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On Tuesday afternoon, the D.C. Council rejected two amendments from Ward 3 Councilmember Mary Cheh that echoed police and prosecutors’ talking points opposing a re-sentencing reform bill. Both amendments were voted down 2-11. Only outgoing Ward 4 Councilmember Brandon Todd voted with Cheh, but the measures nevertheless sparked debate about punishment, rehabilitation, and racial inequities in the criminal justice system.
The underlying law, the Incarceration Reduction Amendment Act (IRAA), originally passed in 2016. It allows people who committed serious crimes as juveniles and who’ve served at least 15 years of their sentences, to ask a judge for a new sentence or release. At least 55 people have been released under the IRAA, according to legal advocates and attorneys who track the cases. The updated bill, which passed unanimously, raises the age limit at the time of the crime of those eligible to ask for a new sentence from 17 to 24.
Cheh’s first proposal would have required judges to give “substantial weight” to victims’ testimonies when deciding whether to re-sentence an individual, which leaves LL scratching his head, given Cheh’s background as a lawyer and law professor. Giving more weight to a victim’s testimony than other factors could invite unequal or potentially discriminatory outcomes, says James Zeigler, an attorney who has represented several people asking for new sentences under the IRAA.
“Victims’ input can vary so widely, and is, to some degree, arbitrary,” Zeigler says. “To give it that outsized weight raises questions about the fairness of the proceedings.”
Cheh said she believes the current law doesn’t strike the right balance between offenders’ and victims’ input.
Her second proposal would have explicitly required judges to consider the underlying offense as a factor in determining whether a person should receive a new sentence.
“Certain crimes are so heinous, so brutal, so depraved that the court should have no choice but to consider it as a factor,” Cheh said.
The bill originally included that language, but the Council removed it after federal prosecutors used the severity of the underlying offense to oppose every re-sentencing petition. The bill’s supporters say the offense is implicit in the judge’s decision. Only those offenders whose crimes are severe enough to warrant a sentence of at least 15 years are eligible.
“I think we need to be explicit about something we’re saying is going on anyway,” said Cheh. “I disagree with this assessment of what we’re doing. It’s going to be about the victim, it’s going to be about the harm, it’s going to be about the societal norms to be upheld.”
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Ward 6 Councilmember Charles Allen, who chairs the judiciary committee and shepherded the bill through the Council, said Cheh’s amendments would run afoul of the statute’s goal to recognize individuals’ potential for rehabilitation and reverse racially discriminatory sentencing schemes that put them away.
Elevating victims’ testimony above other factors judges consider in re-sentencing could result in arbitrary outcomes, Allen argued. Two people convicted of the same crime, with the same record of rehabilitation, could end up with different results depending on their victims’ points of view or if the victims or the families could even be located.
Ward 5 Councilmember Kenyan McDuffie, who worked on the original law when he chaired the judiciary committee, emphasized that longer prison sentences don’t make victims whole.
“At the end of the day this is about a system that is so disproportionally unfair to people of color, particularly Black people,” said McDuffie, a former prosecutor. “And I don’t want to make this about race, but unfortunately in our society we have.”
Rather than giving victims outsized input into criminal sentences, McDuffie argued, the Council should work to address underlying issues that compel young people to commit violent crimes.
“I appreciate, I really do, Mary, what you’re doing now, and I can’t overstate how important it is for you to have this conversation,” McDuffie said. “But this is about fairness and this is about looking back when people have gotten these harsh sentences.”
Cheh emphasized that she supports the underlying reforms but complained that they were included in an omnibus bill along with other bills that had nothing to do with sentencing reform. She ultimately voted in favor of it. The bill will come up for a second vote during the Council’s final meeting Dec. 15.