Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
DC Council Committee on Judiciary and Public Safety
Performance Oversight Roundtable on the Deputy Mayor for Public Safety and Justice and
Office of Neighborhood Safety and Engagement


Thursday, February 22, 2018
by
Nassim Moshiree, Policy Director

Good morning, Councilmember Allen and members of the Committee. My name is Nassim Moshiree and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 20,000 members in the District.

The ACLU is committed to working to reverse the tide of over-incarceration, safeguard fundamental liberties, eliminate racial disparities, and advocate for sensible, evidence-based reforms to policing and criminal justice policies.

My testimony today will focus on 1) improving transparency of agency operations as they relate to implementation of the Neighborhood Engagement Achieves Results (NEAR) Act, and 2) helping DC regain control over its justice system by supporting the creation and funding of a D.C. Board of Parole.

NEAR Act Implementation Concerns

The ACLU-DC continues to support the NEAR Act as the best framework to address crime in the District. The Office of the Deputy Mayor for Public Safety has asserted that all the NEAR Act’s 20 different provisions have either been or are in the process of being implemented, which is very promising to hear. However, we have the following questions and concerns about two specific provisions of the NEAR Act to which we hope the Deputy Mayor, in his role providing guidance and oversight over the designated agencies, can respond:

“Stop and Frisk” Data Collection

Since October of 2016, the Metropolitan Police Department (MPD) has had funding to implement the “stop and frisk” data collection requirement under the NEAR Act, Title 2G.1 Since then, the Council, community stakeholders, and the ACLU-DC have all pressed in vain for information regarding the status of this data collection, which we find critical to understanding how our law enforcement officers interact with DC residents and to creating the accountability necessary to build trust between the community and MPD.

Until the Safer Stronger DC Office recently released its update on the status of the NEAR Act2 there was no indication from either the Deputy Mayor’s office or MPD that this data collection had in fact begun. It is still uncertain to what extent this legal requirement is being met a year and a half later because the only information provided to the public and the Council is that “implementation has begun but will require alternative ways to analyze data.”3

On Tuesday, February 20th, MPD released pre-Near Act “stop and frisk” data spanning from 2010-2016 on its website and we are pleased to see the Administration take this step in the direction of transparency.4 However, we want to be clear that this data is unrelated to what is required under the NEAR Act. It is from before the Act was passed, let alone implemented, and is missing critical data points like duration of the stop, specific violation that led to the stop, whether and for what reason a search occurred, the result of that search, whether it was consensual, whether a warning, order, or citation was issued, and whether and for what charge an arrest was made.

Under the NEAR Act, MPD officers are required by law to collect this information, as well as the race, gender, and age of the person stopped, for each and every stop and each and every frisk. We do plan to raise some of these concerns at the MPD oversight hearing next week, but for now, we would ask that the Deputy Mayor share his knowledge of what exactly has been implemented pursuant to the NEAR Act as opposed to data collected prior to the passage of the law, what protocols or general orders have been issued to ensure proper and consistent data collection, and what specific challenges remain in terms of both collection and analysis of the data.  In his oversight role over MPD, we hope that the Deputy Mayor would have detailed knowledge about this priority. If MPD has not begun collecting the data that is specifically required by the NEAR Act, then we feel this is an unreasonable delay.

Office of Neighborhood Safety and Engagement

We were very pleased to learn that the Office of Neighborhood Safety and Engagement (ONSE) opened in fall of 2017, and we have high hopes for Director Del McFadden in leading this office to fulfill its mission as envisioned by the Council when it passed the NEAR Act.

We also understand that this office is new and that it plans to launch its programs in spring of this year. However, we would like to hear more details about how ONSE plans to achieve its core mission of identifying those at greatest risk of committing or being victims of violent crime for participation in a stipend-based intervention program that includes robust trauma-informed counseling, life-planning, and mentoring –what it is calling its “Pathways Program.” 5

Some of our concerns arise from the lack of transparency and communication with non-governmental stakeholders around the physical launch of this office in October, the hiring process for its staff, and the recruitment process and criteria for identifying participants in its first “Pathways” cohort. Our hope is that moving forward, the ONSE will be allowed the flexibility and resources it needs to fulfill its critical role, and that it will work closely, not just with government agencies, but with community-based programs to identify participants, coordinate services, and measure successes.

In its FY18 budget, the DC Council approved $750,000 in grants to be issued by ONSE to community organizations that would help further its mission. Our understanding is that this money has yet to be granted,6 and we hope that all established grants include clear criteria that are publicized to maximize reach to qualified applicants.

Restoring Local Control Over Parole

And finally, the ACLU-DC strongly supports any efforts to restore a local D.C. Parole Board as an important step toward regaining control over our criminal justice system and moving away from a tough-on-crime approach to one focused on rehabilitation and community supports for justice-involved DC residents.

A federal agency, the U.S. Parole Commission (USPC) currently sets the conditions of parole and supervised release for D.C. Code offenders returning to the community from incarceration, makes all decisions about revoking parole and terminating supervision, and decides when offenders sentenced under the indeterminate (pre-August 2000) sentencing scheme should be released from incarceration.7

The USPC has no accountability to the District, its decisions are largely unreviewable, and it makes decisions affecting thousands of DC residents. In fact, District cases make up the vast majority (82%) of the USPC’s caseload.8 Almost 20% of the those currently incarcerated at the DC Jail are there for parole violations as decided by the USPC, which has a reputation for revoking parole for “technical violations” that can send and individual back to prison, not for violating the law, but for breaking a rule of their parole, leaving DC residents in the Bureau of Prisons for far longer than originally intended at sentencing by DC judges.

This has not always been the case. Prior to Revitalization Act of 1998 which took away District control, DC had its own parole board as established under D.C. Code 24-201(a), and it can again. USPC’s authorization sunsets on November 1, 2018, but without swift action from the DC government, Congress is likely to reauthorize the Revitalization Act without change. Taking back control over this important function will require collaboration and coordination between the Council, the Mayor and its agencies, and will involve negotiations with Congress to amend the Revitalization Act and bring back this important function for those convicted under the DC criminal code.9 Most importantly, it will require that all involved make this a priority because of the time-sensitive nature of the November 1st deadline. We hope that Deputy Mayor Donahue and other officials in the Administration will work together with the DC Council to bring back this function, and we look forward to working with all invested stakeholders in forging the best path forward to making this a reality.

Thank you.

1. The Council budgeted 150K to fund MPD data collection on “use of force” and “stop and frisk.” The “Stop and Frisk” data collection requires officers to collect, among other things, information on the race, gender, and date of birth of each person stopped, as well as whether and for what reason each stop results in a search and/or arrest

2. Response to pre-hearing performance oversight questions, Attachment #10 and https://saferstronger.dc.gov/page/near-act-safer-stronger-dc

3. Id.

4. https://mpdc.dc.gov/node/1310236

5. "Pathways Program” is the name given by ONSE to its violence prevention program that is designed to meet NEAR Act requirements. See ONSE Responses to pre-hearing oversight questions, pg. 9

6. See ONSE responses to pre-hearing oversight questions, pg. 19

7. The U.S. Parole Commission has jurisdiction over individuals sentenced for DC Code offenses that occurred prior to August 5, 2000, and over all individuals convicted of DC Code offenses after August 5, 2000 who are placed on supervised release after a period of incarceration. District cases for violation of DC code offenses currently amount to 82% of the US Parole Commission’s work. See US DOJ FY2018 Performance Budget Congressional Submission, U.S. Parole Commission, available at https://www.justice.gov/file/968681/download

8. Id.

9. Also noteworthy is that the USPC has requested a budget of 13.2 million for 2018, so funding a local board would be at a modest investment in the District’s budget and would likely lead to significant social and justice-system cost-savings. See US DOJ FY2018 Performance Budget Congressional Submission, US Parole Commission, available at https://www.justice.gov/file/968681/download