X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The U.S. Attorney’s Office is not used to hearing “no” from local officials. During the past two years, U.S. Attorney Wilma Lewis became accustomed to getting what she wanted from the Washington, D.C., Council and D.C. Mayor Anthony Williams — whether it was tougher penalties for drug offenders or longer sentences for murderers. But that sort of sway over local criminal justice policy is no longer assured. A change in the leadership of a key D.C. committee and a new criminal justice adviser to the mayor have dulled the federal prosecutor’s role and empowered the criminal defense bar and other organizations that have been forced to take a back seat in criminal justice reform. In January, D.C. Council member Kathy Patterson became the first nonlawyer to chair the Judiciary Committee, a position that allows her to decide which local crime legislation moves forward. Patterson says she will turn to D.C. bar groups and other local interests before adopting proposals pushed by the U.S. Attorney — an approach that contrasts sharply with that of her predecessor, Harold Brazil. “I’m elected to reflect the views of D.C., and I know who I work for,” Patterson says. “Who I work for is different than who the U.S. Attorney works for. The U.S. Attorney works for the White House, the executive branch of the federal government.” And last fall, Williams hired Margret Nedelkoff Kellems as deputy mayor for public safety, a position she has used to blunt the U.S. Attorney Office’s influence when its interests did not mesh with the city’s. “The U.S. Attorney’s Office is an important voice in policy making, but it’s only one voice,” Kellems says, “and there are many others that need to be heard by the mayor and the city council.” Defense lawyers and criminal justice insiders laud the changes — particularly Patterson’s outreach — saying they will lead to more balanced reforms. “We appreciate the openness to other groups’ concerns displayed by Ms. Patterson so far and her willingness to announce public meetings in order to hear from all sides,” says Laura Hankins, chief legislative counsel for the D.C. Public Defender Service. Brazil, however, is unapologetic about embracing policy proposals advanced by the prosecutor’s office — proposals that he says put the safety of D.C. residents above all else. “I’m pro-law enforcement, and that puts me on the side of the police and the U.S. Attorney quite often,” says Brazil, who chaired the committee for two years. “I think I’ve done a pretty good job on the legislative side in fighting crime.” U.S. Attorney Lewis agrees that all sides should be heard, but says Patterson should be careful not to distance herself too much from prosecutors. “If somehow Ms. Patterson represents a change — meaning not an open forum for the voice of the U.S. Attorney — I think it would be to the detriment of the city,” Lewis says. Because the city has limited prosecutorial authority — the Office of Corporation Counsel prosecutes primarily misdemeanors and juvenile matters — the U.S. Attorney acts as the District’s chief prosecutorial officer. But the U.S. Attorney is also part of the Justice Department and is appointed by the president, meaning the D.C. government has no control over which cases it chooses to prosecute. “Given our mission here, not only as federal prosecutors but local D.A. as well, it’s very clear to me that we should have an important role in these kinds of matters,” says Lewis. That role was strengthened when Brazil took over the Judiciary Committee in 1999. At about the same time, Lewis created a legislative position to lobby local lawmakers and appointed Patricia Riley, former chief of the Sex Offense Section, to the post. TAKING CUES FROM THE PROSECUTION Brazil, a former assistant U.S. Attorney in the District, headed the committee at a time when the city was facing monumental changes to its criminal justice system. For one, the District needed to come up with a new sentencing scheme by August 2000 to comply with the 1997 D.C. Revitalization Act. In addition, it had to implement a sex offender registration program or lose federal grant money. There was also a serious problem with pretrial defendants absconding from halfway houses. The short time frame for these legislative packages meant that decisions had to be made quickly. Given the complexity of the issues, Brazil needed to rely on the expertise of those most involved. Some of the lawyers and policy watchers who worked on the reforms say that Brazil sided with the U.S. Attorney at every turn. “There’s been little doubt that if the U.S. Attorney wanted it, it was going to happen,” says Samuel Harahan, executive director of the Council for Court Excellence, a watchdog group. The most glaring example took place last year when the council debated sentencing reform. For nearly two years, an advisory sentencing panel — made up of D.C. judges, prosecutors, defense lawyers, and other criminal justice officials, as well as Brazil — studied the series of reforms that the city had to implement under the 1997 law. The panel’s recommendations were submitted to the council in a lengthy report. Once the report was in the hands of the council, Brazil moved for a series of amendments to the sentencing bill — changes proposed by the U.S. Attorney calling for more offenses to carry a penalty of life without parole and abolishment of the Youth Act, among others. According to panel members and other criminal justice officials, some of those amendments had already been debated and rejected by the sentencing panel while others were never discussed. “Judges and people on the [sentencing] commission were outraged,” says one criminal defense lawyer who asked not to be named. “Many of the amendments were dropped or weakened, but we ended up with a bill that is harsher than the sentencing commission’s.” Brazil also frustrated the defense bar and other organizations by holding a roundtable — with only a one-week notification requirement rather than the standard three-week notice for a full public hearing — for certain pieces of legislation. The American Civil Liberties Union wrote the council several times to complain that a roundtable was not the proper forum for legislation. Ultimately, the defense bar and groups like the ACLU realized the only way for them to influence policy was to go directly to Riley or members of the council. With regard to the sex offender registration legislation, Stephen Block of the ACLU says, “There were substantial negotiations between myself, PDS, and the U.S. Attorney’s Office.” Brazil says that he, like Lewis, sees the U.S. Attorney’s Office as just another law enforcement agency. “The federal prosecutors are assigned to prosecute local crimes,” he says. “Logically, they would help in the development of local criminal justice policy.” And Lewis, who has announced she will leave the office at the end of next month, points out that it is the decision of the 13 D.C. Council members and the mayor — not her — to pass legislation. “The reality is that these pieces of legislation ended up being passed unanimously or in some cases with 12 votes,” Lewis says. “So some people other than Brazil felt that this legislation was important to the community.” SEASON OF CHANGE Patterson’s ascension to head the Judiciary Committee and Kellems’ arrival in the mayor’s office changed the dynamics. In December, a federal law that mandated the collection of DNA samples from federal prisoners for the FBI’s DNA database was passed. The law required the D.C. Council to decide which convicts should have blood samples drawn. The U.S. Attorney’s Office, which had been aware of the federal legislation for several months, had a plan. Though the Justice Department had pushed federal lawmakers to require all federal prisoners convicted of felonies to submit blood samples, that request was ultimately rejected in favor of including just those convicted of the most serious felonies and sex crimes. Nonetheless, the U.S. Attorney’s Office subsequently pushed for the more sweeping version in the District. Riley drafted legislation calling for anyone convicted of a felony or sex crime to be required to turn over blood samples. When she approached Kellems last month for support, the mayor’s adviser told Riley that Williams would not support such a broad initiative. Patterson, meanwhile, had drafted her own legislation without Riley’s input. Patterson’s bill simply mirrored the federal standards. And she already had Brazil on board as a co-sponsor. The mayor signaled his support for Patterson’s bill, with a few relatively minor changes. The bill is scheduled to be marked up on March 27. At a March 8 hearing, Lewis made her frustrations known. Patterson’s bill “appears to proceed on the mistaken assumption that only those people who have previously been convicted of certain serious violent crimes will commit serious violent crimes in the future,” Lewis said. By that point, realizing that Patterson wouldn’t budge, the U.S. Attorney’s Office turned to the one council member who would push their proposal. Shortly after the hearing, Brazil introduced the prosecutor’s bill. Patterson’s stand against the U.S. Attorney surprised many in the criminal justice community. For her part, Patterson says she simply disagreed with what the U.S. Attorney was proposing. “I tried to balance law enforcement needs with privacy interests,” Patterson says, noting that the blood samples are to be turned over to the federal government, not the District. Patterson also points out that the council can revisit the issue in the future if necessary. Patterson says she recognizes the importance of the U.S. Attorney Office’s place in the District, but tries not to blindly accept its proposals. “The U.S. Attorney prosecutes the law,” Patterson says. “Does that mean we should solicit the views of someone with that expertise? Absolutely. “Is the U.S. Attorney a policy-maker?” Patterson adds. “I would suggest not.” In the coming months, Patterson will hold hearings on several pieces of legislation that could dramatically reshape the city’s criminal justice system. One bill would create a local attorney general and would transfer a large part of the U.S. Attorney’s prosecutorial power to that office. Another would bring the D.C. court system under local control. Both bills require congressional approval. Defense lawyers are touting Patterson’s interest in looking at proposals that would require police to videotape all interrogations and allow jury trials for misdemeanor defendants who face more than 180 days behind bars or a fine in excess of $1,000. The two measures, first introduced by Council member Phil Mendelson last year, were never granted a hearing by Brazil. “I don’t have the sense that she’ll do everything the defense bar wants,” says Richard Gilbert, president of the D.C. Association of Criminal Defense Lawyers. “But she seems willing to reach out to us.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.