“There’s soft on crime, there’s softer on crime, then there’s Phil Mendelson,” says police-union head Kris Baumann.
When I asked Mendelson why gun violence was so prevalent in DC as opposed to the suburbs, he said: “It’s not the District’s fault. . . . We have too many guns coming in from shops in Maryland and Virginia.”
What could police do to control gun crime better?
“Use new and different methods,” Mendelson says. “Foot beats. Bikes. Segways. Share statistics.”
One DC councilmember in favor of tougher penalties, including mandatory-minimum sentences for gun crime, is former mayor Marion Barry. In 2005 the Ward 8 councilmember introduced legislation to make the penalty for possession of an illegal gun a mandatory minimum of ten years in jail.
He told reporters at the time: “I don’t think it is harsh enough, because murder and violence need to stop in this town. I am usually not for mandatory minimums. But in this case, I think we need to do that.”
Mendelson says DC’s gun laws are strong enough—with the exception of what’s known as the “operability” ruling. Thanks to a 1974 ruling by the DC Court of Appeals, the District is the nation’s only jurisdiction where police have to prove that a gun works before a suspect can be held pending trial.
In practice, if police arrest a suspect and want to charge that person with CPWL, a cop has to take the pistol into the basement of police headquarters and fire it into a water tank. If it goes off, police can charge the suspect. It sounds simple enough, but it sometimes means cops have to make a difficult decision because the process of proving operability lessens their chances of tracing the gun.
“If a gun is found on the floorboard of a car, and it is tied to a shooting, and we have witnesses to the shooting, we call an evidence technician to the scene,” says US Attorney Jeff Taylor. “The technician photographs the gun, takes it to a mobile crime lab, and coats it with a material that will allow us to digitally record the fingerprints.”
If the same gun is found in a car but is not directly tied to a shooting, police have to test-fire it immediately. The evidence technician is forced to use a less reliable method of dusting it to get fingerprints.
Says Taylor: “We don’t get the best prints, and we don’t always get to hold the suspect.”
Everyone involved in fighting gun crime agrees that forcing police to prove a gun works can gum up the enforcement system. Removing the requirement will take a change in the law through Phil Mendelson’s committee.
“We have a bill pending,” Mendelson says. No hearings have been held.
Let’s say the DC police arrest someone for carrying a pistol without a license and prove that the gun works. Even if that person does not have a prior arrest for violent crime, says US Attorney Taylor, “we would move to hold that person 97 out of 100 times. But in 40 to 45 percent of those cases, they would not be held.” Superior Court judges typically release such suspects, Taylor says.
That arithmetic means that of the 982 people arrested in 2007 for CPWL as a first offense, at least 390 were turned back out into the community.
Taylor, appointed by President George W. Bush, is the highest-ranking prosecutor in DC. Unique among American prosecutors, he presents cases to both the DC Superior Court and the federal District Court. Superior Court is subject to local laws, and its judges are more sensitive to community concerns; the federal District Court relies on federal laws and typically handles more-violent and repeat offenders.
“It’s a big system,” Taylor says. “We process a lot of cases.”
According to his records, the US Attorney’s office filed firearms-related charges in 870 cases in 2007. Illegal possession was the lead charge of 68 percent of the cases. The rest included offenses such as armed robbery, carjacking, and murder.
Taylor’s prosecutors got guilty pleas or verdicts in 566 cases involving possession of illegal firearms. It is highly unlikely that many of those convicted served any significant time. The verdict carries a five-year maximum penalty but no minimum. Judges often apply a split sentence that might put the person on probation but suspend jail time.
If the person pleads guilty or is convicted at trial for being a felon in possession of an illegal firearm, he or she now must serve a mandatory-minimum sentence of one year. Taylor says he charged 167 felons under this law in 2007.
Taylor is in an unusual position—a federal appointee who’s a chief local prosecutor. He’s careful not to criticize either local politicians or judges. It’s pretty clear, though, that he thinks the DC court system is deferential toward defendants. He points out that Superior Court is open most days, including Saturdays, Christmas, and other holidays, “so people arrested can be promptly brought to court and released, if appropriate.
“We live in a jurisdiction that’s very solicitous of defendants’ rights, very defendant-friendly. That is reflected in some of our juries, judges, and elected officials. It has an impact on public safety.”
Superior Court chief judge Rufus King III doesn’t see his judges as being soft on defendants.
“We have one of the highest incarceration rates compared to any state,” meaning the highest percentage of arrests resulting in jail time, he says in his office in Superior Court, just up the street from police headquarters. “Our judges are not shy about handing out time.”
King, who plans to step down from his post in the fall, says his judges are not always inclined to let defendants out while they await trial.
“Pretty much what the government asks for, they get,” he says. “Some of the time, prosecutors don’t ask. But I’m sure there are times they ask us to hold suspects and they don’t get it.”
King says DC’s bail-bond system—under which defendants are entitled to release pending trial absent specific findings of danger to the community or risk of flight—is unique among area jurisdictions.
“There is no bond in DC,” he says, noting that the city council followed federal practice when it passed its law. Because there is no bail provision, judges cannot put a price on people’s detention, releasing them, for example, on $1,000 bail as an incentive to appear in court.
The inability of judges to set bail, says King, “creates a strong presumption that anyone charged with anything but a few major crimes—such as murder or assault with intent to kill—is released pretrial.”
When judges had to impose bail for someone to be released, “that was very different. Now we have to have a reason to hold someone.”
King is no fan of mandatory-minimum sentencing laws. “You can do sentencing two ways—either the judges or the legislature decides on the appropriate sentence,” he says. “If the legislature passes mandatory minimums, a whole lot of people go to jail for a long time.
“As a community,” he says, “we have drawn a balance in favor of judicial discretion rather than blanket mandatory minimums that send everyone off to jail. There are costs of doing it either way.” ➝
King insists that judges take gun crime seriously. “Repeat offenders are going to do some time,” he says. He thinks DC’s gun laws could be “augmented,” particularly by removing the requirement that a gun be proved “operable” before a suspect is arraigned—the legislation awaiting action in Phil Mendelson’s Judiciary Committee.
Edgar Domenech says the US Attorney could help fix DC’s rampant gun crime by prosecuting more cases in federal court.
“The majority of gun cases in the District go through Superior Court,” he says, “and the majority of defendants just don’t see any real jail time.”
Domenech, DC’s ATF chief, is the city’s top federal gun cop. Before coming here, he ran ATF’s operations in New York and Miami. “I have a different philosophy and focus than my predecessors,” he says. “Guns are my forte—my passion is firearms.”
I ask him why gun crime is worse in DC than in Virginia.
“They know if they commit a serious gun crime in Virginia, they could go to federal court for the Eastern District,” he says. “They start to cry. They realize the consequences of their actions. They will do serious jail time.”
Domenech’s main job is to enforce federal gun laws, which govern sales and trafficking of firearms. His agents trace illegal weapons with the goal of taking down trafficking networks. They bring most of their cases to prosecutors and federal courts in Virginia and Maryland, he says, because DC’s federal prosecutors are less interested in their cases.
According to the TRAC data system, which tracks federal prosecutions, the DC US Attorney’s office prosecuted 423 cases in federal court in 2007; of those, five were weapons cases. Federal prosecutors for