Support The Bulwark and subscribe today.
  Join Now

Joe Biden Wants You to Know He’s Not Soft on Crime

But the politics surrounding his willingness to see D.C.’s new criminal code overruled are messy and complicated for Democrats.
March 6, 2023
Joe Biden Wants You to Know He’s Not Soft on Crime
WILKES-BARRE, PENNSYLVANIA - AUGUST 30: U.S. President Biden delivers remarks on his Safer America Plan to further reduce gun crime and save lives in Wilkes-Barre, Pennsylvania, August, 30, 2022. (Photo by Mostafa Bassim/Anadolu Agency via Getty Images)

My home of Washington, D.C., has never seemed so powerless, and it’s a Democratic president driving home our helplessness to control our own fate. With Joe Biden’s blessing, Congress is about to overturn a District of Columbia law for the first time in over thirty years, and I’m tremendously conflicted about it.

Here’s where I’m coming from: The district should be a state, for countless reasons starting with taxation without representation for a place that has more people than Wyoming and Vermont. Like them, we need two senators (we now have zero) and a full-fledged representative in the House instead of a delegate with a circumscribed role. And we need real self-government. The Constitution gave Congress legislative control over the district “in all Cases whatsoever,” and that clearly hasn’t changed much since the granting of “home rule” 50 years ago.

Some golden anniversary celebration.

Last November, the D.C. Council passed a 450-page update of the city’s 1901 criminal code after many years of study, debate, and compromise. Mayor Muriel Bowser says she agrees with 95 percent of the rewrite, and a detailed analysis published by DCist concluded the same is true of groups on all sides of the justice system. But the remaining 5 percent is now creating angst at the federal level as conservatives use crime rates to bludgeon Democrats.

The new criminal code reduces maximum penalties for some violent crimes—carjacking and robbery being the hotly debated examples—and gets rid of mandatory minimum sentences. It also allows people charged with misdemeanors that may involve jail time to have a trial by jury, a change that Bowser says will clog the courts.

The mayor vetoed the bill on January 4, saying “Anytime there’s a policy that reduces penalties, I think it sends the wrong message.” Two weeks later, the D.C. Council overrode her vote. Bowser in February proposed amendments that would have addressed her concerns, but the council has not acted on them.

Meanwhile, the Republican-led U.S. House of Representatives voted in February to override the measure and the Democratic-led Senate is moving quickly in that direction since President Biden’s surprising announcement last week that he won’t veto the bill if it reaches his desk.

Context, of course, is usually MIA in politics. For instance, carjackings in the district have been rising for five years and were up 14 percent in 2022, with 485 incidents reported to police. Understandably, the maximum punishment in the new code is getting a lot of attention—24 years in prison, down from 40.

But how disturbed would most people be if they knew that in the eight cases of armed carjacking that concluded from 2016 to 2020, judges handed out an average sentence of 15 years? Or that in over twenty cases of unarmed carjacking resolved during that period, the average sentence was about seven years?

I’m with Bowser, who says Congress should butt out and let the council address what she views as problems with the revised code. But she’s not really in charge. Congress is.

This is a 240-year-old mess. A largely forgotten episode from the Founding era—the Pennsylvania Mutiny of 1783—“literally forced the Congress to focus on its personal safety,” according to the National Constitution Center. Hundreds of armed and unpaid Revolutionary War soldiers from Lancaster marched to Philadelphia, joined up with fellow veterans there, blocked the doors to Independence Hall where Congress was meeting, and demanded their money. And Pennsylvania’s governor refused to protect the Congress.

The incident underscored the “indispensable necessity of complete authority at the seat of government,” James Madison wrote in Federalist No. 43, lest “the public authority might be insulted and its proceedings interrupted with impunity.”

Yet arguably the worst interruption in U.S. history happened right in Washington on January 6, 2021, when armed and fanatical Donald Trump loyalists broke into the Capitol, rampaged through it, and threatened the lives and safety of police, public officials, and Capitol staff in their doomed attempt to block the final step in formalizing Biden’s 2020 victory. The riot led to at least several deaths, four police suicides, and nearly 1,000 arrests so far. So much for the idea that lawmakers can guarantee their own security, even in the heart of the federal enclave.

Still, much as I wish it were, this is not a hard call for Biden and Democrats. Most of them champion statehood for the district, but that’s an aspiration for now—while crime is a clear and present danger both on the streets and to their party. A stronger focus on crime in a few House races last year might have kept Democrats in control of that chamber. In 2024 they will be trying to win back the House and hold both the presidency and their Senate majority in a very tough year, and the attacks on crime are already coming.

“Admitting D.C. into the union would implode our republic,” Sen. Marsha Blackburn (R-Tenn.), wrote in a fundraising email less than a week after 173 House Democrats  voted against the GOP resolution to nullify the district’s new criminal code. Her first example of what could happen if the district got two senators: “Criminals will have free rein over our streets.”

Biden’s public journey to this decision was not direct. The administration opposed the House GOP resolution to override the district’s crime code in a February 6 statement and said the fight showed its need for statehood—but did not threaten a veto. When Biden told Senate Democrats last week that he would not veto the measure, some House members who had opposed it felt blindsided and reacted with anger and frustration.

But more and more senators are now saying they’ll vote with the GOP to overturn Washington’s criminal code update. As of the weekend, they included at least three Democrats and an allied independent on the 2024 ballot and many “endangered” lists—Joe Manchin of West Virginia, Bob Casey of Pennsylvania, Tammy Baldwin of Wisconsin, and Angus King of Maine. Several who aren’t endangered or up for re-election have made the same judgment or are considering it.

I’ve been a Washington-based national politics reporter and commentator for decades, and I have never been able to vote for a senator or regular House member. I’ve visited Wyoming and Vermont many times, and I’d love to see Congress overturn most or all of their gun laws. But that’s not up to me or Congress. Voters in those states and all states are full-fledged citizens of the United States. They have rights that I don’t have.

At the same time, I have often implored Democrats to be more like Republicans—hard-headed, cold-blooded, and sly. McConnellesque, in a word. And Biden’s decision, though not particularly principled, is smart strategy for him, Democrats, and the many humane and practical goals they hope to achieve. It means they may live to fight another day for an agenda that reflects my own dreams for my country. I can only hope that statehood is near the top and that this time it’s an action item—not an empty promise.

Jill Lawrence

Jill Lawrence is an opinion writer and the author of The Art of the Political Deal: How Congress Beat the Odds and Broke Through Gridlock. She previously covered national politics for the AP and USA Today and was the managing editor for politics at National Journal. Homepage: Twitter: @JillDLawrence.