Reporter covering crime, specifically the D.C. police department
February 5 at 5:09 PM
Scores of D.C. defendants will be prosecuted for federal gun crimes rather than face local charges in the next year as part of a citywide crackdown on felons caught illegally possessing a firearm and repeat violent offenders, four officials briefed on the plan said.
With homicides in the District climbing 40 percent last year and still rising, federal prosecutors’ goal is to bring all “felon-in-possession” gun cases to U.S. District Court instead of D.C. Superior Court, according to the people briefed on the plan.
In 2018, there were 350 of those gun cases brought in the District, but only one-quarter were charged as federal crimes.
The changes, effective Feb. 1, bring to bear prosecutorial and incarceration tools last used widely in the District two decades ago and revive tactics that critics say fueled a mass-incarceration crisis easing only now.
It also could make the nation’s capital a testing ground for the Trump administration’s renewed emphasis on gun prosecutions — a prospect that could stir unease in a city where local leaders and residents have long complained that federally appointed judges and prosecutors hold too much sway over residents’ lives.
U.S. Attorney Jessie K. Liu of the District described the shift and refocusing of federal law enforcement resources as a “homegrown” option that emerged in talks with D.C. authorities over how to combat the city’s escalating violence. She discussed the plan ahead of an event scheduled for Wednesday by D.C. Mayor Muriel E. Bowser (D) to describe the strategy.
“What looks like a stand-alone felony possession case, once you dig a little deeper, may be connected to a violent crime or homicide case that allows law enforcement to connect the dots to protect the community,” Liu said.
The goal is to investigate and prosecute violent crimes more fully, she said, as prosecutors in federal court have more time and tools available to target and scrutinize cases than their counterparts in Superior Court.
She declined to say how many cases would be shifted and at what pace, saying adjustments may be made as the program ramps up and the federal courts adapt to the extra caseload.
In formulating the plans in December, Liu’s staff told federal judges, defense lawyers and court agencies that they were preparing to prosecute as many as “350 to 400” gun cases a year in federal court beginning in early 2019.
But in recent weeks, several of the people briefed on the effort said a decision was reached to ease in the plan to reduce the strain on court resources needed to process, screen and hear cases. The officials spoke on the condition of anonymity because they were discussing the plan ahead of Liu’s and Bowser’s announcements.
The federal court for the District handled 392 criminal cases of all kinds in 2018, including 83 felon-in-possession gun cases and 16 gun-related interstate robbery cases, according to court records and prosecutors.
Among the effects of the change could be the consequences faced by young adult repeat offenders.
Under the D.C. Youth Rehabilitation Act, defendants convicted between the ages of 18 and 25 in D.C. Superior Court can be opted out of mandatory minimum sentences, a law that does not exist for judges and offenders in the federal system, prosecutors and defense lawyers said.
The mayor and D.C. Police Chief Peter Newsham declined interview requests ahead of Wednesday’s announcement.
In a statement Tuesday, Kevin Donahue, deputy mayor for public safety, said the diverted cases will focus “on the relatively small number of individuals who not only have been convicted of carrying out serious gun violence, but continue to carry it out.”
His statement said: “There must be swift and certain accountability when people commit gun crimes, and we must do everything we can to interrupt the cycle of violence and ensure a safer, stronger D.C.”
In December, Newsham told The Washington Post that 40 percent of the known homicide offenders in the city have a prior gun arrest. “At all levels of the criminal justice system, we have to do better,” he said. Newsham — who has spoken about repeat violent offenders and what he sees as inadequate prison terms — has previously said he has asked the U.S. attorney’s office and federal law enforcement authorities to concentrate more on gun crimes.
Bowser, after three people were killed in a shooting Jan. 26, said, “We have had too many gun crimes at the start of 2019 and already too many lives lost.”
The plan to shift the prosecution of repeat gun offenses to federal court would come as the mayor also has embraced criminal justice reforms that erase past arrests from public records and decriminalize small amounts of marijuana.
The plan resembles Project Exile, a federal-local effort launched in 1997 in Richmond to suppress gun violence by diverting gun offenders into the federal system, where prison sentences typically were more severe than in the state and more consistently applied.
The program was coupled with a “zero-tolerance” public relations campaign to deter offenders with the promise of stiff punishment far from home.
Similar programs were adopted with variations in Baltimore, Boston and other cities but often with mixed reviews about the programs’ contributions to drops in violent crimes that already were occurring nationwide.
Unlike other cities with local state or district attorneys, the District’s unique governance means the U.S. attorney’s office already serves as the city’s prosecutor for serious local crimes committed by adults and those who can be charged as adults, and it coordinates with D.C. police on where to bring cases.
Plans for the District do not include a messaging campaign but will deploy additional agents and deputies from the FBI, U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, and U.S. Marshals Service to join D.C. police to enhance investigations and trace the flow and sourcing of weapons, officials said.
Nancy McNamara, head of the FBI Washington field office, said the bureau will redirect investigative, intelligence, technical and forensic resources “to build larger cases where we can” recruit sources, then combine them with surveillance and other national assets.
“We are going to make sacrifices in other parts of the office to put the resources toward this,” said Matthew J. DeSarno, a special agent in charge of the FBI office’s criminal division, adding that “the goal is to demonstrate the unity of our federal partners with D.C. police.”
The federal gun prosecution campaign will rely on two statutes: a federal felon-in-possession law and the Hobbs Act, which criminalizes the use of a firearm in an armed robbery affecting interstate commerce.
Under the first statute, felons found in possession of a firearm or those convicted of furnishing a gun to such “prohibited persons” face up to 10 years in prison. That increases to a mandatory minimum of five years for certain combined drug-distribution and gun cases and 15 years for people convicted of three prior violent felony or serious gun crimes under the federal Armed Career Criminal Act.
In D.C. Superior Court, the comparable local offense carries a 10-year maximum sentence and increases to 15 years for violent criminals. But many defendants receive punishments closer to mandatory minimum sentences, which vary from one year for those previously convicted of nonviolent offenses to three years for past violent offenders, according to sentencing reports for D.C. Superior Court cases and attorneys.
Under the Hobbs Act, defendants whose crimes involved a firearm are exposed to longer mandatory minimum sentences tied to the circumstances of their cases, the types of firearms used and the defendants’ criminal histories.
The chairman of the D.C. Council’s Committee on the Judiciary and Public Safety, Charles Allen (D-Ward 6), and Council Chairman Phil Mendelson (D) said the initiative undercuts and circumvents local gun laws.
“It’s a lot of drama that will have a little effect,” Mendelson said, yet will undermine council-backed efforts including the Youth Rehabilitation Act and sealing arrest records in selected cases. After their release, returning offenders also may be ineligible for local programs designed to help them.
“It sounds great. ‘Oh, they’re going to throw the federal book at all these people.’ All I can see is maybe there will be longer sentences and maybe not,” Mendelson said. “Putting them under the federal system will not make a difference in reducing crime.”
The impact of diverting the gun cases federally will be felt by more than the defendants.
Public defenders, probation officers, magistrates and other court agencies will need to keep pace with what will be a ballooning caseload.
Unlike federal prosecutors, who work in both D.C. Superior Court and federal court but are all part of the same U.S. attorney’s office, public defenders who represent indigent clients are split between two agencies.
The Federal Public Defender’s Office, which represents poor clients in federal court, has fewer than 10 full-time attorneys and three investigators.
That makes it roughly one-sixth the size of the D.C. Public Defender Service, which has about 62 criminal trial and appellate attorneys and two dozen investigators working for its clients charged in D.C. Superior Court.
Spokesmen for the federal defender’s and public defender’s offices declined to comment on the planned changes in caseloads.
Monica Hopkins, executive director for the ACLU of the District of Columbia, criticized the move to shiftthe cases to federal court as a “shortsighted, reactionary move” that ignored that past tough-on-crime approaches have resulted in mass incarceration, not more public safety.
“This sort of decision warrants a public discussion about the impact this change will have on D.C. residents, our judicial system and those who are accused of gun-related crimes,” she said. “Mayor Bowser is making an end run around the public and the [D.C.] Council and ceding more power back to the federal government.”