Excerpted From: Robert Weiss, Rethinking Prison for Non-violent Gun Possession, 112 Journal of Criminal Law and Criminology 665 (Summer, 2022) (131 Footnotes) (Full Document)


RobertWeissIn 2014, Newsweek Magazine ran an article about the persistent epidemic of gun violence in my hometown, Wilmington, Delaware, labeling it “Murder Town USA.” Since then, hundreds more Wilmingtonians, almost all of them Black, have been shot. They include Parys Henry, an eighth grader with dreams of becoming a surgeon, shot eight times in her hands, feet, and stomach; and six-year-old Jashawn Banner, struck in the head by an errant bullet while riding in a car with his mom and baby sister. Today, gun violence remains as devastating and intransigent as ever; in 2020, 168 people were shot in Wilmington, a 50% jump from the year before. In all, guns killed nearly 20,000 Americans in 2020.

In 2020, the protests sparked by George Floyd's murder also forced more Americans to recognize racial inequity in policing and the criminal justice system. In the United States, with the world's highest incarceration rate, Black adults are nearly six times as likely as Whites to be imprisoned. Books like Charged and Locking Up Our Own, and the film adaptation of Just Mercy, increased visibility into the injustices experienced by Black and Brown Americans in the criminal justice system.

These two related strains--inequity and gun violence--bring into stark relief a phenomenon that author James Forman characterizes as the “simultaneous over-and under-policing of crime.” That is, particularly low-income and Black Americans experience both criminal justice over-enforcement (mass incarceration, disparate arrest rates, police abuses) and under-enforcement (unabated gun violence, low homicide closure rates, etc.). The former is exemplified by the killing of George Floyd, Breonna Taylor, and others; the latter, by unfathomable gun violence in places like Wilmington, Chicago, and Philadelphia.

Over the past few years, Americans have increasingly voted to elect “progressive prosecutors” or reformers emphasizing greater equity for communities of color, combatting mass incarceration, and enforcing policing accountability. These reform prosecutors often seek to rein in the harshest tactics and policies of their predecessors, but also to move with urgency to combat gun violence that falls particularly hard on low-income neighborhoods. On their face, these goals might cut in two directions: one toward being “tougher” on crime, the other toward being more merciful.

Illegal gun possession highlights this dilemma. In cities including Chicago, New York City, and Philadelphia, illegal gun possession (including by a minor, someone with a criminal record, or a person otherwise ineligible to buy a firearm) is often a felony carrying prison time. These offenses mostly do not involve violence; nevertheless, thousands of young, Black men face prison time each year for simply having, not using, a gun. This offense is one that, many offenders argue, the dangerousness of their living conditions leave them little choice but to commit. Reforms to provide alternatives to incarceration for gun possession remain limited in scope and, in times of rising gun violence, even risk backsliding. As Professor Forman describes, the result is a “worst of all possible worlds [in which] guns--and gun violence--saturate our inner cities, while the people who go to prison for possessing guns are overwhelmingly Black and brown.”

This Comment argues that we must find a better way to fight violence while lessening the burden to our core ideals of freedom, justice, and equality. We cannot accept a status quo in which gun violence devastates our cities. Nor can we accept sending thousands to prison for a non-violent act rooted in our collective failure to ensure basic community safety.

First, this Comment discusses the historical context of punishing illegal gun possession with imprisonment; prosecutor's frameworks for thinking about public safety, and evidence around incarceration and gun violence. Next, this Comment draws upon direct interviews to describe how prosecutors approach gun possession felonies in practice. Finally, this Comment suggests a framework that, drawing upon public health concepts, may help policymakers grapple with tensions between safety and justice.

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The relative nascency of progressive prosecution has meant that reforms have often focused on “win-wins,” but as the movement grows in power, prosecutors will grapple with increasingly challenging trade-offs. As Forman argues: “if we're going to have real reform of this [criminal justice] system, you can't do this thing that so many people do ... only talking about reform for non-violent drug offenders, but if you commit a violent crime, we don't have any sympathy for you.” The BAVA framework aims to support reformers who are looking at data and listening to community members to devise solutions that balance safety and justice.

Applying the BAVA lens yields an increasingly-apparent truth: we are not getting a lot of “juice for the squeeze” with how we punish gun possession, and so should view that policy with heightened skepticism. Applying a critical eye does not mean eliminating all gun arrests. But it does suggest that prison sentences ought to be used much more sparingly for gun possessors, particularly in cases without evidence that the gun would be used other than for self-protection. And it reminds us that our approach to gun violence so far has not been effective enough at protecting people's safety. The good news is, research has already started to show us what works. Greatly expanding investment in these community-based interventions can make our cities safer while incarcerating fewer of our neighbors.

Northwestern University Pritzker School of Law, J.D.-M.B.A, expected May 2022.