Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
D.C. Council Committee on the Judiciary and Public Safety
Public Hearing Regarding
Bill 25-0291, the Safer Stronger Amendment Act of 2023
by
Monica Hopkins, Executive Director
June 27, 2023
Good afternoon Chairperson Pinto and members of the Committee on the Judiciary and Public Safety. I am Monica Hopkins, Executive Director of the American Civil Liberties Union of the District of Columbia and today, on behalf of the ACLU of DC and our over 14,000 members in all 8 wards, I am pleased to submit testimony regarding Bill 25-0291, the Safer Stronger Amendment Act of 2023.
The ACLU of DC strongly opposes this legislation and urges the Committee not to move it forward. Every District resident deserves safety and security and the ACLU of DC recognizes the need to address crime in the District and the importance of public safety. However, we must not further the self-perpetuating and unjust cycle of over-policing and mass incarceration that has plagued our criminal justice system for far too long. We must have a comprehensive public safety approach that includes preventative, community-based interventions to violence and access to appropriate, non-police, responses to people in need of assistance. Above all, any approach to public safety that is true to our values as a District must respect District residents’ civil rights and civil liberties rather than trading them away for a false sense of security. We can increase equality, justice and public safety without resorting to further criminalization, surveillance, and deprivation of liberty.
This legislation fails on all of these metrics. Far from being comprehensive, it is a collection of piecemeal measures that, in many cases, bear no relationship to one another. To the extent that there is a common thread that ties elements of this bill together, it is a reliance on increased criminalization, surveillance and depravation of liberty, which we know disparately impacts Black and brown District residents. It suggests incarceration of adults and children, who are presumed innocent and many whom may be proven innocent, will achieve the goal of public safety. It has been said, “Insanity is doing the same thing over and over expecting different results.” This legislation recycles a “tough on crime” approach to public safety that, for decades, has destroyed lives and communities, allowed discriminatory use of law enforcement power, and fueled racially disparate mass incarceration. In short, this legislation takes the same approach that has failed to prevent the challenges that we confront today.
The Legislation is Not the Public Safety Solution the District Needs
Our testimony today will focus on pre-trial detention, GPS tracking and collection of DNA evidence. We know that other witnesses will highlight, in detail, problems with adding MPD to the Sentencing Commission and creating barriers to sentencing revisions. We support their testimony while noting the following:
- While framed as improving citizen representation on the Sentencing Commission, Title I adds the Metropolitan Police Department to the Commission’s voting membership.1 It is inappropriate for MPD, which is responsible for investigating potential crimes and making arrests, to also have a direct role in shaping sentencing policy. Sentencing policy should be left to the Court, individuals and entities that practice before the Court, and representatives of the community who can speak to the effects of sentencing policy at the community level.
- Title XI adds unnecessary barriers to sentencing revisions under the Incarceration Reduction Amendment Act. The IRAA’s process for reviewing the sentences of incarcerated individuals convicted for acts committed before age 25 is based on a modern understanding of brain development and decision-making in young people. It was enacted after robust analysis, as well as debate and consideration of amendments. In fact, one of the bill’s proposed changes was considered by the Council when it passed the Second Look Amendment Act at the end of 2020 and was rejected – twice – by the full Council. The Mayor has not shown any evidence-based public safety justification for revising a process that was the subject of Council debate less than three years ago.
Having noted these concerns, we will now turn to a more detailed analysis of the aforementioned portions of the bill.
Pre-Trial Detention
The bill makes major changes to current law regarding detention of minors and detention of adults accused of crimes. These proposed changes for both youth and adults would drive up the jail population and balloon taxpayer spending on incarceration without improving public safety, while also harming children and families.
Youth Pre-Trial Detention
Current law allows for detention of juveniles before factfinding or disposition hearing only: (1) to protect the person or property of others from significant harm, or (2) to secure the child’s presence at the next court hearing. Title II of the bill amends these criteria so that the Court could order a child detained to protect the person or property of the child, in addition to the person or the property of other people. This would allow the Government to argue (and the Court to order) that a child, who is presumed innocent, should be incarcerated pre-trial for their own good – even if they do not pose a danger to others. Title II also expands the range of alleged acts that could trigger a rebuttable presumption in favor of detention. It does this by removing existing exceptions to the list of offenses relevant to the presumption, as well as removing language in current law that appears intended to focus the presumption on alleged offenses involving weapons.
If the Mayor’s goal with respect to young people is to reduce juvenile crime and keep young people safe, targeting more young people for pre-trial detention does not accomplish that goal. Years of research has continually shown that incarcerating young people, including detaining young people pre-trial, increases the likelihood of recidivism. Incarcerating young people is also associated with interruption and/or derailment of education, poor health outcomes, and worsening mental health. Further, across the country, incarceration has put youth at risk of abuse while incarcerated. And incarceration exacerbates pre-existing childhood traumas and impedes the natural maturation process that is associated with young people aging out of the types of behaviors that often lead to criminal behavior. The idea that the best way to address criminal behavior and public safety challenges among young people is to lock them up more often – including, purportedly, for their own protection – flies directly in the face of what we know about the damaging nature of youth incarceration, as well as the science of youth development.
Adult Pre-Trial Detention
Current law identifies a number of alleged acts that trigger a rebuttable presumption in favor of pre-trial detention. Title V of the bill adds to this list of acts that if a person has previously been convicted of a crime of violence, they will fall under the presumption in a subsequent case if the Court finds probable cause to believe another crime of violence was committed.
As is the case with respect to youth detention, there is a mismatch between the goal of improving public safety and making more adults subject to pre-trial detention. Pretrial releases in the District are not driving crime: 92 percent of people released from pretrial are not rearrested and only 1 percent are rearrested for a violent offense while awaiting trial. Beyond the District, data from other jurisdictions suggest that policy changes leading to increases in the rates of defendants released pretrial did not harm public safety, and further, that pre-trial detention can increase rearrest rates. The Administration’s proposals are not a solution to the District’s public safety challenges, are not supported by evidence, and may ultimately be more damaging than helpful.
These Proposals Inappropriately Limit Judicial Discretion
District judges, in both the youth and adult contexts, already have broad discretion under current law to order detention and hold individuals accountable, especially in cases where a firearm is involved. The bill effectively narrows judicial discretion at a stage in proceedings when individuals are presumed, and may be, innocent of a crime. Especially at this stage, judges should be able to carefully consider the totality of the circumstances and balance factors related to public safety against the damaging effects of incarceration.
These proposed changes should not be taken lightly. Presumptive pre-trial release should be the norm and the conditions of pre-trial release should be narrowly tailored. Pre-trial detention is a deprivation of liberty and makes an assumptive determination of guilt, based on previous actions, absent due process. As per the American Bar Association's general guidelines on Pre-Trial release, the law favors pre-trial release and the determination to hold an individual pre-trial should be made by a judge or judicial officer based on a number of conditions carefully considered by the court. The court can, and does, already consider previous convictions as one of the factors in determining pre-trial release. There are fundamental values at stake any time legislation seeks to narrow judicial discretion in this area.
GPS Devices
Two different provisions of the bill touch on the use of data from GPS devices that individuals may be required to wear during their involvement in the criminal justice system.
Title V would allow information from GPS devices to be admissible on the issue of guilt in any judicial proceeding, modifying existing language that limits the purposes for which information in Pre-Trial Services’ files may be used. Meanwhile, Title VI would require supervisory agencies to turn over GPS data to MPD upon request if MPD determines it is necessary for a criminal investigation.
As we have noted previously, the expansion of the use of surveillance technologies to capture individuals’ locations and activities means that the government has ever growing access to information on the day-to-day activities of District residents. Others have highlighted both the extensive nature of the District’s known surveillance resources and troubling gaps in our knowledge of how information is being shared and used. These gaps make it more difficult to put appropriate safeguards in place regarding the use of these technologies and address abuse of them. The Council needs to provide stronger oversight of the use of surveillance technologies, and until it does, it is inappropriate to entertain changes that will allow surveillance data to be used more freely.
Turning to the legislation, there are a number of concerns with its provisions regarding the use of GPS data. Preliminarily, it is important to note a potential legal concern with Title VI. Two supervisory agencies that make use of GPS devices, the Court Services and Offender Supervision Agency (CSOSA) and the Pretrial Services Agency (PSA), are both federal agencies that operate in the District. Forcing federal agencies to participate in the sharing of GPS location and identification data with the local Metropolitan Police Department raises severe preemption concerns. Further, pre-emption concerns aside, it is our understanding that CSOSA and the DC Department of Youth Rehabilitation Services already send the names of people on pretrial release who are on GPS surveillance to MPD, raising questions about the necessity of a more extensive data sharing requirement.
At the individual case level, the language of Title V lowers the bar around admissibility of GPS data in court, which in turn, may increase incentives for the Government to seek to use such technologies in individual cases. Meanwhile, Title VI would give MPD largely unfettered access to GPS data – indeed, the language does not even indicate that the person wearing the GPS device must be the actual target of the criminal investigation for which the data is requested. Taken together, these proposed changes risk adding to the growing trove of information that the government can access about people living and working in the District, all without sufficient consideration of oversight or safeguards.
Collection of DNA
Title X of the bill would require MPD to collect DNA samples from individuals who are “arrested, facing charges, or convicted” of certain sex offenses. Additionally, if an individual is charged with a crime listed in this section, MPD will also take each DNA sample to perform a DNA analysis and include the results in the Combined DNA Index System (CODIS).
Mandatory DNA collection, as proposed in Title X, raises important due process and privacy concerns. As our colleagues at the ACLU of Virginia note:
The privacy issues related to the practice of DNA collection in general cannot be overstated. A person’s DNA inherently contains the most sensitive, personal information about them, including ancestry, complete health information, and predictive data about their predisposition to certain illnesses or behaviors that the individual may not even know about.
Mandatory DNA collection allows the government to indefinitely retain that person’s genetic makeup, even if acquitted, because there is no federal statute requiring the government to discard the full DNA sample. The ability to search for partial matches also implicates the privacy rights of family members whose DNA is a close enough match that of the person flagged in a CODIS DNA search. This expansion exacerbates the violation of individual privacy rights beyond the individual whose DNA is added to the database. As CODIS expands, so does the possibility of false hits, and as genetic researchers discover more ways to use DNA, absent adequate statutory safeguards, the potential for government misuse increases. Again, quoting our colleagues in Virginia: “the practice of government DNA collection, storage, and analysis raises clear and obvious privacy and due process concerns that only become exacerbated as the government broadens the net it casts to gather samples.”
We urge the Committee to strike this title entirely. If it is not willing to do this, then it should add a requirement that all samples, profiles, and other data from arrestee DNA be automatically expunged upon the dropping of charges, acquittal, or other non-conviction outcome in the case. This essential safeguard would help protect arrestee DNA collection.
Sentencing Enhancements
Perhaps the most prominent element of this legislation is its assortment of sentencing-related provisions.
Title III would create mandatory minimum sentences for certain crimes related to firearms. Mandatory minimums effectively remove consideration of the unique circumstances of the crime or the defendant, leading to sentences that are out of proportion relative to the conduct they are attempting to punish. They also lead to the abuse of prosecutorial discretion, as prosecutors can use the threat of charging and prosecuting offenses with long minimum sentences to coerce defendants into relinquishing their constitutional rights and punish defendants when they exercise those rights. When the Council unanimously passed revisions to the District’s Criminal Code last year, the legislation was deliberately written to reduce the presence of mandatory minimum sentences, which, in the words of a prior iteration of this Committee, “are scattered haphazardly throughout the code.“ Adding more mandatory minimums to a criminal code that already has an illogical assortment of them is a step backward.
Meanwhile, Title IV creates or expands sentencing enhancements to apply to: certain crimes against vulnerable adults, a wider range of for-hire vehicle operators, a wider range of Metro employees, all Metro passengers either riding Metro vehicles or waiting at a marked Metro boarding location, and people at locations administered by the Department of Parks and Recreation. Extensive research, including a massive 2014 report by the National Academies of Science, has found that long sentences (which implicate sentencing enhancements) are both ineffective at protecting public safety and proven to harm children, families and communities – particular Black and Latino communities that suffer much high rates of arrest and incarceration. Further, if there is one thing that the District should understand based on its own criminal justice policy history, it is that piecemeal criminal offense expansions and sentencing enhancements exacerbate some of the worst aspects of our criminal justice system. As the Judiciary Committee itself noted while re-writing the District’s criminal code last Council period, our current criminal statutes (which were generated through precisely this type of piecemeal lawmaking) can lead to inconsistent and disproportionate sentences, all while making our criminal statutes harder to navigate for professionals and harder to understand for District residents. Legislating based on the political pressures of the moment while failing to account for long-term trends and broader public safety needs is, over both the short and long term, a poor approach to achieving public safety.
It is truly disappointing that, instead of taking a thoughtful approach to examining whether our existing criminal statutory regime truly works to protect public safety, the Bowser Administration has chosen to layer on top of it yet another collection of punishment-oriented provisions. The Committee should reject this as more of the same approach that got us here in the first place.
Conclusion
The ACLU of DC thanks the Committee for the opportunity to testify today. We once again urge the Committee not to move forward with this legislation, as it is not the approach to protecting public safety that District residents need or deserve. We are happy to work with the Committee on a comprehensive, proactive approach to public safety that respects and values the rights of DC residents.