When DC began overhauling its criminal statutes back in 2016, the project wasn’t supposed to be controversial: Our city’s code is more than a century old and is written in a way that makes many laws tough to enforce. To fix this, the city created the Criminal Code Reform Commission, a group of experts asked to draft something fairer and more effective. One of the key people was Patrice Sulton, a criminal-and-civil-defense attorney who was previously a professor at George Washington University’s law school.
Last year, after the commission issued its recommendations, the DC Council unanimously voted to update the code. Then came the pushback: Critics believe the new code is soft on crime, because it reduces the penalties for some offenses. One such naysayer is Mayor Muriel Bowser, who vetoed the revised code. While the Council overrode her veto, the bill now appears to be dead. First, the House voted to block the new criminal code, and the Senate and the President are poised to follow suit, despite Council chair Phil Mendelson saying that he’s withdrawing the bill.
Sulton is now the executive director of DC Justice Lab, a criminal-justice-reform group, and she’s surprised by the controversy over the bill. In February, we spoke with her about what’s actually in the updated criminal code and why it’s become so controversial.
How did you get involved in revising DC’s criminal code?
In 2018, I closed my law practice and joined the Criminal Code Reform Commission, which was a tiny independent agency tasked with rewriting all of the criminal laws at once. And that was exciting to me, because for a while I’d worked kind of piecemeal on things that were important to me—marijuana decriminalization, policing, discovery reform.
I knew that you could get these little piecemeal wins, but they take a long time and they can be undone very quickly, and it’s hard to do them right. So instead of, like, a win for one side and then a win for another side, it’s more sensible to get prosecutors and defense attorneys together and say, “What can we all agree on?” and “This is what the rules should be.” I don’t want anyone to think that the laws are unfair, even people that see the world very differently than I do—I want everybody to have had a say in how they’re shaped. And I think the revised criminal code is a really good reflection of that kind of deep compromise and consensus building.
It sounds like you’re saying this was not an ideological project.
It was a very good-governance, neutral, compromise kind of a project. It was law nerds in a basement, rewriting many, many statutes. This was not a decarceration agenda, it was not a racial-justice agenda. It’s been difficult for me seeing it treated as this very radical project when, in reality, defense attorneys and prosecutors were like, “Okay, we can live with this.”
Let’s back up for one second. Why do we need a new criminal code?
Our criminal code was adopted by Congress in 1901, and we have never comprehensively revised it. Having an outdated criminal code means that we have gaps in the law—things that most people would, in modern times, expect to be criminalized that are not. More important, our current criminal code is really, really unclear. We have statutes that just say, “Don’t assault someone” or “Don’t commit manslaughter,” and there’s no definition given to those offenses.
But why does that matter?
In order for laws to be enforceable, they have to be clear. [When the definitions aren’t clear] it’s a disservice to everybody. It doesn’t help victims who can’t tell if they’ve been victimized, it doesn’t help police officers who are trying to figure out whether there’s probable cause, and it doesn’t help people who are accused who are trying to understand whether they’re going to be punished, or how harshly they’re going to be punished, or whether to plead guilty.
In the new code, it sounds like you focused on making sure that less serious offenses weren’t punished more severely than more serious ones.
Yes. We said, “Okay, here are all the offenses, so let’s first put them in order [of severity] from the most serious conduct to the least serious conduct. Would you rather be stabbed in the face or shot in the leg?” Under current law, for example, the maximum authorized penalty for carjacking is the same amount of time as second-degree murder. Under the new code, it’s not going to be punished by the same measure anymore.
Some critics are saying the new code reduces penalties.
I think that’s the biggest misconception. These are really high penalties. I mean, do you know what is the new penalty for carjacking that’s got everybody in hysteria? It’s 24 years. That’s before the enhancements—if the victim was old or young or otherwise vulnerable, or if you have a weapon or prior offenses or anything like that, it could be 32 years.
These are not soft penalties. And some of them are higher than they are under current law. We created an entirely new felony offense for shooting in public that doesn’t exist under current law. The penalty for attempted murder under current law is five years. It’s 20 years under the revised code. The penalties for committing some violent crimes have gone up significantly, including the most commonly charged version of sex abuse. That’s a misdemeanor under current law and is a felony under the revised code.
Sex abuse is currently a misdemeanor?
Yeah, when I was practicing law, I was like, “Oh, my gosh, I have a client who is charged with driving on a suspended license, and that’s a year in jail. And then I have this other case where someone is accused of touching someone’s child, and that’s 180 days.” That’s crazy.
What else stuck out as strange?
I had to write the [section for] possession of an open container. And I was so confused, because people told me that you’re not allowed to drink in the back of a party bus. I was like, “Of course you’re allowed to drink in a party bus.” And they were like, “No, look at the statute.” I’m like, “This is a terrible idea—a party bus is so that people will not drink and drive. That’s the whole point!”
What would you say to someone who thinks the new penalties are too light?
I toggle between “These penalties are really harsh” and “Having harsh penalties is not what actually keeps people safe.” I think both arguments are important.
What do you make of Congress’s interference with this bill?
I didn’t realize it was even a possibility that we could have this level of interference. But that’s where we are now.
I thought the big finish line was to get the prosecutors and defense attorneys to agree on it, and they accomplished that. And then the bill passed [the DC Council] unanimously in its current form. And then the Council did the override of the [mayor’s] veto. After all of that, to even be dealing with the opinions of people outside of DC is just so fundamentally unfair. It shouldn’t even be a question.
Assuming the bill is dead, what’s next?
The city can go back and make the bill better according to what people in DC want, but they shouldn’t change the bill based on what people from out of state are saying, especially since most of what they’re saying is not true.
We deserve a new criminal code no matter how we get there. If we have to go back and rewrite every statute, that would be worth the effort. We need to get this done.
This interview has been edited and condensed.
A version of this article appears in the April 2023 issue of Washingtonian.