Mayor Muriel E. Bowser’s proposed fiscal 2024 budget includes plans for federal payments by Congress to support specific D.C. government agencies and programs, including the Court of Appeals, Superior Court and various court-related operations. This arrangement is not a matter of D.C. government choice.
All of which might make for an interesting discussion about the city’s self-rule powers were it not for the current standoff between House Speaker Kevin McCarthy (R-Calif.) and President Biden (D) over the nation’s debt ceiling. As part of that fight, Republicans have offered up a slash-and-burn budget containing provisions that could damage D.C. public safety. Thus, the issues are center stage.
Which creates an opportunity: Why not convert the current, U.S.-tax-dollar-draining D.C. criminal justice system into one that is locally financed and fully accountable to District residents?
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At present, Congress and the president control — and pay for — much of the city’s criminal justice system. The District, for instance, cannot prosecute adult violators of D.C.-enacted criminal laws. That responsibility rests with the U.S. attorney general and federal prosecutors assigned to the Office of the U.S. Attorney for the District. What’s more, D.C. judges are appointed by the president and confirmed by the Senate.
D.C.-convicted felons, again courtesy of the National Capital Revitalization Act, are dispatched to Federal Bureau of Prisons facilities across the country.
As a result, conditions could hardly be worse. Trial schedules are disrupted, and justice is being obstructed, because 11 D.C. court seats are unfilled. Nearly 70 percent of those arrested by D.C. police aren’t prosecuted by a U.S. attorney’s office also tasked with chasing and landing federal offenders. Not to speak of D.C. inmates being incarcerated in the far reaches of the country, and the secondhand treatment that they receive.
“People are sent hundreds of miles away and disconnected from everything they need to reintegrate successfully once their sentence is complete,” Council member Charles Allen (D-Ward 6) said in recent congressional testimony. “And when they do come home, D.C. isn’t notified, and they’re most often placed under federal supervision unaccountable to us locally.”
And U.S. taxpayers are picking up the tab for this bumbling arrangement. To make matters worse, House Oversight Committee Republicans propose cuts to Bowser’s federal budget proposals, taking aim at the courts. They even want to cut funds for emergency security and planning that allow D.C. police to work on events involving the federal presence (think: the Jan. 6 insurrection).
It need not go on this way. Congress has the capacity, and good fiscal justification, to refashion the current criminal justice system into one that is effective, efficient, fair and accountable to D.C.
For starters, Congress can transfer full financial responsibility for the D.C. court system — including the Court of Appeals, Superior Court, Judicial Nomination Commission, Commission on Disabilities and Tenure, Criminal Justice Coordinating Council and Public Defender Services — to the District.
Under this arrangement, all institutions would continue normal operations; the only exception being that the nomination commission would select three applicants for each vacancy and submit those names to the mayor (not the president) who would then nominate a candidate subject to D.C. Council (not U.S. Senate) confirmation. The upshot? A victory for U.S. taxpayers and win for local judicial autonomy.
For further U.S. taxpayer relief, Congress should transfer local prosecution from the U.S. attorney to the D.C. attorney general. That would entail shifting responsibilities within the U.S. Attorney’s Superior Court Division, which prosecutes most local crimes, to D.C.’s top prosecutor, who is also responsible for promoting public safety and vindicating the rights of victims fairly and impartially in accordance with the criminal laws of the District.
The federal Office of Management and Budget, Justice Department and the D.C. Chief Financial Officer should quantify the costs of all this. The outcome, however, would be to enable D.C. to prosecute violations of its own criminal law.
The third step is steeper, and more costly, but it’s one that must be taken. The problem of residents hundreds of miles away in federal confinement under questionable conditions must be solved. Those inmates are ours; they should not be on the federal dime, but here, under D.C. supervision. Plans are underway to construct and open a new D.C. corrections facility to house 1,000 inmates. At the end of fiscal 2019, 4,049 District residents (3,927 men and 122 women) were incarcerated in 120 federal prisons and halfway houses across 35 states. A larger facility might be needed to accommodate all those who belong here. If the city lacks space, federal land could be donated — there is plenty in the District.
But Congress shouldn’t stop there.
The Home Rule Act forbids D.C. from taxing nonresident income — a revenue source for several cities and states across the country. If D.C. taxed the income of those who earn money in the city but don’t live here, it could bring in an additional $2 billion in income taxes, the D.C. Fiscal Policy Institute estimated in 2009.
This Congress should not let that stand. Repeal of that restriction will ease the burdens D.C. residents bear for the federal presence. A nonresident tax can help supplant the city’s draw on the U.S. Treasury.
Thus, another win-win for D.C. and U.S. taxpayers — and a counter to the mean-spirited House Republican assault on a duly-elected government that has done Congress no wrong.