen supporting the Second Look Amendment Act, a bill currently before the Council that would expand eligibility for sentence reduction to defendants who committed their offenses before the age of 25. If enacted, this legislation would only apply to convictions handed down by the Superior Court.

OAG also works to narrow the entryway to the criminal justice system through data-driven initiatives such as Restorative Justice and the Alternatives to Court Experience (ACE) Diversion program. Restorative justice uses mediation to empower victims to express how they were affected by crime and require offenders to accept responsibility and work to repair the harm they caused. OAG was the first prosecutor’s office in the nation to establish a restorative justice program in-house. A preliminary data analysis conducted by OAG found that 57 percent of youth who participated in a restorative justice conference did not recidivate, whereas just 42 percent of similar youth who were prosecuted did not recidivate. This represents a 15-percentage point improvement in keeping youth out of the justice system.

ACE Diversion, an alternative to traditional prosecution, offers wrap-around services like mental health treatment, mentoring, and individual and family therapy to young, nonviolent offenders. Nearly 75% of those who have completed the ACE program have not been re-arrested.