Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the D.C. Council Committee on the Judiciary and Public Safety
Hearing on Bill 25-0345 – “Accountability and Victim Protection Amendment Act of 2023”
by
Melissa Wasser, Policy Counsel
Good afternoon, Chair Pinto and committee members. My name is Melissa Wasser, and I am the Policy Counsel at the American Civil Liberties Union of the District of Columbia (ACLU-D.C.). Today, on behalf of ACLU-D.C. and our over 14,000 members in all 8 wards, I am pleased to submit testimony regarding Bill 25-0345, the Accountability and Victim Protection Amendment Act of 2023.
ACLU-D.C. strongly opposes this legislation and urges the Committee not to move it forward. Every District resident deserves safety and security, and ACLU-D.C. recognizes the need to address crime in the District and the importance of public safety. However, we must not further the self-perpetuating and unjust cycle of over-policing and mass incarceration that has plagued our criminal justice system for far too long. We must have a comprehensive public safety approach that includes preventative, community-based interventions to violence and access to appropriate, non-police responses to people in need of assistance. Above all, any approach to public safety that is true to our values as a District must respect District residents’ civil rights and civil liberties rather than trading them away for a false sense of security. We can increase equality, justice, and public safety without resorting to further criminalization, surveillance, and deprivation of liberty.
This legislation fails on all these metrics and in fact, suffers from many of the same flaws as Bill 25-0291, the Mayor’s Safer Stronger Amendment Act of 2023, which ACLU-D.C. also testified against in June. Just like that legislation, it is a collection of piecemeal measures that relies on increased criminalization, surveillance, and deprivation of liberty, which we know disparately impacts Black and brown District residents. It has been said, “Insanity is doing the same thing over and over expecting different results.” Both the Safer Stronger legislation and this bill recycle a “tough on crime” approach to public safety that, for decades, has destroyed lives and communities, allowed discriminatory use of law enforcement power, and fueled racially disparate mass incarceration. In short, this legislation takes the same approach that has failed to prevent the challenges that we confront today and, as such, the Committee should not move forward with this bill.
I. Piecemeal sentencing changes lead to disjointed criminal statutes that are difficult to navigate.
In June, we highlighted that, if passed, the piecemeal sentencing changes in the Safer Stronger legislation would lead to confusing, disjointed criminal statutes that are difficult to navigate. This legislation suffers from the same flaws.
The bill creates progressive sentencing for misdemeanor sexual abuse and misdemeanor sexual abuse of a child or minor and adds a sentencing enhancement for certain assaults against senior citizens. Because misdemeanor sexual abuse in the D.C. Code criminalizes both sexual acts and sexual contact, the range of conduct and harm within the statute is broad. As the Public Defender Service for the District of Columbia notes in their testimony:
Under this proposal, an individual who has been previously convicted in a non-jury trial of misdemeanor sexual abuse for touching someone’s buttocks will face a three-year maximum penalty while someone with much more serious conduct, such as rape, will face 180 days of incarceration. Further, this sentencing increase – six times the sentence otherwise authorized by the Council – will be imposed on individuals who pleaded guilty or had non-jury trials with no knowledge of the increased penalties at the time of the first case.
If there is one thing that the District should understand based on its own criminal justice policy history, it is that piecemeal criminal offense expansions and sentencing enhancements exacerbate some of the worst aspects of our criminal justice system. As the Judiciary Committee itself noted while re-writing the District’s criminal code last Council period, our current criminal statutes (which were generated through precisely this type of piecemeal lawmaking) can lead to inconsistent and disproportionate sentences, all while making our criminal statutes harder to navigate for professionals and harder to understand for District residents.
And all the while, haphazardly assembled criminal statutes can feed mass incarceration, disrupting families and communities while adding to the instability and trauma that contributes to criminal activity in the first place. As the District’s Sentencing Commission has noted, “statutory enhancements impacted incarceration rates in the District. One in five prison sentences included an enhancement and resulted in longer sentence lengths. Among Black males, younger defendants received enhanced sentences more frequently, which was an effect that did not appear among other groups.” Legislating based on the political pressures of the moment while failing to account for long-term trends and broader public safety needs is, in both the short and long term, a poor approach to achieving public safety.
This bill’s sentencing changes are a continuation of that flawed approach. It is truly disappointing that, instead of taking a thoughtful approach to examining whether our existing criminal statutory regime truly works to protect public safety, the Committee is continuing to take up bills that add additional layers of punishment-oriented provisions on top of an already-flawed scheme of sentencing statutes. The Committee should reject this as more of the same approach that got us here in the first place.
II. Allowing information obtained from a GPS device to be admissible on the issue of guilt is an improper expansion of surveillance technology and lacks appropriate safeguards.
The GPS provisions in this legislation are the same proposals as in the Safer Stronger Amendment Act of 2023. We raised significant concerns with it in June and we raise significant concerns now. Title VI would allow any information from GPS monitoring devices to be admissible on the issue of guilt in judicial proceedings, modifying existing language that limits the purposes for which information in Pre-Trial Services’ files may be used.
As we have noted previously, the expansion of the use of surveillance technologies to capture individuals’ locations and activities means that the government has ever growing access to information on the day-to-day activities of District residents. Others have highlighted both the extensive nature of the District’s known surveillance resources and troubling gaps in our knowledge of how information is being shared and used. These gaps make it more difficult to put appropriate safeguards in place regarding the use of these technologies and address abuse of them. The Council needs to provide stronger oversight of the use of surveillance technologies, and until it does, it is inappropriate to entertain changes that will allow surveillance data to be used more freely.
At the individual case level, the language of Title VI lowers the bar around admissibility of GPS data in court, which in turn, may increase incentives for the Government to seek to use such technologies in individual cases. These proposed changes risk adding to the growing trove of information that the government can access about people living and working in the District, all without sufficient consideration of oversight or safeguards.
The rules of evidence, or the rules by which a court allows evidence to be admitted in court cases, already make GPS data admissible, when it is relevant and reliable. When GPS data is admitted as evidence, when not relevant to the case, it could prejudice or mislead the jury. For example, if a defendant accused of assault was released pre-trial with an ankle monitor and the location of the assault is not in question, or uncontested, GPS data should not be relevant. If GPS data is introduced as evidence, even though the data produced is uncontested, it may suggest to a jury that the defendant needs monitoring or has already been convicted of another crime. In this way it may unduly prejudice the jury, potentially affect the outcome, and violate due process rights. The language of Title VI would also lower the bar around admissibility of GPS data in court, which in turn may increase incentives for the government to seek to use such technologies in individual cases. Courts should decide, based on the rules of evidence applied to each case, what can and cannot be admissible. As such, the Council should reject this provision.
III. Allowing mandatory testing for HIV status raises significant privacy and due process concerns.
In June, we raised significant objections to language in the Safer Stronger Amendment Act that provided for DNA testing of individuals accused of sex offenses. Title IV of the bill would require individuals charged with or convicted of an offense to be tested for HIV upon request of a victim or a prosecutor. Mandatory testing raises significant privacy concerns and due process concerns, especially considering a lack of oversight regarding retention of records.
In our June testimony, we summarized our concerns about mandatory DNA collection, quoting our colleagues from the ACLU of Virginia:
The privacy issues related to the practice of DNA collection in general cannot be overstated. A person’s DNA contains the most sensitive, personal information about them, including ancestry, complete health information, and predictive data about their predisposition to certain illnesses or behaviors that the individual may not even know about.
This proposal regarding access to HIV information raises similar concerns. It proposes the collection of deeply private health information, and much like Safer Stronger’s DNA proposal, contemplates collecting HIV status information from individuals before they are convicted. We urge the Committee to strike this title entirely. If it is not willing to do this, then it should add a requirement that all samples, profiles, and other data from arrestee DNA or HIV testing be automatically expunged upon the dropping of charges, acquittal, or other non-conviction outcome in the case. This essential safeguard would help protect arrestee DNA and health data.
IV. Statutes of limitations are a cornerstone of our legal system and help ensure that people accused of a crime have a fair opportunity to defend themselves.
This bill removes statutes of limitations for several offenses under D.C. Code § 23–113. As we testified to this committee in 2017, statutes of limitations are a critical component of the American criminal justice system. They serve the vital purpose of “protect[ing] individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far distant past.” They allow both the prosecution and the defense to present a case before the evidence gets stale and they help ensure that individuals accused of a crime have a fair opportunity to defend themselves. As more time lapses between an alleged commission of a crime and the prosecution, it becomes increasingly difficult, if not impossible, for the accused to prepare a meaningful defense and provide exculpatory evidence – memories fail, witnesses die, and records are lost.
The consequences of sex-offense convictions can also be permanently damaging in the way that convictions of other crimes may not be. In addition to being subject to potential incarceration, those convicted of sex offenses face a lifetime on the sex offender registry and are severely limited in their ability to reintegrate into society. Statutes of limitations help protect the rights of the accused from wrongful convictions that would lead to these devastating consequences.
There are significant problems with trying individuals for alleged offenses many years after they allegedly occurred. We oppose this proposal, as we have with similar bills that have come before the D.C. Council in the past, because of the important safeguards that a statute of limitations provides to the accused, particularly those who are innocent of a crime.
V. Conclusion
ACLU-D.C. thanks the Committee for the opportunity to testify today. We once again urge the Committee not to move forward with this legislation, as it is not the approach to protecting public safety that District residents need or deserve. We are happy to serve as a resource throughout this process and look forward to working with the Committee on a comprehensive, proactive approach to public safety that respects and values the rights of D.C. residents.