D.C. has an opportunity to build on this measured but necessary approach. One way to do that is to make permanent an emergency law passed by the council in July, which created a presumption that adults accused of violent crimes should be detained until trial. Previously, the presumption was that a person charged with a violent crime would be released unless they were armed, out awaiting trial in another case, or there was “clear and convincing evidence” that keeping them locked up was the only way to keep the community safe. The emergency measure also created a presumption that juveniles will be detained before trial if a judge finds “a substantial probability” that they committed a violent crime, such as carjacking, or a dangerous crime, whether or not it was committed while armed.
Set to expire on Oct. 18, the emergency law also could use enhancement, as Council member Brooke Pinto (D-Ward 2), the chair of the public safety committee, is proposing. On Monday, she unveiled a comprehensive package of crime-fighting legislation for the council to consider, drafted with input from police and prosecutors. “We must address the gaps in our legal system,” said Ms. Pinto.
Ms. Pinto’s bill would close loopholes that have hindered prosecutors in recent years. For example, it would broaden the definition of carjacking to include such acts as demanding a motorist’s keys, even if they’re not inside their car. She calls for expanding the penal code’s definition of “significant bodily injury” from one that requires hospitalization or “immediate medical attention” to something that necessitates “medical treatment beyond what a layperson can personally administer.” The legislation would make it a crime to recklessly shoot a gun in a public space, with stiffer penalties for firing more than five rounds and legal protections for self-defense.
The most controversial plank of Ms. Pinto’s plan would provide that police do not have to get a warrant to search people who have been released to await trial for violent offenses. Under the proposal, consenting to such searches could be required as a condition for pretrial release. She would also permit searches to be conducted on others under court supervision, including probation or parole.
This idea quickly drew pushback from the chief judges on the D.C. Superior Court and the Court of Appeals, who warn that it “appears to violate the Fourth Amendment’s prohibition on warrantless searches of individuals without probable case.” But society frequently imposes more onerous conditions for releasing defendants than this, such as wearing an ankle bracelet for GPS monitoring. Ms. Pinto modeled the proposal, with help from the U.S. attorney’s office, on a California statute that requires prisoners eligible for release on parole to agree in writing to be subject to search without a warrant and without cause. The law’s constitutionality was upheld in a 6-3 decision by the U.S. Supreme Court in 2006 after an officer searched a parolee and found methamphetamine.
Critics say this would unjustly take away rights from defendants who should be presumed innocent until proven guilty. They warn that police cannot possibly know who is out of jail pending trial and that this will result in harassment, profiling and a new era of stop-and-frisk tactics. While the legislative text says searches should not be conducted for the sole purpose of harassment, it might be worth adding additional safeguards to prevent this expanded power from being used to justify jump-out searches. The draft language already prohibits warrantless searches of someone’s home or workplace.
The chief judges also objected to a part of Ms. Pinto’s plan that could require courts to issue written explanations when they order pretrial release for defendants charged with violent offenses. They wrote that this “would significantly increase the workload” on already short-staffed judges and clerks. This seems a weak counterargument given Ms. Pinto’s goal of getting the most violent alleged offenders off the streets.
That should be everyone’s goal. Last year, the U.S. attorney’s office in D.C. chose not to prosecute 67 percent of those arrested by police officers in cases that would have been tried in D.C. Superior Court. Mr. Graves says that figure has fallen significantly this year, and Ms. Pinto’s legislation — if passed — would help it fall further.
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