- The Washington Times - Tuesday, November 12, 2002

Last Tuesday, D.C. residents voted overwhelmingly to support an advisory referendum calling for the election of a local prosecutor to replace the U.S. attorney in bringing felony charges for D.C. crimes. The Council must now enact implementing legislation which, by law, must then be submitted to the Congress for approval because it would amend the Home Rule Act, which vests plenary prosecution authority in the U.S. attorney. The referendum was an important exercise in civic opining, and now the potential consequences of such a decision need to be intelligently catalogued.

If and when that legislation arrives on Capitol Hill, a number of important questions will be asked by members. The first and most central one will be where does the District intend to put its prison in the District of Columbia to house the prisoners it convicts? Surely, no serious proposal would envision continuing to place all D.C. prisoners in the custody of the attorney general of the United States and sending them all to federal prisons around the country. And Lorton is closed. If felony prosecution authority is to be wielded, it requires the adjunct duty to keep convicted felons in prisons in Washington. Otherwise, the demand for local control of such a vital governmental function as prosecution rings hollow. The District as Potemkin village, if you will.

Are we to believe that the proponents of this idea think it is good public policy to have D.C. police arrest a felon, have a D.C. prosecutor try and convict that felon, have a group of D.C. citizens hear the case and decide the D.C. resident's fate, have a D.C. judge impose a sentence, have a D.C. marshal take temporary custody of that convicted felon and then ship the miscreant to Peoria, Ill.? To mouth the words is to be embarrassed.

But where will that prison go in Washington? The answer, based on history, is nowhere. During the Clinton administration, the city asked the federal government to take over housing all of its prisoners. It also asked the feds to pay for the operation of Superior Court, the place where these felony trials take place. The feds also pay for and supply the marshals, who provide subpoena service and prisoner control in the courthouse.

If the District's citizens want felony prosecution authority, then they must address the core questions of paying for that office: a prison system, a court system, a marshals service, etc. Such costs would reach hundreds of millions of dollars. From whence will this money come? It will not come from the federal government. And yet, the proponents of the referendum claim that the costs are of no concern (they irresponsibly minimize them) or that the federal government has some continuing duty to house prisoners after prosecution authority transfer for some indeterminate period. The truth is that they want to have it both ways: They want the power but not the responsibility.

But power cannot be wielded devoid of responsibility. This is not a political science class exercise. This is a real life public-policy decision with immense consequences for the citizens of this city. In a time of diminishing resources, a proposal is blithely put forth that would bankrupt the city again trashing years of financial reconstruction after yet more years of irresponsible budgeting and spending. It seeks to repose a vast power in the hands of a group of incompetent bureaucrats whose city either keeps people in the D.C. Jail too long or releases them too early. It is not a pretty sight.

Which all begs the question: What is wrong with the current system where the U.S. attorney prosecutes all felonies at no cost to the District? Other than a few unfounded complaints about priorities of that office, no reason for such a shift has been advanced other than pure local control.

The District's citizens benefit from federal prosecutors insulated from political pressure bringing cases. The prospect of being an assistant U.S. attorney draws the best law school graduates to the office. The resources of the FBI laboratory are used. So are those of the DEA, the Secret Service, ATF, etc. because of federal control of the prosecution function. Because Superior Court is an Article I federal court, its subpoenas have nationwide force and effect. The list of positives is endless. The list of horribles, if the system is changed, is also endless.

I am sure, if the D.C. Council sends a bill to the Hill seeking such authority, it will receive intense and unending scrutiny. It should.


Joseph E. diGenova is a former U.S. attorney for Washington and founding partner of the law firm diGenova & Toensing.

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