OPINION:
Anyone paying attention to Washington’s criminal justice system knows that some judges on the D.C. Superior Court are now so anesthetized to persistent and chronic crime that they hand out notoriously lenient sentences to recidivist and violent defendants.
Don’t believe us?
According to the D.C. Sentencing Commission’s 2024 annual report, 88% of sentences that were outside the guidelines range were downward departures, meaning they were shorter than the recommendation. The 2023 annual report found that, by the end of 2023, only 38% of the more than 5,322 felony arrests in the District had led to findings of guilt.
The data is even more compelling — or frightening, depending on your point of view — with respect to sentencing gun-wielding criminals to prison.
From 2018 to 2022, only 1.7% of people arrested for carrying a pistol without a license in the District were sentenced to prison. While the percentage of prison sentences per arrest increased for 2023-2024, it remained a meager 3%, D.C. Sentencing Commission data shows.
In other words, you could carry an illegal gun in the nation’s capital with a 97% chance of avoiding a prison sentence — a relatively safe gamble for a career criminal.
At the same time, crime exploded. Homicides in the District of Columbia, which averaged 134 per year during the 2010s, increased to an average of 222.5 from 2021 to 2024.
Despite the combination of high crime and low sentences, prosecutors in the nation’s capital currently have no tool to effectively challenge or remove overly lenient judges from presiding over criminal cases. In other words, prosecutors have no mechanism to address judges whose pattern of decisions in criminal cases consistently undermines public safety.
That’s where California comes into the picture.
Yes, you read that right: Heritage Foundation scholars are recommending a California rule. Read on.
Unlike most states, California allows prosecutors and defense attorneys to remove the trial judge assigned to a case without litigating whether the judge has a specific bias towards a particular party or case. The state’s Code of Civil Procedure §170.6 makes judge disqualification automatic: Once a party files a motion and submits an affidavit alleging bias, the presiding judge (the head judge) must immediately reassign the case to a different judge.
Here’s how it works: Line prosecutors or public defenders who want to “challenge” a judge ask permission from their supervisor to “paper” a judge whom they know, based on experience, has ruled against their office in what they believe is a biased manner. If the supervisor says yes, the judge is “papered” and no longer presides over that case.
If a particular judge is routinely “papered” in criminal cases, the presiding judge will eventually reassign that judge to hear cases exclusively from the civil docket.
Most other state-level systems require the party seeking a new judge to provide proof of bias or prejudice, but in California, such proof is not required.
This provides an effective tool that keeps judges honest and fair to both sides in criminal cases. At the same time, it averts potentially time-consuming (and potentially embarrassing) hearings about whether a judge is unfairly prejudiced — while still preserving public confidence in judicial impartiality.
By contrast, attorneys in the District (and in most other places) must file a formal motion stating “the facts and the reasons for the belief that bias or prejudice exists” by the judge against one of the parties. Thus, the prosecutor must allege specific prejudice, not just general dissatisfaction with the judge’s rulings in many similar cases over time.
This creates a high bar that effectively prevents prosecutors from seeking reassignment, even when a judge’s track record suggests tendentious leniency or bias against the government. The same holds for defense attorneys seeking to challenge judges they believe are biased against their clients.
Given the current sad state of affairs, it’s time for the District to implement this blue state policy to balance the scales of justice in the Superior Court.
The District should amend its rule and adopt a provision like California’s into its code of criminal procedure, allowing prosecutors and defense attorneys to challenge judges whom they believe are prejudiced against them.
As of September, there were 15 vacancies on the Superior Court, and the court is expecting additional retirements next year. Once those are filled, the court will be more evenly split between lenient judges and Trump-appointed, law-and-order judges.
In that light, now is precisely the moment to adopt a peremptory challenge system that protects both sides from general bias — whether that be from soft-on-crime judges who reflexively favor defendants, or from overly hardline judges who might systematically favor the state.
By following in California’s footsteps, the District can ensure that both prosecutors and defense attorneys can secure impartial adjudication and preserve public confidence in the judicial system.
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Charles Stimson is the deputy director of The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Patrick McDonald is a member of Heritage’s Young Leadership Program.
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