Federal sentencing for violent and drug trafficking crimes involving firearms: recent changes and prospects for improvement.

• Author: Hofer, Paul J.

1. INTRODUCTION

   Federal criminal law, like the laws of many states, requires offenders to receive increased penalties if they involve a firearm in their offense. Enacted in 1968 and codified as 18 U.S.C. [sections] 924(c) ("Section 924(c)"), this provision has been amended by Congress and interpreted by court decisions many times through the years. In 1984, the statute was amended to require at least five years imprisonment to be served consecutive to the sentence for the underlying offense, if a defendant "uses or carries" a firearm "during and in relation to" any crime of violence.(1) In 1986, drug trafficking offenses were added, and sentences of up to thirty additional years were mandated for more dangerous weapons, such as assault rifles or machine guns.(2) Further amendments in 1988, 1990, and 1994 required sentences of twenty years to life imprisonment without parole for offenders with prior convictions.(3)

   A 1995 Supreme Court decision, Bailey v. United States,(4) narrowed application of the "uses" provision in the statute. But legislation enacted in the last weeks of the 105th Congress re-expanded the statute's scope to all forms of possession of a firearm "in furtherance of [the] crime."(5) Further, the legislation introduced a regime of even higher mandatory penalties for "brandish[ing]" or "discharg[ing]" a weapon, and increased penalties for repeat offenders and those that use certain types of dangerous guns.(6)

   The Federal Sentencing Guidelines, promulgated in 1987 as part of the Sentencing Reform Act of 1984,(7) also contain sentence increases for offenders who involve a firearm or other dangerous weapon in many types of offenses. The sentence increases provided by the Guidelines operate under different standards and procedures than do the statutory enhancements, which give judges greater control over their operation and may make them easier to apply. Congress, however, has shown a preference for statutory mandatory minimum penalties over Guideline enhancements, and when the Guidelines and statutes conflict, the statutes "trump" the Guidelines and control the final sentence.

   This Article briefly reviews empirical studies of the operation of mandatory firearm sentencing enhancements in the state courts, and their effectiveness at controlling gun crime. Data collected by the U.S. Sentencing Commission are used to determine how federal firearm penalties were implemented over the months immediately preceding and following the Bailey decision and to estimate rates of circumvention of the gun enhancements. Reasons for circumvention are discussed in light of this new data and previous research. Finally, the likely consequences of the recent legislation are discussed and options are identified for improving federal firearm sentencing to control gun crime, reduce unwarranted disparity, and achieve proportionate punishment.

   1. Empirical Evaluations of Firearm Enhancements

      Mandatory firearm sentence enhancements (FSEs) have been the subject of a series of empirical evaluations in the state courts. These studies have gradually clarified the laws' impact on police, prosecutor, and judicial behavior, and on prison populations and crime rates. The most general conclusion to be drawn is that passage of an FSE, in and of itself, does not guarantee a decrease in crimes involving firearms, or even a significant increase in imprisonment of gun-using criminals. While there is evidence that the laws are associated with a decrease in some types of crimes in a few states, the FSE laws taken together show little or no impact. In addition, given the complexity of factors affecting crime rates and variations in the way the laws are written and applied, it is difficult to assess what might make a particular FSE effective.

      The first FSE to receive empirical evaluation was Massachusetts' 1975 "Bartley-Fox Amendment," which introduced a one-year mandatory minimum for illegally carrying a gun and a two-year minimum for committing a crime with one.(8) James Beha reported general compliance with the law among police, prosecutors, and judges, and found some evidence of a shift away from the use of firearms in assault, although no overall deterrent effect on homicide, assault, or robbery rates could be detected.(9) A few years later, declines in armed robberies and homicides, as well as gun assaults, were detected, but increases were found in non-gun assaults and robberies, suggesting that criminals were moving from gun crimes into other modes of operation.(10) Later studies with more data seemed to confirm the reductions in armed robbery and gun assaults.(11) However, the possibility remained that these were due to nationwide declines occurring at the same time, and not specifically to the Massachusetts FSE.(12)

      Colin Loftin, David McDowall, and a series of associates also conducted empirical evaluations in several states.(13) The FSEs in these jurisdictions shared a number of common elements. All required substantial additional punishment for offenders who involved a firearm in their offense. Mitigations of the sentence, such as imposing probation instead of imprisonment, were prohibited. One city even prohibited plea bargains to lesser offenses.(14) To send a strong deterrent message, existence of the provisions was communicated to the public through advertising campaigns.

      The results were at first disappointing. For example, while Michigan's two-year enhancement appeared to selectively increase sentences for some defendants, circumvention of the penalties was found in a significant portion of cases. The sentencing enhancements had no clear and consistent effect on the use of guns during homicides, assaults, or robberies.

      More recently, however, McDowall, Loftin, and Wiersema used meta-analysis to pool results from their previous work in Michigan and Florida with new studies in Pennsylvania.(15) With the increased power and precision of pooled data, their conclusion was revised. Rates of firearm homicide were consistently reduced in various jurisdictions after implementation of firearm sentencing enhancements. Little change was detected in non-gun homicides, suggesting that the sentencing changes caused the drop in gun murders. Curiously, however, no consistent reduction was found in rates of gun assault or robbery which, the authors suggested, may have been due to the relative unreliability of crime data for assault and robbery compared to homicide.

      Research in other jurisdictions and using other methods also found occasional evidence of success, but methodological limitations prevented drawing a clear conclusion that enactment of an FSE--and not some other factor occurring concurrently--was the cause of any changes in crime rates that were found.(16) Then in 1995, Thomas Marvel and Carlisle Moody used a multiple time series design to examine changes in imprisonment and crime rates, using data from nearly all the states over the past sixteen to twenty-four years.(17) With this design and data, they were able to compare each state before and after enactment of its FSE law. In addition, they were able to use other states as controls over the same time period to test whether any changes were due to general crime trends and not a result of enactment of the law.

      In general, this comprehensive analysis supported the more discouraging of the previous research findings. In most jurisdictions FSEs were not associated with a decrease in gun-related crime, or even with an increase in court commitments, prison admissions, or prison populations.(18) Significant decreases in homicides were found in six out of thirty-seven states with usable data--more than the two states that would be expected by chance.(19) But why the law had this effect in these states and not in others was unclear. Decreases in crime rates were also found in some states for other crimes, such as rape and burglary, but often these were statistically insignificant, or were more than matched by states that showed increases in crime following passage of an FSE.(20) Why the law seemed to work in some places but not in others could not be determined.

      The federal FSE statute ("Section 924(c)") has also been the subject of some empirical research, which will be reviewed below. But these studies have not focused on the federal law's effect on crime, because the number of homicides, assaults, and robberies prosecuted in the federal courts is simply too small to allow researchers to detect any effect in general crime statistics. Instead, analyses have focused on how the law is implemented by prosecutors and judges.

   2. Implications of the Research for Federal Statutes

      Together, these studies provide little support for the common-sense view of many policymakers--and much of the public--that FSEs will necessarily reduce gun crime, either through deterrence of new offenses or incapacitation of dangerous offenders. For several reasons, however, the studies do not necessarily prove that FSEs are unsound policy.

      First, the number and complexity of factors affecting crime rates make it difficult for social science to isolate a single law and test its effectiveness, especially if its contribution to crime reduction is relatively small. The research clearly suggests that the crimes prevented by FSE laws are few, at best, and unpredictable. But it does not prove that no FSE law can ever have any effect. Second, even if the laws have only modest effects, their benefit may still outweigh their costs, given the property damage, injury, and death resulting from gun crimes. From an economic perspective, preventing even a few additional deaths or life-threatening injuries could justify considerable expenditure for extended incarceration of gun-using criminals. Finally, FSEs may be justified on grounds other than their utilitarian effects. In addition to deterrence and incapacitation, federal statutes list proportionate punishment as a primary purpose of sentencing.(21) FSEs might be...