Across the country, most criminal prosecutions take place in state and local courts, not federal courts. That’s because most cases are prosecuted by state and local authorities. By contrast, because D.C. felonies are prosecuted not by the D.C. Attorney General but not the U.S. Attorney’s Office (“USAO”), it is the federal government that decides which court to use, local or federal. Most prosecutions here are usually brought in D.C. Superior Court under D.C. law. But recently, the federal government has been changing that—shifting gun-possession cases into federal court and charging D.C. criminal defendants under harsher federal laws that were enacted by Congress (in which D.C. resident have no voting representative) and which are out of step with the decisions of the people of the District to pursue a criminal-justice reform agenda through their elected representatives on the D.C. Council.
By imposing harsher penalties, the new USAO policy will exacerbate the already high incarceration rate of D.C. residents, and particularly its black and brown residents. And research and data suggest that the new policy is unlikely to be effective in reducing crime in the District.
In this case, a criminal defendant on a gun possession charge in federal court has challenged the USAO’s policy of shifting prosecutions to federal court, on the grounds that it violates the D.C. Home Rule Act passed by Congress, that it was adopted in violation of the Administrative Procedure Act, and that it was implemented in retaliation for criminal defendants’ exercise of their rights under D.C. law in D.C. courts. In April 2020, the ACLU of D.C. filed an amicus brief in support of the challenge to alert the court to the deleterious consequences of the USAO policy on D.C. criminal justice policy and on D.C. residents of color. The D.C. Attorney General has likewise filed a brief supporting the challenge.
In May 2022, the court denied the motion to dismiss.