Excerpted From: Mugambi Jouet, Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization, 55 Arizona State Law Journal 239 (Spring, 2023) (328 Footnotes) (Full Document)


MugambiJouetIn the wake of relentless mass shootings and rising murder rates, American society has been mired in a longstanding gridlock over both gun reform and criminal justice reform. Yet if efforts to enhance firearm regulations and reshape the penal system have both been limited in scope, Democrats and Republicans have generally agreed upon at least one thing in past decades--long prison sentences for gun crime.

Modern America has gravitated toward a peculiar social model combining extremely loose regulations on firearms and extremely punitive sentences on gun crime. These circumstances reflect a vicious circle: the proliferation of firearms facilitates gun crime, which commonly results in draconian punishments, which in turn contribute to overcrowded, criminogenic prisons ill-suited to rehabilitation. This vicious circle reinforces singular features of the United States. It has the highest number of guns per capita and practically the highest incarceration rate of any country worldwide. Even though various developing nations have higher murder rates, the United States has by far the highest murder rate in the Western world. This is tied to easy access to guns, which constitute the vast majority of murder weapons in America. In 2020, 79 percent of all homicides were by firearm--the highest proportion by firearm in U.S. history. While U.S. crime rates overall are not extraordinary, the gun-related murder rate stands out dramatically compared to peer nations. All of these features exemplify “American exceptionalism” in the comparative definition of the phrase, namely that the United States is an “exception,” especially within the West.

These problems appear to be worsening. The homicide rate surged by 35 percent between 2019 and 2020. The rise in homicides was driven predominantly by a rise in firearm deaths. Gun sales also reached a new record in 2020. “Tens of thousands of these new guns turned up at crimes scenes across the country--almost twice as many as in 2019,” according to the John Hopkins Center for Gun Violence Solutions. But federal and state legislators have struggled to find genuine solutions due to irreconcilable views about the nature of the problem. In any event, the U.S. Supreme Court's controversial Bruen decision suggests that future legislative reforms concerning gun violence may be found unconstitutional under the Second Amendment.

Although the social debate about guns in America is as lively as ever, it has hardly encompassed sentencing reform, just as the social debate about sentencing reform has usually excluded gun crime. Long prison terms as a means of gun control have been a rare area of common ground between Democrats and Republicans. Prospects for a less punitive and more effective approach are currently imperiled by another trend that may halt penal reform altogether by reviving the “tough-on-crime” movement of past decades. American society is experiencing a relative resurgence of political rhetoric impugning actual or perceived opponents as “soft on crime.” Notwithstanding social concern about excessive leniency, the United States nearly leads all countries in incarcerating the highest proportion of its population.

All of these trends should still be kept in perspective. Homicide and violent crime rates remain below the peak modern-era levels of the nineties. In 2020, the violent crime rate rose by 4.7 percent, much less than the murder rate, whereas property crime plummeted by 8.1 percent. Meanwhile, the harshness of modern American justice has been tempered by the significant decline of capital punishment, as death sentences and executions nationwide have reached historic lows. Just as twenty-three states have abolished the death penalty, twenty-eight had abolished life without parole for juveniles as of mid-2023. The movement to eliminate the very harshest punishments has made strides over the past decade, yet it may wither in a climate of fear and instability.

Guns and criminal justice have become extremely divisive issues in the United States, further capturing how another key facet of modern American exceptionalism is acute societal polarization. Calls for stricter gun control in the wake of tragic mass shootings have been matched by an uncompromising defense of the right to bear arms as a cornerstone of American national identity. Guns are likewise a central question in divisive debates over policing that again relate to key dimensions of American exceptionalism. The rate of police shootings of civilians in the United States is indeed far higher than in other Western democracies, just as the rate of shootings of police by civilians. In the age of the Black Lives Matter movement, demands to “defund” or “abolish” the police are intertwined with demands that prisons be abolished, too. Concerns about rising crime levels in cities like Chicago, including what has been termed the “Ferguson effect,” have led to opposite demands for more forceful policing. On one side of this debate, gun crime evokes unarmed Black men callously killed by police officers. On the other side, gun crime evokes predominantly Black criminals whom police should target aggressively.

These divides are only part and parcel of modern America's hyper-polarization. A host of fundamental issues bitterly divide the nation, such as abortion, health care, wealth inequality, taxation, government spending, climate change, and foreign policy. Polarization further encompasses whether the United States should remain a democracy or adopt authoritarian populism. These divides have culminated in the bitter debate over the assault on the Capitol on January 6, 2021 by pro-Trump protestors, some of whom were armed with guns and other weapons. Both Donald Trump and the bulk of the Republican Party have publicly embraced or condoned this attack. Their opponents have cast the invasion of the Capitol and the related disinformation about a “stolen election” as grave threats to American democracy. Diverse scholars and social critics have theorized worst-case scenarios in which hyper-polarization and dysfunction could lead to the erosion of the United States as a constitutional democracy or its collapse as a country, if not another civil war.

This Article flips the script by exploring prospects for sentencing and gun reform under another scenario: a relatively less polarized America where greater bipartisanship might reemerge someday. We will especially consider intriguing reasons why the sentencing of gun crime is an issue on which bipartisan penal reform might prove feasible. If so, it may provide a template to find greater common ground on other areas of divide. The Article therefore projects itself in the future to explore paradigm shifts that might be conceivable years or decades from now. This approach does not seek to minimize the magnitude of modern America's polarization. Rather, the Article eschews the reductive opposition between optimism and pessimism by pragmatically analyzing how reforms might materialize in one of several possible futures.

A starting premise for our analysis is that one cannot predict the future but that three general scenarios are conceivable. First, polarization may keep worsening and lead the United States to become increasingly disunited. Second, the status quo may last indefinitely. Third, polarization may abate as Americans eventually become less divided over their fundamental values and worldview. This third scenario may be the only environment in which mass incarceration could disappear or markedly diminish in the future. It is also perhaps the only environment in which gun safety could substantially improve.

While a bipartisan consensus tends to already exist on sentencing gun crime, it has been a consensus on ruinous, counterproductive policies that hinder public safety. Indeed, draconian punishments for violent crime, including firearm offenses, is a matter on which U.S. conservatives and liberals have atypically agreed in past decades. Although citizens can diverge on which policies should be a priority in handling crime, 81 percent of Republicans and 50 percent of Democrats support stricter sentences for violent crime. Making matters worse, the public is critical of mass incarceration but mistakenly thinks that the problem is largely due to the “War on Drugs,” whereas most prisoners are actually serving time for violent offenses. This underscores why rethinking the punishment of violent crime is indispensable to ending mass incarceration, which brings us back to why guns could offer a surprising way forward.

In practice, both Democratic and Republican public officials have treated guns as aggravating circumstances that can lengthen sentences by years and sometimes decades. If a defendant carries a gun when committing another crime (e.g., assault, trespass, burglary, drug dealing, etc.), prosecutors and judges typically have the discretion to seek dramatically longer sentences or are bound to do so under mandatory minimums. That practice reflects a logic of risk-management and prevention. Blurring the harm principle, it entails the incapacitation of persons who have never fired a weapon or physically harmed anyone.

The possession of a gun is a legitimate aggravating circumstance in a functional penal system, yet this approach has deleterious effects in a modern America where sentencing practices have become extraordinarily punitive by both U.S. historical standards and Western standards. In this context, sentencing schemes that are already very harsh for ordinary crimes lead to even more ruthless punishments if a gun was involved, even if it was not used. As we shall see, extremely long sentences do not deter crime but hinder rehabilitation while contributing to the human and financial costs of prison over-population.

The Article explores how U.S. conservatives and liberals could gradually converge toward a different bipartisan consensus on guns and sentencing, which would both improve gun safety and help dismantle mass incarceration. Such bipartisanship is less elusive than it may seem at first glance. A moderate, rehabilitative approach toward gun crime fits with the evolution of modern American conservatism, which emphasizes the right to bear arms and gun culture as cornerstones of national identity. By the same token, the rehabilitation of people convicted of gun crime is consistent with two cornerstones of modern American liberalism, namely stricter gun control and opposition to mass incarceration as an unfair, discriminatory system.

To reenvision legal change, we must sometimes delve beyond the law. Alongside criminology, we will therefore draw upon political science to offer new perspectives on penal reform. One feature of hyper-polarization in modern America is strong group identification and distrust, if not animosity, toward political opponents. The decline of mutual trust in American political life encompasses the erosion of shared aspirations, as “superordinate goals are no longer powerful enough to bring the parties together,” writes the political scientist Lilliana Mason. “The challenge, then, is to find any goal that could unify Democrats and Republicans and not simply cause more harm than good.” This Article argues that sentencing reform for gun crime could be such a goal and that it could have a ripple effect on the wider evolution of American criminal justice.

Change is already happening, as demonstrated by how the bipartisan First Step Act of 2018 significantly reduced mandatory minimums for gun crime under 18 U.S.C. § 924(c). Table 1 captures the reform to the practice of “stacking” consecutive 25-year terms, which had led to sentences spanning dozens or even hundreds of years, including in cases where defendants had not physically harmed anyone. This reform has so far resulted in “a considerable decrease in the average sentence length.” Surely, post-reform sentences remain very long. This reform is also non-retroactive so far. However, the First Step Act shows that sentencing reform can encompass serious offenses alongside nonviolent drug infractions. Redemption is not merely a theme in perhaps the most popular movie of all time, The Shawshank Redemption, whose appeal demonstrates that people can identify with prisoners once they are given a human face. Redemption is equally a principle that has garnered growing interest among conservatives and liberals, finding concrete application in a rare Trump-era reform acclaimed by both Democrats and Republicans.

But the greatest prospects for change probably lie at the state level since only a segment of criminal cases arise in federal court. For example, in 2018, California adopted legislation providing that, “in the interest of justice,” a court may “strike or dismiss” the enhancement of three, four or ten years that a defendant would otherwise face for using a firearm in the course of a felony or attempted felony. An intertwined statutory section stipulates that “the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances [enumerated in the statute] are present.” This reform is encouraging in reconsidering long sentence enhancements for crimes involving guns, and in facilitating the consideration of mitigating evidence presented by defense counsel.

Table 1: Reduction in Mandatory Minimums Under 18 U.S.C. § 924(c)

Counts Per Indictment

Pre-First Step Act

Post-First Step Act

One Count

Mandatory Minimum: 5 years

Mandatory Minimum: 5 years

Two Counts

Mandatory Minimum: 30 years (5 + 25 years)

Mandatory Minimum: 10 years (5 + 5 years)

Three Counts

Mandatory Minimum: 55 years (5 + 25 + 25 years)

Mandatory Minimum: 15 years (5 + 5 + 5 years)

Building on this momentum, the Article describes how reformers could rethink and reshape harsh sentencing practices that have led to mass incarceration. A precondition to change is not for U.S. conservatives and liberals to wholeheartedly agree on issues like the role of systemic racism or the value of the right to bear arms. As the political scientists David Dagan and Steven Teles underline, possibilities for penal reform have emerged when they have “allowed a genuine working relationship between left- and rightwing reformers to develop, based on the understanding that each side was coming to the table for its own reasons.” As each side will probably retain much of its worldview even if its perspective evolves to an extent, new ways of thinking could help bring reformers together:

Changing policy in the coming decades, except in rare moments when one party has complete control, means changing minds--convincing the arbiters of ideological orthodoxy that they need to shift positions for their own reasons. Understanding when such changes are possible, and how they come about, is central to our ability to do politics effectively in an era when our older techniques for generating consensus have broken down.

Possibilities for “bipartisan reform” discussed throughout this Article should be understood as changes that could gradually materialize with relative support from both Democrats and Republicans, liberals and conservatives. By “bipartisan reform,” I do not mean a full-blown consensus or a sweeping move toward penal reform and decarceration, which are unlikely to occur. Rather, a critical mass of Democratic and Republican officials will have to support reform; and this agenda will have to be substantively different from what they have usually proposed so far. Liberals, who have generally spearheaded penal reform, will have to marshal more ambitious proposals instead of focusing primarily on the most sympathetic prisoners, such as petty drug offenders. Conservatives will plausibly influence how far reform will go, as meaningful change nationwide is unlikely to occur on party-line Democratic votes or through impact litigation. For change to materialize, a non-negligible segment of conservatives will have to support reform or, at the very least, not thwart it through vehement criticism or legal obstructionism. This is why the Article will devote attention to the conservative movement against mass incarceration that gained ground in the 2010s. In a way, the First Step Act of 2018 was the culmination of this nationwide movement, although it should indeed be understood as a “first step,” not an end result.

The experience of other Western democracies can help point the way forward, as they show that it is possible to address violent crime without institutionalizing the merciless, counterproductive, and financially costly practices found in modern America. To be sure, the sentencing of gun crime is a less ubiquitous issue elsewhere in the West where far fewer firearms are in circulation. Still, the rate of non-lethal violent crime there is often relatively similar to the United States. Peer Western democracies can accordingly shed light on how to tackle serious crime less punitively. While all have fully abolished the death penalty and use long prison terms only in rare cases, American society has faced a longstanding debate about whether executions and draconian prison terms deter crime. Reputable experts do not find that they do so more than moderate punishments. Scholars have otherwise offered different assessments of recidivism and whether lengthier sentences have reduced crime in modern America, such as through incapacitation. Insofar as they may do so, the experience of other Western democracies demonstrates that long or unforgiving sentences are not necessary to keep a society safe. This social outcome is possible with proportional, rehabilitative, and humane sentences, including for serious offenses, as well as attention to root causes of crime. Responding to wrongdoing by normalizing harshness is a social choice, not a given. Comparatism has the capacity to open new possibilities by questioning our assumptions.

Rethinking the sentencing of gun crime could thus become an unexpected vehicle for a paradigm shift in American criminal punishment. To be clear, the point is not that most prisoners are locked up for gun crime. It is difficult to precisely determine the proportion of prisoners whose cases involved a gun but they do appear to be a substantial segment. Nor is the point that rethinking the sentencing of gun crime will readily put an end to mass incarceration. Penal reform should be multi-faceted because the criminal justice system's ills are manifold. Reformers should nonetheless aspire to expand progress from one type of case to another, such as by way of analogy, as encouraging sentencing principles have historically emerged in cases involving a variety of crimes. For instance, rethinking the “War on Drugs” could have a broader impact in developing alternatives to incarceration that would apply beyond narcotics cases. Similarly, shifts in juvenile justice can help identify sentencing principles relevant not only to juveniles but also adults. Gun crime is only one of several areas to reconsider sentencing practices, albeit a promising one.

The Article is structured as follows. First, it surveys the vicious circle tying mass incarceration, gun crime, and counterproductive laws, policies, and social attitudes. Second, the Article describes how current sentencing reforms cannot end mass incarceration because they tend to focus on relatively minor offenders and exclude those convicted of more serious crimes--namely the majority of prisoners. Third, we explore how a bipartisan reform movement to reform the sentencing of gun crime could instead foster a virtuous circle by leading more and more prisoners to receive humane sentences that are proportional to wrongdoing, enhance rehabilitation, and make society safer. Absent such a paradigm shift, the status quo may last indefinitely. Should this vicious circle ultimately dissipate, new possibilities for American justice will materialize.

[. . .]

This Article has projected itself into the future by exploring transformations that might come to pass in a less polarized America. This is one of several potential futures, as societal divide might persist or worsen in coming years or decades. But should this future be within reach, guns could evolve from a source of intense polarization to one of common ground. Indeed, moderate, rehabilitative, and proportional sentences for gun crime is an area where bipartisan convergence could materialize and have a ripple effect on sentencing norms nationwide. Conservatives could embrace this shift on the ground that the right to bear arms is an important principle and that guns are not inherently evil--meaning that people who commit gun crime should not be deemed beyond rehabilitation. Meanwhile, liberals could defend this shift by blending their support for gun control and opposition to mass incarceration. Overall, both conservatives and liberals could agree that gun crime warrants a meaningful response, albeit not merciless punishments that do not make society safer, waste a fortune in taxpayer dollars, and have disproportionate impacts on the underprivileged. If the bloody, vicious circle ruining American justice is someday broken, it will plausibly reflect a paradigm shift that cannot be predicted but should be theorized.

Associate Professor, USC Gould School of Law.