US Prosecutors in DC Put Racial Politics Above Safety of Black Residents

Cully Stimson / September 11, 2020

D.C. Mayor Muriel Bowser last week unsuccessfully tried to shift the political blame to the U.S. Attorney’s Office in the District of Columbia for the violence that she drew to the city in June by ordering the words “Black Lives Matter” painted on a city street. Her stunt failed when the U.S. attorney rebutted her claims with facts, as we pointed out here.

Now, 32 black assistant U.S. attorneys in the District’s U.S. Attorney’s Office have banded together to write a strange, 10-page policy memo to their boss—who happens to be white and a Trump appointee—that they say is meant to address “internal and external racial disparities” of the office and to “repair the relationship between the [office] and the community.”

>>> Read the full 10-page memo here.

Their memo was inspired, they say, by the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery. The signatories assert that “it is neither a prudent nor a viable option to sit on the fence or waiver on where we stand when it comes to the slaying of unarmed civilians by law enforcement officers.”

They note that half of the residents of the District of Columbia are black, as are the defendants they prosecute and the associated victims and witnesses. They hint that the federal prosecutor’s office has a culture of racial inequality, and a “heartbreaking disregard for Black lives” among prosecutors.

As people of color, these 32 assistant U.S. attorneys no doubt have had a very different American experience than white Americans, including white prosecutors in their office.

My black friends have reminded me that their experience is quite different than mine, and they fear that their law-abiding sons will be stopped for no reason whatsoever by the police and subsequently mistreated or worse. Their sincerity is palpable, and I have no doubt that their fears are justified.

But this memo—leaked, of course, to The Washington Post—is odd coming from any group of prosecutors, much less black prosecutors.

Rather than focusing on suggestions for making the streets safer for the black residents of the District of Columbia—the main victims of crime there—they suggest that everyone (except them) is racist for prosecuting violent criminals or revoking probation for serial offenders who happen to be black.

Only by confronting the obvious—that everyone in the office is inherently biased against black defendants—can the office redeem itself to the betterment of “Black Lives,” which, when read in the context of the memo, means black defendants.

The memo, sadly, is a missed opportunity. The experience of a black prosecutor is obviously different from that of a prosecutor of a different race. The memo’s signatories could have chosen to address issues that would make the city safer, but instead they chose to make suggestions that, when read in context, sound more like a college paper on critical race theory.

They make five proposals and recommendations:

1. Hire a diversity and inclusion officer.
2. Improve and expand implicit bias training.
3. Bridge the gap between the office and the community.
4. End or amend the felon-in-possession initiative to avoid disparate impact on communities of color.
5. Hire a restorative justice and diversion coordinator.

There is nothing wrong with line prosecutors making suggestions to their bosses; it happens all the time in district attorney’s offices around the country. Sadly, though, this memo is emblematic of the trend these days to shift the blame from actual criminals who need to be held to account to the police officers and prosecutors (except them) who, to their minds, are inherently racist and thus biased.

Their first demand is odd, especially coming from an office that has had, just in recent years, six distinguished African Americans serve as U.S. attorney, including Wilma Lewis, Eric Holder, Vince Cohen, Roscoe Howard, Ron Machen, and Channing Phillips.

These top prosecutors hired tons of qualified minority applicants, many of whom remain in the office, including in supervisory positions. The office actively recruits minorities, and it has one of the most diverse staffs in the country.

The second demand, to expand and increase “implicit bias training,” is grounded on the presumption that everyone in the office (except them), including the 350 highly educated, hand-selected attorneys, is so racially biased that they can’t do their job in a fair manner.

The claim is insulting to everyone in the office, which is comprised of individuals who, for the most part, focus on the crime, not the race of the criminal. Plus, the office already includes bias training during indoctrination.

Such “implicit bias training” most likely is banned because of an executive order recently issued by the White House.

As to the prosecutors’ third demand—bridge the gap between the office and the community—it’s an odd claim indeed, because there is no such gap.

The U.S. Attorney’s Office in the District has three full-time “community prosecutors.” For those who want to focus solely on identity politics—like the memo’s signatories—one of those “community prosecutors” is a white male and the other two are women.

The office also has seven full-time (mostly minority) community outreach specialists. They routinely attend meetings of advisory neighborhood councils, citizen advisory councils, and police service areas, as well as community festivals, health fairs, job fairs, public safety workshops, and numerous other events. 

Last year alone, according to the office’s website, these outreach specialists attended over 900 events. That’s almost three events a day.

Each month, every assistant U.S. attorney in the office receives a list of events for that month, and everyone is invited. This month alone, over 50 public events are listed.

Nothing has kept these prosecutors, or any assistant U.S. attorney, from going to any of these 900 annual meetings. Their office has the nation’s strongest, most robust such community outreach program.

But when you read the memo closely, you realize that the signatories aren’t really voicing the concerns of the community: They are espousing their policy preferences.

They demand that assistant U.S. attorneys “require more education and greater understanding” of the consequences for a criminal defendant who is released back into the community—a privilege, not a right—with release conditions.

This training is necessary, they claim, because prosecutors don’t understand the financial burden imposed by conditions of supervision, the consequences of violations of those conditions, and how they “pile on” those conditions to set up a defendant for failure.

That’s just pure hogwash.

Notice how the memo is designed to benefit the criminal—not law-abiding city residents—who is somehow being discriminated against by the supposed racist prosecutor. In fact, it is the criminal who takes advantage of release conditions, violates them, and suffers the consequence—regardless of his race.

The assistant U.S. attorneys’ fourth demand—to end (or amend) the felon-in-possession initiative—is also strange because it contradicts federal law of over 80 years.

In 1938, Congress passed the Federal Firearms Act, which made it a federal crime for anyone who committed a crime of violence to be in possession of a firearm.

In 1968, Congress passed the Gun Control Act, which redefined the class of individuals disqualified from possessing firearms. The act, as amended and codified in part at 18 U.S.C. § 922(g)(1), prohibits any individual who has been convicted of “a crime punishable by imprisonment for a term exceeding one year” from transporting or receiving “any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

So when D.C. police arrest a felon who happens to be in possession of a firearm, that person may be charged in D.C. Superior Court or in federal District Court in Washington, D.C.

The safety issue is this: D.C. Superior Court judges tend to give lenient sentences to those felons; federal District Court judges hold the felons accountable and usually, because of federal sentencing guidelines, sentence them to prison. So if you want to keep the community safer, you prosecute felon-in-possession cases in federal court, and keep violent criminals in jail longer.

Everyone who practices criminal law in the District of Columbia knows this. But this is what the 32 black prosecutors actually are complaining about—more time in jail for violent, armed felons, who happen to be black.

There are seven districts in total and 57 public service areas in the District of Columbia, as seen in this map. The majority of violent crimes takes place in districts 5, 6, and 7, whose inhabitants are mostly black. How does failing to charge felons in possession of a firearm make residents in those communities safer? It doesn’t.

In fact, if the U.S. Attorney’s Office took these prosecutors’ advice and chose not to prosecute those cases at all, or pushed them all to Superior Court, it would harm law-abiding citizens—many, if not most, of whom are black—in the most crime-ridden neighborhoods.

As Berkeley Law School professor Franklin Zimring once wrote, “preventative street policing cannot be made more colorblind than the demographic patterns of violent crime.” 

Noticeably absent from the assistant U.S. attorneys’ memo are the interests of law-abiding African Americans who reside in those parts of the city with the most crime.

As Heritage Foundation scholars Paul Larkin and David Rosenthal wrote in the Georgetown Journal of Law and Public Policy in 2018:

They are the ones who suffer the effects of private violence, who endure the suffocating fear created by a community ruled by outlaws, who need a neighborhood that is a less frightening place, and who will be at greater risk of being stopped. …It is difficult enough for them if the government does not adequately police their community.

The District of Columbia, like many major U.S. cities, has a violent crime problem. For decades, prosecutors across the country have worked hard to make their jurisdictions safer. They have been progressive in their approaches to alternatives to incarceration, such as establishing domestic violence courts, drug courts, veterans’ courts, family justice centers, mental health courts, and the like. The U.S. Attorney’s Office in the District is no exception.

Moreover, this office doesn’t hire racist prosecutors and is one of the most progressive offices in the country, with one of the most diverse staffs around.

Too bad some people, including those who work there and ought to know better, just don’t have enough experience to realize it.