Thursday, December 17, 2009

Latest Crime Bill - What it Includes...


On Tuesday, Councilmembers Jim Graham (D-Ward 1) and Jack Evans (D-Ward 2) introduced the “Neighborhood and Victims Rights Amendment Act of 2009" [PDF].  The legislation:
  • Provides mandatory minimums for gun crimes by gang members (3 years possession, 10 years use);
  • Expands current law allowing the ability obtain a court order prohibiting public nuisances;
  • Recommends establishment of a "gun court" to quickly address such offenses;
  • Provides for consideration of "community impact statements" during sentencing;
  • Amends a District law that permits MPD to impound vehicles used in prostitution;
  • Provides for criminal background checks of alcoholic beverage license applicants;
  • Includes new penalties for PCP-related offenses and driving under the influence of PCP; and
  • Includes various protections for crime victims and witnesses, such as a right to know the status of the case; information related to any stay-away orders, pleas, releases, probation, or other placement; and protection from adverse employment action when attending court proceedings or meeting with law enforcement.
A more detailed summary follows this post below.

In the District, which has about four times as much violent crime as New York City, it is not uncommon for individuals to be arrested ten, fifteen, even twenty times for serious offenses, such as gun possession, robbery, burglary, car theft, possession of drugs with intent to distribute, and, even murder, and nevertheless remain on the street.

Councilmember Mendelson, who chairs the Council's Committee on Public Safety and Judiciary, believes that the city needs closer study as to the reasons behind this "revolving door."  How much of this situation stems from "no-papering" due to lack of evidence or other factors, plea bargains, court rulings, jury verdicts, or sentencing?  How much accountablility lies with police officers, detectives, prosecutors, and judges?  How much lies with weaknesses in the District's laws?

If the District lacks critical data as to the source of the problem, as Mendelson suggests, then such a study should be included among the bill's provisions so that the city can better target areas of the criminal justice system for future improvement.  It is not a replacement or excuse, however, for delay or inaction in providing the tools included in the legislation to fight the current violence.

Overall, the bill appears to be a positive step forward.  There are some legitimate questions such as how would the court determine a defendant is a "member of a criminal street gang" subject to mandatory minimums for gun offenses, how significant of an expansion of the current nuisance law is the proposal, would the new gun court require additional funding from Congress, don't courts already consider community impact statements, and why hasn't MPD used the prostitution-related impoundment law since it was amended by the Council to address constitutional issues in 2006?

Mendelson should schedule a hearing on the bill in early 2010 and give the Graham/Evans proposal full and fair consideration.

DETAILED SUMMARY

Mandatory Minimums for Gun Crimes
  • Provides a mandatory minimum of 10 years for a gang member who is convicted of using a firearm for murder, assault with intent to kill, robbery, kidnapping, or assault with intent to rob or kidnap.
  • Provides a mandatory minimum of 3 years for a gang member convicted of gun possession.
Public Nuisance Orders
  • A public nuisanceis defined as conduct that threatens the health, safety, quite enjoyment of life or property, or security of any considerable number of reasonable persons in a geographic area, such as public drinking, gambling, littering, public urination or defecation, nudity, public sexual acts, excessive noise, interference with pedestrian or vehicular traffic, violations of criminal law, obstructions of use of property or free passage or use of public space, so as to interfere with the comfortable enjoyment of life and property.
  • When there is a reason to believe a public nuisance exists, the U.S. Attorney, D.C. Attorney General, or any community-based organization may file a lawsuit in court.
  • The court may enter a preliminary injunction to prohibit the conduct at issue without the need to show “irreparable harm” as typically required for such an order. If the court then finds that a public nuisance exists, then it may enter a permanent injunction.
  • Violation of an injunctive order is subject to a fine of not more than $500 or 30 days imprisonment. A person who is subject to an injunction can petition the court to have the order lifted after one year. The identity of minors subject to an order is protected.
  • Also extends current law that allows the U.S. Attorney, D.C. Attorney General, or a community-based organization the ability to seek abatement of a drug or prostitution-related activity (similar to above) to “the presence, use or display of firearms.”
Establishment of Gun Court
  • Provides that it is the “sense of the Council” that the Superior Court of the District of Columbia should establish a “gun court” similar to that used in New York City, Boston, Philadelphia, and Providence, to address gun-related cases quickly and efficiently.
  • “This ensures current offenders are not out on the streets committing additional offenses while awaiting the disposition of their case, and allows for prompt and appropriate punishment if and when the offender is found guilty.”
  • Since the D.C. Superior Court is controlled by the federal government, the D.C. Council can only recommend implementation of such a program.
Impact statements
  • Renames “victim impact statement” to “victim and community impact statement” and explicitly provides that “one or more members of a community adversely affected by the commission of the crime or type of crime committed by the defendant shall have the right to submit, prior to imposition of a sentence, a community impact statement” that provides the court with information on the adverse social, financial, emotional, and physical effects of the crime on a community.
  • The court is to consider such statements in sentencing.
Prostitution – Vehicle Impoundment
  • Amends a District law that authorizes impoundment of any vehicle used in a prostitution offense to finance administration of the law by placing all money from civil penalties, booting, towing, impoundment, and storage fees into a special fund.
  • Minor modifications to notice provisions.
Criminal Background Checks for Alcohol Licenses
  • Permits the Alcoholic Beverage Control Board to obtain and consider the criminal history record of those who apply for a license to sell alcohol when deciding the application.
PCP
  • Includes new prohibitions and penalties for possession of PCP in liquid form or driving after PCP use.
Victim and Witness Protection
  • Right not to testify.  Provides that crime victims and witnesses have a right not to testify on his or her address, telephone numbers, places of employment or other locating information unless the court finds it is relevant to the case or there is a compelling need. 
  • Right to Information. Each eyewitness, victim, or the immediate family members of the eye witness and victim have a right to obtain from the D.C. Attorney General the release status, level of respondent’s placement, stay-away orders imposed, respondent’s participation in diversion or a consent decree, the offenses charged in the petition, the results of the transfer hearing, the terms of any plea agreements, findings or verdicts related to the adjudication of the case, or commitment or probationary status, and rulings to revoke probation and motions pertaining to the seal of juvenile records. 
  • Notification of JV Placement. If a minor committed to the Department of Youth Rehabilitative Services is released into a community placement, notice is to be given to each victim of that minor unless the court finds that such notice will create gave risk of harm to the minor. 
  • Employment Protection. An employer may not fire, threaten, demote, or take adverse action against an employee because he or she meets with law enforcement or a prosecutor, attends court, as a result of a crime. Provides that the employee may sue his employee for lost wages and benefits, reinstatement, and reasonable attorneys fees for a violation.
  • Right to be Present. Establishes that victims and witness have a right to be present at delinquency proceedings related to crimes committed by juveniles. Restitution. Makes various amendments to the law permitting a court to order a person convicted of a crime to pay restitution to the victim.

2 comments:

Sharon said...
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KennethEdelstein said...
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