RETHINKING PRISON FOR NON-VIOLENT GUN POSSESSION.

• Author: Weiss, Robert

INTRODUCTION 666 I. ILLEGAL GUN POSSESSION: EVIDENCE AND CURRENT FRAMEWORKS 670 A. Prison for Non-Violent Gun Possession: History and Context 670 B. Limitations of Current "Safety First" Prosecutorial Frameworks 673 C. Evidence on Incarceration, Public Safety, and Gun Violence 675 II. PROSECUTION OF ILLEGAL GUN POSSESSION IN COOK COUNTY, ILLINOIS 677 A. CCSAO Gun Possession Prosecutions: Intake Stage 678 B. CCSAO Gun Possession Prosecution: Initiation Stage 681 C. Challenges 681 III. "BURDEN-ADJUSTED VIOLENCE AVERTED" AS A DECISION-MAKING LENS 684 A. Introducing BAVA: A Public Health Approach 685 B. Advantages of a BAVA Framework 686 C. Applying BAVA to Gun Possession and Gun Violence 687 CONCLUSION 689 INTRODUCTION

In 2014, Newsweek Magazine ran an article about the persistent epidemic of gun violence in my hometown, Wilmington, Delaware, labeling it "Murder Town USA." (1) Since then, hundreds more Wilmingtonians, almost all of them Black, have been shot. (2) They include Parys Henry, an eighth grader with dreams of becoming a surgeon, shot eight times in her hands, feet, and stomach; (3) 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. (4) 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. (5) In all, guns killed nearly 20,000 Americans in 2020. (6)

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. (7) In the United States, with the world's highest incarceration rate, Black adults are nearly six times as likely as Whites to be imprisoned. (8) Books like Charged and Locking Up Our Own, (9) and the film adaptation of Just Mercy,, (10) increased visibility into the injustices experienced by Black and Brown Americans in the criminal justice system. (11)

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." (12) 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.). (13) 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. (14)

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. (15) 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. (16) 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. (17) 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. (18) This offense is one that, many offenders argue, the dangerousness of their living conditions leave them little choice but to commit. (19) Reforms to provide alternatives to incarceration for gun possession remain limited in scope and, in times of rising gun violence, even risk backsliding. (20) 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." (21)

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.

1. ILLEGAL GUN POSSESSION: EVIDENCE AND CURRENT FRAMEWORKS

   This Part begins by discussing the history of criminalizing gun possession to place the problem in a real-world context. Next, it describes how progressive prosecutors often characterize their decision-making framework as "public safety first." This Comment will argue that this framework is too one-sided: prosecution ought to balance any benefits to public safety against the significant costs of incarceration, and the availability of non-prosecutorial antiviolence interventions. Finally, this Part describes the research evidence on punishing gun possession with incarceration. That evidence does little to support the notion that imprisoning gun possessors is an effective way to achieve public safety.

   1. PRISON FOR NON-VIOLENT GUN POSSESSION: HISTORY AND CONTEXT

      Before being arrested on narcotics charges in the 1990s, Tarik, a Philadelphia resident, sometimes carried guns out of fear of being robbed and a lack of faith that the government would protect his neighborhood. (22) Tarik summed up this sentiment, saying:

      "I've been held up at gunpoint a number of times... [but] never bothered going to the police [because] "somebody's gotta get shot and killed for the Philadelphia police to come around." (23)

      Tarik, a high school graduate, now has a job and is married with kids. But due to his criminal record, he cannot legally own a gun, which he desires for personal protection. (24) In fact, Tarik--like many other low-income individuals in places like Philadelphia and Chicago--would likely go to prison if found with an unlicensed gun. (25)

      Gun possession laws that prohibit firearm possession by those with criminal records (or minors, or other categories) may strike us as sensible. Firearm deaths are at "epidemic proportions," (26) with a quarter of a million people killed by guns every ten years in the United States. (27) No wonder, then, that "firearm violence in the United States has been a top priority for lawmakers, law enforcement agencies, and communities." (28) For those concerned with racial justice, gun violence is impossible to ignore: if you are young, Black, and live in a low-income neighborhood, your chances of being shot are strikingly high. (29)

      Yet two things challenge the intuitive sensibility of laws criminalizing gun possession. First, the lack of safety from gun violence in his neighborhood is precisely what underlay Tarik's desire to carry a gun. This directly relates to the efficacy of laws criminalizing gun possession. Individuals from high-violence neighborhoods arrested on gun possession charges repeatedly told journalist Emily Bazelon they would "rather get caught with a gun than end up dead without one." (30) A 2018 survey of young Chicagoans in violence-impacted neighborhoods supports this empirically, finding that: "One-third had illegally carried a firearm at some point in their lives, and among males, it was 50%. Almost all... reported that self-protection was the primary reason, and those who had been previously victimized were even more likely to report carrying a gun." (31) As Loyola University's Center for Criminal Justice Research, Policy, and Practice notes, "many of those who illegally possess guns do so for the same reasons as those who legally own and carry guns in Illinois: self-protection." (32) Laws criminalizing gun possession punish individuals for failing to unilaterally disarm: sensible in its collective goal, but a recipe for low compliance.

      The second set of challenges is the scope and severity of how we punish non-violent gun possession. Police in Cook County, Illinois arrested 3,000 to 6,000 people each year for illegal gun possession, representing over 70% of all gun-related arrests. (33) Thousands in Illinois went to prison on gun possession charges over the past half-decade, with incarceration rates for gun possession increasing 27% even as prison admissions for other crimes fell. (34) Many other cities and states have laws making non-violent gun possession a felony carrying prison time. (35)

      The federal government has mostly failed to pass policies to "curb the vibrant national gun market [n]or to address crime's root causes." (36) But states have exercised policing power to combat urban gun deaths by instituting mandatory minimums for gun possession, prosecuting gun crimes under more severe federal laws with longer sentences, using pre-textual traffic stops to seize unlicensed firearms, and more. (37) Journalist Emily Bazelon frames the issue thusly:

      Time and again, politicians have offered the following trade-off to urban Black communities: To make you safer, we have to stop more of your young men on the streets and put them in prison if they get near a gun. Meanwhile, the empirical evidence strongly suggests that mandating prison for carrying a gun has not reduced violence. (38) Bazelon quotes criminologist Franklin Zimring in explaining these results: "the backgrounds and motives of...