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.”