How gun laws put the innocent on trial
Police are horrible, racist monsters who want to lock up minorities over even trivial violations of the law! And police are also the only ones who should have guns!
These two beliefs, it seems from my observations, are often held by the same people. Yet there is a conflict: If you favor strict gun control laws, laws that will punish people severely simply for possessing a gun or ammunition, then you will wind up throwing a lot more people in jail. And many of those people will be minorities.
This was the point of a talk by George Washington University law professor Robert J. Cottrol at a Georgetown Law School conference on guns and gun rights that I attended last week. As Cottrol noted, “Gun-control laws have a tendency of turning into criminals peaceable citizens whom the state has no reason to have on its radar.”
Cottrol noted that crimes like carrying or owning a pistol without a license are what the law has traditionally termed malum prohibitum — that is, things that are wrong only because they are prohibited. (The contrast is with the other traditional category, malum in se, those things, like rape, robbery, and murder, that are wrong in themselves.)
Traditionally, penalties for malum prohibitum acts were generally light, since the conduct that the laws governed wasn’t wrong in itself. But modern American law often treats even obscure and technical violations of gun laws as felonies and — Cottrol noted — prosecutors often go out of their way to prosecute these crimes more vigorously even than traditional crimes like rape or murder.
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Cottrol discussed a number of such cases, including that of Melroy Cort, a double-amputee Iraq veteran who in 2006 was traveling to Walter Reed Army Hospital for treatment from Ohio. He was charged with possession of a pistol not registered in the District of Columbia (though he said he had a permit in Ohio), a felony that would not only have sent him to prison, but would have cost him his veterans’ benefits. Although, as Cottrol notes, prosecutors in the DC Attorney General’s office had discretion to drop the charges; they instead threw the book at him.
A public defender advised him to plead guilty, but Cort defended himself, and a jury acquitted him of the felony charges — as juries are empowered to do — because it thought a conviction would be unjust. Cottrol’s comment: “If the police, the prosecutors, and the judge couldn’t see rank injustice when it stared them in the face, twelve ordinary citizens could.”
Similarly, Shaneen Allen had a permit for her pistol in her native state of Pennsylvania, but mistakenly believed that the permit, valid in 30 other states, was also recognized in New Jersey. When she was pulled over for a traffic violation, she voluntarily informed the officer that she had a licensed handgun, but was arrested and charged with a New Jersey felony carrying a mandatory minimum sentence of 42 months in jail. New Jersey District Attorney Jim McClain could have sent her to a diversion program for first offenders — as he had done for NFL star Ray Rice after Rice knocked his wife unconscious in a hotel elevator — but instead chose to prosecute Allen vigorously.
Cottrol discussed many other cases, mostly involving minorities like Allen and Cort (though non-minorities aren’t safe), all facing more prison time for a simple technical violation of the law than many real criminals get for actual violent crimes. His point: Strict gun laws with stiff penalties are just another example of the overcriminalization that has led to mass incarceration in America, particularly among minorities. And Cottrol pointed out, states like New Jersey and Massachusetts are actually harder on people caught with unregistered guns than they are on domestic abusers and child rapists.
If it were up to me, I’d find it a violation of the due process clause to treat violation of regulatory statutes as a felony. Historically, only the most serious crimes — typically carrying the death penalty — were felonies. Nowadays, though, we designate all sorts of trivial crimes, such as possessing an eagle feather, as felonies. This has the effect of empowering police and prosecutors at the expense of citizens, since it’s easy to find a felony if you look hard enough, and few citizens have the courage of a veteran like Cort, who went to trial anyway. Most will plead to something.
Meanwhile, on the gun front, I think we need federal civil rights legislation to protect citizens who make innocent mistakes. Federal law already defines who is allowed to possess firearms. Under Congress’s civil rights powers (gun ownership and carrying, after all, are protected under the Second Amendment), I think we need federal legislation limiting the maximum penalty a state can assess for possessing or carrying a firearm on the part of someone allowed to own a gun under federal law to a $500 fine. That would let states regulate reasonably, without permitting this sort of injustice.
Want to reduce crime? Punish criminals. Don’t lock up peaceable citizens on a technicality.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY's Board of Contributors.
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