Remarks of Marvin E. Wolfgang at the Guns and Violence Symposium at Northwestern University School of Law, February 3, 1996.

PositionResponse to Gary Kleck and Marc Gertz, Journal of Criminal Law and Criminology, vol. 86, no. 1, 1995 - Transcript

The following remarks were to be delivered by Dr. Wolfgang at the Guns and Violence Symposium.

For those who have not read Volume 86, Number 1 of the Journal of Criminal Law and Criminology on Guns and Violence Symposium, I would like to make clear that I had been asked to write only a commentary, not an original research article. I focused my commentary on an article titled Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun by Gary Kleck and Marc Gertz.

Let me read the first and last paragraphs of the commentary that I originally made, titled A Tribute to a View I Have Opposed.

The first paragraph reads:

I am as strong a gun-control advocate as can be found among the criminologists in this country. If I were Mustapha Mond of The Brave New World, I would eliminate all guns from the civilian population and maybe from the police. I hate guns--ugly, nasty instruments designed to kill people.

The last paragraph of my commentary reads as follows:

The Kleck and Gertz study impresses me for the caution the authors

exercise and the elaborate nuances they examine methodologically. I do not like

their conclusions that having a gun can be useful, but I cannot fault their

methodology. They have tried earnestly to meet all objections in advance and

have done exceedingly well.

The usual criticisms of survey research, such as that done by Kleck and Gertz, also apply to their research. The problems of small numbers and extrapolating from relatively small samples to the universe are common criticism of all survey research, including theirs. I did not mention this specifically in my printed comments because I thought that this was obvious; within the specific limitations of their research is what I meant by a lack of criticism methodologically.

I cannot appear on a panel such as this, on guns and violence, having heard Frank Zimring earlier today discuss various issues, including the summarization of his article Reflections on Firearms and the Criminal Law, without having a very nostalgic feeling about Frank. In 1968, as the research director of the National Commission on the Causes and Prevention of Violence, established by President Johnson after the assassinations of Martin Luther King Jr. and Senator Robert Kennedy, I commissioned Frank Zimring, who was just a year out of law school, to be the co-director of Volume Seven of our Task Force, Firearms and Violence in American Life. He has made a career out of firearms and has become one of the country's leading experts on this topic. I feel very gratified about: having had an early association with him.

Being in Chicago at this Symposium, I feel obliged to mention Senator Paul Simon's statistics on guns, which I heard him refer to about a year ago. He gave the following statistics: with 1992 data, Chicago had 927 firearm deaths--four and a half times more such deaths than all of Canada. He then referred to Toronto, a city similar to Chicago in size; in the same year Toronto had only seventeen deaths. He attributed the difference to the statutory differential in firearms control.

Relative to some of the discussions that occurred in the first session of the Symposium, such as the remarks by Alfred Blumstein regarding the illicit drug industry and guns, and the remarks by Alan Lizotte on gang membership, I would like to refer to our longitudinal, birth cohort study in Philadelphia. The 1945 birth cohort included nearly 10,000 boys born that year who lived in Philadelphia from at least ages ten to eighteen. In the second stage of our analysis of the 567 interviews, we found that there were practically no guns used by the cohort born in 1945 and growing up in the 1950s and 1960s. What we did find, however, was the capacity to examine the sequence of events longitudinally; that is, whether being a gang member preceded being arrested as a delinquent or followed being arrested as a delinquent, or whether being a victim of a crime preceded or followed being arrested.

We found that being a member of a gang resulted in being twice as likely to become a delinquent having an arrest record than not being a member of a gang. But more directly related to this Symposium, we also examined the issue of having been a victim of crimes of property or a personal assault versus not being a victim before becoming a delinquent or not becoming a delinquent at all. The victimization periods were: under twelve, between twelve and sixteen, and sixteen to eighteen. We found that, in examining personal assaults of being simply shoved, pushed around or being beaten up or assaulted with a knife or with a gun, that having been shot as a juvenile under twelve or between twelve and sixteen was significantly related to becoming a delinquent.

The odds of being an offender were greater if the person was a victim, even not a gang member, than being a gang member but not a victim (1.17 compared to .72). For example, among gang members who were juvenile victims, 94% became serious violent adult offenders. Among nonmembers who were victims, 54% became similar adult violent offenders. We also noted that this latter group--those who were not gang members but victims--became offenders with even greater probability than gang members who were never victimized, a probability of only 42%. In short, in a log-linear analysis, the victim experience was the best predictor of committing a serious self-reported assault. Gang membership and weapons use were also significant, although not as important as victimization in relation to serious offender status.

I can hardly avoid mentioning my Patterns in Criminal Homicide, which is a study of that offense in Philadelphia between 1948 and 1952. In that study guns were used in only approximately 30% of the homicides. The prominent method of killing was knives. The average homicide rate during those years was only 5.2. The mean number of homicides annually was 125. Today, in a recent year, there were 444 criminal homicides in Philadelphia with a rate of about fifteen per 100,000 in which 75% of the homicides employed guns.

In our second birth cohort in Philadelphia, of all persons--male and female--born in 1958, which numbered 27,160 persons who lived in Philadelphia at least from ages ten to eighteen, we uncovered 1,027 robberies and analyzed them in terms of the degrees and types of intimidation and degrees of resistance and of injury.

We have noted that there are more victims who acquiesce or offer no resistance (623) than there are victims who resist (404). We have also found that being harmed is significantly related to resistance. We can now see that it is resistance and not the instrument of the intimidating threat that promotes more and higher levels of injury. For example, the least life-threatening form of intimidation is oral; when only oral threats are used initially in the robbery, few persons will be harmed. Among the 112 non-resisters, only one victim was later medically treated and only two received minor shoves, while 97% were unharmed. In contrast, among the ninety-five resisters whose initial threat was only oral, eleven were hospitalized or medically treated and twenty had minor harm. When a gun was the instrument of intimidation, only five percent of the non-resisters but three times (16%) as many resisters were seriously hurt. Unfortunately, I did not have information about the use of a gun to resist the robbery.

Finally, in a birth cohort study of all persons born in 1973 in the city of Wuhan, capital of Hubel Province, in the People's Republic of China, we have found not only that the delinquency rate up to age eighteen is extraordinarily low but, in examining over 5,000 subjects thus far, not one offense committed by the delinquents involved a gun. There is a small number of illegal guns that exist in China, but the purchase and possession of firearms are strictly controlled and therefore guns have no significant relationship to crime in China. of all of the evidence,(207) and there had to be a showing of "substantial evidence."(208) The Court emphasized that it is constitutional to take an individual's property based on presented evidence, but it is unconstitutional to take an individual's property simply because he will not waive his Fifth Amendment privilege.(209) The Baxter Court found additional support for its holding in the important state interests that state prison disciplinary hearings serve.(210)

Since an owner bears the burden of proof in establishing an affirmative defense, United States v. Rylander(211) must be read in conjunction with Baxter. In Rylander, the Supreme Court upheld the trial court's finding that a corporation's president was in contempt for failing to produce corporate documents subpoenaed by the IRS.(212) The Court noted that Rylander's only defense to the contempt charge was that he did not have the documents.(213) For this defense, Rylander had the burden of production.(214) Rylander's invocation of the Fifth Amendment during cross examination prevented him from satisfying his burden.(215)

Writing for the Court, Chief Justice Rehnquist said that the Fifth Amendment has "never been thought to be in itself a substitute for evidence that would assist in meeting the burden of production."(216) To allow the Fifth Amendment to be used in this way "would convert the privilege from the shield against compulsory self-incrimination . . . to a sword . . . ."(217)

Together, Baxter and Rylander have been cited for the proposition that adverse inferences are permissible when a claimant takes the Fifth Amendment in a forfeiture proceeding.(218) Courts reason that the owner's "innocence" is an affirmative defense that she has the burden of proving.(219) She cannot sustain this burden by refusing to answer based on her Fifth Amendment rights.(220)

The Eleventh Circuit has interpreted these holdings to mean that a negative inference may be drawn in a civil forfeiture action when a claimant takes the Fifth...

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